issue-1996-06-24•Federal Register final rules — 1996-06-24
Federal Register final rules — 1996-06-24
issue-1996-06-24Federal Register final rules — 1996-06-24Regulation
Published Federal Register documents, not public-inspection drafts. The GPO XML/text rendition is a research aid; the linked complete official PDF retains the printed layout and all graphics. Graphics are retained in that PDF and are not independently reproduced in this text rendition. Publication does not establish that every provision remains legally in force.
FR Doc. 96-16023 Approval and Promulgation of Air Quality Implementation Plans; New Mexico; Supplement to the New Mexico State Implementation Plan (SIP) to Control Air Pollution in Areas of Bernalillo County Designated Nonattainment
[Federal Register Volume 61, Number 122 (Monday, June 24, 1996)]
[Rules and Regulations]
[Pages 32339-32341]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16023]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[NM-23-1-7101a; FRL-5500-7]
Approval and Promulgation of Air Quality Implementation Plans;
New Mexico; Supplement to the New Mexico State Implementation Plan
(SIP) to Control Air Pollution in Areas of Bernalillo County Designated
Nonattainment
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: This action approves a revision to the SIP consisting of the
``October 12, 1994, Supplement to the New Mexico State Implementation
Plan to Control Air Pollution in Area(s) of Bernalillo County
Designated Nonattainment''. This revision updates the narrative portion
of the previously approved April 14, 1993, Supplement to the New Mexico
SIP to Control Air Pollution in Areas of Bernalillo County Designated
Nonattainment (see the December 21, 1993 Federal Register to reflect
EPA's approval for lifting the construction ban in Bernalillo County.
The construction ban was put in place by the Governor of New Mexico on
May 20, 1980. The ban was repealed by EPA approval effective May 16,
1994, and appearing in the March 16, 1994 Federal Register.
DATES: This action is effective on August 23, 1996, unless notice is
postmarked by July 24, 1996 that someone wishes to submit adverse or
critical comments. If the effective date is delayed, timely notice will
be published in the Federal Register.
ADDRESSES: Comments should be mailed to Jole C. Luehrs, Chief, Air
Permits Section (6PD-R), U.S. EPA Region 6, 1445 Ross Avenue, Dallas,
Texas 75202-2733. Copies of the State's
[[Page 32340]]
petition and other information relevant to this action are available
for inspection during normal hours at the following locations:
U.S. EPA, Region 6, Air Permits Section (6PD-R), 1445 Ross Avenue,
Suite 700, Dallas, TX 75202-2733.
Air and Radiation Docket and Information Center, U.S. EPA, 401 M
Street, SW., Washington, DC 20460.
City of Albuquerque, Environmental Health Department, One Civic Plaza,
Albuquerque, NM 87103.
Anyone wishing to review this petition at the Region 6 EPA office
is asked to contact the person below to schedule an appointment 24
hours in advance.
FOR FURTHER INFORMATION CONTACT: Mr. Samuel R. Mitz, Air Permits
Section (6PD-R), U.S. EPA, Region 6, 1445 Ross Avenue, Dallas, Texas
75202-2733, telephone (214) 665-8370.
SUPPLEMENTARY INFORMATION:
Background
On December 21, 1993, EPA approved an Albuquerque/Bernalillo County
permit SIP revision which included the April 14, 1993, Supplement to
the New Mexico SIP to Control Air Pollution in Area(s) of Bernalillo
County Designated Nonattainment (58 FR 67326). This Supplement included
a paragraph which stated that upon approval of Albuquerque/ Bernalillo
County Air Quality Control Regulations (AQCR) 20 (Authority-to-
Construct Permits), 29 (Prevention of Significant Deterioration) and 32
(Construction Permits for Nonattainment Areas) and the accompanying SIP
supplements, there would be no need to continue the Governor's
construction moratorium of May 20, 1980, which appeared in 40 Code of
Federal Regulations (CFR) 52.1620(e)(18).
On December 21, 1993, EPA approved revised AQCRs 29 and 32. On
March 16, 1994, EPA approved AQCR 20, which brought the Albuquerque/
Bernalillo County New Source Review permitting program up to date and
provided for the revocation of the construction ban for Albuquerque
County. In response, on October 12, 1994, the State of New Mexico
adopted a revised Supplement to the New Mexico State Implementation
Plan to Control Air Pollution in Area(s) of Bernalillo County
Designated Nonattainment, which noted the repeal of the construction
moratorium.
Final Action
The EPA is approving the revised New Mexico SIP narrative entitled
October 12, 1994 Supplement to the New Mexico State Implementation Plan
to Control Air Pollution in Area(s) of Bernalillo County Designated
Nonattainment, which acknowledges the repeal of the construction
moratorium of May 20, 1980.
The EPA is publishing this action without prior proposal because
EPA views this as a noncontroversial amendment and anticipates no
adverse comments. However, in a separate document in this Federal
Register publication, EPA is proposing to approve the SIP revision
unless adverse or critical comments be filed. This action will be
effective August 23, 1996, unless adverse or critical comments are
postmarked by July 24, 1996. If EPA receives such comments, this action
will be withdrawn before the effective date by publishing a subsequent
document that will withdraw the final action. All public comments
received will then be addressed in a subsequent final rule based on
this action serving as a proposed rule. The EPA will not institute a
second comment period on this action. Any parties interested in
commenting on this action should do so at this time. If no such
comments are received on this action, the public is advised that this
action will be effective August 23, 1996.
Regulatory Process
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities (5 U.S.C. 603 and 604).
Alternatively, under 5 U.S.C. 605(b), EPA may certify that the rule
will not have a significant impact on a substantial number of small
entities (see 46 FR 8709). Small entities include small businesses,
small not-for-profit enterprises, and governmental entities with
jurisdiction over populations of less than 50,000. SIP approvals under
section 110 and subchapter I, part D of the Clean Air Act (CAA) do not
create any new requirements, but simply approve requirements that the
State is already imposing. Therefore, because the Federal SIP-approval
does not impose any new requirements, I certify that it does not have a
significant impact on small entities. Moreover, due to the nature of
the Federal-State relationship under the CAA, preparation of a
regulatory flexibility analysis would constitute Federal inquiry into
the economic reasonableness of State action. The CAA forbids EPA from
basing its actions concerning SIPs on such grounds. Union Electric Co.
v. U.S. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42 U.S.C.
7410(a)(2).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by August 23, 1996. Filing a petition for
reconsideration of this final rule by the Administrator does not affect
the finality of this rule for purposes of judicial review; nor does it
extend the time within which a petition for judicial review may be
filed, or postpone the effectiveness of this rule. This action may not
be challenged later in proceedings to enforce its requirements (see
section 307(b)(2)).
Nothing in this action shall be construed as permitting, allowing,
or establishing a precedent for any future request for a revision to
any SIP. Each request for revision to the SIP shall be considered
separately in light of specific technical, economic, and environmental
factors and in relation to relevant statutory and regulatory
requirements.
Unfunded Mandates
Under sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,
1995, EPA must undertake various actions in association with proposed
or final rules that include a Federal mandate that may result in
estimated costs of $100 million or more to the private sector, or to
State, local, or tribal governments in the aggregate.
Through submission of this SIP or plan revision approved in this
action, the State and any affected local or tribal governments have
elected to adopt the program provided for under section 110 of the CAA.
The rules and commitments approved in this action may bind State,
local, and tribal governments to perform certain actions and also
require the private sector to perform certain duties. To the extent
that the rules and commitments being approved by this action will
impose or lead to the imposition of any mandate upon the State, local,
or tribal governments, either as the owner or operator of a source or
as a regulator, or would impose or lead to the imposition of any
mandate upon the private sector, EPA's action will impose no new
requirements; such sources are already subject to these requirements
under State law. Accordingly, no additional costs to State, local, or
tribal governments, or to the private sector, result from this action.
Therefore, EPA has determined that this final action does not include a
mandate that may result in estimated costs of $100 million or more to
State, local, or tribal governments in the aggregate or to the private
sector.
[[Page 32341]]
Office of Management and Budget (OMB) review
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995, memorandum from Mary Nichols, Assistant Administrator
for Air and Radiation. The OMB has exempted this regulatory action from
Executive Order 12866 review.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Nonattainment areas.
Dated: April 11, 1996.
Lynda F. Carroll,
Acting Regional Administrator.
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart GG--New Mexico
2. Section 52.1620 is amended by adding paragraph (c)(61) to read
as follows:
Sec. 52.1620 Identification of plan.
* * * * *
(c) * * *
(61) A revision to the New Mexico SIP to udpate the Supplement to
the New Mexico State Implementation Plan to Control Air Pollution in
Area(s) of Bernalillo County Designated Nonattainment to reflect EPA's
approval for lifting the construction ban in Bernalillo County,
superseding the supplement dated April 14, 1993.
(i) Incorporation by reference.
(A) October 12, 1994 Supplement to the New Mexico State
Implementation Plan to Control Air Pollution in Area(s) of Bernalillo
County Designated Nonattainment as approved by the Albuquerque/
Bernalillo County Air Quality Control Board on November 9, 1994.
[FR Doc. 96-16023 Filed 6-21-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-16021 Control of Air Pollution; Removal and Modification of Obsolete, Superfluous or Burdensome Rules
[Federal Register Volume 61, Number 122 (Monday, June 24, 1996)]
[Rules and Regulations]
[Page 32339]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16021]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 51 and 52
[FRL-5526-2]
Control of Air Pollution; Removal and Modification of Obsolete,
Superfluous or Burdensome Rules
AGENCY: Environmental Protection Agency.
ACTION: Correction to final regulations.
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SUMMARY: This document contains corrections to Clean Air Act final
regulations, which were published April 11, 1996 (61 FR 16050). The
regulations related to the removal and modification of obsolete,
superfluous or burdensome Clean Air Act rules.
EFFECTIVE DATE: This action will be effective June 24, 1996.
FOR FURTHER INFORMATION CONTACT: Maureen Delaney, Office of Air and
Radiation, Office of Policy Analysis and Review, (202) 260-7431.
SUPPLEMENTARY INFORMATION:
Background
On April 11, 1996, EPA published a final rule under the Clean Air
Act deleting superfluous, obsolete or burdensome regulations from the
Code of Federal Regulations (CFR).
Need for Correction
As published, the final regulations contain errors which may prove
to be misleading and are in need of clarification.
Correction of Publication
Accordingly, the publication on April 11, 1996 of the final
regulations (61 FR 16050), which were the subject of FR Doc. 96-8744,
is corrected as follows:
On page 16061, in the third column, the heading for amendment
number 38 is corrected to read ``Sec. 52.1227--[removed and
reserved].''
On page 16062, in the third column, amendment number 67 is
corrected to read ``67. Section 52.2296 through 52.2298 are removed and
reserved.''
List of Subjects in 40 CFR Part 51
Environmental Protection, Air pollution control
Dated: June 17, 1996.
Richard D. Wilson,
Acting Assistant Administrator, Office of Air and Radiation.
[FR Doc. 96-16021 Filed 6-21-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-16007 Colorado Regulatory Program
[Federal Register Volume 61, Number 122 (Monday, June 24, 1996)]
[Rules and Regulations]
[Page 32328]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16007]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 906
[SPATS No. CO-029-FOR]
Colorado Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; correction.
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SUMMARY: In this document, the office of Surface Mining Reclamation and
Enforcement (OSM) is correcting its discussion and approval of a
proposed amendment to the Colorado regulatory program under the Surface
Mining Control and Reclamation Act of 1977 (SMCRA). OSM's correction
pertains to Colorado's intent to withdraw from a proposed amendment
consideration of proposed rules pertaining to Colorado's show cause
orders and patterns of violations involving violations of water quality
effluent standards.
EFFECTIVE DATE: June 24, 1996.
FOR FURTHER INFORMATION CONTACT:
James F. Fulton, Telephone: (303) 672-5524.
SUPPLEMENTARY INFORMATION: On February 19, 1996 (administrative record
No. CO-675-9), Colorado submitted revisions to a November 20, 1995,
formally-proposed amendment to its approved program (administrative
record No. CO-675). In the February 19, 1996, submittal, Colorado
indicated that the State-initiated proposed revisions to Rules
5.03.3(1) and (2), pertaining to show cause orders and patterns of
violations involving violations of water quality effluent standards,
had been deleted from the proposed amendment and intended that OSM
withdraw the revisions proposed at Rules 5.03.3(1) and (2) from
consideration during its review of the amendment package. In the
preamble of the May 29, 1996, Federal Register notice (61 FR 26792,
administrative record No. CO-675-16) approving Colorado's proposed
amendment, OSM inadvertently discussed and approved Rules 5.03.3(1) and
(2) as they had been proposed in the original November 20, 1995,
submittal.
The purpose of this document is to notify the public that
Colorado's November 20, 1995, proposed revisions to Rules 5.03.3(1) and
(2), had been withdrawn by Colorado on February 19, 1996. Accordingly,
OSM's May 29, 1996, Federal Register (Vol. 61, No. 104, pages 26792
through 26801) preamble discussion (finding No. 16.b, page 26798, third
column, last paragraph) and approval (Director's decision, page 26801,
first column, eleventh paragraph) of revisions to proposed Rules
5.03.3(1) and (2) should be disregarded.
Dated: June 13, 1996.
Richard J. Seibel,
(Regional Director) Western Regional Coordinating Center.
[FR Doc. 96-16007 Filed 6-21-96; 8:45 am]
BILLING CODE 4310-05-M
Complete official Federal Register PDF
FR Doc. 96-15995 Determination Concerning Telemarketing Rules
[Federal Register Volume 61, Number 122 (Monday, June 24, 1996)]
[Rules and Regulations]
[Pages 32323-32327]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15995]
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COMMODITY FUTURES TRADING COMMISSION
16 CFR Chapter I
Determination Concerning Telemarketing Rules
AGENCY: Commodity Futures Trading Commission.
ACTION: Notice of determination that existing Commodity Exchange Act
provisions, Commission Regulations, and National Futures Association
(``NFA'') rules provide protection from abusive and deceptive
telemarketing practices ``substantially similar'' to that provided by
the Federal Trade Commission's recently promulgated telemarketing rule.
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SUMMARY: Pursuant to its obligations under section 3(e) of the
Telemarketing and Consumer Fraud and Abuse Prevention Act
(``Telemarketing Act''),1 15 U.S.C. 6102(e), and corresponding
section 6(f) of the Commodity Exchange Act (``CEA''),2 7 U.S.C.
9b, the Commodity Futures Trading Commission (``Commission'' or
``CFTC'') hereby provides notice of its determination that existing CEA
provisions, Commission Regulations under the CEA,3 and CFTC-
approved NFA rules,4 interpretations, and other requirements in
the area of telemarketing, provide protection from deceptive and
abusive telemarketing practices ``substantially similar'' to that
provided by the Federal Trade Commission's (``FTC's'') recently
promulgated Telemarketing Sales Rule, 16 CFR Part 310 (Prohibition of
Deceptive and Abusive Telemarketing Acts).5 Accordingly, the CFTC
will not promulgate additional rules under the Telemarketing Act at
this time. Background information and a discussion of the basis for the
CFTC's determination that existing provisions of its regulations and
enabling statute, together with NFA telemarketing requirements, provide
protection against deceptive and abusive telemarketing acts and
practices substantially similar to that provided by the FTC's rule are
set forth below.
\1\ 15 U.S.C. 6101-08.
\2\ Citations to the CEA in this notice refer to the Commodity
Exchange Act, codified at 7 U.S.C. 1 et seq. (1994).
\3\ Citations to ``Commission Regulations'' or ``CFTC
Regulations'' refer to the CFTC's regulations, codified at 17 CFR
1.1. et seq.
\4\ Section 17 of the CEA, 7 U.S.C. 21, requires the CFTC to
review and approve the rules of registered futures associations,
which have explicit self-regulatory obligations under the CEA and
Commission Regulations. To date, NFA, which began operations in
1982, is the only registered futures association.
\5\ 60 FR 43842 (August 23, 1995).
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EFFECTIVE DATE: June 24, 1996.
FOR FURTHER INFORMATION CONTACT: Nancy L. Walsh, Attorney, Division of
Enforcement, Commodity Futures Trading Commission, Three Lafayette
Centre, 1155 21st Street, NW, Washington, D.C. 20581. Telephone: (202)
418-5330.
SUPPLEMENTARY INFORMATION:
I. The Telemarketing Act
The Telemarketing Act, signed into law on August 16, 1994, ``to
strengthen the authority of the Federal Trade Commission to protect
consumers in connection with sales made with a telephone, and for other
purposes,'' 6 required that the FTC adopt rules prohibiting
deceptive and abusive telemarketing practices. As discussed below, the
Telemarketing Act also added a new Section 6(f) to the CEA, 7 U.S.C.
9b, which requires, subject to certain exceptions, that the CFTC
``promulgate, or require each registered futures association to
promulgate, rules substantially similar'' to the FTC's telemarketing
rules within six months of the effective date of the FTC rules.7
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\6\ H.R. Rep. No. 20, 103d Cong., 1st Sess. at 1 (1993).
\7\ See Section 6(f) of the CEA, 7 U.S.C. 9b. The Telemarketing
Act similarly requires the Securities and Exchange Commission
(``SEC'') to promulgate telemarketing rules within the same time
frame unless it determines: (1) that federal securities laws or SEC
rules provide substantially similar protection; or (2) that SEC
telemarketing rules would not be necessary or appropriate in the
public interest, or would be inconsistent with the maintenance of
fair and orderly markets. See Section 3(d) of the Telemarketing Act,
15 U.S.C. 6102(d).
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A. Congressional Findings
In imposing rulemaking and other obligations on the FTC, the CFTC,
and the SEC, the Telemarketing Act lists the following Congressional
findings: (1) That telemarketing differs from other sales activities
given sellers' mobility and ability to make sales across state lines
without direct contact with consumers; (2) that interstate
telemarketing fraud is a problem of such magnitude that FTC resources
are
[[Page 32324]]
insufficient to protect consumers; (3) that telemarketing fraud results
in approximately $40 billion/year in losses; and (4) that consumers are
victims of other forms of telemarketing deception and abuse as
well.8 Consequently, Congress found that it should enact
legislation to offer customers necessary protection from telemarketing
deception and abuse.9
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\8\ See Section 2 of the Telemarketing Act, 15 U.S.C. 6101.
\9\ See Section 2(5) of the Telemarketing Act, 15 U.S.C.
6101(5).
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B. Rulemaking Obligations
1. Imposed on the FTC 10
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\10\ See Sections 3(a)-(c) of the Telemarketing Act, 15 U.S.C.
6102(a)-(c).
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The Telemarketing Act required the FTC, within 365 days of the
statute's enactment, to ``prescribe rules prohibiting deceptive
telemarketing acts or practices and other abusive telemarketing acts or
practices.'' 11 Those rules, the statute provides, must define
deceptive telemarketing acts or practices and must include: a
prohibition of any pattern of unsolicited telephone calls; restrictions
on calling times for unsolicited calls; and a requirement that
telemarketers ``promptly and clearly'' disclose the purpose of calls
and make other appropriate disclosures. Under the Telemarketing Act,
telemarketing rules promulgated by the FTC shall not apply to any
person ``registered or exempt from registration'' under the CEA as a
futures commission merchant (``FCM''), introducing broker (``IB''),
commodity trading advisor (``CTA''), commodity pool operator (``CPO''),
leverage transaction merchant, floor broker, or floor trader, or any
person associated with such firms, entities or persons.12
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\11\ The statute was enacted on August 16, 1994, and, as noted
above, see supra n. 5, the FTC issued its final Telemarketing Sales
Rule on August 23, 1995.
\12\ See Section 3(e)(1) of Telemarketing Act, 15 U.S.C.
6102(e)(1), and section 6(f)(1) of Commodity Exchange Act, 7 U.S.C.
9b(1). See also 60 FR at 43843, n. 18 (FTC statement of basis and
purpose for final FTC telemarketing rule confirming that such
persons--as well as certain securities professionals regulated by
the SEC--are excluded from coverage of the FTC's rule).
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2. Imposed on the CFTC
As noted above, the Telemarketing Act requires the CFTC to
promulgate, or require each registered futures association to
promulgate, rules ``substantially similar'' to those of the FTC, within
six months of the effective date of the FTC's rules, absent certain
exceptions discussed below.13 Any CFTC telemarketing rules
promulgated would apply to any person registered or exempt from
registration under the CEA in connection with such person's business as
an FCM, IB, CTA, CPO, leverage transaction merchant, floor broker, or
floor trader, and to any person associated with such firms, entities,
or persons.14
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\13\ The FTC's Telemarketing Sales Rule became effective
December 31, 1995. 60 FR 43842. Accordingly, the CFTC, by June 30,
1996, must promulgate rules or publish a notice of its determination
that one of the listed exceptions applies.
\14\ Section 6(f)(1) of the CEA, 7 U.S.C. 9b(1). These persons
(as well as certain securities professionals) are specifically
excluded from coverage by the FTC's telemarketing rule. See supra n.
12.
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The CFTC, however, is not required to promulgate rules if it
determines either: (1) That CFTC rules provide ``substantially
similar'' protection from deceptive and abusive telemarketing practices
by certain persons registered or exempt from registration under the CEA
as the FTC's telemarketing rule;15 or (2) that CFTC telemarketing
rules are not necessary or appropriate in the public interest, or for
the protection of customers in the futures and options markets, or
would be inconsistent with ``the maintenance of fair and orderly
markets.'' If the CFTC determines that one of these exceptions applies,
it must publish the reasons for its determination in the Federal
Register.
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\15\ The CFTC has properly considered NFA rules and other
requirements, as well as CFTC Regulations and provisions of the CEA,
in analyzing whether this exception applies. Because the
Telemarketing Act requires either the CFTC or ``a registered futures
association'' to promulgate rules, see section 6(f)(1) of the CEA, 7
U.S.C. 9b(1), consideration of CFTC-approved NFA rules is necessary
to evaluate whether existing protection is ``substantially similar''
to that provided by the FTC's rule. NFA, as noted above, is the only
registered futures association. See supra n. 4. In addition,
Commission Regulation 170.15 and NFA By-Law 1101 essentially work to
require that all commodity professionals who deal with customers be
members of NFA, thus assuring that NFA rules apply to the listed
categories of professionals, except for floor traders and floor
brokers who are exchange members and generally not engaged in
telemarketing.
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II. The FTC's Final Rule
The FTC's Telemarketing Sales Rule, 16 CFR Part 310, became
effective December 31, 1995.16 Most of the substantive provisions
of the rule appear in sections 310.3 and 310.4. Section 310.3 makes it
a deceptive telemarketing act or practice and a violation of the FTC's
rule for telemarketers or sellers to engage in certain prohibited
deceptive acts or practices, including, in particular, failing to
disclose or misrepresenting specified material information. Section
310.4 identifies certain ``abusive'' conduct (for example, engaging in
threats or using profane language), establishes ``pattern of call'' and
calling time restrictions, and requires sellers and telemarketers to
make specific oral disclosures (including the identity of the seller,
the purpose of the call, the nature of the goods or services being
sold, and, if a prize promotion is offered, that no purchase or payment
is necessary to participate in the promotion).
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\16\ 60 FR 43842 (August 23, 1995).
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III. CFTC's Existing Protection Against Deceptive and Abusive
Telemarketing Acts and Practices Is ``Substantially Similar'' to
Protection Under the FTC Rule
A. Generally
As stated above, the CFTC has determined that existing statutory
provisions, regulations, and NFA rules governing telemarketing
practices of registered commodity professionals provide protection from
deceptive and abusive telemarketing that is ``substantially similar''
to the protection provided by the FTC's Telemarketing Sales Rule. To
reach that determination, the CFTC carefully analyzed and compared the
FTC's Telemarketing Sales Rule and analogous provisions of the CEA,
Commission Regulations, and NFA rules. The Commission also considered
information from NFA on the scope and application of its telemarketing
and sales practice rules. Given the substantially similar protection
provided by existing CEA provisions, Commission Regulations, and NFA
rules, and the fact that the FTC's rule addresses some areas not within
the Commission's jurisdiction, the Commission has determined, pursuant
to Section 6(f)(2) of the CEA, 7 U.S.C. 9b(2), not to promulgate
additional telemarketing rules at this time.
Since it began operations in 1975, the CFTC has attacked fraudulent
telemarketing schemes within its jurisdiction consistently and
vigorously, and with considerable success. In doing so, the CFTC brings
federal court injunctive actions and administrative actions; it assists
the United States' Attorneys in criminal prosecutions; and it files
joint actions with states.
While, as reflected by the chart below, certain CEA provisions,
Commission Regulations, and NFA rules address and prohibit the same
acts and practices targeted by the FTC's Telemarketing Sales Rule,
those provisions are part of a comprehensive regulatory scheme
developed specifically for the futures and commodity options markets.
The FTC's Telemarketing Rule, on the other hand, defines the terms,
``telemarketer'' and ``goods or services'' broadly without
[[Page 32325]]
regard to the subject matter of particular solicitations.17 In
light of the agencies' different regulatory missions, the FTC's
Telemarketing Sales Rule addresses the telemarketing of certain goods
and services that are not within the CFTC's jurisdiction or expertise,
such as prize promotions and awards. Accordingly, not every provision
of the FTC's Telemarketing Sales Rule has a precisely equivalent
analogue in the CEA, Commission Regulations, or NFA Rules.
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\17\ Section 310.2(t) of the FTC's Telemarketing Sales Rule, for
example, defines ``telemarketer'' as ``any person who, in connection
with telemarketing, initiates or receives telephone calls to or from
a customer.'' The FTC similarly defines the phrase, ``goods or
services'' broadly to cover ``any tangible and intangible goods or
services including, but not limited to, leases, licenses, or
memberships,'' as well as prizes and awards. See Statement of Basis
and Purpose, 60 FR at 43844.
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B. Comparison Chart: FTC Telemarketing Sales Rule and Existing CEA
Provisions, Commission Regulations, and NFA Rules
The following chart provides a side-by-side description and
comparison of substantive provisions of the FTC's Telemarketing Sales
Rule and certain analogous provisions of the CEA, Commission
Regulations, and NFA rules.18 Given the CFTC's and the FTC's
different regulatory missions and the fact that the FTC's rule
addresses certain subjects and products outside the CFTC's
jurisdiction, not every subject addressed by the FTC's Telemarketing
Sales Rule is governed or addressed by a corresponding provision of the
CEA, Commission Regulations, or NFA Rules. The chart is intended to
provide an overview and concise summary of the FTC's rule and relevant
provisions of the CEA, Commission Regulations, and NFA Rules. The chart
is not intended to be an exhaustive list of every CEA provision,
Commission rule, and NFA rule or requirement relating to each provision
of the FTC's rule.
\18\ Provisions of the FTC's rule are listed and described on
the left, and analogous provisions of the CEA, Commission
Regulations or NFA rules are listed and described on the right.
Section 310.3: Deceptive Telemarketing Acts or Practices
(a): Prohibited Deceptive Acts/ Antifraud provisions of the CEA and Commission Regulations require
Practices. It is a deceptive act or disclosure of material information.
practice to:
(1) Fail to disclose the following Reg. 1.55 requires FCMs and IBs, before opening accounts, to furnish
``material information'' in clear and customers with standard written risk disclosure statement disclosing
conspicuous manner before customer the substantial risk of loss from trading commodity futures contracts
pays: total costs; all material and secure signed acknowledgement. See Reg. 30.6 (disclosure
limits, restrictions, conditions to requirements for FCMs and IBs opening foreign futures or option
purchasing, receiving or using goods account); Part 4 of Regs. (CPOs and CTAs, before soliciting,
or services; any refund, cancellation, accepting, or receiving funds, must furnish disclosure document and
exchange policy; (for prize promotion) risk disclosure statement, disclosing, among other things, break-even
odds of receiving prize; and all point, the pool or trading advisor's business background, principal
material costs/conditions to redeeming risk factors, fees and expenses, and performance information); Reg.
prize;. 4.21 et seq. (for CPOs); Reg. 4.31 et seq. (for CTAs). Reg. 32.5
requires options disclosure statement, including description of
transaction, costs, effect of foreign currency fluctuations, and
disclosure of volatile nature of commodities markets, risk of loss,
and other information. Reg. 31.11 (leverage transaction merchants must
furnish disclosure document and secure signed acknowledgement).
(2) Misrepresent, directly or by CEA, 4b(a)(i), 7 U.S.C. 6b(a)(i), makes it unlawful, in connection with
implication, listed material certain commodity futures transactions, to cheat or defraud or attempt
information. to cheat or defraud another person.
CEA, 4o, 7 U.S.C. 6o, among other things, makes it unlawful for CPOs
and CTAs to employ a device, scheme, or artifice to defraud or to
engage in any transaction, practice or course of business which
operates as a fraud or deceit.
Regs. 32.9 and 33.10 make it unlawful, among other things, to cheat or
defraud or attempt to cheat or defraud any other person, make or cause
to be made any false report or statement, or deceive or attempt to
deceive any other person, in connection with commodity option
transactions.
NFA Rule 2-2(a) provides that no member or associate shall cheat,
defraud, deceive or attempt to cheat, defraud, or deceive any
commodity futures customer.
See also CEA, 4b(a)(ii), 7 U.S.C. 6b(a)(ii) (unlawful willfully to make
or cause to be made any false report or statement); CEA, 4b(a)(iii), 7
U.S.C. 6b(a)(iii) (unlawful willfully to deceive or attempt to deceive
another person).
(3) Fail to obtain or submit verifiable Signed risk disclosure requirements (discussed above). Reg. 166.2
authorization before submitting check, (prohibits FCMs and IBs from trading for customer account without
draft or other negotiable paper drawn prior specific authorization or written authorization allowing trading
on person's account for payment; or without separate authorization for each individual transaction).
Segregation requirements for handling customer funds also provide
protection. CEA, 4d(2), 7 U.S.C. 6d(2), Regs. 1.20-1.30, 1.32, and
1.36.
(4) Make false/misleading statement to Compare to discussion of Section 310.3 above.
induce payment.
(b): Assisting/Facilitating deceptive CEA, 13(a), 7 U.S.C. 13c(a) (Aiding and Abetting): person who commits,
act/practice to provide substantial or willfully aids, abets, counsels, commands, induces or procures
assistance or support to seller or commission of a violation of CEA, may be held responsible as
telemarketer when person knows or principal. CEA, 13(b), 7 U.S.C. 13c(b) (Controlling Person): person
avoids knowing seller or telemarketer who directly or indirectly controls any person who has violated CEA or
is engaged in act/practice that Commission rules may be liable for violation to the same extent as
violates Rule. controlled person. CEA, 2(a)(1)(A)(iii), 7 U.S.C. 4 (Vicarious
Liability): corporations, partnerships, associations, and individuals
liable for acts and omissions of employees and agents. Reg. 166.3
(Supervision): registrants must supervise diligently their employees
and agents in all aspects of their futures activities.
(c): Credit Card Laundering............ To the extent credit card laundering is part of a scheme to violate the
CEA or Commission Regulations, CEA, 13, 7 U.S.C. 13c (Aiding and
Abetting) could be used to address conduct.
Section 310.4: Abusive Telemarketing Acts or Practices
(a): Abusive Conduct Generally--It is
abusive conduct to:
[[Page 32326]]
(1) Engage in threats, intimidation NFA Compliance Rule 2-29(a)(2) prohibits high pressure sales practices,
or use profane or obscene including threatening or intimidating solicitations and the use of
language;. profane or obscene language. See NFA's recent Notice to Members 19
(confirming that NFA Compliance Rule 2-29(a)(2) prohibits threats and
intimidation, calling at irregular hours, and the use of profane or
obscene language).20
NFA Compliance Rule 2-9 requires each NFA member to supervise
diligently its employees and agents in all aspects of their futures
activities. Interpretive Notice to NFA Compliance Rule 2-9 imposes
enhanced telemarketing supervisory requirements, including tape-
recording certain sales solicitations, on a member firm if a certain
threshold number or percentage of its APs formerly were employed by
firms disciplined by NFA or the CFTC for sales practice fraud.
(2) Request/receive payment to See Comparison with 310.3(c).
remove derogatory information from
credit history unless listed
conditions met;.
(3) Request/receive payment for See Comparison with 310.3(c).
recovering money or any item of
value paid in previous telephone
transaction; or.
(4) Request/receive payment before See Comparison with 310.3(c).
securing loan and indicating high
chance of getting loan.
(b): Pattern of Calls Abusive act/ See Comparison with 310.4(a) (NFA Compliance Rule 2-29(a)(2), NFA
practice to: (i) make calls Notice to Members, and NFA Compliance Rule 2-9). NFA considers pattern
repeatedly or continuously with of calls in initiating complaints under NFA Compliance Rule 2-
intent to annoy, abuse or harass; 29(a)(2).21
or (ii) initiate call when person
has stated that he/she does not
want to receive call.
(c): Calling Time Restrictions See Comparison with 310.4(a) (NFA Compliance Rule 2-29(a)(2), NFA
Calls must be between 8:00 a.m. Notice to Members).22
and 9:00 p.m.
(d) Required Oral Disclosures...... See Comparison with 310.4(a) (NFA Compliance Rule 2-29(a)(2) and NFA
Compliance Rule 2-9).
Abusive telemarketing act NOT General antifraud provisions apply to oral statements, and additional
to disclose: seller's requirements govern promotional materials and advertisements (Reg.
identity; call's purpose; 4.41 for CPOs/CTAs; NFA Compliance Rule 2-9 and Interpretive Notice).
nature of goods/services; and NFA Rules on disclosure and promotional materials also require certain
that no purchase necessary to information concerning a customer's ``break-even'' point as well as
win prize or participate in balanced presentation.
promotion.
In addition, prior to trading, extensive written disclosure and
acknowledgement requirements must be met. See Regs. 1.55, 4.13, 4.21,
4.24, 4.25, 4.31, 4.34, 4.35, 33.7, 32.5, 30.6, 31.11. Regs. 1.55 and
33.7 require FCMs and IBs to furnish ``Risk Disclosure Statement'' and
receive acknowledgement.23 Reg. 4.21 requires CPOs to provide
disclosure document before soliciting, accepting, or receiving funds.
Reg. 4.13 applies to exempt CPOs. Reg. 4.31 requires CTAs to provide
disclosure document before soliciting or entering into agreement with
prospective client.
Section 310.5: Recordkeeping
(a) Seller/telemarketer must keep the Recordkeeping Requirements under CEA and Commission Regulations. See
following for 24 months from date CEA, 4g, 4n, 7 U.S.C. 6g, 6n; Regs. 1.12, 1.18, 1.31, 1.33, 1.34,
produced: advertisements, brochures, 1.35, 1.37, 1.55, 3.12, 4.23, and 4.32.24 Generally, Reg. 1.31
scripts, promotional materials; name/ requires all required books and records be kept for 5 years, and be
address of prize recipients and prizes readily accessible for CFTC and Department of Justice inspection for
of $25 or more awarded; name/address the first 2 years.
of customers and goods purchased; name/
address/telephone and job titles of
sales employees; and verification
authorizations.
Registration requirements for APs, see Reg. 3.12, cover certain
information required by FTC rule. NFA Compliance Rule 2-29 and
accompanying Interpretive Notice impose recordkeeping and other
requirements for brochures, scripts, and promotional material. NFA
Rule 2-10 requires members to maintain all books and records
appropriate to the conduct of their business. See also Reg. 1.40 (FCMs
and contract markets must furnish CFTC, upon request, copies of
letters, circulars, telegrams or reports published or given general
circulation on crop or market information or conditions affecting the
price of any commodity).
(b) Keep records as in manner seller/ See Comparison for 310.5(a).
telemarketer keeps records in ordinary
course of business.
[[Page 32327]]
(c) Seller and telemarketer may, by See Comparison for 310.5(a).
written agreement, allocate
recordkeeping obligations.
(d) Governs recordkeeping upon See Comparison for 310.5(a).
dissolution or sale of business.
Section 310.7: Actions by States and Private Persons
(a): Requires Attorney General, other CEA, 6d, 7 U.S.C. 13a-2, authorizes states to prosecute violations of
State officers authorized to bring CEA in federal court; notice of filing and copy of pleading must be
suit, and any private person who given to the CFTC.
brings an action under Telemarketing
Act to serve written notice of action
on FTC.
CEA, 14, 7 U.S.C. 18 (Reparations Procedure) authorizes reparations
actions by any person complaining of violation of CEA, Commission
Regulations, or Commission order by a registrant. See also Part 12 of
Regs. (Rules Relating to Reparations Proceedings).
CEA, 17(b)(10), 7 U.S.C. 21(b)(10), requires NFA to provide procedure
through arbitration or otherwise to settle customer claims and
grievances against its members. NFA Code of Arbitration, Section 2
provides generally that members must submit to arbitration for any
dispute filed with NFA by a customer. See also Reg. 170.8 (Settlement
of Customer Disputes).
(b): Nothing in this section prohibits CEA, 6d(8), 7 U.S.C. 13a-2(8), allows states to proceed in state court
Attorney General or other authorized against certain registrants for violations of antifraud provisions.
State officials from proceeding in CEA, 12(e), 7 U.S.C. 16(e), authorizes states to proceed in state
State court for violations of any court for illegal ``off-exchange'' transactions.
civil or criminal state statute.
19 See NFA Notice to Members (June 19, 1996).
20 Of the thirty-eight complaints that NFA has issued alleging a violation of NFA Compliance Rule 2-29(a)(2),
NFA considered a pattern of inappropriate calling (i.e., calling at irregular hours or making excessive calls)
as a factor in initiating eighteen cases and the use of profane language as a factor in three cases.
21 As confirmed by NFA's recent Notice to Members, repeated or continuous calls made with an intent to annoy,
abuse, or harass are specifically prohibited by Rule 2-29(a)(2).
22 NFA considers the time when calls were placed when issuing complaints under NFA Compliance Rule 2-29(a)(2).
See supra n. 20.
23 Neither Reg. 1.55 nor Reg. 33.7 relieves FCMs and IBs from otherwise applicable disclosure and other
requirements. See Reg. 1.55(f) (FCMs and IBs not relieved from any other disclosure obligation under
applicable law); Reg. 33.7(f) (FCMs and IBs not relieved from any other obligation under CEA or CFTC
regulations, including obligation to disclose all material information).
24 Regs. 1.10, 1.12, 1.18, 1.31, 1.32, 1.35 govern recordkeeping and reporting obligations for FCMs and IBs.
Reg. 1.33 requires FCMs to furnish monthly and confirmation statements. Reg. 1.34 requires FCMs to keep
``point balance'' and monthly listings of open option positions carried for option customers marked to market.
CEA, 4n, 7 U.S.C. 6n, requires CPOs and CTAs to keep books and records for at least 3 years, but is superseded
by the general five-year requirement of Reg. 1.31. Regs. 4.23 and 4.33 also govern recordkeeping by CPOs and
CTAs.
D. Conclusion
As the chart and discussion above reflect, existing provisions of
the CEA, Commission Regulations, and NFA rules address and prohibit
many of the same categories of telemarketing abuse targeted by the
FTC's recently promulgated Telemarketing Sales Rule. Accordingly, the
CFTC has determined that existing rules provide protection from
deceptive and abusive telemarketing acts and practices that is
``substantially similar'' to the protection provided by the FTC's rule.
Given its determination, the CFTC has also determined that it is
unnecessary for it to promulgate additional telemarketing rules under
the Telemarketing Act at this time.
To ensure that it remains apprised of developments in the area of
telemarketing, however, the CFTC has asked NFA to continue to focus, in
the course of performing member audits,25 on telemarketing acts
and practices that it believes may fall outside the scope of existing
rules and to inform the Commission of the results of those
audits.26 Should the information provided by NFA indicate a need
for additional telemarketing rules, advisories, or other guidance, the
Commission will work with NFA to undertake rulemaking or other
activities necessary to provide appropriate protection. Through such
ongoing monitoring and evaluation of telemarketing acts and practices,
the CFTC will ensure that its rules continue to provide protection from
deceptive and abusive telemarketing acts and practices as those
practices may arise in the future.
\25\ As part of its audit and compliance functions, NFA conducts
``front-office audits,'' which address sales practices, including
telemarketing.
\26\ NFA's obligation to report on any such telemarketing acts
and practices is separate from, and additional to, its existing
reporting and auditing obligations under the CEA and Commission
Regulations.
---------------------------------------------------------------------------
Issued in Washington, DC, on June 18, 1996.
Jean A. Webb,
Secretary to the Commission.
[FR Doc. 96-15995 Filed 6-21-96; 8:45 am]
BILLING CODE 6351-01-P
Complete official Federal Register PDF
FR Doc. 96-15994 Leases, Permits, and Easements; Effective Dates of Permit Decisions; Appeal Procedure
[Federal Register Volume 61, Number 122 (Monday, June 24, 1996)]
[Rules and Regulations]
[Pages 32351-32354]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15994]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Bureau of Land Management
43 CFR Part 2920
[WO-350-1430-00-24 1A; Circular No. 2661]
RIN 1004-AB51
Leases, Permits, and Easements; Effective Dates of Permit
Decisions; Appeal Procedure
AGENCY: Bureau of Land Management, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule amends the general lease and permit
regulations of the Bureau of Land Management (BLM). It provides that
BLM general use, occupancy, and development permit decisions will take
effect immediately if the contemplated uses meet the requirements for
minimum impact permits under the existing regulations. Permits issued
under such decisions will remain in effect during the pendency of any
appeal to the Interior Board of Land Appeals (IBLA), unless IBLA stays
the decision. The regulatory text in the rule pertains only to minimum
impact permits. If a proposed use does not satisfy the requirements for
a minimum impact permit under the existing regulations (that is, if the
proposed use would conflict with BLM plans, policies, and programs for
the affected lands, or local zoning ordinances, or cause appreciable
damage to public lands or resources or improvements), the requested
permit would not qualify as a minimum impact permit and the provision
adopted today would not apply. In such a case, BLM would not issue a
permit until the applicant meets all the requirements contained in the
existing regulations. Appeals of permits other than minimum impact
permits are not affected by this final rule. Similarly, appeals of BLM
lease decisions are not affected by this rule. These appeals of BLM
decisions to issue leases and non-minimum impact permits will continue
to be governed by the general appeal procedures of the Department of
the Interior, and the use authorizations appealed will not take
immediate effect under this rule. The amendments to the appeals process
in this final rule are needed to avoid delays in BLM's issuance of
permits for environmentally benign public land uses.
EFFECTIVE DATE: July 24, 1996.
ADDRESSES: You may send inquiries or suggestions to: Director (350),
Bureau of Land Management, 1849 C Street, NW, Washington, D.C. 20240.
FOR FURTHER INFORMATION CONTACT: Vanessa Engle, as to the permit
program, (202) 452-7776, or Jeff Holdren, as to the rule or the permit
program, (202) 452-7779.
SUPPLEMENTARY INFORMATION:
I. Background
II. Final Rule and Response to Comments
III. Procedural Matters
I. Background
A. Summary of the Bureau of Land Management Permit Program
The existing regulations in 43 CFR part 2920 contain procedures for
many types of land users to obtain authorizations in the form of
permits, leases, and easements to use, occupy, and develop public lands
and their resources. BLM's statutory authority to allow these uses is
found in Section 302 of the Federal Land Policy and Management Act of
1976 (43 U.S.C. 1732) (FLPMA). BLM's general authority for issuing
regulations is found in Section 310 of FLPMA (43 U.S.C. 1740). This
final rule relates only to permits issued for uses causing minimal
environmental impacts on lands and resources, and does not pertain to
leases, easements, or other permits.
BLM authorizes only those uses that conform to applicable law, and
to BLM plans, policies, objectives, and resource management programs.
Permits are normally issued for short-term uses that do not exceed 3
years. (Uses with terms shorter than 3 years but involving heavier
impacts may require leases.) Permits are required for activities that
disrupt normal visitor activity or other authorized uses, or involve
the placement, storage, or use of temporary structures or facilities,
or materials or equipment. BLM may terminate a permit immediately for
noncompliance, or to allow another disposition or use of the lands.
Typical uses requiring permits under these regulations are equipment
storage, beekeeping, motion picture and advertising photography, and
scientific research. The regulations in part 2920 do not cover specific
activities governed by other regulations in this title, such as grazing
(43 CFR part 4100), mining (parts 3700 and 3800), mineral leasing
(parts 3100, 3200, 3400, and 3500), mineral material sales (part 3600),
and timber sales (part 5400). Also, certain activities require no
authorization, such as still photography not intended for advertising
purposes. There is no need to apply for a permit or lease for such
activities.
Section 2920.2-2 authorizes the issuance of permits for activities
that cause no appreciable impacts on the public lands, their resources
or
[[Page 32352]]
improvements. If a proposed use qualifies for a minimum impact permit
under section 2920.2-2, BLM is not required to publish a notice of
realty action under section 2920.4.
B. Proposed Rules
The final rule published today is a stage of a rulemaking process
that will culminate in the comprehensive revision of the lease and
permit regulations in 43 CFR part 2920. The rule published today
addresses only the effective date of minimum impact land use permits.
This rule was preceded by publication of two proposed rules, the first
proposing to revise the entire part 2920, and the second proposing to
amend the part by adding new provisions or changing previously proposed
provisions.
The first proposed rule was published in the Federal Register on
November 21, 1990 (55 FR 48810). This proposed rule was intended to
streamline the land use approval process by removing a category of
authorizations (easements) and cumbersome administrative procedures.
The BLM invited public comments for 60 days, and received comments from
16 sources: 10 from offices of Federal agencies, 2 from business
entities, 1 from an association, and 3 from State government agencies.
After the public comment period closed, a controversy arose
concerning issuance of filming permits. Some parties expressed concerns
about potential environmental degradation related to commercial
activities, particularly permits for feature films. Other parties,
primarily filmmakers and those who provide services to them, including
State and local government agencies, objected to provisions that allow
delay when parties file administrative appeals of film permits.
The BLM published a further proposed rule in the Federal Register
on February 9, 1995 (60 FR 7878), which was intended to allow more
expeditious processing and issuance of permits. It also would have
provided for immediate implementation of certain types of permits. The
further proposed rule designated two categories of permits: ``minimum
impact permits'' and ``full permits.'' ``Minimum impact permits'' were
to be issued for activities having a minimal impact on the public lands
and their resources. These permits were to become effective immediately
upon execution by the BLM authorized officer and were not to be subject
to the general stay process in 43 CFR 4.21(a). ``Full permit''
decisions (and also lease issuance decisions) would have remained
subject to the 43 CFR 4.21 stay provisions. The further proposed rule
contained a set of criteria for determining when a full permit would be
required.
The BLM sought public response in the further proposed rule to
specific questions relating to permits and rental schedules. Only the
first question related to appeals, and is discussed below. The
remaining questions will be discussed when the final rule revising part
2920 is published. The first question read as follows:
1. Under the existing regulations, all permits and leases are
subject to a 30-day appeal period before they become effective. The
1990 proposed rule would make all leases and permits effective
immediately upon issuance by the BLM authorized officer. Under the
1995 further proposed rule, only minimum impact permits would be
effective immediately; leases and other permits would remain subject
to the 30-day waiting period prescribed in 43 CFR part 4. Which
approach do you think is appropriate?
The overwhelming public response to this question urged that all
permits and leases be effective immediately. This final rule adopts
this recommendation only as to the minimum impact permits provided for
in section 2920.2-2 of the regulations in the 1995 and earlier editions
of 43 CFR. General land use leases, and permits with more than minimal
effects, will remain subject to 43 CFR 4.21.
In the further proposed rule, BLM also invited public comment on
several other provisions that were not in the original proposed rule.
The further proposed rule would have added rental and fee schedules for
commercial filming and photography, and would have addressed hazardous
materials, outdoor advertising, criminal penalties, and conforming
applications to land use planning. The BLM will resolve these issues in
its forthcoming final rule revising part 2920.
The BLM received approximately 800 comments on the further proposed
rule from the filming and photography industries, State and local
government agencies, individuals and environmental organizations. The
great majority of the public comments opposed the further proposed rule
as overly complex, specific, and burdensome.
II. Final Rule and Response to Comments
New section 2920.0-9
This section explains the information collection requirements
contained in part 2920, and is added in the final rule to comply with
the publication requirements of the Code of Federal Regulations. The
material in this section appeared in the 1995 and earlier editions of
43 CFR as a ``Note'' at the beginning of Group 2900, and in the
preamble to the original proposed rule published on November 21, 1990.
This material must appear in the regulation text.
Amended section 2920.2-2 Minimum impact permits.
New paragraph 2920.2-2(b) is added to cover appeals of minimum
impact permit decisions. Appeals were provided for in subpart 2924 in
the 1990 proposed rule. In the further proposed rule, part 2920 was
reorganized so that section 2921.8 pertained to appeals. Designation of
the appeals section in the rule adopted today is dictated by the
organization of part 2920 as presently constituted. Existing section
2920.2 is an umbrella heading addressing public-initiated land use
proposals. Existing section 2920.2-2 allows the issuance of minimum
impact permits in appropriate circumstances. New paragraph 2920.2-2(b)
covers appeals of decisions on these permits and makes it clear that
its provisions pertain only to minimum impact permits issued under
section 2920.2-2. This final rule does not affect appeals of penalties
for unauthorized use and appeals of determinations that land use
proposals do not conform to approved land use plans. New paragraph
2920.2-2(b) may be renumbered and amended when a comprehensive final
rule revising part 2920 is published.
The final rule published today provides that all BLM permit
decisions made under section 2920.2-2 will be effective immediately and
remain in effect during the time allowed for filing an administrative
appeal to the IBLA. Section 2920.2-2 applies only to land uses that
have minimum impacts on the public lands and resources. To meet this
standard, the use must be in conformance with BLM resource management
plans or other plans for the particular lands affected, and with BLM
policies and programs. The use must also conform with local zoning
ordinances and all other legal requirements, including the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). The
permitted use must not cause appreciable damage or disturbance to
public lands, their resources or improvements. The BLM will not grant a
permit under section 2920.2-2 if the permit proposal fails to meet any
one of these requirements.
Lease applications, and permit proposals that do not meet the
minimum impact standards stated in section 2920.2-2, are not effective
immediately upon issuance. For example, if BLM finds that the proposed
[[Page 32353]]
use does not conform to resource management plans, or local zoning, BLM
does not authorize the use until the procedures contained in the
remainder of part 2920 have been followed and until the applicant meets
its requirements.
Based on its recent experience in administering the film permit
program, the BLM expects that the great majority of permits issued
under part 2920 will meet the standards set forth in section 2920.2-2,
and that problems arising during the consideration of these permits
will be resolved by consultation among BLM, the applicant, and other
interested persons. In some instances, a person may wish to appeal and
seek a stay of BLM's decision to issue a permit under section 2920.2-2
until the appeal is resolved. When the appeal is filed, the procedures
in 43 CFR 4.21(b) will be applicable. However, the permit issued will
remain in effect until IBLA grants a stay.
Most respondents addressing the date a permit would become
effective in the further proposed rule wanted all permits to be made
effective immediately and to remain in effect while an administrative
appeal is pending. Respondents emphasized the need to rely on the
discretion of local BLM managers to gather data and make an informed
decision, while complying with the National Environmental Policy Act of
1969 (NEPA) (42 U.S.C. 4321 et seq.), and other environmental laws. As
stated earlier, BLM anticipates that, under the final rule, most
permits will meet the requirements for minimum impact permits in
section 2920.2-2(a), and will be issued in full force and effect under
section 2920.2-2(b).
One respondent suggested that the rule should provide appellants
the option of petitioning the State Director for a stay, before
appealing to IBLA, to allow a more expeditious remedy. The BLM has not
adopted this suggestion in the final rule because it would create an
unnecessarily cumbersome and burdensome bureaucratic step in the permit
appeal process.
Finally, an editorial amendment is made in section 2920.2-2 as it
appeared in the 1995 and earlier editions of 43 CFR. This section is
redesignated as paragraph (a) in the rule published today. Because
``permit'' is defined as an authorization in section 2920.0-5, the word
``authorization'' in the phrase ``permit for a land use authorization''
is redundant and has been removed in this final rule.
III. Procedural Matters
The principal author of this final rule is Jeff Holdren of the Use
Authorization Team, BLM, Washington, DC.
The BLM has determined in an environmental analysis that this final
rule does not constitute a major Federal action significantly affecting
the quality of the human environment, and that no detailed statement
pursuant to section 102(2)(C) of the National Environmental Policy Act
of 1969 (42 U.S.C. 4332(2)(C)) is required. The rule merely simplifies
and streamlines the permit process for uses found to have minimum
environmental impact. Under this rule, all applications for permits or
leases remain subject to environmental analysis, and if an
environmental impact statement is necessary, minimum impact permits
will not be issued.
This rule was not subject to review by the Office of Management and
Budget under Executive Order 12866.
The rule will have little effect on costs or prices for consumers,
nor will there be a need for increasing Federal, State, or local agency
budget or personnel requirements. By promulgating regulations that
merely streamline the permit issuance process, the rule will result in
little or no change in revenue for the United States, although improved
efficiency should reduce administrative costs. Any revenue changes
realized would not have a measurable impact on the economy and would
not approach $100 million annually. The rule will have no other
expected economic effects and contain no increased costs to the United
States or users of the public lands.
For the same reasons, the Department has determined under the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.) that the rule will
not have a significant economic impact on a substantial number of small
entities. The rule favors no demographic group, and imposes no direct
or indirect costs on small entities. It merely expedites the process of
issuing permits.
Because the rule will result in no taking of private property and
no impairment of property rights, the Department certifies that this
rule does not represent a governmental action capable of interference
with constitutionally protected property rights, as required by
Executive Order 12630.
BLM has determined that this rule is not significant under the
Unfunded Mandates Reform Act of 1995, because it will not result in the
expenditure by State, local, and tribal governments, in the aggregate,
or by the private sector, of $100 million or more in any one year, as
stated above.
This rule does not contain information collection requirements that
require approval by the Office of Management and Budget under 44 U.S.C.
3501 et seq..
List of Subjects in 43 CFR Part 2920
Public lands, Reporting and recordkeeping requirements.
Dated: June 5, 1996.
Sylvia V. Baca,
Acting Assistant Secretary of the Interior.
Under the authority of Sections 102, 302, 303, 304, and 310 of the
Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701, 1732,
1733, 1734 and 1740) part 2920, Group 2900, Subchapter B, Chapter II of
the Code of Federal Regulations, is amended as follows:
PART 2920--LEASES, PERMITS AND EASEMENTS
1. The Note at the beginning of Group 2900 is removed.
2. The authority citation for part 2920 is revised to read as
follows:
Authority: 43 U.S.C. 1740.
3. Section 2920.0-9 is added to read as follows:
Sec. 2920.0-9 Information collection.
(a) The information collection requirements contained in Part 2920
have been approved by the Office of Management and Budget under 44
U.S.C. 3501 et seq., and assigned clearance number 1004-0009. The BLM
will use the information in considering land use proposals and
applications. You must respond to obtain a benefit under Section 302 of
the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1732).
(b) Public reporting burden for this information is estimated to
average 7.43 hours, including the time for reviewing instructions,
searching existing data sources, gathering and maintaining the data
needed, and completing and reviewing the collection of information.
Send comments regarding this burden estimate or any other aspect of
this collection of information, including suggestions for reducing the
burden, to the Information Collection Clearance Officer, Bureau of Land
Management (DW-101), Building 50, Denver Federal Center, P.O. Box
25047, Denver, Colorado 80225, and to the Office of Management and
Budget, Paperwork Reduction Project, 1004-0009, Washington, D.C. 20503.
4. Section 2920.2-2 is amended by redesignating the existing text
as
[[Page 32354]]
paragraph (a), by removing the word ``authorization'' from paragraph
(a), and by adding paragraph (b) to read as follows:
Sec. 2920.2-2 Minimum impact permits.
* * * * *
(b) Permit decisions made under paragraph (a) of this section take
effect immediately upon execution, and remain in effect during the
period of time specified in the decision to issue the permit. Any
person whose interest is adversely affected by a decision to grant or
deny a permit under paragraph (a) of this section may appeal to the
Board of Land Appeals under part 4 of this title. However, decisions
and permits issued under paragraph (a) of this section will remain in
effect until stayed.
[FR Doc. 96-15994 Filed 6-21-96; 8:45 am]
BILLING CODE 4310-84-P
Complete official Federal Register PDF
FR Doc. 96-15984 Establishment of Class E Airspace; Chiefland, FL
[Federal Register Volume 61, Number 122 (Monday, June 24, 1996)]
[Rules and Regulations]
[Page 32322]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15984]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 71
[Airspace Docket No. 96-ASO-3]
Establishment of Class E Airspace; Chiefland, FL
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment establishes Class E airspace at Chiefland, FL.
A White Farms Airport at Chiefland, FL, has a VOR/DME-A Standard
Instrument Approach Procedure (SIAP). Controlled airspace extending
upward from 700 feet above the surface (AGL) is needed to accommodate
this SIAP and for instrument flight rules (IFR) operations at the
airport. The operating status of the airport will change from VFR to
include IFR operations concurrent with publication of this SIAP.
EFFECTIVE DATE: 0901 UTC, August 15, 1996.
FOR FURTHER INFORMATION CONTACT:
Benny L. McGlamery, Operations Branch, Air Traffic Division, Federal
Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320;
telephone (404) 305-5570.
SUPPLEMENTARY INFORMATION:
History
On April 16, 1996, the FAA proposed to amend Part 71 of the Federal
Aviation Regulations (14 CFR Part 71) by establishing Class E airspace
at Chiefland, FL, (61 FR 16621). This action will provide adequate
Class E airspace for IFR operations at White Farms Airport.
Interested parties were invited to participate in this rulemaking
proceeding by submitting written comments on the proposal to the FAA.
No comments objecting to the proposal were received. Designations for
Class E airspace extending upward from 700 feet or more above the
surface are published in Paragraph 6005 of FAA Order 7400.9C dated
August 17, 1995, and effective September 16, 1995. The Class E airspace
designation listed in this document will be published subsequently in
the Order.
The Rule
This amendment to Part 71 of the Federal Aviation Regulations (14
CFR part 71) establishes Class E airspace at Chiefland, FL, to
accommodate a VOR/DME-A SIAP and for IFR operations at White Farms
Airport. The operating status of the airport will be changed from VFR
to include IFR operations concurrent with publication of this SIAP.
The FAA has determined that this regulation only involves an
established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
It, therefore, (1) is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under DOT
Regulatory Policies and Procedures (44 FR 11034; February 26, 1979);
and (3) does not warrant preparation of a regulatory evaluation as the
anticipated impact is so minimal. Since this is a routine matter that
will only affect air traffic procedures and air navigation, it is
certified that this rule will not have a significant economic impact on
a substantial number of small entities under the criteria of the
Regulatory Flexibility Act.
List of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference, Navigation (air).
Adoption of the Amendment
In consideration of the foregoing, the Federal Aviation
Administration amends 14 CFR Part 71 as follows:
PART 71--[AMENDED]
1. The authority citation for 14 CFR Part 71 continues to read as
follows:
Authority: 49 U.S.C. 106(g); 40103, 40113, 40120; EO 10854, 24
FR 9565, 3 CFR, 1959-1963 Comp., p. 389; 14 CFR 11.69.
Sec. 71.1 [Amended]
2. The incorporation by reference in 14 CFR 71.1 of Federal
Aviation Administration Order 7400.9C, Airspace Designations and
Reporting Points, dated August 17, 1995, and effective September 16,
1995, is amended as follows:
Paragraph 6005 Class E airspace areas extending upward from 700
feet above the surface of the earth.
* * * * *
ASO FL E5 Chiefland, FL [New]
Chiefland White Farms Airport, FL
(Lat. 29 deg.30'45''N, long. 82 deg.52'30''W)
That airspace extending upward from 700 feet above the surface
within a 6.3-mile radius of White Farms Airport, excluding that
airspace within the Cross City, FL, Class E airspace area.
* * * * *
Issued in College Park, Georgia, on June 5, 1996.
Benny L. McGlamery,
Acting Manager, Air Traffic Division, Southern Region.
[FR Doc. 96-15984 Filed 6-21-96; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-15983 Establishment of Class E Airspace; Dawson, GA
[Federal Register Volume 61, Number 122 (Monday, June 24, 1996)]
[Rules and Regulations]
[Pages 32322-32323]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15983]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 71
[Airspace Docket No. 96-ASO-9]
Establishment of Class E Airspace; Dawson, GA
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment establishes Class E airspace at Dawson, GA. A
VOR/DME RWY 31 Standard Instrument Approach Procedure (SIAP) has been
developed for Dawson Municipal Airport. Controlled airspace extending
upward from 700 feet above the surface (AGL) is needed to accommodate
this SIAP and for instrument flight rules (IFR) operations at the
airport. The operating status of the airport will change from VFR to
include IFR operations concurrent with publication of this SIAP.
EFFECTIVE DATE: 0901 UTC, August 15, 1996.
FOR FURTHER INFORMATION CONTACT:
Benny L. McGlamery, Operations Branch, Air Traffic Division, Federal
Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320;
telephone (404) 305-5570.
SUPPLEMENTARY INFORMATION:
History
On April 8, 1996, the FAA proposed to amend Part 71 of the Federal
Aviation Regulations (14 CFR Part 71) by establishing Class E airspace
at Dawson, GA, (61 FR 15434). This action will provide adequate Class E
airspace for IFR operations at Dawson Municipal Airport.
Interested parties were invited to participate in this rulemaking
proceeding by submitting written comments on the proposal to the FAA.
No comments objecting to the proposal were received. Designations for
Class E airspace extending upward from 700 feet or more above the
surface are published in Paragraph 6005 of FAA Order 7400.9C dated
August 17, 1995, and effective September 16, 1995. The Class E airspace
designation listed in this document will be published subsequently in
the Order.
[[Page 32323]]
The Rule
This amendment to Part 71 of the Federal Aviation Regulations (14
CFR part 71) establishes Class E airspace at Dawson, GA, to accommodate
a VOR/DME RWY 31 SIAP and for IFR operations at Dawson Municipal
Airport. The operating status of the airport will be changed from VRF
to include IFR operations concurrent with publication of this SIAP.
The FAA has determined that this regulation only involves an
established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
It, therefore, (1) is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under DOT
Regulatory Policies and Procedures (44 FR 11034; February 26, 1979);
and (3) does not warrant preparation of a regulatory evaluation as the
anticipated impact is so minimal. Since this is a routine matter that
will only affect air traffic procedures and air navigation, it is
certified that this rule will not have a significant economic impact on
a substantial number of small entities under the criteria of the
Regulatory Flexibility Act.
List of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference, Navigation (air).
Adoption of the Amendment
In consideration of the foregoing, the Federal Aviation
Administration amends 14 CFR Part 71 as follows:
PART 71--[AMENDED]
1. The authority citation for 14 CFR Part 71 continues to read as
follows:
Authority: 49 U.S.C. 106(g); 40103, 40113, 40120; EO 10854, 24
FR 9565, 3 CFR, 1959-1963 Comp., p. 389; 14 CFR 11.69.
Sec. 71.1 [Amended]
2. The incorporation by reference in 14 CFR 71.1 of Federal
Aviation Administration Order 7400.9C, Airspace Designations and
Reporting Points, dated August 17, 1995, and effective September 16,
1995, is amended as follows:
Paragraph 6005 Class E airspace areas extending upward from 700
feet above the surface of the earth.
* * * * *
ASO GA E5 Dawson, GA [New]
Dawson Municipal Airport, GA
(Lat. 31 deg.44'46''N, long. 84 deg.25'30''W)
That airspace extending upward from 700 feet above the surface
within a 6.3-mile radius of Dawson Municipal Airport.
* * * * *
Issued in College Park, Georgia, on June 5, 1996.
Benny L. McGlamery,
Acting Manager, Air Traffic Division, Southern Region.
[FR Doc. 96-15983 Filed 6-21-96; 8:45 am]
BILLING CODE 4910-13-M
Complete official Federal Register PDF
FR Doc. 96-15957 Airworthiness Directives; Transport Category Airplanes
[Federal Register Volume 61, Number 122 (Monday, June 24, 1996)]
[Rules and Regulations]
[Pages 32318-32322]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15957]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
14 CFR Part 39
[Docket No. 95-NM-233-AD; Amendment 39-9680; AD 74-08-09 R2]
RIN 2120-AA64
Airworthiness Directives; Transport Category Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment revises an existing airworthiness directive
(AD), applicable to all transport category airplanes, that currently
requires installation of placards prohibiting smoking in the lavatory
and disposal of cigarettes in the lavatory waste receptacles;
establishment of a procedure to announce to airplane occupants that
smoking is prohibited in the lavatories; installation of ashtrays at
certain locations; and repetitive inspections to ensure that lavatory
waste receptacle doors operate correctly. That AD was prompted by fires
occurring in lavatories, which were caused by, among other things, the
improper disposal of smoking materials in lavatory waste receptacles.
The actions specified by that AD are intended to prevent such fires.
This amendment revises the existing AD to allow dispatch relief in the
event a lavatory door ashtray is missing.
EFFECTIVE DATE: July 29, 1996.
ADDRESSES: Information pertaining to this rulemaking may be examined at
the Federal Aviation Administration (FAA), Transport Airplane
Directorate, Rules Docket, 1601 Lind Avenue, SW., Renton, Washington.
FOR FURTHER INFORMATION CONTACT: Norman Martenson, Manager,
Standardization Branch, ANM-113, FAA, Transport Airplane Directorate,
1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (206)
227-2113; fax (206) 227-1149.
SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal
Aviation Regulations (14 CFR part 39) by revising AD 74-08-09 R1,
amendment 39-9214 (60 FR 21429, May 2, 1995), which is applicable to
all transport category airplanes, was published in the Federal Register
on
[[Page 32319]]
January 19, 1996 (61 FR 1306). AD 74-08-09 R1 currently requires:
1. installation of placards prohibiting smoking in the lavatory and
disposal of cigarettes in the lavatory waste receptacles;
2. establishment of a procedure to announce to airplane occupants
that smoking is prohibited in the lavatories;
3. installation of ashtrays at certain locations; and
4. repetitive inspections to ensure that lavatory waste receptacle
doors operate correctly.
That AD also provides for an alternative action regarding the
requirement to install specific placards at certain locations.
The proposal specified the FAA's intent to revise AD 74-08-09 R1 by
adding a provision that would allow for dispatch relief in the event a
lavatory door ashtray is missing from the airplane.
Interested persons have been afforded an opportunity to participate
in the making of this amendment. Due consideration has been given to
the comments received.
Support for the Proposal
Five commenters support the proposal.
Request To Revise Terminology of Dispatch Relief Provision
One commenter requests that proposed paragraph (d) be revised to
change the terminology used in the provision for dispatch relief. The
commenter requests that the provision specify the time for continued
dispatch in terms of ``flight days,'' rather than merely ``days.'' The
commenter states that the definition of ``flight day'' is recognized by
the FAA in documents such as the Master Minimum Equipment List (MMEL),
and using this terminology in the proposed rule would further clarify
the requirements.
The FAA does not concur. Use of the term ``flight day'' rather than
``(calendar) day'' for compliance terms in this AD could delay the re-
installation of the ashtray on the airplane for an unduly long period
of time. Moreover, the MMEL for most affected transport airplanes
specifies ``calendar days'' in its description of the ``Maximum Times
Between Deferral and Repair;'' therefore, this term used as a
compliance time is appropriate and should be familiar to affected
operators.
The FAA's intent is that, if the ashtray(s) is removed, the
airplane should be allowed to continue to operate for the minimum
amount of time that it would take, under normally scheduled operations,
to reach a main base where the ashtray can be replaced. The FAA has
determined that the terms of the dispatch relief provisions, as
proposed, will allow such normal operation to occur (without schedule
interruptions) and the ashtray to be replaced in a timely manner.
Request To Revise Number of Days of Dispatch Relief
Several commenters request that the dispatch relief provision of
proposed paragraph (d) be revised to account for the various types and
configurations of transport aircraft that are affected, and to ensure
that no airplane is grounded because of the absence of ``a component
that does not affect the airworthiness of the airplane.''
The commenters point out that, as proposed, the rule would allow
operation of a single-lavatory airplane for three days with its only
lavatory door ashtray missing. This group of airplanes could include
certain Boeing Model 737 airplanes, McDonnell Douglas Model DC-9
airplanes, Fokker Model 100 airplanes, and regional airplanes that seat
100 or fewer passengers. However, other similarly-configured models
(i.e., certain Model 737's and Model DC-9's) that have 100 or fewer
seats, but are equipped with two lavatories, could not be dispatched if
both of the airplane's two lavatory door ashtrays were missing.
The commenters request that the proposal be revised to allow
single- or dual-lavatory airplanes to continue to operate for three
days if one or both ashtrays are missing. The commenters assert that
operating a dual-lavatory, 100-seat airplane without ashtrays for three
days is no less safe than operating a single-lavatory 100-seat airplane
that has its only ashtray missing for three days. The commenters
maintain that the proposed rule should not discriminate between these
two configurations.
Further, the commenters note that airplanes equipped with multiple
lavatories (and, thus, multiple lavatory door ashtrays) could not be
dispatched if more than one lavatory door ashtray is missing; the
commenters contend that this feature of the proposed rule potentially
could ground wide-body airplanes such as McDonnell Douglas Model DC-
10's, Lockheed Model L-1011's, and Boeing Model 747's, and thereby
interrupt flight schedules. These commenters also request that the
proposal be revised to provide airplanes with three or more lavatories
additional dispatch relief in the event that more than one lavatory
door ashtray is missing. For these airplanes, they suggest the
following revised wording:
``1. At multiple or cluster lavatories co-located (two or more
adjacent lavatories), the airplane may be operated for a period of 10
days if the lavatory door ashtrays are missing, provided that the
remaining ashtray(s) can be seen readily from the cabin side of the
lavatory door(s) with the missing door ashtray.
2. At single lavatory locations, the airplane may be operated for a
period of 3 days if one lavatory door ashtray is missing, provided
other lavatory door ashtrays are installed [and can be seen readily
from the cabin side of the lavatory door(s) with the missing door
ashtray].''
The FAA does not concur with the commenters' requests, and does not
consider that additional dispatch relief is appropriate.
First, contrary to the commenters' description of the lavatory door
ashtray as a component that does not affect the airworthiness of the
airplane, the FAA has determined that the ashtrays serve an important
safety function and, therefore, must be considered required equipment.
This AD was issued as a result of numerous fires that occurred in the
lavatory paper and linen receptacles on transport category airplanes,
which were caused by smoking materials deposited by passengers or crew.
Such fires can be a significant threat to the safety of all persons on
the airplane because of the emission of toxic smoke and the possibility
of the fire progressing to critical components. The FAA has determined
that the requirements of this AD are necessary in order to ensure
adequate, comprehensive fire protection aboard transport category
airplanes. The requirement for an ashtray on or near the lavatory door
ensures that there is a safe, convenient, and obvious place to dispose
of smoking material (especially, in cases where the current regulations
imposing a ``no smoking policy'' aboard the airplane are not adhered to
either by passengers, crew, or maintenance personnel).
Second, in developing the time intervals for allowing continued
operation of an airplane with fewer than the required number of
lavatory door ashtrays, the FAA considered not only the safety
implications (associated with operating an airplane without a component
that affects the airworthiness of the airplane), but experiences
obtained from working both with operators and with the MMEL system. The
FAA's reasoning behind the dispatch relief specified in this rule is
based on several factors:
1. With respect to airplanes equipped with a single lavatory, which
are
[[Page 32320]]
normally smaller transports that operate on shorter routes, the FAA
considers that those airplanes can operate safely in today's
environment, without a lavatory door ashtray, for the time that it
takes to get the airplane back to a maintenance base for reinstallation
of the ashtray. For those airplanes, the FAA generally defines that
amount of time as three days.
2. With respect to airplanes equipped with two or more lavatories,
which are normally larger transports that operate on longer routes, the
FAA considered worst-case situations, for example, where an airplane
may be scheduled to do a double or triple turn-around from two
international points. In such a situation, it could take as long as 10
days to get the airplane back to its main base where a missing ashtray
could be re-installed.
3. Additionally, the 10-day period of dispatch relief for multiple-
lavatory airplanes with one ashtray missing is the same interval as the
standard definition ``Category C'' item in the MMEL for repair
intervals (relative to inoperative systems or components) for almost
all transport category airplanes; Category C is the ``category of
choice'' for approximately 85% to 90% of all items in the MMEL.
Therefore, the FAA considers that this time period could be easily
managed by air carrier maintenance programs and should not pose a
problem for operators.
Third, regarding airplanes equipped with multiple lavatories, the
FAA considers that affected operators should examine why more than one
lavatory door ashtray could be missing from these airplanes. It is
understandable that occasionally, through carelessness, damage, or
deliberate pilfering, an ashtray could be removed from an airplane;
however, this should be a highly unusual event. Having two (or more)
lavatory door ashtrays missing from a single airplane should be
extremely remote. If this is occurring regularly, operators should
examine their current policy and practices regarding ashtray
maintenance.
The FAA finds no reasonable justification for allowing dispatch
relief for periods of time longer than those as proposed, or for
allowing more than one lavatory door ashtray to be missing on an
airplane that is equipped with more than one lavatory. The FAA finds
that the dispatch relief provided by this final rule not only will
ensure safety, but will impose no undue economic burden on any
operator.
Request To Allow Ashtrays To Be Relocated
These same commenters request that the proposal be revised to give
operators of larger airplanes the flexibility to move remaining
ashtrays to different parts of the cabin if one ashtray is missing.
In response to this request, the FAA points out that paragraph (c)
of the AD, as well as part 25 of the Federal Aviation Regulations (FAR)
(25 CFR 25), already permit a configuration where one ashtray may serve
more than one lavatory door if the ashtray can be seen readily from the
cabin side of the lavatory door served. Further, nothing prohibits an
operator from moving or relocating ashtrays within the cabin to meet
this requirement. Therefore, no revision to the AD is necessary with
regard to this request.
Request To Include a Provision for Alternative Methods of
Compliance
One commenter requests that the proposal be revised to include a
provision that would allow operators to request the use of alternative
methods of compliance (AMOC) with the AD. The commenter notes that most
other AD's include such a provision, and that the FAA's own policy
guidance stipulates that AD's should include an AMOC provision. The
commenter requests that the proposal be revised to meet that policy.
The FAA does not concur that an AMOC provision is appropriate for
this particular AD. As the commenter correctly points out, the FAA's
normal policy (reference FAA Document FAA-AIR-M-8040.1, ``Airworthiness
Directives'') is that an AMOC provision ``should be provided for in
each AD,'' and the majority of AD's issued do contain such a provision.
For typical AD's, the FAA is not aware, at the time of AD issuance, of
the range of alternative methods that may exist for complying with the
AD; it is for this reason that including an AMOC provision in those
AD's is appropriate.
However, this AD is an exception: It has existed more or less in
its current form for over 20 years and, during that time, the FAA has
not been presented with a single acceptable alternative method of
compliance with it. All suggestions and requests that have been
submitted to the FAA (mainly in the form of requests for exemption from
the AD requirements) have been found to be unacceptable in that they
would provide neither an equivalent nor an acceptable level of safety
to that provided by the requirements of the AD itself.
In light of this, the FAA has determined that including an AMOC
provision in this AD at this time would not be productive.
The FAA points out that paragraph (f) of the AD does provide
operators a means for some alternative actions. It permits an
adjustment of the time interval for the required repetitive inspections
of the waste receptacle enclosure doors and disposal doors, if data are
presented to the FAA to justify such an adjustment. [However, the FAA
points out that the majority of U.S. operators of transport category
airplanes are conducting these inspections at the specified 1,000-hour
interval (some are conducting the inspections more frequently), and
many have found discrepancies during the 1,000-hour inspections. In
light of this, the FAA continues to conclude that the currently
required inspection interval is appropriate, since it ensures that any
discrepancy will be identified and corrected in a timely manner.]
Conclusion
After careful review of the available data, including the comments
noted above, the FAA has determined that air safety and the public
interest require the adoption of the rule as proposed.
Cost Impact
Since this action only provides for an alternative method of
complying with an existing rule, it does not add any new additional
economic burden on affected operators. In fact, the dispatch relief
provided by this AD will allow operators to continue to operate
airplanes without the required number of ashtrays for a longer period
of time than was previously permitted. This will result in a reduction
in costs to affected operators, since it will eliminate potential
interruptions in service or special scheduling at maintenance bases
that otherwise would be necessary in order to reinstall missing
ashtrays.
The current costs associated with this AD are reiterated below for
the convenience of affected operators.
The costs associated with the currently required placard
installations entail approximately 1 work hour per airplane, at an
average labor rate of $60 per work hour. The cost of required parts is
negligible. Based on these figures, the total cost impact of the
installation requirements of this AD on U.S. operators is estimated to
be $60 per airplane.
The costs associated with the currently required inspections entail
approximately 1.5 work hours per airplane per inspection, at an average
labor rate of $60 per work hour. Based on these figures, the total cost
impact of
[[Page 32321]]
the inspection requirements of this AD on U.S. operators is estimated
to be $90 per airplane per inspection.
Regulatory Impact
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A final evaluation has been prepared for this action
and it is contained in the Rules Docket. A copy of it may be obtained
from the Rules Docket at the location provided under the caption
ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by removing amendment 39-9214 (60 FR
21429, May 2, 1995), and by adding a new airworthiness directive (AD),
amendment 39-9680, to read as follows:
74-08-09 R2 Transport Category Aircraft: Amendment 39-9680. Docket
95-NM-233-AD. Revises AD 74-08-09 R1, Amendment 39-9214.
Applicability: All transport category airplanes, certificated in
any category, that have one or more lavatories equipped with paper
or linen waste receptacles.
Note 1: The following is a partial list of aircraft, some or all
models of which are type certificated in the transport category and
have lavatories equipped with paper or linen waste receptacles:
Aerospatiale Models ATR42 and ATR72 series airplanes;
Airbus Models A300, A310, A300-600, A320, A330, and A340 series
airplanes;
Boeing Models 707, 720, 727, 737, 747, 757, and 767 series
airplanes;
Boeing Model B-377 airplanes;
British Aircraft Models BAC 1-11 series, BAe-146 series, and ATP
airplanes;
CASA Model C-212 series airplanes;
Convair Models CV-580, 600, 640, 880, and 990 series airplanes;
Convair Models 240, 340, and 440 series airplanes;
Curtiss-Wright Model CW 46;
de Havilland Models DHC-7 and DHC-8 series airplanes;
Fairchild Models F-27 and C-82 series airplanes;
Fairchild-Hiller Model FH-227 series airplanes;
Fokker Models F27 and F28 series airplanes;
Grumman Model G-159 series airplanes;
Gulfstream Model 1159 series airplanes;
Hawker Siddeley Model HS-748;
Jetstream Model 4101 airplanes;
Lockheed Models L-1011, L-188, L-1049, and 382 series airplanes;
Martin Model M-404 airplanes;
McDonnell Douglas Models DC-3, -4, -6, -7, -8, -9, and -10 series
airplanes;
Model MD-88 airplanes; and Model MD-11 series airplanes;
Nihon Model YS-11;
Saab Models SF340A and SAAB 340B series airplanes;
Short Brothers and Harlin Model SC-7 series airplanes;
Short Brothers Models SD3-30 and SD3-60 series airplanes.
Compliance: Required as indicated, unless accomplished
previously.
To prevent possible fires that could result from smoking
materials being dropped into lavatory paper or linen waste
receptacles, accomplish the following:
(a) Within 60 days after August 6, 1974 (the effective date of
AD 74-08-09, amendment 39-1917), or before the accumulation of any
time in service on a new production aircraft after delivery,
whichever occurs later, except that new production aircraft may be
flown in accordance with sections 21.197 and 21.199 of the Federal
Aviation Regulations (14 CFR 21.197 and 21.199) to a base where
compliance may be accomplished, accomplish the requirements of
paragraphs (a)(1) and (a)(2) of this AD.
(1) Install a placard either on each side of each lavatory door
over the door knob, or on each side of each lavatory door, or
adjacent to each side of each lavatory door. The placards must
either contain the legible words, ``No Smoking in Lavatory'' or ``No
Smoking;'' or contain ``No Smoking'' symbology in lieu of words; or
contain both wording and symbology; to indicate that smoking is
prohibited in the lavatory. The placards must be of sufficient size
and contrast and be located so as to be conspicuous to lavatory
users. And
(2) Install a placard on or near each lavatory paper or linen
waste disposal receptacle door, containing the legible words or
symbology indicating ``No Cigarette Disposal.''
(b) Within 30 days after August 6, 1974, establish a procedure
that requires that no later than a time immediately after the ``No
Smoking'' sign is extinguished following takeoff, an announcement be
made by a crewmember to inform all aircraft occupants that smoking
is prohibited in the aircraft lavatories; except that, if the
aircraft is not equipped with a ``No Smoking'' sign, the required
procedure must be provide that the announcement be made prior to
each takeoff.
(c) Except as provided by paragraph (d) of this AD: Within 180
days after August 6, 1974, or before the accumulation of any time in
service on a new production aircraft, whichever occurs later, except
that new production aircraft may be flown in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to a base where compliance may be
accomplished, install a self-contained, removable ashtray on or near
the entry side of each lavatory door. One ashtray may serve more
than one lavatory door if the ashtray can be seen readily from the
cabin side of each lavatory door served.
(d) The airplane may be operated for a period of 10 days with a
lavatory door ashtray missing, provided that no more than one such
ashtray is missing. For airplanes on which only one lavatory door
ashtray is installed, the airplane may be operated for a period of 3
days if the lavatory door ashtray is missing.
Note 2: This AD permits a lavatory door ashtray to be missing,
although the FAA-approved Master Minimum Equipment List (MMEL) may
not allow such provision. In any case, the provisions of this AD
prevail.
(e) Within 30 days after August 6, 1974, and thereafter at
intervals not to exceed 1,000 hours time-in-service from the last
inspections, accomplish the following:
(1) Inspect all lavatory paper and linen waste receptacle
enclosure access doors and disposal doors for proper operation, fit,
sealing, and latching for the containment of possible trash fires.
(2) Correct all defects found during the inspections required by
paragraph (e)(1) of this AD.
(f) Upon the request of an operator, the FAA Principal
Maintenance Inspector may adjust the 1,000-hour repetitive
inspection interval specified in paragraph (e) of this AD to permit
compliance at an established inspection period of the operator if
the request contains data to justify the requested change in the
inspection interval.
(g) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
(h) This amendment becomes effective on July 29, 1996.
[[Page 32322]]
Issued in Renton, Washington, on June 17, 1996.
James V. Devany,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-15957 Filed 6-21-96; 8:45 am]
BILLING CODE 4910-13-U
Complete official Federal Register PDF
FR Doc. 96-15935 Special Local Regulation: Fireworks Displays Within the First Coast Guard District
[Federal Register Volume 61, Number 122 (Monday, June 24, 1996)]
[Rules and Regulations]
[Pages 32328-32331]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15935]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Coast Guard
33 CFR Part 100
[CGD01-96-011]
RIN 2115-AE46
Special Local Regulation: Fireworks Displays Within the First
Coast Guard District
AGENCY: Coast Guard, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
[[Page 32329]]
SUMMARY: The Coast Guard is establishing special local regulations for
annual fireworks displays that occur throughout the First Coast Guard
District. This regulation is necessary to control vessel traffic within
the immediate vicinity of the fireworks launch sites and to ensure the
safety of life and property during each event.
EFFECTIVE DATE: This section is effective on June 24, 1996.
FOR FURTHER INFORMATION CONTACT:
Lieutenant Commander James B. Donovan, Office of Search and Rescue,
First Coast Guard District, (617) 223-8278.
SUPPLEMENTARY INFORMATION:
Regulatory History
A notice of proposed rulemaking (NPRM) was published on May 23,
1996, (61 FR 25835) in the Federal Register proposing to establish a
permanent special local regulation for the annually recurring fireworks
displays throughout the First Coast Guard District. No comments were
received and no hearing was requested.
Background and Purpose
Each year, organizations in the First District sponsor fireworks
displays in the same general location during the same general time
period. The Coast Guard is establishing a special local regulation that
creates a regulated area surrounding the launch platform used during
each fireworks display listed in Table 1 of the new regulation. Table 1
provides dates and locations for the annual fireworks events. Each
event listed in Table 1 will use a barge or on-shore site as the
fireworks launch platform. Given the concentration of explosives at the
launch site, it is necessary to establish special local regulations to
control vessel movement within a 500 yard radius exclusion zone around
the launch platform to ensure the safety of persons and property at
these events. In the event the fireworks are launched from shore, the
regulated area will only include navigable waters that fall within a
500 yard radius of the launch site. Coast Guard personnel on-scene may
allow persons within the 500 yard radius should conditions permit. The
Coast Guard will publish a notice in the Federal Register each year
which provides the exact dates and times for these events.
Good cause exists for providing for this rule to become effective
in less than 30 days. Due to the need to publish notice in the Federal
Register which will provide exact dates and times of each event and the
necessity to have the regulation in effect for these events over the
Fourth of July weekend, this final rule is being made effective in less
than 30 days after publication. Any delay encountered in making this
rule effective would be contrary to the public interest as the rule is
needed to ensure the safety of the boating public during these events.
Discussion of Changes
Minor changes have been made to the NPRM and are contained in this
final rule. The following changes have been made to clarify portions of
the rule and make it easier to read: events listed in the table have
been placed in alphabetical order; in the final regulation, paragraph
(b)1 was deleted; the Effective dates section has been modified to
better describe the duration of the regulation; and the regulated area
has been further described by the term ``navigable waters.''
Regulatory Evaluation
This rule is not a significant regulatory action under section 3(f)
of Executive Order 12866, and does not require an assessment of
potential costs and benefits under section 6(a)(3) of that order. It
has been exempted from review by the Office of Management and Budget
under that order. It is not significant under the regulatory policies
and procedures of the Department of Transportation (DOT) (44 FR 11040;
February 26, 1979). Due to the short duration of each fireworks
display, the advance notice provided to the marine community, and the
small size of each regulated area, the Coast Guard expects the economic
impact of this rule to be so minimal that a full Regulatory Evaluation,
under paragraph 10e of the regulatory policies and procedures of DOT,
is unnecessary.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the
Coast Guard must consider the economic impact, on small entities, of a
rule for which a general notice of proposed rulemaking is required.
``Small entities'' may include (1) small businesses and not-for-profit
organizations that are independently owned and operated and are not
dominant in their fields and (2) governmental jurisdictions with
populations of less than 50,000.
For the reasons mentioned in the Regulatory Evaluation, the Coast
Guard certifies under 5 U.S.C. 605(b) that this proposal will not have
a significant economic impact on a substantial number of small
entities. If, however, you think that your business or organization
qualifies as a small entity and that this rule will have a significant
economic impact on your business or organization, please submit a
comment explaining why you think it qualifies and in what way and to
what degree this rule will economically affect it.
Collection of Information
This rule contains no collection of information requirements under
the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
Federalism
The Coast Guard has analyzed this rule under the principles and
criteria contained in Executive Order 12612 and has determined that
this rule does not have sufficient federalism implications to warrant
the preparation of a Federalism Assessment.
Environment
The Coast Guard has considered the environmental impacts of this
rule and concluded that, under paragraph 2.B.2.e.34(h) of COMDTINST
16475.1B, (as revised by 61 FR 13564, March 27, 1996) this rule is a
special local regulation issued in conjunction with annual regattas or
marine parades and is categorically excluded from further environmental
documentation.
List of Subjects in 33 CFR Part 100
Marine safety, Navigation (water), Records and recordkeeping
requirements, Waterways.
Final Regulation
For reasons set out in the preamble, the Coast Guard amends 33 CFR
Part 100 as follows:
PART 100--[AMENDED]
1. The authority citation for part 100 continues to read as
follows:
Authority: 33 USC 1233; 49 CFR 1.46 and 33 CFR 100.35.
2. Section 100.114 is added to read as follows:
Sec. 100.114 First Coast Guard District Fireworks.
(a) Regulated area. That area of navigable waters within a 500 yard
radius of the launch platform for each fireworks display listed in
Table 1.
Table 1--Fireworks Displays
1. American Legion Post 83 Fireworks
Sponsor: Town of Branford American Legion Post 83
Date: Date within the first week of July
Location: Branford Point, Branford, CT
2. Anniversary Fireworks
Sponsor: Town of Chilmark
Date: Weekend in September
Location: Menemsha Beach, Chilmark, MA
[[Page 32330]]
3. Bangor Fireworks
Sponsor: Bangor 4th of July Corporation
Date: Independence Day holiday weekend
Location: Bangor/Brewer waterfront, ME
4. Bar Harbor Fireworks
Sponsor: Bar Harbor Chamber of Commerce
Date: Independence Day holiday weekend
Location: Bar Harbor/Bar Island, ME
5. Bayville Crescent Club Fireworks
Sponsor: Bayville Crescent Club, Bayville, NY
Date: Independence Day holiday weekend
Location: Cooper Bluff, Cone Neck, NY
6. Belfast Fireworks
Sponsor: Belfast Bay Festival Committee
Date: Third Saturday in July
Location: Belfast Bay, ME
7. Boston Harborfest Fireworks
Sponsor: Harborfest Committee
Date: Harborfest Week Celebration in June or first week in July
Location: Boston Inner Harbor, Boston, MA
8. Boys Harbor Fireworks Extravaganza
Sponsor: Boys Harbor Inc.
Date: Second or third weekend in July
Location: Three Mile Harbor, East Hampton, NY
9. Brick Founders Day Fireworks
Sponsor: Brick Township Chamber of Commerce
Date: First weekend in June
Location: Metedeconk River, Windward Beach, Brick Township, NJ
10. Brick Summerfest Fireworks
Sponsor: Brick Township Chamber of Commerce
Date: Independence Day holiday weekend
Location: Metedeconk River, Windward Beach, Brick Township, NJ
11. Bristol 4th of July Fireworks
Sponsor: Bristol Fourth of July Committee
Date: Independence Day holiday weekend
Location: Bristol Harbor, Bristol, RI
12. Change Fireworks
Sponsor: Change, Medford, NY
Date: Date within first two weekends of August
Location: Short Beach, Nissequogue, NY
13. City of New Bedford Fireworks
Sponsor: City of Bedford
Date: Independence Day holiday weekend
Location: New Bedford Harbor, New Bedford, MA
14. City of Norwalk Fireworks
Sponsor: Norwalk Recreation and Parks Department
Date: Independence Day holiday weekend
Location: Calf Pasture Beach, Long Island Sound, Norwalk, CT
15. Cow Harbor Day Fireworks
Sponsor: Village of Northport Harbor
Date: Date within last two weekends of September
Location: Sand Pit, Northport Harbor, Northport, NY
16. Devon Yacht Club Fireworks
Sponsor: Devon Yacht Club, Amagansett, NY
Date: Date within the first week of July
Location: Devon Yacht Club, Amagansett, NY
17. Edgartown Fireworks
Sponsor: Edgartown Firefighters Association
Date: Independence Day holiday weekend
Location: Edgartown Harbor, Edgartown, MA
18. Fairfield Aerial Fireworks
Sponsor: Fairfield Park Commission
Date: Independence Day holiday weekend
Location: Jennings Beach, Long Island Sound, Fairfield, CT
19. Fall River Celebrates America Fireworks
Sponsor: Fall River Chamber of Commerce
Date: Second Saturday in August
Location: Taunton River, vicinity of buoy #17, Fall River, MA
20. Falmouth Fireworks
Sponsor: Falmouth Fireworks Committee
Date: July 4
Location: Falmouth Harbor, .25 nm east of buoy #16, Falmouth, MA
21. Fireworks on the Navesink
Sponsor: Red Bank Fireworks Committee
Date: Independence Day holiday weekend
Location: Navesink River, 4 nm WSW Oceanic Bridge, Red Bank, NJ
22. First Night Fireworks
Sponsor: First Night Inc.
Date: January 1, upon the stroke of midnight
Location: Boston Inner Harbor, Boston, MA
23. First Night Mystic
Sponsor: Mystic Community Center
Date: December 31
Location: Mystic River, Mystic, CT
24. Gloucester Fireworks
Sponsor: Gloucester Chamber of Commerce
Date: Labor Day holiday weekend
Location: Gloucester Harbor, Gloucester, MA
25. Hartford Riverfest
Sponsor: July 4th Riverfest, Inc.
Date: Independence Day holiday weekend
Location: Connecticut River, Hartford, CT
26. Hartford Riverfront Regatta
Sponsor: Riverfront Recapture Inc.
Date: First or second weekend in August
Location: Connecticut River, Hartford, CT
27. Hempstead Fireworks
Sponsor: Town of Hemstead, NY
Date: Date within the first week of July
Location: Point Lookout, Hempstead, NY
28. Jones Beach State Park Fireworks
Sponsor: Long Island State Park Administration Headquarters
Date: Independence Day holiday weekend
Location: Fishing Pier, Jones Beach State Park, Wantagh, NY
29. Koch Industries Fireworks
Sponsor: Koch Industries
Date: Last weekend in August or first weekend in September
Location: Shinnecock Bay, South Hampton, NY
30. Marion Fireworks
Sponsor: Town of Marion Fireworks Committee
Date: Independence Day holiday weekend
Location: Silver Shell Beach, Marion, MA
31. Middletown Fireworks
Sponsor: City of Middletown
Date: Independence Day holiday weekend
Location: Connecticut River, Middletown, CT
32. Montauk Independence Day
Sponsor: Montauk Chamber of Commerce
Date: Independence Day holiday weekend
Location: Montauk Town Beach, Montauk NY
33. Norwich American Wharf Fireworks
Sponsor: American Wharf Marina
Date: Independence Day holiday weekend
Location: Norwich Harbor, Norwich, CT
34. Norwich Harbor Day Fireworks
Sponsor: Harbor Day Committee
Date: Last Sunday in August
Location: Norwich Harbor, off American Wharf Marina, Norwich, CT
35. Oaks Bluff Firworks
Sponsor: Oaks Bluff Fireman's Civic Association
Date: Last two weeks in August
Location: Oaks Bluff Beach, Oaks Bluff, MA
36. Old Lyme Fireworks
Sponsor: Mr. James R. Rice
Date: Independence Day holiday weekend
Location: Sound View Beach, Long Island Sound, Old Lyme, CT
[[Page 32331]]
37. Onset Fireworks
Sponsor: Prudential Commercial Onset Fire District
Date: Independence Day holiday weekend
Location: Onset Harbor, Onset, MA
38. Oyster Harbor Club Fourth of July Festival
Sponsor: Oyster Harbor Club, Inc.
Date: Independence Day holiday weekend
Location: Tim's Cove, North Day, Osterville, RI
39. Salute to Summer
Sponsor: Naval Education and Training Center
Date: Friday of weekend preceding Labor Day holiday weekend
Location: Narragansett Bay, East Passage, off Coasters Harbor Island,
Newport, RI
40. Shooters Independence Day
Sponsor: Shooters Waterfront Cafe USA
Date: July 4
Location: Providence River off India Point Park, Providence, RI
41. Staten Island's 4th of July
Sponsor: Borough of Staten Island
Date: Independence Day holiday weekend
Location: Raritan Bay, vicinity of federal anchorages 44 and 45, Ward
Point Bend, NY/NJ
42. Stamford Fireworks
Sponsor: City of Stamford
Date: Date within first two weeks of July
Location: Westcott Cove, Stamford, CT
43. Stratford Fireworks
Sponsor: Town of Stratford
Date: Independence Day holiday weekend
Location: Short Beach, Stratford, CT
44. Subfest Fireworks
Sponsor: U.S. Naval Submarine Base
Date: Independence Day holiday weekend
Location: Thames River, Groton, CT
45. Summer Music Fireworks
Sponsor: Summer Music Inc.
Date: Weekend during month of August
Location: Niantic River, Harkness Park, Waterford, CT
46. Taste of Italy
Sponsor: Italian Heritage Committee
Date: Weekend following Labor Day holiday weekend
Location: Norwich Harbor, off Norwich Marina, Norwich, CT
47. Thames River Fireworks
Sponsor: Town of Groton
Date: Weekend following Independence Day holiday weekend
Location: Thames River, off Electric Boat, Groton, CT
48. Tiverton Waterfront Festival
Sponsor: Tiverton Waterfront Festival Committee
Date: Independence Day holiday weekend
Location: Grinnel's Beach, Sakonnet River, Tiverton, RI
49. Town of Babylon Fireworks
Sponsor: Town of Babylon, NY
Date: Date within the first two weeks of July
Location: Nezeras Island, Babylon, NY
50. Town of Barnstable Fireworks
Sponsor: Town of Barnstable
Date: Independence Day holiday weekend
Location: Dunbar Point/Kalmus Beach, Barnstable, MA
51. U.S. Open Fireworks
Sponsor: Barons Cove Inn, Sag Harbor, NY
Date: Date within the middle two weeks of June
Location: Barons Cove, Sag Harbor, NY
52. Walsh's Fireworks
Sponsor: Mr. Patrick Walsh
Date: Independence Day holiday weekend
Location: Union River Bay, ME
53. Wellfleet Fireworks
Sponsor: Wellfleet Fireworks Committee
Date: Independence Day holiday weekend
Location: Indian Neck Jetty, Wellfleet, MA
54. Westport P.A.L. Fireworks
Sponsor: Westport Police Athletic League
Date: Independence Day holiday weekend
Location: Compo Beach, Westport, CT
55. Weymouth 4th of July Fireworks
Sponsor: Town of Weymouth Harbormaster
Date: Independence Day holiday weekend
Location: Weymouth Fore River, Weymouth, MA
56. Yampol Family Fireworks
Sponsor: Azurite Corp. LTD., Fort Lauderdale, FL
Date: Date within the last weekend of May
Location: Barons Cove, Sag Harbor, NY
57. Yarmouth-Dennis Fireworks
Sponsor: Yarmouth-Dennis Chamber of Commerce
Date: Independence Day holiday weekend
Location: Nantucket Sound, east of channel entrance to Bass River,
Yarmouth, MA
(b) Special local regulations.
(1) No person or vessel may enter, transit, or remain within the
regulated area during the effective period of regulation unless
authorized by the Coast Guard patrol commander.
(2) Vessels encountering emergencies which require transit through
the regulated area should contact the Coast Guard patrol commander on
VHF Channel 16. In the event of an emergency, the Coast Guard patrol
commander may authorize a vessel to transit through the regulated area
with a Coast Guard designated escort.
(3) All persons and vessels shall comply with the instructions of
the Coast Guard on-scene patrol commander. On-scene patrol personnel
may include commissioned, warrant, and petty officers of the U.S. Coast
Guard. Upon hearing five or more short blasts from a U.S. Coast Guard
vessel, the operator of a vessel shall proceed as directed. Members of
the Coast Guard Auxiliary may also be present to inform vessel
operators of this regulation and other applicable laws.
(c) Effective dates. This section is in effect from one hour before
the scheduled start of the event until thirty minutes after the last
firework is exploded for each event listed in Table One on the Dates
and times specified in a Federal Register document.
Dated: June 7, 1996.
J.L. Linnon,
Rear Admiral, U.S. Coast Guard Commander, First Coast Guard District.
[FR Doc. 96-15935 Filed 6-21-96; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 96-15934 Special Local Regulation: NewportBermuda Regatta, Narragansett Bay, Newport, RI
[Federal Register Volume 61, Number 122 (Monday, June 24, 1996)]
[Rules and Regulations]
[Pages 32331-32333]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15934]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
33 CFR Part 100
[CGD01-96-025]
RIN 2115-AE46
Special Local Regulation: Newport--Bermuda Regatta, Narragansett
Bay, Newport, RI
AGENCY: Coast Guard, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Coast Guard is establishing a permanent special local
regulation for the Newport--Bermuda Regatta. The event will be held on
June 21, 1996, and biennially thereafter on a date and times published
in a Federal Register document. The regatta begins in the approach to
Newport Harbor, Newport, RI, in the East Passage of Narragansett Bay,
continuing offshore to Bermuda, U.K. This regulation is needed to
control vessel movement in the confined waters of the regatta start
area.
EFFECTIVE DATE: This section is effective on June 24, 1996.
FOR FURTHER INFORMATION CONTACT:
Lieutenant Commander James B. Donovan, Assistant Search and Rescue
Section, First Coast Guard District, (617) 223-8278.
[[Page 32332]]
SUPPLEMENTARY INFORMATION:
Regulatory History
A notice of proposed rulemaking (NPRM) was published on May 13,
1996, (61 FR 21999) in the Federal Register proposing to establish a
permanent special local regulation for the Newport-Bermuda Regatta. No
comments were received and no hearing was requested.
Background and Purpose
The 1996 Newport-Bermuda Regatta is the fortieth running of the
event. In the past, the Coast Guard has promulgated individual
regulations for each year's race. Given the recurring nature of the
event, the Coast Guard is establishing a permanent regulation. The rule
establishes a regulated area on Narragansett Bay, in the East Passage,
and provides specific guidance to control vessel movement during the
race.
This event includes up to 120 ocean going sailboats racing from the
approach to the entrance of Newport Harbor, Newport, RI, to Bermuda,
U.K. The event typically attracts approximately 150-200 spectator
craft. The Coast Guard will assign a patrol to the event, and the race
course starting area will be marked. However, due to the large number
of participants and anticipated spectator craft, it is necessary to
establish a special local regulation to control spectator and
commercial vessel movement within the confined starting area. Spectator
craft are authorized to watch the race from any area as long as they
remain outside the designated regulated area. In emergency situations,
provisions may be made to establish safe escort by a Coast Guard or
Coast Guard designated vessel for vessels requiring transit through the
regulated area.
Good cause exists to make this rule effective in less than 30 days.
Due to the need to provide for a comment period in the respective NPRM
and the need to establish regulations for this years event, there is
insufficient time to publish this rule 30 days before the event is
scheduled to begin. The Coast Guard believes delaying the event in
order to provide a delayed effective date would be contrary to the
public interest given this event's local popularity and that no
comments were received objecting to the proposed regulation.
Regulatory Evaluation
This rule is not a significant regulatory action under section 3(f)
of Executive Order 12866, and does not require an assessment of
potential costs and benefits under section 6(a)(3) of that order. It
has been exempted from review by the Office of Management and Budget
under that order. It is not significant under the regulatory policies
and procedures of the Department of Transportation (DOT) (44 FR 11040;
February 26, 1979). The Coast Guard expects the economic impact of this
rule to be so minimal that a full Regulatory Evaluation, under
paragraph 10e of the regulatory policies and procedures of DOT, is
unnecessary. This conclusion is based on the limited duration of the
race, the extensive advisories that will be made to the affected
maritime community, and the minimal restrictions which the regulation
places on vessel traffic.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the
Coast Guard must consider the economic impact on small entities of a
rule for which a general notice of proposed rulemaking is required.
``Small entities'' may include (1) small businesses and not-for-profit
organizations that are independently owned and operated and are not
dominant in their fields and (2) governmental jurisdictions with
populations of less than 50,000.
For the reasons discussed in the Regulatory Evaluation, the Coast
Guard certifies under 5 U.S.C. 605(b) that this proposal will not have
a significant economic impact on a substantial number of small
entities. If, however, you think that your business or organization
qualifies as a small entity and that this rule will have a significant
economic impact on your business or organization, please submit a
comment explaining why you think it qualifies and in what way and to
what degree this rule will economically affect it.
Collection of Information
This rule contains no collection of information requirements under
the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
Federalism
The Coast Guard has analyzed this rule under the principles and
criteria contained in Executive Order 12612 and has determined that
this rule does not have sufficient federalism implications to warrant
the preparation of a Federalism Assessment.
Environment
The Coast Guard has considered the environmental impacts of this
rule and concluded that, under paragraph 2.B.2.e.34(h) of COMDTINST
16475.1B, (as revised by 61 FR 13563, March 27, 1996) this rule is a
special local regulation issued in conjunction with a regatta or marine
parade and is categorically excluded from further environmental
documentation.
List of Subjects in 33 CFR Part 100
Marine safety, Navigation (water), Reporting and recordkeeping
requirements, Waterways.
Final Regulation
For the reasons set out in the preamble, the Coast Guard amends 33
CFR Part 100 as follows:
PART 100--[AMENDED]
1. The authority citation for part 100 continues to read as
follows:
Authority: 33 U.S.C. 1233; 49 CFR 1.46 and 33 CFR 100.35.
2. Section 100.119, is added to read as follows:
Sec. 100.119 Newport-Bermuda Regatta, Narragansett Bay, Newport, RI
(a) Regulated area. The regulated area includes all waters of
Narragansett Bay, Newport, RI, within the following points (NAD 83):
Latitude Longitude
41 deg.27'51'' N 071 deg.22'14'' W
41 deg.27'24'' N 071 deg.21'57'' W
41 deg.27'09'' N 071 deg.22'39'' W
41 deg.27'36'' N 072 deg.22'55'' W
In the event that weather conditions prohibit a safe race start within
the approach to Newport Harbor, the race will begin offshore and the
following regulated area applies (NAD 83):
Latitude Longitude
41 deg.26'04'' N 071 deg.22'16'' W
41 deg.25'36'' N 071 deg.21'58'' W
41 deg.25'45'' N 071 deg.22'40'' W
41 deg.25'49'' N 071 deg.22'56'' W
(b) Special local regulations.
(1) The Coast Guard patrol commander may delay, modify, or cancel
the race as conditions or circumstances require.
(2) No person or vessel may enter, transit, or remain in the
regulated area unless participating in the event or unless authorized
by the Coast Guard patrol commander.
(3) Vessels encountering emergencies which require transit through
the regulated area should contact the Coast Guard patrol commander on
VHF Channel 16. In the event of an emergency, the Coast Guard patrol
commander may authorize a vessel to transit through the regulated area
with a Coast Guard designated escort.
(4) All persons and vessels shall comply with the instructions of
the
[[Page 32333]]
Coast Guard on-scene patrol commander. On-scene patrol personnel may
include commissioned, warrant, and petty officers of the U.S. Coast
Guard. Upon hearing five or more short blasts from a U.S. Coast Guard
vessel, the operator of a vessel shall proceed as directed. Members of
the Coast Guard Auxiliary may also be present to inform vessel
operators of this regulation and other applicable laws.
(c) Effective date. This section is in effect on June 21, 1996,
from 10:00 a.m. to 3:30 p.m., and biennially thereafter on a date and
times published in a Federal Register document.
Dated: June 14, 1996.
James D. Garrison,
Captain, U.S. Coast Guard Commander, First Coast Guard District.
[FR Doc. 96-15934 Filed 6-21-96; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 96-15933 Special Local Regulations; Suncoast Kilo Run; Suncoast Offshore Challenge; Suncoast Offshore Grand Prix; Sarasota, FL
[Federal Register Volume 61, Number 122 (Monday, June 24, 1996)]
[Rules and Regulations]
[Pages 32333-32335]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15933]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
33 CFR Part 100
[CGD07-96-008]
RIN 2115-AE46
Special Local Regulations; Suncoast Kilo Run; Suncoast Offshore
Challenge; Suncoast Offshore Grand Prix; Sarasota, FL
AGENCY: Coast Guard, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Coast Guard is establishing special local regulations for
Suncoast Kilo Run, Suncoast Offshore Challenge and Suncoast Offshore
Grand Prix, all events sponsored by the S.O.R.A. (Suncoast Offshore
Racing Association). The Suncoast Kilo Run event will be held annually
at 8 a.m. to 1 p.m. EDT (Eastern Daylight Time), on the first Friday of
July. The Suncoast Offshore Challenge event will be held annually at 10
a.m. to 4 p.m. EDT, on the first Saturday of July. The Suncoast
Offshore Grand Prix event will be held annually at 10 a.m. to 4 p.m.
EDT, on the first Sunday of July. These regulations are intended to
promote safe navigation on the waters in the Gulf of Mexico in the
vicinity of Sarasota and on the waters in North Sarasota Bay, Florida,
by controlling the traffic entering, exiting, and traveling within
these waters. These regulations are necessary to provide for the safety
of life on navigable waters during the event.
EFFECTIVE DATE: July 5, 1996.
ADDRESSES: Documents listed in this regulation are available for
inspection or copying at U.S. Coast Guard Group St. Petersburg,
operations office, 600 8th Ave. S.E., St. Petersburg, Florida 33701-
5099 between 8 a.m. and 4 p.m. EDT, Monday through Friday, except
federal holidays.
FOR FURTHER INFORMATION CONTACT:
LTJG J.W. Nelson, project officer, U.S. Coast Guard Group St.
Petersburg, FL at (813) 824-7533.
SUPPLEMENTARY INFORMATION: In accordance with 5 U.S.C. 553, good cause
exists to make this final rule effective in less than 30 days from the
date of publication in the Federal Register. Following normal
rulemaking procedures would have been impracticable, unnecessary, and
contrary to the public interest. A notice of proposed rulemaking for
this rule was published in the Federal Register (61 FR 19220) with a
thirty day comment period ending on May 31, 1996. During the comment
period, no comments were received regarding this rulemaking, and this
final rule does not change the provisions of the notice of proposed
rulemaking.
Regulatory History
On May 1, 1996, the Coast Guard published a notice of proposed
rulemaking entitled ``Special Local Regulations; Suncoast Kilo Run;
Suncoast Offshore Challenge; and Suncoast Offshore Grand Prix;
Sarasota, FL'' (CGD07-96-008) in the Federal Register (61 FR 19220).
The comment period ended on May 31, 1996. The Coast Guard received no
comments during the proposed rulemaking period. A public hearing was
not requested and one was not held.
Discussion of Regulations
These regulations are needed to provide for the safety of life
during the Suncoast Kilo Run, Suncoast Offshore Challenge and Suncoast
Offshore Grand Prix, all sponsored by the S.O.R.A. (Suncoast Offshore
Racing Association). The regulations are intended to promote safe
navigation on the waters in North Sarasota Bay and on the Gulf of
Mexico in the vicinity of Sarasota, Florida, by controlling the traffic
entering, exiting, and traveling within these waters. Historically
during these races, there have been between 150 and 300 participant and
spectator craft. There will be approximately between 50 and 100 power
boats, 21 to 50 feet in length, participating in these races at high
speeds. The anticipated concentration of spectator and participant
vessels associated with the Suncoast Kilo Run, Suncoast Offshore
Challenge and Suncoast Offshore Grand Prix poses a safety concern,
which is addressed in these special local regulations. The Suncoast
Kilo Run event will be held annually at 8 a.m. to 1 p.m. EDT, on the
first Friday of July. The Suncoast Offshore Challenge event will be
held annually at 11 a.m. to 4 p.m. EDT, on the first Saturday of July.
The Suncoast Offshore Grand Prix event will be held annually at 11 a.m.
to 4 p.m. EDT, on the first Sunday of July.
The special local regulations for the Suncoast Kilo Run will
establish a ``no wake'' zone in an area between markers #13
(27 deg.20.82 N, 82 deg.33.78 W, LLNR 48035) and #17 (27 deg.24.5 N,
82 deg.36.8 W, LLNR 48190) in North Sarasota Bay. All coordinates
referenced are datum: NAD 83. Spectator craft will be permitted in the
area but will be required to stay clear of the designated race lanes.
This race will be held annually on the first Friday of July, between 8
a.m. and 1 p.m. EDT.
The special local regulations for the Suncoast Offshore Challenge
will not permit anchoring seaward of the shoreside legs of the
racecourse out to three nautical miles from shore, from 10 a.m. to 4
p.m. EDT. Spectator craft will be permitted near the race area but will
be required to stay clear of the race lanes. Anchoring for spectators
will be permitted shoreward of the shoreside legs of the racecourse.
All vessel traffic exiting New Pass between 11 a.m. to 4 p.m. EDT will
exit the marked channel at New Pass Channel daybeacon #3 (27 deg.26.46'
N, 82 deg.41.7' W, LLNR 18100), and #4 (27 deg.26.4' N, 82 deg.41.68'
W, LLNR 18105), and will proceed in a northerly direction shoreward of
the spectator craft until well clear of the race course. All
coordinates referenced use datum: NAD 1983. Big Sarasota Pass will be
closed to all inbound and outbound vessel traffic, other than spectator
craft, from 10 a.m. and 4 p.m. EDT, annually during the first Saturday
of July.
The special regulations for the Suncoast Offshore Grand Prix will
not permit anchoring seaward of the shoreside legs of the racecourse
out to three nautical miles from shore, from 10 a.m. to 4 p.m. EDT,
annually on the first Sunday of July. Spectator craft will be permitted
near the race area but will be required to stay clear of the race
lanes. Anchoring for spectators will be permitted shoreward of the
shoreside legs of the racecourse. All vessel traffic not involved with
the Suncoast Offshore Grand Prix exiting New Pass between 10 a.m. and 4
p.m. EDT will exit the marked channel at New Pass Channel daybeacon #3
(27 deg.26.46' N, 82 deg.41.7' W, LLNR 18100) and #4 (27 deg.26.4' N,
82 deg.41.68' W, LLNR 18105), and will proceed in a northerly direction
shoreward of the spectator craft, taking action to avoid a close-
quarters situation with the spectator craft until finally past
[[Page 32334]]
and clear of the racecourse. All coordinates referenced use datum: NAD
1983. Big Sarasota Pass will be closed to all inbound and outbound
vessel traffic, other than spectator craft, from 10 a.m. and 4 p.m.
EDT, annually on the first Sunday of July.
Regulatory Evaluation
This rule is not a significant regulatory action under section 3(f)
of Executive Order 12866 and does not require an assessment of
potential costs and benefits under section 6 (a)(3) of that order. It
has been exempted from review by the Office of Management and Budget
under that order. It is not significant under the regulatory policies
and procedures of the Department of Transportation (DOT) (44 FR 11040;
February 26, 1979). The Coast Guard expects the economic impact of this
rule to be so minimal that a full Regulatory Evaluation under paragraph
10e of the regulatory policies and procedures of DOT is unnecessary.
These regulations will last for only 5 hours on each day of the event.
No public comments were received during the notice of proposed
rulemaking comment period.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the
Coast Guard must consider whether this rule will have a significant
economic impact on a substantial number of small entities. ``Small
entities'' include independently owned and operated small businesses
that are not dominant in their field and that otherwise qualify as
``small business concerns'' under Section 3 of the Small Business Act
(15 U.S.C. 632).
For reasons set forth in the above Regulatory Evaluation, the Coast
Guard certifies under 5 U.S.C. 605 (b) that this action will not have a
significant economic impact on a substantial number of small entities.
Collection of Information
These regulations contain no collection of information requirements
under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
Federalism
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612, and it has been determined
that the rulemaking does not have sufficient Federalism implications to
warrant the preparation of a Federalism Assessment.
Environmental Assessment
The Coast Guard has considered the environmental impact of this
rule and has concluded that preparation of an environmental Impact
Statement is not necessary. An environmental assessment and a finding
of no significant impact have been prepared and are available in the
docket for inspection of copying where indicated under ADDRESSES. The
Coast Guard has concluded that this action would not significantly
affect the quality of human environment.
List of Subjects in 33 CFR Part 100
Marine safety, Navigation (water), Reporting and recorkeeping
requirements, Waterways.
Regulations: In consideration of the foregoing, the Coast Guard
amends Part 100 of Title 33, Code of Federal Regulations, as follows:
PART 100--[AMENDED]
1. The authority citation for part 100 continues to read as
follows:
Authority: 33 U.S.C. 1233; 49 CFR 1.46 and 33 CFR 100.35.
2. A new section Sec. 100.718 is added to read as follows:
Sec. 100.718 Annual Suncoast Kilo Run; Sarasota Bay, Sarasota, FL.
(a) Regulated area. The regulated area is established in Sarasota
Bat with the northwest corner point at Whale Key, position
27 deg.23'53'' N, 82 deg.37'46'' W, extending to the northeast corner
point at Bayshore Gardens Channel, position 27 deg.25'11'' N,
82 deg.35'45'' W, extending to the southeast corner point at Whitaker
Bayou, position 27 deg.21'22'' N, 82 deg.33'14'' W, and then to the
southwest corner point at Quick Point, position 27 deg.20'18'' N,
82 deg.34'36'' W. All coordinates referenced use datum: NAD 83.
(b) Special local regulations.
(1) In accordance with these regulations, the regulated area is
designated as a ``no wake'' zone. Spectator craft are permitted into
the area, but are prohibited from entering the race course areas
described in (b)(2) of this section.
(2) Inside the ``no wake'' zone are two designated areas
surrounding the primary and alternate race courses. Primary course
``A'' is bounded by a line connecting the northeast corner point at
position 27 deg.22'10'' N, 82 deg.36'09'' W, a southeast corner point
at position 27 deg.21'31'' N, 82 deg.35'37'' W, a southwest corner
point at position 27 deg.21'27'' N, 82 deg.35'48'' W, and a northwest
corner point at position 27 deg.22'05'' N, 82 deg.36'16'' W. Alternate
course ``B'' is bounded by a line connecting the northeast corner point
at position 27 deg.23'11'' N, 82 deg.34'31'' W, a southeast corner
point at position 27 deg.22'35'' N, 82 deg.34'03'' W, a southwest
corner point at position 27 deg.22'31'' N, 82 deg.34'08'' W, and a
northwest corner point at position 27 deg.23'09'' N, 82 deg.34'38'' W.
All coordinates referenced use datum: NAD 83.
(3) Entry into the regulated area shall be in accordance with this
regulation.
(c) Effective date. This section is effective at 8 a.m. and
terminates at 1 p.m. EDT, annually during the first Friday of July.
a. A new section Sec. 100.719 is added to read as follows:
Sec. 100.719 Annual Suncoast Offshore Challenge; Gulf of Mexico,
Sarasota, FL.
(a) Regulated area. The regulated area is established by a line
drawn from the start/finish position 27 deg.19.15' N, 82 deg.35.90' W,
thence to position 27 deg.18.81' N, 82 deg.34.90' W, thence to position
27 deg.18.21' N, 82 deg.34.48' W, thence to position 27 deg.16.43' N,
82 deg.34.99' W, thence to position 27 deg.15.70' N, 82 deg.34.29' W,
thence to position 27 deg.15.86' N, 82 deg.33.44' W, thence to position
27 deg.14.73'10' N, 82 deg.32.37' W, thence to position 27 deg.14.62'
N, 82 deg.32.54' W, thence to position 27 deg.14.94' N, 82 deg.35.25'
W, thence to position 27 deg.20.03' N, 82 deg.37.38' W, thence to
position 27 deg.20.32' N, 82 deg.37.16' W, thence back to the start/
finish position. All coordinates referenced use datum: NAD 1983.
(b) Special local regulations.
(1) No anchoring will be permitted seaward of the shoreside
boundaries of the regulated area out to three nautical miles from
shore, from 10 a.m. to 4 p.m. EDT, annually on the first Saturday of
July.
(2) Anchoring for spectators will be permitted shoreward of the
shoreside boundaries of the regulated area.
(3) All vessel traffic, not involved with the Suncoast Offshore
Challenge, exiting New Pass between 11 a.m. and 4 p.m. EDT shall exist
at New Pass Channel daybeacon #3 (27 deg.26.46' N, 82 deg.41.7' W, LLNR
18100) and #4 (27 deg.26.4' N, 82 deg.41.68' W, LLNR 18105), and shall
proceed in a northerly direction shoreward of spectator craft taking
action to avoid a close-quarters situation until finally past and clear
of the racecourse. All coordinates referenced use datum: NAD 1983.
(4) Big Sarasota Pass will be closed to all inbound and outbound
vessel traffic, other than spectator craft, from 10 a.m. to 4 p.m. EDT.
(5) Entry into the regulated area shall be in accordance with this
regulation. Spectator vessels shall stay clear of race area at all
times.
(c) Effective date. This section is effective at 10 a.m. and
terminates at 4 p.m. EDT, annually during the first Saturday of July.
[[Page 32335]]
2. A new section Sec. 100.720 is added to read as follows:
Sec. 100.720 Annual Suncoast Offshore Grand Prix; Gulf of Mexico,
Sarasota, FL.
(a) Regulated area. The regulated area is established by a line
drawn from the start/finish position 27 deg.19.15' N, 82 deg.35.90' W,
thence to position 27 deg.18.91' N, 82 deg.34.90' W, thence to position
27 deg.18.81' N, 82 deg.34.48' W, thence to position 27 deg.16.43' N,
82 deg.34.99' W, thence to position 27 deg.15.70' N, 82 deg.34.29' W,
thence to position 27 deg.15.86' N, 82 deg.33.44' W, thence to position
27 deg.14.73' N, 82 deg.32.37' W, thence to position 27 deg.14.62' N,
82 deg.32.54' W, thence to position 27 deg.14.93' N, 82 deg.35.25' W,
thence to position 27 deg.20.03' N, 82 deg.37.38' W, thence to position
27 deg.20.32' N, 82 deg.37.16' W, thence back to the start/finish
position. All coordinates referenced use datum: NAD 1983.
(b) Special local regulations.
(1) No anchoring will be permitted seaward of the shoreside
boundaries of the regulated area out to three nautical miles from
shore, from 10 a.m. to 4 p.m. EDT.
(2) Anchoring for spectators will be permitted shoreward of the
shoreside boundaries of the regulated area.
(3) All vessel traffic not involved with the Suncoast Offshore
Grand Prix, exiting New Pass between 10 a.m. and 4 p.m. EDT shall exit
at New Pass Channel daybeacon #3 (27 deg.26.46' N, 82 deg.41.7' W, LLNR
18100) and #4 (27 deg.26.4' N, 82 deg.41.68' W, LLNR 18105), and shall
proceed in a northerly direction shoreward of spectator craft taking
action to avoid a close-quarters situation until finally past and clear
of the racecourse. All coordinates referenced use datum: NAD 83.
(4) Big Sarasota Pass will be closed to all inbound and outbound
vessel traffic, other than spectator craft, from 10 a.m. to 4 p.m. EDT.
(5) Entry into the regulated area shall be in accordance with this
regulation. Spectator craft will stay clear of race area at all times.
(c) Effective date. This section is effective at 10 a.m. and
terminates at 4 p.m. EDT, annually during the first Sunday of July.
Dated: June 11, 1996.
John W. Lockwood,
Rear Admiral, U.S. Coast Guard Commander, Seventh Coast Guard District.
[FR Doc. 96-15933 Filed 6-21-96; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 96-15905 Approval and Promulgation of Implementation Plans; California Mammoth Lakes Nonattainment Area; PMINF10
[Federal Register Volume 61, Number 122 (Monday, June 24, 1996)]
[Rules and Regulations]
[Pages 32341-32345]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15905]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[CA-19-2-725-a; FRL-5511-4]
Approval and Promulgation of Implementation Plans; California--
Mammoth Lakes Nonattainment Area; PM10
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: EPA today approves the State Implementation Plan (SIP)
submitted by the State of California for the purpose of bringing about
attainment in the Mammoth Lakes Planning Area (MLPA) of the national
ambient air quality standards (NAAQS) for particulate matter with an
aerodynamic diameter less than or equal to a nominal 10 micrometers
(PM10). The ``moderate'' area SIP was submitted by the State to
satisfy certain Federal requirements in the Clean Air Act for an
approvable nonattainment area PM10 plan for the MLPA.
The intended effect of approving this plan is to regulate emissions
of PM10 in accordance with the requirements of the CAA, as amended
in 1990.
DATES: This final rule is effective on August 23, 1996 unless adverse
or critical comments are received by July 24, 1996. If the effective
date is delayed, timely notice will be published in the Federal
Register.
ADDRESSES: Copies of the State's submittal and other information are
contained in the docket for this rulemaking. The docket is available
for inspection during normal business hours at the following locations:
U. S. Environmental Protection Agency, Region 9, 75 Hawthorne Street,
San Francisco, CA 94105
California Air Resources Board, 2020 L Street, P.O. Box 2815,
Sacramento, CA 95814
Great Basin Unified Air Pollution Control District, 157 Short Street,
Suite 6, Bishop, CA 93514.
FOR FURTHER INFORMATION CONTACT: Stephanie G. Valentine (A-2-2), U. S.
Environmental Protection Agency, Region 9, Air and Toxics Division, 75
Hawthorne Street, San Francisco, CA 94105, (415) 744-1178.
SUPPLEMENTARY INFORMATION:
I. Background
On the date of enactment of the 1990 Clean Air Act Amendments,
PM10 areas, including the Mammoth Lakes Planning Area, meeting the
conditions of section 107(d) of the Act were designated nonattainment
by operation of law. Once an area is designated nonattainment, section
188 of the Act outlines the process for classification of the area and
establishes the area's attainment date. In accordance with section
188(a), at the time of designation, all PM10 nonattainment areas
were initially classified as ``moderate'' by operation of law. See 40
CFR 81.303 (1993) A moderate area may subsequently be reclassified as
``serious'' if at any time EPA determines that the area cannot
practicably attain the PM10 NAAQS by the applicable attainment
date for moderate areas, December 31, 1994. Moreover, a moderate area
must be reclassified if EPA determines within six months after the
applicable attainment date that the area is not in attainment after
that date. See section 188(b) of the Clean Air Act.
The air quality planning requirements for moderate PM10
nonattainment areas are set out in subparts 1 and 4 of Title I of the
Act. EPA has issued a ``General Preamble'' describing EPA's preliminary
views on how the Agency intends to review SIPs and SIP revisions
submitted under Title I of the Act, including those state submittals
containing moderate PM10 nonattainment area SIP provisions. See
generally 57 FR 13498 (April 16, 1992) and 57 FR 18070 (April 28,
1992). Because EPA is describing its interpretations here only in broad
terms, the reader should refer to the General Preamble for a more
detailed discussion of the interpretations of Title I advanced in
today's action and the supporting rationale. In today's rulemaking
action on California's moderate PM10 SIP for the MLPA, EPA is
applying its interpretations taking into consideration the specific
factual issues presented.
Those states containing initial moderate PM10 nonattainment
areas were required to submit, among other things, the following
provisions by November 15, 1991\1\:
---------------------------------------------------------------------------
\1\ There are additional submittals associated with moderate
PM10 nonattainment plans, such as a permit program for the
construction of new and modified major stationary sources and
contingency measures. See sections 189(a) and 172(c)(9). These
submittals were required to be submitted in 1992 and 1993,
respectively, and are not the subject of today's action which
addresses only those plan provisions required to be submitted on
November 15, 1991.
---------------------------------------------------------------------------
1. Provisions to assure that reasonably available control measures
(RACM) (including such reductions in emissions from existing sources in
the area as may be obtained through the adoption, at a minimum, of
reasonably available control technology--RACT) shall be implemented no
later than December 10, 1993;
2. Either a demonstration (including air quality modeling) that the
plan will provide for attainment as expeditiously
[[Page 32342]]
as practicable but no later than December 31, 1994 or a demonstration
that attainment by that date is impracticable;
3. Pursuant to section 189(c) of the Act, for plan revisions
demonstrating attainment, quantitative milestones which are to be
achieved every 3 years and which demonstrate reasonable further
progress (RFP) toward attainment by December 31, 1994; and
4. Provisions to assure that the control requirements applicable to
major stationary sources of PM10 also apply to major stationary
sources of PM10 precursors except where the Administrator
determines that such sources do not contribute significantly to
PM10 levels which exceed the NAAQS in the area. See sections
172(c), 188, and 189 of the Act.
II. Today's Action
Section 110(k) of the Act sets out provisions governing EPA's
review of SIP submittals. See 57 FR 13565-66. In today's action, EPA
approves the plan revision submitted to EPA on September 11, 1991, and
the addenda submitted January 9, 1992, for the MLPA because it meets
all of the applicable requirements of the Act.
A. Analysis of State Submission
1. Procedural Background
The Act requires states to observe certain procedural requirements
in developing implementation plans and plan revisions for submission to
EPA. Section 110(a)(2) of the Act provides that each implementation
plan submitted by a state must be adopted after reasonable notice and
public hearing.\2\ Section 110(l) of the Act similarly provides that
each revision to an implementation plan submitted by a state under the
Act must be adopted by such state after reasonable notice and public
hearing.
---------------------------------------------------------------------------
\2\ Also section 172(c)(7) of the Act requires that plan
provisions for nonattainment areas meet the applicable provisions of
section 110(a)(2).
---------------------------------------------------------------------------
The EPA also must determine whether a submittal is complete and
therefore warrants further EPA review and action. See section 110(k)(1)
and 57 FR 13565. EPA's completeness criteria for SIP submittals are set
out at 40 CFR Part 51, Appendix V (1993). EPA attempts to make
completeness determinations within 60 days of receiving a submission.
However, a submittal is deemed complete by operation of law if a
completeness determination is not made by EPA six months after receipt
of the submission.
The State of California originally submitted the Mammoth Lakes
Planning Area PM10 implementation plan revision to EPA on
September 11, 1991. By operation of law, this submittal was deemed
complete on March 11, 1992. On January 9, 1992, the State of California
submitted a second revision to the Mammoth Lakes Planning Area
PM10 SIP. This submittal contained revisions which are primarily
administrative in nature to assist in the effective implementation of
the SIP control strategies. By operation of law, this second submittal
was deemed complete on July 9, 1992.
In today's action, EPA approves California's PM10 SIP
submittal for the MLPA.
2. Accurate Emissions Inventory
Section 172(c)(3) of the Act requires that nonattainment plan
provisions include a comprehensive, accurate, current inventory of
actual emissions from all sources of relevant pollutants in the
nonattainment area. Because such inventories are necessary to an area's
attainment demonstration (or demonstration that the area cannot
practicably attain), the emissions inventories must be received with
the submission. See 57 FR 13539.
California submitted a peak 24-hour PM10 emissions inventory
for the MLPA which is based on a 1987-88 emissions inventory survey.
This 1987-88 inventory identifies re-entrained dust and cinders from
paved roads and emissions from fireplaces and wood stoves as the
primary causes of nonattainment, contributing over 99 percent of total
PM10 emissions during times of peak concentrations. The remaining
1 percent of the emissions is comprised of motor vehicle exhaust, tire-
wear, and industrial sources. By applying known population growth
factors to the 1987-88 inventory, the Great Basin Unified APCD also
projected 1990, 1991, 1993, 1995, 2000, and 2005 inventories. The chart
below identifies 1987-88 contributions to the emission inventory.
------------------------------------------------------------------------
Peak 24-
hour PM10
Source category emissions Percentage
(kg/day)
------------------------------------------------------------------------
Fireplaces....................................... 882 20.7
Woodstoves....................................... 957 22.5
Resuspended Road Dirt/Cinders.................... 2,390 56.1
Motor Vehicles................................... 23 0.5
Industrial....................................... 7 0.2
----------------------
Total...................................... 4,259 100
------------------------------------------------------------------------
EPA approves the emissions inventory because it generally appears
to be accurate and comprehensive, and provides a sufficient basis for
determining the adequacy of the plan revision's air quality analysis
consistent with the requirements of sections 172(c)(3) and 110(a)(2)(K)
of the Clean Air Act.\3\ For further details see the Technical Support
Document (TSD) that is contained in the docket for today's action.
---------------------------------------------------------------------------
\3\ EPA issued guidance on PM10 emissions inventories prior
to the enactment of the 1990 Clean Air Act Amendments in the form of
the 1987 PM10 SIP Development Guideline. Pursuant to section
193 of the Amendments, the guidance provided in this document, as
well as all other pre-Amendment guidance cited in this notice,
remains in effect.
---------------------------------------------------------------------------
3. RACM
As noted, the initial moderate PM10 nonattainment areas must
submit provisions to assure that RACM (including RACT) are implemented
no later than December 10, 1993. See sections 172(c)(1) and
189(a)(1)(C). EPA's General Preamble for the Implementation of Title I
of the Clean Air Act Amendments contains a detailed discussion of EPA's
interpretation of the RACM (including RACT) requirement. See 57 FR
13540-45 and 13560-61.
As stated in EPA's General Preamble, the suggested starting point
for determining RACM for a particular area is to list all of the RACM
measures for which EPA has issued guidance under section 190 of the
Act. If a state receives substantive public comment demonstrating that
additional measures may be reasonably available, those measures should
then be added to the original list.
As noted in the Emissions Inventory section of this document, 99
percent of the PM10 nonattainment problem in the MLPA comes from
resuspended road dust/cinders and fireplaces/woodstoves. The remaining
one percent comes from motor vehicles and industrial sources. Given
this emissions inventory with limited contributions from a number of
source categories, a list of control measures was developed by the
Great Basin Unified Air Pollution Control District for consideration in
a draft SIP revision. Through the public hearing process, the list was
refined to form a final control strategy that provides for attainment
by the Clean Air Act deadline of December 31, 1994.
Where sources of PM10 do not contribute significantly to the
PM10 problem in an area, EPA's policy is that a state is not
reasonably required to implement potentially available control measures
for such sources (57 FR 13543). Based upon the MLPA emissions inventory
which is dominated by wood burning and road
[[Page 32343]]
dust and cinders, and the fact that the area is able to demonstrate
attainment of the PM10 NAAQS by the CAA deadline, EPA believes
that the State has provided a reasoned justification for eliminating
measures from its initial list of possible RACM. The remaining measures
are legally enforceable. Therefore, EPA has concluded that the
regulations adopted for the State's moderate area PM10 SIP
revision represent RACM as required by sections 189(a)(1)(C) and 172(c)
of the Act.
4. Control Strategy
The control strategy was developed by the GBUAPCD and the Town of
Mammoth Lakes. The final control strategy relies upon the
implementation of nine measures which were adopted as a Town Ordinance
on November 7, 1990, and added into the Mammoth Lakes Municipal Code as
Chapter 8.30, Particulate Emissions Regulations. These regulations were
subsequently adopted by the Great Basin Unified APCD as Rule 431--
Particulate Emissions--Town of Mammoth on November 6, 1991. The
regulations will reduce emissions from re-entrained road cinders, will
phase out non-certified wood burning appliances, and will institute
wood burning curtailments during periods of high PM10
concentrations. The measures adopted by the Mammoth Lakes Town Council
and subsequently adopted as Great Basin Unified APCD Rule 431 to
control PM10 emissions are summarized in the following table.
------------------------------------------------------------------------
Control measures Source category
------------------------------------------------------------------------
(1) Vacuum Street Sweeper for Cinders and Road Dust/Cinders.
Road Dust.
(1) Reduce Vehicle Traffic................ Road Dust/Cinders.
(1) Institute Public Awareness Program for Wood Stoves/Fireplaces.
Wood Burning.
(1) Replace or Remove Non-certified Wood Wood Stoves/Fireplaces.
Stoves Upon Resale.
(2) Limit Installation of Woodstoves......
(1) Ban Fireplaces in New Dwellings....... Wood Stoves/Fireplaces.
(2) Require Transient Occupancy Units to
Phase Out Fireplaces.
(3) Require Fireplace Phase Out Upon
Resale of Home.
((1) Require Certification for Wood Stove Wood Stoves/Fireplaces.
Installers.
(2) Require 20% Wood Moisture Limit for
Wood Retailers.
(3) Prohibit Trash and Coal Burning in
Wood Stoves.
(4) Set 20% Opacity Limit for Wood Burning
(1) Voluntary Wood Burning Ban During Wood Stoves/Fireplaces.
Periods of Poor Air Quality.
(2) Mandatory Wood Burning Ban when NAAQS
Violation Expected.
------------------------------------------------------------------------
The regulations' primary measures will result in the eventual
phasing out of all non-EPA-certified wood stoves and wood burning
fireplaces. This will be accomplished by replacing non-certified
appliances with certified wood stoves, pellet stoves, or gas log
fireplaces before the resale of a dwelling. In addition to phasing out
non-certified appliances, the Town will rely on a mandatory wood
burning curtailment. This mandatory curtailment program will initially
exempt certified wood stoves, but may include all wood burning if more
reductions are needed to attain the standard.
Road dust reduction measures include vacuum street sweeping,
reduction measures for vehicle miles travelled (VMT) for new
developments, and an overall limit of VMT in the Town of Mammoth.
Section 6 of the MLPA SIP revision and Appendix F set forth the
selected control measures and expected emissions reductions. The
controls are evaluated for two cases; Case A, a wood burning dominated
day, and Case B, a road dust and cinder dominated day. Section 5 of the
SIP revision shows that Case B, the road dust and cinder dominated day
will require the most stringent controls. The control strategy,
therefore, was selected for Case B conditions. An additional analysis
to confirm the adequacy of the strategy is included in Appendix H.
Many of the proposed control measures are interrelated, so that
reduction credits are not simple independent calculations. The SIP also
includes contingency measures such as an accelerated replacement
schedule for non-certified wood stoves and wood burning fireplaces.
However, as noted in footnote #1, contingency measures will not be
addressed in today's action. Appendix I shows the effectiveness
calculations for the regulations, including the interrelationships of
the measures, and the potential impacts of the contingency measures.
These calculations are best summarized in Appendix I, pages I-21 and I-
22.
By this document, EPA approves the control strategy.
5. RACT
The General Preamble states that generally EPA recommends that
available control technology be applied to those existing sources in
the nonattainment area that are reasonable to control in light of the
attainment needs of the area and the feasibility of such controls. The
Mammoth Lakes Planning Area contains no major point sources of
PM10, and the imposition of available control technology on other
existing sources would not expedite attainment; therefore,
implementation of available control technology (RACT) is not reasonably
required in this plan (57 FR 13543). A more detailed discussion of the
control strategy in the SIP revision can be found in the Technical
Support Document (TSD).
6. Demonstration
As noted, the initial moderate PM10 nonattainment areas must
submit a demonstration (including air quality modeling) showing that
the plan will provide for attainment as expeditiously as practicable
but no later than December 31, 1994. Alternatively, the state must show
that attainment by December 31, 1994 is impracticable. See section
189(a)(1)(B) of the Act.
In order for a state to properly demonstrate attainment of the
NAAQS, the SIP control strategy must provide for attainment of each
primary ambient air quality standard. There are two primary air quality
standards for PM10, a 24-hour standard (150 g/m3),
and an annual standard (50 g/m3). The 24-hour standard is
attained when the expected number of days per calendar year with a 24-
hour average concentration above 150 g/m3 is equal to or
less than one. The annual standard is attained when the expected annual
arithmetic mean concentration is less than or equal to 50 g/
m3 (lid). See 40 CFR 50.6.
In the MLPA, peak PM10 concentrations are directly related to
the influx of visitors to the area during peak periods of the ski
season, coupled with low wind speeds. Increased particulate air
pollution and stagnant air conditions lead to air pollution episodes
with violations of the 150g/m3 24-hour standard that may
last several days or more. The MLPA has not violated the 50 g/
m3 annual average standard. California used receptor modeling coupled
with a proportional rollback model for its MLPA air quality analysis.
This analysis indicates that the 24 hour standard for PM10 can be
attained by December 31, 1994. The SIP's design value for the 24 hour
PM10 NAAQS is
[[Page 32344]]
210 g/m3, 40 percent greater than the standard. The
control strategy used to achieve attainment concentrations is
summarized in the section of this notice entitled ``Control Strategy
.''
By this notice EPA approves the State's demonstration of attainment
of the PM10 NAAQS by December 31, 1994. For a more detailed
description of the demonstration of attainment, see the TSD
accompanying this notice.
7. PM10 Precursors
The control requirements which are applicable to major stationary
sources of PM10 also apply to major stationary sources of
PM10 precursors, unless EPA determines such sources do not
contribute significantly to PM10 levels in excess of the NAAQS in
that area. See section 189(e) of the Act. An analysis of air quality
and emissions data for the MLPA indicates that exceedances of the NAAQS
are attributable chiefly to direct particulate matter emissions from
re-entrained road dust and cinders and residential woodburning. Sources
of particulate matter precursor emissions of ammonium sulfate and
ammonium nitrate contribute a negligible percentage of the total annual
emissions of PM10. Consequently, EPA finds that sources of
precursors of PM10 in the MLPA do not contribute significantly to
PM10 levels in excess of the NAAQS. The consequence of this
finding is to exclude these sources from the applicability of PM10
moderate nonattainment area control requirements. Further discussion of
the analyses and supporting rationale for EPA's finding are contained
in the TSD accompanying this notice. Note that while EPA is making a
general finding for this area, today's finding is based on the current
character of the area including, for example, the existing mix of
sources in the area. It is possible, therefore, that future growth
could change the significance of precursors in the area. EPA intends to
issue future guidance addressing such potential changes in the
significance of precursor emissions in an area.
8. Enforceability
The particular control measures contained in the SIP revision for
the MLPA are addressed above under the section entitled ``Control
Strategy.'' These control measures apply to the types of PM10
emission sources identified in that discussion, predominantly road dust
and cinders and residential wood burning.
All measures and other elements in the SIP must be enforceable by
EPA and the State. See sections 172(c)(6), 110(a)(2)(A) and 57 FR
13556. The EPA criteria addressing the enforceability of SIPs and SIP
revisions are stated in a September 23, 1987 memorandum (with
attachments) from J. Craig Potter, Assistant Administrator for Air and
Radiation, et al. See 57 FR 13541. The TSD for this notice contains
detailed information on enforceability requirements including
applicability, the source types subject to the rules, compliance
schedules as appropriate, and reporting and recordkeeping requirements.
In addition to meeting the enforceability requirements of the Act
and EPA guidance, nonattainment area plan provisions must also contain
a program that provides for enforcement of the control measures and
other elements in the SIP. See sections 110(a)(2)(C) and 172(c)(7).
Moreover, where the State relies on a local or regional government
agency for implementing any plan provision, the State has the
responsibility for ensuring adequate implementation of that provision.
See section 110(a)(2)(E)(iii).
The State of California has a program that will ensure that the
measures contained in the SIP revision are adequately enforced. Primary
enforcement of the RACM rules will be under the jurisdiction of the
Great Basin Unified APCD and the Town of Mammoth Lakes.
Under section 110(a)(2)(E)(iii) of the Act, the State must also
provide necessary assurances that the State has responsibility for
ensuring adequate implementation of these plan provisions. The State
has the authority to take legal action against the District if the
State determines that the District is not carrying out its enforcement
responsibilities.
III. Implications of Today's Action
EPA approves the moderate nonattainment area PM10 plan
revision submitted to EPA for the Mammoth Lakes Planning Area on
September 11, 1991, and amended on January 9, 1992. The State of
California has demonstrated that the MLPA can practicably attain the
PM10 NAAQS by December 31, 1994.
As noted, additional submittals for the initial moderate PM10
nonattainment areas were due at later dates. EPA will determine the
adequacy of any such submittal as appropriate.
EPA is publishing this action without prior proposal because the
Agency views this as a noncontroversial amendment and anticipates no
adverse comments. However, in a separate document in this Federal
Register publication, EPA is proposing to approve the SIP revision
should adverse or critical comments be filed. This action will be
effective August 23, 1996 unless by July 24, 1996, adverse or critical
comments are received.
If EPA receives such comments, this action will be withdrawn before
the effective date by publishing a subsequent final rule that will
withdraw the final action. All public comments received will then be
addressed in a subsequent final rule based on this action serving as a
proposed rule. EPA will not institute a second comment period on this
action. Any parties interested in commenting on this action should do
so at this time. If no such comments are received, the public is
advised that this action will be effective on August 23, 1996.
IV. Regulatory Flexibility
Under the Regulatory Flexibility Act, 5 U.S.C. 600 et. seq., EPA
must prepare a regulatory flexibility analysis assessing the impact of
any proposed or final rule on small entities. 5 U.S.C 603 and 604.
Alternatively, EPA may certify that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small not-for-profit
enterprises, and government entities with jurisdiction over populations
of less than 50,000.
SIP approvals under section 110 and subchapter I, Part D of the
Clean Air Act do not create any new requirements, but simply approve
requirements that the State is already imposing. Therefore, because the
federal SIP approval does not impose any new requirements, I certify
that it does not have a significant impact on small entities affected.
Moreover, due to the nature of the federal-state relationship under the
Clean Air Act, preparation of a regulatory flexibility analysis would
constitute federal inquiry into the economic reasonableness of state
action. The Clean Air Act forbids EPA to base its actions concerning
SIPs on such grounds. Union Electric Co. v. U.S. E.P.A., 427 U.S. 246,
256-66 (S.Ct. 1976); 42 U.S.C. section 7410 (a)(2).
V. Unfunded Mandates Reform Act
Under Sections 202, 203, and 205 of the Unfunded Mandates Reform
Act of 1995 (``Unfunded Mandates Act''), signed into law on March 22,
1995, EPA must undertake various actions in association with proposed
or final rules that include a Federal Mandate that may result in
estimated costs of $100 million or more to the private sector, or to
state, local, or tribal governments in the aggregate.
Through submission of the state implementation plan or plan
revisions
[[Page 32345]]
approved in this action, the State and any affected local governments
have elected to adopt the program provided for under Title I and
sections 110, 172, 189, and 190 of the Clean Air Act. The rules and
commitments approved in this action may bind state and local
governments to perform certain actions and also may ultimately lead to
the private sector being required to perform certain duties. To the
extent that the rules and commitments being approved by this action
will impose or lead to the imposition of any mandate upon the state or
local governments either as the owner or operator of a source or as a
regulator, or would impose or lead to the imposition of any mandate
upon the private sector, EPA's action will impose no new requirements;
such sources are already subject to these requirements under State law.
Accordingly, no additional costs to State or local governments, or to
the private sector, result from this action. Therefore, EPA has
determined that this final action does not include a mandate that may
result in estimated costs of $100 million or more to the State or local
governments in the aggregate or to the private sector.
This action has been classified as a Table 3 action for signature
by the Regional Administrator under the procedures published in the
Federal Register on January 19, 1989 (54 FR 2214-2225), as revised by a
July 10, 1995 memorandum from Mary Nichols, Assistant Administrator for
Air and Radiation. The Office of Management and Budget (OMB) has
exempted this regulatory action from Executive Order 12866 review.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Particulate matter, Reporting
and recordkeeping requirements.
Dated: March 31, 1996.
Felicia Marcus,
Regional Administrator.
Subpart F of part 52, chapter I, title 40 of the Code of Federal
Regulations is amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401-7671q.
Subpart F--California
2. Section 52.220 is amended by adding paragraphs (c) (226) and
(228) to read as follows:
Sec. 52.220 Identification of plan.
* * * * *
(c) * * *
* * * * *
(226) Air Quality Management Plan for the following APCD was
submitted on September 11, 1991, by the Governor's designee.
(i) Incorporation by reference.
(A) Great Basin Unified Air Pollution Control District.
(1) Air Quality Management Plan for the Mammoth Lakes PM-10
Planning Area adopted December 12, 1990.
* * * * *
(228) Air Quality Management Plans for the following APCD were
submitted on January 9, 1992, by the Governor's designee.
(i) Incorporation by reference.
(A) Great Basin Unified Air Pollution Control District.
(1) Revisions to the Air Quality Management Plan for Mammoth Lakes
PM-10 Planning Area adopted November 6, 1991.
(i) Rule 431 adopted November 6, 1991.
(ii) Town of Mammoth Lakes Municipal Code Chapter 8.30 dated
October 2, 1991.
[FR Doc. 96-15905 Filed 6-21-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-15895 Class Exemption for Acquisition Or Operation Of Rail Lines By Class III Rail Carriers Under 49 U.S.C. 10902
[Federal Register Volume 61, Number 122 (Monday, June 24, 1996)]
[Rules and Regulations]
[Pages 32355-32356]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15895]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
49 CFR Parts 1002 and 1150
[STB Ex Parte No. 529]
Class Exemption for Acquisition Or Operation Of Rail Lines By
Class III Rail Carriers Under 49 U.S.C. 10902
AGENCY: Surface Transportation Board.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: Pursuant to the request by the Regional Railroads of America
and The American Short Line Railroad Association, the Surface
Transportation Board (Board) grants final approval for a class
exemption for the acquisition or operation of additional rail lines by
Class III rail carriers. Final regulations establishing the exemption
for the acquisitions are set forth below.
EFFECTIVE DATE: July 24, 1996.
FOR FURTHER INFORMATION CONTACT: Joseph Dettmar, (202) 927-5660. [TDD
for the hearing impaired: (202) 927-5721.]
SUPPLEMENTARY INFORMATION: Pursuant to the request by the Regional
Railroads of America and The American Short Line Railroad Association,
the Board proposed a new class exemption to apply to transactions in
which Class III rail carriers acquire or operate additional rail
properties under 49 U.S.C. 10902. By notice of proposed rulemaking
served and published in the Federal Register on March 22, 1996 (61 FR
11802-11804), the Board requested comments on the proposed exemption.
Upon reviewing the comments, the Board is adopting the proposed class
exemption, with minor editorial changes, because it meets the exemption
criteria of 49 U.S.C. 10502. The class exemption will be similar to the
Board's existing rules for noncarrier transactions under 49 U.S.C.
10901. Because section 10902 precludes the Board from imposing labor
protection on Class III carriers receiving a certificate under the
statute, the class exemption will not provide labor protection for
affected rail employees. Additional information is contained in the
Board's decision served on June 21, 1996. To purchase a copy of the
decision, write to, call, or pick up in person from: DC News & Data,
Inc., 1201 Constitution Avenue, N.W., Room 2229, Washington, D.C.
20423. [Assistance for the hearing impaired is available through TDD
service (202) 927-5721.]
List of Subjects
49 CFR Part 1002
Administrative practice and procedure, Freedom of information, User
fees.
49 CFR Part 1150
Administrative practice and procedure, Railroads.
By the Board, Chairman Morgan, Vice Chairman Simmons, and
Commissioner Owen. Chairman Morgan commented with a separate
expression. Commissioner Owen concurred in part and dissented in
part with a separate expression.
Decided: June 14, 1996.
Vernon A. Williams,
Secretary.
For the reasons set forth in the preamble, the Board amends title
49, chapter X, parts 1002 and 1150 of the Code of Federal Regulations,
as follows:
PART 1002--FEES
1. The authority citation for part 1002 is revised to read as
follows:
Authority: 5 U.S.C. 552(a)(4)(A) and 553; 31 U.S.C. 9701; and 49
U.S.C. 721(a).
2. Section 1002.2 is amended by adding a new paragraph (f) (36) to
read as follows:
Sec. 1002.2 Filing fees.
* * * * *
(f) * * *
------------------------------------------------------------------------
Type of proceeding Fee
------------------------------------------------------------------------
* * * * *
(36) Notice of exemption under 49 CFR 1150.41-1150.45.......... $950
* * * * *
------------------------------------------------------------------------
* * * * *
PART 1150--CERTIFICATE TO CONSTRUCT, ACQUIRE, OR OPERATE RAILROAD
LINES
3. The authority citation for part 1150 is revised to read as
follows:
Authority: 5 U.S.C. 553 and 559; 49 U.S.C. 721(a), 10502, 10901,
and 10902.
4. The heading for Subpart D is revised to read as follows:
Subpart D--Exempt Transactions Under 49 U.S.C. 10901
5. A new Subpart E, consisting of Secs. 1150.41-1150.45, is added
to read as follows:
Subpart E--Exempt Transactions Under 49 U.S.C. 10902 for Class III
Rail Carriers
Sec.
1150.41 Scope of exemption.
1150.42 Procedures and relevant dates for small line acquisitions.
1150.43 Information to be contained in notice for small line
acquisitions.
1150.44 Caption summary.
1150.45 Procedures and relevant dates--transactions under section
10902 that involve creation of Class I or Class II rail carriers.
Subpart E--Exempt Transactions Under 49 U.S.C. 10902 for Class III
Rail Carriers
Sec. 1150.41 Scope of exemption.
Except as indicated in paragraphs (a) through (d) of this section,
this exemption applies to acquisitions or operations by Class III rail
carriers under section 10902. This exemption also includes:
(a) Acquisition by a Class III rail carrier of rail property that
would be operated by a third party;
(b) Operation by a Class III carrier of rail property acquired by a
third party;
(c) A change in operators on such a line; and
(d) Acquisition of incidental trackage rights. Incidental trackage
rights include the grant of trackage rights by the seller, or the
acquisition of trackage rights to operate over the line of a third
party, that occurs at the time of the purchase.
Sec. 1150.42 Procedures and relevant dates for small line
acquisitions.
(a) This exemption applies to the acquisition of rail lines with
projected annual revenues which, together with the acquiring carrier's
projected annual revenue, do not exceed the annual revenue of a Class
III railroad. To qualify for this exemption, the Class III rail carrier
applicant must file a verified notice providing details about the
transaction, and a brief caption summary, conforming to the format in
Sec. 1150.44, for publication in the Federal Register. In addition to
the written submission, the notice and summary must be submitted on a
3.5-inch diskette formatted for WordPerfect 5.1.
(b) The exemption will be effective 7 days after the notice is
filed. The Board, through the Director of the Office of Proceedings,
will publish a notice in the Federal Register within 30 days of the
filing. A change in operators must follow the provisions at
Sec. 1150.44, and notice must be given to shippers.
(c) If the notice contains false or misleading information, the
exemption is void ab initio. A petition to revoke
[[Page 32356]]
under 49 U.S.C. 10502(d) does not automatically stay the exemption.
(d) Applicant must preserve intact all sites and structures more
than 50 years old until compliance with the requirements of section 106
of the National Historic Preservation Act, 16 U.S.C. 470f, is achieved.
Sec. 1150.43 Information to be contained in notice for small line
acquisitions.
(a) The full name and address of the Class III rail carrier
applicant;
(b) The name, address, and telephone number of the representative
of the applicant who should receive correspondence;
(c) A statement that an agreement has been reached or details about
when an agreement will be reached;
(d) The operator of the property;
(e) A brief summary of the proposed transaction, including:
(1) The name and address of the railroad transferring the subject
property to the Class III rail carrier applicant;
(2) The proposed time schedule for consummation of the transaction;
(3) The mileposts of the subject property, including any branch
lines; and
(4) The total route miles being acquired;
(f) A map that clearly indicates the area to be served, including
origins, termini, stations, cities, counties, and states; and
(g) A certificate that applicant's projected revenues as a result
of the transaction will not result in the creation of a Class II or
Class I rail carrier so as to require processing under Sec. 1150.45.
Sec. 1150.44 Caption summary.
The caption summary must be in the following form. The information
symbolized by numbers is identified in the key as follows:
Surface Transportation Board; Notice of Exemption; STB Finance Docket
No. (1)--Exemption (2)-(3)
(1) Has filed a notice of exemption to (2) (3)'s line between
(4). Comments must be filed with the Board and served on (5). (6).
Key to symbols:
(1) Name of carrier acquiring or operating the line.
(2) The type of transaction, e.g., to acquire or operate.
(3) The transferor.
(4) Describe the line.
(5) Petitioner's representative, address, and telephone number.
(6) Cross reference to other class exemptions being used.
The notice is filed under 49 CFR 1150.41. If the notice contains
false or misleading information, the exemption is void ab initio.
The filing of a petition to revoke will not automatically stay the
transaction.
Sec. 1150.45 Procedures and relevant dates--transactions under
section 10902 that involve creation of Class I or Class II rail
carriers.
(a) To qualify for this exemption, applicant must serve a notice of
intent to file a notice of exemption no later than 14 days before the
notice of exemption is filed with the Board.
(b) The notice of intent must contain all the information required
in Sec. 1150.43 plus:
(1) A general statement of service intentions; and
(2) A general statement of labor impacts.
(c) The notice of intent must be served on:
(1) The Governor of each state in which track is to be sold;
(2) The state(s) Department of Transportation or equivalent agency;
(3) The national offices of the labor unions with employees on the
affected line(s); and
(4) Shippers representing at least 50 percent of the volume of
local traffic and traffic originating or terminating on the line(s) in
the most recent 12 months for which data are available (beginning with
the largest shipper and working down).
(d) Applicant must also file a verified notice of exemption
conforming to the requirements of paragraph (b) of this section and of
Sec. 1150.44, and certify compliance with paragraphs (a), (b), and (c)
of this section, attaching a copy of the notice of intent. In addition
to the written submission, the notice must be submitted on a 3.5-inch
diskette formatted for WordPerfect 5.1.
(e) The exemption will be effective 21 days after the notice is
filed. The Board, through the Director of the Office of Proceedings,
will publish a notice in the Federal Register within 30 days of the
filing.
(f) If the notice contains false or misleading information, the
exemption is void ab initio. A petition to revoke under 49 U.S.C.
10502(d) does not automatically stay the transaction. Stay petitions
must be filed within 7 days of the filing of the notice of exemption.
Replies will be due 7 days thereafter. To be considered, stay petitions
must be timely served on the applicant.
(g) Applicant must preserve intact all sites and structures more
than 50 years old until compliance with the requirements of section 106
of the National Historic Preservation Act, 16 U.S.C. 470f, is achieved.
[FR Doc. 96-15895 Filed 6-21-96; 8:45 am]
BILLING CODE 4915-00-P
Complete official Federal Register PDF
FR Doc. 96-15877 Reimbursement for Providing Financial Records; Recordkeeping Requirements for Certain Financial Records; Correction
[Federal Register Volume 61, Number 122 (Monday, June 24, 1996)]
[Rules and Regulations]
[Page 32317]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15877]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules
and Regulations
[[Page 32317]]
FEDERAL RESERVE SYSTEM
12 CFR Part 219
[Regulation S; Docket No. R-0906]
Reimbursement for Providing Financial Records; Recordkeeping
Requirements for Certain Financial Records; Correction
AGENCY: Board of Governors of the Federal Reserve System.
ACTION: Final rule; correction.
-----------------------------------------------------------------------
SUMMARY: This document contains a technical correction to the final
rule that was published June 12, 1996 (61 FR 29638). The rule
implements the requirement under the Right to Financial Privacy Act
(RFPA) that the Board establish the rates and conditions under which
payment shall be made by a government authority to a financial
institution for assembling or providing financial records pursuant to
RFPA.
EFFECTIVE DATE: July 12, 1996.
FOR FURTHER INFORMATION CONTACT: Elaine M. Boutilier, Senior Counsel
(202/452-2418), Legal Division, Board of Governors of the Federal
Reserve System, Washington, DC 20551. For users of the
Telecommunication Device for the Deaf (TDD), please contact Dorothea
Thompson (202/452-3544).
SUPPLEMENTARY INFORMATION:
Background
The final rule that is the subject of this correction adopted a
proposed rule that was subject to public comment, published December
20, 1995 (60 FR 65599).
Need for Correction
As published, the final rule contained a non-substantive, technical
error that is in need of clarification.
In final rule document 96-14688, beginning on page 29638 in the
issue of Wednesday, June 12, 1996, make the following correction.
Sec. 219.6 [Corrected]
On page 29641, in the second column, in Sec. 219.6, paragraph (b),
14th line, the phrase ``of the notice to'' is removed.
By order of the Board of Governors of the Federal Reserve
System, June 18, 1996.
William W. Wiles,
Secretary of the Board.
[FR Doc. 96-15877 Filed 6-21-96; 8:45 am]
BILLING CODE 6210-01-P
Complete official Federal Register PDF
FR Doc. 96-15797 Audiovisual Records Management
[Federal Register Volume 61, Number 122 (Monday, June 24, 1996)]
[Rules and Regulations]
[Pages 32335-32339]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15797]
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NATIONAL ARCHIVES AND RECORDS ADMINISTRATION
36 CFR Parts 1228 and 1232
RIN 3095-AA18
Audiovisual Records Management
AGENCY: National Archives and Records Administration (NARA).
ACTION: Final rule.
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SUMMARY: This regulation revises and expands NARA regulations
pertaining to audiovisual records management and the transfer of
permanent audiovisual records to the National Archives from Federal
agencies. The revisions are necessary in order to update standards, to
provide coverage for new audiovisual media that are used in the
creation of Federal records, and to reflect the transfer to the
Department of Commerce's National Technical Information Services of the
centralized audiovisual distribution services formerly performed by the
National Audiovisual Center. This regulation affects Federal agencies.
DATES: This rule is effective July 24, 1996. This incorporation by
reference was approved by the Director of the Federal Register
effective July 24, 1996.
FOR FURTHER INFORMATION CONTACT: Nancy Allard at 301-713-6730 or TDD
301-713-6760.
SUPPLEMENTARY INFORMATION: NARA published a notice of proposed
rulemaking on September 28, 1995, (60 FR 50158) for a 60-day comment
period. Four written comments were received. The proposed rule
addressed matters regarding the transfer of permanent audiovisual
records to the National Archives from Federal agencies, particularly
with regard to videotape copies of motion picture film, record elements
for compact discs and video discs, audio and video tape recordings, and
related captions or finding aids in electronic form. The proposed rule
also revised audiovisual definitions, updated various standards, and
deleted the provision for temporary storage space in NARA's cold
storage vaults and regulations governing centralized audiovisual
services. Additional information will be provided in a forthcoming
revision of NARA's instructional guide, ``Managing Audiovisual
Records.''
Following is a discussion of the issues raised in the written
comments.
One agency asked whether agencies would have to modify their
approved records disposition schedules (SF 115), especially for older
series of records, to conform to the new requirements or could the
agencies select a ``start'' date for implementation. These regulations
are mandatory as of the effective date of this final rule. Agencies
must follow the requirements specified in Part 1232 for all audiovisual
records; however, agencies do not need to submit new SFs 115 merely to
conform to the regulation and NARA will not apply the new transfer
requirements in Part 1228 retrospectively to records that are in
existence as of the effective date.
Section 1228.184 Audiovisual Records
Two agencies reported that the transfer provision relating to
copies of audiovisual records, particularly color photographs, outlined
in Sec. 1228.184(b)(2) would be too expensive for agencies to
implement. One of the agencies also objected to the requirements for
the transfer of agency-acquired motion picture films outlined in
Sec. 1228.184(a)(2), indicating that if these were not created or
purchased at the time of acquisition, ``this would impose an additional
burden on the agency.'' The changes proposed in these paragraphs were
intended to provide greater flexibility for agencies to meet long-
standing requirements. Production of requisite copies is necessary to
properly preserve and make available permanent agency audiovisual
records. NARA is, therefore, retaining the minimum requirements that
were included in the proposed rule, but has expanded the options
provided for color photographs in Sec. 1228.184(b)(2). NARA has also
modified the wording in Sec. 1228.184(c)(2) regarding analog audio
recordings in response to one agency's observation that the
broadcasting industry is moving toward other methods of both audio and
video recording. This section now provides for a ``subsequent
generation copy for reference.'' This language is consistent to the
wording applying to video recordings in Sec. 1228.184(d)(1).
Two agencies commented that the requirement pertaining to
electronic versions of finding aids and production documentation
mentioned in Sec. 1228.184(e)(1) would present an undue burden on
agencies when many agency electronic finding aids are created on
personal computers. NARA agrees and has revised this section to
indicate that when this is the case, NARA will accept two versions of
electronic finding aids: one in the native format and the other in a
format that is migratable to software NARA can support at the time of
transfer. Both versions must be part of the transfer.
[[Page 32336]]
Section 1232.26 Storage Conditions
One agency recommended replacing the reference NFPA 232-1991,
Standard for the Protection of Records issued by the National Fire
Protection Association with ANSI/NFPA 232A-1995, Fire Protection for
Archives and Records Centers. NARA agrees that the suggested standard
is more appropriate and made the change. To provide better guidance
concerning what consitutes ``cold'' and ``cooler'' temperatures in
Sec. 1232.26(b), NARA has added a reference to the appropriate ANSI/
NAPM standard.
Section 1232.30 Choosing Formats
One agency thought that the requirements at Sec. 1232.30(a)
regarding residual sodium thiosulfate (hypo) would require rewashing
processed film, which could damage attached caption information. No
change was made because it is stated that this procedure is for newly
processed black-and-white photographic film, not rewashing film already
processed. NARA also clarified the wording regarding the maximum level
of residual sodium thiosulfate on newly processed film.
One agency asked NARA to define what constitutes ``industrial or
professional recording equipment and videotape'' in Sec. 1232.30(b)(c).
The general wording was used to avoid imposing on agencies a specific
and current professional technology that would quickly become obsolete.
In addition, NARA emphasized in the proposed rule that consumer formats
of audio and video recordings were not acceptable for creating
permanent records.
Other
NARA has also corrected an inadvertant error in the proposed rule
concerning the applicability of the regulation to all Federal agencies.
The final rule applies to all Federal agencies, as defined at 36 CFR
1220.14. This is consistent with current practice. Section 1232.1
emphasized the applicability of Part 1232 to Executive agencies, but
did not include wholely owned government corporations which are defined
in 36 CFR 1220.14 as Executive agencies. The definition of ``agency''
in the proposed Sec. 1232.10 also was inconsistent with the definition
of that term in Sec. 1220.14. The proposed Sec. 1232.20 correctly
stated that the audiovisual records management program responsibilities
applied to all Federal agencies.
In this final rule, NARA has deleted the erroneous last sentence in
Sec. 1232.1 and the definition of ``agency'' in Sec. 1232.10. We have
retained the reference to the general definitions at Sec. 1220.14 in an
introductory sentence to that section.
NARA also has updated the editions of some of the standards
incorporated by reference to reflect more current standards relating to
audiovisual materials.
This rule is a not a significant regulatory action for purposes of
Executive Order 12866 of September 30, 1993. As such, it has not been
reviewed by the Office of Management and Budget. As required by the
Regulatory Flexibility Act, it is hereby certified that this rule will
not have a significant impact on small entities. This rule is not a
major rule for purposes of Congressional review of regulations under 5
U.S.C. Chapter 8.
List of Subjects
36 CFR Part 1228
Archives and records.
36 CFR Part 1232
Archives and records, Incorporation by reference.
For the reasons set forth in the preamble, 36 CFR chapter XII is
amended as follows:
PART 1228--DISPOSITION OF FEDERAL RECORDS
1. The authority citation for part 1228 continues to read as
follows:
Authority: 44 U.S.C. chs. 21, 29, and 33.
2. Section 1228.184 is revised to read as follows:
Sec. 1228.184 Audiovisual records.
The following types of audiovisual records appraised as permanent
shall be transferred to the National Archives as soon as they become
inactive or whenever the agency cannot provide proper care and handling
of the records, including adequate storage conditions, to facilitate
their preservation by the National Archives (see part 1232 of this
chapter). In general the physical types described below constitute the
minimum record elements for archival purposes that are required to
provide for future preservation, duplication, and reference needs.
(a) Motion pictures. (1) Agency-sponsored or produced motion
picture films (e.g., public information films) whether for public or
internal use:
(i) Original negative or color original plus separate optical sound
track;
(ii) Intermediate master positive or duplicate negative plus
optical track sound track; and,
(iii) Sound projection print and video recording, if both exist.
(2) Agency-acquired motion picture films: Two projection prints in
good condition or one projection print and one videotape.
(3) Unedited footage, outtakes and trims (the discards of film
productions) that are properly arranged, labeled, and described and
show unstaged, unrehearsed events of historical interest or
historically significant phenomena:
(i) Original negative or color original; and
(ii) Matching print or videotape.
(b) Still pictures. (1) For black-and- white photographs, an
original negative and a captioned print although the captioning
information can be maintained in another file such as a data base if
the file number correlation is clear. If the original negative is
nitrate, unstable acetate, or glass based, a duplicate negative on a
polyester base is also needed.
(2) For color photographs, the original color negative, color
transparency, or color slide; a captioned print of the original color
negative; and/or captioning information as described above if for an
original color transparency or original color slide; and a duplicate
negative, or slide, or transparency, if they exist.
(3) For slide sets, the original and a reference set, and the
related audio recording and script.
(4) For other pictorial records such as posters, original art work,
and filmstrips, the original and a reference copy.
(c) Sound recordings. (1) Disc recordings:
(i) For conventional disc recordings, the master tape and two disc
pressings of each recording, typically a vinyl copy for playback at
33\1/3\ revolutions per minute (rpm).
(ii) For compact discs, the origination recording regardless of
form and two compact discs.
(2) For analog audio recordings on magnetic tape (open reel,
cassette, or cartridge), the original tape, or the earliest available
generation of the recording, and a subsequent generation copy for
reference. Section 1232.30(d) of this subchapter requires the use of
open-reel analog magnetic tape for original audio recordings.
(d) Video recordings. (1) For videotape, the original or earliest
generation videotape and a copy for reference. Section 1232.30(c) of
this subchapter requires the use of industrial-quality or professional
videotapes for use as originals, although VHS copies can be transferred
as reference copies.
(2) For video discs, the premaster videotape used to manufacture
the
[[Page 32337]]
video disc and two copies of the disc. Video discs that depend on
interactive software and nonstandard equipment may not be acceptable
for transfer.
(e) Finding aids and production documentation. The following
records shall be transferred to the National Archives with the
audiovisual records to which they pertain.
(1) Existing finding aids such as data sheets, shot lists,
continuities, review sheets, catalogs, indexes, list of captions, and
other documentation that are helpful or necessary for the proper
identification, or retrieval of audiovisual records. Agencies should
contact the Nontextual Archives Division, or its appropriate
audiovisual branch, to determine the type of hardware and software that
is currently acceptable for transfer to the National Archives as an
agency electronic finding aid that will accompany its audiovisual
records. In general, however, agencies must transfer two copies of the
electronic finding aid, one in its native format with its field
structure documented, and a second copy in a contemporary format
available at the time of transfer that NARA will be able to support and
import to its database.
(2) Production case files or similar files that include copies of
production contracts, scripts, transcripts, and appropriate
documentation bearing on the origin, acquisition, release, and
ownership of the production.
3. Part 1232 is revised to read as follows:
PART 1232--AUDIOVISUAL RECORDS MANAGEMENT
Subpart A--General
Sec.
1232.1 Applicability and scope.
1232.2 Objectives.
1232.10 Definitions.
Subpart B--Audiovisual Records Management
1232.20 Agency program responsibilities.
1232.22 Nitrocellulose film.
1232.24 Unstable cellulose-acetate film.
1232.26 Storage conditions.
1232.28 Maintenance and operations.
1232.30 Choosing formats.
1232.32 Disposition.
Authority: 44 U.S.C. 2904 and 3101; and OMB Circular A-130.
Subpart A--General
Sec. 1232.1 Applicability and scope.
This part prescribes policies and procedures for managing
audiovisual records to ensure adequate and proper documentation and
authorized, timely, and appropriate disposition.
Sec. 1232.2 Objectives.
The objectives of audiovisual records management are to achieve the
effective creation, maintenance, use, and disposition of audiovisual
and related records by establishing standards for maintenance and
disposition, physical security, and preservation and by reviewing
recordkeeping practices on a continuing basis to improve procedures.
Sec. 1232.10 Definitions.
For the purposes of this part, the following definitions shall
apply (see also Sec. 1220.14 of this chapter for other definitions).
Audiovisual. Any pictorial or aural means of communicating
information.
Audiovisual equipment. Equipment used for recording, producing,
duplicating, processing, broadcasting, distributing, storing or
exhibiting audiovisual materials or for providing any audiovisual
services.
Audiovisual production. An organized and unified presentation,
developed according to a plan or script, containing visual imagery,
sound, or both, and used to convey information. An audiovisual
production generally is a self-contained presentation. Audiovisual
productions may include motion media with synchronous sound such as
motion picture film, videotape or other video formats, audio
recordings, and other media such as synchronized audio and visual
presentations such as multimedia productions.
Audiovisual records. Records in pictorial or aural form that
include still and motion media, sound recordings, graphic works, mixed
media, and related finding aids and production files.
Subpart B--Audiovisual Records Management
Sec. 1232.20 Agency program responsibilities.
Each Federal agency, in providing for effective controls over the
creation of records, shall establish an appropriate program for the
management of audiovisual records. This program shall be governed by
the following requirements:
(a) Prescribe the types of records to be created and maintained so
that audiovisual activities and their products are properly documented.
(Regulations on the appropriate types of permanent audiovisual records
are located in Sec. 1228.184 of this chapter.)
(b) Ensure that adequate training is provided to:
(1) Agency personnel responsible for the disposition of audiovisual
records;
(2) Contractor personnel who have temporary custody of audiovisual
records; and,
(3) All users who create, handle, or maintain audiovisual records
or operate equipment for their use.
(c) Ensure that contract provisions protect the Government's legal
title and control over audiovisual records and related documentation
produced or maintained by contract. Ensure that contract provisions
identify as deliverables any working papers/files that are needed for
adequate and proper documentation. Include a provision that permits the
Government to inspect contractor facilities used for the storage and
handling of permanent or unscheduled audiovisual records. Agencies
shall inspect such facilities at least once each year.
(d) Keep inventories indicating the location of all generations of
audiovisual records, whether in agency storage or in another facility
such as a laboratory or library distribution center.
(e) Schedule disposition of all audiovisual records as soon as
practicable after creation. General Records Schedule 21 provides
mandatory disposal authorization for temporary audiovisual records
common to most Federal offices. Agencies must submit an SF 115, Request
for Records Disposition Authority, to NARA to obtain authorization for
the disposition of all other audiovisual records. The schedules
covering permanent records must specify the different record elements
identified in Sec. 1228.184, and must always include related finding
aids.
(f) Periodically review agency audiovisual recordkeeping practices
for conformance with requirements and take necessary corrective action.
Sec. 1232.22 Nitrocellulose film.
Nitrocellulose-base film once used in the manufacture of sheet film
and motion pictures may be occasionally found in records storage areas.
The nitrocellulose base, a substance akin to gun cotton, is chemically
unstable and highly inflammable.
(a) Agencies must remove nitrocellulose film materials from records
storage areas.
(b) Agencies must immediately notify NARA about the existence of
nitrocellulose film materials because of their age and instability.
NARA will determine if they may be destroyed or destroyed after a copy
is made for transfer, as appropriate.
(c) If NARA appraises nitrate film materials as disposable, but the
agency wishes to retain them, agencies must follow the guidance in NFPA
40-1994,
[[Page 32338]]
Standard for the Storage and Handling of Cellulose Nitrate Motion
Picture Film, which is incorporated by reference. NFPA 40-1994 is
available from the National Fire Protection Association, Batterymarch
Park, Quincy, MA 02269. This standard is also available for inspection
at the Office of the Federal Register, 800 North Capitol Street, NW.,
suite 700, Washington, D.C. This incorporation by reference was
approved by the Director of the Federal Register in accordance with 5
U.S.C. 552(a) and 1 CFR part 51. These materials are incorporated by
reference as they exist on the date of approval and a notice of any
change in these materials will be published in the Federal Register.
(d) The packing and shipping of nitrate film are governed by the
following Department of Transportation regulations: 49 CFR 172.101,
Hazardous materials table; 172.504, Transportation; 173.24, Standard
requirements for all packages; and 173.177, Motion picture film and X-
ray film--nitrocellulose base.
Sec. 1232.24 Unstable cellulose-acetate film.
Cellulose-acetate film, also known as safety film, is nonflammable
and does not represent the same degree of hazard as nitrate film
materials. Nonetheless, cellulose-acetate film also deteriorates over
time. Temperature, humidity, harmful storage enclosures, and gaseous
products influence the rate of deterioration. Agencies shall inspect
cellulose-acetate film periodically for an acetic odor, wrinkling, or
the presence of crystalline deposits on the edge or surface of the film
that indicate deterioration. Agencies shall notify NARA within 30 days
after inspection about deteriorating permanent or unscheduled
audiovisual records composed of cellulose acetate so that they can be
copied.
Sec. 1232.26 Storage conditions.
Agencies must:
(a) Provide audiovisual records storage facilities that are secure
from unauthorized access and make them safe from fire, water, flood,
chemical or gas damage and from other harmful conditions. See NFPA
232A-1995, Guide for Fire Protection for Archives and Records Centers
issued by the National Fire Protection Association, which is
incorporated by reference. The standard is available from the National
Fire Protection Association, Batterymarch Park, Quincy, MA 02269. This
standard is also available for inspection at the Office of the Federal
Register, 800 North Capitol Street, NW., suite 700, Washington, D.C.
This incorporation by reference was approved by the Director of the
Federal Register in accordance with 5 U.S.C. 552(a) and 1CFR part 51.
These materials are incorporated by reference as they exist on the date
of approval and a notice of any change in these materials will be
published in the Federal Register.
(b) Maintain good ambient storage conditions for permanent or
unscheduled audiovisual records. Generally, the temperature should not
exceed 70 degrees Fahrenheit and relative humidity should be maintained
between 30-40% and not exceed 50%. Avoid fluctuating temperatures and
humidity. Cooler temperatures and lower relative humidity are
recommended for the storage of all film, to prolong the useful life of
the film base and image. Cold temperatures combined with 30-35%
relative humidity are especially recommended to retard the fading of
color film. Optimal environmental conditions are stated in ANSI/NAPM
IT9.11-1993, Imaging Media-- Processed Safety Photographic Films--
Storage. If possible store all permanently scheduled records in these
conditions, and schedule them to be transferred to the National
Archives as soon as possible.
(c) For the storage of permanent or unscheduled records, use
audiovisual storage containers or enclosures made of noncorroding
metal, inert plastics, paper products and other safe materials
recommended and specified in ANSI standards: ANSI/NAPM IT9.11-1993,
Imaging Media--Processed Safety Photographic Films--Storage; and ANSI
IT9.2-1991, Imaging Media--Photographic Processed Films, Plates, and
Papers--Filing Enclosures and Storage Containers. These standards,
which are incorporated by reference, are available from the American
National Standards Institute (ANSI), Inc., 11 West 42nd Street, New
York, NY 10036. These standards are also available for inspection at
the Office of the Federal Register, 800 North Capitol Street, NW.,
suite 700, Washington, D.C. This incorporation by reference was
approved by the Director of the Federal Register in accordance with 5
U.S.C. 552(a) and 1 CFR part 51. These materials are incorporated by
reference as they exist on the date of approval and a notice of any
change in these materials will be published in the Federal Register.
(d) Store originals and use copies (e.g., negatives and prints)
separately, whenever practicable.
(e) Store series of permanent and unscheduled x-ray films in
accordance with this section, and store series of temporary x-ray films
under conditions that will ensure their preservation for their full
retention period, in accordance with ANSI/NAPM IT9.11-1993, Imaging
Media--Processed Safety Photographic Films--Storage. This requirement
does not apply to x-rays that are interspersed among paper records, as
in case files.
Sec. 1232.28 Maintenance and operations.
Agencies must:
(a) Handle audiovisual records in accordance with commonly accepted
industry practices because of their extreme vulnerability to damage.
For further information, consult the American National Standards
Institute (ANSI), Inc., 11 West 42nd Street, New York, NY 10036; and
the Society of Motion Picture and Television Engineers, 595 West
Hartsdale Avenue, White Plains, NY 10607.
(b) Use only personnel trained to perform their audiovisual duties
and responsibilities and ensure that equipment intended for projection
or playback is in good working order.
(c) Loan permanent or unscheduled audiovisual records to non-
Federal recipients only in conformance with the provisions of part 1228
subpart E of this chapter. Such records may be loaned to other Federal
agencies only if a record copy is maintained in the agency's custody.
(d) Take all steps necessary to prevent accidental or deliberate
alteration or erasure of audiovisual records.
(e) Ensure that no information recorded on permanent or unscheduled
magnetic sound or video media is erased.
(f) If different versions of audiovisual productions (e.g., short
and long versions or foreign-language versions) are prepared, keep an
unaltered copy of each version for record purposes.
(g) Maintain the association between audiovisual records and the
finding aids for them, such as captions and published and unpublished
catalogs, and production files and similar documentation created in the
course of audiovisual production.
(h) Maintain disposable audiovisual records separate from permanent
ones in accordance with General Records Schedule 21 and a records
schedule approved by NARA for the agency's other audiovisual records.
Sec. 1232.30 Choosing formats.
Agencies must:
(a) When ordering photographic materials for permanent or
unscheduled records, ensure that still picture negatives and motion
picture preprints (negatives, masters, etc.) are composed
[[Page 32339]]
of polyester bases and are processed in accordance with industry
standards as specified in ANSI/ISO 543-1990 (ANSI IT9.6-1991)
Photography-- Photographic Films--Specifications for Safety Film; and,
ANSI/NAPM IT9.1-1992 Imaging Media (Film)--Silver-Gelatin Type--
Specifications for Stability, which are incorporated by reference.
(Currently, not all motion picture stocks are available on a polyester
base.) It is particularly important to ensure that residual sodium
thiosulfate (hypo) on newly processed black-and-white photographic film
does not exceed .014 grams per square meter. Require laboratories to
process film in accordance with this standard. Excessive hypo will
shorten the longevity of film and accelerate color fading. Process
color film in accordance with the manufacturer's recommendations. If
using reversal type processing, request full photographic reversal;
i.e., develop, bleach, expose, develop, fix, and wash. The standards
cited in this paragraph are available from the American National
Standards Institute (ANSI), Inc., 11 West 42nd Street, New York, NY
10036. These standards are also available for inspection at the Office
of the Federal Register, 800 North Capitol Street, NW., suite 700,
Washington, D.C. This incorporation by reference was approved by the
Director of the Federal Register in accordance with 5 U.S.C. 552(a) and
1 CFR part 51. These materials are incorporated by reference as they
exist on the date of approval and a notice of any change in these
materials be published in the Federal Register.
(b) Refrain from using motion pictures in a final ``A & B'' format
(two precisely matched reels designed to be printed together) for the
reproduction of excerpts or stock footage.
(c) Use only industrial or professional recording equipment and
videotape, previously unrecorded, for original copies of permanent or
unscheduled recordings. Limit the use of consumer formats to
distribution or reference copies or to subjects scheduled for disposal.
Video cassettes in the VHS format are unsuitable for use as originals
of permanent or unscheduled records due to their inability to be copied
without significant loss in image quality.
(d) Record permanent or unscheduled audio recordings on \1/4\-inch
open-reel tapes at 3 \3/4\ or 7 \1/2\ inches per second, full track,
using professional unrecorded polyester splice-free tape stock. Audio
cassettes, including mini-cassettes, are not sufficiently durable for
use as originals in permanent records or unscheduled records although
they may be used as reference copies.
Sec. 1232.32 Disposition.
The disposition of audiovisual records shall be carried out in the
same manner as that prescribed for other types of records in part 1228
of this chapter. For further instructions on the transfer of permanent
audiovisual records to the National Archives see Sec. 1228.184 of this
chapter, Audiovisual Records.
Dated: June 14, 1996.
John W. Carlin,
Archivist of the United States.
[FR Doc. 96-15797 Filed 6-21-96; 8:45 am]
BILLING CODE 7515-01-P
Complete official Federal Register PDF
FR Doc. 96-15793 Indian Self-Determination and Education Assistance Act Amendments
[Federal Register Volume 61, Number 122 (Monday, June 24, 1996)]
[Rules and Regulations]
[Pages 32482-32535]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15793]
[[Page 32481]]
_______________________________________________________________________
Part II
Department of the Interior
Bureau of Indian Affairs
Department of Health and Human Services
Indian Health Service
_______________________________________________________________________
25 CFR Part 900
Indian Self-Determination and Education Assistance Act Amendments;
Final Rule
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules
and Regulations
[[Page 32482]]
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Indian Health Service
25 CFR Part 900
RINs 1076-AD21; 0905-AC98
Indian Self-Determination and Education Assistance Act Amendments
AGENCIES: Departments of the Interior and Health and Human Services.
ACTION: Final rule.
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SUMMARY: The Secretaries of the Department of Interior (DOI) and the
Department of Health and Human Services (DHHS) hereby issue a joint
rule to implement section 107 of the Indian Self-Determination Act, as
amended, including Title I, Pub. L. 103-413, the Indian Self-
Determination Contract Reform Act of 1994. This joint rule, as required
by section 107(a)(2)(A)(ii) of the Act, will permit the Departments to
award contracts and grants to Indian tribes without the unnecessary
burden or confusion associated with having two sets of rules for single
program legislation. In section 107(a)(1) of the Act Congress delegated
to the Departments limited legislative rulemaking authority in certain
specified subject matter areas, and the joint rule addresses only those
specific areas. As required by section 107(d) of the Act, the
Departments have developed this final rule with active tribal
participation, using the guidance of the Negotiated Rulemaking Act.
DATES: This rule will become effective on August 23, 1996.
FOR FURTHER INFORMATION CONTACT: James Thomas, Division of Self-
Determination Services, Bureau of Indian Affairs, Department of the
Interior, Room 4627, 1849 C Street N.W., Washington, DC 20240,
Telephone (202) 208-5727 or Merry Elrod, Division of Self-Determination
Services, Office of Tribal Activities, Indian Health Service, Room 6A-
19, 5600 Fishers Lane, Parklawn Building, Rockville, MD 20857,
Telephone (301) 443-6840/1104/1044.
SUPPLEMENTARY INFORMATION: The 1975 Indian Self-Determination and
Education Assistance Act, Pub. L. 93-638, gave Indian tribes the
authority to contract with the Federal government to operate programs
serving their tribal members and other eligible persons. The Act was
further amended by the Technical Assistance Act and other Acts, Pub. L.
98-250; Pub. L. 100-202; Interior Appropriations Act for Fiscal Year
1988, Pub. L. 100- 446; Indian Self-Determination and Education
Assistance Act Amendments of 1988, Pub. L. 100-472; Indian
Reorganization Act Amendments of 1988, Pub. L. 100-581; miscellaneous
Indian Law Amendments, Pub. L. 101-301; Pub. L. 101-512; Indian Self-
Determination and Education Assistance Act Amendments of 1990, Pub. L.
101-644; Pub. L. 102-184; Pub. L. 103-138; Indian Self- Determination
Act Amendments of 1994, Pub. L. 103-413; and Pub. L. 103-435. Of these,
the most significant were Pub. L. 100-472 (the 1988 Amendments) and
Pub. L. 103-413 (the 1994 Amendments).
The 1988 Amendments substantially revised the Act in order ``to
increase tribal participation in the management of Federal Indian
programs and to help ensure long-term financial stability for tribally-
run programs.'' Senate Report 100-274 at 2. The 1988 Amendments were
also ``intended to remove many of the administrative and practical
barriers that seem to persist under the Indian-Self-Determination
Act.'' Id. at 2. In fashioning the amendments, Congress directed that
the two Departments develop implementing regulations over a 10-month
period with the active participation of tribes and tribal
organizations. In this regard, Congress delegated to the Departments
broad legislative rulemaking authority.
Initially the two Departments worked closely with Indian tribes and
tribal organizations to develop new implementing regulations,
culminating in a joint compromise September 1990 draft regulation
reflecting substantial tribal input. Thereafter, however, the two
Departments continued work on the draft regulation without any further
tribal input. The revised proposed regulation was completed under the
previous administration, and the current administration published the
proposed regulation (1994 NPRM) for public comment on January 20, 1994,
at 59 FR 3166. In so doing, the current administration expressed its
concern over the absence of tribal participation in the regulation
drafting process in the years following August 1990, and invited tribes
to review the 1994 NPRM closely for possible revisions.
Tribal reaction to the January 1994 proposed regulation was
extremely critical. Tribes, tribal organizations, and national Indian
organizations criticized both the content of the 1994 NPRM and its
length, running over 80 pages in the Federal Register. To address
tribal concerns in revising the proposed regulations into final form,
the Departments committed to establish a Federal advisory committee
that would include at least 48 tribal representatives from throughout
the country, and be jointly funded by the two Departments.
In the meantime, Congress renewed its examination into the
regulation drafting process, and the extent to which events since the
1988 amendments, including the lengthy and controversial regulation
development process, justified revisiting the Act anew. This
Congressional review eventually led to the October 1994 amendments.
(Similar efforts by tribal representatives to secure amendments to the
Act in response to the developing regulations had been considered by
Congress in 1990 and 1992.)
The 1994 amendments comprehensively revisit almost every section of
the original Act, including amending the Act to override certain
provisions in the January 1994 NPRM. Most importantly for this new
NPRM, the 1994 amendments also remove Congress' prior delegation to the
Departments of general legislative rulemaking authority. Instead, the
Departments' authority is strictly limited to certain areas, a change
explained in the Senate report that accompanied the final version of
the bill:
Section 105 of the bill addresses the Secretaries' authority to
promulgate interpretative regulations in carrying out the mandates
of the Act. It amends section 107 (a) and (b) of the Act by limiting
the delegated authorization of the Secretaries to promulgate
regulations. This action is a direct result of the failure of the
Secretaries to respond promptly and appropriately to the
comprehensive amendments developed by this committee six years ago.
* * * * *
Section 105(l) amends section 107(a) by delegating to the
Secretary the authority only to promulgate implementing regulations
in certain limited subject matter areas. By and large these areas
correspond to the areas of concern identified by the Departments in
testimony and in discussions. Beyond the areas specified in
subsection (a) * * * no further delegated authority is conferred.
Sen. Rep. No. 103-374 at 14. For this reason, the new rule covers
substantially fewer topics than the January 1994 NPRM.
As specified by Congress, the new rule is limited to regulations
relating to chapter 171 of title 28 of the United States Code, commonly
known as the ``Federal Tort Claims Act;'' the Contract Disputes Act of
1978 (41 U.S.C. 601 et seq.); declination and waiver procedures; appeal
procedures; reassumption procedures; discretionary grant procedures for
grants awarded
[[Page 32483]]
under section 103 of the Act; property donation procedures arising
under section 105(f) of the Act; internal agency procedures relating to
the implementation of this Act; retrocession and tribal organization
relinquishment procedures; contract proposal contents; conflicts of
interest; construction; programmatic reports and data requirements;
procurement standards; property management standards; and financial
management standards. All but three of these permitted regulatory
topics--discretionary grant procedures, internal agency procedures, and
tribal organization relinquishment procedures--are addressed in this
rule.
The 1994 amendments also required that, if the Departments elected
to promulgate regulations, the Departments must use the notice and
comment procedures of the Administrative Procedure Act, and must
promulgate the regulations as a single set of regulations in title 25
of the Code of Federal Regulations. Section 107(a)(2). Finally, the
1994 amendments required that any regulations must be developed with
the direct participation of tribal representatives using as a guide the
Negotiated Rulemaking Act of 1990. This latter requirement is also
explained in the accompanying Senate Report:
To remain consistent with the original intent of the Act and to
ensure that the input received from the tribes and tribal
organizations in the regulation drafting process is not disregarded
as has previously been the case, section 107 also has been amended
by adding a new subsection (d), requiring the Secretaries to employ
the negotiated rulemaking process.
Sen. Rep. No. 103-374 at 14. As a result of the October 1994
amendments and earlier initiatives previously discussed, the
Departments chartered a negotiated rulemaking committee under the
Federal Advisory Committee Act. The committee's purpose was to develop
regulations that implement amendments to the Act.
The advisory committee had 63 members. Forty-eight of these members
represented Indian tribes--two tribal members from each BIA area and
two from each IHS area. Nine members were from the Department of the
Interior and six members were from the Department of Health and Human
Services. Additionally, four individuals from the Federal Mediation and
Conciliation Service served as facilitators. The committee was co-
chaired by four tribal representatives and two Federal representatives.
While the committee was much larger than those usually chartered under
the Negotiated Rulemaking Act, its larger size was justified due to the
diversity of tribal interests and programs available for contracting
under the Act.
In order to complete the regulations within the statutory
timeframe, the committee divided the areas subject to regulation among
six working groups. The workgroups made recommendations to the
committee on whether regulations in a particular area were desirable.
If the committee agreed that regulations were desirable, the workgroups
developed options for draft regulations. The workgroups presented their
options to the full committee, where the committee discussed them and
eventually developed the proposed regulations.
The first meeting of the committee was in April of 1995. At that
meeting, the committee established six workgroups, a meeting schedule,
and a protocol for deliberations. Between April and September of 1995,
the committee met five times to discuss draft regulations produced by
the workgroups. Each of these meetings generally lasted three days.
Additionally, the workgroups met several more times between April and
September to develop recommendations for the committee to consider.
The policy of the Departments was, whenever possible, to afford the
public an opportunity to participate in the rulemaking process. All of
the sessions of the committee were announced in the Federal Register
and were open to the public.
The Departments published draft regulations in a Notice of Proposed
Rulemaking in the Federal Register on January 24, 1996, at 61 FR 2038.
(1996 NPRM) In the 1996 NPRM, the Departments invited the public to
comment on the draft provisions. In addition, the Departments outlined
five areas in which the Committee had not yet reached consensus and
asked for public comments specifically addressing those topics.
Ultimately, the Departments received approximately 76 comments from
Indian tribes and tribal organizations, addressing virtually every
aspect of the proposed regulation. The full committee reconvened in
Denver between April 29, 1996 and May 3, 1996 to review the comments,
to evaluate changes suggested by the comments, and to approve final
regulatory language.
As a result of that meeting, the full committee was able to
transmit a report to the Secretaries which included consensus
regulatory language on all but four issues: internal agency procedures;
contract renewal proposals; conflicts of interest; and construction
management services. Tribal and Federal representatives prepared non-
consensus reports on these four issues, which were submitted to the
Secretaries for a decision. One additional question arose, pertaining
to Sec. 900.3(b)(11) of the regulation, and that was also referred to
the Secretaries. On May 23, 1996 a delegation of tribal representatives
met with the Chiefs of Staff of the two departments to present the
tribal view of the unresolved issues. Decisions have been made based
upon the arguments presented at that meeting, and the regulation
incorporates those decisions.
The Departments commend the ability of the committee to cooperate
and develop a rule that addresses the interests of the tribes and the
Federal agencies. This negotiated rulemaking process has been a model
for developing successful Federal and tribal partnerships in other
endeavors. The consensus process allowed for true bilateral
negotiations between the Federal government and the tribes in the best
spirit of the government-to-government relationship.
In developing regulatory language, consensus was reached on the
regulations which follow under subparts ``A'' through ``P''. In
addition, at the request of tribal and Federal representatives, the
Secretaries agreed to publish additional introductory materials under
subpart ``A.''
Summary of Regulations and Comments Received
The narrative and discussion of comments below is keyed to specific
subparts of the rule. Matters addressed under the heading ``Key Areas
of Disagreement'' in the Notice of Proposed Rulemaking are discussed
under the appropriate Subpart.
Subpart A--Policy
Summary of Subpart
This subpart contains key congressional policies contained in the
Act and adds several Secretarial policies that will guide the
Secretaries' implementation of the Act.
A number of comments recommended that the statement that tribal
records are exempt from disclosure under the Freedom of Information Act
(Sec. 900.2(d)) be further explained to include annual audit reports
prepared by tribal contractors and tribal records archived by the
Federal government. The suggestion regarding archived tribal records
has been adopted. However, section 7502(f) of the Single Audit Act of
1984, 31 U.S.C. 7502(f), and OMB Circular No. A-128, Audits of State
and Local Governments, subparagraph 13(e), state that single audit
reports shall be available for public inspection within
[[Page 32484]]
30 days after the completion of the audit. Therefore, these audit
reports are available for public inspection.
Numerous comments expressed concern over the nonapplicability of
the Privacy Act to tribal medical records, in section 900.2(e).
Although section 108(b) of the Act is binding in this respect, Subpart
C (Sec. 900.8) has been amended to address the confidentiality of
medical records. Indian Tribes and tribal organizations remain free to
adopt their own confidentiality procedures, including procedures that
are similar to Privacy Act procedures.
A large number of comments urged that the NPRM be amended to
include a Secretarial policy to interpret Federal laws and regulations
in a manner that will facilitate the inclusion of programs in contracts
authorized by the Act. In response to these comments, the Committee has
added the language in Secretarial policy statement in Sec. 900.3(b)(8).
This policy is not intended to limit in any manner the scope of
programs, functions, services or activities that are contractible under
section 102(a)(1) of the Act.
Discussion of Comments
Several comments recommended that various policy statements be
clarified to reflect the congressional policy that funds for programs,
services, functions and activities are transferred to tribal
contractors when contracts are awarded under the Act. These comments
have been adopted and appropriate changes made to Sec. 900.3(a)(4),
Sec. 900.3(b)(4) and Sec. 900.3(b)(9).
One comment found the last two words of Sec. 900.3(a)(8) confusing
due to the inclusion of the words ``as appropriate.'' In response,
these words have been deleted in the final rule.
Several comments recommended that the phrase ``and for which funds
are appropriated by Congress'' be deleted from the Secretarial policy
statement set forth in Sec. 900.3(b)(1). The Committee agreed and
deleted this phrase in the final rule.
The Committee revised 900.3(b)(7) (referring to the scope of
programs that are contractible under the Act) to be consistent with the
new policy set forth in 900.3(b)(8).
Several comments urged that Sec. 900.d(b)(9) be amended to
articulate more clearly the Secretaries' duty to commence planning for
the transfer of programs to tribal operation immediately upon receipt
of a contract proposal. In response to the comments, Sec. 900.3(b)(9)
has been revised.
A large number of comments urged that the provision regarding
Federal program guidelines, manuals, or policy directives set forth in
Sec. 900.5 of the NPRM be revised to refer more generally to any
unpublished requirements. In response to these comments, Sec. 900.5 has
been revised in the final rule.
Some comments urged that language be included to identify the
inherent Federal functions that cannot lawfully be carried out by an
Indian tribe or tribal organization, and that therefore may not be
contracted under the Act. The Committee did not adopt these comments
due to the subject-matter limitations on its rulemaking authority set
forth in section 107(a)(1) of the Act. Similarly, the Committee did not
address comments relating to the appropriate uses of program income
generated under the Federal Medicare and Medicaid programs.
One comment expressed concern regarding the absence of clear
provisions for tribal participation in the administration of Federal
Indian programs. No change was made as this concern is already dealt
with in Sec. 900.3(a)(1).
One comment recommended that the Secretary adopt a policy that
Indian tribes participate in the development of the budgets of agencies
other than the Indian Health Service and the Bureau of Indian Affairs.
The Committee did not adopt this proposal due to the subject-matter
limitation set forth in section 107(a)(1) of the Act, and the
limitation in section 106(I) of the Act regarding tribal participation.
One comment urged that the Secretarial policy regarding tribal
participation in budgetary matters set forth in Sec. 900.3(b)(6) be
more clearly articulated as a mandatory duty. Nothing in the new
regulation is intended to change the Department's current consultation
requirements. Accordingly, no change was made in the text of the
regulation.
A few comments urged that the phrase ``for the benefit of Indians
because of their status as Indians'' or the phrase ``for the benefit of
Indians'' be further defined in the regulation. The Committee rejected
suggestions that the concept of ``contractibility'' be further explored
in the regulations due to the specific subject-matter limitations of
section 107(a)(1) of the Act.
Subpart B--Definitions
Summary of Subpart
Subpart B sets forth definitions for key terms used in the balance
of the regulations. Terms unique to one subpart are generally defined
in that subpart, rather than in subpart B.
Summary of Comments
In response to one comment regarding the term ``awarding official''
the definition has been revised and an additional sentence added to
make clear that an ``awarding official'' need not necessarily be a
warranted contracting officer. Who the awarding official is in a
particular situation will depend on to whom the Secretary has delegated
authority to award the contract.
In response to comments regarding the scope of Subpart C (which
deals with ``initial contract proposals''), the term ``initial contract
proposal'' has been added as a new definition in the final rule. The
definition clarifies that the requirements for an ``initial contract
proposal'' do not apply to other proposals such as proposals to renew
contracts governing programs, services, functions or activities that
are already under tribal operation.
In response to one comment regarding the procedural aspects of
reassumption, the definition of ``reassumption'' has been revised to
refer the reader to the notice and other procedures set forth in
Subpart P.
One comment requested that the term ``Indian tribe'' be revised.
The Committee rejected the comment in favor of the definition of this
term already set forth in the statute and repeated in Sec. 900.6 of the
final rule.
Two comments urged that the Secretary add a new definition of the
term ``consultation'' to establish a framework for this activity. The
Committee rejected this proposal as beyond the scope of subjects which
may be regulated under section 107(a)(1) of the Act. Similarly, the
Committee rejected requests that the regulations include a definition
of ``trust responsibility.''
In the NPRM, the public was invited to comment on the disagreement
within the Committee regarding the development of internal agency
procedures. Specifically, as noted in 61 FR at 2039-2040, tribal
representatives on the Committee urged that internal agency procedures
be developed in precisely the same fashion as other regulations
implementing the Indian Self-Determination Act Amendments of 1994,
through the use of the negotiated rulemaking process. Federal
representatives on the Committee supported instead a joint tribal and
Federal commitment to work together to generate a procedural manual
which would promote the purposes underlying the Act and facilitate
contracting by Indian tribes and tribal organizations. The Federal
committee members proposed committing to a firm timeline
[[Page 32485]]
within which to produce such a manual. Further, the Federal Government
committed to ``meaningful consultation'' throughout the manual
development process.
The Departments received many comments from tribal representatives
addressing the issue of internal agency procedures as a subject for
negotiated rulemaking. Those comments consistently supported the tribal
proposal to include a Subpart in the regulation concerning internal
agency procedures.
Many of the comments indicated a belief that all internal agency
procedures under which Indian tribes and tribal organizations exercise
their self-determination should be promulgated by negotiated
rulemaking. Those comments cited sections 107 (a) and (d) of the Act as
authority for their recommendation.
Tribal representatives also indicated a concern that absent formal
rulemaking, Federal agencies might use internal procedures to
circumvent the policies underlying the Act, thwarting the intent to
simplify the contracting process and free Indian tribes from excessive
Federal control. Two comments suggested that negotiating rulemaking
procedures will ensure that Federal agencies would be bound to follow
uniform procedures to implement and interpret the Act and the
regulations.
Two other comments wanted the regulation to state explicitly that
the Secretaries lack authority to interpret the meaning or application
of any provision of the Act or the regulations. Tribal representatives
feared that a myriad of letters containing policy statements and
correspondence interpreting reporting requirements would result if
internal agency procedures are not tied to formal rulemaking.
In response to the Federal proposal as detailed in the NPRM,
several comments stated that it would not be acceptable to develop a
manual in a setting which is less formal and structured than a
negotiated rulemaking committee. In addition, comments objected that
developing such a manual after the publication of a final regulation
would violate the mandatory deadline imposed on the Secretaries by
Congress.
Several comments were suspicious of the government's commitment to
seek tribal consultation on internal agency procedures. They stated
that consultation alone would be insufficient to ensure that Indian
tribes and tribal organizations are accorded the full benefits of the
Act. Without full and active participation, one comment stated, Indian
tribes would be in the position of attempting to change decisions made
in advance by Federal agencies.
The Departments agree to an enhanced consultation process in
developing procedures that do not involve resource allocation issues.
Features of this enhanced process could include facilitation by
professional facilitators, consensus decision-making, opportunity for
comment by tribal entities, and reporting of decisions to the
Secretaries. The Departments will convene a meeting to begin this
process within sixty days of the regulations becoming effective.
Subpart C--Contract Proposal Contents
Summary of Regulation
Subpart C contains provisions relating to initial contract proposal
contents. In this area, the committee opted to have minimal
regulations. Subpart C consists of a checklist of 13 items that must be
addressed in a proposal. In addition, the regulation contains a
provision relating to the availability of technical assistance to
assist Indian tribes and tribal organizations in preparing a contract
proposal, and a provision relating to the identification of Federal
property that the tribe or tribal organization intends to use during
contract performance.
Summary of Comments
Several comments recommended amending Sec. 900.7 to permit the
Secretary to provide technical assistance funding in addition to
technical assistance. To reflect the concerns the two sentences were
added at the end of the section. The first sentence authorizes the
Secretary to make technical assistance grants, and the second
authorizes an Indian tribe or tribal organization to request
reimbursement of pre-award costs for obtaining technical assistance
under the Act.
One comment recommended the insertion of objective standards in
Sec. 900.7 to measure the authenticity of a claim that technical
assistance cannot be provided due to the availability of
appropriations. This recommendation was not adopted because the
provision that technical assistance be subject to the availability of
appropriations comes directly from Section 103(d) of the Act. In
addition, it is clear that if qualified agency personnel are available,
technical assistance will be provided to prepare an initial contract
proposal.
Several comments recommended deleting the word ``must'' and
inserting the word ``should'' in the first sentence of Sec. 900.8. This
recommendation was not adopted because the proposal requirements in
this subsection represent the minimum amount of information required
for the Departments to approve a proposal.
Several comments generally objected to Sec. 900.8 on the grounds
that it requires the production of information that the Federal
Government has no right to know, or that is in excess of statutory
requirements. Although some modifications were made to Sec. 900.8 in
response to comments, it is the consensus of the Committee that the
information included in the final version of Sec. 900.8 is necessary to
protect Indian tribes or tribal organizations, or because it is
essential information required by the Departments in order to be able
to review or decline a contract proposal, to determine whether any of
the statutory declination criteria exist.
A number of comments expressed concern that Sec. 900.8(d) does not
clearly bar the Secretary from revising service area boundaries over
the objections of tribes located in an established service area. This
recommendation was not adopted because it is the intent of this
provision for the applicant to define the service area. This specific
provision was debated at length by the Negotiated Rulemaking Committee,
and the proposed regulatory provision in Sec. 900.8(d) is the
compromise agreed to by consensus of the Committee.
In response to a comment, the words ``an identification'' were
deleted from Sec. 900.8(e), and replaced with the words ``the name,
title,'' for clarification purposes.
In response to a comment, the words ``a description'' were deleted
from Sec. 900.8(g)(3), and replaced with the words ``an
identification'' for clarification purposes.
In response to a comment, Sec. 900.8(g)(7) was amended to read
``minimum staff qualifications proposed by the Indian tribe or tribal
organization, if any'' for clarification purposes.
In response to several comments objecting to the requirement in
Sec. 900.8(g)(4) that financial, procurement, and property management
standards be included in the proposal, reference to these standards was
deleted from this subsection, and a new subsection (g)(8) was added to
require a statement that the Indian tribe or tribal organization meet
minimum procurement, property, and financial management standards set
forth in Subpart F, subject to waivers that may have been granted under
Subpart K.
In response to several comments requesting that the words ``tribal
shares'' be defined, Sec. 900.8(h)(1) was modified by removing these
words and inserting
[[Page 32486]]
``the Indian tribe or tribal organization's share of funds.''
In response to a comment, Sec. 900.8(h)(2) was amended by including
the word ``start-up'' after the word ``one-time'' to make this section
consistent with the Act.
Several comments objected to the use of the word ``budget'' in
Sec. 900.8(h), and to the level of detail required under this
subsection. This subsection was redrafted to delete the word ``budget''
wherever it appears, and replace it with ``amount of funds requested''
or ``funding request.'' In addition, Secs. 900.8(h)(1) (i), (ii), and
(iii) were deleted.
In response to a comment that the information sought in
Sec. 900.8(h)(5) was unnecessary, this subsection was redrafted for
clarification purposes, and the words ``[a]t the option of the Indian
tribe or tribal organization'' were added at the beginning of the
subsection.
A new subparagraph (m) was added to Sec. 900.8 to provide that in
its contract proposal, an Indian tribe or tribal organization must
state that it will implement procedures appropriate to the program
being contracted to assure the confidentiality of information relating
to the financial affairs of individual Indians obtained under a
proposed contract, and of medical records, or as otherwise required by
law. While tribal comments objected to the imposition of regulatory
procedures on confidentiality of personal financial information, many
comments were received from Indian tribes indicating a concern that the
confidentiality of personal medical records in the hands of tribal
contractors be preserved, notwithstanding the opinion of DHHS Office of
General Counsel that the Privacy Act does not apply to such records.
The provision for such an assurance with respect to personal financial
information resulted from a compromise in the Committee between the
Federal and tribal positions.
In response to a comment suggesting that Indian tribes or tribal
organizations should receive a list of Federal property used in
carrying out programs to be contracted, a new question and answer were
added immediately preceding Sec. 900.10. In response to a comment, this
new section also includes a requirement that the condition of the
property be described.
In response to a comment, Sec. 900.11(a)(4) was modified to add the
words ``real and personal'' before the word ``property'' for
clarification purposes.
Several comments requested clarification regarding whether the
contract proposal becomes part of the contract document. In response, a
new question and answer were added to clarify that the contract
proposal becomes part of the final contract only by mutual agreement of
the parties.
Several comments suggested that Subpart C be clarified to address
what is contractible and what is inherently Federal and thus residual.
The Committee did not adopt the suggestion. Federal agency decisions
regarding residual functions are subject to the appeals process.
Subpart D--Review and Approval of Contract Proposals
Summary of Regulation
Although this topic is part of the declination process, it has been
pulled out for separate treatment to facilitate a clearer understanding
of the entire contracting process. In this area, the committee opted to
have minimal regulations. This subpart details what the Secretary must
do upon receiving a contract proposal, the time frames applicable to
Secretarial review, how the 90-day review period can be extended, and
what happens if a proposal is not declined within the 90-day period.
Summary of Comments
One comment indicated that the word ``Secretary'' in this Subpart
does not define where the proposal should actually be submitted.
Subpart B defines the word ``Secretary'' to include either Secretary or
their delegates. It is clear that a proposal should therefore be
submitted to the agency with jurisdiction over the program to be
contracted, i.e., the Bureau of Indian Affairs, the Indian Health
Service, the Bureau of Land Management, the National Park Service, etc.
A comment suggested amending Sec. 900.15(a) to require the
Secretary to return any proposal lacking the required authorizing
resolution(s) to the applicant without further action. This suggestion
was not adopted because Sec. 900.15(b) requires that the applicant be
notified of any missing information. It should be clear, however, that
Section 102(a)(2) of the Act only requires the Secretary to consider a
proposal if ``so authorized by an Indian tribe'' pursuant to the tribal
resolution required under Section 102(a)(1) of the Act. Therefore,
although technically outside of the enumerated declination criteria in
Section 102(a)(2) of the Act, it is also clear that the Act precludes
the approval of any proposal and award of any self-determination
contract absent an authorizing tribal resolution.
Several comments requested that the 15-day timeframe in Sec. 900.15
be cut to 10 days. This suggestion was not adopted because 15 days are
needed to evaluate the application. The word ``request'' was added
before the words ``that the items'' in this subsection for
clarification purposes, and in response to several comments.
Several comments expressed concerns with the failure of this
Subpart to specify what happens when a proposal is approved. The
comments recommended addressing the award and funding of the contract.
In response to these concerns, the question and the answer in
Sec. 900.16 were amended to reflect that the award of the contract
occurs upon approval of the proposal. Also, the committee added the
words ``and add to the contract the full amount of funds pursuant to
Sec. 106(a) of the Act'' were added at the end of Sec. 900.18. Also, a
new section was added to explain what happens when a proposal is
approved.
One comment suggested adding a provision in Sec. 900.18 to provide
that costs incurred after the 90-day period be deemed allowable costs
under the contract and be reimbursed. This suggestion was not adopted
because it is beyond the scope of this Subpart.
A comment inquired whether the 90-day period continues to run if
the Indian tribe is notified that there are missing items, or whether
the 90-day period starts only when there is a complete proposal. The
regulation in Sec. 900.15(b) requires the Secretary to notify the
applicant of any missing items, and to request the applicant to furnish
these items within 15 days. If the applicant fails to submit the
missing items altogether, the Secretary must either approve or decline
the proposal that was received within 90 days of receipt. Similarly, if
the applicant submits the missing items within the 15-day deadline, the
90-day period continues to run from the time of receipt of the original
proposal.
Subpart E--Declination Procedures
Summary of Subpart
This subpart implements sections 102 (a)(2), (a)(4), (b) and (d) of
the Act. It restates the statutory grounds for declining a contract
proposal, clarifies that a proposal cannot be declined based on any
objection that will be overcome through the contract, and details
procedures applicable for partial declinations. Subpart E also informs
Indian tribes and tribal organizations of the requirements the
Secretary must follow when a declination finding is made, contains
provisions for technical
[[Page 32487]]
assistance to Indian tribes and tribal organizations to avoid a
declination finding, and to overcome stated declination grounds after a
declination finding is made.
Summary of Comments
Several comments noted that the proposed regulations fail to
address the continuation of mature contracts, and recommended that this
issue be addressed. This recommendation was not adopted because there
is no statutory authority to issue regulations on the mature contract
process. In addition, the right to mature contracts is addressed in
Section 105(c)(1) of the Act and in the Model Contract under Section
108 of the Act. Continuation of any contract is also addressed in
Sec. 900.32 of the final rule.
One comment recommended that declination of construction contracts
be addressed in this Subpart. This recommendation was not adopted
because this issue is addressed in Sec. 900.123 of the final rule.
Several comments recommended a further explanation of the criteria
in Sec. 900.22. These comments were not adopted because it was decided
not to interpret the declination criteria in the regulation, but to
leave their interpretation to case-by-case adjudication.
One comment suggested adding an applicant's failure to submit the
single agency audit report and/or failure to correct prior audit
deficiencies as a declination ground in Sec. 900.22. This comment was
not adopted because there is no statutory authority to add declination
criteria to those specified in Section 102(a)(2) of the Act.
In response to a comment, the reference to Section 106 of the Act
in Sec. 900.26 was replaced with a reference to Section 102(a) of the
Act.
There were numerous comments objecting to the document disclosure
provisions in Sec. 900.27 of NPRM (now Sec. 900.29). In response to
these objections, Sec. 900.27(a) was amended to delete the words ``when
appropriate'' and replace them with the words ``within 20 days.'' In
addition, Sec. 900.27(c) was deleted in its entirety.
Several comments requested that the Secretary's burden of proof
when declining a proposal in Sec. 900.297(a) be changed to ``clear and
convincing evidence.'' This recommendation was not adopted because it
is different from the statutory burden of proof contained in Section
102(a)(2) of the Act.
A comment requested that the technical assistance to be provided in
Sec. 900.30 be clearly identified. This recommendation was not adopted
because the type of technical assistance required will vary with each
proposal. It is impossible to define generally the type of technical
assistance required for all proposals.
Pursuant to several comments, the word ``substantively'' was
deleted from two places in Sec. 900.32, and replaced by the word
``substantially.''
The Committee received several comments regarding the ability of
the BIA and other agencies of the Department of the Interior to review
contract renewal proposals for declination issues, where the renewal
proposal is substantially similar to the contract previously held by
that Indian tribe or tribal organization. In the past, as a matter of
practice, neither IHS nor the BIA has reviewed contract renewal
proposals for declination issues. Therefore, the Departments have
agreed that IHS and the BIA will not use the declination process in
contract renewals where there is no material or significant change to
the contract. However, as no past practice exists for the non-BIA
agencies within DOI, those agencies will have discretion to use the
declination process in appropriate contract renewal situations. The
regulatory language of Sec. 900.32 has been amended to reflect this
decision.
Subpart F--Standards for Tribal or Tribal Organization Management
Systems
Summary of Subpart
Indian self-determination contracts are unique agreements because,
by definition, they are not procurement contracts, discretionary grants
or cooperative agreements. This means that none of the usual
procurement or grant regulations apply to the management of the Federal
funds provided under these contracts. The absence of established
guidelines presented a special challenge to the committee to develop
standards which would assure appropriate stewardship of the Federal
funds and other assets being transferred through these contracts.
Deliberations on this issue led to the review of OMB Circular A-102 and
the Uniform Administrative Requirements for Grants and Cooperative
Agreements to State and Local Governments (the ``Common Rule'').
Although an Indian self-determination contract is not a discretionary
grant, the Common Rule provides certain government-to-government
management principles that apply to discretionary Federal grants to
states, local governments, and Indian tribes.
The Common Rule has two-tiered management rules. On one tier, it
generally defers to state law and regulations and accepts a state's
management standards without imposing more detailed requirements. On
the second tier, other local governments and Indian tribes (which vary
greatly in size and structure) must observe the Rule's more detailed
standards for the management of Federal grants.
In the interest of giving greater recognition to the government-to-
government relationship which exists between Indian tribes and the
Federal government, and to transfer greater responsibility to Indian
tribes commensurate with their status, the committee established
standards permitting the management of contract resources in accordance
with tribal laws, regulations and procedures, just as the Common Rule
permits states to manage Federal resources in accordance with state
laws and procedures. Systems established by Indian tribes will govern
the administration of contracts provided that they include the core
management principles or standards adopted from the Common Rule which
the committee determined best meet the needs of Indian tribes and
tribal organizations.
Subpart F contains provisions relating to the following management
standards: (1) Financial Management; (2) Procurement Management and (3)
Property Management. In all of these areas the advisory committee
designed minimal regulations that focus on the minimum standards for
the performance of the three management systems used by Indian tribes
and tribal organizations when carrying out self-determination
contracts.
The standards contained in this subpart are designed to be the
targets which the Indian tribe and tribal organization's management
systems should be designed and implemented to meet. The management
systems themselves are to be designed by the Indian tribe or tribal
organization.
Section 900.36 contains general provisions which apply to all
management system standards contained in this subpart. Subpart F
includes provisions that: (1) Identify the management systems that are
addressed; (2) set forth the requirements imposed; (3) limit the
applicability of OMB circulars; (4) provide that the Indian tribe or
tribal organization has the option to impose these standards upon
subcontractors; (5) identify the difference between a standard and a
system; and (6) specify when the management standards and management
systems are evaluated.
Section Sec. 900.44 contains the standards for financial management
[[Page 32488]]
systems. Subpart F establishes the minimum requirements for seven
elements including: (1) Financial reports; (2) accounting records; (3)
internal control; (4) budget control; (5) allowable costs; (6) source
documentation; and (7) cash management.
Section 900.47 contains standards for procurement management
systems. This subpart establishes the minimum requirements for seven
elements: (1) To ensure that vendors and subcontractors perform in
accordance with the terms of purchase orders or contracts; (2) to
require the Indian tribe or tribal organization to maintain standards
of conduct for employees award contracts to avoid any conflict of
interest; (3) to review proposed procurements to avoid buying
unnecessary or duplicative items; (4) to provide full and open
competition, to the extent feasible in the local area, subject to the
Indian preference and tribal preference provisions of the Act; (5) to
ensure that procurement awards are made only to entities that have the
ability to perform consistent with the terms of the award; (6) to
maintain records on significant history of all major procurements; and
(7) to establish that the Indian tribe or tribal organization is solely
responsible for processing and settling all contractual and
administrative issues arising out of a procurement. In addition, the
regulation provides that each Indian tribe or tribal organization must
establish its own small purchase threshold and definition of ``major
procurement transactions''; establish minimum requirements for
subcontract terms, and include a provision in its subcontracts that
addresses the application of Federal laws, regulations and executive
orders to subcontractors.
Section 900.51 contains the minimum requirements for property
management systems. Subpart F addresses the standards for both
Federally-titled property and property titled to an Indian tribe or
tribal organization, with differences based upon who possesses title to
the property. As a general rule the requirements for property where the
Federal agency retains title are higher than requirements for property
where the Indian tribe or tribal organization holds the title. Subpart
F addresses elements including: (1) Property inventories; (2)
maintenance of property; (3) differences in inventory and control
requirements for property where the Federal agency retains title to the
property; and (4) the disposal requirements for Federal property.
Summary of Comments
A comment requested that the rule clarify the application of Office
of Management & Budget (OMB) Circulars or portions of OMB Circulars
that apply to the operation of Indian Self-Determination Act contracts.
Section 900.37 specifies that the only OMB Circulars that apply to
self-determination contracts are those (1) Incorporated the by Act,
such as OMB Circular A-128, ``Audits of States and Local Governments'';
(2) adopted by these regulations; or (3) agreed to by the Indian tribe
or tribal organization pursuant to negotiations with the Secretary. In
regard to these regulations, Sec. 900.45(e) identifies the appropriate
OMB Circular Cost Principles that should be used in determining the
propriety of contract costs.
One comment asked the Committee to delete Sec. 900.40(a) because it
is overreaching and exceeds statutory requirements. This section was a
fundamental underpinning of the entire Subpart. The negotiators agreed
that the regulations would include standards, to be treated as minimum
requirements, for the administration of contracts. For an initial
contract proposal only, Federal officials may review the standards
proposed by the Indian tribe or tribal organization, to determine that
they meet or exceed these minimum regulatory requirements. Indian
tribes or tribal organizations are responsible for the implementation
of administrative systems that meet the standards and that are subject
to review in accordance with the Single Agency Audit requirements as
provided in Section 5(f) of the Act. In many respects, this dichotomy
between the standards and systems was designed to acknowledge the
unique and special nature of self-determination contacts (non-
procurement intergovernmental agreements) and a shift in the regulatory
emphasis from the unnecessary and burdensome review of systems to an
emphasis on the acceptance of fundamental guiding management
principles. This approach is consistent with provisions in the Act at
Sections 5(b), 102(a)(2), 105 (a)(1) (2) and (3) and 107(a)(1) and in
the Model Contract Section 108(b)(7)(c). For these reasons no change
was made in Sec. 900.40.
It was suggested that the Committee delete the words ``or tribal
organization'' in Sec. 900.42 from both the question and the answer as
this section applies only to Indian tribes. The comment was correct and
the words have been deleted.
The Committee was requested to clarify the period of time that
Indian tribes and tribal organizations must retain records of contract
operations. A new Sec. 900.41 was created to address these issues. That
section specifies that Indian tribes and tribal organizations should
keep: (1) Financial records for three years from the date of the single
audit submission; (2) procurement records for three years from the date
of final payment to the supplier; and (3) property management records
for three years from the date of disposition, replacement or transfer
of the property. In addition, records related to litigation, audit
exceptions and claims should be retained until the action is completed.
One comment suggested that the regulation provide for the Secretary
to obtain consistent and timely financial information to respond to
Congressional inquiries and to otherwise support budget justifications.
Section 900.45(a) was amended by adding a provision that provides for
the submission of a Financial Status Report, SF 269A. The frequency of
submission of the SF 269A remains the subject of negotiation between
the Indian tribe or tribal organization and the Secretary. The
Department expect that the frequency will not be less than once per
year. This change only affects how the information is transmitted to
the government and is consistent with Section 5(f)(2) of the Act.
The committee was asked to specify which of the three Office of
Management and Budget Circulars dealing with cost principles apply to a
tribal organization. In that regard, a tribal organization could be a
chartered entity of a tribe, a non-profit organization, and/or an
educational institution.
Section 900.45(e) has been amended by revising the parenthetical
statement and including a chart to clarify the application of the
Office of Management & Budget circulars. The parenthetical statement
makes clear that which circular is applicable is negotiable with the
Secretary and that current agreements concerning Office of Management &
Budget cost principles need not be renegotiated.
The committee was asked to adopt proposed clarifying language for
Subsection 900.45(g). The regulations were amended to adopt the
suggested language that provides a more accurate description of the
standards for a cash management component of financial management
systems.
One comment suggested adding the following new language to
Sec. 900.45(h):
If an Indian tribe or tribal organization contracts to assume a
program, service, function, or activity which includes a physical
trust asset or natural resource, the
[[Page 32489]]
Indian tribe or tribal organization shall enter upon its financial
management system and provide for an accurate, current, and complete
disclosure of the value of those assets, provide for an accurate,
current and complete disclosure of funds by source and application
utilized to keep the physical trust assets or natural resources in
good repair and maintenance; provide for an accurate, current, and
complete disclosure of any increase or decrease in the valuation of
the asset; and provide for an accurate, current and complete
disclosure of any other costs, function or activity which would
improve, increase, or cause devaluation or decrease in the value of
the physical trust asset or natural resource as would be required to
account for any asset using generally accepted accounting principles
and standards.
The Committee did not include this provision principally because it
is beyond the scope of these regulations. Currently, the United States
does not track the values of natural resources (i.e. national parks or
Indian lands) in this fashion. Therefore, no financial basis exists to
begin the process. The cost of establishing the basis would undermine
and frustrate self-determination contracting. While the proposal has
merits, it would not be possible to implement it effectively until
appropriate guidance is issued on valuation of Federal natural
resources, the United States enters the information in its financial
records, and funds are made available to tribal governments to cover
the cost of implementation. In regard to guidance, the Federal
Accounting Standards Advisory Board has not issued any authoritative
instructions on the valuation of Federal natural resources. This matter
is currently under consideration by the Board.
Another comment asked the Committee to revise Sec. 900.46 to
require the Secretary to be held to a ``strict standard of compliance
with the terms of the contract and the annual funding agreement.''
Further, the comment suggested deleting the words ``In regard to
paragraph (g) of Sec. 900.44 [of the NPRM]'' and ``based upon the
payment schedule provided for in.'' The Committee was asked to add ``in
strict compliance with'' for the last phrase deleted. Section 900.46
was amended to make this section of the regulations consistent with the
statute.
A comment recommended that Sec. 900.48(c) be amended to include
provisions requiring ``cost and price analysis'' in the procurement
standards. Subsection Sec. 900.48(c) was amended by adding the phrase
``and ensure the reasonableness of the price'' at the end of the
subsection. This was done to ensure that cost or price analysis be
considered in all procurements, but to avoid the application of a full
Federal procurement-type cost or price analysis since self-
determination contracts are not subject to the Federal Acquisition
Regulations (FARs). It is the responsibility of the Indian tribe or
tribal organization to design a procurement system based upon the
standards in Subpart F. The amendment will require those systems to
consider the ``reasonableness of price'' when making procurement
purchases.
The Committee was asked to clarify Sec. 900.50, including the
provision of further guidance about the application of tribal law
generally and the application of Tribal Employment Rights Ordinances
(TERO) specifically. Sec. 900.50 was substantially revised, to make
clear that subcontracts by an Indian tribe or tribal organization may
require the subcontractor to comply with certain provisions of the Act
and other Federal laws. The new language informs subcontractors that
they are responsible for identifying and complying with applicable
Federal laws and regulations. The section was further amended to
provide that, to the extent the Secretary and the Indian tribe or
tribal organization identify and specify laws and regulations that are
applicable to subcontracts in the negotiation of the self-
determination contract, those identified and specified provisions will
then be included in subcontracts.
These regulations do not specifically address the application of
tribal law, but establish minimum standards for the operations of
management systems. Indian tribes may exercise discretion and create
higher standards by operation or enactment of tribal law. Similarly, an
Indian tribe may seek a waiver of a standard as noted in Sec. 900.36 of
the regulations. Nothing in the regulations is designed to supersede or
suspend the operation of tribal law that meets these standards. Further
nothing in the regulations affects the operation of tribal law to
activities not paid for by self-determination contract funds.
Sections 7(b) and (c) of the Act authorize the application of
Indian Preference and Tribal Preference (TERO) in the performance of a
self-determination contract. To the extent a TERO ordinance is
consistent with the terms of Section 7(b) and (c) of the Act it can be
made applicable to procurement subcontracts.
Property Management
The Committee was asked to define ``sensitive property'' in
Sec. 900.52, and as a result, a definition of ``sensitive personal
property'' was inserted at Sec. 900.52(b). That definition includes all
firearms and provides that the Indian tribes and tribal organization
are to define such other personal property ``that is subject to theft
and pilferage.'' Since the activities vary from contract to contract to
such a large extent, the committee decided that a locally-created
definition best meets the needs of all contractors.
One comment indicated Sec. 900.60(b) might require revision
regarding the authority of an Indian tribe or tribal organization to
dispose of Federal property. The Committee revised subsection (b) of
Sec. 900.60 by deleting all of subsection (1), that previously allowed
for disposal if the Secretary failed to respond to a disposal request.
As a result, if the Secretary fails to respond to a request from an
Indian tribe or tribal organization within the sixty day period, the
Indian tribe or tribal organization may return the Federal property to
the Secretary. The Secretary is required to accept the property and is
required to reimburse the contractor for all costs associated with the
transfer. This ensures that Indian tribes and tribal organizations have
a process to dispose of unneeded Federal property, and the
reimbursement of transfer costs should provide the Secretary with an
incentive to respond in a timely fashion to disposal requests.
The committee was asked to clarify that the property disposal
procedures in Sec. 900.60 only apply to personal property, because the
answer to the question uses the terms ``personal property'' and
``property.'' Using the term ``property'' which, by definition,
includes both real and personal property, creates ambiguity about
application of the paragraph to the disposal of real property.
Section 900.60 only applies to the disposal of personal property.
The matter has been clarified through editorial revision of the
introductory question, to read as follows: ``How does an Indian tribe
or tribal organization dispose of Federal personal property?''
Subpart G--Programmatic Reports and Data Requirements
Summary of Subpart
This brief subpart provides for the negotiation of all reporting
and data requirements between the Indian tribe or tribal organization
and the Secretary. Failure to reach an agreement on specific reporting
and data requirements is subject to the declination process. Although
the Indian Health Service proposes to develop a uniform data set, that
data set will only be used as a guide for negotiation of specific
requirements.
[[Page 32490]]
Summary of Comments
One comment argued for the revision of Sec. 900.65, that provides
for the submission of programmatic reports and data ``to meet the needs
of the contracting parties.'' The comment was concerned that the
section could be used to force Federal minimum reporting requirements
upon Indian tribes and tribal organizations despite the provision in
Section 5(f) of the Act that make reporting the subject of
negotiations.
Section 900.65 has been amended to address the comment. A new
introductory sentence was added that makes clear that unless there is a
statutory requirement, these regulations create no mandatory reporting
requirements. The negotiation of reporting is to be responsive to the
needs of the parties and appropriate for the purpose of the contract.
This provides the Indian tribe or tribal organization, as well as the
Secretary, with guidance and limits for negotiations. Furthermore,
because of the numerous comments made concerning the Sec. 900.65
provision, ``meet the needs of the contracting parties,'' and the
amendment noted above, Sec. 900.67 was also amended to make it
consistent with Sec. 900.65 by substituting, ``which responds to the
needs of the contracting parties,'' for ``meets the needs of the
contracting parties''.
The Committee was asked to clarify grammar in Sec. 900.68. The
Committee concluded that the word ``for'' was inadvertently included in
the first line of Sec. 900.68. The ``for'' has been and a comma added
between ``set'' and ``applicable'' in the first line. This should
eliminate the confusion.
Subpart H--Lease of Tribally-Owned Buildings by the Secretary
Summary of Subpart
Section 105(l) of the Act authorizes the Secretary to lease
tribally-owned or tribally-leased facilities and allows for the
definition of ``other reasonable expenses'' to be determined by
regulation. This subpart provides a non-exclusive list of cost elements
that may be included as allowable costs under a lease between the
Indian tribe or tribal organization and the Secretary. It further
clarifies that except for ``fair market rental,'' the same types of
costs may be recovered as direct or indirect charges under a self-
determination contract.
The Subpart was substantially revised based upon comments received
following the NPRM. Please note that two sections have been added, and
previous Sec. 900.71 and Sec. 900.72 have now become Sec. 900.73 and
Sec. 900.74 respectively.
Summary of Comments
Comments requested that the Committee specify the type of account
and the guardian of the account for a reserve for replacement of
facilities identified in Sec. 900.70(c).
The final regulation adds two new sections to accomplish this. New
Sec. 900.71 was added to set forth the type of account as a ``special
revenue fund'' or a ``capital project fund.'' New Sec. 900.72 was also
added to provide that the Indian tribe or tribal organization is the
guardian of the fund. It permits fund investments in a manner
consistent with the laws, regulations and policies of the Indian tribe
or tribal organization, subject to lease terms and the self-
determination contract.
The Committee was asked to add landscaping costs to those items of
cost included in Sec. 900.70(e)(1-16). No such addition was made as the
Committee believed that such costs were included in either subsection
(8) or subsection (16) of Sec. 900.70(e).
Likewise, another comment suggested adding profit to those matters
listed in Sec. 900.70(e). In the Committee's view, a lease based upon
fair market value provides for the recovery of profit, adjusted as
appropriate, based upon the Federal Share (if any) of acquisition or
construction. Therefore, no change was made to this provision.
The committee was asked to identify the source of funds for these
lease payments. The source of funds is a subject of negotiation between
the parties to a self-determination contract.
Subpart I--Property Donation Procedures
Summary of Subpart
This subpart establishes procedures to implement section 105(f) of
the Act. Section 900.85 provides a statement of the purpose of the
subpart and explains that while the Secretary has discretion in the
donation of excess and surplus property, ``maximum'' consideration must
be given to an Indian tribe or tribal organization's request.
This subpart also contains a provision for the Secretary to elect
to reacquire property under specific conditions. It clarifies that
certain property is eligible for operation and maintenance funding, as
well as for replacement funding on the same basis as if title to the
property were held by the United States.
Section 900.87 provides for the transfer of property used in
connection with a self-determination contract. It provides slightly
different procedures for personal property versus real property
furnished before the effective date of the 1994 amendments and another
procedure for property furnished after the enactment of the 1994
amendments.
Sections 900.91 and 900.92 address Sec. 105(f)(2)(A) of the Act,
which provides that a tribal contractor automatically takes title to
property acquired with contract funds unless an election is made not to
do so. It also addresses the process for requesting that real property
be placed ``in trust.''
Section 900.97 addresses BIA and IHS excess property donation while
Sec. 900.102 addresses excess or surplus property from other Agencies.
Summary of Comments
The committee was asked to clarify this Subpart as it is confusing
and generally repetitive. The Subpart addresses the methodology that
provides property to Indian tribes and tribal organizations pursuant to
the Indian Self-Determination Act. Because there are several classes of
property, with varying rights and mechanisms, the Subpart must address
each separately. In order to reduce confusion, the final regulations
provide more uniformity depending on the property type.
It was suggested that the Committee restore the language that was
initially adopted by the Committee, but not included, in Sec. 900.86.
The language change in the NPRM accommodates the use of ``plain
English'' and was not intended to change the manner in which the
Secretary exercised discretion. The Committee has reinstated the
originally-approved version by striking the words ``give maximum
weight'' and substituting ``exercise discretion in a way that gives
maximum effect'' following the word ``will'' in the first line of the
answer in Sec. 900.86. A similar amendment can be found at
Sec. 900.97(a).
To ensure clarity, several comments requested that the regulation
specify as to whether property is real property or personal property in
given instances. The Committee has used the word ``property'' in these
regulations to mean both real and personal property except where not
applicable to one or the other type of property. If either the words
``real'' or ``personal'' modify ``property'' that provision is limited
to that type of property.
The committee was asked to change the incorrect reference to 41 CFR
101-47, 202.2(b)(10) in Secs. 900.87 (b)(2) and (c)(2). The miscitation
has been corrected.
In addition, the committee was asked to delete the terms ``justify
and certify''
[[Page 32491]]
in Sec. 900.86 as well as Sec. 900.97 and Sec. 900.104 because these
terms frustrate the statutory intent and limit access to property
needed to carry out self-determination contracts. The Committee amended
the above-noted sections and substituted ``state how'' or ``statement
of how'' for the ``justify and certify'' provision. This was done to
make clear that what is needed is a concise, simple statement of how
the subject property is ``appropriate for use for a purpose of which a
self-determination contract is authorized under the Act,'' the
statutory language. The Committee expects that the deletion of the
terms ``justify or certify'' makes it clear that no detailed submission
will be required by the Secretary or his designee.
Comments requested revision in the process described in Sec. 900.87
pertaining to property that was made available before or after October
25, 1994. The Committee has chosen not to make changes, as the October
25, 1994 date is the result of the 1994 Amendments to the Act. That
date is the effective date of Public Law 103-413. Those amendments
provided at Section 105 of the Act that Indian tribes or tribal
organizations could take title to government-furnished property used in
performance of the contract property unless the Indian tribe or tribal
organization preferred the Secretary to retain title. Prior to October
25, 1994, title to such property remained with the Secretary.
This provision allows an Indian tribe or tribal organization to
receive title to government-furnished property put in use prior to
October 25, 1994. In part, that allows Indian tribes or tribal
organizations greater flexibility with the Property Management
standards in Subpart F above. For these, reasons no further changes
were made in Sec. 900.87.
One comment suggested that the regulation clarify the references to
the value of property subject to reacquisition or acquisition by the
Secretary at the time of retrocession, reassumption, termination or
expiration of the contract. Among the concerns expressed were the value
at the time of reacquisition, whether it was acquisition or
reacquisition, the lack of consideration of depreciation, and the use
of property by multiple contracts when only one or a portion of one
contract triggers this issue. These comments relate to Sections 900.89,
900.93, and 900.100, all of which address this issue depending upon the
class of property.
The Committee took action to make uniform sections 900.89, 900.93,
and 900.100. These new sections all contain an additional subsection
that addresses the issue of property used in multiple contracts. This
new subsection provides that the Secretary and contractor shall
negotiate an ``acceptable arrangement'' for continued sharing and the
title to the property.
In order to address current value (at the time of retrocession,
etc.) the section was revised to ``current fair market'' and another
clause was added, ``less the cost of improvements borne by the Indian
tribe or tribal organization.'' This was done so that where an Indian
tribe or tribal organization has made improvements to a piece of
property, the value of the improvements is factored into arriving at
the $5,000 value threshold. The Committee also reviewed the
depreciation questions but concluded that the current fair market value
approach would adequately take these factors into consideration.
Moreover, since services would be provided to Indian beneficiaries by
the Secretary, the best approach with the reacquired property was
current fair market value.
In regard to Sec. 900.93, one comment proposed a change to the
question by substituting ``reacquire'' for ``acquire.'' Upon review the
Committee concluded that ``acquire'' was the correct term because this
section addresses contractor-purchased property. In that instance, the
Secretary has never had title and ``acquire'' is the proper term.
The revisions to the above-noted sections have also been
incorporated into Subpart P of the regulations. No further comments
will be discussed in this preamble on Sections 900.89, 900.93, or
900.100 since the operative provisions are now uniform.
With regard to Sections 900.96 and 900.103, several comments asked
when the Secretary will notify Indian tribes and tribal organizations
about the availability of excess BIA and IHS personal property and GSA
excess and surplus property. Suggestions of quarterly or semi-annually
were made. At both Sec. 900.96 and Sec. 900.103 the term ``not less
than annually'' has been added. This creates a minimum requirement that
the Secretary must meet yet allows for more frequent notices.
Some comments asked the Committee to provide further instruction in
Sec. 900.97(b) relating to multiple requests by contractors the same
excess or surplus property.
The Committee revised these subsections to clarify what will occur
in that situation. In regard to personal property, the request first
received by the Secretary will have precedence. If the requests are
received by the Secretary on the same date, the requestor with the
lowest transportation costs will prevail.
A technical amendment was made to Sec. 900.97(c) by changing
``piece of real property'' to ``parcel of real property.''
The committee was asked to delete the reference to the Federal
Property Management Regulation, 41 CFR Chapter 101, as that reference
had at Sec. 900.104(b) the potential to incorporate an entirely
different set of regulations, not consistent with the Act. The
references to the Federal Property Management Regulation (FPMR) and 41
CFR Chapter 101 were deleted and ``Section 900.86 of this Subpart'' was
substituted. The Committee made this revision to reflect that these
regulations are unique to self-determination contracts and to avoid any
conflict between these regulations and the FPMR.
Several comments were made concerning the need for the Secretary to
act expeditiously to acquire excess or surplus government property when
the property is frozen by the Indian tribe or tribal organization, in
Sec. 900.104(c). The Committee revised subsection (c) of Sec. 900.104
by harmonizing the several suggestions.
Several comments called for clarification of Sec. 900.107 by
explaining which type of property remains eligible for replacement
funding. The Committee changed the question in Sec. 900.107 and deleted
``Yes'' from the answer. This makes clear that government-furnished
property, contractor-purchased property and excess BIA and IHS property
are eligible for replacement funding consistent with Section 105(f) of
the Act. Only excess or surplus government property from other agencies
is not eligible for such replacement.
Subpart J--Construction Contracts
Summary of Subpart
Subpart J addresses the process by which an Indian tribe or tribal
organization may contract for construction activities or portions
thereof. The subpart is written to inform readers of the breadth and
scope of construction contracting activities conducted by the
Departments, and provides opportunities for Indian
FR Doc. 96-15793 Indian Self-Determination and Education Assistance Act Amendments
tribes or tribal
organizations to choose the degree to which they wish to participate in
those activities. The subpart provides for extensive cooperation and
sharing of information between the Departments and an Indian tribe or
tribal organization throughout the construction process. The subpart
provides for different construction contracting methods, such as award
of
[[Page 32492]]
contracts through subpart J, award of contracts through section 108 of
the Act, and award of grants in lieu of contracts depending on the
degree of Federal involvement and the phase(s) of construction
activities for which the Indian tribe or tribal organization seeks to
contract.
The construction process is described in phases, starting with a
preplanning phase, followed by a planning phase, a design phase, and a
construction phase. Provisions are included so an Indian tribe or
tribal organization can seek a contract through section 108 of the Act
for the planning phase and for construction management services. It is
not required that these functions be pursued through a section 108
contract: if the Indian tribe or tribal organization so elects, these
activities can be part of a subpart J contract.
Definitions are provided that are specific to this subpart and this
subpart establishes new procedures to facilitate tribal contracting,
through such measures as tribal notification and other provisions.
The subpart promotes the exploration of alternative contracting
methods, and eliminates the applicability of the Federal acquisition
regulations except as may be mutually agreed to by the parties.
The subpart describes the process for negotiating a construction
contract, including the process for arriving at a fair and reasonable
price, and details the process for resolving disagreements in the
contracting process. The subpart also sets forth minimum requirements
for contract proposals, and details the respective roles of tribes and
the Secretary.
The subpart promotes tribal flexibility in several areas, including
through periodic payments at least quarterly, and the payment of
contingency funds to be administered by the tribal contractor.
Summary of Comments
Approximately 185 comments were received from non-governmental
representatives, most of these from Nations and tribes rather than
individuals. This preamble reflects the committee response to each
comment in a section-by-section format. References to no action being
taken by the Committee indicate that no change was made to the
regulation.
Several comments proposed that the phrase ``or real property'' be
added after ``Federal facilities.'' The comments were adopted to ensure
that related construction work was covered under Subpart J. The new
phrase adds ``and/or other related work'' after ``demolition.''
Eight comments argued that supportive administrative functions
should be specifically recognized as contractible in the language of
Sec. 900.111. The Committee decided that the language was adequate as
published. One comment proposed adding ``or tribal organization
authorized'' after ``tribe.'' This comment was adopted.
One comment proposed to add a bid award phase. The comment was not
adopted because it is presently included in the individual phases
described in the regulation. Three comments stated that tribal
involvement was not included in the site selection process. Site
selection was adopted and inserted into subsection 900.112(a)(2) and
(3). One comment proposed to add ``assessment and'' after ``initial''
at Sec. 900.112(a)(1) and ``associated activities'' after
``assessments'' at Sec. 900.112(b)(2). Both comments were adopted.
Several comments stated that Sec. 900.113(b) implies that Indian
tribes and tribal organizations will always subcontract with a
consultant rather than using tribal employees to perform certain
functions. This was not the intent of the proposed regulation. The
Committee adopted the proposed language: ``An Indian tribe or tribal
organization's employee or construction management services consultant
(typically an engineer or architect) performs such activities as:'' and
struck ``The construction management services consultant (typically an
engineer or architect) assists and advises the Indian tribe or tribal
organizations in such activities as.''
Five comments suggested that the phrase ``and real property''
should be included at Sec. 900.113(c) after ``Buildings and
Facilities.'' The committee took no action on these comments.
Three comments stated that the critical distinction between
construction contracts and section 108 model agreements are the
requirements which apply to each. The committee took no action on this
comment.
One comment stated that Sec. 900.115(b)(1) should be clarified to
indicate that the term ``Act'' refers to the Office of Federal
Procurement Policy Act. The comment was adopted and the work ``such''
was deleted and the word ``that'' was inserted.
Nine comments suggested that cost reimbursement contracts should
also allocate the risk. The Committee took no action. One comment
suggested replacing ``fixed-price'' with ``negotiated.'' The Committee
adopted ``negotiated'' and inserted it before ``fixed-price'' in both
the question and response.
Two comments stated that subsection 900.117(a)(2) treats the
consequences of the Secretary's failure to act in a way that is very
unfavorable to Indian tribes and, therefore, against the policy of the
Self-Determination Act. The comments argued that the Secretary's
failure to act should render the POR accepted rather than rejected. The
Committee did not agree on this change. Three comments stated that this
section should contain standards or other objective criteria against
which the POR will be reviewed. The Committee concluded that these
criteria will be negotiated between the parties and identified in the
contract. One comment suggested revising the timeframes contained in
the subsection to accommodate a shorter construction period due to
weather concerns. The Committee decided to add a subsection at the end
of Subpart J to address this issue.
Seven comments argued that construction management services may be
performed by tribal employees. The Committee adopted the language
``and/or tribal or tribal organization employees'' after
``consultants.''
The Committee received two comments on subsection 900.120. The
first urged that the 30-day time period be reduced to 14 days. The
Committee did not agree with this change. The second comment
recommended inserting the word ``shall'' in place of ``will'' and
inserting ``By registered mail with return receipt in order to document
mailing after notify.'' This language was adopted.
The Committee received eight comments on subsection 900.121 of the
NPRM. Six suggested inserting the word ``each'' before the word
``phase,'' requiring the Secretary to notify Indian tribes and tribal
organizations before each phase. One comment proposed adding the
following language: ``Failure of the tribe or tribal organization to
notify the Secretary within 45 days after receiving Secretarial notice
described in Sec. 900.120 shall not serve as a bar to the applicant
tribe or tribal organization from contracting for the desired
project.'' Although the proposed language accurately reflects a
Comptroller General's Opinion, the Committee did not agree to this
addition. To resolve the impasse, the Committee struck subsection
900.121 in its entirety.
Eight comments suggested adding language to Sec. 900.121 to clarify
who will be solicited and how. The committee took no action on these
suggestions.
Three comments stated that section 105(m) of the Act establishes a
[[Page 32493]]
negotiation process to be invoked at the tribes' option, and section
105(m) language should be reflected in subsection 900.122 rather than
imposing a mandatory process that may not be applicable in all
situations. The regulation will be interpreted consistently with the
applicable statutory provisions. The reference ``in accordance with
section 900.121(a)'' was stricken since Sec. 900.121 was in its
entirety. One comment suggested changing ``will'' to ``shall'' after
``Secretary'' in Sec. 900.122(a). This change was adopted.
Eight comments stated that the language of this section should be
changed to mirror the requirements found at Sec. 900.29. The Committee
took no action on these comments. One comment suggested adding ``and
provide all documents relied on in making the declination decision'' at
Sec. 900.123(b)(1) after the words ``in writing.'' The Committee agreed
to this language with the addition after the word ``decision'' of
``within 20 days of such decision.'' The Committee did not agree to the
proposed addition of subsection 900.124(b)(1)(I): ``The Secretary shall
be barred from relying on any and all such documents which are not
provided in any defense of this declination decision.'' The regulation
therefore does not address what the Secretary may or may not rely upon,
leaving such matters for decision by administrative bodies or the
courts.
Three comments on Sec. 900.124 stated that the requirements for
grants are not clear. The Committee took no action.
Five comments raised the issue of the applicability of the Contract
Work Hours Act. The Committee agreed that the applicability of the
Contract Work Hours Act and other laws is adequately addressed in
Sec. 900.125(d). Accordingly, the reference to the Contract Work Hours
Act at Sec. 900.125(c)(4) was deleted.
One comment stated that Sec. 900.125(c)(1) requires the contract to
state that the tribal contractor will not alter title to real property
``without permission and instructions from the awarding Agency'' and
is, therefore, inconsistent with section 105(f) of the Act, which
states that title to property furnished by the Federal government for a
contracted program ``shall, unless otherwise requested by the tribe or
tribal organization, vest in the appropriate tribe or tribal
organization.'' The Committee adopted ``elects not to take title
(pursuant to Subpart I) to Federal property used in carrying out the
contract'' at Sec. 900.125(c)(1) after the word ``organization.'' The
Committee also struck the language ``proposes to use Federal property
in carrying out the contract.''
One comment stated that ``engineers'' should be deleted at
Sec. 900.126(a)(1) and Sec. 900.130(c)(1) because the Act does not
require the use of licensed engineers, only architects. The comment was
adopted and the word ``engineers'' was deleted from those sections.
One comment suggested that Sec. 900.125(a)(8) be expanded to
include the following language after the word ``manuals'': ``and the
Secretary shall accept tribal proposals for alternatives which are
consistent with or exceed Federal guidelines or manuals applicable to
construction programs.'' The Committee adopted this language.
One comment stated that Sec. 900.125(b)(8) was overreaching and
required production of information that the Federal government had no
legitimate need to know. The Committee compromised by agreeing to
strike the language as written and to substitute the following: ``(8)
Identify if the tribe or tribal organization has a CMS contract related
to this project,'' and added after the word ``section'' at
Sec. 900.125(b)(4) ``and minimum staff qualifications proposed by the
tribe or tribal organization, if any.''
One comment proposed adding language at Sec. 900.125(d) which would
include tribal laws, ordinances and resolutions. The Committee agreed
and added the sentence ``The parties will make a good faith effort to
identify tribal laws, ordinances and resolutions which may affect
either party in the performance of the contract.''
Three comments questioned the applicability of Sec. 900.126 to cost
reimbursement, fixed-price and non- construction contract construction
activities. The Committee took no action.
Ten comments proposed changes to the provision on contingency
funds. Four suggested the following language: ``the amount of the
contingency provided shall be 10 percent of the contingency funds,
whichever is greater.'' Two comments proposed that 100 percent of the
available contingency should be open for negotiation and one comment
advocated that 100 percent of the available contingency should be
included in the contract. The comments proposed alternative language:
``* * * allow all of the contingency funds to be transferred to the
tribe unless the government could show proof as to why such funds
should not be transferred.'' The Committee compromised on the following
language: ``The amount of the contingency provided shall be 3 percent
of activities being contracted or 50 percent of the available
contingency funds, whichever is greater.'' Additionally, the following
sentence was added to address concerns regarding funding: ``In the
event provision of required contingency funds will cause the project to
exceed available project funds, the discrepancy shall be reconciled in
accordance with Sec. 900.129(e).''
One comment objected to the term ``contract budget,'' and urged the
language be changed to ``funding proposal.'' The Committee took no
action, and noted that the present language was written to accommodate
redistribution of funds within the budget.
One comment stated that the ``fair and reasonable'' language at
Sec. 900.127(a) ``gives too much discretion to government officials to
determine what is fair and reasonable.'' The Committee adopted the
reference to Sec. 900.129 at the end of Sec. 900.127(a).
Three comments raised the question of the applicability of
Sec. 900.128 to cost reimbursement, fixed-price, and non-construction
contract construction activities. The Committee took no action on this
concern, but to clarify changes made at Sec. 900.127(e)(8), the
following language at Sec. 900.128(d)(3): ``including but not limited
to contingency.''
Seven comments stated that Sec. 900.129(e)(1) should be amended to
reflect that only the amount in excess of the available amount may be
declined. The Committee decided not to make the recommended change, but
did adopt the following language after the word ``Act'' at
Sec. 900.129(e)(1): ``or, if the contract has been awarded, dispute the
matter under the Contract Disputes Act.''
One comment urged that Sec. 900.129(e)(2)(i) ``should be modified
to expressly authorize the parties to jointly agree on a lump-sum
advance payment to generate earned interest, in order to bridge the gap
between a fair and reasonable price and the amount available to the
Secretary.'' The Committee added the phrase ``advance payments in
accordance with section 900.132'' at Sec. 900.129(e)(2)(i) after
``contingency funds.''
Three comments raised the applicability of Sec. 900.129 to cost
reimbursement, fixed-price, and non- construction contract construction
activities. The Committee took no action.
Five comments stated that architect and engineer services were
appropriate at the design phase (Sec. 900.130(b)(1)) but not required
at the construction phase and should be deleted. One comment addressed
the language requiring licensed engineers at Secs. 900.130(b)(1) and
(c)(1). The Committee struck ``and
[[Page 32494]]
engineers'' in both places, and inserted the word ``as'' before
``needed.''
Three comments stated that language at Sec. 900.130(c)(5) should be
changed to read: ``The tribe or tribal organization may not issue a
change order which is outside the general scope of work defined in the
contract or which exceeds the contract budget including contingency
funds without Secretarial approval.'' The Committee took no action.
One comment argued that the timing of the independent cost estimate
should be clarified to facilitate negotiations. The Committee took no
action.
Three comments raised the applicability of Sec. 900.130 to cost-
reimbursement, fixed-price and non- construction contract construction
activities. The Committee took no action.
One comment proposed that Sec. 900.130(b)(5) should delete the
Secretarial approval and substitute ``review and provide written
comments.'' In compromise, the Committee adopted language which allows
for Secretarial review and written comments on the project plans and
specifications only at the concept phase, the schematic (or preliminary
design) phase, the design development phase, and the final construction
documents phase, and Secretarial approval of the project plans and
specifications for general compliance with contract requirements only
at the schematic (or preliminary design) phase and the final
construction documents phase, or as otherwise negotiated.
One comment proposed replacing the word ``shall'' at
Sec. 900.130(b)(8) with ``may,'' and striking the last sentence
requiring production of copies of contracts and subcontracts. In
compromise, the Committee struck the following language: ``of contracts
and major subcontracts and modifications * * * and A/E service
deliverables.'' At the end of the first sentence of Sec. 900.130(b)(8)
the Committee adopted the following language: ``including but not
limited to descriptions of contracts, major subcontracts and
modifications implemented during the report period and A/E service
deliverables.''
The Committee struck the following language at
Sec. 900.130(c)(7)(ii): ``of change orders, contracts and major
subcontracts'' and inserted at Sec. 900.130(c)(8) ``contracts, major
subcontracts, modifications.''
One comment argued that Sec. 900.130(e) should require the
Secretary to act ``within 30 days or as negotiated between and agreed
to by the parties.'' Another comment suggested that the word
``sufficient'' replace ``additional'' before''funds are awarded.'' The
Committee took no action on the first comment and adopted the word
``sufficient'' in addition to, rather than in lieu of, ``additional.''
Six comments urged that Sec. 900.131(b)(7) be rewritten as follows:
``The tribe or tribal organization may not issue a change order which
is outside the general scope of work defined in the contract or which
exceeds the contract budget including contingency funds without
Secretarial approval.'' The Committee took no action.
Eight comments recommended the deletion of
Sec. 900.131(b)(11)(i)(A), stating that this section takes authority
from an Indian tribe when the tribe is acting as the contracting
officer for its subcontracts. The Committee took no action.
Eight comments suggested that overhead costs should be included at
Sec. 900.131(b)(11)(i)(D)(iii). The Committee adopted the language
``including but not limited to overhead costs'' before ``reasonable
costs.''
One comment stated that the Secretary's role under Sec. 900.131
generally should be substantially narrower. Specifically, the comment
stated:
The Secretary should not have final approval authority over
planning documents once a contract is set for planning activities,
the Secretary should not retain final approval authority for general
compliance with contract requirements, and the Secretary should not
be able to decline acceptance of the constructed building or
facility. The Secretary should instead be limited to monitoring
contract performance and to invoking such remedies as may be
available to the Secretary under the Contract Disputes Act or under
other provisions of the Self-Determination Act.
The Committee adopted compromise language on this issue at
Sec. 900.130(b)(5).
One comment stated that the independent cost estimate described at
Sec. 900.131(b)4) is a fully contractible function and the report
should be shared with both parties. The Committee took no action on
this comment.
One comment urged that Sec. 900.131(b)(11)(i)(B) is unacceptable
because it allows the Secretary subjective discretion to determine what
is ``materially non-compliant work,'' The Committee took no action on
this comment.
Three comments questioned the applicability of Sec. 900.131 to
cost-reimbursement, fixed-price and non- construction contract
construction activities. The Committee took no action on those
comments.
One comment proposed eliminating the Secretarial approval function
at Sec. 900.131(b)(1) and inserting the word ``maximum'' before the
words ``tribal participation.'' The Committee adopted the word
``comment'' before ``and approval functions'' and ``full'' before
``tribal participation.'' The Committee also adopted the words ``in
writing'' with regard to Secretarial notification of any concerns or
issues that may lead to disapproval and the words ``and documents''
after ``relevant information.'' The Committee struck the language
``accommodate tribal recommendations'' and inserted ``resolve all
issues and concerns of the tribe or tribal organization'' after the
words ``good faith effort to.'' The Committee added ``appropriate''
before the word ``Secretary'' at Sec. 900.131(b)(2).
One comment proposed changing Sec. 900.131(b)(4) to read
``Secretary may rely on the Indian tribe's or tribal organization's
cost estimate or the Secretary may'' obtain an independent government
cost estimate that is derived from the final project plans and
specifications, striking the balance of the sentence. The Committee
adopted this comment and, after ``tribal organization,'' added the
following: ``and shall provide all supporting documentation of the
independent cost estimate to the tribe or tribal organization within
the 90-day time limit.''
One comment proposed to strike ``approve'' at Sec. 900.131(b)(5)
and insert ``provide written comments.'' The Committee adopted the
following language after ``the Secretary shall have the authority to
review'': ``for general compliance with the contract requirements and
provide written comments on,'' and struck ``approve for general
compliance with contract requirements.'' After ``final construction
documents phase,'' the Committee also added ``and approve for general
compliance with contract requirements the project plans specifications
only at the schematic phase and final construction documents phase.''
One comment argued that Sec. 900.131(b)(9) be deleted and the
following substituted: ``The Secretary shall be limited to the number
of on-site monitoring visits negotiated between and agreed upon by the
parties.'' The Committee achieved consensus by striking ``retains the
right to'' and inserting ``may'' after ``the Secretary.''
In response to a comment regarding Sec. 900.131(b)(1)(iii), the
Committee inserted ``including but not limited to overhead costs.''
One comment proposed an additional subsection at
Sec. 900.131(b)(13)(vi) to read: ``The Indian tribe or tribal
organization shall be compensated for
[[Page 32495]]
reasonable costs incurred due to termination of the contract.'' The
Committee adopted this comment.
One comment proposed adding ``No further approval or justifying
documentation by the contractor shall be required before expenditure of
funds'' to Sec. 900.134. The Committee adopted this suggestion.
Two additional subsections to Subpart J were adopted by the
Committee. One responds to tribal concerns regarding the short period
of actual time available to engage in construction activities where
weather is an issue. The second clarifies that tribal employment rights
ordinances do apply to construction contracts and subcontracts.
The Committees received comments urging both approval and rejection
of Subpart J as proposed. The Committee only considered comments which
addressed a specific subsection and/or proposed language.
Construction management services: Of the comments received
regarding the proposed rule for construction activities under Public
Law 93-638, many were directed towards the definition of Construction
Management Services (CMS) and Construction Project Management (CPM)
contained as part of the rule. Indeed, one comment, representative of
several Indian tribes, ``. . . objects to the excessively narrow
definition of construction management services (Sec. 900.113(b)) in a
fashion which unlawfully defeats the tribal right to contract for
management services through an ordinary self-determination contract,
contrary to section 4(m) of the Act.'' CMS is a management process for
construction projects that in some instances can provide for project
delivery. Several comments feel that the activities described in the
definition of CPM should be considered CMS activities. The distinction
is important in that the statute provides that self-determination
contracts for CMS can be through the Section 108 Model Agreement and
not through a self-determination construction contract (Subpart J) as
the regulations require for conduct of CPM activities.
The statute does not provide a definition for CMS and efforts to
develop a definition dominated Committee discussion through the
regulation process. At the start of the negotiation process, discussion
departed upon a path that quickly stalled in a quagmire of divided
opinion as to the role, both appropriate and statutorily permissible,
available to the Federal government in self-determination contracts
involving construction. However, at no point was there any dispute
between tribal or Federal representatives that a tribe can contract for
all management functions of a construction contract. The dispute
regarding this issue revolves around the contracting vehicle utilized--
a self-determination contract versus a Section 108 Model Agreement--and
not the contractibility of management functions. Consistent with the
Federal argument for limited Federal involvement in construction
projects was an unwavering view that a Model Agreement, invoked through
provision CMS, could not be used to circumvent other provisions of the
statute dealing with construction.
To move forward, the Committee set aside initial efforts to define
roles and involvement, and instead focused on describing processes
through which tribes could pursue construction activities. From these
scenarios, much discussion ensued and the roles of each party
developed. Through these efforts, the regulations evolved in a manner
that provides for Indian tribes or tribal organizations to contract for
a spectrum of responsibilities, ranging from oversight of Federal
efforts to tribal responsibility for all aspects of the construction
process, through multiple options of contracting methods. From the
standpoint of the tribal representatives that actively and consistently
participated throughout the negotiation process, the practical effect
of the CMS definition is negligible towards the overall goal of
increasing tribal control of the contracting process. The limit of the
Federal involvement, as described in Sec. 900.132 of the regulation, is
a direct reflection of efforts to describe reasonable points of Federal
involvement. Both tribal and Federal representatives of the Committee
charged with developing the regulations agree that the end result
reflects a lessening Federal involvement in and an increase of tribal
control of the construction process through 638 contracting.
However, Federal and tribal committee members did not reach
consensus on the definition of CMS. Tribal and federal representatives
included this issue in their non-consensus reports. The tribal non-
consensus position sought to eliminate the definition of ``construction
project management'' and include a less restrictive definition of
``construction management services'' with conforming changes to the
balance of Subpart J. Tribal representatives are of the view that these
definitions inappropriately limit the scope of construction management
activities which should be contractible outside Subpart J. They are
further of the view that the precise contours of ``construction
management services'' should be worked out on a case-by-case basis as
tribes engage in negotiations with particular agencies over specific
construction projects. Accordingly, the Departments did not change the
definition of CPM.
While the Departments have given careful consideration to the views
of the tribal representatives on this issue, they cannot accept the
tribal proposal. The Departments are persuaded that, as a legal matter,
the Act treats construction contracts governed by Subpart J differently
from contracts for other activities which may be contracted using the
model agreement in section 108 of the Act. The two definitions allow
contracting under a section 108 model, agreement for certain
administrative support, coordination, and monitoring activities.
However, construction project design and construction activities
(including day-to-day on site project management and administration)
are appropriately contracted under Subpart J. Although the tribal
representatives are of a different legal view, we believe that
expanding the definition of ``construction management services'' so
that construction projects may be conducted under a section 108
construction management agreement circumvents the statutory
requirements for a construction contract between the government and the
Indian tribe or tribal organization.
Subpart K--Waiver Procedures
Summary of Subpart
This subpart implements section 107(e) of the Act, which authorizes
the Secretary to make exceptions to the regulations promulgated to
implement the Act or to waive such regulations under certain
circumstances. Section 107(e) of the Act provides that in reviewing
waiver requests, the Secretary shall follow the time line, findings,
assistance, hearing, and appeal procedures set forth in section 102 of
the Act. Subpart K explains how an Indian tribe or tribal organization
applies for a waiver, how the waiver request is processed, the
applicable timeframes for approval or declination of waiver requests,
and whether technical assistance is available. In addition, subpart K
restates the declination criteria of section 102 of the Act, which
apply to waiver requests, and specifies that a denial of a waiver
request is appealable under subpart L of these regulations. Finally,
subpart K implements section 107(b) of the Act by providing a process
for a determination
[[Page 32496]]
by the Secretary that a law or regulation has been superseded by the
provisions of the Indian Self-Determination Act, as amended.
Summary of Comments
Several comments indicated that the scope of Subpart K was unclear.
Some argued that the scope should be narrowed to authorizing only
waivers under Part 900, while others argued that it should be expanded
to include other regulations as well. The language in Sec. 900.140 has
been redrafted to clarify that the statutory waiver authority in
Section 107(e) of the Act is limited to regulations under this Part. It
should be noted that the Secretary of the Interior has the reserved
authority to waive other regulations in 25 CFR if permitted by law. See
25 CFR 1.2.
One comment asked whether the Secretary can delegate his or her
authority to waive regulations to lower administrative levels. The
Secretary does have such authority, but has not chosen to exercise it.
One comment recommended a modifying of the last sentence of
Sec. 900.143 to require a ``clear and convincing'' burden of proof on
the Secretary where a waiver request is denied. This recommendation was
rejected because it is different from the statutory burden of proof in
Section 102(a)(2) of the Act.
One comment objected that the 90-day period in Sec. 900.143 was too
long, and recommended shortening it to 30 days. This recommendation was
rejected because it is contrary to the 90-day time frame in Section
102(a)(2) of the Act. Section 107(e) of the Act specifically provides
that the timeline in Section 102 of the Act applies to the review of
waiver requests.
One comment asked whether waivers can be granted even if they are
against the law. Although such a clarification is unnecessary in this
regulation, the Secretary is not authorized to waive any provision of
the Act that may be restated in these regulations.
One comment stated that Sec. 900.146 should be amended to allow
Indian tribes or tribal organizations the discretion to draw on
expertise from other tribes and/or tribal organizations to meet their
needs. To address this concern, Sec. 900.146 was amended to cross-
reference the provision of technical assistance under Sec. 900.7.
One comment recommended the inclusion of an additional paragraph in
Sec. 900.148 requiring the Secretary to attach a list of all applicable
Federal requirements to each contract. This suggestion was not adopted
because any addition to the contract must be by mutual agreement of the
parties pursuant to Section 108 of the Act.
The Office of Management and Budget (OMB) expressed concern about
recognition of its ultimate responsibility for the approval of waivers
of any principles contained in OMB cost circulars. Therefore, in
reviewing waivers of any cost principles, OMB requests that the
Secretary consult with OMB prior to approving any requests under
Subpart K.
Subpart L--Appeals
Summary of Subpart
The advisory committee decided to develop substantive regulations
governing appeals of pre-award decisions by Federal officials. This
subpart does not govern appeals of post-award decisions subject to the
Contract Disputes Act, since the provisions governing disputes under a
contract can be found in subpart N of these regulations. Subpart L
implements sections 102(b), 102(e), and 109 of the Act, as well as
various other provisions requiring the Secretary to provide an
administrative appeals process when making certain decisions under the
Act. It provides a road map to the appeals process for Indian tribes
and tribal organizations.
The regulation is divided in two parts: the first part concerns
appeals from decisions relating to declination of a proposal, an
amendment of a proposal, or a program redesign; non-emergency
reassumption decisions; decisions to refuse to waive regulations under
section 107(e) of the Act; disagreements over reporting requirements;
decisions relating to mature status conversions; decisions relating to
a request that a law or regulation has been superseded by the Act; and
a catchall provision relating to any other preaward decisions, except
Freedom of Information Act appeals and decisions relating to the award
of discretionary grants under section 103 of the Act. The second part
concerns decisions relating to emergency reassumptions under section
109 of the Act and decisions relating to suspension, withholding, or
delay of payments under section 106(l) of the Act.
Subpart L allows for an informal conference to avoid more time-
consuming and costly formal hearings, but delineates the appeal process
available to Indian tribes and tribal organizations that are either
unhappy with the results of the informal conference or who choose to
bypass the informal process altogether. Subpart L also states that an
Indian tribe or tribal organization may go directly to Federal district
court rather than exhaust the administrative appeal process under this
regulation.
Under the regulation, all appeals must be filed with the Interior
Board of Indian Appeals. Hearings on the record are conducted by an
Administrative Law Judge of the Department of the Interior's Office of
Hearings and Appeals, Hearings Division, who renders a recommended
decision. Objections to this recommended decision may be filed either
with the Interior Board of Indian Appeals, if the case relates to a
Department of the Interior decision, or with the Secretary for Health
and Human Services, if the case relates to the Department of Health and
Human Services.
The second part contains similar provisions concerning emergency
reassumption and suspension decisions, but these decisions are treated
separately because of the statutory requirement that a hearing on the
record be held within ten days of the Secretary's notice of his or her
intent to rescind and reassume a program immediately, or a notice of
intent to suspend, withhold, or delay payment under a contract.
Summary of Comments
Several comments noted that the words ``you'' and ``your'' appear
throughout this Subpart, rather than the words ``Indian tribe'' and
``tribal organization.'' Where appropriate, the words ``you'' and
``your'' have been replaced throughout this Subpart.
Pursuant to several comments, Sec. 900.150 was amended by adding a
new paragraph (j) subjecting decisions relating to requests for
determination that a law or regulation has been superseded by the Act
to the appeal procedures under this Subpart.
One comment objected to having IHS appeals go to the Interior Board
of Indian Appeals (IBIA). This recommendation was not adopted because
to have all appeals heard by a single administrative appeals body so
that the Act and these regulations are uniformly interpreted by both
Departments.
One comment recommended that Indian tribes should be required to go
through the administrative appeal process before going to Federal
district court. This recommendation was not adopted because Section 110
of the Act specifically authorizes direct access to Federal courts.
One comment recommended that there be a mandatory completion time
of six months from the time an Indian tribe or tribal organization
files a notice of appeal to the time for a final decision
[[Page 32497]]
from the IBIA. This recommendation was not adopted because there is no
way for the IBIA to anticipate when all briefings, discovery
extensions, and settlement discussions will be concluded. Flexibility
needs to be maintained during this process. The regulation already
includes time frames for the IBIA to render decisions once all required
filings have been made. See, e.g., Sec. 900.167 and Sec. 900.174.
One comment recommended enlarging the 30-day period in Sec. 900.152
to 90 days. This recommendation was not adopted because Sec. 900.159
already provides for an extension of time.
Several comments requested that Sec. 900.152 be clarified to
provide that Indian tribes may appeal decisions made by agencies of
DHHS besides the IHS. This recommendation was adopted, and the question
in Sec. 900.152 was amended to reflect this clarification.
One comment suggested that Sec. 900.155(b) be redrafted to define
the words ``adequate representation'' and suggested that the section be
redrafted so that the costs of the appeal are chargeable either to the
contract, if the tribe prevails on the appeal, or to the tribe if the
appeal is unsuccessful. These recommendations were not adopted. Federal
agencies reserve the rights to determine what is adequate
representation in specific cases. To force tribes to repay the expense
of appeals either through a charge to the contract or through tribal
funds would be unjust and would discourage appeals which are well
taken.
Many comments objected to a provision in Sec. 900.152 and
Sec. 900.156 which provides that ``the IBIA will determine whether you
are entitled to a hearing.'' This sentence was deleted from these two
sections. As pointed out in many comments, the standards governing
these decisions are set forth in Sec. 900.160.
Several comments objected to the certification requirement in
Sec. 900.158(d) because it is not a statutory requirement of the Act,
and conflicts with the government-to-government relationship between
tribes and U.S. Government. This recommendation was not adopted. The
certification requirements here are the same as in courts and other
administrative appeal forums. The purpose of the requirement is simply
to ensure that the deciding official has been informed that his/her
decision has been appealed, and that the IBIA be informed of this
notification. It is not intended to be a burdensome requirement, but
merely a certification that is obtained for information purposes.
Pursuant to a comment, the words ``good reason'' in Sec. 900.159
were changed to the words ``valid reason.''
One comment recommended deletion of Sec. 900.159 because any
request for an extension should be made within the 30-day time frame in
Sec. 900.158. This recommendation was not adopted because, although a
matter of considerable debate during the Committee's negotiations, it
was agreed that there could be extenuating circumstances that could
prevent a Indian tribe or tribal organization from filing its notice of
appeal within the 30-day time frame in Sec. 900.158.
One comment sought clarification of what happens if the IBIA
determines not to grant an extension. If the IBIA determines that the
appellant does not have a valid reason to extend the deadline, and the
tribe disagrees with this determination, it can appeal that decision to
Federal District Court pursuant to Section 110 of the Act.
Section 900.160(a) was restructured into two sentences for
clarification purposes. The second sentence of Sec. 900.160 now begins
with the words ``[i]f so.
One comment recommended changing the 15-day time frame in
Sec. 900.161(b) to a longer period. This recommendation was not adopted
because it is the Committee's belief that the time frame is adequate to
hold a pre-hearing conference.
Several comments suggested that Sec. 900.163 be amended to impose a
clear and convincing evidence burden of proof on the Secretary. This
recommendation was rejected because it is different from the statutory
burden of proof in Section 102(a)(2) of the Act.
Several comments recommended rewriting the question in Sec. 900.163
to include all appealable issues. This recommendation was not adopted
because the burden of proof is on the appellant to show by a
preponderance of the evidence that the agency erred for issues under
appeals in Secs. 900.150(h), (i), and (j). This is consistent with the
usual Administrative Procedure Act standard.
One comment objected to the agency which is one of the parties to
the appeal making the final decision in Sec. 900.167. The regulatory
provision is consistent with the Act. Section 102(e)(2) of the Act
provides that any decision which represents final agency action shall
be made ``by an official of the Department who holds a position at a
higher organizational level within the Department * * * than the agency
* * * in which the decision was made'' or by an administrative judge.
Several comments noted that Subpart L does not address the
statutory right of Indian tribes to recover attorney fees under the
Equal Access to Justice Act (EAJA). In response to these comments, a
new section was added at the end of Subpart L clarifying that EAJA
applies to administrative appeals under this Subpart, and cross-
referencing the appropriate EAJA regulations.
Subpart M--Federal Tort Claims Act Coverage
Summary of Subpart
Coverage of the Federal Tort Claims Act (FTCA) has been extended to
Indian tribes, tribal organizations and Indian contractors carrying out
contracts, grants, and cooperative agreements under the Act. This
subpart explains which tort claims are covered by the FTCA and which
tort claims are not covered by the FTCA, for both medical and non-
medical related claims. It also provides for tribal assistance in
giving notice of tort claims to the Federal agency involved, and in
providing assistance during the administrative claim or litigation
process.
Summary of Comments
Two comments stated that there should be no distinction between
medical-related and non-medical-related functions under self-
determination contracts for purposes of FTCA coverage, defense or
payment. This comment was rejected because the medical provisions have
a unique history grounded in the Public Health Service Act, and in
Section 102(d) of the Act.
Several comments expressed concern that the proposed regulations
lacked guidance regarding insurance. Insurance is beyond the scope of
FTCA authority for these regulations.
Several comments stated that portions of this Subpart reflect a
fundamental misunderstanding of the scope of the Federal government's
obligation to defend and indemnify tribal contractors for non-tort
claims and claims outside the contract. Another set of comments
requested that Sec. 900.183 be amended to explain that an Indian tribe
or tribal organization may not be sued for claims beyond the scope of
the FTCA arising out of the performance of self-determination contacts.
In amending Sec. 900.183, the Committee determined to narrow the scope
of the regulation strictly to the remedial FTCA provisions of section
102(d) of the Act and section 314 of Public Law 101-512, as required by
section 107(a)(1) of the Act. The Committee therefore chose not to
address the extent to which Indian
[[Page 32498]]
tribes or tribal organizations are protected from suits on other
claims, which is beyond the scope of these regulations.
One comment recommended that ``Indian contractor,'' as defined in
Sec. 900.181(a), should be expanded to include non-medical services as
well as medical services. Although the Eighth Circuit Court of Appeals
(see FGS Constructors, Inc. v. Carlow, 64 F.3d 1230) has interpreted
this provision as applying only to health programs, Sec. 900.181(a)(3)
was added to reflect the desire of some Indian tribes to continue
disputing the scope of this term.
One comment recommended deleting Sec. 900.181(b) since ``contract''
is defined elsewhere. The comment was adopted.
One comment suggested clarifying Sec. 900.183(a) by stating with
specificity which tort claims are barred. The comment was adopted and
this section was changed.
One comment recommended Sec. 900.183(b) be amended by adding a new
subsection including activities performed by an employee which are
outside of the scope of employment. The comment was adopted.
One comment asked what law will be used to implement breach of
contract claims and whether tribal contractors are subject to Federal
employment statutes. The comment was rejected because this subject is
beyond the scope of regulatory authority under section 107(a)(1) of the
Act.
One comment questioned the reference to violations of the U.S.
Constitution in Sec. 900.183(b)(4). The provision was deleted. As
sovereigns pre-existing the Constitution, Indian tribes have
historically been regarded as unconstrained by those constitutional
provisions framed specifically as limitations on Federal and state
authority. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978).
To the extent applicable, 28 U.S.C. 2679(b)(2) continues to be
relevant.
Several comments asked whether tribal law applied to tort claims.
No change was made because state law applies to the determination of
liability for tort claims under the FTCA.
One comment suggested amending Sec. 900.188(c)(7) to add
``including Federal employees assigned to the contractor,'' after the
word ``employees.'' The comment was adopted and the sentence re-
written.
Two comments recommended that the notice requirements of 28 U.S.C.
2679(c) be referenced in Sec. 900.188(b). Also, one comment suggested
adding the same notice provision to Sec. 900.203. The comments were
adopted.
One comment recommended synchronizing Sec. 900.206 with
Sec. 900.192 so that the list of employees covered for non-medical-
related claims is the same as for medical-related claims. The comment
was adopted.
Subpart N--Post-Award Contract Disputes
Summary of Subpart
Under section 110(d) of the Act, the Contract Disputes Act (CDA)
applies to post-award contract claims. This subpart explains when a CDA
claim can be filed, the contents of a claim, and where to file the
claim. It also explains the difference in the handling of claims over
$100,000 and those less than that amount.
Summary of Comments
Several comments recommended that language from the withdrawn 1994
NPRM regarding the application of the Equal Access to Justice Act be
incorporated into the Subpart. The comments were adopted by adding
Sec. 900.216(c).
Several comments recommended adding paragraph 900.805(k) from the
withdrawn 1994 NPRM regarding using accounting principles as ``guides''
rather ``rigid measures'' in IBCA appeals. The comments were adopted
and a new section was added.
One comment was concerned that Sec. 900.217 was silent regarding
the Tribal Court system alternative for alternative disputes
resolution. A change was made in Sec. 900.217(b) to adopt this
recommendation. Two comments indicated that Sec. 900.217(b) needs to
add the right of the tribe, if it desires, to file in Federal District
Court or the Court of Federal Claims. This concern is already addressed
in Sec. 900.222.
Several comments recommended that Sec. 900.220(b) be revised to
read: ``supporting documents or data are accurate and complete to the
best of the Indian tribe or tribal organization's knowledge and
belief.'' The comments were adopted.
Two comments recommended that Sec. 900.224 be amended so that delay
of the awarding official in making a final decision should be treated
as though the claim were approved, rather than denied. These comments
were rejected because the existing language is statutory.
Several comments recommended adding the following language to
Sec. 900.227: ``If a decision is withdrawn and a new decision
acceptable to the contractor is not issued, the contractor may proceed
with the appeal based on the new decision or, if no new decision is
issued, proceed under Sec. 900.224.'' The comments were adopted and a
new Sec. 900.227(c) was added.
One comment expressed concern that Sec. 900.230(a) requires an
Indian tribe to keep performing its contract in spite of the
possibility that the claim being appealed represents crucial operating
funds from the contact. This is addressed by the limitation of cost
clause of the model contract.
Subpart O--Conflicts of Interest
Summary of Subpart
Section 900.231 defines an organizational conflict of interest, and
Sec. 900.233 defines personal conflicts of interest which could affect
self-determination contracts. The balance of the subpart advises Indian
tribes what must be done in the event a conflict arises. The subpart
also provides that Indian tribes may elect to negotiate specific
conflicts provisions on a contract-by-contract basis.
Summary of Comments
The area of conflict of interests--where an Indian tribe or tribal
organization's and/or their employees' administrations of a self-
determination contract affecting allottees and others could be impaired
by financial bias--raises difficult questions for DOI, including the
proper balance between the Federal-tribal government-to-government
relationship and the Secretary's mandated trust responsibility.
Additional issues include the degree of monitoring required for
conflicts, if any, where the United States contracts with Indian tribes
to perform duties that directly affect the statutory rights of third
parties. In attempting to reconcile these difficult questions, the DOI
has opted for an approach that seeks to minimize intrusion and burden
to Indian tribes and tribal organizations, yet provides for a degree of
accountability where conflicts arise.
The Committee reached consensus on a personal conflict of interest
provision in the procurement management standards in Subpart F. The
Federal committee members believed this section should be supplemented
by a regulation addressing conflicts of the Indian tribe or tribal
organization itself and conflicts of individual employees involved in
trust resource management. These regulations appear in Subpart O of the
final regulation and only apply to contracts awarded by the DOI.
Several comments on the NPRM noted that no provision on conflicts
of interest has previously been adopted in the 20 years of contracting
trust
[[Page 32499]]
programs. The need to address the conflicts issue in some form has
become more apparent as the DOI's experience with 638 contracts has
increased.
Some comments assert that excellent tribal track records make it
clear that no federal regulation is necessary. Several other comments
state that the NPRM proposal suggests that in the absence of regulation
Indian tribes will engage in fraudulent actions. The DOI does not
contend that there is a widespread problem of unmitigated conflicts of
interest. Rather it is adopting the rule in recognition of its
responsibility as trustee to ensure that in a trust relationship, the
acts of its agents are in accordance with high fiduciary standards.
Therefore, the rule is intended to protect trust beneficiaries. Because
the regulation only requires an Indian tribe or tribal organization to
provide notice in the case of an organizational conflicts of interest,
compliance should not be burdensome.
Several comments stated that any potential conflict between a tribe
and allottees is no different than any other relationship between a
government and its citizens, where a government uses its own employees
to value private land to be condemned for government purposes. Several
other comments state the NPRM's ``organizational conflict'' proposal
was vague and nonsensical since the United States retains a residual
component (such as lease approval or taking fee land into trust status)
which gives the DOI ample opportunity to protect the interests of the
United States. A related comment stated that this proposal appeared to
pass on to Indian tribes the costs of the federal government's
continuing responsibilities as trustee, constituting an unauthorized
failure to perform non-delegable functions.
The final regulations do address organizational conflicts, because
there is a significant difference between the obligation of a trustee
to a beneficiary and that of a government to a citizen. In response to
these comments, the DOI significantly altered the organizational
conflicts regulation from the NPRM. First, the final regulation clearly
states that it only applies when the contract affects the interests of
allottees, trust resources or statutory obligations to third parties.
Second, the Indian tribe or tribal organization is only required to
provide notice to the federal government when such a situation arises,
that is not already covered in their 638 contract.
Several Indian tribes commented that Federal regulations must not
dictate internal tribal operations in the area of personal conflicts of
interest. Some of them acknowledge that the federal proposal would not
be particularly burdensome, but state that it is inconsistent with the
federal policy of Indian self-determination.
The personal conflict of interest provisions are narrowly drawn to
cover only trust programs. While there is a strong federal policy of
Indian self-determination, there is also a strong federal policy of
strict adherence to the trust responsibilities arising from treaty and
statute. The self-determination statute does not sever the fiduciary
relationship between the United States and Indian trust beneficiaries.
For this reason the ethical standards involved are not solely an
internal tribal concern.
One comment recommended reliance on tribal codes, supplemented by
negotiated contract provisions, to protect against personal conflicts
of interest. The comment analogized the federal proposal to
unsatisfactory past experiences with BIA ``model codes.''
The rule accommodates tribal codes and negotiated contract
provisions, that the Department agrees would be the ideal manner in
which to address conflicts. However it also provides a rule to apply in
the absence of tribal code or contract terms that adequately protect
trust beneficiaries from conflicts of interest.
Several comments agree that regulations should address the problem
of conflicts of interest arising from familial relations,
organizational relations where elected officials also serve in
programmatic capacities, and financial relations. These comments
suggest that Indian tribes be authorized to employ their own written
codes of standards of conducts. Until the Secretary approves such
codes, the comments suggest terms that should apply that draw upon
standards applicable to federal employees and other government
contractors.
The Department agrees that regulations are needed and has provided
in Sec. 900.236 that it will negotiate conflicts provisions in
contracts, to displace these regulations if there is agreement to
provide equivalent protection to these regulations. The Department's
regulations focus solely on financial interests, and not familial and
organizational relations, believing that the latter is more susceptible
to internal tribal regulation. Because of concerns about tribal
sovereignty, the final regulation does not require Departmental
approval of tribal codes, except as agreed to in individual contract
negotiations.
Some comments described the proposal in the NPRM as presenting
micro-management opportunities for federal agency personnel
inconsistent with a government-to-government relationship. To avoid
micro-management, the final rule was modified, in the case of
organizational conflicts, to require only notice to the DOI when and
Indian tribe or tribal organization learns of the existence of a
conflict. No mitigation plan, as proposed in the 1996 NPRM, is
required. The personal conflicts regulation only requires the Indian
tribe to address the conflict in a manner that enables the Department
to meet its trust responsibilities.
Some comments recommended that Indian tribes and the DOI rely on
contract-by-contract negotiations for addressing conflicts provision.
As mentioned earlier, because of the trust and legal responsibilities
of the Department, the regulations are necessary to address situations
where terms cannot be negotiated in the short time permitted for
negotiation.
Several Indian tribes commented that the Government does not
similarly regulate its own actions, and consult with Indian tribes
concerning conflicts with actions proposed on allottee properties. The
DOI agrees that consultations is appropriate, but recognized that it
has a very high duty to assure that actions taken with respect to
allottee properties are consistent with its fiduciary responsibilities
to those allottees. The rule does not require consultation with
allottees on actions concerning tribal lands, or vice versa.
One comment written on behalf of several individual owners of trust
resources, strongly supported the adoption of minimum standards to
assure the integrity of the performance and administration of trust
resources. The comment suggests that, at a minimum trust resources be
subject to the same conflict standards applied to procurement in the
proposed Sec. 900.48.
The final rule is very similar to the agreed provisions in
Sec. 900.48.
Subpart P--Retrocession and Reassumption Procedures
Summary of Subpart
Section 107(a)(1) of the Act authorizes the Secretaries to
promulgate regulations governing retrocession and reassumption
procedures. Sections 900.240 through 900.245 define retrocession, what
entities are entitled to retrocede, tribal rights for contracting and
funding as a result of retrocession, and tribal obligations regarding
the return of property to the Secretary after retrocession.
Sections 900.246 through 900.256 explain what is meant by
reassumption,
[[Page 32500]]
the two types of reassumption authorized under the Act, necessary
circumstances when using emergency and non-emergency reassumption
authority, and Secretarial responsibilities, including detailed written
notice requirements when reassumption is invoked. The subpart describes
a number of activities after reassumption has been completed, such as
authorization for ``wind up'' costs, tribal obligations regarding the
return of property to the Secretary, and a funding reduction
protection.
Summary of Comments
One comment recommended that the phrase ``may retrocede a
contract'' be added to the end of the answer in Sec. 900.232 to provide
a more complete answer to the question of who may retrocede a contract.
This suggestion adds clarity to the answer, and has been adopted.
Several comments recommended that an additional question and answer
be added to address when a retrocession becomes effective. The
recommended language is contained in the Act, provides meaningful
information to the users of this regulation, and has been adopted and
inserted as a new Sec. 900.233.
Several comments recommended that the term ``fair market'' be added
to the answer in Sec. 900.236 and Sec. 900.246 in describing the value
of property to be returned to the Secretary in the event of a
retrocession or reassumption. While the essence of this recommendation
has been adopted, to remain consistent throughout the regulation the
definition of ``fair market'' as provided in Subpart I will be restated
in this Subpart. (Subpart I states ``current fair market value, less
the cost of improvements borne by the Indian tribe or tribal
organization in excess of $5,000.'') Also, for clarity the word
``requested'' has been added to the answer in Sec. 900.236 in
describing property to be returned to the Secretary.
One comment recommended that the answer provided in Sec. 900.238,
which has (a) and (b) components, be reversed to track the order of the
question and avoid confusion. This recommendation has been adopted to
promote uniformity in this question and answer.
A comment recommended language be added to the answer in
Sec. 900.239 incorporating the option for the award of grants to Indian
tribes from the Secretary for technical assistance to overcome non-
emergency deficiencies. While the exact language suggested is not used,
the recommendation has been adopted since such grants are authorized
under the Act.
Several comments recommended that language be added to
Sec. 900.238(b)(1) dealing with the conditions for emergency
reassumptions. These comments were not adopted because the language now
contained in Sec. 900.238(b)(1) precisely tracks the Act and the
suggested additional language may confuse statutory intent.
One comment recommended that a statement be added to Sec. 900.242
that the Secretary will not rescind a contract until there is a final
decision in any administrative hearing or appeal on a non-emergency
reassumption. This recommendation has been adopted.
Internal Agency Procedures
The Departments' position is that a comprehensive manual for the
internal management of self-determination contracts should not be
developed through the formal rulemaking process. Internal agency
procedures are more appropriately developed outside the negotiated
rulemaking process, to allow flexibility in addressing practical
considerations which arise in the field, and to allow maximum
participation from those agency officials who bear much of the
responsibility for implementing the Act to its fullest capability. The
Federal position supports a joint tribal and Federal commitment to work
together to generate a procedural manual which will promote the
purposes underlying the Indian Self-Determination Act and facilitate
contracting by Indian tribes and tribal organizations.
One goal of the full committee is to have uniform procedures for
the implementation and interpretation of the act and these regulations
which apply to all Federal agencies which administer contracted
programs. The Federal members of the committee propose that the parties
formally agree to work together to develop a manual which guides all
contracting agencies through the contracting process. This is
consistent with the position taken by the work group charged with
making recommendations regarding internal agency procedures.
To that end, Federal committee members would commit to a firm time
line within which to produce a manual.
Administrative Matters
This rule is a significant regulatory action Executive Order 12866
and requires review by the Office of Management and Budget.
The Departments certify that this rule will not have significant
economic effects on a substantial number of small entities under the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
In accordance with Executive Order 12630 the Department of the
Interior and the Department of Health and Human Services have
determined that this regulation does not have significant takings
implications. The rule does not pertain to the taking of private
property interests, nor does it have an effect on private property.
The Department of the Interior and the Department of Health and
Human Services have determined that this rule does not have significant
Federalism effects under Executive Order 12612 and will not interfere
with the roles, rights, and responsibilities of states.
The Departments of the Interior and Health and Human Services have
determined that this rule does not constitute a major Federal action
significantly affecting the quality of the human environment and that
no detailed statement is required under the National Environmental
policy Act of 1969.
This rule imposes no unfunded mandates on any governmental or
private entity in excess of $100 million annually and is in compliance
with the provisions of the Unfunded Mandates Act of 1995.
Paperwork Reduction Act of 1995
The Office of Management and Budget has approved, under 44 U.S.C.
chapter 35, the information collection requirements in part 900 under
assigned control number 1076-0136. The information for part 900 is
being collected and used by the Departments to determine applicant
eligibility, evaluate applicant capabilities, protect the service
population, safeguard Federal funds and other resources, and permit the
Departments to administer and evaluate contract programs.
The Departments estimate that the average burden of complying with
the collection, broken down by subpart, will be as follows: Subpart C
(Contract Proposal Contents), 222 hours; Subpart F (Standards for
Tribal or Tribal Organization Management Systems), 250 hours; Subpart G
(Programmatic Reports and Data Requirements), 150 hours; Subpart I
(Property Donation Procedures), 10 hours; Subpart J (Construction), 564
hours; Subpart K (Waiver Procedures), 10 hours; and Subpart L
(Appeals), 40 hours.
Responses to the collection of information under this regulation
are required in order for Indian tribes or tribal organizations to
obtain or retain benefits under the Act. However, not every tribal
contractor will need to respond to each request for information
contained in the regulation, as some of the requests pertain to
specific
[[Page 32501]]
situations or to certain types of self-determination contracts.
Moreover, under section 5(f)(2) of the Act, tribal organizations are
given authority to negotiate their individual reporting requirements
with the Secretary on a contract-by-contract basis. Any disagreements
over reporting requirements are subject to the declination criteria and
procedures in section 102 of the Act and subpart E of the regulation.
There is no assurance of confidentiality provided to respondents
concerning this information collection.
The Departments may not conduct or sponsor a collection of
information, nor are Indian tribes or tribal organizations or other
persons required to respond to such collections unless the Departments
display a currently valid OMB control number.
List of Subjects in 25 CFR Part 900
Indians; Administrative practice and procedure, Buildings and
facilities, Claims, Government contracts, Grant programs--Indians,
Health care, Indians--business and finance, Government property
management.
For the reasons given in the preamble, the Departments of the
Interior and Health and Human Services hereby establish a new part 900
in chapter V of title 25 of the Code of Federal Regulations as set
forth below.
Dated: June 14, 1996.
Bruce Babbitt,
Secretary of the Interior.
Dated: June 13, 1996.
Donna Shalala,
Secretary of Health and Human Services.
CHAPTER V--BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR, AND
INDIAN HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN SERVICES
PART 900--CONTRACTS UNDER THE INDIAN SELF-DETERMINATION AND
EDUCATION ASSISTANCE ACT
Subpart A--General Provisions
Sec.
900.1 Authority.
900.2 Purpose and scope.
900.3 Policy statements.
900.4 Effect on existing tribal rights.
900.5 Effect of these regulations on Federal program guidelines,
manual, or policy directives.
Subpart B--Definitions
900.6 Definitions.
Subpart C--Contract Proposal Contents
900.7 What technical assistance is available to assist in preparing
an initial contract proposal?
900.8 What must an initial contract proposal contain?
900.9 May the Secretary require an Indian tribe or tribal
organization to submit any other information beyond that identified
in 900.8?
900.10 How does an Indian tribe or tribal organization secure a
list of all Federal property currently in use in carrying out the
programs, functions, services, or activities that benefit the Indian
tribe or tribal organization to assist in negotiating a contract?
900.11 What should an Indian tribe or tribal organization that is
proposing a contract do about specifying the Federal property that
the Indian tribe or tribal organization may wish to use in carrying
out the contract?
900.12 Are the proposal contents requirements the same for renewal
of a contract that is expiring and for securing an annual funding
agreement after the first year of the funding agreement?
900.13 Does the contract proposal become part of the final
contract?
Subpart D--Review and Approval of Contract Proposals
900.14 What does this Subpart cover?
900.15 What shall the Secretary do upon receiving a proposal?
900.16 How long does the Secretary have to review and approve the
proposal and award the contract, or decline a proposal?
900.17 Can the statutory 90-day period be extended?
900.18 What happens if a proposal is not declined within 90 days
after it is received by the Secretary?
900.19 What happens when a proposal is approved?
Subpart E--Declination Procedures
900.20 What does this Subpart cover?
900.21 When can a proposal be declined?
900.22 For what reasons can the Secretary decline a proposal?
900.23 Can the Secretary decline a proposal where the Secretary's
objection can be overcome through the contract?
900.24 Can a contract proposal for an Indian tribe's or tribal
organization's share of administrative programs, functions,
services, and activities be declined for any reason other than the
five reasons specified in Sec. 900.22
900.25 What if only a portion of a proposal raises one of the five
declination criteria?
900.26 What happens if the Secretary declines a part of a proposal
on the ground that the proposal proposes in part to plan, conduct,
or administer a program, function, service or activity that is
beyond the scope of programs covered under section 102(a) of the
Act, or proposes a level of funding that is in excess of the
applicable level determined under section 106(a) of the Act?
900.27 If an Indian tribe or tribal organization elects to contract
for a severable portion of a proposal, does the Indian tribe or
tribal organization lose its appeal rights to challenge the portion
of the proposal that was declined?
900.28 Is technical assistance available to an Indian tribe or
tribal organization to avoid declination of a proposal?
900.29 What is the Secretary required to do if the Secretary
decides to decline all or a portion of a proposal?
900.30 When the Secretary declines all or a portion of a proposal,
is the Secretary required to provide an Indian tribe or tribal
organization with technical assistance?
900.31 When the Secretary declines all or a portion of a proposal,
is an Indian tribe or tribal organization entitled to any appeal?
900.32 Can the Secretary decline an Indian tribe or tribal
organization's proposed successor annual funding agreement?
900.33 Are all proposals to renew term contracts subject to the
declination criteria?
Subpart F--Standards for Tribal or Tribal Organization Management
Systems
General
900.35 What is the purpose of this Subpart?
900.36 What requirements are imposed upon Indian tribes or tribal
organizations by this Subpart?
900.37 What provisions of Office of Management and Budget (OMB)
circulars or the ``common rule'' apply to self-determination
contracts?
900.38 Do these standards apply to the subcontractors of an Indian
tribe or tribal organization carrying out a self-determination
contract?
900.39 What is the difference between a standard and a system?
900.40 When are Indian tribe or tribal organization management
standards and management systems evaluated?
900.41 How long must an Indian tribe or tribal organization keep
management system records?
Standards for Financial Management Systems
900.42 What are the general financial management system standards
that apply to an Indian tribe carrying out a self-determination
contract?
900.43 What are the general financial management system standards
that apply to a tribal organization carrying out a self-
determination contract?
900.44 What minimum general standards apply to all Indian tribe or
tribal organization financial management systems when carrying out a
self-determination contract?
900.45 What specific minimum requirements shall an Indian tribe or
tribal organization's financial management system contain to meet
these standards?
900.46 What requirements are imposed upon the Secretary for
financial management by these standards?
[[Page 32502]]
Procurement Management System Standards
900.47 When procuring property or services with self-determination
contract funds, can an Indian tribe or tribal organization follow
the same procurement policies and procedures applicable to other
Indian tribe or tribal organization funds?
900.48 If the Indian tribe or tribal organization does not propose
different standards, what basic standards shall the Indian tribe or
tribal organization follow?
900.49 What proc
FR Doc. 96-15793 Indian Self-Determination and Education Assistance Act Amendments
urement standards apply to subcontracts?
900.50 What Federal laws, regulations, and Executive Orders apply
to sub-contractors?
Property Management System Standards
900.51 What is an Indian tribe or tribal organization's property
management system expected to do?
900.52 What type of property is the property management system
required to track?
900.53 What kind of records shall the property management system
maintain?
900.54 Should the property management system prescribe internal
controls?
900.55 What are the standards for inventories?
900.56 What maintenance is required for property?
900.57 What if the Indian tribe or tribal organization chooses not
to take title to property furnished or acquired under the contract?
900.58 Do the same accountability and control procedures described
above apply to Federal property?
900.59 How are the inventory requirements for Federal property
different than for tribal property?
900.60 How does an Indian tribe or tribal organization dispose of
Federal property?
Subpart G--Programmatic Reports and Data Requirements
900.65 What programmatic reports and data shall the Indian tribe or
tribal organization provide?
900.66 What if the Indian tribe or tribal organization and the
Secretary cannot come to an agreement concerning the type and/or
frequency of program narrative and/or program data report(s)?
900.67 Will there be a uniform data set for all IHS programs?
900.68 Will this uniform data set be required of all Indian tribe
or tribal organizations contracting with the IHS under the Act?
Subpart H--Lease of Tribally-Owned Buildings by the Secretary
900.69 What is the purpose of this Subpart?
900.70 What elements are included in the compensation for a lease
entered into between the Secretary and an Indian tribe or tribal
organization for a building owned or leased by the Indian tribe or
tribal organization that is used for administration or delivery of
services under the Act?
900.71 What type of reserve fund is anticipated for funds deposited
into a reserve for replacement of facilities as specified in
Sec. 900.70(c)?
900.72 Who is the guardian of the fund and may the funds be
invested?
900.73 Is a lease with the Secretary the only method available to
recover the types of cost described in 900.70?
900.74 How may an Indian tribe or tribal organization propose a
lease to be compensated for the use of facilities?
Subpart I--Property Donation Procedures
General
900.85 What is the purpose of this Subpart?
900.86 How will the Secretary exercise discretion to acquire and
donate BIA or IHS excess property and excess and surplus Federal
property to an Indian tribe or tribal organization?
Government-Furnished Property
900.87 How does an Indian tribe or tribal organization obtain title
to property furnished by the Federal government for use in the
performance of a contract or grant agreement pursuant to section
105(f)(2)(A) of the Act?
900.88 What should the Indian tribe or tribal organization do if it
wants to obtain title to government-furnished real property that
includes land not already held in trust?
900.89 When may the Secretary elect to reacquire government-
furnished property whose title has been transferred to an Indian
tribe or tribal organization?
900.90 Does government-furnished real property to which an Indian
tribe or tribal organization has taken title continue to be eligible
for facilities operation and maintenance funding from the Secretary?
Contractor-Purchased Property
900.91 Who takes title to property purchased with funds under a
self-determination contract or grant agreement pursuant to section
105(f)(2)(A)?
900.92 What should the Indian tribe or tribal organization do if it
wants contractor-purchased real property to be taken into trust?
900.93 When may the Secretary elect to acquire title to contractor-
purchased property?
900.94 Is contractor-purchased real property to which an Indian
tribe or tribal organization holds title eligible for facilities
operation and maintenance funding from the Secretary?
BIA and IHS Excess Property
900.95 What is BIA or IHS excess property?
900.96 How can Indian tribes or tribal organizations learn about
BIA and IHS excess property?
900.97 How can an Indian tribe or tribal organization acquire
excess BIA or IHS property?
900.98 Who takes title to excess BIA or IHS property donated to an
Indian tribe or tribal organization?
900.99 Who takes title to any land that is part of excess BIA or
IHS real property donated to an Indian tribe or tribal organization?
900.100 May the Secretary elect to reacquire excess BIA or IHS
property whose title has been transferred to an Indian tribe or
tribal organization?
900.101 Is excess BIA or IHS real property to which an Indian tribe
or tribal organization has taken title eligible for facilities
operation and maintenance funding from the Secretary?
Excess or Surplus Government Property of Other Agencies
900.102 What is excess or surplus government property of other
agencies?
900.103 How can Indian tribes or tribal organizations learn about
property that has been designated as excess or surplus government
property?
900.104 How may an Indian tribe or tribal organization receive
excess or surplus government property of other agencies?
900.105 Who takes title to excess or surplus Federal property
donated to an Indian tribe or tribal organization?
900.106 If a contract or grant agreement or portion thereof is
retroceded, reassumed, terminated, or expires, may the Secretary
reacquire title to excess or surplus Federal property of other
agencies that was donated to an Indian tribe or tribal organization?
Property Eligible for Replacement Funding
900.107 What property to which an Indian tribe or tribal
organization obtains title under this Subpart is eligible for
replacement funding?
Subpart J--Construction
900.110 What does this Subpart cover?
900.111 What activities of construction programs are contractible?
900.112 What are construction phases?
900.113 Definitions.
900.114 Why is there a separate subpart in these regulations for
construction contracts and grants?
900.115 How do self-determination construction contracts relate to
ordinary Federal procurement contracts?
900.116 Are negotiated fixed-price contracts treated the same as
cost-reimbursable contracts?
900.117 Do these ``construction contract'' regulations apply to
planning services?
900.118 Do these ``construction contract'' regulations apply to
construction management services?
900.119 To what extent shall the Secretary consult with affected
Indian tribes before spending funds for any construction project?
900.120 How does an Indian tribe or tribal organization find out
about a construction project?
900.121 What happens during the preplanning phase and can an Indian
tribe or tribal organization perform any of the activities involved
in this process?
900.122 What does an Indian tribe or tribal organization do if it
wants to secure a construction contract?
[[Page 32503]]
900.123 What happens if the Indian tribe or tribal organization and
the Secretary cannot develop a mutually agreeable contract proposal?
900.124 May the Indian tribe or tribal organization elect to use a
grant in lieu of a contract?
900.125 What shall a construction contract proposal contain?
900.126 Shall a construction contract proposal incorporate
provisions of Federal construction guidelines and manuals?
900.127 What can be included in the Indian tribe or tribal
organizations contract budget?
900.128 What funding shall the Secretary provide in a construction
contract?
900.129 How do the Secretary and Indian tribe or tribal
organization arrive at an overall fair and reasonable price for the
performance of a construction contract?
900.130 What role does the Indian tribe or tribal organization play
during the performance of a self-determination construction
contract?
900.131 What role does the Secretary play during the performance of
a self-determination construction contract?
900.132 Once a contract and/or grant is awarded, how will the
Indian tribe or tribal organization receive payments?
900.133 Does the declination process or the Contract Dispute Act
apply to construction contract amendments proposed either by an
Indian tribe or tribal organization or the Secretary?
900.134 At the end of a self-determination construction contract,
what happens to savings on a cost-reimbursement contract?
900.135 May the time frames for action set out in this Subpart be
reduced?
900.136 Do tribal employment rights ordinances apply to
construction contracts and subcontracts?
900.137 Do all provisions of the other subparts apply to contracts
awarded under this subpart?
Subpart K--Waiver Procedures
900.140 Can any provision of the regulations under this Part be
waived?
900.141 How does an Indian tribe or tribal organization get a
waiver?
900.142 Does an Indian tribe or tribal organization's waiver
request have to be included in an initial contract proposal?
900.143 How is a waiver request processed?
900.144 What happens if the Secretary makes no decision within the
90-day period?
900.145 On what basis may the Secretary deny a waiver request?
900.146 Is technical assistance available for waiver requests?
900.147 What appeal rights are available?
900.148 How can an Indian tribe or tribal organization secure a
determination that a law or regulation has been superseded by the
Indian Self-Determination Act, as specified in section 107(b) of the
Act?
Subpart L--Appeals
Appeals Other Than Emergency Reassumption and Suspension, Withholding
or Delay in Payment
900.150 What decisions can an Indian tribe or tribal organization
appeal under this Subpart?
900.151 Are there any appeals this part does not cover?
900.152 How does an Indian tribe or tribal organization know where
and when to file its appeal from decisions made by agencies of DOI
or DHHS?
900.153 Does an Indian tribe or tribal organization have any
options besides an appeal?
900.154 How does an Indian tribe or tribal organization request an
informal conference?
900.155 How is an informal conference held?
900.156 What happens after the informal conference?
900.157 Is the recommended decision always final?
900.158 How does an Indian tribe or tribal organization appeal the
initial decision, if it does not request an informal conference or
if it does not agree with the recommended decision resulting from
the informal conference?
900.159 May an Indian tribe or tribal organization get an extension
of time to file a notice of appeal?
900.160 What happens after an Indian tribe or tribal organization
files an appeal?
900.161 How is a hearing arranged?
900.162 What happens when a hearing is necessary?
900.163 What is the Secretary's burden of proof for appeals from
decisions under Sec. 900.150(a) through Sec. 900.150(g)?
900.164 What rights do Indian tribes, tribal organizations, and the
government have during the appeal process?
900.165 What happens after the hearing?
900.166 Is the recommended decision always final?
900.167 If an Indian tribe or tribal organization objects to the
recommended decision, what will the Secretary of Health and Human
Services or the IBIA do?
900.168 Will an appeal hurt the Indian tribe or tribal
organization's position in other contract negotiations?
900.169 Will the decisions on appeals be available for the public
to review?
Appeals of Emergency Reassumption of Self-Determination Contracts or
Suspensions, Withholding or Delay of Payments Under a Self-
Determination Contract
900.170 What happens in the case of emergency reassumption or
suspension or withholding or delay of payments?
900.171 Will there be a hearing?
900.172 What happens after the hearing?
900.173 Is the recommended decision always final?
900.174 If an Indian tribe or tribal organization objects to the
recommended decision, what will the Secretary of Health and Human
Services or the IBIA do?
900.175 Will an appeal hurt an Indian tribe or tribal
organization's position in other contract negotiations?
900.176 Will the decisions on appeals be available for the public
to review?
Applicability of the Equal Access to Justice Act
900.177 Does the Equal Access to Justice Act (EAJA) apply to
appeals under this subpart?
Subpart M--Federal Tort Claims Act Coverage General Provisions
900.180 What does this Subpart cover?
900.181 What definitions apply to this subpart?
900.182 What other statutes and regulations apply to FTCA coverage?
900.183 Do Indian tribes and tribal organizations need to be aware
of areas which FTCA does not cover?
900.184 Is there a deadline for filing FTCA claims?
900.185 How long does the Federal government have to process an
FTCA claim after the claim is received by the Federal agency, before
a lawsuit may be filed?
900.186 Is it necessary for a self-determination contract to
include any clauses about Federal Tort Claims Act coverage?
900.187 Does FTCA apply to a self-determination contract if FTCA is
not referenced in the contract?
900.188 To what extent shall the contractor cooperate with the
Federal government in connection with tort claims arising out of the
contractor's performance?
900.189 Does this coverage extend to subcontractors of self-
determination contracts?
Medical-Related Claims
900.190 Is FTCA the exclusive remedy for a tort claim for personal
injury or death resulting from the performance of a self-
determination contract?
900.191 Are employees of self-determination contractors providing
health services under the self-determination contract protected by
FTCA?
900.192 What employees are covered by FTCA for medical-related
claims?
900.193 Does FTCA coverage extend to individuals who provide health
care services under a personal services contract providing services
in a facility that is owned, operated, or constructed under the
jurisdiction of the IHS?
900.194 Does FTCA coverage extend to services provided under a
staff privileges agreement with a non-IHS facility where the
agreement requires a health care practitioner to provide reciprocal
services to the general population?
900.195 Does FTCA coverage extend to the contractor's health care
practitioners providing services to private patients on a fee-for-
services basis when such personnel (not the self-determination
contractor) receive the fee?
[[Page 32504]]
900.196 Do covered services include the conduct of clinical studies
and investigations and the provision of emergency services,
including the operation of emergency motor vehicles?
900.197 Does FTCA cover employees of the contractor who are paid by
the contractor from funds other than those provided through the
self-determination contract?
900.198 Are Federal employees assigned to a self-determination
contractor under the Intergovernmental Personnel Act or detailed
under section 214 of the Public Health Service Act covered to the
same extent that they would be if working directly for a Federal
agency?
900.199 Does FTCA coverage extend to health care practitioners to
whom staff privileges have been extended in contractor health care
facilities operated under a self-determination contract on the
condition that such practitioner provide health services to IHS
beneficiaries covered by FTCA?
900.200 May persons who are not Indians or Alaska Natives assert
claims under FTCA?
Procedure for Filing Medical-Related Claims
900.201 How should claims arising out of the performance of
medical-related functions be filed?
900.202 What should a self-determination contractor or a
contractor's employee do on receiving such a claim?
900.203 If the contractor or contractor's employee receives a
summons and/or a complaint alleging a tort covered by FTCA, what
should the contractor do?
Non-Medical Related Claims
900.204 Is FTCA the exclusive remedy for a non-medical related tort
claim arising out of the performance of a self-determination
contract?
900.205 To what non-medical-related claims against self-
determination contractors does FTCA apply?
900.206 What employees are covered by FTCA for non-medical-related
claims?
900.207 How are non-medical related tort claims and lawsuits filed
for IHS?
900.208 How are non-medical related tort claims and lawsuits filed
for DOI?
900.209 What should a self-determination contractor or contractor's
employee do on receiving a non-medical related tort claim?
900.210 If the contractor or contractor's employee receives a
summons and/or complaint alleging a non-medical related tort covered
by FTCA, what should an Indian tribe or tribal organization do?
Subpart N--Post-Award Contract Disputes
900.215 What does this subpart cover?
900.216 What other statutes and regulations apply to contract
disputes?
900.217 Is filing a claim under the CDA our only option for
resolving post-award contract disputes?
900.218 What is a claim under the CDA?
900.219 How does an Indian tribe, tribal organization, or Federal
agency submit a claim?
900.220 Does it make a difference whether the claim is large or
small?
900.221 What happens next?
900.222 What goes into a decision?
900.223 When does an Indian tribe or tribal organization get the
decision?
900.224 What happens if the decision does not come within that
time?
900.225 Does an Indian tribe or tribal organization get paid
immediately if the awarding official decides in its favor?
900.226 What rules govern appeals of cost disallowances?
900.227 Can the awarding official change the decision after it has
been made?
900.228 Is an Indian tribe or tribal organization entitled to
interest if it wins its claim?
900.229 What role will the awarding official play during an appeal?
900.230 What is the effect of a pending appeal?
Subpart O--Conflicts of Interest
900.231 What is an organizational conflict of interest?
900.232 What must an Indian tribe or tribal organization do if an
organizational conflict of interest arises under a contract?
900.233 When must an Indian tribe or tribal organization regulate
its employees or subcontractors to avoid a personal conflict of
interest?
900.234 What types of personal conflicts of interest involving
tribal officers, employees or subcontractors would have to be
regulated by an Indian tribe?
900.235 What personal conflicts of interest must the standards of
conduct regulate?
900.236 May an Indian tribe elect to negotiate contract provisions
on conflict of interest to take the place of this regulation?
Subpart P--Retrocession and Reassumption Procedures
900.240 What does retrocession mean?
900.241 Who may retrocede a contract, in whole or in part?
900.242 What is the effective date of retrocession?
900.243 What effect will an Indian tribe or tribal organization's
retrocession have on its rights to contract?
900.244 Will an Indian tribe or tribal organization's retrocession
adversely affect funding available for the retroceded program?
900.245 What obligation does the Indian tribe or tribal
organization have with respect to returning property that was used
in the operation of the retroceded program?
900.246 What does reassumption mean?
900.247 Under what circumstances is a reassumption considered an
emergency instead of non-emergency reassumption?
900.248 In a non-emergency reassumption, what is the Secretary
required to do?
900.249 What happens if the contractor fails to take corrective
action to remedy the contract deficiencies identified in the notice?
900.250 What shall the second written notice include?
900.251 What is the earliest date on which the contract will be
rescinded in a non-emergency reassumption?
900.252 In an emergency reassumption, what is the Secretary
required to do?
900.253 What shall the written notice include?
900.254 May the contractor be reimbursed for actual and reasonable
``wind up costs'' incurred after the effective date of rescission?
900.255 What obligation does the Indian tribe or tribal
organization have with respect to returning property that was used
in the operation of the rescinded contract?
900.256 Will a reassumption adversely affect funding available for
the reassumed program?
Authority: 25 U.S.C. 450f et seq.
Subpart A--General Provisions
Sec. 900.1 Authority.
These regulations are prepared, issued, and maintained jointly by
the Secretary of Health and Human Services and the Secretary of the
Interior, with the active participation and representation of Indian
tribes, tribal organizations, and individual tribal members pursuant to
the guidance of the Negotiated Rulemaking procedures required by
section 107 of the Indian Self-Determination and Education Assistance
Act.
Sec. 900.2 Purpose and scope.
(a) General. These regulations codify uniform and consistent rules
for contracts by the Department of Health and Human Services (DHHS) and
the Department of the Interior (DOI) in implementing title I of the
Indian Self-Determination and Education Assistance Act, Public Law 93-
638, 25 U.S.C. 450 et seq., as amended and sections 1 through 9
preceding that title.
(b) Programs funded by other Departments and agencies. Included
under this part are programs administered (under current or future law
or interagency agreement) by the DHHS and the DOI for the benefit of
Indians for which appropriations are made to other Federal agencies.
(c) This part included in contracts by reference. Each contract,
including grants and cooperative agreements in lieu of contracts
awarded under section 9 of the Act, shall include by reference the
provisions of this part, and any amendment thereto, and they are
binding on the Secretary and the contractor except as otherwise
specifically authorized by a waiver under section 107(e) of the Act.
(d) Freedom of Information. Access to records maintained by the
Secretary is governed by the Freedom of Information Act (5 U.S.C. 552)
and other applicable
[[Page 32505]]
Federal law. Except for previously provided copies of tribal records
that the Secretary demonstrates are clearly required to be maintained
as part of the record keeping systems of the DHHS or the DOI, or both,
records of the contractors (including archived records) shall not be
considered Federal records for the purpose of the Freedom of
Information Act. The Freedom of Information Act does not apply to
records maintained solely by Indian tribes and tribal organizations.
(e) Privacy Act. Section 108(b) of the Indian Self-Determination
Act states that records of the tribal government or tribal
organizations shall not be considered Federal records for the purposes
of the Privacy Act.
(f) Information Collection. The Office of Management and Budget has
approved, under 44 U.S.C. chapter 35, the information collection
requirements in Part 900 under assigned control number 1076-0136. The
information for Part 900 is being collected and used by the Departments
to determine applicant eligibility, evaluate applicant capabilities,
protect the service population, safeguard Federal funds and other
resources, and permit the Departments to administer and evaluate
contract programs.
Sec. 900.3 Policy statements.
(a) Congressional policy.
(1) Congress has recognized the obligation of the United States to
respond to the strong expression of the Indian people for self-
determination by assuring maximum Indian participation in the
direction, planning, conduct and administration of educational as well
as other Federal programs and services to Indian communities so as to
render such programs and services more responsive to the needs and
desires of those communities.
(2) Congress has declared its commitment to the maintenance of the
Federal Government's unique and continuing relationship with, and
responsibility to, individual Indian tribes and to the Indian people as
a whole through the establishment of a meaningful Indian self-
determination policy which will permit an orderly transition from the
Federal domination of programs for, and services to, Indians to
effective and meaningful participation by the Indian people in the
planning, conduct, and administration of those programs and services.
In accordance with this policy, the United States is committed to
supporting and assisting Indian tribes in the development of strong and
stable tribal governments, capable of administering quality programs
and developing the economies of their respective communities.
(3) Congress has declared that a major national goal of the United
States is to provide the quantity and quality of educational services
and opportunities which will permit Indian children to compete and
excel in the life areas of their choice, and to achieve the measure of
self-determination essential to their social and economic well-being.
(4) Congress has declared that the programs, functions, services,
or activities that are contracted and funded under this Act shall
include administrative functions of the Department of the Interior and
the Department of Health and Human Services (whichever is applicable)
that support the delivery of services to Indians, including those
administrative activities supportive of, but not included as part of,
the service delivery programs described in this paragraph that are
otherwise contractible. The administrative functions referred to in the
preceding sentence shall be contractible without regard to the
organizational level within the Department that carries out such
functions. Contracting of the administrative functions described herein
shall not be construed to limit or reduce in any way the funding for
any program, function, service, or activity serving any other tribe
under the Act or any other law. The Secretary is not required to reduce
funding for programs, projects, or activities serving a tribe to make
funds available to another Indian tribe or tribal organization under
this Act.
(5) Congress has further declared that each provision of the Act
and each provision of contracts entered into thereunder shall be
liberally construed for the benefit of the tribes or tribal
organizations to transfer the funding and the related functions,
services, activities, and programs (or portions thereof), that are
otherwise contractible under the Act, including all related
administrative functions, from the Federal government to the
contractor.
(6) Congress has declared that one of the primary goals of the 1994
amendments to the Act was to minimize the reporting requirements
applicable to tribal contractors and to eliminate excessive and
burdensome reporting requirements. Reporting requirements over and
above the annual audit report are to be negotiated with disagreements
subject to the declination procedures of section 102 of the Act.
(7) Congress has declared that there not be any threshold issues
which would avoid the declination, contract review, approval, and
appeal process.
(8) Congress has declared that all self-determination contract
proposals must be supported by the resolution of an Indian tribe(s).
(9) Congress has declared that to the extent that programs,
functions, services, and activities carried out by tribes and tribal
organizations pursuant to contracts entered into under this Act reduce
the administrative or other responsibilities of the Secretary with
respect to the operation of Indian programs and result in savings that
have not otherwise been included in the amount of contract funds
determined under Section 106(a) of the Act, the Secretary shall make
such savings available for the provision of additional services to
program beneficiaries, either directly or through contractors, in a
manner equitable to both direct and contracted programs.
(b) Secretarial policy. (1) It is the policy of the Secretary to
facilitate the efforts of Indian tribes and tribal organizations to
plan, conduct and administer programs, functions, services and
activities, or portions thereof, which the Departments are authorized
to administer for the benefit of Indians because of their status as
Indians. The Secretary shall make best efforts to remove any obstacles
which might hinder Indian tribes and tribal organizations including
obstacles that hinder tribal autonomy and flexibility in the
administration of such programs.
(2) It is the policy of the Secretary to encourage Indian tribes
and tribal organizations to become increasingly knowledgeable about the
Departments' programs administered for the benefit of Indians by
providing information on such programs, functions and activities and
the opportunities Indian tribes have regarding them.
(3) It is the policy of the Secretary to provide a uniform and
consistent set of rules for contracts under the Act. The rules
contained herein are designed to facilitate and encourage Indian tribes
to participate in the planning, conduct, and administration of those
Federal programs serving Indian people. The Secretary shall afford
Indian tribes and tribal organizations the flexibility, information,
and discretion necessary to design contractible programs to meet the
needs of their communities consistent with their diverse demographic,
geographic, economic, cultural, health, social, religious and
institutional needs.
(4) The Secretary recognizes that contracting under the Act is an
exercise by Indian tribes of the government-to-government relationship
between the United States and the Indian tribes. When an Indian tribe
contracts, there is a transfer of the responsibility with the
[[Page 32506]]
associated funding. The tribal contractor is accountable for managing
the day-to-day operations of the contracted Federal programs,
functions, services, and activities. The contracting tribe thereby
accepts the responsibility and accountability to the beneficiaries
under the contract with respect to use of the funds and the
satisfactory performance of the programs, functions, services and
activities funded under the contract. The Secretary will continue to
discharge the trust responsibilities to protect and conserve the trust
resources of Indian tribes and the trust resources of individual
Indians.
(5) The Secretary recognizes that tribal decisions to contract or
not to contract are equal expressions of self-determination.
(6) The Secretary shall maintain consultation with tribal
governments and tribal organizations in the Secretary's budget process
relating to programs, functions, services and activities subject to the
Act. In addition, on an annual basis, the Secretary shall consult with,
and solicit the participation of, Indian tribes and tribal
organizations in the development of the budget for the Indian Health
Service and the Bureau of Indian Affairs (including participation of
Indian tribes and tribal organizations in formulating annual budget
requests that the Secretary submits to the President for submission to
Congress pursuant to section 1105 of title 31, United States Code).
(7) The Secretary is committed to implementing and fully supporting
the policy of Indian self-determination by recognizing and supporting
the many positive and successful efforts and directions of tribal
governments and extending the applicability of this policy to all
operational components within the Department. By fully extending Indian
self-determination contracting to all operational components within the
Department having programs or portions of programs for the benefit of
Indians under section 102(a)(1) (A) through (D) and for the benefit of
Indians because of their status as Indians under section 102(a)(1)(E),
it is the Secretary's intent to support and assist Indian tribes in the
development of strong and stable tribal governments capable of
administering quality programs that meet the tribally determined needs
and directions of their respective communities. It is also the policy
of the Secretary to have all other operational components within the
Department work cooperatively with tribal governments on a government-
to-government basis so as to expedite the transition away from Federal
domination of Indian programs and make the ideals of Indian self-
government and self-determination a reality.
(8) It is the policy of the Secretary that the contractibility of
programs under this Act should be encouraged. In this regard, Federal
laws and regulations should be interpreted in a manner that will
facilitate the inclusion of those programs or portions of those
programs that are for the benefit of Indians under section 102(a)(1)
(A) through (D) of the Act, and that are for the benefit of Indians
because of their status of Indians under section 102(a)(1)(E) of the
Act.
(9) It is the Secretary's policy that no later than upon receipt of
a contract proposal under the Act (or written notice of an Indian tribe
or tribal organization's intention to contract), the Secretary shall
commence planning such administrative actions, including but not
limited to transfers or reductions in force, transfers of property, and
transfers of contractible functions, as may be necessary to ensure a
timely transfer of responsibilities and funding to Indian tribes and
tribal organizations.
(10) It is the policy of the Secretary to make available to Indian
tribes and tribal organizations all administrative functions that may
lawfully be contracted under the Act, employing methodologies
consistent with the methodology employed with respect to such functions
under titles III and IV of the Act.
(11) The Secretary's commitment to Indian self-determination
requires that these regulations be liberally construed for the benefit
of Indian tribes and tribal organizations to effectuate the strong
Federal policy of self-determination and, further, that any ambiguities
herein be construed in favor of the Indian tribe or tribal organization
so as to facilitate and enable the transfer of services, programs,
functions, and activities, or portions thereof, authorized by the Act.
Sec. 900.4 Effect on existing tribal rights.
Nothing in these regulations shall be construed as:
(a) Affecting, modifying, diminishing, or otherwise impairing the
sovereign immunity from suit enjoyed by Indian tribes;
(b) Terminating, waiving, modifying, or reducing the trust
responsibility of the United States to the Indian tribe(s) or
individual Indians. The Secretary shall act in good faith in upholding
this trust responsibility;
(c) Mandating an Indian tribe to apply for a contract(s) or
grant(s) as described in the Act; or
(d) Impeding awards by other Departments and agencies of the United
States to Indian tribes to administer Indian programs under any other
applicable law.
Sec. 900.5 Effect of these regulations on Federal program guidelines,
manual, or policy directives.
Except as specifically provided in the Act, or as specified in
Subpart J, an Indian tribe or tribal organization is not required to
abide by any unpublished requirements such as program guidelines,
manuals, or policy directives of the Secretary, unless otherwise agreed
to by the Indian tribe or tribal organization and the Secretary, or
otherwise required by law.
Subpart B--Definitions
Sec. 900.6 Definitions.
Unless otherwise provided in this Part:
Act means Secs. 1 through 9, and Title I of the Indian Self-
Determination and Education Assistance Act of 1975, Public Law 93-638,
as amended.
Annual funding agreement means a document that represents the
negotiated agreement of the Secretary to fund, on an annual basis, the
programs, services, activities and functions transferred to an Indian
tribe or tribal organization under the Act.
Appeal means a request by an Indian tribe or tribal organization
for an administrative review of an adverse Agency decision.
Awarding official means any person who by appointment or delegation
in accordance with applicable regulations has the authority to enter
into and administer contracts on behalf of the United States of America
and make determinations and findings with respect thereto. Pursuant to
the Act, this person can be any Federal official, including but not
limited to, contracting officers.
BIA means the Bureau of Indian Affairs of the Department of the
Interior.
Contract means a self-determination contract as defined in section
4(j) of the Act.
Contract appeals board means the Interior Board of Contract
Appeals.
Contractor means an Indian tribe or tribal organization to which a
contract has been awarded.
Days means calendar days; except where the last day of any time
period specified in these regulations falls on a Saturday, Sunday, or a
Federal holiday, the period shall carry over to the next business day
unless otherwise prohibited by law.
Department(s) means the Department of Health and Human Services
(HHS) or the Department of the Interior (DOI), or both.
[[Page 32507]]
IHS means the Indian Health Service of the Department of Health and
Human Services.
Indian means a person who is a member of an Indian Tribe.
Indian tribe means any Indian tribe, band, nation, or other
organized group, or community, including pueblos, rancherias, colonies
and any Alaska Native Village, or regional or village corporation as
defined in or established pursuant to the Alaska Native Claims
Settlement Act, which is recognized as eligible for the special
programs and services provided by the United States to Indians because
of their status as Indians.
Indirect cost rate means the rate(s) arrived at through negotiation
between an Indian tribe or tribal organization and the appropriate
Federal Agency.
Indirect costs means costs incurred for a common or joint purpose
benefiting more than one contract objective or which are not readily
assignable to the contract objectives specifically benefitted without
effort disproportionate to the results achieved.
Initial contract proposal means a proposal for programs, functions,
services, or activities that the Secretary is authorized to perform but
which the Indian tribe or tribal organization is not now carrying out.
Real property means any interest in land together with the
improvements, structures, and fixtures and appurtenances thereto.
Reassumption means rescission, in whole or in part, of a contract
and assuming or resuming control or operation of the contracted program
by the Secretary without consent of the Indian tribe or tribal
organization pursuant to the notice and other procedures set forth in
Subpart P.
Retrocession means the voluntary return to the Secretary of a
contracted program, in whole or in part, for any reason, before the
expiration of the term of the contract.
Secretary means the Secretary of Health and Human Services (HHS) or
the Secretary of the Interior (DOI), or both (and their respective
delegates).
Tribal organization means the recognized governing body of any
Indian tribe; any legally established organization of Indians which is
controlled, sanctioned, or chartered by such governing body or which is
democratically elected by the adult members of the Indian community to
be served by such organization and which includes the maximum
participation of Indians in all phases of its activities: provided,
that, in any case where a contract is let or a grant made to an
organization to perform services benefiting more than one Indian tribe,
the approval of each such Indian tribe shall be a prerequisite to the
letting or making of such contract or grant.
Trust resources means an interest in land, water, minerals, funds,
or other assets or property which is held by the United States in trust
for an Indian tribe or an individual Indian or which is held by an
Indian tribe or Indian subject to a restriction on alienation imposed
by the United States.
Subpart C--Contract Proposal Contents
Sec. 900.7 What technical assistance is available to assist in
preparing an initial contract proposal?
The Secretary shall, upon request of an Indian tribe or tribal
organization and subject to the availability of appropriations, provide
technical assistance on a non-reimbursable basis to such Indian tribe
or tribal organization to develop a new contract proposal or to provide
for the assumption by the Indian tribe or tribal organization of any
program, service, function, or activity (or portion thereof) that is
contractible under the Act. The Secretary may also make a grant to an
Indian tribe or tribal organization for the purpose of obtaining
technical assistance, as provided in section 103 of the Act. An Indian
tribe or tribal organization may also request reimbursement for pre-
award costs for obtaining technical assistance under sections 106(a)
(2) and (5) of the Act.
Sec. 900.8 What must an initial contract proposal contain?
An initial contract proposal must contain the following
information:
(a) The full name, address and telephone number of the Indian tribe
or tribal organization proposing the contract.
(b) If the tribal organization is not an Indian tribe, the proposal
must also include:
(1) a copy of the tribal organization's organizational documents
(e.g., charter, articles of incorporation, bylaws, etc.).
(2) The full name(s) of the Indian tribe(s) with which the tribal
organization is affiliated.
(c) The full name(s) of the Indian tribe(s) proposed to be served.
(d) A copy of the authorizing resolution from the Indian tribe(s)
to be served.
(1) If an Indian tribe or tribal organization proposes to serve a
specified geographic area, it must provide authorizing resolution(s)
from all Indian tribes located within the specific area it proposes to
serve. However, no resolution is required from an Indian tribe located
outside the area proposed to be served whose members reside within the
proposed service area.
(2) If a currently effective authorizing resolution covering the
scope of an initial contract proposal has already been provided to the
agency receiving the proposal, a reference to that resolution.
(e) The name, title, and signature of the authorized representative
of the Indian tribe or tribal organization submitting the contract
proposal.
(f) The date of submission of the proposal.
(g) A brief statement of the programs, functions, services, or
activities that the tribal organization proposes to perform, including:
(1) A description of the geographical service area, if applicable,
to be served.
(2) The estimated number of Indian people who will receive the
benefits or services under the proposed contract.
(3) An identification of any local, Area, regional, or national
level departmental programs, functions, services, or activities to be
contracted, including administrative functions.
(4) A description of the proposed program standards;
(5) An identification of the program reports, data and financial
reports that the Indian tribe or tribal organization will provide,
including their frequency.
(6) A description of any proposed redesign of the programs,
services, functions, or activities to be contracted,
(7) Minimum staff qualifications proposed by the Indian tribe and
tribal organization, if any; and
(8) A statement that the Indian tribe or tribal organization will
meet the minimum procurement, property and financial management
standards set forth in Subpart F, subject to any waiver that may have
been granted under Subpart K.
(h) The amount of funds requested, including:
(1) An identification of the funds requested by programs,
functions, services, or activities, under section 106(a)(1) of the Act,
including the Indian tribe or tribal organization's share of funds
related to such programs, functions, services, or activities, if any,
from any Departmental local, area, regional, or national level.
(2) An identification of the amount of direct contract support
costs, including one-time start-up or preaward costs under section
106(a)(2) and related provisions of the Act, presented by major
categories such as:
(i) Personnel (differentiating between salary and fringe benefits);
(ii) Equipment;
(iii) Materials and supplies;
[[Page 32508]]
(iv) Travel;
(v) Subcontracts; and
(vi) Other appropriate items of cost.
(3) An identification of funds the Indian tribe or tribal
organization requests to recover for indirect contract support costs.
This funding request must include either:
(i) a copy of the most recent negotiated indirect cost rate
agreement; or
(ii) an estimated amount requested for indirect costs, pending
timely establishment of a rate or negotiation of administrative
overhead costs.
(4) To the extent not stated elsewhere in the budget or previously
reported to the Secretary, any preaward costs, including the amount and
time period covered or to be covered; and
(5) At the option of the Indian tribe or tribal organization, an
identification of programs, functions, services, or activities
specified in the contract proposal which will be funded from sources
other than the Secretary.
(i) The proposed starting date and term of the contract.
(j) In the case of a cooperative agreement, the nature and degree
of Federal programmatic involvement anticipated during the term of the
agreement.
(k) The extent of any planned use of Federal personnel and Federal
resources.
(l) Any proposed waiver(s) of the regulations in this part; and
(m) A statement that the Indian tribe or tribal organization will
implement procedures appropriate to the programs, functions, services
or activities proposed to be contracted, assuring the confidentiality
of medical records and of information relating to the financial affairs
of individual Indians obtained under the proposal contract, or as
otherwise required by law.
Sec. 900.9 May the Secretary require an Indian tribe or tribal
organization to submit any other information beyond that identified in
Sec. 900.8?
No.
Sec. 900.10 How does an Indian tribe or tribal organization secure a
list of all Federal property currently in use in carrying out the
programs, functions, services, or activities that benefit the Indian
tribe or tribal organization to assist in negotiating a contract?
The Indian tribe or tribal organization submits a written request
to the Secretary. The Secretary shall provide the requested
information, including the condition of the property, within 60 days.
Sec. 900.11 What should an Indian tribe or tribal organization that is
proposing a contract do about specifying the Federal property that the
Indian tribe or tribal organization may wish to use in carrying out the
contract?
The Indian tribe or tribal organization is encouraged to provide
the Secretary, as early as possible, with:
(a) A list of the following Federal property intended for use under
the contract:
(1) Equipment;
(2) Furnishings;
(3) Facilities; and
(4) Other real and personal property.
(b) A statement of how the Indian tribe or tribal organization will
obtain each item by transfer of title under Sec. 105(f)(2) of the Act
and section 1(b)(8) of the model agreement set forth in section 108(c)
of the Act, through a temporary use permit, similar arrangement, or
otherwise; and
(c) Where equipment is to be shared by contracted and non-
contracted programs, services, functions, or activities, a proposal
outlining proposed equipment sharing or other arrangements.
Sec. 900.12 Are the proposal contents requirements the same for
renewal of a contract that is expiring and for securing an annual
funding agreement after the first year of the funding agreement?
No. In these situations, an Indian tribe or tribal organization
should submit a renewal proposal (or notification of intent not to
renew) or an annual funding agreement proposal at least 90 days before
the expiration date of the contract or existing annual funding
agreement. The proposal shall provide funding information in the same
detail and format as the original proposal and may also identify any
significant proposed changes.
Sec. 900.13 Does the contract proposal become part of the final
contract?
No, unless the parties agree.
Subpart D--Review and Approval of Contract Proposals
Sec. 900.14 What does this subpart cover?
This Subpart covers any proposal to enter into a self-determination
contract, to amend an existing self-determination contract, to renew an
existing self-determination contract, or to redesign a program through
a self-determination contract.
Sec. 900.15 What shall the Secretary do upon receiving a proposal?
Upon receipt of a proposal, the Secretary shall:
(a) Within two days notify the applicant in writing that the
proposal has been received;
(b) Within 15 days notify the applicant in writing of any missing
items required by Sec. 900.8 and request that the items be submitted
within 15 days of receipt of the notification; and
(c) Review the proposal to determine whether there are declination
issues under section 102(a)(2) of the Act.
Sec. 900.16 How long does the Secretary have to review and approve the
proposal and award the contract, or decline a proposal?
The Secretary has 90 days after receipt of a proposal to review and
approve the proposal and award the contract or decline the proposal in
compliance with section 102 of the Act and subpart E. At any time
during the review period the Secretary may approve the proposal and
award the requested contract.
Sec. 900.17 Can the statutory 90-day period be extended?
Yes, with written consent of the Indian tribe or tribal
organization. If consent is not given, the 90-day deadline applies.
Sec. 900.18 What happens if a proposal is not declined within 90 days
after it is received by the Secretary?
A proposal that is not declined within 90 days (or within any
agreed extension under Sec. 900.17) is deemed approved and the
Secretary shall award the contract or any amendment or renewal within
that 90-day period and add to the contract the full amount of funds
pursuant to Section 106(a) of the Act.
Sec. 900.19 What happens when a proposal is approved?
Upon approval the Secretary shall award the contract and add to the
contract the full amount of funds to which the contractor is entitled
under section 106(a) of the Act.
Subpart E--Declination Procedures
Sec. 900.20 What does this Subpart cover?
This subpart explains how and under what circumstances the
Secretary may decline a proposal to contract, to amend an existing
contract, to renew an existing contract, to redesign a program, or to
waive any provisions of these regulations. For annual funding
agreements, see Sec. 900.32.
Sec. 900.21 When can a proposal be declined?
As explained in Secs. 900.16 and 900.17, a proposal can only be
declined within 90 days after the Secretary receives the proposal,
unless that period
[[Page 32509]]
is extended with the voluntary and express written consent of the
Indian tribe or tribal organization.
Sec. 900.22 For what reasons can the Secretary decline a proposal?
The Secretary may only decline to approve a proposal for one of
five specific reasons:
(a) The service to be rendered to the Indian beneficiaries of the
particular program or function to be contracted will not be
satisfactory;
(b) Adequate protection of trust resources is not assured;
(c) The proposed project or function to be contracted for cannot be
properly completed or maintained by the proposed contract;
(d) The amount of funds proposed under the contract is in excess of
the applicable funding level for the contract, as determined under
section 106(a) of the Act; or
(e) The program, function, service, or activity (or a portion
thereof) that is the subject of the proposal is beyond the scope of
programs, functions, services, or activities covered under section
102(a)(1) of the Act because the proposal includes activities that
cannot lawfully be carried out by the contractor.
Sec. 900.23 Can the Secretary decline a proposal where the Secretary's
objection can be overcome through the contract?
No. The Secretary may not decline to enter into a contract with an
Indian tribe or tribal organization based on any objection that will be
overcome through the contract.
Sec. 900.24 Can a contract proposal for an Indian tribe or tribal
organization's share of administrative programs, functions, services,
and activities be declined for any reason other than the five reasons
specified in Sec. 900.22?
No. The Secretary may only decline a proposal based upon one or
more of the five reasons listed above. If a contract affects the
preexisting level of services to any other tribe, the Secretary shall
address that effect in the Secretary's annual report to Congress under
section 106(c)(6) of the Act.
Sec. 900.25 What if only a portion of a proposal raises one of the
five declination criteria?
The Secretary must approve any severable portion of a proposal that
does not support a declination finding described in Sec. 900.20,
subject to any alteration in the scope of the proposal that the
Secretary and the Indian tribe or tribal organization approve.
Sec. 900.26 What happens if the Secretary declines a part of a
proposal on the ground that the proposal proposes in part to plan,
conduct, or administer a program, function, service or activity that is
beyond the scope of programs covered under section 102(a) of the Act,
or proposes a level of funding that is in excess of the applicable
level determined under section 106(a) of the Act?
In those situations the Secretary is required, as appropriate, to
approve the portion of the program, function, service, or activity that
is authorized under section 102(a) of the Act, or approve a level of
funding that is authorized under section 106(a) of the Act. As noted in
Sec. 900.25, the approval is subject to any alteration in the scope of
the proposal that the Secretary and the Indian tribe or tribal
organization approve.
Sec. 900.27 If an Indian tribe or tribal organization elects to
contract for a severable portion of a proposal, does the Indian tribe
or tribal organization lose its appeal rights to challenge the portion
of the proposal that was declined?
No, but the hearing and appeal procedures contained in these
regulations only apply to the portion of the proposal that was
declined.
Sec. 900.28 Is technical assistance available to an Indian tribe or
tribal organization to avoid declination of a proposal?
Yes. In accordance with section 103(d) of the Act, upon receiving a
proposal, the Secretary shall provide any necessary requested technical
assistance to an Indian tribe or tribal organization, and shall share
all relevant information with the Indian tribe or tribal organization,
in order to avoid declination of the proposal.
Sec. 900.29 What is the Secretary required to do if the Secretary
decides to decline all or a portion of a proposal?
If the Secretary decides to decline all or a severable portion of a
proposal, the Secretary is required:
(a) To advise the Indian tribe or tribal organization in writing of
the Secretary's objections, including a specific finding that clearly
demonstrates that (or that is supported by a controlling legal
authority that) one of the conditions set forth in Sec. 900.22 exists,
together with a detailed explanation of the reason for the decision to
decline the proposal and, within 20 days, any documents relied on in
making the decision; and
(b) To advise the Indian tribe or tribal organization in writing of
the rights described in Sec. 900.31.
Sec. 900.30 When the Secretary declines all or a portion of a
proposal, is the Secretary required to provide an Indian tribe or
tribal organization with technical assistance?
Yes. The Secretary shall provide additional technical assistance to
overcome the stated objections, in accordance with section 102(b) of
the Act, and shall provide any necessary requested technical assistance
to develop any modifications to overcome the Secretary's stated
objections.
Sec. 900.31 When the Secretary declines all or a portion of a
proposal, is an Indian tribe or tribal organization entitled to any
appeal?
Yes. The Indian tribe or tribal organization is entitled to an
appeal on the objections raised by the Secretary, with an agency
hearing on the record, and the right to engage in full discovery
relevant to any issue raised in the matter. The procedures for appeals
are in subpart L of these regulations. Alternatively, at its option the
Indian tribe or tribal organization has the right to sue in Federal
district court to challenge the Secretary's decision.
Sec. 900.32 Can the Secretary decline an Indian tribe or tribal
organization's proposed successor annual funding agreement?
No. If it is substantially the same as the prior annual funding
agreement (except for funding increases included in appropriations acts
or funding reductions as provided in section 106(b) of the Act) and the
contract is with DHHS or the BIA, the Secretary shall approve and add
to the contract the full amount of funds to which the contractor is
entitled, and may not decline, any portion of a successor annual
funding agreement. Any portion of an annual funding agreement proposal
which is not substantially the same as that which was funded previously
(e.g., a redesign proposal; waiver proposal; different proposed funding
amount; or different program, service, function, or activity), or any
annual funding agreement proposal which pertains to a contract with an
agency of DOI other than the BIA, is subject to the declination
criteria and procedures in subpart E. If there is a disagreement over
the availability of appropriations, the Secretary may decline the
proposal in part under the procedure in subpart E.
Sec. 900.33 Are all proposals to renew term contracts subject to the
declination criteria?
Department of Health and Human Services and the Bureau of Indian
Affairs will not review the renewal of a term contract for declination
issues where no material and substantial
[[Page 32510]]
change to the scope or funding of a program, functions, services, or
activities has been proposed by the Indian tribe or tribal
organization. Proposals to renew term contracts with DOI agencies other
than the Bureau of Indian Affairs may be reviewed under the declination
criteria.
Subpart F--Standards for Tribal or Tribal Organization Management
Systems
General
Sec. 900.35 What is the purpose of this subpart?
This subpart contains the minimum standards for the management
systems used by Indian tribes or tribal organizations when carrying out
self-determination contracts. It provides standards for an Indian tribe
or tribal organization's financial management system, procurement
management system, and property management system.
Sec. 900.36 What requirements are imposed upon Indian tribes or tribal
organizations by this subpart?
When carrying out self-determination contracts, Indian tribes and
tribal organizations shall develop, implement, and maintain systems
that meet these minimum standards, unless one or more of the standards
have been waived, in whole or in part, under section 107(e) of the Act
and Subpart K.
Sec. 900.37 What provisions of Office of Management and Budget (OMB)
circulars or the ``common rule'' apply to self-determination contracts?
The only provisions of OMB Circulars and the only provisions of the
``common rule'' that apply to self-determination contracts are the
provisions adopted in these regulations, those expressly required or
modified by the Act, and those negotiated and agreed to in a self-
determination contract.
Sec. 900.38 Do these standards apply to the subcontractors of an
Indian tribe or tribal organization carrying out a self-determination
contract?
An Indian tribe or tribal organization may require that some or all
of the standards in this subpart be imposed upon its subcontractors
when carrying out a self-determination contract.
Sec. 900.39 What is the difference between a standard and a system?
(a) Standards are the minimum baseline requirements for the
performance of an activity. Standards establish the ``what'' that an
activity should accomplish.
(b) Systems are the procedural mechanisms and processes for the
day-to-day conduct of an activity. Systems are ``how'' the activity
will be accomplished.
Sec. 900.40 When are Indian tribe or tribal organization management
standards and management systems evaluated?
(a) Management standards are evaluated by the Secretary when the
Indian tribe or tribal organization submits an initial contract
proposal.
(b) Management systems are evaluated by an independent auditor
through the annual single agency audit report that is required by the
Act and OMB Circular A-128.
Sec. 900.41 How long must an Indian tribe or tribal organization keep
management system records?
The Indian tribe or tribal organization must retain financial,
procurement and property records for the minimum periods described
below. Electronic, magnetic or photographic records may be substituted
for hard copies.
(a) Financial records. Financial records include documentation of
supporting costs incurred under the contract. These records must be
retained for three years from the date of submission of the single
audit report to the Secretary.
(b) Procurement records. Procurement records include solicitations,
purchase orders, contracts, payment histories and records applicable of
significant decisions. These records must be retained for three years
after the Indian tribe or tribal organization or subcontractors make
final payment and all other pending matters are closed.
(c) Property management records. Property management records of
real and personal property transactions must be retained for three
years from the date of disposition, replacement, or transfer.
(d) Litigation, audit exceptions and claims. Records pertaining to
any litigation, audit exceptions or claims requiring management systems
data must be retained until the action has been completed.
Standards for Financial Management Systems
Sec. 900.42 What are the general financial management system standards
that apply to an Indian tribe carrying out a self-determination
contract?
An Indian tribe shall expend and account for contract funds in
accordance with all applicable tribal laws, regulations, and
procedures.
Sec. 900.43 What are the general financial management system standards
that apply to a tribal organization carrying out a self-determination
contract?
A tribal organization shall expend and account for contract funds
in accordance with the procedures of the tribal organization.
Sec. 900.44 What minimum general standards apply to all Indian tribe
or tribal organization financial management systems when carrying out a
self-determination contract?
The fiscal control and accounting procedures of an Indian tribe or
tribal organization shall be sufficient to:
(a) Permit preparation of reports required by a self-determination
contract and the Act; and
(b) Permit the tracing of contract funds to a level of expenditure
adequate to establish that they have not been used in violation of any
restrictions or prohibitions contained in any statute that applies to
the self-determination contract.
Sec. 900.45 What specific minimum requirements shall an Indian tribe
or tribal organization's financial management system contain to meet
these standards?
An Indian tribe or tribal organization's financial management
system shall include provisions for the following seven elements.
(a) Financial reports. The financial management system shall
provide for accurate, current, and complete disclosure of the financial
results of self-determination contract activities. This includes
providing the Secretary a completed Financial Status Report, SF 269A,
as negotiated and agreed to in the self-determination contract.
(b) Accounting records. The financial management system shall
maintain records sufficiently detailed to identify the source and
application of self-determination contract funds received by the Indian
tribe or tribal organization. The system shall contain sufficient
information to identify contract awards, obligations and unobligated
balances, assets, liabilities, outlays, or expenditures and income.
(c) Internal controls. The financial management system shall
maintain effective control and accountability for all self-
determination contract funds received and for all Federal real
property, personal property, and other assets furnished for use by the
Indian tribe or tribal organization under the self-determination
contract.
(d) Budget controls. The financial management system shall permit
the comparison of actual expenditures or outlays with the amounts
budgeted by
[[Page 32511]]
the Indian tribe or tribal organization for each self-determination
contract.
(e) Allowable costs. The financial management system shall be
sufficient to determine the reasonableness, allowability, and
allocability of self-determination contract costs based upon the terms
of the self-determination contract and the Indian tribe or tribal
organization's applicable OMB cost principles, as amended by the Act
and these regulations. (The following chart lists certain OMB Circulars
and suggests the entities that may use each, but the final selection of
the applicable circular may differ from those shown, as agreed to by
the Indian tribe or tribal organization and the Secretary. Agreements
between an Indian tribe or tribal organization and the Secretary
currently in place do not require renegotiation.) Copies of these
circulars are available from the Executive Office of the President,
Publications Service, 725 17th Street N. W., Washington, D. C. 20503.
------------------------------------------------------------------------
Type of tribal organization Applicable OMB cost circular
------------------------------------------------------------------------
Tribal Government....................... A-87, ``Cost Principles for
State, Local and Indian
Tribal Governments.''
Tribal private non-profit other than: A-122, ``Cost Principles for
(1) an institution of higher education, Non-Profit Organizations.''
(2) a hospital, or (3) an organization
named in OMB Circular A-122 as not
subject to that circular.
Tribal educational institution.......... A-21, ``Cost Principles for
Educational Institutions.''
------------------------------------------------------------------------
(f) Source documentation. The financial management system shall
contain accounting records that are supported by source documentation,
e.g., canceled checks, paid bills, payroll records, time and attendance
records, contract award documents, purchase orders, and other primary
records that support self-determination contract fund expenditures.
(g) Cash management. The financial management system shall provide
for accurate, current, and complete disclosure of cash revenues
disbursements, cash-on-hand balances, and obligations by source and
application for each Indian tribe or tribal organization, and
subcontractor if applicable, so that complete and accurate cash
transactions may be prepared as required by the self-determination
contract.
Sec. 900.46 What requirements are imposed upon the Secretary for
financial management by these standards?
The Secretary shall establish procedures, consistent with Treasury
regulations as modified by the Act, for the transfer of funds from the
United States to the Indian tribe or tribal organization in strict
compliance with the self-determination contract and the annual funding
agreement.
Procurement Management System Standards
Sec. 900.47 When procuring property or services with self-
determination contract funds, can an Indian tribe or tribal
organization follow the same procurement policies and procedures
applicable to other Indian tribe or tribal organization funds?
Indian tribes and tribal organizations shall have standards that
conform to the standards in this Subpart. If the Indian tribe or tribal
organization relies upon standards different than those described
below, it shall identify the standards it will use as a proposed waiver
in the initial contract proposal or as a waiver request to an existing
contract.
Sec. 900.48 If the Indian tribe or tribal organization does not
propose different standards, what basic standards shall the Indian
tribe or tribal organization follow?
(a) The Indian tribe or tribal organization shall ensure that its
vendors and/or subcontractors perform in accordance with the terms,
conditions, and specifications of their contracts or purchase orders.
(b) The Indian tribe or tribal organization shall maintain written
standards of conduct governing the performance of its employees who
award and administer contracts.
(1) No employee, officer, elected official, or agent of the Indian
tribe or tribal organization shall participate in the selection, award,
or administration of a procurement supported by Federal funds if a
conflict of interest, real or apparent, would be involved.
(2) An employee, officer, elected official, or agent of an Indian
tribe or tribal organization, or of a subcontractor of the Indian tribe
or tribal organization, is not allowed to solicit or accept gratuities,
favors, or anything of monetary value from contractors, potential
contractors, or parties to sub-agreements, with the following
exemptions. The Indian tribe or tribal organization may exempt a
financial interest that is not substantial or a gift that is an
unsolicited item of nominal value.
(3) These standards shall also provide for penalties, sanctions, or
other disciplinary actions for violations of the standards.
(c) The Indian tribe or tribal organization shall review proposed
procurements to avoid buying unnecessary or duplicative items and
ensure the reasonableness of the price. The Indian tribe or tribal
organization should consider consolidating or breaking out procurement
to obtain more economical purchases. Where appropriate, the Indian
tribe or tribal organization shall compare leasing and purchasing
alternatives to determine which is more economical.
(d) The Indian tribe or tribal organization shall conduct all major
procurement transactions by providing full and open competition, to the
extent necessary to assure efficient expenditure of contract funds and
to the extent feasible in the local area.
(1) Indian tribes or tribal organizations shall develop their own
definition for ``major procurement transactions.''
(2) As provided in sections 7 (b) and (c) of the Act, Indian
preference and tribal preferences shall be applied in any procurement
award.
(e) The Indian tribe or tribal organization shall make procurement
awards only to responsible entities who have the ability to perform
successfully under the terms and conditions of the proposed
procurement. In making this judgment, the Indian tribe or tribal
organization will consider such matters as the contractor's integrity,
its compliance with public policy, its record of past performance, and
its financial and technical resources.
(f) The Indian tribe or tribal organization shall maintain records
on the significant history of all major procurement transactions. These
records may include, but are not limited to, the rationale for the
method of procurement, the selection of contract type, the contract
selection or rejection, and the basis for the contract price.
(g) The Indian tribe or tribal organization is solely responsible,
using good administrative practice and sound business judgment, for
processing and settling all contractual and administrative issues
arising out of a procurement. These issues include, but
[[Page 32512]]
are not limited to, source evaluation, protests, disputes, and claims.
(1) The settlement of any protest, dispute, or claim shall not
relieve the Indian tribe or tribal organization of any obligations
under a self-determination contract.
(2) Violations of law shall be referred to the tribal or Federal
authority having proper jurisdiction.
Sec. 900.49 What procurement standards apply to subcontracts?
Each subcontract entered into under the Act shall at a minimum:
(a) Be in writing;
(b) Identify the interested parties, their authorities, and the
purposes of the contract;
(c) State the work to be performed under the contract;
(d) State the process for making any claim, the payments to be
made, and the terms of the contract, which shall be fixed; and
(e) Be subject to sections 7 (b) and (c) of the Act.
Sec. 900.50 What Federal laws, regulations, and Executive Orders
apply to subcontractors?
Certain provisions of the Act as well as other applicable Federal
laws, regulations, and Executive Orders apply to subcontracts awarded
under self-determination contracts. As a result, subcontracts should
contain a provision informing the recipient that their award is funded
with Indian Self-Determination Act funds and that the recipient is
responsible for identifying and ensuring compliance with applicable
Federal laws, regulations, and Executive Orders. The Secretary and the
Indian tribe or tribal organization may, through negotiation, identify
all or a portion of such requirements in the self-determination
contract and, if so identified, these requirements should be identified
in subcontracts.
Property Management System Standards
Sec. 900.51 What is an Indian tribe or tribal organization's property
management system expected to do?
An Indian tribe or tribal organization's property
FR Doc. 96-15793 Indian Self-Determination and Education Assistance Act Amendments
management system
shall account for all property furnished or transferred by the
Secretary for use under a self-determination contract or acquired with
contract funds. The property management system shall contain
requirements for the use, care, maintenance, and disposition of
Federally-owned and other property as follows:
(a) Where title vests in the Indian tribe, in accordance with
tribal law and procedures; or
(b) In the case of a tribal organization, according to the internal
property procedures of the tribal organization.
Sec. 900.52 What type of property is the property management system
required to track?
The property management system of the Indian tribe or tribal
organization shall track:
(a) Personal property with an acquisition value in excess of $5,000
per item;
(b) Sensitive personal property, which is all personal property
that is subject to theft and pilferage, as defined by the Indian tribe
or tribal organization. All firearms shall be considered sensitive
personal property; and
(c) Real property provided by the Secretary for use under the
contract.
Sec. 900.53 What kind of records shall the property management system
maintain?
The property management system shall maintain records that
accurately describe the property, including any serial number or other
identification number. These records should contain information such as
the source, titleholder, acquisition date, cost, share of Federal
participation in the cost, location, use and condition of the property,
and the date of disposal and sale price, if any.
Sec. 900.54 Should the property management system prescribe internal
controls?
Yes. Effective internal controls should include procedures:
(a) For the conduct of periodic inventories;
(b) To prevent loss or damage to property; and
(c) To ensure that property is used for an Indian tribe or tribal
organization's self-determination contract(s) until the property is
declared excess to the needs of the contract consistent with the Indian
tribe or tribal organization's property management system.
Sec. 900.55 What are the standards for inventories?
A physical inventory should be conducted at least once every 2
years. The results of the inventory shall be reconciled with the Indian
tribe or tribal organization's internal property and accounting
records.
Sec. 900.56 What maintenance is required for property?
Required maintenance includes the performance of actions necessary
to keep the property in good working condition, the procedures
recommended by equipment manufacturers, and steps necessary to protect
the interests of the contractor and the Secretary in any express
warranties or guarantees covering the property.
Sec. 900.57 What if the Indian tribe or tribal organization chooses
not to take title to property furnished or acquired under the contract?
If the Indian tribe or tribal organization chooses not to take
title to property furnished by the government or acquired with contract
funds, title to the property remains vested in the Secretary. A list of
Federally-owned property to be used under the contract shall be
included in the contract.
Sec. 900.58 Do the same accountability and control procedures
described above apply to Federal property?
Yes, except that requirements for the inventory and disposal of
Federal property are different.
Sec. 900.59 How are the inventory requirements for Federal property
different than for tribal property?
There are three additional requirements:
(a) The Indian tribe or tribal organization shall conduct a
physical inventory of the Federally-owned property and reconcile the
results with the Indian tribe or tribal organization's property records
annually, rather than every 2 years;
(b) Within 90 days following the end of an annual funding
agreement, the Indian tribe or tribal organization shall certify and
submit to the Secretary an annual inventory of all Federally-owned real
and personal property used in the contracted program; and
(c) The inventory shall report any increase or decrease of $5,000
or more in the value of any item of real property.
Sec. 900.60 How does an Indian tribe or tribal organization dispose
of Federal personal property?
The Indian tribe or tribal organization shall report to the
Secretary in writing any Federally-owned personal property that is worn
out, lost, stolen, damaged beyond repair, or no longer needed for the
performance of the contract.
(a) The Indian tribe or tribal organization shall state whether the
Indian tribe or tribal organization wants to dispose of or return the
property.
(b) If the Secretary does not respond within 60 days, the Indian
tribe or tribal organization may return the property to the Secretary,
who shall accept transfer, custody, control, and responsibility for the
property (together with all associated costs).
[[Page 32513]]
Subpart G--Programmatic Reports and Data Requirements
Sec. 900.65 What programmatic reports and data shall the Indian tribe
or tribal organization provide?
Unless required by statute, there are no mandatory reporting
requirements. Each Indian tribe or tribal organization shall negotiate
with the Secretary the type and frequency of program narrative and
program data report(s) which respond to the needs of the contracting
parties and that are appropriate for the purposes of the contract. The
extent of available resources will be a consideration in the
negotiations.
Sec. 900.66 What happens if the Indian tribe or tribal organization
and the Secretary cannot come to an agreement concerning the type and/
or frequency of program narrative and/or program data report(s)?
Any disagreements over reporting requirements are subject to the
declination criteria and procedures in section 102 of the Act and
subpart E.
Sec. 900.67 Will there be a uniform data set for all IHS programs?
IHS will work with Indian tribe or tribal organization
representatives to develop a mutually defined uniform subset of data
that is consistent with Congressional intent, imposes a minimal
reporting burden, and which responds to the needs of the contracting
parties.
Sec. 900.68 Will this uniform data set be required of all Indian
tribe or tribal organizations contracting with the IHS under the Act?
No. The uniform data set, applicable to the services to be
performed, will serve as the target for the Secretary and the Indian
tribes or tribal organizations during individual negotiations on
program data reporting requirements.
Subpart H--Lease of Tribally-Owned Buildings by the Secretary
Sec. 900.69 What is the purpose of this subpart?
Section 105(l) of the Act requires the Secretary, at the request of
an Indian tribe or tribal organization, to enter into a lease with the
Indian tribe or tribal organization for a building owned or leased by
the tribe or tribal organization that is used for administration or
delivery of services under the Act. The lease is to include
compensation as provided in the statute as well as ``such other
reasonable expenses that the Secretary determines, by regulation, to be
allowable.'' This subpart contains requirements for these leases.
Sec. 900.70 What elements are included in the compensation for a
lease entered into between the Secretary and an Indian tribe or tribal
organization for a building owned or leased by the Indian tribe or
tribal organization that is used for administration or delivery of
services under the Act?
To the extent that no element is duplicative, the following
elements may be included in the lease compensation:
(a) Rent (sublease);
(b) Depreciation and use allowance based on the useful life of the
facility based on acquisition costs not financed with Federal funds;
(c) Contributions to a reserve for replacement of facilities;
(d) Principal and interest paid or accrued;
(e) Operation and maintenance expenses, to the extent not otherwise
included in rent or use allowances, including, but not limited to, the
following:
(1) Water, sewage;
(2) Utilities;
(3) Fuel;
(4) Insurance;
(5) Building management supervision and custodial services;
(6) Custodial and maintenance supplies;
(7) Pest control;
(8) Site maintenance (including snow and mud removal);
(9) Trash and waste removal and disposal;
(10) Fire protection/fire fighting services and equipment;
(11) Monitoring and preventive maintenance of building structures
and systems, including but not limited to:
(i) Heating/ventilation/air conditioning;
(ii) Plumbing;
(iii) Electrical;
(iv) Elevators;
(v) Boilers;
(vi) Fire safety system;
(vii) Security system; and
(viii) Roof, foundation, walls, floors.
(12) Unscheduled maintenance;
(13) Scheduled maintenance (including replacement of floor
coverings, lighting fixtures, repainting);
(14) Security services;
(15) Management fees; and
(16) Other reasonable and necessary operation or maintenance costs
justified by the contractor;
(f) Repairs to buildings and equipment;
(g) Alterations needed to meet contract requirements;
(h) Other reasonable expenses; and
(i) The fair market rental for buildings or portions of buildings
and land, exclusive of the Federal share of building construction or
acquisition costs, or the fair market rental for buildings constructed
with Federal funds exclusive of fee or profit, and for land.
Sec. 900.71 What type of reserve fund is anticipated for funds
deposited into a reserve for replacement of facilities as specified in
Sec. 900.70(c)?
Reserve funds must be accounted for as a capital project fund or a
special revenue fund.
Sec. 900.72 Who is the guardian of the fund and may the funds be
invested?
(a) The Indian tribe or tribal organization is the guardian of the
fund.
(b) Funds may be invested in accordance with the laws, regulations
and policies of the Indian tribe or tribal organization subject to the
terms of the lease or the self-determination contract.
Sec. 900.73 Is a lease with the Secretary the only method available
to recover the types of cost described in Sec. 900.70?
No. With the exception of paragraph (i) in Sec. 900.70, the same
types of costs may be recovered in whole or in part under section
106(a) of the Act as direct or indirect charges to a self-determination
contract.
Sec. 900.74 How may an Indian tribe or tribal organization propose a
lease to be compensated for the use of facilities?
There are three options available:
(a) The lease may be based on fair market rental.
(b) The lease may be based on a combination of fair market rental
and paragraphs (a) through (h) of Sec. 900.70, provided that no element
of expense is duplicated in fair market rental.
(c) The lease may be based on paragraphs (a) through (h) of
Sec. 900.70 only.
Subpart I--Property Donation Procedures
General
Sec. 900.85 What is the purpose of this subpart?
This subpart implements section 105(f) of the Act regarding
donation of Federal excess and surplus property to Indian tribes or
tribal organizations and acquisition of property with funds provided
under a self-determination contract or grant.
Sec. 900.86 How will the Secretary exercise discretion to acquire and
donate BIA or IHS excess property and excess and surplus Federal
property to an Indian tribe or tribal organization?
The Secretary will exercise discretion in a way that gives maximum
effect to the requests of Indian tribes or tribal organizations for
donation of BIA or IHS
[[Page 32514]]
excess property and excess or surplus Federal property, provided that
the requesting Indian tribe or tribal organization shall state how the
requested property is appropriate for use for any purpose for which a
self-determination contract or grant is authorized.
Government-Furnished Property
Sec. 900.87 How does an Indian tribe or tribal organization obtain
title to property furnished by the Federal government for use in the
performance of a contract or grant agreement pursuant to section
105(f)(2)(A) of the Act?
(a) For government-furnished personal property made available to an
Indian tribe or tribal organization before October 25, 1994:
(1) The Secretary, in consultation with each Indian tribe or tribal
organization, shall develop a list of the property used in a self-
determination contract.
(2) The Indian tribe or tribal organization shall indicate any
items on the list to which the Indian tribe or tribal organization
wants the Secretary to retain title.
(3) The Secretary shall provide the Indian tribe or tribal
organization with any documentation needed to transfer title to the
remaining listed property to the Indian tribe or tribal organization.
(b) For government-furnished real property made available to an
Indian tribe or tribal organization before October 25, 1994:
(1) The Secretary, in consultation with the Indian tribe or tribal
organization, shall develop a list of the property furnished for use in
a self-determination contract.
(2) The Secretary shall inspect any real property on the list to
determine the presence of any hazardous substance activity, as defined
in 41 CFR 101-47.202.2(b)(10). If the Indian tribe or tribal
organization desires to take title to any real property on the list,
the Indian tribe or tribal organization shall inform the Secretary, who
shall take such steps as necessary to transfer title to the Indian
tribe or tribal organization.
(c) For government-furnished real and personal property made
available to an Indian tribe or tribal organization on or after October
25, 1994:
(1) The Indian tribe or tribal organization shall take title to all
property unless the Indian tribe or tribal organization requests that
the United States retain the title.
(2) The Secretary shall determine the presence of any hazardous
substance activity, as defined in 41 CFR 101-47.202.2(b)(10).
Sec. 900.88 What should the Indian tribe or tribal organization do if
it wants to obtain title to government-furnished real property that
includes land not already held in trust?
If the land is owned by the United States but not held in trust for
an Indian tribe or individual Indian, the Indian tribe or tribal
organization shall specify whether it wants to acquire fee title to the
land or whether it wants the land to be held in trust for the benefit
of a tribe.
(a) If the Indian tribe or tribal organization requests fee title,
the Secretary shall take the necessary action under Federal law and
regulations to transfer fee title.
(b) If the Indian tribe or tribal organization requests beneficial
ownership with fee title to be held by the United States in trust for
an Indian tribe:
(1) The Indian tribe or tribal organization shall submit with its
request a resolution of support from the governing body of the Indian
tribe in which the beneficial ownership is to be registered.
(2) If the request is submitted to the Secretary of Health and
Human Services for land under the jurisdiction of that Secretary, the
Secretary shall take all necessary steps to effect a transfer of the
land to the Secretary of the Interior and shall also forward the Indian
tribe or tribal organization's request and the tribe's resolution.
(3) The Secretary of the Interior shall expeditiously process all
requests in accordance with applicable Federal law and regulations.
(4) The Secretary shall not require the Indian tribe or tribal
organization to furnish any information in support of a request other
than that required by law or regulation.
Sec. 900.89 When may the Secretary elect to reacquire government-
furnished property whose title has been transferred to an Indian tribe
or tribal organization?
(a) Except as provided in paragraph (b) of this section, when a
self-determination contract or grant agreement, or portion thereof, is
retroceded, reassumed, terminated, or expires, the Secretary shall have
the option to take title to any item of government-furnished property:
(1) That title has been transferred to an Indian tribe or tribal
organization;
(2) That is still in use in the program; and
(3) That has a current fair market value, less the cost of
improvements borne by the Indian tribe or tribal organization in excess
of $5,000.
(b) If property referred to in paragraph (a) of this section is
shared between one or more ongoing contracts or grant agreements and a
contract or grant agreement that is retroceded, reassumed, terminated
or expires and the Secretary wishes to use such property in the
retroceded or reassumed program, the Secretary and the contractor or
grantee using such property shall negotiate an acceptable arrangement
for continued sharing of such property and for the retention or
transfer of title.
Sec. 900.90 Does government-furnished real property to which an
Indian tribe or tribal organization has taken title continue to be
eligible for facilities operation and maintenance funding from the
Secretary?
Yes.
Contractor-Purchased Property
Sec. 900.91 Who takes title to property purchased with funds under a
self-determination contract or grant agreement pursuant to section
105(f)(2)(A) of the Act?
The contractor takes title to such property, unless the contractor
chooses to have the United States take title. In that event, the
contractor must inform the Secretary of the purchase and identify the
property and its location in such manner as the contractor and the
Secretary deem necessary. A request for the United States to take title
to any item of contractor-purchased property may be made at any time. A
request for the Secretary to take fee title to real property shall be
expeditiously processed in accordance with applicable Federal law and
regulation.
Sec. 900.92 What should the Indian tribe or tribal organization do if
it wants contractor-purchased real property to be taken into trust?
The contractor shall submit a resolution of support from the
governing body of the Indian tribe in which the beneficial ownership is
to be registered. If the request to take contractor-purchased real
property into trust is submitted to the Secretary of Health and Human
Services, that Secretary shall transfer the request to the Secretary of
the Interior. The Secretary of the Interior shall expeditiously process
all requests in accord with applicable Federal law and regulation.
Sec. 900.93 When may the Secretary elect to acquire title to
contractor-purchased property?
(a) Except as provided in paragraph (b) of this section when a
self-determination contract or grant agreement, or portion thereof, is
retroceded, reassumed, terminated, or expires, the Secretary shall have
the option to take title to any item of government-furnished property:
[[Page 32515]]
(1) Whose title has been transferred to an Indian tribe or tribal
organization;
(2) That is still in use in the program; and
(3) That has a current fair market value, less the cost of
improvements borne by the Indian tribe or tribal organization, in
excess of $5,000.
(b) If property referred to in paragraph (a) of this section is
shared between one or more ongoing contracts or grant agreements and a
contract or grant agreement that is retroceded, reassumed, terminated
or expires and the Secretary wishes to use such property in the
retroceded or reassumed program, the Secretary and the contractor or
grantee using such property shall negotiate an acceptable arrangement
for continued sharing of such property and for the retention or
transfer of title.
Sec. 900.94 Is contractor-purchased real property to which an Indian
tribe or tribal organization holds title eligible for facilities
operation and maintenance funding from the Secretary?
Yes.
BIA and IHS Excess Property
Sec. 900.95 What is BIA or IHS excess property?
BIA or IHS excess property means property under the jurisdiction of
the BIA or IHS that is excess to the agency's needs and the discharge
of its responsibilities.
Sec. 900.96 How can Indian tribes or tribal organizations learn about
BIA and IHS excess property?
The Secretary shall not less than annually send to Indian tribes
and tribal organizations a listing of all excess BIA or IHS personal
property before reporting the property to GSA or to any other Federal
agency as excess. The listing shall identify the agency official to
whom a request for donation shall be submitted.
Sec. 900.97 How can an Indian tribe or tribal organization acquire
excess BIA or IHS property?
(a) The Indian tribe or tribal organization shall submit to the
appropriate Secretary a request for specific property that includes a
statement of how the property is intended for use in connection with a
self-determination contract or grant. The Secretary shall expeditiously
process the request and shall exercise discretion in a way that gives
maximum effect to the request of Indian tribes or tribal organizations
for the donation of excess BIA or IHS property.
(b) If more than one request for the same item of personal property
is submitted, the Secretary shall award the item to the requestor whose
request is received on the earliest date. If two or more requests are
received on the same date, the Secretary shall award the item to the
requestor with the lowest transportation costs. The Secretary shall
make the donation as expeditiously as possible.
(c) If more than one request for the same parcel of real property
is submitted, the Secretary shall award the property to the Indian
tribe or tribal organization whose reservation or trust land is closest
to the real property requested.
Sec. 900.98 Who takes title to excess BIA or IHS property donated to
an Indian tribe or tribal organization?
The Indian tribe or tribal organization takes title to donated
excess BIA or IHS property. The Secretary shall provide the Indian
tribe or tribal organization with all documentation needed to vest
title in the Indian tribe or tribal organization.
Sec. 900.99 Who takes title to any land that is part of excess BIA or
IHS real property donated to an Indian tribe or tribal organization?
(a) If an Indian tribe or tribal organization requests donation of
fee title to excess real property that includes land not held in trust
for an Indian tribe, the Indian tribe or tribal organization shall so
specify in its request for donation. The Secretary shall take the
necessary action under Federal law and regulations to transfer the
title to the Indian tribe or tribal organization.
(b) If an Indian tribe or tribal organization asks the Secretary to
donate excess real property that includes land and requests that fee
title to the land be held by the United States in trust for an Indian
tribe, the requestor shall submit a resolution of support from the
governing body of the Indian tribe in which the beneficial ownership is
to be registered.
(1) If the donation request is submitted to the Secretary of Health
and Human Services, that Secretary shall take all steps necessary to
transfer the land to the Secretary of the Interior with the Indian
tribe or tribal organization's request and the Indian tribe's
resolution. The Secretary of the Interior shall expeditiously process
all requests in accordance with applicable Federal law and regulations.
(2) The Secretary shall not require the Indian tribe or tribal
organization to furnish any information in support of a request other
than that required by law or regulation.
Sec. 900.100 May the Secretary elect to reacquire excess BIA or IHS
property whose title has been transferred to an Indian tribe or tribal
organization?
Yes. When a self-determination contract or grant agreement, or
portion-- thereof, is retroceded, reassumed, terminated, or expires,
the Secretary shall have the option to take title to any item of the
property;
(a) Except as provided in paragraph (b) of this section when a
self-determination contract or grant agreement, or portion thereof, is
retroceded, reassumed, terminated, or expires, the Secretary shall have
the option to take title to any item of government-furnished property:
(1) Whose title has been transferred to an Indian tribe or tribal
organization;
(2) That is still in use in the program; and
(3) That has a current fair market value, less the cost of
improvements borne by the Indian tribe or tribal organization, in
excess of $5,000.
(b) To the extent that any property referred to in paragraph (a) of
this section is shared between one or more ongoing contracts or grant
agreements and a contract or grant agreement that is retroceded,
reassumed, terminated or expires and the Secretary wishes to use such
property in the retroceded or reassumed program, the Secretary and the
contractor or grantee using such property shall negotiate an acceptable
arrangement for continued sharing of such property and for the
retention or transfer of title.
Sec. 900.101 Is excess BIA or IHS real property to which an Indian
tribe or tribal organization has taken title eligible for facilities
operation and maintenance funding from the Secretary?
Yes.
Excess or Surplus Government Property of Other Agencies
Sec. 900.102 What is excess or surplus government property of other
agencies?
(a) ``Excess government property'' is real or personal property
under the control of a Federal agency, other than BIA and IHS, which is
not required for the agency's needs and the discharge of its
responsibilities.
(b) ``Surplus government property'' means excess real or personal
property that is not required for the needs of and the discharge of the
responsibilities of all Federal agencies that has been declared surplus
by the General Services Administration (GSA).
[[Page 32516]]
Sec. 900.103 How can Indian tribes or tribal organizations learn about
property that has been designated as excess or surplus government
property?
The Secretary shall furnish, not less than annually, to Indian
tribes or tribal organizations listings of such property as may be made
available from time to time by GSA or other Federal agencies, and shall
obtain listings upon the request of an Indian tribe or tribal
organization.
Sec. 900.104 How may an Indian tribe or tribal organization receive
excess or surplus government property of other agencies?
(a) The Indian tribe or tribal organization shall file a request
for specific property with the Secretary, and shall state how the
property is appropriate for use for a purpose for which a self-
determination contract or grant is authorized under the Act.
(b) The Secretary shall expeditiously process such request and
shall exercise discretion to acquire the property in the manner
described in Sec. 900.86 of this Subpart.
(c) Upon approval of the Indian tribe or tribal organization's
request, the Secretary shall immediately request acquisition of the
property from the GSA or the holding agency, as appropriate, by
submitting the necessary documentation in order to acquire the
requested property prior to the expiration of any ``freeze'' placed on
the property by the Indian tribe or tribal organization.
(d) The Secretary shall specify that the property is requested for
donation to an Indian tribe or tribal organization pursuant to
authority provided in section 105(f)(3) of the Act.
(e) The Secretary shall request a waiver of any fees for transfer
of the property in accordance with applicable Federal regulations.
Sec. 900.105 Who takes title to excess or surplus Federal property
donated to an Indian tribe or tribal organization?
(a) Title to any donated excess or surplus Federal personal
property shall vest in the Indian tribe or tribal organization upon
taking possession.
(b) Legal title to donated excess or surplus Federal real property
shall vest in the Indian tribe or tribal organization upon acceptance
by the Indian tribe or tribal organization of a proper deed of
conveyance.
(c) If the donation of excess or surplus Federal real property
includes land owned by the United States but not held in trust for an
Indian tribe, the Indian tribe or tribal organization shall specify
whether it wants to acquire fee title to the land or whether it wants
the land to be held in trust for the benefit of an Indian tribe.
(1) If the Indian tribe or tribal organization requests fee title,
the Secretary shall take the necessary action under Federal law and
regulations to transfer fee title to the Indian tribe or tribal
organization.
(2) If the Indian tribe or tribal organization requests beneficial
ownership with fee title to be held by the United States in trust for
an Indian tribe:
(i) The Indian tribe or tribal organization shall submit with its
request a resolution of support from the governing body of the Indian
tribe in which the beneficial ownership is to be registered.
(ii) If the donation request of the Indian tribe or tribal
organization is submitted to the Secretary of Health and Human
Services, that Secretary shall take all necessary steps to acquire the
land and transfer it to the Secretary of the Interior and shall also
forward the Indian tribe or tribal organization's request and the
Indian tribe's resolution.
(iii) The Secretary of the Interior shall expeditiously process all
requests in accord with applicable Federal law and regulations.
(iv) The Secretary shall not require submission of any information
other than that required by Federal law and regulation.
Sec. 900.106 If a contract or grant agreement or portion thereof is
retroceded, reassumed, terminated, or expires, may the Secretary
reacquire title to excess or surplus Federal property of other agencies
that was donated to an Indian tribe or tribal organization?
No. Section 105(f)(3) of the Act does not give the Secretary the
authority to reacquire title to excess or surplus government property
acquired from other agencies for donation to an Indian tribe or tribal
organization.
Property Eligible for Replacement Funding
Sec. 900.107 What property to which an Indian tribe or tribal
organization obtains title under this Subpart is eligible for
replacement funding?
Government-furnished property, contractor-purchased property and
excess BIA and IHS property donated to an Indian tribe or tribal
organization to which an Indian tribe or tribal organization holds
title shall remain eligible for replacement funding to the same extent
as if title to that property were held by the United States.
Subpart J--Construction
Sec. 900.110 What does this subpart cover?
(a) This subpart establishes requirements for issuing fixed-price
or cost-reimbursable contracts to provide: design, construction,
repair, improvement, expansion, replacement, erection of new space, or
demolition and other related work for one or more Federal facilities.
It applies to tribal facilities where the Secretary is authorized by
law to design, construct and/or renovate, or make improvements to such
tribal facilities.
(b) Activities covered by construction contracts under this subpart
are: design and architectural/engineering services, construction
project management, and the actual construction of the building or
facility in accordance with the construction documents, including all
labor, materials, equipment, and services necessary to complete the
work defined in the construction documents.
(1) Such contracts may include the provision of movable equipment,
telecommunications and data processing equipment, furnishings
(including works of art), and special purpose equipment, when part of a
construction contract let under this subpart.
(2) While planning services and construction management services as
defined in Sec. 900.113 may be included in a construction contract
under this subpart, they may also be contracted separately using the
model agreement in section 108 of the Act.
Sec. 900.111 What activities of construction programs are
contractible?
The Secretary shall, upon the request of any Indian tribe or tribal
organization authorized by tribal resolution, enter into a self-
determination contract to plan, conduct, and administer construction
programs or portions thereof.
Sec. 900.112 What are construction phases?
(a) Construction programs generally include the following
activities in phases which can vary by funding source (an Indian tribe
or tribal organization should contact its funding source for more
information regarding the conduct of its program):
(1) The preplanning phase. The phase during which an initial
assessment and determination of project need is made and supporting
information collected for presentation in a project application. This
project application process is explained in more detail in
Sec. 900.122;
(2) The planning phase. The phase during which planning services
are provided. This phase can include
[[Page 32517]]
conducting and preparing a detailed needs assessment, developing
justification documents, completing and/or verifying master plans,
conducting predesign site investigations and selection, developing
budget cost estimates, conducting feasibility studies, and developing a
project Program of Requirements (POR);
(3) The design phase. The phase during which licensed design
professional(s) using the POR as the basis for design of the project,
prepare project plans, specifications, and other documents that are a
part of the construction documents used to build the project. Site
investigation and selection activities are completed in this phase if
not conducted as part of the planning phase.
(4) The construction phase. The phase during which the project is
constructed. The construction phase includes providing the labor,
materials, equipment, and services necessary to complete the work in
accordance with the construction documents prepared as part of the
design phase.
(b) The following activities may be part of phases described in
paragraphs (a)(2), (a)(3), and (a)(4) of this section:
(1) Management; and
(2) Environmental, archeological, cultural resource, historic
preservation, and similar assessments and associated activities.
Sec. 900.113 Definitions.
(a) Construction contract means a fixed-price or cost-reimbursement
self-determination contract for a construction project, except that
such term does not include any contract:
(1) That is limited to providing planning services and construction
management services (or a combination of such services);
(2) For the Housing Improvement Program or roads maintenance
program of the Bureau of Indian Affairs administered by the Secretary
of the Interior; or
(3) For the health facility maintenance and improvement program
administered by the Secretary of Health and Human Services.
(b) Construction management services (CMS) means activities limited
to administrative support services; coordination; and monitoring
oversight of the planning, design, and construction process. An Indian
tribe or tribal organization's employee or construction management
services consultant (typically an engineer or architect) performs such
activities as:
(1) Coordination and information exchange between the Indian tribe
or tribal organization and the Federal government;
(2) Preparation of Indian tribe or tribal organization's
construction contract proposals;
(3) Indian tribe or tribal organization subcontract scope of work
identification and subcontract preparation, and competitive selection
of Indian tribe or tribal organization construction contract
subcontractors (see Sec. 900.110);
(4) Review of work to ensure compliance with the POR and/or the
construction contract. This does not involve construction project
management as defined in paragraph (d) of this section.
(c) Construction programs include programs for the planning,
design, construction, repair, improvement, and expansion of buildings
or facilities, including but not limited to, housing, law enforcement
and detention facilities, sanitation and water systems, roads, schools,
administration and health facilities, irrigation and agricultural work,
water conservation, flood control, and port facilities, and
environmental, archeological, cultural resource, historic preservation,
and conduct of similar assessments.
(d) Construction project management means direct responsibility for
the construction project through day-to-day on-site management and
administration of the project. Activities may include cost management,
project budgeting, project scheduling, procurement services.
(e) Design means services performed by licensed design
professionals related to preparing drawings, specifications, and other
design submissions specified in the contract, as well as services
provided by or for licensed design professionals during the bidding/
negotiating, construction, and operational phases of the project.
(f) Planning services means activities undertaken to support agency
and/or Congressional funding of a construction project. Planning
services may include performing a needs assessment, completing and/or
verifying master plans, developing justification documents, conducting
pre-design site investigations, developing budget cost estimates,
conducting feasibility studies as needed and completion of approved
justification documents and a program of requirements (POR) for the
project.
(g) Program of Requirements (POR) is a planning document developed
during the planning phase for an individual project. It provides
background about the project; site information; programmatic needs;
and, for facilities projects, a detailed room-by-room listing of
spaces, including net and gross sizes, finish materials to be used,
furnishings and equipment, and other information and design criteria on
which to base the construction project documents.
(h) Scope of work means the description of the work to be provided
through a contract issued under this subpart and the methods and
processes to be used to accomplish that work. A scope of work is
typically developed based on criteria provided in a POR during the
design phase, and project construction documents (plans and
specifications) during the construction phase.
Sec. 900.114 Why is there a separate subpart in these regulations for
construction contracts and grants?
There is a separate subpart because the Act differentiates between
construction contracts and the model agreement in section 108 of the
Act which is required for contracting other activities. Construction
contracts are separately defined in the Act and are subject to a
separate proposal and review process.
Sec. 900.115 How do self-determination construction contracts relate
to ordinary Federal procurement contracts?
(a) A self-determination construction contract is a government-to-
government agreement that transfers control of the construction
project, including administrative functions, to the contracting Indian
tribe or tribal organization to facilitate effective and meaningful
participation by the Indian tribe or tribal organization in planning,
conducting, and administering the construction project, and so that the
construction project is responsive to the true needs of the Indian
community. The Secretary's role in the conduct of a contracted
construction project is limited to the Secretary's responsibilities set
out in Sec. 900.131.
(b) Self-determination construction contracts are not traditional
``procurement'' contracts.
(1) With respect to a construction contract (or a subcontract of
such a construction contract), the provisions of the Office of Federal
Procurement Policy Act (41 U.S.C. 401 et seq.) and the regulations
promulgated under that Act, shall apply to a construction contract or
subcontract only to the extent that application of the provision is:
(i) Necessary to ensure that the contract may be carried out in a
satisfactory manner;
(ii) Directly related to the construction activity; and
(iii) Not inconsistent with the Act.
(2) A list of the Federal requirements that meet the requirements
of this
[[Page 32518]]
paragraph shall be included in an attachment to the contract under
negotiations between the Secretary and the Indian tribe or tribal
organization.
(3) Except as provided in paragraph (b)(2) of this section, no
Federal law listed in section 105(3)(C)(ii) of the Act or any other
provision of Federal law (including an Executive order) relating to
acquisition by the Federal government shall apply to a construction
contract that an Indian tribe or tribal organization enters into under
this Act, unless expressly provided in the law.
(c) Provisions of a construction contract under this subpart shall
be liberally construed in favor of the contracting Indian tribe or
tribal organization.
Sec. 900.116 Are negotiated fixed-price contracts treated the same as
cost-reimbursable contracts?
Yes, except that in negotiated fixed-price construction contracts,
appropriate clauses shall be negotiated to allocate properly the
contract risks between the government and the contractor.
Sec. 900.117 Do these ``construction contract'' regulations apply to
planning services?
(a) These regulations apply to planning services contracts only as
provided in this section.
(1) The Indian tribe or tribal organization shall submit to the
Secretary for review and approval the POR documents produced as a part
of a model contract under section 108 of the Act or under a
construction contract under this subpart.
(i) Within 60 days after receipt of the POR from the Indian tribe
or tribal organization for a project that has achieved priority ranking
or that is funded, the Secretary shall:
(A) Approve the POR;
(B) Notify the Indian tribe or tribal organization of and make
available any objections to the POR that the Secretary may have; or
(C) Notify the Indian tribe or tribal organization of the reasons
why the Secretary will be unable either to approve the POR or to notify
the Indian tribe or tribal organization of any objections within 60
days, and state the time within which the notification will be made,
provided that the extended time shall not exceed 60 additional days.
(ii) Within a maximum of 180 days after receipt of a POR from an
Indian tribe or tribal organization for a project that is not funded
and is not described in paragraph (a)(1)(i) of this section, the
Secretary shall:
(A) Approve the POR; or
(B) Notify the Indian tribe or tribal organization of and make
available any objections to the POR; or
(C) Notify the Indian tribe or tribal organization of the reasons
why the Secretary will be unable either to approve the POR or to notify
the Indian tribe or tribal organization of any objections within 180
days, and state the time within which the notification will be made,
provided that the extended time shall not exceed 60 additional days.
(2) Any failure of the Secretary to act on a POR within the
applicable period required in paragraph (a)(1) of this section will be
deemed a rejection of the POR and will authorize the commencement of
any appeal as provided in section 110 of the Act, or, if a model
agreement under section 108 of the Act is used, the disputes provision
of that agreement.
(3) If an Indian tribe or tribal organization elects to provide
planning services as part of a construction contract rather than under
a model agreement as set out in section 108 of the Act, the regulations
in this subpart shall apply.
(b) The parties to the contract are encouraged to consult during
the development of the POR and following submission of the POR to the
Secretary.
Sec. 900.118 Do these ``construction contract'' regulations apply to
construction management services?
No. Construction management services may be contracted separately
under section 108 of the Act. Construction management services
consultants and/or Indian tribe or tribal organization employees assist
and advise the Indian tribe or tribal organization to implement
construction contracts, but have no contractual relationship with or
authority to direct construction contract subcontractors.
(a) If the Indian tribe or tribal organization chooses to contract
solely for construction management services, these services shall be
limited to:
(1) Coordination and exchange of information between the Indian
tribe or tribal organization and the Secretary;
(2) Review of work produced by the Secretary to determine
compliance with:
(i) The POR and design contract during the design stage; or
(ii) The project construction documents during the construction
stage;
(3) Disputes shall be resolved in accordance with the disputes
clause of the CMS contract.
(b) If the Indian tribe or tribal organization conducts CMS under
section 108 of the Act and the Indian tribe or tribal organization
contracts separately under this subpart for all or some of the
activities in Sec. 900.110, the contracted activities shall be limited
to:
(1) Coordination and exchange of information between the Indian
tribe or tribal organization and Secretary;
(2) Preparation of tribal or tribal organization construction
subcontract scope of work identification and subcontract preparation,
and competitive selection of tribal or tribal organization construction
contract subcontractors;
(3) Review of work produced by tribal or tribal organization
construction subcontractors to determine compliance with:
(i) The POR and the design contract during the design stage; or
(ii) The project construction documents during the construction
stage.
Sec. 900.119 To what extent shall the Secretary consult with affected
Indian tribes before spending funds for any construction project?
Before spending any funds for a planning, design, construction, or
renovation project, whether subject to a competitive application and
ranking process or not, the Secretary shall consult with any Indian
tribe or tribal organization(s) that would be significantly affected by
the expenditure to determine and to follow tribal preferences to the
greatest extent feasible concerning: size, location, type, and other
characteristics of the project.
Sec. 900.120 How does an Indian tribe or tribal organization find out
about a construction project?
Within 30 days after the Secretary's allocation of funds for
planning phase, design phase, or construction phase activities for a
specific project, the Secretary shall notify, by registered mail with
return receipt in order to document mailing, the Indian tribe or tribal
organization(s) to be benefitted by the availability of the funds for
each phase of a project. The Secretarial notice of fund allocation
shall offer technical assistance in the preparation of a contract
proposal.
(a) The Secretary shall, within 30 days after receiving a request
from an Indian tribe or tribal organization, furnish the Indian tribe
or tribal organization with all information available to the Secretary
about the project including, but not limited to: construction drawings,
maps, engineering reports, design reports, plans of requirements, cost
estimates, environmental assessments, or environmental impact reports
and archeological reports.
[[Page 32519]]
(b) An Indian tribe or tribal organization is not required to
request this information prior to submitting a notification of intent
to contract or a contract proposal.
(c) The Secretary shall have a continuing responsibility to furnish
information.
Sec. 900.121 What happens during the preplanning phase and can an
Indian tribe or tribal organization perform any of the activities
involved in this process?
(a) The application and ranking process for developing a priority
listing of projects varies between agencies. There are, however, steps
in the selection process that are common to most selection processes.
An Indian tribe or tribal organization that wishes to secure a
construction project should contact the appropriate agency to determine
the specific steps involved in the application and selection process
used to fund specific types of projects. When a priority process is
used in the selection of construction projects, the steps involved in
the application and ranking process are as follows:
(1) Application. The agency solicits applications from Indian
tribes or tribal organizations. In the request for applications, the
Secretary provides specific information regarding the type of project
to be funded, the objective criteria that will be used to evaluate
applications, the points or weight that each criterion will be
assigned, and the time when applications are due. An Indian tribe or
tribal organization may prepare the application (technical assistance
from the agency, within resources available, shall be provided upon
request from an Indian tribe or tribal organization) or may rely upon
the agency to prepare the application.
(2) Ranking/Prioritization. The Secretary evaluates the
applications based on the criteria provided as part of the application
preparation process. The Secretary applies only criteria and weights
assigned to each criteria that were disclosed to the Indian tribe or
tribal organization during the application stage. The applications are
then ranked in order from the application that best meets application
criteria to the application that least meet the application criteria.
(3) Validation. Before final acceptance of a ranked application,
the information, such as demographic information, deficiency levels
reported in application, the condition of existing facilities, and
program housing needs, is validated. During this process, additional
information may be developed by the Indian tribe or tribal organization
in support of the original information or the Secretary may designate a
representative of the Department to conduct an on-site review of the
information contained in the application.
(b) [Reserved]
Sec. 900.122 What does an Indian tribe or tribal organization do if it
wants to secure a construction contract?
(a) The Act establishes a special process for review and
negotiation of proposals for construction contracts which is different
than that for other self-determination contract proposals. The Indian
tribe or tribal organization should notify the Secretary of its intent
to contract. After notification, the Indian tribe or tribal
organization should prepare its contract proposal in accordance with
the sections of this subpart. While developing its construction
contract proposal, the Indian tribe or tribal organization can request
technical assistance from the Secretary. Not later than 30 days after
receiving a request from an Indian tribe or tribal organization, the
Secretary shall provide to the Indian tribe or tribal organization all
information available about the construction project, including
construction drawings, maps, engineering reports, design reports, plans
of requirements, cost estimates, environmental assessments, or
environmental impact reports, and archaeological reports. The
responsibility of the Secretary to furnish this information shall be a
continuing one.
(b) At the request of the Indian tribe or tribal organization and
before finalizing its construction contract proposal, the Secretary
shall provide for a precontract negotiation phase during the
development of a contract proposal. Within 30 days the Secretary shall
acknowledge receipt of the proposal and, if requested by the Indian
tribe or tribal organization, shall confer with the Indian tribe or
tribal organization to develop a negotiation schedule. The negotiation
phase shall include, at a minimum:
(1) The provision of technical assistance under section 103 of the
Act and paragraph (a) of this section;
(2) A joint scoping session between the Secretary and the Indian
tribe or tribal organization to review all plans, specifications,
engineering reports, cost estimates, and other information available to
the parties, for the purpose of identifying all areas of agreement and
disagreement;
(3) An opportunity for the Secretary to revise plans, designs, or
cost estimates of the Secretary in response to concerns raised, or
information provided by, the Indian tribe or tribal organization;
(4) A negotiation session during which the Secretary and the Indian
tribe or tribal organization shall seek to develop a mutually agreeable
contract proposal; and
(5) Upon the request of the Indian tribe or tribal organization,
the use of alternative dispute resolution to resolve remaining areas of
disagreement under the dispute resolution provisions under subchapter
IV of chapter 5 of the United States Code.
Sec. 900.123 What happens if the Indian tribe or tribal organization
and the Secretary cannot develop a mutually agreeable contract
proposal?
(a) If the Secretary and the Indian tribe or tribal organization
are unable to develop a mutually agreeable construction contract
proposal under the procedures in Sec. 900.122, the Indian tribe or
tribal organization may submit a final contract proposal to the
Secretary. Not later than 30 days after receiving the final contract
proposal, the Secretary shall approve the contract proposal and award
the contract, unless, during the period the Secretary declines the
proposal under sections 102(a)(2) and 102(b) of the Act (including
providing opportunity for an appeal under section 102(b)).
(b) Whenever the Secretary declines to enter into a self-
determination contract or contracts under section 102(a)(2) of the Act,
the Secretary shall:
(1) State any objections to the contract proposal (as submitted by
the Indian tribe or tribal organization) in writing and provide all
documents relied on in making the declination decision within 20 days
of such decision to the Indian tribe or tribal organization;
(2) Provide assistance to the Indian tribe or tribal organization
to overcome the stated objections;
(3) Provide the Indian tribe or tribal organization with a hearing
on the record with the right to engage in full discovery relevant to
any issue raised in the matter and the opportunity for appeal on the
objections raised, under the regulations set forth in subpart L, except
that the Indian tribe or tribal organization may, in lieu of filing the
appeal, initiate an action in a Federal district court and proceed
directly under section 110(a) of the Act.
Sec. 900.124 May the Indian tribe or tribal organization to use a
grant in lieu of a contract?
Yes. A grant agreement or a cooperative agreement may be used in
lieu of a contract under sections 102 and 103 of the Act when agreed to
by the Secretary and the Indian tribe or tribal
[[Page 32520]]
organization. Under the grant concept, the grantee will assume full
responsibility and accountability for design and construction
performance within the funding limitations. The grantee will manage and
administer the work with minimal involvement by the government. The
grantee will be expected to have acceptable management systems for
finance, procurement, and property. The Secretary may issue Federal
construction guidelines and manuals applicable to its construction
programs, and the government shall accept tribal proposals for
alternatives which are consistent with or exceed Federal guidelines or
manuals applicable to construction programs.
Sec. 900.125 What shall a construction contract proposal contain?
(a) In addition to the full name, address, and telephone number of
the Indian tribe or tribal organization submitting the construction
proposal, a construction contract proposal shall contain descriptions
of the following standards under which they propose to operate the
contract:
(1) The use of licensed and qualified architects;
(2) Applicable health and safety standards;
(3) Adherence to applicable Federal, State, local, or tribal
building codes and engineering standards;
(4) Structural integrity;
(5) Accountability of funds;
(6) Adequate competition for subcontracting under tribal or other
applicable law;
(7) The commencement, performance, and completion of the contract;
(8) Adherence to project plans and specifications (including any
applicable Federal construction guidelines and manuals and the
Secretary shall accept tribal proposals for alternatives which are
consistent with or exceed Federal guidelines or manuals applicable to
construction programs);
(9) The use of proper materials and workmanship;
(10) Necessary inspection and testing;
(11) With respect to the self-determination contract between the
Indian tribe or tribal organization and Federal government, a process
for changes, modifications, stop work, and termination of the work when
warranted;
(b) In addition to provisions regarding the program standards
listed in paragraph (a) of this section or the assurances listed in
paragraph (c) of this section, the Indian tribe or tribal organization
shall also include in its construction contract proposal the following:
(1) In the case of a contract for design activities, this
statement, ``Construction documents produced as part of this contract
will be produced in accordance with the Program of Requirements and/or
Scope of Work,'' and the POR and/or Scope of Work shall be attached to
the contract proposal. If tribal construction procedures, standards and
methods (including national, regional, state, or tribal building codes
or construction industry standards) are consistent with or exceed
applicable Federal standards then the Secretary shall accept the
tribally proposed standards; and
(2) In the case of a contract for construction activities, this
statement, ``The facility will be built in accordance with the
construction documents produced as a part of design activities. The
project documents, including plans and specifications, are hereby
incorporated into this contract through this reference.'' If tribal
construction procedures, standards and methods (including national,
regional, state, or tribal building codes or construction industry
standards) are consistent with or exceed applicable Federal standards
then the Secretary shall accept the tribally proposed standards; and
(3) Proposed methods to accommodate the responsibilities of the
Secretary provided in Sec. 900.131; and
(4) Proposed methods to accommodate the responsibilities of the
Indian tribe or tribal organization provided in Sec. 900.130 unless
otherwise addressed in paragraph (a) of this section and minimum staff
qualifications proposed by the Indian tribe or tribal organization, if
any;
(5) A contract budget as described in Sec. 900.127; and
(6) A period of performance for the conduct of all activities to be
contracted;
(7) A payment schedule as described in Sec. 900.132;
(8) A statement indicating whether or not the Indian tribe or
tribal organization has a CMS contract related to this project;
(9) Current (unrevoked) authorizing resolutions in accordance with
Sec. 900.5(d) from all Indian tribes benefitting from the contract
proposal; and
(10) Any responsibilities, in addition to the Federal
responsibilities listed in Sec. 900.131, which the Indian tribe or
tribal organization proposes the Federal government perform to assist
with the completion of the scope of work;
(c) The Indian tribe or tribal organization will provide the
following assurances in its contract proposal:
(1) If the Indian tribe or tribal organization elects not to take
title (pursuant to subpart I) to Federal property used in carrying out
the contract, ``The Indian tribe or tribal organization will not
dispose of, modify the use of, or change the terms of the real property
title, or other interest in the site and facilities without permission
and instructions from the awarding agency. The Indian tribe or tribal
organization will record the Federal interest in the title of real
property in accordance with awarding agency directives and will include
a covenant in the title of real property acquired in whole or in part
with Federal assistance funds to assure nondiscrimination during the
useful life of the project''; and
(2) ``The Indian tribe or tribal organization will comply with the
Lead-Based Paint Poisoning Prevention Act (42 U.S.C. 4801 et seq.)''
which prohibits the use of lead based paint in construction or
rehabilitation of residential structures;
(3) ``The Indian tribe or tribal organization will comply, or has
already complied, with the requirements of Titles II and III of the
Uniform Relocation Assistance and Real Property Acquisition Policies
Act of 1970 (Pub. L. 91-646),'' which provides for fair and equitable
treatment of persons displaced or whose property is acquired as a
result of Federal participation in purchases; and
(4) ``Except for work performed by tribal or tribal organization
employees, the Indian tribe or tribal organization will comply, as
applicable, with the provisions of the Davis-Bacon Act (40 U.S.C. 276c
and 18 U.S.C. 874),'' for Federally assisted construction
subagreements;
(5) ``The Indian tribe or tribal organization will comply with the
flood insurance purchase requirements of section 102(a) of the Flood
Disaster Protection Act of 1973 (Pub. L. 93-234),'' which requires
recipients in a special flood hazard area to participate in the program
and to purchase flood insurance if the total cost of insurable
construction and acquisition is $10,000 or more;
(6) ``The Indian tribe or tribal organization will comply with all
applicable Federal environmental laws, regulations, and Executive
Orders;''
(7) ``The Indian tribe or tribal organization will comply with the
Wild and Scenic Rivers Act of 1968 (16 U.S.C. 1271 et seq.) related to
protecting the components or potential components of the national wild
and scenic rivers system;''
(8) ``The Indian tribe or tribal organization will assist the
awarding agency in assuring compliance with
[[Page 32521]]
section 106 of the National Historic Preservation Act of 1966, as
amended (16 U.S.C. 470), EO 11593 (identification and preservation of
historic properties), and the Archaeological and Historic Preservation
Act of 1974 (16 U.S.C. 469a-1 et seq.).''
(d) The Indian tribe or tribal organization and the Secretary will
both make a good faith effort to identify any other applicable Federal
laws, Executive Orders, or regulations applicable to the contract,
share them with the other party, and refer to them in the construction
contract. The parties will make a good faith effort to identify tribal
laws, ordinances, and resolutions which may affect either party in the
performance of the contract.
Sec. 900.126 Shall a construction contract proposal incorporate
provisions of Federal construction guidelines and manuals?
Each agency may provide or the Indian tribe or tribal organization
may request Federal construction guidelines and manuals for
consideration by the Indian tribe or tribal organization in the
preparation of its contract proposal. If tribal construction
procedures, standards and methods (including national, regional, State,
or tribal building codes or construction industry standards) are
consistent with or exceed applicable Federal standards, the Secretary
shall accept the tribally proposed standards.
Sec. 900.127 What can be included in the Indian tribe or tribal
organization's contract budget?
(a) The costs incurred will vary depending on which phase (see
Sec. 900.112) of the construction process the Indian tribe or tribal
organization is conducting and the type of contract that will be used.
The total amount awarded under a construction contract shall reflect an
overall fair and reasonable price to the parties (see Sec. 900.129).
(b) Costs for activities under this subpart that have not been
billed, allocated, or recovered under a contract issued under section
108 of the Act should be included.
(c) The Indian tribe or tribal organization's budget should include
the cost elements that reflect an overall fair and reasonable price.
These costs include:
(1) The reasonable costs to the Indian tribe or tribal organization
of performing the contract, taking into consideration the terms of the
contract and the requirements of the Act and any other applicable law;
(2) The costs of preparing the contract proposal and supporting
cost data;
(3) The costs associated with auditing the general and
administrative costs of the Indian tribe or tribal organization
associated with the management of the construction contract; and
(4) In cases where the Indian tribe or tribal organization is
submitting a fixed-price construction contract:
(i) The reasonable costs to the Indian tribe or tribal organization
for general administration incurred in connection with the project that
is the subject of the contract;
(ii) The ability of the contractor that carries out the
construction contract to make a reasonable profit, taking into
consideration the risks associated with carrying out the contract,
local market conditions, and other relevant considerations.
(d) In establishing a contract budget for a construction project,
the Secretary shall not be required to identify separately the
components described in paragraphs (c)(4)(i) and (c)(4)(ii) of this
section.
(e) The Indian tribe or tribal organization's budget proposal
includes a detailed budget breakdown for performing the scope of work
including a total ``not to exceed'' dollar amount with which to perform
the scope of work. Specific budget line items, if requested by the
Indian tribe or tribal organization, can include the following:
(1) The administrative costs the Indian tribe or tribal
organization may incur including:
(i) Personnel needed to provide administrative oversight of the
contract;
(ii) Travel costs incurred, both local travel incurred as a direct
result of conducting the contract and remote travel necessary to review
project status with the Secretary;
(iii) Meeting costs incurred while meeting with community residents
to develop project documents;
(iv) Fees to be paid to consultants, such as demographic
consultants, planning consultants, attorneys, accountants, and
personnel who will provide construction management services;
(2) The fees to be paid to architects and engineers to assist in
preparing project documents and to assist in oversight of the
construction process;
(3) The fees to be paid to develop project surveys including
topographical surveys, site boundary descriptions, geotechnical
surveys, archeological surveys, and NEPA compliance, and;
(4) In the case of a contract to conduct project construction
activities, the fees to provide a part-time or full-time on-site
inspector, depending on the terms of the contract, to monitor
construction activities;
(5) In the case of a contract to conduct project construction
activities, project site development costs;
(6) In the case of a contract to conduct project construction
activities, project construction costs including those costs described
in paragraph (c)(4), of this section;
(7) The cost of securing and installing moveable equipment,
telecommunications and data processing equipment, furnishings,
including works of art, and special purpose equipment when part of a
construction contract;
(8) A contingency amount for unanticipated conditions of the
construction phase of cost-reimbursable contracts. The amount of the
contingency provided shall be 3 percent of activities being contracted
or 50 percent of the available contingency funds, whichever is greater.
In the event provision of required contingency funds will cause the
project to exceed available project funds, the discrepancy shall be
reconciled in accordance with Sec. 900.129(e). Any additional
contingency funds for the construction phase will be negotiated on an
as-needed basis subject to the availability of funds and the nature,
scope, and complexity of the project. Any contingency for other phases
will be negotiated on a contract-by-contract basis. Unused contingency
funds obligated to the contract and remaining at the end of the
contract will be considered savings.
(9) Other costs incurred that are directly related to the conduct
of contract activities.
Sec. 900.128 What funding shall the Secretary provide in a
construction contract?
The Secretary shall provide an amount under a construction contract
that reflects an overall fair and reasonable price to the parties.
These costs include:
(a) The reasonable costs to the Indian tribe or tribal organization
of performing the contract, taking into consideration the terms of the
contract and the requirements of the Act and any other applicable law;
(b) The costs of preparing the contract proposal and supporting
cost data; and
(c) The costs associated with auditing the general and
administrative costs of the tribal organization associated with the
management of the construction contract; and
(d) If the Indian tribe or tribal organization is submitting a
fixed-price construction contract:
(1) The reasonable costs to the Indian tribe or tribal organization
for general administration incurred in connection
[[Page 32522]]
with the project that is the subject of the contract;
(2) The ability of the contractor that carries out the construction
contract to make a reasonable profit, taking into consideration the
risks associated with carrying out the contract, local market
conditions, and other relevant considerations including but not limited
to contingency.
(3) In establishing a contract budget for a construction project,
the Secretary is not required to identify separately the components
described in paragraph (d) (1) and (d) (2) of this sections.
Sec. 900.129 How do the Secretary and Indian tribe or tribal
organization arrive at an overall fair and reasonable price for the
performance of a construction contract?
(a) Throughout the contract award process, the Secretary and Indian
tribe or tribal organization shall share all construction project cost
information available to them in order to facilitate reaching agreement
on an overall fair and reasonable price for the project or part
thereof. In order to enhance this communication, the government's
estimate of an overall fair and reasonable price shall:
(1) Contain a level of detail appropriate to the nature and phase
of the work and sufficient to allow comparisons to the Indian tribe or
tribal organization's estimate;
(2) Be prepared in a format coordinated with the Indian tribe or
tribal organization; and
(3) Include the cost elements contained in section 105(m)(4) of the
Act.
(b) The government's cost estimate shall be an independent cost
estimate based on such information as the following:
(1) Prior costs to the government for similar projects adjusted for
comparison to the target location, typically in unit costs, such as
dollars per pound, square meter cost of building, or other unit cost
that can be used to make a comparison;
(2) Actual costs previously incurred by the Indian tribe or tribal
organization for similar projects;
(3) Published price lists, to include regional adjustment factors,
for materials, equipment, and labor; and
(4) Projections of inflation and cost trends, including projected
changes such as labor, material, and transportation costs.
(c) The Secretary shall provide the initial government cost
estimate to the Indian tribe or tribal organization and make
appropriate revisions based on concerns raised or information provided
by the Indian tribe or tribal organization. The Secretary and the
Indian tribe or tribal organization shall continue to revise, as
appropriate, their respective cost estimates based on changed or
additional information such as the following:
(1) Actual subcontract bids;
(2) Changes in inflation rates and market conditions, including
local market conditions;
(3) Cost and price analyses conducted by the Secretary and the
Indian tribe or tribal organization during negotiations;
(4) Agreed-upon changes in the size, scope and schedule of the
construction project; and
(5) Agreed-upon changes in project plans and specifications.
(d) Considering all of the information available, the Secretary and
the Indian tribe or tribal organization shall negotiate the amount of
the construction contract. The objective of the negotiations is to
arrive at an amount that is fair under current market conditions and
reasonable to both the government and the Indian tribe or tribal
organization. As a result, the agreement does not necessarily have to
be in strict conformance with either party's cost estimate nor does
agreement have to be reached on every element of cost, but only on the
overall fair and reasonable price of each phase of the work included in
the contract.
(e) If the fair and reasonable price arrived at under paragraph (d)
of this section would exceed the amount available to the Secretary,
then:
(1) If the Indian tribe or tribal organization elects to submit a
final proposal, the Secretary may decline the proposal under section
105(m)(4)(C)(v) of the Act or if the contract has been awarded, dispute
the matter under the Contract Disputes Act; or
(2) If requested by the Indian tribe or tribal organization:
(i) The Indian tribe or tribal organization and the Secretary may
jointly explore methods of expanding the available funds through the
use of contingency funds, advance payments in accordance with
Sec. 900.132, rebudgeting, or seeking additional appropriations; or
(ii) The Indian tribe or tribal organization may elect to propose a
reduction in project
FR Doc. 96-15793 Indian Self-Determination and Education Assistance Act Amendments
scope to bring the project price within available
funds; or
(iii) The Secretary and Indian tribe or tribal organization may
agree that the project be executed in phases.
Sec. 900.130 What role does the Indian tribe or tribal organization
play during the performance of a self-determination construction
contract?
(a) The Indian tribe or tribal organization is responsible for the
successful completion of the project in accordance with the approved
contract documents.
(b) If the Indian tribe or tribal organization is contracting to
perform design phase activities, the Indian tribe or tribal
organization shall have the following responsibilities:
(1) The Indian tribe or tribal organization shall subcontract with
or provide the services of licensed and qualified architects and other
consultants needed to accomplish the self-determination construction
contract.
(2) The Indian tribe or tribal organization shall administer and
disburse funds provided through the contract in accordance with subpart
F, Sec. 900.42 through Sec. 900.45 and implement a property management
system in accordance with subpart F, Sec. 900.51 through Sec. 900.60.
(3) The Indian tribe or tribal organization shall direct the
activities of project architects, engineers, and other project
consultants, facilitate the flow of information between the Indian
tribe or tribal organization and its subcontractors, resolve disputes
between the Indian tribe or tribal organization and its subcontractors
or between its subcontractors, and monitor the work produced by its
subcontractors to ensure compliance with the POR.
(4) The Indian tribe or tribal organization shall direct the work
of its subcontractors so that work produced is provided in accordance
with the contract budget and contract performance period as negotiated
between and agreed to by the parties.
(5) The Indian tribe or tribal organization shall provide the
Secretary with an opportunity to review and provide written comments on
the project plans and specifications only at the concept phase, the
schematic phase (or the preliminary design), the design development
phase, and the final construction documents phase and approve the
project plans and specifications for general compliance with contract
requirements only at the schematic phase (or the preliminary design)
and the final construction documents phase or as otherwise negotiated.
(6) The Indian tribe or tribal organization shall provide the
Secretary with the plans and specifications after their final review
so, if needed, the Secretary may obtain an independent government cost
estimate in accordance with Sec. 900.131(b)(4) for the construction of
the project.
(7) The Indian tribe or tribal organization shall retain project
records and design documents for a minimum of
[[Page 32523]]
3 years following completion of the contract.
(8) The Indian tribe or tribal organization shall provide progress
reports and financial status reports quarterly, or as negotiated, that
contain a narrative of the work accomplished, including but not limited
to descriptions of contracts, major subcontracts, and modifications
implemented during the report period and A/E service deliverables, the
percentage of the work completed, a report of funds expended during the
reporting period, and total funds expended for the project. The Indian
tribe or tribal organization shall also provide copies, for the
information of the Secretary, of an initial work and payment schedule
and updates as they may occur.
(c) If the Indian tribe or tribal organization is contracting to
perform project construction phase activities, the Indian tribe or
tribal organization shall have the following responsibilities:
(1) The Indian tribe or tribal organization shall subcontract with
or provide the services of licensed and qualified architects and other
consultants as needed to accomplish the self-determination construction
contract.
(2) The Indian tribe or tribal organization shall administer and
dispense funds provided through the contract in accordance with subpart
F, Sec. 900.42 through Sec. 900.45 and implement a property management
system in accordance with subpart F, Sec. 900.51 through Sec. 900.60.
(3) The Indian tribe or tribal organization shall subcontract with
or provide the services of construction contractors or provide its own
forces to conduct construction activities in accordance with the
project construction documents or as otherwise negotiated between and
agreed to by the parties.
(4) The Indian tribe or tribal organization shall direct the
activities of project architects, engineers, construction contractors,
and other project consultants, facilitate the flow of information
between the Indian tribe or tribal organization and its subcontractors,
resolve disputes between itself and its subcontractors or between its
subcontractors, and monitor the work produced by its subcontractors to
assure compliance with the project plans and specifications.
(5) The Indian tribe or tribal organization shall manage or provide
for the management of day-to-day activities of the contract including
the issuance of construction change orders to subcontractors except
that, unless the Secretary agrees:
(i) The Indian tribe or tribal organization may not issue a change
order to a construction subcontractor that will cause the Indian tribe
or tribal organization to exceed its self-determination contract
budget;
(ii) The Indian tribe or tribal organization may not issue a change
order to a construction subcontractor that will cause the Indian tribe
or tribal organization to exceed the performance period in its self-
determination contract budget; or
(iii) The Indian tribe or tribal organization may not issue to a
construction subcontractor a change order that is a significant
departure from the scope or objective of the project.
(6) The Indian tribe or tribal organization shall direct the work
of its subcontractors so that work produced is provided in accordance
with the contract budget and performance period as negotiated between
and agreed to by the parties.
(7) The Indian tribe or tribal organization shall provide to the
Secretary progress and financial status reports.
(i) The reports shall be provided quarterly, or as negotiated, and
shall contain a narrative of the work accomplished, the percentage of
the work completed, a report of funds expended during the reporting
period, and total funds expended for the project.
(ii) The Indian tribe or tribal organization shall also provide
copies, for the information of the Secretary, of an initial schedule of
values and updates as they may occur, and an initial construction
schedule and updates as they occur.
(8) The Indian tribe or tribal organization shall maintain on the
job-site or project office, and make available to the Secretary during
monitoring visits: contracts, major subcontracts, modifications,
construction documents, change orders, shop drawings, equipment cut
sheets, inspection reports, testing reports, and current redline
drawings.
(d) Upon completion of the project, the Indian tribe or tribal
organization shall provide to the Secretary a reproducible copy of the
record plans and a contract closeout report.
(e) For cost-reimbursable projects, the Indian tribe or tribal
organization shall not be obligated to continue performance that
requires an expenditure of more funds than were awarded under the
contract. If the Indian tribe or tribal organization has a reason to
believe that the total amount required for performance of the contract
will be greater than the amount of funds awarded, it shall provide
reasonable notice to the Secretary. If the Secretary does not increase
the amount of funds awarded under the contract, the Indian tribe or
tribal organization may suspend performance of the contract until
sufficient additional funds are awarded.
Sec. 900.131 What role does the Secretary play during the performance
of a self-determination construction contract?
(a) If the Indian tribe or tribal organization is contracting
solely to perform construction management services either under this
subpart or section 108 of the Act, the Secretary has the following
responsibilities:
(1) The Secretary is responsible for the successful completion of
the project in accordance with the approved contract documents. In
fulfilling those responsibilities, the Secretary shall consult with the
Indian tribe or tribal organization on a regular basis as agreed to by
the parties to facilitate the exchange of information between the
Indian tribe or tribal organization and Secretary;
(2) The Secretary shall provide the Indian tribe or tribal
organization with regular opportunities to review work produced to
determine compliance with the following documents:
(i) The POR, during the conduct of design phase activities. The
Secretary shall provide the Indian tribe or tribal organization with an
opportunity to review the project construction documents at the concept
phase, the schematic phase, the design development phase, and the final
construction documents phase, or as otherwise negotiated. Upon receipt
of project construction documents for review, the Indian tribe or
tribal organization shall not take more than 21 days to make available
to the Secretary any comments or objections to the construction
documents as submitted by the Secretary. Resolution of any comments or
objections shall be in accordance with dispute resolution procedures as
agreed to by the parties and contained in the contract; or
(ii) The project construction documents, during conduct of the
construction phase activities. The Indian tribe or tribal organization
shall have the right to conduct monthly or critical milestone on-site
monitoring visits or as negotiated with the Secretary;
(b) If the Indian tribe or tribal organization is contracting to
perform design and/or construction phase activities, the Secretary
shall have the following responsibilities:
[[Page 32524]]
(1) In carrying out the responsibilities of this section, and
specifically in carrying out review, comment, and approval functions
under this section, the Secretary shall provide for full tribal
participation in the decision making process and shall honor tribal
preferences and recommendations to the greatest extent feasible. This
includes promptly notifying the Indian tribe or tribal organization of
any concerns or issues in writing that may lead to disapproval, meeting
with the Indian tribe or tribal organization to discuss these concerns
and issues and to share relevant information and documents, and making
a good faith effort to resolve all issues and concerns of the Indian
tribe or tribal organization. The time allowed for Secretarial review,
comment, and approval shall be no more than 21 days per review unless a
different time period is negotiated and specified in individual
contracts. The 21-day time period may be extended if the Indian tribe
or tribal organization agrees to the extension in writing.
Disagreements over the Secretary's decisions in carrying out these
responsibilities shall be handled under subpart N governing contract
disputes under the Contract Disputes Act.
(2) To the extent the construction project is subject to NEPA or
other environmental laws, the appropriate Secretary shall make the
final determination under such laws. All other environmentally related
functions are contractible.
(3) If the Indian tribe or tribal organization conducts planning
activities under this subpart, the Secretary shall review and approve
final planning documents for the project to ensure compliance with
applicable planning standards.
(4) When a contract or portion of a contract is for project
construction activities, the Secretary may rely on the Indian tribe or
tribal organization's cost estimate or the Secretary may obtain an
independent government cost estimate that is derived from the final
project plans and specifications. The Secretary shall obtain the cost
estimate, if any, within 90 days or less of receiving the final plans
and specifications from the Indian tribe or tribal organization and
shall provide all supporting documentation of the independent cost
estimate to the Indian tribe or tribal organization within the 90 day
time limit.
(5) If the contracted project involves design activities, the
Secretary shall have the authority to review for general compliance
with the contract requirements and provide written comments on the
project plans and specifications only at the concept phase, the
schematic phase, the design development phase and the final
construction documents phase, and approve for general compliance with
contract requirements the project plans and specifications only at the
schematic phase and the final construction documents phase or as
otherwise negotiated.
(6) If the contracted project involves design activities, the
Secretary reserves a royalty-free, nonexclusive, and irrevocable
license to reproduce, publish or otherwise use, for Federal government
purposes:
(i) The copyright in any work developed under a contract or
subcontract of this subpart; and
(ii) Any rights of copyright to which an Indian tribe or tribal
organization or a tribal subcontractor purchases ownership through this
contract.
(7) Changes that require an increase to the negotiated contract
budget or an increase in the negotiated performance period or are a
significant departure from the scope or objective of the project shall
require approval of the Secretary.
(8) Review and comment on specific shop drawings as negotiated and
specified in individual contracts.
(9) The Secretary may conduct monthly on-site monitoring visits, or
alternatively if negotiated with the Indian tribe or tribal
organization, critical milestone on-site monitoring visits.
(10) The Secretary retains the right to conduct final project
inspections jointly with the Indian tribe or tribal organization and to
accept the building or facility. If the Secretary identifies problems
during final project inspections the information shall be provide to
the Indian tribe or tribal organization and shall be limited to items
that are materially noncompliant.
(11) The Secretary can require an Indian tribe or tribal
organization to suspend work under a contract in accordance with this
paragraph. The Secretary may suspend a contract for no more than 30
days unless the Indian tribe or tribal organization has failed to
correct the reason(s) for the suspension or unless the cause of the
suspension cannot be resolved through either the efforts of the
Secretary or the Indian tribe or tribal organization.
(i) The following are reasons the Secretary may suspend work under
a self-determination contract for construction:
(A) Differing site conditions encountered upon commencement of
construction activities that impact health or safety concerns or shall
require an increase in the negotiated project budget;
(B) The Secretary discovers materially non-compliant work;
(C) Funds allocated for the project that is the subject of this
contract are rescinded by Congressional action; or
(D) Other Congressional actions occur that materially affect the
subject matter of the contract.
(ii) If the Secretary wishes to suspend the work, the Secretary
shall first provide written notice and an opportunity for the Indian
tribe or tribal organization to correct the problem. The Secretary may
direct the Indian tribe or tribal organization to suspend temporarily
work under a contract only after providing a minimum of 5 working days'
advance written notice to the Indian tribe or tribal organization
describing the nature of the performance deficiencies or imminent
safety, health or environmental issues which are the cause for
suspending the work.
(iii) The Indian tribe or tribal organization shall be compensated
for reasonable costs, including but not limited to overhead costs,
incurred due to any suspension of work that occurred through no fault
of the Indian tribe or tribal organization.
(iv) Disputes arising as a result of a suspension of the work by
the Secretary shall be subject to the Contract Disputes Act or any
other alternative dispute resolution mechanism as negotiated between
and agreed to by the parties and contained in the contract.
(12) The Secretary can terminate the project for cause in the event
non-compliant work is not corrected through the suspension process
specified in paragraph (11) of this section.
(13) The Secretary retains authority to terminate the project for
convenience for the following reasons:
(i) Termination for convenience is requested by the Indian tribe or
tribal organization;
(ii) Termination for convenience is requested by the Secretary and
agreed to by the Indian tribe or tribal organization;
(iii) Funds allocated for the project that is the subject of the
contract are rescinded by Congressional action;
(iv) Other Congressional actions take place that affect the subject
matter of the contract;
(v) If the Secretary terminates a self-determination construction
contract for convenience, the Secretary shall provide the Indian tribe
or tribal organization 21 days advance written notice of intent to
terminate a contract for convenience; or
(vi) The Indian tribe or tribal organization shall be compensated
for
[[Page 32525]]
reasonable costs incurred due to termination of the contract.
Sec. 900.132 Once a contract and/or grant is awarded, how will the
Indian tribe or tribal organization receive payments?
(a) A schedule for advance payments shall be developed based on
progress, need, and other considerations in accordance with applicable
law. The payment schedule shall be negotiated by the parties and
included in the contract. The payment schedule may be adjusted as
negotiated by the parties during the course of the project based on
progress and need.
(b) Payments shall be made to the Indian tribe or tribal
organization according to the payment schedule contained in the
contract. If the contract does not provide for the length of each
allocation period, the Secretary shall make payments to the Indian
tribe or tribal organization at least quarterly. Each allocation shall
be adequate to provide funds for the contract activities anticipated to
be conducted during the allocation period, except that:
(1) The first allocation may be greater than subsequent allocations
and include mobilization costs, and contingency funds described in
Sec. 900.128(e)(8); and
(2) Any allocation may include funds for payment for materials that
will be used during subsequent allocation periods.
(c) The Indian tribe or tribal organization may propose a schedule
of payment amounts measured by time or measured by phase of the project
(e.g., planning, design, construction).
(d) The amount of each payment allocation shall be stated in the
Indian tribe or tribal organization's contract proposal. Upon award of
the contract, the Secretary shall transfer the amount of the first
allocation to the Indian tribe or tribal organization within 21 days
after the date of contract award. The second allocation shall be made
not later than 7 days before the end of the first allocation period.
(e) Not later than 7 days before the end of each subsequent
allocation period after the second allocation, the Secretary shall
transfer to the Indian tribe or tribal organization the amount for the
next allocation period, unless the Indian tribe or tribal organization
is delinquent in submission of allocation period progress reports and
financial reports or the Secretary takes action to suspend or terminate
the contract in accordance with Sec. 900.131(b)(11),
Sec. 900.131(b)(12), or Sec. 900.131(b)(13).
Sec. 900.133 Does the declination process or the Contract Dispute Act
apply to construction contract amendments proposed either by an Indian
tribe or tribal organization or the Secretary?
The Contract Disputes Act generally applies to such amendments.
However, the declination process and the procedures in Sec. 900.122 and
Sec. 900.123 apply to the proposal by an Indian tribe or tribal
organization when the proposal is for a new project, a new phase or
discreet stage of a phase of a project, or an expansion of a project
resulting from an additional allocation of funds by the Secretary under
Sec. 900.120.
Sec. 900.134 At the end of a self-determination construction contract,
what happens to savings on a cost-reimbursement contract?
The savings shall be used by the Indian tribe or tribal
organization to provide additional services or benefits under the
contract. Unexpended contingency funds obligated to the contract, and
remaining at the end of the contract, are savings. No further approval
or justifying documentation by the Indian tribe or tribal organization
shall be required before expenditure of funds.
Sec. 900.135 May the time frames for action set out in this subpart be
reduced?
Yes. The time frames in this subpart are intended to be maximum
times and may be reduced based on urgency and need, by agreement of the
parties. If the Indian tribe or tribal organization requests reduced
time frames for action due to unusual or special conditions (such as
limited construction periods), the Secretary shall make a good faith
effort to accommodate the requested time frames.
Sec. 900.136 Do tribal employment rights ordinances apply to
construction contracts and subcontracts?
Yes. Tribal employment rights ordinances do apply to construction
contracts and subcontracts pursuant to Sec. 7(b) and Sec. 7(c) of the
Act.
Sec. 900.137 Do all provisions of the other subparts apply to
contracts awarded under this subpart?
Yes, except as otherwise provided in this subpart and unless
excluded as follows: programmatic reports and data requirements,
reassumption, contract review and approval process, contract proposal
contents, and Sec. 900.150 (d) and (e) of these regulations.
Subpart K--Waiver Procedures
Sec. 900.140 Can any provision of the regulations under this Part be
waived?
Yes. Upon the request of an Indian tribe or tribal organization,
the Secretary shall waive any provision of these regulations, including
any cost principles adopted by the regulations under this part, if the
Secretary finds that granting the waiver is either in the best interest
of the Indians served by the contract, or is consistent with the
policies of the Act and is not contrary to statutory law.
Sec. 900.141 How does an Indian tribe or tribal organization get a
waiver?
To obtain a waiver, an Indian tribe or tribal organization shall
submit a written request to the Secretary identifying the regulation to
be waived and the basis for the request. The Indian tribe or tribal
organization shall explain the intended effect of the waiver, the
impact upon the Indian tribe or tribal organization if the waiver is
not granted, and the specific contract(s) to which the waiver will
apply.
Sec. 900.142 Does an Indian tribe or tribal organization's waiver
request have to be included in an initial contract proposal?
No. Although a waiver request may be included in a contract
proposal, it can also be submitted separately.
Sec. 900.143 How is a waiver request processed?
The Secretary shall approve or deny a waiver within 90 days after
the Secretary receives a written waiver request. The Secretary's
decision shall be in writing. If the requested waiver is denied, the
Secretary shall include in the decision a full explanation of the basis
for the decision.
Sec. 900.144 What happens if the Secretary makes no decision within
the 90-day period?
The waiver request is deemed approved.
Sec. 900.145 On what basis may the Secretary deny a waiver request?
Consistent with section 107(e) of the Act, the Secretary may only
deny a waiver request based on a specific written finding. The finding
must clearly demonstrate (or be supported by controlling legal
authority) that if the waiver is granted:
(a) The service to be rendered to the Indian beneficiaries of the
particular program or function to be contracted will not be
satisfactory;
(b) Adequate protection of trust resources is not assured;
(c) The proposed project or function to be contracted for cannot be
properly
[[Page 32526]]
completed or maintained by the proposed contract;
(d) The amount of funds proposed under the contract is in excess of
the applicable funding level for the contract, as determined under
section 106(a) of the Act; or
(e) The program, function, service, or activity (or portion of it)
that is the subject of the proposal is beyond the scope of programs,
functions, services, or activities that are contractible under the Act
because the proposal includes activities that cannot lawfully be
carried out by the contractor.
Sec. 900.146 Is technical assistance available for waiver requests?
Yes. Technical assistance is available as provided in section 900.7
to prepare a waiver request or to overcome any stated objection which
the Secretary might have to the request.
Sec. 900.147 What appeal rights are available?
If the Secretary denies a waiver request, the Indian tribe or
tribal organization has the right to appeal the decision and request a
hearing on the record under the procedures for hearings and appeals
contained in subpart L of these regulations. Alternatively, the Indian
tribe or tribal organization may sue in Federal district court to
challenge the Secretary's action.
Sec. 900.148 How can an Indian tribe or tribal organization secure a
determination that a law or regulation has been superseded by the
Indian Self-Determination Act, as specified in section 107(b) of the
Act?
Any Indian tribe or tribal organization may at any time submit a
request to the Secretary for a determination that any law or regulation
has been superseded by the Act and that the law has no applicability to
any contract or proposed contract under the Act. The Secretary is
required to provide an initial decision on such a request within 90
days after receipt. If such a request is denied, the Indian tribe or
tribal organization may appeal under Subpart L of these regulations.
The Secretary shall provide notice of each determination made under
this Subpart to all Indian tribes and tribal organizations.
Subpart L--Appeals
Appeals Other Than Emergency Reassumption and Suspension, Withholding
or Delay in Payment
Sec. 900.150 What decisions can an Indian tribe or tribal organization
appeal under this Subpart?
(a) A decision to decline to award a self-determination contract,
or a portion thereof, under section 102 of the Act;
(b) A decision to decline to award a construction contract, or a
portion thereof, under sections 105(m) and 102 of the Act;
(c) A decision to decline a proposed amendment to a self-
determination contract, or a portion thereof, under section 102 of the
Act;
(d) A decision not to approve a proposal, in whole or in part, to
redesign a program;
(e) A decision to rescind and reassume a self-determination
contract, in whole or in part, under section 109 of the Act except for
emergency reassumptions;
(f) A decision to refuse to waive a regulation under section 107(e)
of the Act;
(g) A disagreement between an Indian tribe or tribal organization
and the Federal government over proposed reporting requirements;
(h) A decision to refuse to allow an Indian tribe or tribal
organization to convert a contract to mature status, under section 4(h)
of the Act;
(i) All other appealable pre-award decisions by a Federal official
as specified in these regulations, whether an official of the
Department of the Interior or the Department of Health and Human
Services; or
(j) A decision relating to a request for a determination that a law
or regulation has been superseded by the Act.
Sec. 900.151 Are there any appeals this subpart does not cover?
This subpart does not cover:
(a) Disputes which arise after a self-determination contract has
been awarded, or emergency reassumption of self-determination contracts
or suspension of payments under self-determination contracts, which are
covered under Sec. 900.170 through Sec. 900.176 of these regulations.
(b) Other post-award contract disputes, which are covered under
Subpart N.
(c) Denials under the Freedom of Information Act, 5 U.S.C. 552,
which may be appealed under 43 CFR 2 for the Department of the Interior
and 45 CFR 5 for the Department of Health and Human Services; and
(d) Decisions relating to the award of discretionary grants under
section 103 of the Act, which may be appealed under 25 CFR 2 for the
Department of the Interior, and under 45 CFR 5 for the Department of
Health and Human Services.
Sec. 900.152 How does an Indian tribe or tribal organization know
where and when to file its appeal from decisions made by agencies of
DOI or DHHS?
Every decision in any of the ten areas listed above shall contain
information which shall tell the Indian tribe or tribal organization
where and when to file the Indian tribe or tribal organization's
appeal. Each decision shall include the following statement:
Within 30 days of the receipt of this decision, you may request
an informal conference under 25 CFR 900.154, or appeal this decision
under 25 CFR 900.158 to the Interior Board of Indian Appeals (IBIA).
Should you decide to appeal this decision, you may request a hearing
on the record. An appeal to the IBIA under 25 CFR 900.158 shall be
filed with the IBIA by certified mail or by hand delivery at the
following address: Board of Indian Appeals, U.S. Department of the
Interior, 4015 Wilson Boulevard, Arlington, VA 22203. You shall
serve copies of your Notice of Appeal on the Secretary and on the
official whose decision is being appealed. You shall certify to the
IBIA that you have served these copies.
Sec. 900.153 Does an Indian tribe or tribal organization have any
options besides an appeal?
Yes. The Indian tribe or tribal organization may request an
informal conference. An informal conference is a way to resolve issues
as quickly as possible, without the need for a formal hearing. The
Indian tribe or tribal organization may also choose to sue in U.S.
District Court under section 102(b)(3) and section 110(a) of the Act.
Sec. 900.154 How does an Indian tribe or tribal organization request
an informal conference?
The Indian tribe or tribal organization shall file its request for
an informal conference with the office of the person whose decision it
is appealing, within 30 days of the day it receives the decision. The
Indian tribe or tribal organization may either hand-deliver the request
for an informal conference to that person's office, or mail it by
certified mail, return receipt requested. If the Indian tribe or tribal
organization mails the request, it will be considered filed on the date
the Indian tribe or tribal organization mailed it by certified mail.
[[Page 32527]]
Sec. 900.155 How is an informal conference held?
(a) The informal conference shall be held within 30 days of the
date the request was received, unless the Indian tribe or tribal
organization and the authorized representative of the Secretary agree
on another date.
(b) If possible, the informal conference will be held at the Indian
tribe or tribal organization's office. If the meeting cannot be held at
the Indian tribe or tribal organization's office and is held more than
fifty miles from its office, the Secretary shall arrange to pay
transportation costs and per diem for incidental expenses to allow for
adequate representation of the Indian tribe or tribal organization.
(c) The informal conference shall be conducted by a designated
representative of the Secretary.
(d) Only people who are the designated representatives of the
Indian tribe or tribal organization, or authorized by the Secretary of
Health and Human Services or by the appropriate agency of the
Department of the Interior, are allowed to make presentations at the
informal conference.
Sec. 900.156 What happens after the informal conference?
(a) Within 10 days of the informal conference, the person who
conducted the informal conference shall prepare and mail to the Indian
tribe or tribal organization a written report which summarizes what
happened at the informal conference and a recommended decision.
(b) Every report of an informal conference shall contain the
following language:
Within 30 days of the receipt of this recommended decision, you
may file an appeal of the initial decision of the DOI or DHHS agency
with the Interior Board of Indian Appeals (IBIA) under 25 CFR
900.157. You may request a hearing on the record. An appeal to the
IBIA under 25 CFR 900.157 shall be filed with the IBIA by certified
mail or hand delivery at the following address: Board of Indian
Appeals, U.S. Department of the Interior, 4015 Wilson Boulevard,
Arlington, VA 22203. You shall serve copies of your Notice of Appeal
on the Secretary and on the official whose decision is being
appealed. You shall certify to the IBIA that you have served these
copies.
Sec. 900.157 Is the recommended decision always final?
No. If the Indian tribe or tribal organization is dissatisfied with
the recommended decision, it may still appeal the initial decision
within 30 days of receiving the recommended decision and the report of
the informal conference. If the Indian tribe or tribal organization
does not file a notice of appeal within 30 days, or before the
expiration of the extension it has received under Sec. 900.159, the
recommended decision becomes final.
Sec. 900.158 How does an Indian tribe or tribal organization appeal
the initial decision, if it does not request an informal conference or
if it does not agree with the recommended decision resulting from the
informal conference?
(a) If the Indian tribe or tribal organization decides to appeal,
it shall file a notice of appeal with the IBIA within 30 days of
receiving either the initial decision or the recommended decision.
(b) The Indian tribe or tribal organization may either hand-deliver
the notice of appeal to the IBIA, or mail it by certified mail, return
receipt requested. If the Indian tribe or tribal organization mails the
Notice of Appeal, it will be considered filed on the date the Indian
tribe or tribal organization mailed it by certified mail. The Indian
tribe or tribal organization should mail the notice of appeal to: Board
of Indian Appeals, U.S. Department of the Interior, 4015 Wilson
Boulevard, Arlington, VA 22203.
(c) The Notice of Appeal shall:
(1) Briefly state why the Indian tribe or tribal organization
thinks the initial decision is wrong;
(2) Briefly identify the issues involved in the appeal; and
(3) State whether the Indian tribe or tribal organization wants a
hearing on the record, or whether the Indian tribe or tribal
organization wants to waive its right to a hearing.
(d) The Indian tribe or tribal organization shall serve a copy of
the notice of appeal upon the official whose decision it is appealing.
The Indian tribe or tribal organization shall certify to the IBIA that
it has done so.
(e) The authorized representative of the Secretary of Health and
Human Services or the authorized representative of the Secretary of the
Interior will be considered a party to all appeals filed with the IBIA
under the Act.
Sec. 900.159 May an Indian tribe or tribal organization get an
extension of time to file a notice of appeal?
Yes. If the Indian tribe or tribal organization needs more time, it
can request an extension of time to file its Notice of Appeal within 60
days of receiving either the initial decision or the recommended
decision resulting from the informal conference. The request of the
Indian tribe or tribal organization shall be in writing, and shall give
a reason for not filing its notice of appeal within the 30-day time
period. If the Indian tribe or tribal organization has a valid reason
for not filing its notice of appeal on time, it may receive an
extension from the IBIA.
Sec. 900.160 What happens after an Indian tribe or tribal
organization files an appeal?
(a) Within 5 days of receiving the Indian tribe or tribal
organization's notice of appeal, the IBIA will decide whether the
appeal falls under Sec. 900.150(a) through Sec. 900.150(g). If so, the
Indian tribe or tribal organization is entitled to a hearing.
(1) If the IBIA determines that the appeal of the Indian tribe or
tribal organization falls under Sec. 900.150(h), Sec. 900.150(i), or
Sec. 900.150(j), and the Indian tribe or tribal organization has
requested a hearing, the IBIA will grant the request for a hearing
unless the IBIA determines that there are no genuine issues of material
fact to be resolved.
(2) If the IBIA cannot make that decision based on the information
included in the notice of appeal, the IBIA may ask for additional
statements from the Indian tribe or tribal organization, or from the
appropriate Federal agency. If the IBIA asks for more statements, it
will make its decision within 5 days of receiving those statements.
(b) If the IBIA decides that the Indian tribe or tribal
organization is not entitled to a hearing or if the Indian tribe or
tribal organization has waived its right to a hearing on the record,
the IBIA will ask for the administrative record under 43 CFR 4.335. The
IBIA shall tell the parties that the appeal will be considered under
the regulations at 43 CFR 4, Subpart D, except the case shall be
docketed immediately, without waiting for the 20-day period described
in 43 CFR 4.336.
Sec. 900.161 How is a hearing arranged?
(a) If a hearing is to be held, the IBIA will refer the Indian
tribe or tribal organization's case to the Hearings Division of the
Office of Hearings and Appeals of the U.S. Department of the Interior.
The case will then be assigned to an Administrative Law Judge (ALJ),
appointed under 5 U.S.C. 3105.
(b) Within 15 days of the date of the referral, the ALJ will hold a
pre-hearing conference, by telephone or in person, to decide whether an
evidentiary hearing is necessary, or whether it is possible to decide
the appeal based on the written record. At the pre-hearing conference
the ALJ will provide for:
(1) A briefing and discovery schedule;
(2) A schedule for the exchange of information, including, but not
limited
[[Page 32528]]
to witness and exhibit lists, if an evidentiary hearing is to be held;
(3) The simplification or clarification of issues;
(4) The limitation of the number of expert witnesses, or avoidance
of similar cumulative evidence, if an evidentiary hearing is to be
held;
(5) The possibility of agreement disposing of all or any of the
issues in dispute; and
(6) Such other matters as may aid in the disposition of the appeal.
(c) The ALJ shall order a written record to be made of any
conference results that are not reflected in a transcript.
Sec. 900.162 What happens when a hearing is necessary?
(a) The ALJ shall hold a hearing within 60 days of the date of the
order referring the appeal to the ALJ, unless the parties agree to have
the hearing on a later date.
(b) At least 30 days before the hearing, the government agency
shall file and serve the Indian tribe or tribal organization with a
response to the notice of appeal.
(c) If the hearing is held more than 50 miles from the Indian tribe
or tribal organization's office, the Secretary shall arrange to pay
transportation costs and per diem for incidental expenses to allow for
adequate representation of the Indian tribe or tribal organization.
(d) The hearing shall be conducted in accordance with the
Administrative Procedure Act, 5 U.S.C. 556.
Sec. 900.163 What is the Secretary's burden of proof for appeals from
decisions under Sec. 900.150(a) through Sec. 900.150(g)?
For those appeals, the Secretary has the burden of proof (as
required by section 102(e)(1) of the Act) to establish by clearly
demonstrating the validity of the grounds for declining the contract
proposal.
Sec. 900.164 What rights do Indian tribes, tribal organizations, and
the government have during the appeal process?
Both the Indian tribe or tribal organization and the government
agency have the same rights during the appeal process. These rights
include the right to:
(a) Be represented by legal counsel;
(b) Have the parties provide witnesses who have knowledge of the
relevant issues, including specific witnesses with that knowledge, who
are requested by either party;
(c) Cross-examine witnesses;
(d) Introduce oral or documentary evidence, or both;
(e) Require that oral testimony be under oath;
(f) Receive a copy of the transcript of the hearing, and copies of
all documentary evidence which is introduced at the hearing;
(g) Compel the presence of witnesses, or the production of
documents, or both, by subpoena at hearings or at depositions;
(h) Take depositions, to request the production of documents, to
serve interrogatories on other parties, and to request admissions; and
(i) Any other procedural rights under the Administrative Procedure
Act, 5 U.S.C. 556.
Sec. 900.165 What happens after the hearing?
(a) Within 30 days of the end of the formal hearing or any post-
hearing briefing schedule established by the ALJ, the ALJ shall send
all the parties a recommended decision, by certified mail, return
receipt requested. The recommended decision shall contain the ALJ's
findings of fact and conclusions of law on all the issues. The
recommended decision shall also state that the Indian tribe or tribal
organization has the right to object to the recommended decision.
(b) If the appeal involves the Department of Health and Human
Services, the recommended decision shall contain the following
statement:
Within 30 days of the receipt of this recommended decision, you
may file an objection to the recommended decision with the Secretary
of Health and Human Services under 25 CFR 900.165(b). An appeal to
the Secretary under 25 CFR 900.165(b) shall be filed at the
following address: Department of Health and Human Services, 200
Independence Ave. S.W., Washington, DC, 20201. You shall serve
copies of your notice of appeal on the official whose decision is
being appealed. You shall certify to the Secretary that you have
served this copy. If neither party files an objection to the
recommended decision within 30 days, the recommended decision will
become final.
(c) If the appeal involves the Department of the Interior, the
recommended decision shall contain the following statement:
Within 30 days of the receipt of this recommended decision, you
may file an objection to the recommended decision with the Interior
Board of Indian Appeals (IBIA) under 25 CFR 900.165(c). An appeal to
the IBIA under 25 CFR 900.165(c) shall be filed at the following
address: Board of Indian Appeals, 4015 Wilson Boulevard, Arlington,
VA 22203. You shall serve copies of your notice of appeal on the
Secretary of the Interior, and on the official whose decision is
being appealed. You shall certify to the IBIA that you have served
these copies. If neither party files an objection to the recommended
decision within 30 days, the recommended decision will become final.
Sec. 900.166 Is the recommended decision always final?
No. Any party to the appeal may file precise and specific written
objections to the recommended decision, or any other comments, within
30 days of receiving the recommended decision. Objections shall be
served on all other parties. The recommended decision shall become
final 30 days after the Indian tribe or tribal organization receives
the ALJ's recommended decision, unless a written statement of
objections is filed with the Secretary of Health and Human Services or
the IBIA during the 30-day period. If no party files a written
statement of objections within 30 days, the recommended decision shall
become final.
Sec. 900.167 If an Indian tribe or tribal organization objects to the
recommended decision, what will the Secretary of Health and Human
Services or the IBIA do?
(a) The Secretary of Health and Human Services or the IBIA has 20
days from the date it receives any timely written objections to modify,
adopt, or reverse the recommended decision. If the Secretary of Health
and Human Services or the IBIA does not modify or reverse the
recommended decision during that time, the recommended decision
automatically becomes final.
(b) When reviewing the recommended decision, the IBIA or the
Secretary may consider and decide all issues properly raised by any
party to the appeal, based on the record.
(c) The decision of the Secretary or the IBIA shall:
(1) Be in writing;
(2) Specify the findings of fact or conclusions of law which are
modified or reversed;
(3) Give reasons for the decision, based on the record; and
(4) State that the decision is final for the Department.
Sec. 900.168 Will an appeal hurt the Indian tribe or tribal
organization's position in other contract negotiations?
No. A pending appeal will not affect or prevent the negotiation or
award of another contract.
Sec. 900.169 Will the decisions on appeals be available for the
public to review?
Yes. The Secretary shall publish all final decisions from the ALJs,
the IBIA, and the Secretary of Health and Human Services.
[[Page 32529]]
Appeals of Emergency Reassumption of Self-Determination Contracts or
Suspensions, Withholding or Delay of Payments Under a Self-
Determination Contract
Sec. 900.170 What happens in the case of emergency reassumption or
suspension or withholding or delay of payments?
(a) This subpart applies when the Secretary gives notice to an
Indian tribe or tribal organization that the Secretary intends to:
(1) Immediately rescind a contract or grant and reassume a program;
or
(2) Suspend, withhold, or delay payment under a contract.
(b) When the Secretary advises an Indian tribe or tribal
organization that the Secretary intends to take an action referred to
in paragraph (a)(1) of this section, the Secretary shall also notify
the Deputy Director of the Office of Hearings and Appeals, Department
of the Interior, 4015 Wilson Boulevard, Arlington, VA 22203.
Sec. 900.171 Will there be a hearing?
Yes. The Deputy Director of the Office of Hearings and Appeals
shall appoint an Administrative Law Judge (ALJ) to hold a hearing.
(a) The hearing shall be held within 10 days of the date of the
notice referred to in Sec. 900.170 unless the Indian tribe or tribal
organization agrees to a later date.
(b) If possible, the hearing will be held at the office of the
Indian tribe or tribal organization. If the hearing is held more than
50 miles from the office of the Indian tribe or tribal organization,
the Secretary shall arrange to pay transportation costs and per diem
for incidental expenses. This will allow for adequate representation of
the Indian tribe or tribal organization.
Sec. 900.172 What happens after the hearing?
(a) Within 30 days after the end of the hearing or any post-hearing
briefing schedule established by the ALJ, the ALJ shall send all
parties a recommended decision by certified mail, return receipt
requested. The recommended decision shall contain the ALJ's findings of
fact and conclusions of law on all the issues. The recommended decision
shall also state that the Indian tribe or tribal organization has the
right to object to the recommended decision.
(b) If the appeal involves the Department of Health and Human
Services, the recommended decision shall contain the following
statement:
Within 15 days of the receipt of this recommended decision, you
may file an objection to the recommended decision with the Secretary
of Health and Human Services under 25 CFR 900.165(b). An appeal to
the Secretary under 25 CFR 900.165(b) shall be filed at the
following address: Department of Health and Human Services, 200
Independence Ave. S.W., Washington, DC 20201. You shall serve copies
of your notice of appeal on the official whose decision is being
appealed. You shall certify to the Secretary that you have served
this copy. If neither party files an objection to the recommended
decision within 15 days, the recommended decision will become final.
(c) If the appeal involves the Department of the Interior, the
recommended decision shall contain the following statement:
Within 15 days of the receipt of this recommended decision, you
may file an objection to the recommended decision with the Interior
Board of Indian Appeals (IBIA) under 25 CFR 900.165(c). An appeal to
the IBIA under 25 CFR 900.165(c) shall be filed at the following
address: Board of Indian Appeals, 4015 Wilson Boulevard, Arlington,
VA 22203. You shall serve copies of your notice of appeal on the
Secretary of the Interior, and on the official whose decision is
being appealed.
You shall certify to the IBIA that you have served these copies. If
neither party files an objection to the recommended decision within 15
days, the recommended decision will become final.
Sec. 900.173 Is the recommended decision always final?
No. Any party to the appeal may file precise and specific written
objections to the recommended decision, or any other comments, within
15 days of receiving the recommended decision. You shall serve a copy
of your objections on the other party. The recommended decision will
become final 15 days after the Indian tribe or tribal organization
receives the ALJ's recommended decision, unless a written statement of
objections is filed with the Secretary of Health and Human Services or
the IBIA during the 15-day period. If no party files a written
statement of objections within 15 days, the recommended decision will
become final.
Sec. 900.174 If an Indian tribe or tribal organization objects to the
recommended decision, what will the Secretary of Health and Human
Services or the IBIA do?
(a) The Secretary or the IBIA has 15 days from the date he/she
receives timely written objections to modify, adopt, or reverse the
recommended decision. If the Secretary or the IBIA does not modify or
reverse the recommended decision during that time, the recommended
decision automatically becomes final.
(b) When reviewing the recommended decision, the IBIA or the
Secretary may consider and decide all issues properly raised by any
party to the appeal, based on the record.
(c) The decision of the Secretary or of the IBIA shall:
(1) Be in writing;
(2) Specify the findings of fact or conclusions of law which are
modified or reversed;
(3) Give reasons for the decision, based on the record; and
(4) State that the decision is final for the Department.
Sec. 900.175 Will an appeal hurt an Indian tribe or tribal
organization's position in other contract negotiations?
No. A pending appeal will not affect or prevent the negotiation or
award of another contract.
Sec. 900.176 Will the decisions on appeals be available for the
public to review?
Yes. The Secretary shall publish all final decisions from the ALJs,
the IBIA, and the Secretary of Health and Human Services.
Applicability of the Equal Access to Justice Act
Sec. 900.177 Does the Equal Access to Justice Act (EAJA) apply to
appeals under this subpart?
Yes. EAJA claims against the DOI or the DHHS will be heard by the
IBIA under 43 CFR 4.601-4.619. For DHHS, appeals from the EAJA award
will be according to 25 CFR 900.165(b).
Subpart M--Federal Tort Claims Act Coverage General Provisions
Sec. 900.180 What does this subpart cover?
This subpart explains the applicability of the Federal Tort Claims
Act (FTCA). This section covers:
(a) Coverage of claims arising out of the performance of medical-
related functions under self-determination contracts;
(b) Coverage of claims arising out of the performance of non-
medical-related functions under self-determination contracts; and
(c) Procedures for filing claims under FTCA.
Sec. 900.181 What definitions apply to this subpart?
Indian contractor means:
(1) In California, subcontractors of the California Rural Indian
Health Board, Inc. or, subject to approval of the IHS Director after
consultation with the DHHS Office of General Counsel, subcontractors of
an Indian tribe or tribal organization which are:
(i) Governed by Indians eligible to receive services from the
Indian Health Service;
(ii) Which carry out comprehensive IHS service programs within
[[Page 32530]]
geographically defined service areas; and
(iii) Which are selected and identified through tribal resolution
as the local provider of Indian health care services.
(2) Subject to the approval of the IHS Director after consultation
with the DHHS Office of General Counsel, Indian tribes and tribal
organizations which meet in all respects the requirements of the Indian
Self-Determination Act to contract directly with the Federal Government
but which choose through tribal resolution to subcontract to carry out
IHS service programs within geographically defined service areas with
another Indian tribe or tribal organization which contracts directly
with IHS.
(3) Any other contractor that qualifies as an ``Indian contractor''
under the Indian Self-Determination Act.
Sec. 900.182 What other statutes and regulations apply to FTCA
coverage?
A number of other statutes and regulations apply to FTCA coverage,
including the Federal Tort Claims Act (28 U.S.C. 1346(b), 2401, 2671-
2680) and related Department of Justice regulations in 28 CFR part 14.
Sec. 900.183 Do Indian tribes and tribal organizations need to be
aware of areas which FTCA does not cover?
Yes. There are claims against self-determination contractors which
are not covered by FTCA, claims which may not be pursued under FTCA,
and remedies that are excluded by FTCA. General guidance is provided
below as to these matters but is not intended as a definitive
description of coverage, which is subject to review by the Department
of Justice and the courts on a case-by-case basis.
(a) What claims are expressly barred by FTCA and therefore may not
be made against the United States, an Indian tribe or tribal
organization? Any claim under 28 U.S.C. 2680, including claims arising
out of assault, battery, false imprisonment, false arrest, malicious
prosecution, abuse of process, libel, slander, misrepresentation,
deceit, or interference with contract rights, unless otherwise
authorized by 28 U.S.C. 2680(h).
(b) What claims may not be pursued under FTCA?
(1) Except as provided in Sec. 900.181(a)(1) and Sec. 900.189,
claims against subcontractors arising out of the performance of
subcontracts with a self-determination contractor;
(2) claims for on-the-job injuries which are covered by workmen's
compensation;
(3) claims for breach of contract rather than tort claims; or
(4) claims resulting from activities performed by an employee which
are outside the scope of employment.
(c) What remedies are expressly excluded by FTCA and therefore are
barred?
(1) Punitive damages, unless otherwise authorized by 28 U.S.C.
2674; and
(2) other remedies not permitted under applicable state law.
Sec. 900.184 Is there a deadline for filing FTCA claims?
Yes. Claims shall be filed within 2 years of the date of accrual.
(28 U.S.C. 2401).
Sec. 900.185 How long does the Federal government have to process an
FTCA claim after the claim is received by the Federal agency, before a
lawsuit may be filed?
Six months.
Sec. 900.186 Is it necessary for a self-determination contract to
include any clauses about Federal Tort Claims Act coverage?
No, it is optional. At the request of Indian tribes and tribal
organizations, self-determination contracts shall include the following
clauses to clarify the scope of FTCA coverage:
(a) The following clause may be used for all contracts:
For purposes of Federal Tort Claims Act coverage, the contractor
and its employees (including individuals performing personal
services contracts with the contractor to provide health care
services) are deemed to be employees of the Federal government while
performing work under this contract. This status is not changed by
the source of the funds used by the contractor to pay the employee's
salary and benefits unless the employee receives additional
compensation for performing covered services from anyone other than
the contractor.
(b) The following clause is for IHS contracts only:
Under this contract, the contractor's employee may be required
as a condition of employment to provide health services to non-IHS
beneficiaries in order to meet contractual obligations. These
services may be provided in either contractor or non-contractor
facilities. The employee's status for Federal Tort Claims Act
purposes is not affected.
Sec. 900.187 Does FTCA apply to a self-determination contract if FTCA
is not referenced in the contract?
Yes.
Sec. 900.188 To what extent shall the contractor cooperate with the
Federal government in connection with tort claims arising out of the
contractor's performance?
(a) The contractor shall designate an individual to serve as tort
claims liaison with the Federal government.
(b) As part of the notification required by 28 U.S.C. 2679(c), the
contractor shall notify the Secretary immediately in writing of any
tort claim (including any proceeding before an administrative agency or
court) filed against the contractor or any of its employees that
relates to performance of a self-determination contract or subcontract.
(c) The contractor, through its designated tort claims liaison,
shall assist the appropriate Federal agency in preparing a
comprehensive, accurate, and unbiased report of the incident so that
the claim may be properly evaluated. This report should be completed
within 60 days of notification of the filing of the tort claim. The
report should be complete in every significant detail and include as
appropriate:
(1) The date, time and exact place of the accident or incident;
(2) A concise and complete statement of the circumstances of the
accident or incident;
(3) The names and addresses of tribal and/or Federal employees
involved as participants or witnesses;
(4) The names and addresses of all other eyewitnesses;
(5) An accurate description of all government and other privately-
owned property involved and the nature and amount of damage, if any;
(6) A statement as to whether any person involved was cited for
violating a Federal, State or tribal law, ordinance, or regulation;
(7) The contractor's determination as to whether any of its
employees (including Federal employees assigned to the contractor)
involved in the incident giving rise to the tort claim were acting
within the scope of their employment in carrying out the contract at
the time the incident occurred;
(8) Copies of all relevant documentation, including available
police reports, statements of witnesses, newspaper accounts, weather
reports, plats and photographs of the site or damaged property, such as
may be necessary or useful for purposes of claim determination by the
Federal agency; and
(9) Insurance coverage information, copies of medical bills, and
relevant employment records.
(d) The contractor shall cooperate with and provide assistance to
the U.S. Department of Justice attorneys assigned to defend the tort
claim, including, but not limited to, case preparation, discovery, and
trial.
(e) If requested by the Secretary, the contractor shall make an
assignment and subrogation of all the contractor's rights and claims
(except those against
[[Page 32531]]
the Federal government) arising out of a tort claim against the
contractor.
(f) If requested by the Secretary, the contractor shall authorize
representatives of the Secretary to settle or defend any claim and to
represent the contractor in or take charge of any action. If the
Federal government undertakes the settlement or defense of any claim or
action the contractor shall provide all reasonable additional
assistance in reaching a settlement or asserting a defense.
Sec. 900.189 Does this coverage extend to subcontractors of self-
determination contracts?
No. Subcontractors or subgrantees providing services to a Public
Law 93-638 contractor or grantee are generally not covered. The only
exceptions are Indian contractors such as those under subcontract with
the California Rural Indian Health Board to carry out IHS programs in
geographically defined service areas in California and personal
services contracts under Sec. 900.193 (for Sec. 900.183(b)(1)) or
Sec. 900.183(b) (for Sec. 900.190).
Medical-Related Claims
Sec. 900.190 Is FTCA the exclusive remedy for a tort claim for
personal injury or death resulting from the performance of a self-
determination contract?
Yes, except as explained in Sec. 900.183(b). No claim may be filed
against a self-determination contractor or employee for personal injury
or death arising from the performance of medical, surgical, dental, or
related functions by the contractor in carrying out self-determination
contracts under the Act. Related functions include services such as
those provided by nurses, laboratory and x-ray technicians, emergency
medical technicians and other health care providers including
psychologists and social workers. All such claims shall be filed
against the United States and are subject to the limitations and
restrictions of the FTCA.
Sec. 900.191 Are employees of self-determination contractors providing
health services under the self-determination contract protected by
FTCA?
Yes. For the purpose of Federal Tort Claims Act coverage, an Indian
tribe or tribal organization and its employees performing medical-
related functions under a self-determination contract are deemed a part
of the Public Health Service if the employees are acting within the
scope of their employment in carrying out the contract.
Sec. 900.192 What employees are covered by FTCA for medical-related
claims?
(a) Permanent employees;
(b) Temporary employees;
(c) Persons providing services without compensation in carrying out
a contract;
(d) Persons required because of their employment by a self-
determination contractor to serve non-IHS beneficiaries (even if the
services are provided in facilities not owned by the contractor); and
(e) Federal employees assigned to the contract.
Sec. 900.193 Does FTCA coverage extend to individuals who provide
health care services under a personal services contract providing
services in a facility that is owned, operated, or constructed under
the jurisdiction of the IHS?
Yes. The coverage extends to individual personal services
contractors providing health services in such a facility, including a
facility owned by an Indian tribe or tribal organization but operated
under a self-determination contract with IHS.
Sec. 900.194 Does FTCA coverage extend to services provided under a
staff privileges agreement with a non-IHS facility where the agreement
requires a health care practitioner to provide reciprocal services to
the general population?
Yes. Those services are covered, as long as the contractor's health
care practitioners do not receive additional compensation from a third
party for the performance of these services and they are acting within
the scope of their employment under a self-determination contract.
Reciprocal services include:
(a) Cross-covering other medical personnel who temporarily cannot
attend their patients;
(b) Assisting other personnel with surgeries or other medical
procedures;
(c) Assisting with unstable patients or at deliveries; or
(d) Assisting in any patient care situation where additional
assistance by health care personnel is needed.
Sec. 900.195 Does FTCA coverage extend to the contractor's health care
practitioners providing services to private patients on a fee-for-
services basis when such personnel (not the self-determination
contractor) receive the fee?
No.
Sec. 900.196 Do covered services include the conduct of clinical
studies and investigations and the provision of emergency services,
including the operation of emergency motor vehicles?
Yes, if the services are provided in carrying out a self-
determination contract. (An emergency motor vehicle is a vehicle,
whether government, contractor, or employee-owned, used to transport
passengers for medical services.)
Sec. 900.197 Does FTCA cover employees of the contractor who are paid
by the contractor from funds other than those provided through the
self-determination contract?
Yes, as long as the services out of which the claim arose were
performed in carrying out the self-determination contract.
Sec. 900.198 Are Federal employees assigned to a self-determination
contractor under the Intergovernmental Personnel Act or detailed under
section 214 of the Public Health Service Act covered to the same extent
that they would be if working directly for a Federal agency?
Yes.
Sec. 900.199 Does FTCA coverage extend to health care practitioners to
whom staff privileges have been extended in contractor health care
facilities operated under a self-determination contract on the
condition that such practitioner provide health services to IHS
beneficiaries covered by FTCA?
Yes, health care practitioners with staff privileges in a facility
operated by a contractor are covered when they perform services to IHS
beneficiaries. Such personnel are not covered when providing services
to non-IHS beneficiaries.
Sec. 900.200 May persons who are not Indians or Alaska Natives assert
claims under FTCA?
Yes. Non-Indian individuals served under the contract whether or
not on a fee-for-service basis, may assert claims under this Subpart.
Procedure for Filing Medical-Related Claims
Sec. 900.201 How should claims arising out of the performance of
medical-related functions be filed?
Claims should be filed on Standard Form 95 (Claim for Damage,
Injury or Death) or by submitting comparable written information
(including a definite amount of monetary damage claimed) with the
Chief, PHS Claims Branch, Room 18-20, Parklawn Building, 5600 Fishers
Lane, Rockville, MD 20857, or at such other address as shall have been
provided to the contractor in writing.
Sec. 900.202 What should a self-determination contractor or a
contractor's employee do on receiving such a claim?
They should immediately forward the claim to the PHS Claims Branch
at the address indicated in Sec. 900.201 and notify the contractor's
tort claims liaison.
[[Page 32532]]
Sec. 900.203 If the contractor or contractor's employee receives a
summons and/or a complaint alleging a tort covered by FTCA, what should
the contractor do?
As part of the notification required by 28 U.S.C. 2679(c), the
contractor should immediately inform the Chief, Litigation Branch,
Business and Administrative Law Division, Office of General Counsel,
Department of Health and Human Services, 330 Independence Avenue SW.,
Room 5362, Washington, DC 20201, and the contractor's tort claims
liaison, and forward the following materials:
(a) Four copies of the claimant's medical records of treatment,
inpatient and outpatient, and any related correspondence, as well as
reports of consultants;
(b) A narrative summary of the care and treatment involved;
(c) The names and addresses of all personnel who were involved in
the care and treatment of the claimant;
(d) Any comments or opinions that the employees who treated the
claimant believe to be pertinent to the allegations contained in the
claim; and
(e) Other materials identified in Sec. 900.188(c).
Non-Medical Related Claims
Sec. 900.204 Is FTCA the exclusive remedy for a non-medical related
tort claim arising out of the performance of a self-determination
contract?
Yes. Except as explained in Sec. 900.183(b), no claim may be filed
against a self-determination contractor or employee based upon
performance of non-medical-related functions under a self-determination
contract. Claims of this type must be filed against the United States
under FTCA.
Sec. 900.205 To what non-medical-related claims against self-
determination contractors does FTCA apply?
It applies to:
(a) All tort claims arising from the performance of self-
determination contracts under the authority of the Act on or after
October 1, 1989; and
(b) Any tort claims first filed on or after October 24, 1989,
regardless of when the incident which is the basis of the claim
occurred.
Sec. 900.206 What employees are covered by FTCA for non-medical-
related claims?
(a) Permanent employees;
(b) Temporary employees;
(c) Persons providing services without compensation in carrying out
a contract;
(d) Persons required because of their employment by a self-
determination contractor to serve non-IHS beneficiaries (even if the
services are provided in facilities not owned by the contractor); and
(e) Federal employees assigned to the contract.
Sec. 900.207 How are non-medical related tort claims and lawsuits
filed for IHS?
Non-medical-related tort claims and lawsuits arising out of the
performance of self-determination contracts with the Indian Health
Service should be filed in the manner described in Sec. 900.201 (for
both Sec. 900.207 and Sec. 900.208).
Sec. 900.208 How are non-medical related tort claims and lawsuits
filed for DOI?
Non-medical-related claims arising out of the performance of self-
determination contracts with the Secretary of the Interior should be
filed in the manner described in Sec. 900.201 with the Assistant
Solicitor, Procurement and Patents, Office of the Solicitor, Department
of the Interior, Room 6511, 1849 C Street NW., Washington, DC 20240.
Sec. 900.209 What should a self-determination contractor or
contractor's employee do on receiving a non-medical related tort claim?
(a) If the contract is with DHHS, they should immediately forward
the claim to the PHS Claims Branch at the address indicated in
Sec. 900.201 and notify the contractor's tort claims liaison.
(b) If the contract is with DOI, they should immediately notify the
Assistant Solicitor, Procurement and Patents, Office of the Solicitor,
Department of the Interior, Room 6511, 1849 C Street N.W., Washington,
DC 20240.
Sec. 900.210 If the contractor or contractor's employee receives a
summons and/or complaint alleging a non-medical related tort covered by
FTCA, what should an Indian tribe or tribal organization do?
(a) If the contract is with the DHHS, they should immediately
inform the Chief, Litigation Branch, Business and Administrative Law
Division, Office of General Counsel, Department of Health and Human
Services, 330 Independence Avenue S.W., Room 5362, Washington, DC 20201
and the contractor's tort claims liaison.
(b) If the contract is with the Department of the Interior, they
should immediately notify the Assistant Solicitor, Procurement and
Patents, Office of the Solicitor, Department of the Interior, Room
6511, 1849 C Street N.W., Washington, DC 20240, and the contractor's
tort claims liaison.
Subpart N--Post-Award Contract Disputes
Sec. 900.215 What does this subpart cover?
(a) This subpart covers:
(1) All HHS and DOI self-determination contracts, including
construction contracts; and
(2) All disputes regarding an awarding official's decision relating
to a self-determination contract.
(b) This subpart does not cover the decisions of an awarding
official that are covered under subpart L.
Sec. 900.216 What other statutes and regulations apply to contract
disputes?
(a) The Contract Disputes Act of 1978 (CDA), Public Law 95-563 (41
U.S.C. 601 as amended);
(b) If the matter is submitted to the Interior Board of Contract
Appeals, 43 CFR 4.110-126; and
(c) The Equal Access to Justice Act, 5 U.S.C. 504 and 28 U.S.C.
2412 and regulations at 43 CFR 4.601 through 4.619 (DOI) and 45 CFR 13
(DHHS).
Sec. 900.217 Is filing a claim under the CDA our only option for
resolving post-award contract disputes?
No. The Federal government attempts to resolve all contract
disputes by agreement at the awarding official's level. These are
alternatives to filing a claim under the CDA:
(a) Before issuing a decision on a claim, the awarding official
should consider using informal discussions between the parties,
assisted by individuals who have not substantially participated in the
matter, to aid in resolving differences.
(b) In addition to filing a CDA claim, or instead of filing a CDA
claim, the parties may choose to use an alternative dispute resolution
mechanism, pursuant to the provisions of the Administrative Dispute
Resolution Act, Public Law 101-552, as amended, 5 U.S.C. 581 et seq.,
or the options listed in section 108(1)(b)(12) of the Indian Self-
Determination Act, as applicable.
Sec. 900.218 What is a claim under the CDA?
(a) A claim is a written demand by one of the contracting parties,
asking for one or more of the following:
(1) Payment of a specific sum of money under the contract;
(2) Adjustment or interpretation of contract terms; or
(3) Any other claim relating to the contract.
(b) However, an undisputed voucher, invoice, or other routing
request for payment is not a claim under the CDA. A voucher, invoice,
or routing request for payment may be converted into a CDA claim if:
(1) It is disputed as to liability or a
FR Doc. 96-15793 Indian Self-Determination and Education Assistance Act Amendments
mount; or
(2) It is not acted upon in a reasonable time and written notice of
the claim is given to the awarding official by the
[[Page 32533]]
senior official designated in the contract.
Sec. 900.219 How does an Indian tribe, tribal organization, or
Federal agency submit a claim?
(a) An Indian tribe or tribal organization shall submit its claim
in writing to the awarding official. The awarding official shall
document the contract file with evidence of the date the claim was
received.
(b) A Federal agency shall submit its claim in writing to the
contractor's senior official, as designated in the contract.
Sec. 900.220 Does it make a difference whether the claim is large or
small?
Yes. The Contract Disputes Act requires that an Indian tribe or
tribal organization making a claim for more than $100,000 shall certify
that:
(a) The claim is made in good faith,
(b) Supporting documents or data are accurate and complete to the
best of the Indian tribe or tribal organization's knowledge and belief;
(c) The amount claimed accurately reflects the amount believed to
be owed by the Federal government; and
(d) The person making the certification is authorized to do so on
behalf of the Indian tribe or tribal organization.
Sec. 900.221 What happens next?
(a) If the parties do not agree on a settlement, the awarding
official will issue a written decision on the claim.
(b) The awarding official shall always give a copy of the decision
to the Indian tribe or tribal organization by certified mail, return
receipt requested, or by any other method which provides a receipt.
Sec. 900.222 What goes into a decision?
A decision shall:
(a) Describe the claim or dispute;
(b) Refer to the relevant terms of the contract;
(c) Set out the factual areas of agreement and disagreement;
(d) Set out the actual decision, based on the facts, and outline
the reasoning which supports the decision; and
(e) Contain the following language:
This is a final decision. You may appeal this decision to the
Interior Board of Contract Appeals (IBCA), U.S. Department of the
Interior, 4015 Wilson Boulevard, Arlington, VA 22203. If you decide
to appeal, you shall, within 90 days from the date you receive this
decision, mail or otherwise furnish written notice to the IBCA and
provide a copy to the individual from whose decision the appeal is
taken. The notice shall indicate that an appeal is intended, and
refer to the decision and contract number. Instead of appealing to
the IBCA, you may bring an action in the U.S. Court of Federal
Claims or in the United States District Court within 12 months of
the date you receive this notice.
Sec. 900.223 When does an Indian tribe or tribal organization get the
decision?
(a) If the claim is for more than $100,000, the awarding official
shall issue the decision within 60 days of the day he or she receives
the claim. If the awarding official cannot issue a decision that
quickly, he or she shall tell you when the decision will be issued.
(b) If the claim is for $100,000 or less, and you want a decision
within 60 days, you shall advise the awarding official in writing that
you want a decision within that period. If you advise the awarding
official in writing that you do want a decision within 60 days, the
awarding official shall issue the decision within 60 days of the day he
or she receives your written notice.
(c) If your claim is for $100,000 or less and you do not advise the
awarding official that you want a decision within 60 days, or if your
claim exceeds $100,000 and the awarding official has notified you of
the time within which a decision will be issued, the awarding official
shall issue a decision within a reasonable time. What is ``reasonable''
depends upon the size and complexity of your claim, and upon the
adequacy of the information you have given to the awarding official in
support of your claim.
Sec. 900.224 What happens if the decision does not come within that
time?
If the awarding official does not issue a decision within the time
required under Sec. 900.223, the Indian tribe or tribal organization
may treat the delay as though the awarding official has denied the
claim, and proceed according to Sec. 900.222(e),
Sec. 900.225 Does an Indian tribe or tribal organization get paid
immediately if the awarding official decides in its favor?
Yes. Once the awarding official decides that money should be paid
under the contract, the amount due, minus any portion already paid,
should be paid as promptly as possible, without waiting for either
party to file an appeal. Any payment which is made under this
subsection will not affect any other rights either party might have. In
addition, it will not create a binding legal precedent as to any future
payments.
Sec. 900.226 What rules govern appeals of cost disallowances?
In any appeal involving a disallowance of costs, the Board of
Contract Appeals will give due consideration to the factual
circumstances giving rise to the disallowed costs, and shall seek to
determine a fair result without rigid adherence to strict accounting
principles. The determination of allowability shall assure fair
compensation for the work or service performed, using cost and
accounting data as guides, but not rigid measures, for ascertaining
fair compensation.
Sec. 900.227 Can the awarding official change the decision after it
has been made?
(a) The decision of the awarding official is final and conclusive,
and not subject to review by any forum, tribunal or government agency,
unless an appeal or suit is timely commenced as authorized by the
Contract Disputes Act. Once the decision has been made, the awarding
official may not change it, except by agreement of the parties, or
under the following limited circumstances:
(1) If evidence is discovered which could not have been discovered
through due diligence before the awarding official issued the decision;
(2) If the awarding official learns that there has been fraud,
misrepresentation, or other misconduct by a party;
(3) If the decision is beyond the scope of the awarding official's
authority;
(4) If the claim has been satisfied, released or discharged; or
(5) For any other reason justifying relief from the decision.
(b) Nothing in this subpart shall be interpreted to discourage
settlement discussions or prevent settlement of the dispute at any
time.
(c) If a decision is withdrawn and a new decision is issued that is
not acceptable to the contractor, the contractor may proceed with the
appeal based on the new decision. If no new decision is issued, the
contractor may proceed under Sec. 900.224.
(d) If an appeal or suit is filed, the awarding official may modify
or withdraw his or her final decision.
Sec. 900.228 Is an Indian tribe or tribal organization entitled to
interest if it wins its claim?
Yes. If an Indian tribe or tribal organization wins the claim, it
will be entitled to interest on the amount of the award. The interest
will be calculated from the date the awarding official receives the
claim until the day it is paid. The interest rate will be the rate
which the Secretary of the Treasury sets for the Renegotiation Board
under the Renegotiation Act of 1951, Public Law 92-41, 26 U.S.C. 1212
and 26 U.S.C. 7447.
[[Page 32534]]
Sec. 900.229 What role will the awarding official play during an
appeal?
(a) The awarding official shall provide any data, documentation,
information or support required by the IBCA for use in deciding a
pending appeal.
(b) Within 30 days of receiving an appeal or learning that an
appeal has been filed, the awarding official shall assemble a file
which contains all the documents which are pertinent to the appeal,
including:
(1) The decision and findings of fact from which the appeal is
taken;
(2) The contract, including specifications and pertinent
modifications, plans and drawings;
(3) All correspondence between the parties which relates to the
appeal, including the letter or letters of claims in response to which
the decision was issued;
(4) Transcripts of any testimony taken during the course of the
proceedings, and affidavits or statements of any witnesses on the
matter in dispute, which were made before the filing of the notice of
appeal with the IBCA; and
(5) Any additional information which may be relevant.
Sec. 900.230 What is the effect of a pending appeal?
(a) Indian tribes and tribal organizations shall continue
performance of a contract during the appeal of any claims to the same
extent they would had there been no dispute.
(b) A pending dispute will not affect or bar the negotiation or
award of any subsequent contract or negotiation between the parties.
Subpart O--Conflicts of Interest
Sec. 900.231 What is an organizational conflict of interest?
An organizational conflict of interest arises when there is a
direct conflict between the financial interests of the contracting
Indian tribe or tribal organization and:
(a) The financial interests of beneficial owners of Indian trust
resources;
(b) The financial interests of the United States relating to trust
resources, trust acquisitions, or lands conveyed or to be conveyed
pursuant to the Alaska Native Claims Settlement Act 43 U.S.C. 1601 et
seq.; or
(c) An express statutory obligation of the United States to third
parties. This section only applies if the conflict was not addressed
when the contract was first negotiated. This section only applies where
the financial interests of the Indian tribe or tribal organization are
significant enough to impair the Indian tribe or tribal organization's
objectivity in carrying out the contract, or a portion of the contract.
Sec. 900.232 What must an Indian tribe or tribal organization do if an
organizational conflict of interest arises under a contract?
This section only applies if the conflict was not addressed when
the contract was first negotiated. When an Indian tribe or tribal
organization becomes aware of an organizational conflict of interest,
the Indian tribe or tribal organization must immediately disclose the
conflict to the Secretary.
Sec. 900.233 When must an Indian tribe or tribal organization regulate
its employees or subcontractors to avoid a personal conflict of
interest?
An Indian tribe or tribal organization must maintain written
standards of conduct to govern officers, employees, and agents
(including subcontractors) engaged in functions related to the
management of trust assets.
Sec. 900.234 What types of personal conflicts of interest involving
tribal officers, employees or subcontractors would have to be regulated
by an Indian tribe?
The Indian tribe or tribal organization would need a tribally-
approved mechanism to ensure that no officer, employee, or agent
(including a subcontractor) of the Indian tribe or tribal organization
reviews a trust transaction in which that person has a financial or
employment interest that conflicts with that of the trust beneficiary,
whether the tribe or an allottee. Interests arising from membership in,
or employment by, an Indian tribe or rights to share in a tribal claim
need not be regulated.
Sec. 900.235 What personal conflicts of interest must the standards of
conduct regulate?
The standards must prohibit an officer, employee, or agent
(including a subcontractor) from participating in the review, analysis,
or inspection of trust transactions involving an entity in which such
persons have a direct financial interest or an employment relationship.
It must also prohibit such officers, employees, or agents from
accepting any gratuity, favor, or anything of more than nominal value,
from a party (other than the Indian tribe) with an interest in the
trust transactions under review. Such standards must also provide for
sanctions or remedies for violation of the standards.
Sec. 900.236 May an Indian tribe elect to negotiate contract
provisions on conflict of interest to take the place of this
regulation?
Yes. An Indian tribe and the Secretary may agree to contract
provisions, concerning either personal or organizational conflicts,
that address the issues specific to the program and activities
contracted in a manner that provides equivalent protection against
conflicts of interest to these regulations. Agreed-upon contract
provisions shall be followed, rather than the related provisions of
this regulation. For example, the Indian tribe and the Secretary may
agree that using the Indian tribe's own written code of ethics
satisfies the objectives of the personal conflicts provisions of this
regulation, in whole or in part.
Subpart P--Retrocession and Reassumption Procedures
Sec. 900.240 What does retrocession mean?
A retrocession means the return to the Secretary of a contracted
program, in whole or in part, for any reason, before the expiration of
the term of the contract.
Sec. 900.241 Who may retrocede a contract, in whole or in part?
An Indian tribe or tribal organization authorized by an Indian
tribe may retrocede a contract.
Sec. 900.242 What is the effective date of retrocession?
The retrocession is effective on the date which is the earliest
date among:
(a) One year from the date of the Indian tribe or tribal
organization's request;
(b) The date the contract expires; or
(c) A mutually agreed-upon date.
Sec. 900.243 What effect will an Indian tribe or tribal organization's
retrocession have on its rights to contract?
An Indian tribe or tribal organization's retrocession shall not
negatively affect:
(a) Any other contract to which it is a party;
(b) Any other contracts it may request; and
(c) Any future request by the Indian tribe or tribal organization
to contract for the same program.
Sec. 900.244 Will an Indian tribe or tribal organization's
retrocession adversely affect funding available for the retroceded
program?
No. The Secretary shall provide not less than the same level of
funding that would have been available if there had been no
retrocession.
Sec. 900.245 What obligation does the Indian tribe or tribal
organization have with respect to returning property that was used in
the operation of the retroceded program?
On the effective date of any retrocession, the Indian tribe or
tribal organization shall, at the request of the
[[Page 32535]]
Secretary, deliver to the Secretary all requested property and
equipment provided under the contract which have a per item current
fair market value, less the cost of improvements borne by the Indian
tribe or tribal organization, in excess of $5,000 at the time of the
retrocession.
Sec. 900.246 What does reassumption mean?
Reassumption means rescission, in whole or in part, of a contract
and assuming or resuming control or operation of the contracted program
by the Secretary without consent of the Indian tribe or tribal
organization. There are two types of reassumption: emergency and non-
emergency.
Sec. 900.247 Under what circumstances is a reassumption considered an
emergency instead of non-emergency reassumption?
(a) A reassumption is considered an emergency reassumption if an
Indian tribe or tribal organization fails to fulfill the requirements
of the contract and this failure poses:
(1) An immediate threat of imminent harm to the safety of any
person; or
(2) Imminent substantial and irreparable harm to trust funds, trust
lands, or interest in such lands.
(b) A reassumption is considered a non-emergency reassumption if
there has been:
(1) A violation of the rights or endangerment of the health,
safety, or welfare of any person; or
(2) Gross negligence or mismanagement in the handling or use of:
(i) Contract funds;
(ii) Trust funds;
(iii) Trust lands; or
(iv) Interests in trust lands under the contract.
Sec. 900.248 In a non-emergency reassumption, what is the Secretary
required to do?
The Secretary must:
(a) Notify the Indian tribes or tribal organizations served by the
contract and the contractor in writing by certified mail of the details
of the deficiencies in contract performance;
(b) Request specified corrective action to be taken within a
reasonable period of time, which in no case may be less than 45 days;
and
(c) Offer and provide, if requested, the necessary technical
assistance and advice to assist the contractor to overcome the
deficiencies in contract performance. The Secretary may also make a
grant for the purpose of obtaining such technical assistance as
provided in section 103 of the Act.
Sec. 900.249 What happens if the contractor fails to take corrective
action to remedy the contract deficiencies identified in the notice?
The Secretary shall provide a second written notice by certified
mail to the Indian tribes or tribal organizations served by the
contract and the contractor that the contract will be rescinded, in
whole or in part.
Sec. 900.250 What shall the second written notice include?
The second written notice shall include:
(a) The intended effective date of the reassumption;
(b) The details and facts supporting the intended reassumption; and
(c) Instructions that explain the Indian tribe or tribal
organization's right to a formal hearing within 30 days of receipt of
the notice.
Sec. 900.251 What is the earliest date on which the contract will be
rescinded in a non-emergency reassumption?
The contract will not be rescinded by the Secretary before the
issuance of a final decision in any administrative hearing or appeal.
Sec. 900.252 In an emergency reassumption, what is the Secretary
required to do?
(a) Immediately rescind, in whole or in part, the contract;
(b) Assume control or operation of all or part of the program; and
(c) Give written notice to the contractor and the Indian tribes or
tribal organizations served.
Sec. 900.253 What shall the written notice include?
The written notice shall include the following:
(a) A detailed statement of the findings which support the
Secretary's determination;
(b) A statement explaining the contractor's right to a hearing on
the record under Sec. 900.160 and Sec. 900.161 within 10 days of the
emergency reassumption or such later date as the contractor may
approve;
(c) An explanation that the contractor may be reimbursed for actual
and reasonable ``wind up costs'' incurred after the effective date of
the rescission; and
(d) A request for the return of property, if any.
Sec. 900.254 May the contractor be reimbursed for actual and
reasonable ``wind up costs'' incurred after the effective date of
rescission?
Yes.
Sec. 900.255 What obligation does the Indian tribe or tribal
organization have with respect to returning property that was used in
the operation of the rescinded contract?
On the effective date of any rescission, the Indian tribe or tribal
organization shall, at the request of the Secretary, deliver to the
Secretary all property and equipment provided under the contract which
has a per item current fair market value, less the cost of improvements
borne by the Indian tribe or tribal organization, in excess of $5,000
at the time of the retrocession.
Sec. 900.256 Will a reassumption adversely affect funding available
for the reassumed program?
No. The Secretary shall provide at least the same level of funding
that would have been provided if there had been no reassumption.
[FR Doc. 96-15793 Filed 6-21-96; 8:45 am]
BILLING CODE 4310-02-P
Complete official Federal Register PDF
FR Doc. 96-15790 Endangered and Threatened Wildlife and Plants; Reclassification of Saltwater Crocodile Population in Australia From Endangered to Threatened With Special Rule for the Saltwater and Nile Crocodiles
[Federal Register Volume 61, Number 122 (Monday, June 24, 1996)]
[Rules and Regulations]
[Pages 32356-32367]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15790]
=======================================================================
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018 AC30
Endangered and Threatened Wildlife and Plants; Reclassification
of Saltwater Crocodile Population in Australia From Endangered to
Threatened With Special Rule for the Saltwater and Nile Crocodiles
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: The saltwater crocodile (Crocodylus porosus) in Australia is
reclassified from endangered to threatened under the provisions of the
U.S. Endangered Species Act (Act) of 1973. The saltwater crocodile had
been listed as endangered throughout its range since 1979, except the
Papua New Guinea population, which has never been listed. A special
rule, included herein, allows for the importation into the United
States of certain specimens of saltwater crocodiles from Australia and
Nile crocodiles from those countries in which this latter species is
listed in Appendix II of the Convention on International Trade in
Endangered Species of Wild Fauna and Flora (CITES). Such imports must
be consistent with the requirements of CITES and certain other
provisions.
EFFECTIVE DATE: July 24, 1996. However, compliance with
Sec. 17.42(c)(3)(i)(A) is not required until July 24, 1997.
ADDRESSES: Comments, information, and questions should be submitted to
the Chief, Office of Scientific Authority; room 725, Arlington Square;
4401 N. Fairfax Drive, U.S. Fish and Wildlife Service; Arlington,
Virginia 22203. Fax number (703) 358-2276. Express and messenger
delivered mail should be addressed to the Office of Scientific
Authority; room 750, 4401 N. Fairfax Drive; Arlington, Virginia 22203.
Comments and other information received will be available for public
inspection, by appointment, from 8 a.m. to 4 p.m., Monday through
Friday, at the Arlington, Virginia address.
FOR FURTHER INFORMATION CONTACT: Dr. Charles W. Dane, Chief, Office of
Scientific Authority, at the above address, or by phone at (703) 358-
1708.
SUPPLEMENTARY INFORMATION:
Background
The saltwater or estuarine crocodile (Crocodylus porosus) ranges
from southwest India and along its eastern
[[Page 32357]]
coast, throughout Southeast Asia and through the Pacific Islands as far
east as Fiji and south to the northern coast of Australia. The majority
of populations have been reported from the following countries:
Australia, Bangladesh, Myanmar, Cambodia, India, Indonesia, Malaysia,
Papua New Guinea, Sri Lanka, Thailand, the Philippines, and Vietnam. It
is the largest crocodilian species, reaching lengths well over 20 feet
(6.1 meters). The species inhabits estuaries, mangrove swamps, and
tidal reaches of rivers (The World Conservation Union (IUCN) 1975).
At the 1979 meeting of the Parties to CITES, the saltwater
crocodile was transferred from Appendix II to Appendix I, except for
the population in Papua New Guinea which was retained on Appendix II.
On December 16, 1979 (44 FR 75074), the U.S. Fish and Wildlife Service
(Service) listed all saltwater crocodile populations outside of Papua
New Guinea as endangered. Both of these actions were taken because the
species had suffered serious losses of habitat throughout most of its
range and it had been subject to extensive poaching for its hide. At
their 1985 meeting, the CITES Parties voted to transfer the Australian
population from Appendix I to Appendix II of CITES pursuant to
resolution Conf. 3.15 (ranching). Under Australian law, the effect of
this action was to allow trade in captive-bred specimens and specimens
taken from approved crocodile farm operations based on controlled
collecting of eggs or hatchlings or nuisance animals from the wild.
In June 1990, the Service received a petition from the Australian
National Parks and Wildlife Service (ANPWS) requesting the
reclassification of the captive (i.e., captive-bred and ranched)
populations of saltwater crocodile in Australia from endangered to
threatened. The petition contained information on the management of
wild and captive populations, populations surveys, and legal status.
The Service had previously reviewed almost the same information, which
was considered substantial, and the Service was in the process of
preparing a proposed rule based on the earlier information when the
petition was received. On September 27, 1990, the Service, acting on
this assessment but without issuing a formal finding on the petition,
published a proposed rule (55 FR 39489) to reclassify the Australian
population of the saltwater crocodile to threatened status.
The proposed rule included a special rule which would have allowed
for the commercial import of parts and products of ranched saltwater
crocodiles from Australia directly into the United States, or through a
third party if that country was a CITES member, had not taken a
reservation on saltwater crocodiles, had filed annual CITES trade
reports, and the specimens were traded in accordance with Australian
laws and CITES requirements. In the absence of a required universal
tagging system for crocodilian skins, however, trade controls were
considered insufficient to justify uncontrolled trade through third
parties.
The Service delayed publication of the final rule to reclassify the
Australian populations of the saltwater crocodile beyond the 12 months
normally allowed because of concerns about allowing trade in products
of one crocodilian species without adequate control of trade in other
crocodilians and pending acceptance of universal tagging procedures for
crocodilian skins in international trade. Resolution Conf. 8.14 adopted
at the 1992 Meeting of the Conference of the Parties in Kyoto, Japan,
established a new marking system that was to provide for strict
regulation of trade in all crocodilian skins. This system was to have
been effective after adoption of additional procedures by the CITES
Animals Committee, with concurrence from the CITES Standing Committee.
However, because the issues were too substantial to resolve at the
committee level a revised resolution on universal tagging procedures
was presented to the 1994 Meeting of the Conference of the Parties in
Ft. Lauderdale, Florida. After further modification the Parties adopted
this new resolution. The special rule presented in this notice is
consistent with the newly adopted resolution.
Summary of Comments on Proposed Reclassification
Comment: African Resources Trust, Crocodile Farmers Association of
Zimbabwe, the Crocodile Specialist Group of the World Conservation
Union (IUCN), the Governments of Brazil, Paraguay, and Gambia, and
Safari Club International supported the proposed reclassification of
the Australian population of saltwater crocodile from endangered to
threatened.
Response: The Service continues to believe that this
reclassification is warranted.
Comment: Dr. Wayne King and IUCN believed that the Australian
population had recovered sufficiently and was adequately protected so
as to warrant removal from the list of Endangered and Threatened
Wildlife Species.
Response: The Service notes that some portions of the Australian
population of the saltwater crocodile may not have recovered and that
other populations of the species remain endangered, and therefore,
believes that threatened classification is appropriate.
Comment: The Environmental Centre N.T. Inc. (ECNT) believed the
Australian population of the saltwater crocodile was relatively low,
that population estimates were based on limited surveys, and that the
annual State reports are not available to the public.
Response: The Service believes that the surveys are adequate to
document the recovery of this population and that this population
continues to increase as documented in the proposal presented to the
ninth meeting of the CITES Parties.
Comment: The ECNT was concerned that the proposed reclassification
would lead to an expanded crocodile trade industry, and that the
Northern Territory government had too few staff to regulate commercial
trade in crocodile specimens.
Response: The Service believes that the regulation and management
by the Australian State and Federal governments is adequate to control
crocodile trade and protect the wild population.
Comment: The ECNT stated that the claim that the provision for
legal harvest provided an incentive for conservation was
unsubstantiated and that the ranching and egg harvesting operation
provided no demonstrable contribution to the conservation of the
species.
Response: Regardless of whether a direct linkage between the
harvest operation and conservation benefits to the species can be
demonstrated, the Service believes the Australian population of
saltwater crocodile has recovered sufficiently to warrant
reclassification of the species.
Comment: The ECNT noted that only a small number of coastal or
marine conservation reserves occur within the range of the saltwater
crocodile in Australia.
Response: The Service believes that based on population increases
and management programs that adequate habitat exists for the saltwater
crocodile in Australia to warrant reclassification of the species.
Summary of Factors Affecting the Australian Population of Saltwater
Crocodile
Section 4(a)(1) of the Act (16 U.S.C. 1531 et seq.) and regulations
promulgated to implement the listing provisions of the Act (50 CFR Part
424) set forth five factors to be used in determining whether to add,
reclassify, or remove a species from the list of
[[Page 32358]]
endangered and threatened species. These factors and their
applicability to populations of the saltwater crocodile in Australia
are as follows:
1. The present or threatened destruction, modification, or
curtailment of its habitat or range. The saltwater crocodile occupies a
variety of tidal and non-tidal habitats across northern Australia from
Maryborough on the Queensland east coast to Broome on the Western
Australian west coast. The Northern Territory has more extensive areas
of prime saltwater crocodile habitat than either Queensland or Western
Australia (report from the ANPWS 1990, titled, ``Evidence in Support of
a Petition by Australia to the U.S. Fish and Wildlife Service to Remove
Captive Populations of the Saltwater Crocodile, Crocodylus porosus, in
Australia from the Endangered Species List under the U.S. Endangered
Species Act 1973''--copy on file with the Office of Scientific
Authority). Exploitation of crocodiles in Australia began on a large
scale in the late 1940's and extended into the early 1970's. During
this time, populations in the rivers along the north coast were nearly
extirpated with only small scattered populations remaining (King et al.
1979). Export of saltwater crocodiles and their parts from Australia
was prohibited in 1972. Today, the habitats are largely intact across
the whole of northern Australia, and the species occupies the whole of
its known historical range within the country. The species is protected
in the three states where it occurs (the Northern Territory,
Queensland, and Western Australia). Management programs allowing
limited utilization of wild stocks for crocodile farm operations have
been implemented by the states in light of the crocodile's increasing
population size.
According to the ANPWS (ANPWS 1990, op cit.), the Northern
Territory population of saltwater crocodiles has undergone significant
recovery since protection from hunting in 1972. Analysis of all
available monitoring results from 1975 to 1987 shows that the density
of wild saltwater crocodiles in tidal rivers has tripled since
surveying began. In 1984, Webb et al. (1989) estimated the total
Northern Territory population of the saltwater crocodile to be at least
40,000 individuals. Between 1984 and 1987, monitoring results indicated
that the tidal population increased by 16.5 percent. Assuming that this
rate of increase can be applied to the population as a whole, the
minimum estimate for 1989 would be 46,000 crocodiles in the Northern
Territory.
Extensive helicopter surveys across the entire range of habitat
types present in Cape York Peninsula, Queensland, resulted in the
sighting of some 2,400 crocodiles. Actual population numbers are likely
to be considerably higher. It is not possible to derive an estimate of
absolute numbers for Queensland, but sampling of potentially suitable
habitats yielded an average density index of 0.77 crocodile/km of
waterway. Surveys in 1977-78 resulted in a population estimate of about
2,000 crocodiles beyond the hatchling stage for Western Australia. The
population was estimated at 2,500 crocodiles beyond the hatchling stage
when it was resurveyed in 1986.
A proposal was submitted by Australia to the ninth meeting of the
Conference of the Parties to CITES in Ft. Lauderdale in November 1994
to retain the Australian population of the saltwater crocodile in
Appendix II pursuant to resolution Conf. 1.2 instead of resolution
Conf. 3.15 under ranching provisions. The proposal reported that
saltwater crocodile populations in the Northern Territories had
increased by 50 percent since ranching was introduced in 1984, and that
the 1993 population estimate ``scaled from the 1984 estimate'' of
40,000 was around 60,000 individuals. Furthermore, the Western
Australia population of saltwater crocodiles was reported to be stable
or increasing and estimated to be about 3,000 individuals excluding
young of the year. The results of the 1987 survey in Queensland
reportedly indicated a slow recovery from the 1979 population of 3,000
although the number in the populated and agricultural areas
particularly along the east coast may still be decreasing.
2. Over-utilization for commercial, recreational, scientific, or
educational purposes. Population estimates of saltwater crocodiles in
Australia were not made prior to 1970. Over-exploitation for the skin
trade and persecution as undesirable wildlife began in the late 1940's
and did not subside until hunting was banned in 1972. The export of
saltwater crocodiles and their parts from Australia was prohibited in
1972 by an amendment of the customs regulations. By that time, many
accessible populations had become seriously threatened with
extirpation. With the enactment of state and territorial protection
laws [Wildlife Conservation and Control Ordinance (1962)--Northern
Territory; the Fauna Conservation Act (1974)--Queensland; and the
Wildlife Conservation Act (1950)--Western Australia], the populations
showed an immediate response and have tripled in numbers since
surveying began in the late 1970's (ANPWS 1990, op. cit.).
At the 1985 meeting of the Conference of the Parties to CITES, the
Australian saltwater crocodile population was transferred from Appendix
I to Appendix II, pursuant to resolution Conf. 3.15 on ranching. This
provided for trade in saltwater crocodiles bred-in-captivity or raised
on farms under approved management plans. The transfer was recommended
by the Australian Council of Nature Conservation Ministers and IUCN
Crocodile Specialist Group. The Australian CITES proposal to transfer
the Australian population of saltwater crocodile to Appendix II to
allow trade under the ranching provision was based on a series of
experimental egg harvests and quantification of the impacts of those
harvests. No discernible impact of this egg harvest has been detected
on the number of crocodiles in subsequent age classes. Australia allows
a regulated annual harvest of crocodile eggs for farm operations under
approved management plans. The effects of the egg harvests are
quantified and assessed through monitoring programs in the harvested
areas. Approval to harvest eggs incorporates a commitment that if any
decline in the wild population were to occur, a larger number of 1-
year-old crocodiles would be returned to the wild than would have
survived had no eggs or hatchlings been removed from the wild. In 1994,
only the Northern Territory and Western Australia had approved
management plans under which the harvest of eggs is allowed for
ranching operations.
According to information provided by the Australian National Parks
and Wildlife Service (ANPWS 1990, op. cit.), the capture and relocation
of nuisance crocodiles can only be authorized by State and federal
personnel.
In the Northern Territory, nuisance animals are caught alive and
relocated to farms whenever practical. In other cases, they are
destroyed by Northern Territory Conservation Commission personnel. In
Western Australia, problem crocodiles are captured and removed, or
where the level of risk to humans is unacceptable, permission to kill
the crocodile may be given. In both States, those problem animals
relocated to farms are individually marked and, if not required for
captive breeding, are available for harvest after they have been
maintained in captivity for a minimum of 30 days. In Queensland,
nuisance animals may be removed to provide breeding stock for closed-
cycle farms or destroyed where other options are not available.
[[Page 32359]]
Traditional harvest of crocodiles and crocodile eggs for food by
Aborigines of the Northern Territory is allowed. However, the low level
of traditional harvests is not considered a threat to the populations.
Traditional use does not include commercial trade.
Ranched and captive-bred crocodile parts and products are exported
from six establishments under an approved management program in the
Northern Territory. A management program that would allow ranching
operations in Western Australia has also been developed. Two farms in
Queensland export products derived solely from captive-bred crocodiles.
The proposal submitted to the 1994 meeting of the CITES Parties
reported that there were 6, 6, and 2 crocodile farms/ranches in the
Northern Territory, Queensland, and Western Australia, respectively.
Finally, it was noted that Queensland does not permit the capture of
wild saltwater crocodiles for the purposes of stocking farms although a
total of 181 problem crocodiles had been added to the farms between
1984 and 1994.The proposal was adopted by the CITES Parties.
3. Disease or predation. None known at this time.
4. The inadequacy of existing regulatory mechanisms. The saltwater
crocodile is recognized as a valuable resource in Australia, where laws
and regulations are in place to prevent over-exploitation of these
animals. Since the ban on hunting in 1972, saltwater crocodile
populations have substantially increased in numbers. State wildlife
laws govern the take, possession, and trade in saltwater crocodiles.
Also, the Commonwealth Wildlife Protection (Regulation of Exports and
Imports) Act of 1982, administered by the Australian Nature
Conservation Agency (ANCA, formerly ANPWS) helps to protect wildlife
that might otherwise be threatened by unregulated export. Under this
Act, export of saltwater crocodiles, their parts and products requires
an export permit. Permits may be issued only for scientific purposes,
or for specimens including products derived from captive-bred animals,
or animals taken under an approved management program. Maximum
penalties for violations of the Act are a AUS $100,000 fine and/or 5
years imprisonment for individuals, and AUS $200,000 for corporations.
The substantial increase in maximum penalties for attempting to
illegally export saltwater crocodile skins from Australia (from $1,000
up to $200,000) is considered to be an effective deterrent. In addition
to legislation and policies regulating take within Australia, export of
saltwater crocodiles is regulated by CITES, to which Australia is a
party.
Regulation of take has been a factor in the continued improvement
of Australia's saltwater crocodile populations in the wild. This
significant improvement has prompted the Service to reclassify the
saltwater crocodile in Australia from endangered to threatened.
5. Other natural or manmade factors affecting its continued
existence. A comprehensive system of nature conservation reserves has
been developed, so that approximately 40 million hectares of all
habitats throughout Australia, or 5.5 percent of the total land
surface, is reserved under different categories. Parks, reserves, and
sanctuaries in northern Australia provide a mosaic of areas in which
crocodiles and their habitats are protected. Significant areas of
crocodile habitat are contained in at least six parks or nature
reserves. In addition, nearly 37 million hectares are protected under
various state and national marine and estuarine protected area
categories.
The Cobourg Peninsula Marine National Park was declared in 1983 to
protect, among other species, the saltwater crocodile.
The Service has carefully assessed the best biological and
commercial information with respect to past, present, and future
threats faced by the species in issuing this rule. Criteria for
reclassification of a threatened or endangered species (50 CFR 424.ll
(c) and (d)) are the same as for listing a species as endangered or
threatened. The proposed action is to reclassify Australia's saltwater
crocodile populations from endangered to threatened, based on
continuing recovery of the species. A special rule amending 50 CFR
17.42 to allow for the importation of specimens into the United States
under certain circumstances but without a threatened species permit is
also established. This reclassification is based on substantial
evidence that Australia's populations of the saltwater crocodile have
made a remarkable recovery and are no longer in danger of extinction in
the foreseeable future.
Surveys conducted in the late 1980's indicated populations of at
least 50,000. Populations are estimated to have increased three-fold
between 1975 and 1987. The species is protected in the three
jurisdictions in which it occurs, and there are closely regulated
crocodile farm operations. In light of increasing populations,
Australia's strict regulation of harvest, and the requirement of a
management program prior to approval of crocodile farm operations,
several threats to the existence of the saltwater crocodile in
Australia have been ameliorated. Therefore, the Service believes that
reclassification to threatened best fits the current status of
saltwater crocodile populations in Australia.
Other populations throughout the species' range are still in danger
of extinction, to varying degrees, by taking. Penalties for illegal
exports and enforcement activities will help ensure that illegal skins
or products do not enter into commercial trade. Because crocodiles of
the Australian population cannot be distinguished from saltwater
crocodiles of other populations and from other endangered crocodilians
once made into manufactured products, the Service is adopting a special
rule to strengthen the implementation of the CITES skin-tagging program
(see description presented later in this notice).
The reclassification to a threatened status and adoption of a
special rule allowing commercial trade under certain conditions will
not end trade controls for the species. The species remains on Appendix
II of CITES with export permits required, and the special rule will
require adherence to the CITES marking scheme for crocodilian skins,
among other things discussed later in this document when provisions of
the special rule are described. Trade in legally harvested saltwater
crocodile skins, meat, and products, when controlled as specified in
the special rule, will provide an incentive for conserving the species
without posing significant risks to wild populations.
Proposed Classification of the Papua New Guinea Population
The Service had proposed the classification of the Papua New Guinea
population of saltwater crocodile for reasons of similarity of
appearance (59 FR 18652), because this population is the only saltwater
crocodile population not listed under the Endangered Species Act, and
such a listing would have imposed the same conditions on all legally
traded saltwater crocodilian parts and products so as to better address
concerns about commingling of legal and illegal specimens. However,
such listing action is presently precluded by a listing moratorium
imposed under U.S. legislation.
African Resources Trust and Crocodile Farmers Association of
Zimbabwe had commented that such a listing appeared to be sensible. The
Government of Papua New Guinea indicated that the crocodile population
in Papua New Guinea was stable and a
[[Page 32360]]
transfer to Appendix I was not warranted. Such a transfer was not
proposed, and if it were to occur would prohibit international trade
for commercial purposes. In addition, Mainland Holdings Pty Ltd in
Papua New Guinea commented that the saltwater crocodile population in
Papua New Guinea was not endangered, that habitat would be left
untouched if landowners can continue to realize cash income from the
harvest of crocodiles, that recent surveys show that current
regulations preserved habitat, that the trade was controlled by the
Department of Wildlife and there was no evidence of any illegal trade
in crocodile skins from Papua New Guinea, and that the proposed rule
was likely to be detrimental to the crocodile industry in Papua New
Guinea. This organization apparently did not understand that the
proposed listing would not have precluded the sale of crocodile skins,
other parts, and products from Papua New Guinea or the trade of these
items through other countries that were properly implementing CITES.
Furthermore, the provisions of the special rule should inhibit
competitive trade in any illegal specimens from other countries.
The special rule will require tagging of crocodilian skins imported
directly from Australia into the United States, and this will be
expected under CITES resolution Conf. 9.22 for skins imported directly
from Papua New Guinea. Implementation of CITES provisions and
resolutions by Papua New Guinea has been effective. Furthermore, the
special rule is intended to allow trade in saltwater crocodile parts
and products through intermediary countries only if the countries
involved in such trade are effectively implementing CITES. Intermediary
countries likely to trade in crocodile specimens from Papua New Guinea
are expected to be the same as those trading in specimens from
Australia. Therefore effectively implementing the CITES tagging
resolution. Therefore, the Service believes that the trade in
crocodilian parts and products from Papua New Guinea can continue
without listing that saltwater population as threatened by reason of
similarity of appearance, but the Service will take special care to
detect any illegal trade in skins from the saltwater crocodile
population in Papua New Guinea.
Special Rule for Nile and Saltwater Crocodiles
1. History of Special Rule
The special rule established in 1987 (52 FR 23148) allowed for the
import of skins and live animals into the United States direct from
Zimbabwe under certain circumstances. In the September 27, 1990,
Federal Register (55 FR 39489), the Service proposed a special rule
along with the proposed reclassification of the Australian population
of the saltwater crocodile. The special rule would have allowed the
importation of skins and products into the United States from ranched
saltwater crocodile populations in Australia, regardless of whether the
imported products came directly from Australia or through an
intermediary country. However, concerns were raised about the provision
for commercial trade in products without adequate control of trade for
all crocodilian skins.
In the August 3, 1992, Federal Register (57 FR 34095), the Service
proposed a special rule along with the proposed reclassification of the
Nile crocodile. Concerns were expressed about the feasibility of the
requirement to relate original tag numbers for all pieces of skins in
products that are re-exported, and for the need for a more effective
system to control trade in raw skins. Furthermore, implementation of
the CITES universal tagging system for crocodiles had been delayed.
Therefore, the Service reclassified the Nile crocodile (58 FR 49870,
September 23, 1993) without revising the existing special rule that
related only to specimens from the Zimbabwean populations, and
announced that it would develop a special rule designed to complement
the CITES universal tagging system when finalized. Consequently, on
April 19, 1994 (59 FR 18652), the Service reproposed a special rule for
the Nile and saltwater crocodiles which accompanied the proposed
reclassification and classification of the Australian population and
Papua New Guinea population of the saltwater crocodile, respectively.
Summary of Comments Received on Proposed Special Rule
Comment: Columbia Impex Corporation stated that the special rule
should conform with CITES.
Response: The Service has included in the special rule provisions
of the CITES resolution on ``Universal Tagging System for the
Identification of Crocodilian Skins'' (tagging resolution) adopted at
the ninth meeting of the Conference of the Parties, as well as
provisions that allow only those countries that are properly
implementing CITES and its tagging resolutions to import skins and
products into the United States.
Comment: The Government of Gambia supported the special rule as
written.
Response: The Service has retained the basic concept of the special
rule with regard to effective implementation of CITES, and
implementation of the tagging resolution, and those essential
provisions to address the commingling concerns.
Comment: Safari Club International (SCI) expressed concerns about
the process of documentation.
Response: The Service has included CITES documentation requirements
that are consistent with the provisions of the special rule, and in the
case of crocodilian products and pieces of processed skins the Service
has adopted provisions that complement CITES requirements and
resolutions.
Comment: SCI expressed the concern that the country approval
process will cause lengthy delays.
Response: The Service has established criteria which if not met
would result in a Schedule III Notice of Information that may prohibit
or restrict imports of crocodilian skins, other parts and products.
Removal of the proposed requirement for information to be provided by
the involved exporting and intermediary countries will also expedite
appropriate actions when warranted.
Comment: SCI believed that requiring the country of origin to
certify its compliance with various practices is contrary to the spirit
of CITES.
Response: The Service does not agree that asking a country to
certify its compliance with certain internal practices necessary for
effective implementation of CITES is contrary to the spirit of CITES.
Countries presently certify that resolution recommendations are met
when issuing certificates or submitting registration proposals for
bred-in-captivity and artificially propagated specimens.
Comment: SCI noted that the concerns about commingling of skins is
not ``tied'' to the biological status of the species.
Response: The Service is concerned not only about commingling of
skins of populations listed as threatened but also of skins of the same
species listed as endangered pursuant to the Act and/or in CITES
Appendix I.
Comment: SCI objected to the United States dictating controls to
other countries.
Response: The Service has already noted that the provisions of the
special rule complement the implementation practices adopted by CITES
Parties and that any additional provisions are designed to clarify and
support aspects of relevant CITES resolutions or
[[Page 32361]]
requirements. Furthermore, the United States has or will implement
similar provisions in its internal regulations.
Comment: SCI noted that no tag appeared to be required for sport-
hunted trophies imported directly from the country of origin.
Response: The Service, in implementing the CITES tagging
resolution, will require tags on all crocodilian skins including
trophies imported, exported, or re-exported from the United States and
has repeated this requirement in the special rule.
Comment: SCI noted that in addition to allowing the import of
sport-hunted trophies directly from the country of origin, the special
rule should allow the import of trophies from intermediary countries
provided that the tag from the country of origin is attached to the
trophy or just accompanies the shipment.
Response: The Service recognizes that trophies may be shipped to
third party countries for preparation by a taxidermist and acknowledges
that this is a low volume activity. Therefore, the Service has modified
the special rule to allow these trophy imports from third party
countries provided the original export tag is attached to unmounted
trophies or accompanies the mounted trophy and the re-export
certificate contains the original tag and export permit number and date
and re-export certificate number from the previous country of re-
export.
Comment: Crocodile Farmers Association of Zimbabwe (CFAZ) and
African Resources Trust noted that the requirement that all pieces of
skin larger than 9 square inches must bear an intact tag was discussed
in the description of the special rule but not in the proposed special
rule.
Response: In the discussion of paragraph (c)(3)(iii) (F1-F3) in the
``Section-by-Section Description'' of the proposed special rule on page
18659 of the April 19, 1994, Federal Register notice, mention of 9
square inches was intended to refer only to tracking such pieces
(separate or in products) and was not included as a tagging requirement
for skin pieces. This situation in which skins may be imported,
processed, and cut in one country prior to shipment to another country
for manufacture is believed to involve a small percentage of the trade.
In these situations, the tagging resolution calls for an administrative
system effectively matching imports and re-exports. Uncut, unprocessed
or processed whole or partial skins, flanks, bellies or backs should
retain the original tag through the intermediary country(s) and on
import into the United States, or should possess a re-export tag in a
limited number of situations in which the original tag was lost in
reprocessing but tracked through the administrative system. However, if
the processed skins have been cut into pieces, in addition to the
administrative tracking system, the Service believes that precise
tracking of the more valuable larger pieces is significantly important
to the proper control of trade in legal skins. Therefore, the Service
will require that belly skin pieces wider than 35 centimeters will have
the original tag number and permit number and the previous intermediary
country's re-export certificate number, if any, recorded on the re-
export certificate.
Comment: The Government of Paraguay, Dr. Wayne King, CFAZ, and the
African Resources Trust stated that the tagging of pieces greater than
9 square inches involves unnecessary work.
Response: The Service agrees, and as noted in the previous
response, the special rule has been revised.
Comment: IUCN and Dr. Wayne King believed that most countries would
be unable to comply with provisions requiring the tracking of pieces
larger than 9 square inches in finished products to the original tag
and permit, and Dr. King suggested not requiring documentation for
pieces comprising less than 25 percent of the product.
Response: The Service now believes that the burden imposed by the
tracking of such small pieces is unnecessary if provisions of the
tagging resolution for documenting tag and permit numbers are extended
to point of manufacture. The tagging resolution requires an
administrative system for effective matching of imports and re-exports
of skins, and for skins being re-exported the tags should remain
attached. To further enable the intermediary countries to detect
commingling, the Service will require that the tags should remain
attached to the point of manufacture. This along with some monitoring
system for quantity of products produced should obviate the need for
tracking the smaller pieces. The system suggested by IUCN and Dr. King
for tracking pieces amounting to 25 percent of product could still
result in tracking small pieces. However, the tracking of most valuable
large pieces is still considered to be warranted, but precise tracking
will only be required for belly skin pieces wider than 35 centimeters.
Comment: The Government of Paraguay, Dr. Wayne King, the African
Resources Trust, CFAZ, and IUCN commented on the need to clarify the
meaning ``physically inspects 40 percent of crocodilian skin and
product shipments.'' IUCN also considered that the Service should not
require an inspection rate higher than it conducts. In addition, the
Australian Nature Conservation Agency felt that requiring a 40 percent
inspection rate imposed an undue burden and noted that random
inspections of shipments and processing facilities supported with
severe penalties was a sufficient deterrent.
Response: The Service believes that its random inspection practices
as well as its efforts to inspect 40 percent of the crocodilian skin or
product shipments on importation constituted an effective enforcement
level in the United States. However, the Service recognizes that an
effective enforcement level involves a combination of inspection rates
and severity of penalties. Therefore, the Service has not stated an
inspection rate in the special rule but has relied on the importing,
exporting and re-exporting countries to establish what they believe to
be an effective level of enforcement.
Comment: The Government of Hong Kong thought that the special rule
should be reconsidered after a revised tagging resolution was adopted
at COP9.
Response: The Service agrees with this comment and has waited until
the tagging resolution was revised and readopted by the CITES Parties
to make the provisions of the resolution and this special rule
consistent whenever possible.
Comment: CFAZ and African Resources Trust stated that if the
listing of the Papua New Guinea population is contentious enough to
hold up the special rule for Nile crocodile, they would request the
special rule be uncoupled from the listing document.
Response: The delay in finalizing action on the special rule was
due to waiting for the adoption of the tagging resolution by the CITES
Parties, and the Service is now proceeding with the special rule
without listing the Papua New Guinea population of the saltwater
crocodile, presently prohibited by a listing moratorium enacted by U.S.
legislation.
Comment: IUCN and Dr. Wayne King considered that the proposed 12-
month delay in implementation was unwarranted.
Response: The 12-month delay referred to in paragraph (c)(3)(i)(A)
was not intended to indicate when commercial shipments of skins would
first be allowed into the United States, but to establish the date
after which untagged skins and parts from intermediary countries would
no longer be allowed into the United States. The Service has reviewed
the wording of this provision in the special rule and
[[Page 32362]]
because the tagging resolution has been in effect for 1 year, the
Service has made the tagging requirements effective on the effective
date of this rule. However, because the specific parts tag requirements
stipulated in this rule clarify the Service's perception of the intent
of this requirement in the tagging resolution, the Service will not
require the parts tag to be on containers until 1 year after the date
of publication of this rule.
Similarly, the 12-month delay referred to in paragraph
(c)(3)(ii)(A) was intended to establish the date after which commercial
shipments of products must be accompanied by copies of CITES documents
(or records of documents) from the country of origin. This delay has
been deleted because the Service will follow the guidance on
information to be included on permits and certificates as recommended
in CITES resolution Conf. 9.3 as adopted at the ninth meeting of the
Conference of the Parties in November 1994.
Comment: CFAZ and Africa Resources Trust noted that there are no
details by which a country not originally approved or subsequently
removed from the approved list can be included or reestablished on the
approved list.
Response: The Service agrees that this was not addressed and has
included a statement in the preamble portion of the rule which notes
that any import prohibition or restriction established with a Schedule
III Notice of Information will be lifted through a similar Notice of
Information when conditions contributing to the prohibition or
restriction have been corrected.
Comment: Jon Hutton (pers comm) noted that the preambular text of
paragraph (c)(3)(iii) (F1-F3) in the proposed rule indicated that the
provisions would apply to countries of origin and re-export but that
the portion of the special rule omitted the country of re-export.
Response: The Service acknowledges this omission in the special
rule paragraph but notes that it is clear from the specific
requirements of this part of the proposed special rule that it applies
to re-exporting countries. The special rule has been revised to state
specifically that the provision for effective implementation of the
tagging resolution applies to countries of origin and re-export.
Comment: The Australian Nature Conservation Agency expressed the
view that random inspection of premises and records supported by severe
penalties should be sufficient deterrent to obviate the need to track
pieces of skin greater than 9 square inches.
Response: The Service generally agrees with this position and notes
that it has eliminated the requirement for a specific inspection rate
and has expected the other countries to determine effective enforcement
practices which might involve higher inspection rates if penalties and/
or ability to conduct random inspections do not provide an adequate
deterrent. However, because of the monetary value of large, unmarred,
raw or processed pieces, the Service is retaining a requirement for
tracking belly skin pieces wider than 35 centimeters.
Comment: The Australian Nature Conservation Agency questioned how a
ban by the CITES Parties or Standing Committee would be applied, e.g.
how would a country be removed from the approved list?
Response: The Service has established bases for issuing Schedule
III Notices of Information which would prohibit or restrict imports. If
the Secretariat issues a notification of a ban based on a decision of
the Parties or Standing Committee, the Service will publish a Schedule
III Notice of Information. A similar Notice of Information to lift the
prohibition or restriction will be published.
3. Description of Special Rule
The United States would allow import under certain conditions only
of those skins, parts or products from designated populations of
saltwater and Nile crocodiles. The special rule provides for import
prohibitions or restrictions on exporting or re-exporting countries if
(1) the country is listed in a Notification to the Parties by the CITES
Secretariat as lacking designated Management and Scientific Authorities
that issue CITES documents or their equivalent; (2) the country is
identified in any action adopted by the Parties to the Convention, the
Convention's Standing Committee, or in a Notification issued by the
CITES Secretariat, whereby Parties are asked to not accept shipments of
specimens of CITES-listed species from the country in question; or (3)
the Service determines, based on information from the CITES Secretariat
or other reliable sources that the country is not effectively
implementing the tagging resolution. Whenever such evidence becomes
available to the Service, the United States will inform the CITES
Secretariat and the appropriate CITES Committee so that the CITES
Parties collectively may also take appropriate actions.
The United States would also allow imports from non-CITES Parties
if the country was in compliance with all of the expectations stated
above for CITES Parties and if the country issued CITES-comparable
permits/certificates and tags.
Importation of skin and other parts of saltwater crocodiles
directly from Australia, or skins and parts of Nile crocodiles directly
from countries with Appendix II populations would also be allowed under
certain circumstances, if the country of origin implements provisions
of the universal tagging system.
a. Marking. International trade in certain crocodilians has
presented significant problems for the CITES Parties. Several
resolutions have been adopted at previous meetings of the Parties in an
effort to establish management regimes to benefit the conservation of
the species. The United States, in conjunction with Australia, Italy,
and Germany submitted a resolution to the CITES Secretariat that was
adopted at the eighth meeting of the Conference of the Parties in
Kyoto, Japan (March 2-13, 1992). This resolution (Conf. 8.14) called
for a universal tagging system for the identification of crocodilian
skins in international trade. Furthermore, in accordance with
resolution Conf. 8.14, the CITES Animals Committee at its July 1992 and
September 1993 meetings adopted resolutions recommending additional
practices for tracking and monitoring tags. However, concurrence was
not obtained from the CITES Standing Committee, and a new resolution
was presented at the ninth meeting of the Conference of the Parties in
Ft. Lauderdale, Florida (November 7-18, 1994). This resolution was
further revised and then adopted at the November meeting.
Aspects of this resolution dealing with imports into the United
States are incorporated into this special rule, and U.S. implementation
of this resolution for import, export, and re-export for all
crocodilian species will be incorporated into a future revision of 50
CFR part 23. Adherence to the new marking requirements should reduce
the potential for substitution of illegal skins and reduce the trade
control problems with similarity in appearance of skins and products
among the different species of crocodilians.
Prior to implementation of the CITES universal tagging resolution
certain taxa listed in Appendix II could be traded internationally
without adequate assurance of their identification and/or legal status.
The CITES resolution on the universal tagging system for the
[[Page 32363]]
identification of crocodilian skins requires, in part: (1) the
universal tagging of raw and processed crocodilian skins with non-
reusable tags for all crocodilian skins entering trade or being re-
exported, unless substantial processing and manufacturing has taken
place; (2) that such non-reusable tags include as a minimum the
International Organization for Standardization two-letter code for the
country of origin, a unique serial identification number, a species
code and the year of production, and further that such non-reusable
tags have as a minimum the following characteristics: a self-locking
system, heat resistance, inertia to chemical and mechanical processing,
information that has been applied by permanent stamping (tag
manufacturers approved by each country's CITES Management Authority
must be registered with the CITES Secretariat and meet certain
conditions); (3) that the same information as is on the tags (for whole
skins, flanks, bellies, and ``chalecos'') be given on the export
permit, re-export certificate or other Convention document, or on a
separate sheet which shall be considered an integral part of the
permit, certificate or document and which should be validated by the
same CITES-document issuing authority or by government authority
designated by the CITES-document issuing authority (for the purposes of
this rule this requirement applies to all uncut skins and pieces wider
than 35 centimeters); (4) that each Party in which tags are applied
maintain records accounting for tags and maintain records that relate
each Convention document number to the tags of the crocodilian
specimens traded thereunder and vice versa; (5) that Parties establish,
where legally possible, a system of registration or licensing, or both,
for importers and exporters of crocodilian skins and parts thereof; (6)
that all countries permitting the re-export of raw, tanned, and/or
finished crocodilian skins implement an administrative system for the
effective matching of imports and re-exports; and (7) that tails,
throats, feet, backstrips, and other parts be exported in transparent
sealed containers clearly marked with a parts tag together with a
description of the contents and total weight.
b. Special Rule. This special rule allows trade through
intermediary countries, i.e., all countries of re-export by definition,
for Nile and saltwater crocodiles as long as such countries are
effectively implementing CITES and have adopted certain management
measures to control trade in crocodilian skins and products. Countries
are not considered as countries of re-export if the specimen remains in
customs control while transiting or being transshipped through the
country and the specimen has not entered into the commerce of that
country. The special rule is intended to complement and strengthen the
universal crocodilian tagging system as presently envisioned in the
CITES universal tagging resolution.
The purpose of this special rule is to require a more accountable
system for the transfer and processing of skins and products in the
commercial crocodilian trade. The United States is a major importer of
crocodilian products produced by other countries of re-export. The
Service's inspections of importations have revealed a continuing
pattern of commingling and misidentification of crocodilian leathers.
Accompanying CITES documents have often declared the merchandise as
American alligator when the product contains some species of crocodile,
or as crocodile, when the goods are made from American alligator hide.
The new CITES tagging system will represent a significant step towards
eliminating misidentification of skins as they leave the country of
origin. Since all American alligator skins are tagged upon export from
the United States, the problems of commingling of alligator and
crocodile clearly arise during the tanning and manufacturing process.
In addition, there are several species of crocodiles throughout
Africa and Asia that remain listed as endangered. While identification
of crocodile versus alligator can be made consistently in manufactured
products, other species identification of crocodilian products is more
difficult. Despite these difficulties, various species of endangered
crocodilians have been identified in products declared as American
alligator or non-endangered crocodiles.
Since the commingling problems described above principally arise in
the re-exporting countries, this special rule is established with the
expectation of adequate control through proper implementation and
enforcement of CITES in the manufacturing countries to deter
intermingling of the protected populations of the Nile and saltwater
crocodiles, as well as the endangered populations of other crocodiles
and alligators without imposing the overburdensome requirement of
tracking each piece through the production process, and recording all
incoming tag numbers on the re-exporting permit for products. However,
the special rule provides for possible prohibition of imports from any
re-exporting country that does not effectively control trade and
adequately preclude commingling of illegal crocodilian skins and other
parts.
Furthermore, this special rule is written to allow the Service to
respond quickly to changing situations that may result in lessened
protection to the crocodilians. Thus, the criteria described in the
special rule establish bases for determining whether CITES provisions
are being effectively implemented. Therefore, imports into the United
States can be prohibited after publication of a Schedule III Notice of
Information on any country that fails to comply with the requirements
of the special rule. Such prohibitions/restrictions will be lifted
through a similar Notice of Information when conditions contributing to
the prohibition or restriction have been corrected. For those
additional situations outside of the ones set forth in the special rule
which involve a judgment as to whether necessary trade controls are
being implemented, the Service will go through a separate proposed rule
and comment process before reaching a final decision on any trade bans.
The special rule adopted herein will require the CITES-approved
tags for all saltwater and Nile crocodile skins or appropriate
tamperproof parts tags with CITES-required information on transparent
sealed containers of crocodilian parts being imported into intermediary
countries and CITES tags for all skins or significant pieces of skin
being exported from any re-exporting country if the skins or products
are eventually to be imported into the United States.
The special rule is designed to allow trade in saltwater and Nile
crocodile skins and products from designated populations without the
need to obtain a threatened species import permit. Tagged skins may be
imported from the country of origin or any CITES-member country of re-
export as long as the involved countries comply with certain criteria.
Crocodilian products may be imported without individual tags, provided
the involved countries comply with criteria described for products. The
special rule expects compliance with the CITES universal tagging
resolution including an administrative system for the effective
matching of imports and re-exports of skins. In addition, the
intermediary country will be expected to have adequate enforcement
authorities to deter the commingling of illegal skins. If a country
fails to meet the criteria in the special rule, a Schedule III Notice
of Information to that effect will be published in the Federal
Register, and skins and
[[Page 32364]]
products from Nile and saltwater crocodiles will not be able to be
imported into the United States from that country without the
threatened species import permits required in part 17.
4. Effects of the Special Rule
The degree of endangerment of the many crocodilian species varies
by species and specific populations. Some crocodilian species and
populations are listed on Appendix I of CITES, and the remaining
species and populations are included in Appendix II. Some species are
listed as threatened or endangered on the U.S. List of Endangered and
Threatened Wildlife, while other species are not included. In addition,
actions have been taken by several countries to protect their wild
populations but allow trade in specimens bred or raised in captivity
under appropriate management programs.
Thus, trade in specimens from some populations is not detrimental
to the wild population, and commercial trade is allowed under CITES
with proper export permits from certain countries of origin and re-
exporting countries. The Service's concern has been that trade in non-
endangered species has in the past provided the opportunity for
specimens of the endangered or threatened species or populations to be
commingled with legal trade, especially during the manufacturing
process. Numerous U.S. law enforcement actions as well as past actions
by the CITES Parties attest to this concern. The underlying premise
behind this special rule is that under current management systems, the
Appendix II populations of Nile crocodile with assigned export quotas
and the Australian populations of saltwater crocodile are being
sufficiently sustained to support controlled commercial use; the key
risk to these populations, as well as other similar-appearing
crocodilians, is inadequate controls in the countries of re-export,
especially in those countries in which manufacturing occurs.
The CITES Parties have adopted and are in the process of
implementing provisions of a universal tagging system for crocodilian
skins, and the Service supports these efforts. Adherence to the new
marking requirements should reduce the potential for substitution of
illegal skins and reduce the trade control problems with the similarity
in appearance of skins and products among different species of
crocodilians. Further, this special rule contains other steps designed
to ensure that the United States does not become a market for illegal
trade in crocodilian species and to encourage other nations to control
illegal trade. With the requirement that all skins are to be tagged,
that administrative systems for the effective matching of imported and
re-exported skins exist in intermediary countries, that all uncut skins
are to be tagged up to the point of manufacture, and that the valuable
belly skin pieces wider than 35 centimeters are to be specifically
tracked, it is expected that there will be greater accountability and
accuracy in the processing and manufacturing of crocodilian skins.
In summary, the special rule allowing limited trade in these
saltwater crocodile and Nile crocodile populations should provide
incentives to maintain wild populations, as well as encourage all
countries involved in commerce in crocodilian species to guard against
illegal trade.
1. Saltwater Crocodile. Allowing import of farm-raised specimens is
expected to benefit the conservation of wild populations. Under
Australia's conservation program, eggs or hatchlings are removed from
the wild for crocodile farm operations under an approved management
program, and wild populations are carefully monitored. Should any
decline occur in the wild populations, the program would return a
greater number of 1-year-old captive raised crocodiles to the wild than
would have survived to that age in the wild had no eggs or hatchlings
been removed. Limited trade with the United States would provide
economic incentives for conserving wild populations and their habitats,
owing to the dependence on them as the source of eggs. Careful
regulation of take and the prescription of specific corrective actions
ensure that crocodile farming activities will not cause declines of
wild populations, and have the added potential of reversing declines
caused by other factors.
In addition, under this special rule, parts or products of the
Australian crocodile populations imported into the United States must
be identified in accordance with the CITES marking system for crocodile
skins and parts (refer to section on marking, and provisions of special
rule). These marking requirements should ensure that only legally taken
specimens are traded, and thus should also benefit the conservation of
the species.
2. Nile crocodile. The appropriateness of the original endangered
listing under the Act and the Appendix I listing under CITES of the
Nile crocodile has been the subject of much international debate.
However, improvements in the status of Nile crocodile populations and
their management have prompted the CITES Parties to transfer 11
national populations to Appendix II. The downlisting to a threatened
status under the Act does not end trade controls for the species. The
species remains in Appendix II of CITES with export permits required.
The special rule should strengthen adherence to the CITES marking
scheme for crocodilian skins as well as compliance with other CITES
trade control provisions. Allowing commercial importation into the
United States from CITES-approved countries is expected to benefit the
species by encouraging proper conservation practices and by promoting
adherence to the CITES marking system.
Effects of the Rule
This rule revises Sec. 17.11(h) to reclassify the Australian
population of the saltwater crocodile from endangered to threatened,
with a special rule stating that the regulations specifically
pertaining to threatened species (50 CFR 17.31, 17.32) would still
apply.
The Australian population and the unlisted Papua New Guinea
populations are defined by distinct geo-political boundaries that
delineate an area representing a significant portion of the range of
the species. In addition, both populations are biologically significant
in maintaining variability of the species and in preventing the further
decline of the species.
Consistent with the requirements of sections 3(3) and 4(d) of the
Act, this rule also establishes a special rule by amending 50 CFR 17.42
to allow the importation, under certain conditions, of whole and
partial skins, parts, and finished products thereof of populations of
Nile crocodiles included in CITES Appendix II which were previously
reclassified as threatened (58 FR 49870), and saltwater crocodile that
originate in Australia, without a threatened species import permit for
individual shipments otherwise required by 50 CFR part 17, if all
requirements of the special rule are met.
Available Conservation Measures for Nile and Saltwater Crocodiles
Conservation measures provided to foreign species listed as
endangered or threatened under the Act include recognition of degree of
endangerment, requirements for Federal protection, and prohibitions
against certain practices. Recognition through listing encourages and
results in conservation actions by governments, private agencies and
groups, and individuals.
Section 7(a) of the Act, as amended, requires Federal agencies to
evaluate their actions that are to be conducted
[[Page 32365]]
within the United States or on the high seas, with respect to any
species that is proposed or listed as endangered or threatened and with
respect to its critical habitat, if any is being designated.
Regulations implementing this interagency cooperation provision of the
Act are codified at 50 CFR part 402.
In general, sections 4(d) and 9 of the Act, and implementing
regulations found at 50 CFR 17.31 (which incorporate certain provisions
of 50 CFR 17.21), set forth a series of prohibitions and exceptions
that generally apply to all threatened wildlife. These prohibitions, in
part, make it illegal for any person subject to the jurisdiction of the
United States to take within the United States or on the high seas,
import or export, ship in interstate commerce in the course of a
commercial activity, or sell or offer for sale in interstate or foreign
commerce any listed species. It also is illegal to possess, sell,
deliver, carry, transport, or ship any such wildlife that has been
taken illegally. Certain exceptions apply to agents of the Service, the
National Marine Fisheries Service, and State conservation agencies.
In general, permits may be issued to carry out otherwise prohibited
activities involving threatened wildlife species under certain
circumstances. Regulations governing permits are codified at 50 CFR
17.32. With regard to threatened wildlife, a permit may be issued for
the following purposes: scientific, enhancement of propagation or
survival, zoological exhibition or educational purposes, incidental
taking, or special purposes consistent with the Act. All such permits
must also be consistent with the purposes and policy of the Act as
required by Section 10(d). Such a permit will be governed by the
provisions of Sec. 17.32 unless a special rule applicable to the
wildlife (appearing in Secs. 17.40 to 17.48) provides otherwise.
Although threatened species are generally covered by all
prohibitions applicable to endangered species, under Section 4(d) of
the Act, the Secretary may propose special rules if deemed necessary
and advisable to provide for the conservation of the species. The rule
included in Sec. 17.42 allows commercial importation into the United
States of certain farm-raised specimens of Australia's saltwater
crocodile population, and certain specimens of Nile crocodile
populations downlisted to Appendix II by CITES Parties under ranching
or quota provisions as provided for by CITES.
National Environmental Policy Act
The Service has determined that Environmental Assessments and
Environmental Impact Statements, as defined under the authority of the
National Environmental Policy Act of 1969, need not be prepared in
connection with regulations adopted pursuant to section 4(a) of the Act
of 1973, as amended. A notice outlining the Service's reasons for this
determination was published in the Federal Register on October 25, 1983
(48 FR 49244).
Regulatory Flexibility Act
Based upon its analysis of the identified factors, the Service has
determined that:
No individual industries within the United States will be
significantly affected and no changes in the demography of
populations are anticipated.
Note that some alligator producers, trappers, and dealers may
experience some increased competition, but the International
Alligator Crocodile Trade Study (1996) prepared by Ashley
Associates, Tallahassee, Florida projects an increase in alligator
skin trade in 1997, albeit in the projection of total crocodilian
trade, the alligator skin trade made up a smaller percentage of the
total market. The removal of the threat of possible retaliatory
trade prohibition measures directed at alligator parts and products
by other countries will at least partially offset any effects of
increased competition.
In addition, the two or three known operational tanneries and
several product manufacturers in the United States will have access
to a new source of crocodile skins; and because of this increase in
supply, this may lower prices on legally imported crocodile skins.
Furthermore, retailers will be able to legally buy products made
from these previously prohibited species. Consequently, the U.S.
consumer will have a wider selection of materials and possibly
benefit from lower prices.
To the extent that the total market in crocodilian products is
expanded, the States may benefit from additional sale tax
collections.
Importers taking advantage of the possibility of expanded trade
will incur the risk of specimens being seized by U.S. enforcement
agents if the specimens are not tagged at the time of import in
accordance with the CITES tagging resolution or if imported from a
country not effectively implementing the CITES tagging resolution.
Note that any such countries will be identified in Notices of
Information published in the Federal Register with a current list of
such countries available from the Fish and Wildlife Service's Office
of Management Authority.
This rule will not impose any additional requirements on U.S.
exporters or importers of crocodilian skins or products provided the
present CITES tagging and permitting requirements are followed.
The Service, in light of the above analysis, has determined that
the rule will not have a significant economic effect on a substantial
number of small entities as defined in the Regulatory Flexibility Act,
5 U.S.C. 601 et. seq. It has therefore, been determined that a ``small
entity flexibility analysis'' study is not necessary.
Other Required Determinations
The Service has examined this regulation under the Paperwork
Reduction Act of 1995 and has found it to contain no information
collection requirements.
The Service concludes that the rule is not a significant regulatory
action in the sense of Executive Order 12886, and was not subject to
review by the Office of Management and Budget under Executive Order
12886.
This rule will not have substantial direct effects on the States,
in their relationship between the Federal Government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with Executive Order
12612, it is determined that this rule does not have sufficient
Federalism implications to warrant the preparation of a Federalism
Assessment. These revisions to the regulations in 50 CFR 17 are of a
kind consistent with the existing parameters of established Federal
authority.
The Service has determined and certifies pursuant to the Unfunded
Mandates Act, 2 U.S.C. 1502 et seq., that this rulemaking will not
impose a cost of $100 million or more in any given year on local or
State governments or private entities.
In accordance with Executive Order 12630, it has been determined
that the rule has no potential takings of private property implications
as defined by the Executive Order 12630.
The Service, in promulgating this rule, has determined that these
regulations meet the applicable standards provided in Section 3(a) and
(b) of Executive Order 12988.
References Cited
International Union for Conservation of Nature and Natural
Resources. 1975. Red Data Book: Amphibia and Reptilia. Morges,
Switzerland.
International Union for Conservation of Nature and Natural Resources
(IUCN). 1990. IUCN Red List of Threatened Animals. IUCN Conservation
Monitoring Center. Cambridge, England.
[[Page 32366]]
King, F.W., H.W. Campbell, H. Messel, and R. Whitaker. 1979. Review
of the status of the estuarine or saltwater crocodile, Crocodylus
porosus. Unpub. Report. 33pp.
Webb, G.J.W., M.L. Dillion, G.E. McLean, S.C. Manolis and B. Ottley.
1989. Monitoring the recovery of the saltwater crocodile (Crocodylus
porosus) population in the Northern Territory of Australia. In:
Proceedings of the 9th working meeting of the Crocodile Specialist
Group of the Species Survival Commission of the International Union
for Conservation of Nature and Natural Resources. October, 1989.
Lae, Papua New Guinea.
Author
The primary author of this rule is Dr. Charles W. Dane, Office
of Scientific Authority, U.S. Fish and Wildlife Service, Rm 725
Arlington Square; 4401 North Fairfax Drive, Arlington, Virginia
22203 (703-358-1708)
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, and Transportation.
Regulations Promulgation
Accordingly, part 17 subchapter B of chapter I, title 50 of the
U.S. Code of Federal Regulations is amended as set forth below:
PART 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. Section 17.11(h) is amended by revising the entry for the
``Crocodile, saltwater (=estuarine)'' under ``Reptiles'' on the List of
Endangered and Threatened Wildlife to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
-------------------------------------------------------- population where Critical Special
Historic range endangered or Status When listed habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
Reptiles
Crocodile, saltwater (=estuarine) Crocodylus porosus.. South Asia, Entire, except E 87____ NA NA
Australia, Papua Papua New Guinea
New Guinea, Pacific and Australia.
Islands.
Do............................... ...... do........... ......do............ Australia.......... T 87____ NA 17.42(c)
--------------------------------------------------------------------------------------------------------------------------------------------------------
3. Paragraph (c) of Sec. 17.42 is revised to read as follows:
Sec. 17.42 Special rules--reptiles.
* * * * *
(c) Threatened crocodilians. This paragraph applies to the
following species: Saltwater crocodile (Crocodylus porosus) originating
in Australia (also referred to as Australian saltwater crocodile) and
Nile crocodile (Crocodylus niloticus) populations listed in Appendix II
of the Convention on International Trade in Endangered Species of Wild
Fauna and Flora (CITES or Convention).
(1) Definitions of terms for purposes of this paragraph (c).
(i) Crocodilian skins means whole or partial skins, flanks, and
bellies (whether salted, crusted, tanned, partially tanned, or
otherwise processed).
(ii) Crocodilian parts means meat and body parts with or without
skin attached (including tails, throats, feet, and backstrips and other
parts), except skulls.
(iii) Country of re-export means those intermediary countries that
import and re-export crocodilian skins, parts, and/or products, except
that those countries through which crocodilian skins, parts, and/or
products are transhipped while remaining under Customs control will not
be considered to be a country of re-export.
(iv) Tagging resolution shall mean the CITES resolution entitled
``Universal Tagging System for the Identification of Crocodilian
Skins'' and numbered Conf. 9.22 and any subsequent revisions.
(2) Prohibitions. All provisions of Sec. 17.31 (a) and (b) and
Sec. 17.32 apply to Nile crocodile populations listed in Appendix I of
CITES. The following prohibitions apply to saltwater crocodiles
(Crocodylus porosus) originating in Australia and to all Nile crocodile
(Crocodylus niloticus) populations in Appendix II of CITES:
(i) Import, export, and re-export. Except as provided in paragraph
(c)(3) of this section, it is unlawful to import, export, re-export, or
present for export or re-export any Nile crocodile (Crocodylus
niloticus) or Australian saltwater crocodile (Crocodylus porosus) or
their skins, other parts or products, without valid permits required
under 50 CFR parts 17 and 23.
(ii) Commercial activity. Except as provided in paragraph (c)(3) of
this section, it is unlawful, in the course of a commercial activity,
to sell or offer for sale, deliver, receive, carry, transport, or ship
in interstate or foreign commerce any Nile or saltwater crocodile,
crocodilian skins, or other parts or products.
(iii) It is unlawful for any person subject to the jurisdiction of
the United States to commit, attempt to commit, solicit to commit, or
cause to be committed any acts described in paragraphs (c)(2)(i)-(iii)
of this section.
(3) Exceptions. The import, export, or re-export of, or interstate
or foreign commerce in live crocodiles, crocodilian skins, meat,
skulls, and other parts or products may be allowed without a threatened
species permit issued pursuant to 50 CFR 17.32 when the provisions in
50 CFR parts 13, 14, and 23, and the applicable paragraphs set out
below have been met.
(i) Import, export, or re-export of crocodilian skins and parts.
The import, export, or re-export into/from the United States of
crocodilian skins and parts of Nile crocodiles listed in Appendix II of
the Convention, and of saltwater crocodiles originating in Australia
must meet the following conditions:
(A) All crocodilian parts must be in a transparent, sealed
container, and each container imported into or presented for export or
re-export from the United States after July 24, 1997,
(1) Must have a parts tag attached in such a way that opening of
the container will preclude reuse of an undamaged tag,
(2) This parts tag must contain a description of the contents and
total weight of the container, and
(3) This parts tag must reference the number of the CITES permit
issued to allow the export or re-export of the container;
(B) Each crocodilian skin and each belly skin piece wider than 35
cm. imported into or presented for export or
[[Page 32367]]
re-export from the United States after July 24, 1996, must bear: either
an intact, uncut tag from the country of origin meeting all the
requirements of the CITES tagging resolution, or an intact, uncut tag
from the country of re-export where the original tags have been lost or
removed from raw, tanned, and/or finished skins. The replacement tags
must meet all the requirements of the CITES tagging resolution, except
showing the country of re-export in place of the country of origin,
provided those re-exporting countries have implemented an
administrative system for the effective matching of imports and re-
exports consistent with the tagging resolution. Clearance of any
shipment with more than 25 percent replacement tags requires prior
consultation with the U.S. Office of Management Authority by the re-
exporting country to determine whether the requirements of the tagging
resolution have been observed;
(C) The same information that is on the tags must be given on the
export permit for all skins or re-export certificate for whole skins
and belly skin pieces wider than 35 cm or on a separate sheet, which
will be considered an integral part of the document, carry the same
permit or certificate number, and be validated by the government
authority designated by the CITES-document issuing authority;
(D) The Convention permit or certificate must contain the following
information:
(1) the country of origin, its export permit number, and date of
issuance;
(2) if re-export, the country of re-export, its certificate number,
and date of issuance; and
(3) if applicable, the country of last re-export, its certificate
number, and date of issuance;
(E) The country of origin and any intermediary country(s) must be
effectively implementing the tagging resolution for this exception to
apply. If the Service receives substantial evidence from the CITES
Secretariat or other reliable sources that the tagging resolution is
not being effectively implemented by a specific country, the Service
will prohibit or restrict imports from such country(s) as appropriate
for the conservation of the species.
(F) At the time of import, for each shipment covered by this
exception, the country of origin and each country of re-export involved
in the trade of a particular shipment is not subject to a Schedule III
Notice of Information pertaining to all wildlife or any members of the
Order Crocodylia that may prohibit or restrict imports. A listing of
all countries that are subject to such a Schedule III Notice of
Information will be available by writing: The Office of Management
Authority, ARLSQ Room 430, 4401 N. Fairfax Drive, U.S. Fish and
Wildlife Service, Arlington, Virginia, 22203.
(ii) Import, export or re-export of crocodilian products. Import,
export, or re-export into or from the United States of crocodilian
products of Nile crocodiles listed in Appendix II of the Convention,
and saltwater crocodiles originating in Australia will be allowed
without permits required by 50 CFR part 17 provided the following
conditions are met:
(A) The Convention permit or certificate must contain the following
information:
(1) the country of origin, its export permit number, and date of
issuance;
(2) if re-export, the country of re-export, its certificate number,
and date of issuance; and
(3) if applicable, the country of previous re-export, its
certificate number, and date of issuance;
(B) The country of origin and any intermediary country(s) must be
effectively implementing the tagging resolution for this exception to
apply. If the Service receives substantial evidence from the CITES
Secretariat or other reliable sources that the tagging resolution is
not being effectively implemented by a specific country, the Service
will prohibit or restrict imports from such countries as appropriate
for the conservation of the species.
(C) At the time of import, for each shipment covered by this
exception, the country of origin and each country of re-export involved
in the trade of a particular shipment is not subject to a Schedule III
Notice of Information pertaining to all wildlife or any member of the
Order Crocodylia that may prohibit or restrict imports. A listing of
all countries that are subject to such a Schedule III Notice of
Information will be available by writing: The Office of Management
Authority, ARLSQ Room 430, 4401 N. Fairfax Drive, U.S. Fish and
Wildlife Service, Arlington, Virginia, 22203.
(iii) Shipments of eggs, skulls, meat, scientific specimens and
live specimens. The import/re-export into/from the United States of
eggs, skulls, meat, scientific specimens and live specimens of Nile
crocodile populations listed in Appendix II of CITES or Australian
saltwater crocodile will be allowed without permits otherwise required
by 50 CFR part 17, provided the requirements of part 23 are met.
(iv) Noncommercial accompanying baggage. The conditions of
paragraphs (c)(3)(i) and (ii) for skins tagged in accordance with the
tagging resolution, skulls, meat, other parts, and products made of
specimens of Nile crocodile populations on CITES Appendix II or of
Australian saltwater crocodile do not apply to noncommercial
accompanying personal baggage or household effects.
(v) Personal sport-hunted trophies. The import of personal sport-
hunted trophies, including skulls, of Nile crocodile or saltwater
crocodile from Appendix II populations will be allowed from country of
origin and intermediary countries into the United States without
permits required by 50 CFR part 17, provided that unmounted skins bear
an intact, uncut tag from the country of origin or such a tag
accompanies mounted specimens in accordance with the tagging
resolution.
(4) Notice of Information. Except in rare cases involving
extenuating circumstances that do not adversely affect the conservation
of the species, the Service will issue a Schedule III Notice of
Information banning or restricting trade in specimens of crocodilians
addressed in this paragraph (c) if any of the following criteria are
met:
(i) The country is listed in a Notification to the Parties by the
CITES Secretariat as lacking designated Management and Scientific
Authorities that issue CITES documents or their equivalent.
(ii) The country is identified in any action adopted by the Parties
to the Convention, the Convention's Standing Committee, or in a
Notification issued by the CITES Secretariat, whereby Parties are asked
to not accept shipments of specimens of CITES-listed Species from the
country in question.
(iii) The Service determines, based on information from the CITES
Secretariat or other reliable sources that the country is not
effectively implementing the tagging resolution.
Dated: March 18, 1996.
George T. Frampton, Jr.,
Assistant Secretary For Fish and Wildlife and Parks.
[FR Doc. 96-15790 Filed 6-21-96; 8:45 am]
BILLING CODE 4310-55-P
Complete official Federal Register PDF
FR Doc. 96-15767 Magnuson Act Provisions; Consolidation and Update of Regulations; Collection-of-Information Approval
[Federal Register Volume 61, Number 122 (Monday, June 24, 1996)]
[Rules and Regulations]
[Pages 32538-32577]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15767]
[[Page 32537]]
_______________________________________________________________________
Part III
Department of Commerce
_______________________________________________________________________
National Oceanic and Atmospheric Administration
_______________________________________________________________________
15 CFR Part 902; 50 CFR Part 600 et al.
Magnuson Act Provisions; Consolidation and Update of Regulations;
Collection-of-Information Approval; Final Rule
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules
and Regulations
[[Page 32538]]
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 902
50 CFR Parts 600, 601, 602, 603, 605, 611, 619, 620, and 621
[Docket No. 960315081-6160-02; I.D. 030596B]
RIN 0648-AI17
Magnuson Act Provisions; Consolidation and Update of Regulations;
Collection-of-Information Approval
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: NMFS consolidates nine CFR parts into one part that contains
general provisions under the Magnuson Fishery Conservation and
Management Act (Magnuson Act) as they apply to the operation of
Regional Fishery Management Councils (Councils) and the management of
foreign and domestic fishing in the U.S. Exclusive Economic Zone (EEZ).
The consolidated text is reorganized into a more logical and cohesive
order, duplicative and outdated provisions are eliminated, and
editorial changes are made for readability, clarity, and uniformity. In
addition, the final rule makes several revisions to the regulations
applying to the operation of the Councils to codify recent
administrative and policy changes. The purpose of this final rule is to
make the regulations more concise, better organized and, therefore,
easier for the public to use, and to update the regulations to reflect
current policies and procedures. This rule also adds a reference to
approved collection-of-information requirements under the Paperwork
Reduction Act (PRA) and amends references to previously approved
collections of information. This final action is part of the
President's Regulatory Reinvention Initiative.
EFFECTIVE DATE: July 1, 1996.
FOR FURTHER INFORMATION CONTACT: Tom Meyer, 301-713-2339.
SUPPLEMENTARY INFORMATION: Pursuant to the Regulatory Reinvention
Initiative of the President, this final rule removes eight 50 CFR parts
(parts 601 (Regional Fishery Management Councils), 602 (Guidelines for
Fishery Management Plans), 603 (Confidentiality of Statistics), 605
(Guidelines for Council Operations/Administration), 611 (Foreign
Fishing), 619 (Preemption of State Authority under Section 306(b)), 620
(General Provisions for Domestic Fisheries), and 621 (Civil
Procedures)), and consolidates the regulations contained therein,
except for part 605, with the existing regulations in part 600. The
final rule removes most of part 605 (Guidelines for Council Operations/
Administration), and the material contained in that part has been
placed in a Council Operations and Administration Handbook. These
consolidated regulations provide the public with a single reference
source for the general regulations under the Magnuson Act as they apply
to the operation of Councils and the management of foreign and domestic
fishing in the EEZ, which results in one set of regulations that are
more concise, clearer, and easier to use than the existing regulations.
Additional background for this rule was contained in the preamble
to the proposed rule (61 FR 19390, May 1, 1996).
Comments and Responses
The New England, Mid-Atlantic, Pacific and North Pacific Fishery
Management Councils submitted comments on the proposed rule. These
comments are summarized below with responses to them.
1. Comment: The four Councils objected to the proposed rule that
would require state-designated members on Councils to be full-time
employees of the state agency responsible for marine fishery
management. One wondered whether current members who are not full-time
state employees would have to resign.
Response: No change was made. Section 302(b)(1)(A) of the Magnuson
Act states that voting members include the ``principal State official
with marine fishery management responsibility and expertise in each
constituent State, who is designated as such by the Governor of the
State, so long as the official continues to hold such position.'' We
believe the better interpretation of this language is that the official
must be a state employee with present responsibility within the state
for management of marine fisheries, rather than a retired employee or
someone with only a tenuous relationship with the state government. The
rationale for Section 302(b)(1)(A) is that the principal state official
is expected to represent and espouse the positions of the governor and
the state fishery agency. The Councils cannot function as a state/
federal/public partnership if the principal state official cannot be
counted on to speak officially on behalf of the state.
Section 600.205(a) requires new or revised designations to comply
with this requirement, so no current member would have to resign.
2. Comment: The four Councils criticized the proposed rule that
would require the principal state official's designee to be a
subordinate of the principal state official.
Response: Section 600.205(b) is revised to eliminate the reference
to a subordinate.
3. Comment: The New England and North Pacific Councils disagreed
with the proposed rule that as little as 1 day served in a term counts
toward a full term, in calculating the 3-consecutive-term limit for
Council members. The New England Council proposed that service of less
than 18 months should not count toward a full term. The North Pacific
Council pointed out that the pending Senate bill (S. 39) to amend the
Magnuson Act would insert ``full'' before ``consecutive'' in the second
sentence of section 302(b)(3). This would then conflict with the
restrictions envisioned in Sec. 600.210.
Response: The current language of the Magnuson Act does not define
``term.'' Questions have arisen whether someone who served 2 years and
11 months of a 3-year term should have that term count against the 3-
term limit. NMFS proposed that any length of service within a term
should count, but acknowledges that the New England Council's proposal
is a good compromise. Section 600.210(a) has been revised to count
service of 18 months or more during a term as service for the entire
term.
If the Magnuson Act is amended otherwise, NMFS will make the
appropriate change in the regulation.
4. Comment: The Mid-Atlantic Council wanted Appendix A to Subpart
B--Explanatory Materials (currently in 50 CFR part 602) to be restored
in the final rule.
Response: Appendix A was eliminated; however, the guidance provided
in that Appendix remains relevant. Those wishing to review the guidance
may read it as previously published in the Federal Register (54 FR
30833, July 24, 1989).
5. Comment: The Mid-Atlantic Council thought the last sentence of
current Sec. 601.39(b), which allows state officials to be compensated
if they can document that they were on leave without pay, should be
included in the final rule.
Response: It will not be included. We believe state officials
designated by the governor should be paid by the state,
[[Page 32539]]
not by the Councils. The example cited by the Mid-Atlantic Council,
payment to a Council member appointed by the Secretary but employed by
a state educational institute, could receive pay under Sec. 600.245(a)
if he or she did not receive compensation from the state for the period
of Council service.
6. Comment: The New England Council questioned the procedure for
filling at-large vacancies. The Magnuson Act requires that each
constituent state governor submit a list of at least three qualified
candidates for each vacancy. In the case when more than one at-large
vacancy is available, the New England Council would like the names of
all qualified candidates submitted by the governors for all of the
positions to be placed in a ``pool.'' The Secretary would then be free
to select appointees from this pool who are felt to represent a
balanced and fair representation of the varying interests within the
region.
Response: The procedure suggested by the New England Council for
filling at-large vacancies is consistent with current procedures. As
stated by the Council, this procedure results in a broader pool of
qualified at-large candidates from which the Secretary may choose.
Section 600.215(g)(3) has been revised to clarify the current
procedures.
7. Comment: The New England Council objected to the requirement
that, after a member has completed three consecutive terms, he/she will
not be eligible for appointment to another term on any Council until 1
year has elapsed since the last day of that member's service. Since
nominations must be made in March, this requirement effectively means
that a qualified member leaving a Council in August of 1996 could not
be considered for another appointment until March of 1998, for a term
beginning in August of 1998, which is 2 years of elapsed time. The New
England Council believes a former member should be able to be
renominated in March of the year following his/her leaving a seat, for
appointment the following August, where 1 full year would have elapsed
since last service.
Response: Section 600.210(c) was intended to require a lapse of 1
year between completion of a third consecutive term and the beginning
of a new term. It has been rewritten to clarify that intention.
Changes From the Proposed Rule
(1) Revised Sec. 600.205(b) to eliminate the reference to
subordinate.
(2) Revised Sec. 600.10 definition of ``authorized officer'' to
include ``any other statute administered by NOAA.''
(3) Added definitions to Sec. 600.10 for ``codend,'' ``drift
gillnet,'' ``gillnet,'' ``handgear,'' ``harpoon or harpoon gear,''
``metric ton (mt),'' ``nm,'' ``total length (TL),'' and ``trawl,''
which will apply to these terms throughout Chapter VI.
(4) Revised Sec. 600.10 definition of ``retain, retain aboard, or
retain on board,'' by deleting ``retain'' and ``retain aboard.''
``Retain'' is too general and is used in many contexts throughout the
regulation, while ``retain aboard'' is inconsistent with our usage of
the terms.
(5) Revised Sec. 600.10 definition of ``round weight'' to include
``before processing or removal of any part.''
(6) Revised Sec. 600.10 definition of ``state'' by adding ``the
Northern Mariana Islands.''
(7) Removed definition for ``state employee'' from Sec. 600.10
because the deletion of reference to ``subordinate'' in Sec. 600.205(b)
eliminates the need to retain definition.
(8) Revised sections discussed in the scientific research activity
and exempted fishing final rule (61 FR 26435, May 28, 1996).
(9) Revised Sec. 600.210(a) to count service of 18 months or more
during a term as service for the entire term.
(10) Revised Sec. 600.210(c) to clarify the current procedures for
reappointment after a Council member has served three consecutive
terms.
(11) Revised Sec. 600.215(g)(3) to clarify the current procedures
for filling an at-large vacancy.
(12) Deleted Secs. 600.507 (f) and (g) and combined text with
Secs. 600.507 (h) and (i).
(13) Added ``or any other statute administered by NOAA'' to
Secs. 600.725 (a), (d), (f), (g), (j), and (k) after Magnuson Act.
(14) Added a general prohibition to Sec. 600.725(p) to prohibit the
violation of any other provision of this part, the Magnuson Act, or any
other statute administered by NOAA.
(15) Section 3506(c)(B)(i) of the PRA requires that agencies
inventory and display a current control assigned by the Director,
Office of Management and Budget (OMB), for each agency information
collection. Section 902.1(b) identifies the location of NOAA
regulations for which OMB approval numbers have been issued. This final
rule adds OMB approval numbers for approved collections-of-information
to the table in Sec. 902.1(b) and amends references to previously
approved collections of information.
Under NOAA Organization Handbook, Transmittal #34, dated May 31,
1993, the Under Secretary for Oceans and Atmosphere has delegated to
the Assistant Administrator for Fisheries, NOAA, the authority to sign
material for publication in the Federal Register.
Classification
This final rule has been determined to be not significant for
purposes of E.O. 12866.
Because this rule makes only nonsubstantive changes to existing
regulations originally issued after prior notice and an opportunity for
public comment, the Assistant Administrator for Fisheries, NOAA, under
5 U.S.C. 553(b)(B), for good cause finds that providing such procedures
for this rulemaking is unnecessary. Because this rule is not
substantive, it is not subject to a 30-day delay in effective date
under 5 U.S.C. 553(d).
The Assistant General Counsel for Legislation and Regulation of the
Department of Commerce certified to the Chief Counsel for Advocacy of
the Small Business Administration that this final rule would not have a
significant economic impact on a substantial number of small entities.
The reasons were published in the proposed rule (61 FR 19390, May 1,
1996). As a result, a regulatory flexibility analysis was not prepared.
Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with a collection of information, subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB Control Number.
This rule contains collection-of-information requirements subject
to the Paperwork Reduction Act (PRA).
Approved Collection-of-Information Requirements
The following collection-of-information requirements have already
been approved by OMB for foreign fishing activities:
(a) Approved under 0648-0089--Foreign fishing permits, estimated at
2 hours per response.
(b) Approved under 0648-0075--Vessel reports (1) activity reports
estimated at 0.1 hours per response, (2) weekly reports estimated at
0.5 hour per response, and (3) marine mammal report estimated at 0.2
hour per response; Observers (1) effort plan estimated at 0.5 hour per
response, and (2) notification requirement to observers estimated at
0.2 hour per response; Recordkeeping (1) communications logs estimated
at 0.1 hour per response, (2) transfer logs estimated at 0.2 hour per
response, (3) daily fishing logs estimated at 0.4 hour per response,
(4) daily consolidated fishing log estimated at 0.5 hour per
[[Page 32540]]
response, and (5) joint venture logs estimated at 0.5 hour per
response; and gear avoidance and disposal (1) gear conflicts estimated
at 0.2 hour per response, and (2) disposal estimated at 0.2 hour per
response.
(c) Approved under 0648-0306--Vessel identification requirements
estimated at 35 minutes per response.
(d) Approved under 0648-0305--Gear identification requirements
estimated at 30 minutes per response.
Collection-of-Information Requirements Submitted for Approval
(e) Approved under 0648-0309--Scientific research activity and
exempted fishing (1) 1 hour per response to send NMFS a copy of a
scientific research plan and provide a copy of the cruise report or
research publication, (2) 1 hour per response to complete an
application for an exempted fishing permit or authorization for an
exempted educational activity, and (3) 1 hour per response to collect
information and provide a report at the conclusion of exempted fishing.
The following collection-of-information requirements have been
approved by OMB:
(a) Principal state officials and their designees--Estimated at 15
hours per response (OMB control number 0648-0314).
(b) Council appointments--Estimated at 120 hours per appointment
(30 appointments required)(OMB control number 0648-0314).
(c) Application for reinstatement of State authority-- Estimated at
2 hours per response (OMB control number 0648-0314).
The estimated response times shown include the time for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information.
List of Subjects
15 CFR Part 902
Reporting and recordkeeping requirements.
50 CFR Parts 600, 602, and 620
Fisheries, Fishing.
50 CFR Part 601
Administrative practice and procedure, Fisheries, Fishing.
50 CFR Part 603
Confidential business information, Fisheries, Statistics.
50 CFR Part 605
Administrative practice and procedure, Fisheries, Fishing,
Reporting and recordkeeping requirements.
50 CFR Part 611
Fisheries, Foreign relations, Reporting and recordkeeping
requirements.
50 CFR Part 619
Administrative practice and procedure, Fisheries, Fishing,
Intergovernmental relations.
50 CFR Part 621
Fisheries, Fishing, Fishing vessels, Penalties.
Dated: June 14, 1996.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.
For the reasons set out in the preamble, 15 CFR chapter IX and,
under the authority of 16 U.S.C., 1801 et seq., 50 CFR chapter VI are
amended as follows:
15 CFR CHAPTER IX
PART 902--NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE
PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS
1. The authority citation for part 902 continues to read as
follows:
Authority: 44 U.S.C. 3501 et seq.
2. In Sec. 902.1, paragraph (b), the table is amended by removing
in the left column under 50 CFR, the entries ``601.37'', ``611.3'',
``611.4'', ``611.5'', ``611.6'', ``611.8'', ``611.9'', ``611.12'',
``611.14'', ``611.50'', ``611.61'', ``611.70'', ``611.80'', ``611.81'',
``611.82'', ``611.90'', ``611.92'', ``611.93'', ``611.94'', and
``620.10'', and by removing in the right column the control numbers in
corresponding positions; and by adding, in numerical order, the
following entries to read as follows:
Sec. 902.1 OMB control numbers assigned pursuant to the Paperwork
Reduction Act.
* * * * *
(b) * * *
------------------------------------------------------------------------
Current OMB control number
CFR part or section where the information (all numbers begin with 0648-
collection requirement is located )
------------------------------------------------------------------------
* * * * *
50 CFR
* * * * *
600.205................................. -0314
600.215................................. -0314
600.235................................. -0192
600.501................................. -0089
600.502................................. -0075
600.503................................. -0305 and -0306
600.504................................. -0075
600.506................................. -0075
600.507................................. -0075
600.510................................. -0075
600.512................................. -0309
600.520................................. -0075
600.630................................. -0314
------------------------------------------------------------------------
* * * * *
50 CFR CHAPTER VI
3. Part 600 is revised to read as follows:
PART 600--MAGNUSON ACT PROVISIONS
Subpart A--General
Sec.
600.5 Purpose and scope.
600.10 Definitions.
600.15 Other acronyms.
Subpart B--Regional Fishery Management Councils
600.105 Intercouncil boundaries.
600.110 Intercouncil fisheries.
600.115 Statement of organization, practices, and procedures
(SOPP).
600.120 Employment practices.
600.125 Budgeting, funding, and accounting.
600.130 Protection of confidentiality of statistics.
Subpart C--Council Membership
600.205 Principal state officials and their designees.
600.210 Terms of council members.
600.215 Appointments.
600.220 Oath of office.
600.225 Rules of conduct.
600.230 Removal.
600.235 Financial disclosure.
600.240 Security assurances.
600.245 Council member compensation.
Subpart D--National Standards
600.305 General.
600.310 National Standard 1--Optimum Yield.
600.315 National Standard 2--Scientific Information.
600.320 National Standard 3--Management Units.
600.325 National Standard 4--Allocations.
600.330 National Standard 5--Efficiency.
600.335 National Standard 6--Variations and Contingencies.
600.340 National Standard 7--Costs and Benefits.
Subpart E--Confidentiality of Statistics
600.405 Types of statistics covered.
600.410 Collection and maintenance of statistics.
600.415 Access to statistics.
600.420 Control system.
600.425 Release of statistics.
[[Page 32541]]
Subpart F--Foreign Fishing
600.501 Vessel permits.
600.502 Vessel reports.
600.503 Vessel and gear identification.
600.504 Facilitation of enforcement.
600.505 Prohibitions.
600.506 Observers.
600.507 Recordkeeping.
600.508 Fishing operations.
600.509 Prohibited species.
600.510 Gear avoidance and disposal.
600.511 Fishery closure procedures.
600.512 Scientific research.
600.513 Recreational fishing.
600.514 Relation to other laws.
600.515 Interpretation of 16 U.S.C. 1857(4).
600.516 Total allowable level of foreign fishing (TALFF).
600.517 Allocations.
600.518 Fee schedule for foreign fishing.
600.520 Northwest Atlantic Ocean fishery.
600.525 Atlantic herring fishery.
Subpart G--Preemption of State Authority Under Section 306(b)
600.605 General policy.
600.610 Factual findings for Federal preemption.
600.615 Commencement of proceedings.
600.620 Rules pertaining to the hearing.
600.625 Secretary's decision.
600.630 Application for reinstatement of state authority.
Subpart H--General Provisions for Domestic Fisheries
600.705 Relation to other laws.
600.710 Permits.
600.715 Recordkeeping and reporting.
600.720 Vessel and gear identification.
600.725 General prohibitions.
600.730 Facilitation of enforcement.
600.735 Penalties.
600.740 Enforcement policy.
600.745 Scientific research activity, exempted fishing, and
exempted educational activity.
Authority: 16 U.S.C. 1801 et seq.
Subpart A--General
600.5 Purpose and scope.
(a) This part contains general provisions governing the operation
of the eight Regional Fishery Management Councils established by the
Magnuson Act and describes the Secretary's role and responsibilities
under the Act. The Councils are institutions created by Federal law and
must conform to the uniform standards established by the Secretary in
this part.
(b) This part also governs all foreign fishing under the Magnuson
Act, prescribes procedures for the conduct of preemption hearings under
section 306(b) of the Magnuson Act, and collects the general provisions
common to all domestic fisheries governed by this chapter.
Sec. 600.10 Definitions.
Unless defined otherwise in other parts of Chapter VI, the terms in
this chapter have the following meanings:
Administrator means the Administrator of NOAA (Under Secretary of
Commerce for Oceans and Atmosphere) or a designee.
Advisory group means a Scientific and Statistical Committee (SSC),
Fishing Industry Advisory Committee (FIAC), or Advisory Panel (AP)
established by a Council under the Magnuson Act.
Agent, for the purpose of foreign fishing (subpart F), means a
person appointed and maintained within the United States who is
authorized to receive and respond to any legal process issued in the
United States to an owner and/or operator of a vessel operating under a
permit and of any other vessel of that Nation fishing subject to the
jurisdiction of the United States. Any diplomatic official accepting
such an appointment as designated agent waives diplomatic or other
immunity in connection with such process.
Aggregate or summary form means confidential data structured in
such a way that the identity of the submitter cannot be determined
either from the present release of the data or in combination with
other releases.
Allocated species means any species or species group allocated to a
foreign nation under Sec. 600.517 for catching by vessels of that
Nation.
Allocation means direct and deliberate distribution of the
opportunity to participate in a fishery among identifiable, discrete
user groups or individuals.
Anadromous species means species of fish that spawn in fresh or
estuarine waters of the United States and that migrate to ocean waters.
Assistant Administrator means the Assistant Administrator for
Fisheries, NOAA, or a designee.
Authorized officer means:
(1) Any commissioned, warrant, or petty officer of the USCG;
(2) Any special agent or fishery enforcement officer of NMFS;
(3) Any officer designated by the head of any Federal or state
agency that has entered into an agreement with the Secretary and the
Commandant of the USCG to enforce the provisions of the Magnuson Act or
any other statute administered by NOAA; or
(4) Any USCG personnel accompanying and acting under the direction
of any person described in paragraph (1) of this definition.
Authorized species means any species or species group that a
foreign vessel is authorized to retain in a joint venture by a permit
issued under Activity Code 4 as described by Sec. 600.501(c).
Catch, take, or harvest includes, but is not limited to, any
activity that results in killing any fish or bringing any live fish on
board a vessel.
Center means one of the five NMFS Fisheries Science Centers.
Coast Guard Commander means one of the commanding officers of the
Coast Guard units specified in Table 1 of Sec. 600.502, or a designee.
Codend means the terminal, closed end of a trawl net.
Confidential statistics are those submitted as a requirement of an
FMP and that reveal the business or identity of the submitter.
Continental shelf fishery resources means the species listed under
section 3(4) of the Magnuson Act.
Council means one of the eight Regional Fishery Management Councils
established by the Magnuson Act.
Data, statistics, and information are used interchangeably. Dealer
means the person who first receives fish by way of purchase, barter, or
trade.
Designated representative means the person appointed by a foreign
nation and maintained within the United States who is responsible for
transmitting information to and submitting reports from vessels of that
Nation and establishing observer transfer arrangements for vessels in
both directed and joint venture activities.
Directed fishing, for the purpose of foreign fishing (subpart F),
means any fishing by the vessels of a foreign nation for allocations of
fish granted that Nation under Sec. 600.517.
Director means the Director of the Office of Fisheries Conservation
and Management, 1315 East-West Highway, Silver Spring, MD 20910.
Discard means to release or return fish to the sea, whether or not
such fish are brought fully on board a fishing vessel.
Drift gillnet means a gillnet that is unattached to the ocean
bottom, whether or not attached to a vessel.
Exclusive economic zone (EEZ) means the zone established by
Presidential Proclamation 5030, 3 CFR part 22, dated March 10, 1983,
and is that area adjacent to the United States which, except where
modified to accommodate international boundaries, encompasses all
waters from the seaward boundary of each of the coastal states to a
line on which each point is 200 nautical miles (370.40 km) from the
baseline from which the territorial sea of the United States is
measured.
Exempted educational activity means an activity, conducted by an
educational institution accredited by a recognized national or
international accreditation
[[Page 32542]]
body, of limited scope and duration, that is otherwise prohibited by
part 285 or chapter VI of this title, but that is authorized by the
appropriate Director or Regional Director for educational purposes.
Exempted or experimental fishing means fishing from a vessel of the
United States that involves activities otherwise prohibited by part 285
or chapter VI of this title, but that are authorized under an exempted
fishing permit (EFP). These regulations refer exclusively to exempted
fishing. References in part 285 of this title and elsewhere in this
chapter to experimental fishing mean exempted fishing under this part.
Fish means:
(1) When used as a noun, means any finfish, mollusk, crustacean, or
parts thereof, and all other forms of marine animal and plant life
other than marine mammals and birds.
(2) When used as a verb, means to engage in ``fishing,'' as defined
below.
Fishery means:
(1) One or more stocks of fish that can be treated as a unit for
purposes of conservation and management and that are identified on the
basis of geographic, scientific, technical, recreational, or economic
characteristics, or method of catch; or
(2) Any fishing for such stocks.
Fishery management unit (FMU) means a fishery or that portion of a
fishery identified in an FMP relevant to the FMP's management
objectives. The choice of an FMU depends on the focus of the FMP's
objectives, and may be organized around biological, geographic,
economic, technical, social, or ecological perspectives.
Fishery resource means any fish, any stock of fish, any species of
fish, and any habitat of fish.
Fishing, or to fish means any activity, other than scientific
research conducted by a scientific research vessel, that involves:
(1) The catching, taking, or harvesting of fish;
(2) The attempted catching, taking, or harvesting of fish;
(3) Any other activity that can reasonably be expected to result in
the catching, taking, or harvesting of fish; or
(4) Any operations at sea in support of, or in preparation for, any
activity described in paragraphs (1), (2), or (3) of this definition.
Fishing vessel means any vessel, boat, ship, or other craft that is
used for, equipped to be used for, or of a type that is normally used
for:
(1) Fishing; or
(2) Aiding or assisting one or more vessels at sea in the
performance of any activity relating to fishing, including, but not
limited to, preparation, supply, storage, refrigeration,
transportation, or processing.
Foreign fishing means fishing by a foreign fishing vessel.
Foreign fishing vessel (FFV) means any fishing vessel other than a
vessel of the United States, except those foreign vessels engaged in
recreational fishing, as defined in this section.
Gear conflict means any incident at sea involving one or more
fishing vessels:
(1) In which one fishing vessel or its gear comes into contact with
another vessel or the gear of another vessel; and
(2) That results in the loss of, or damage to, a fishing vessel,
fishing gear, or catch.
Gillnet means a panel of netting, suspended vertically in the water
by floats along the top and weights along the bottom, to entangle fish
that attempt to pass through it.
Governing International Fishery Agreement (GIFA) means an agreement
between the United States and a foreign nation or Nations under section
201(c) of the Magnuson Act.
Grants Officer means the NOAA official authorized to sign, on
behalf of the Government, the cooperative agreement providing funds to
support the Council's operations and functions.
Greenwich mean time (GMT) means the local mean time at Greenwich,
England. All times in this part are GMT unless otherwise specified.
Handgear means handline, harpoon, or rod and reel.
Harass means to unreasonably interfere with an individual's work
performance, or to engage in conduct that creates an intimidating,
hostile, or offensive environment.
Harpoon or harpoon gear means fishing gear consisting of a pointed
dart or iron attached to the end of a line several hundred feet in
length, the other end of which is attached to a floatation device.
Harpoon gear is attached to a pole or stick that is propelled only by
hand, and not by mechanical means.
Industry means both recreational and commercial fishing, and
includes the harvesting, processing, and marketing sectors.
International radio call sign (IRCS) means the unique radio
identifier assigned a vessel by the appropriate authority of the flag
state.
Joint venture means any operation by a foreign vessel assisting
fishing by U.S. fishing vessels, including catching, scouting,
processing and/or support. (A joint venture generally entails a foreign
vessel processing fish received from U.S. fishing vessels and
conducting associated support activities.)
Magnuson Act means the Magnuson Fishery Conservation and Management
Act, as amended (16 U.S.C. 1801 et seq.), also known as MFCMA.
Metric ton (mt) means 1,000 kg (2,204.6 lb).
nm means nautical mile (6,076 ft (1,852 m)).
Official number means the documentation number issued by the USCG
or the certificate number issued by a state or by the USCG for an
undocumented vessel.
Operator, with respect to any vessel, means the master or other
individual aboard and in charge of that vessel.
Optimum yield (OY) means the amount of fish:
(1) That will provide the greatest overall benefit to the United
States, with particular reference to food production and recreational
opportunities; and
(2) That is prescribed as such on the basis of the maximum
sustainable yield from such fishery, as modified by any relevant
economic, social, or ecological factor.
Owner, with respect to any vessel, means:
(1) Any person who owns that vessel in whole or in part;
(2) Any charterer of the vessel, whether bareboat, time, or voyage;
(3) Any person who acts in the capacity of a charterer, including,
but not limited to, parties to a management agreement, operating
agreement, or any similar agreement that bestows control over the
destination, function, or operation of the vessel; or
(4) Any agent designated as such by a person described in paragraph
(1), (2), or (3) of this definition.
Plan Team means a Council working group selected from agencies,
institutions, and organizations having a role in the research and/or
management of fisheries, whose primary purpose is to assist the Council
in the preparation and/or review of FMPs, amendments, and supporting
documents for the Council, and/or SSC and AP.
Predominately means, with respect to fishing in a fishery, that
more fishing on a stock or stocks of fish covered by the FMP occurs, or
would occur in the absence of regulations, within or beyond the EEZ
than occurs in the aggregate within the boundaries of all states off
the coasts of which the fishery is conducted.
Processing, for the purpose of foreign fishing (subpart F), means
any operation by an FFV to receive fish from foreign or U.S. fishing
vessels and/or the preparation of fish, including, but not limited to,
cleaning, cooking, canning,
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smoking, salting, drying, or freezing, either on the FFV's behalf or to
assist other foreign or U.S. fishing vessels.
Product recovery rate (PRR) means a ratio expressed as a percentage
of the weight of processed product divided by the round weight of fish
used to produce that amount of product.
Prohibited species, with respect to a foreign vessel, means any
species of fish that that vessel is not specifically allocated or
authorized to retain, including fish caught or received in excess of
any allocation or authorization.
Recreational fishing, with respect to a foreign vessel, means any
fishing from a foreign vessel not operated for profit and not operated
for the purpose of scientific research. It may not involve the sale,
barter, or trade of part or all of the catch (see Sec. 600.513).
Retain on board means to fail to return fish to the sea after a
reasonable opportunity to sort the catch.
Region mean one of five NMFS Regional Offices responsible for
administering the management and development of marine resources in the
United States in their respective geographical regions.
Regional Director (RD) means the Director of one of the five NMFS
Regions described in Table 1 of Sec. 600.502, or a designee.
Regional Program Officer means the NMFS official designated in the
terms and conditions of the grant award responsible for monitoring,
recommending, and reviewing any technical aspects of the application
for Federal assistance and the award.
Round weight means the weight of the whole fish before processing
or removal of any part.
Secretary means the Secretary of Commerce or a designee.
Science and Research Director means the Director of one of the five
NMFS Fisheries Science Centers described in Table 1 of Sec. 600.502 of
this part, or a designee, also known as Center Director.
Scientific cruise means the period of time during which a
scientific research vessel is operated in furtherance of a scientific
research project, beginning when the vessel leaves port to undertake
the project and ending when the vessel completes the project as
provided for in the applicable scientific research plan.
Scientific research activity is, for the purposes of this part, an
activity in furtherance of a scientific fishery investigation or study
that would meet the definition of fishing under the Magnuson Act, but
for the exemption applicable to scientific research activity conducted
from a scientific research vessel. Scientific research activity
includes, but is not limited to, sampling, collecting, observing, or
surveying the fish or fishery resources within the EEZ, at sea, on
board scientific research vessels, to increase scientific knowledge of
the fishery resources or their environment, or to test a hypothesis as
part of a planned, directed investigation or study conducted according
to methodologies generally accepted as appropriate for scientific
research. At-sea scientific fishery investigations address one or more
issues involving taxonomy, biology, physiology, behavior, disease,
aging, growth, mortality, migration, recruitment, distribution,
abundance, ecology, stock structure, bycatch, and catch estimation of
finfish and shellfish (invertebrate) species considered to be a
component of the fishery resources within the EEZ. Scientific research
activity does not include the collection and retention of fish outside
the scope of the applicable research plan, or the testing of fishing
gear. Data collection designed to capture and land quantities of fish
or invertebrates for product development, market research, and/or
public display are not scientific research activities and must be
permitted under exempted fishing procedures. For foreign vessels, such
data collection activities are considered scientific research if they
are carried out in full cooperation with the United States.
Scientific research plan means a detailed, written formulation,
prepared in advance of the research, for the accomplishment of a
scientific research project. At a minimum, a sound scientific research
plan should include:
(1) A description of the nature and objectives of the project,
including the hypothesis or hypotheses to be tested.
(2) The experimental design of the project, including a description
of the methods to be used, the type and class of any vessel(s) to be
used, and a description of sampling equipment.
(3) The geographical area(s) in which the project is to be
conducted.
(4) The expected date of first appearance and final departure of
the research vessel(s) to be employed, and deployment and removal of
equipment, as appropriate.
(5) The expected quantity and species of fish to be taken and their
intended disposition, and, if significant amounts of a managed species
or species otherwise restricted by size or sex are needed, an
explanation of such need.
(6) The name, address, and telephone/telex/fax number of the
sponsoring organization and its director.
(7) The name, address, and telephone/telex/fax number, and
curriculum vitae of the person in charge of the project and, where
different, the person in charge of the research project on board the
vessel.
(8) The identity of any vessel(s) to be used including, but not
limited to, the vessel's name, official documentation number and IRCS,
home port, and name, address, and telephone number of the owner and
master.
Scientific research vessel means a vessel owned or chartered by,
and controlled by, a foreign government agency, U.S. Government agency
(including NOAA or institutions designated as federally funded research
and development centers), U.S. state or territorial agency, university
(or other educational institution accredited by a recognized national
or international accreditation body), international treaty
organization, or scientific institution. In order for a vessel that is
owned or chartered and controlled by a foreign government to meet this
definition, the vessel must have scientific research as its exclusive
mission during the scientific cruise in question and the vessel
operations must be conducted in accordance with a scientific research
plan.
Scouting means any operation by a vessel exploring (on the behalf
of an FFV or U.S. fishing vessel) for the presence of fish by visual,
acoustic, or other means that do not involve the catching of fish.
State means each of the several states, the District of Columbia,
the Commonwealth of Puerto Rico, American Samoa, the Virgin Islands,
Guam, the Northern Mariana Islands, and any other Commonwealth,
territory, or possession of the United States.
State employee means any employee of the state agency responsible
for developing and monitoring the state's program for marine and/or
anadromous fisheries.
Statement of Organization, Practices, and Procedures (SOPP) means a
statement by each Council describing its organization, practices, and
procedures as required under section 302(f)(6) of the Magnuson Act.
Stock assessment means the process of collecting and analyzing
biological and statistical information to determine the changes in the
abundance of fishery stocks in response to fishing, and, to the extent
possible, to predict future trends of stock abundance. Stock
assessments are based on resource surveys; knowledge of the habitat
requirements, life history, and behavior of the species; the use of
environmental indices to determine impacts on stocks; and catch
statistics. Stock assessments are used as a basis to ``assess and
specify the present and probable future condition of
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a fishery'' (as is required by the Magnuson Act), and are summarized in
the Stock Assessment and Fishery Evaluation or similar document.
Stock Assessment and Fishery Evaluation (SAFE) means a document or
set of documents that provides Councils with a summary of the most
recent biological condition of species in an FMU, and the social and
economic condition of the recreational and commercial fishing
industries and the fish processing industries. It summarizes, on a
periodic basis, the best available scientific information concerning
the past, present, and possible future condition of the stocks and
fisheries being managed under Federal regulation.
Substantially (affects) means, for the purpose of subpart G, with
respect to whether a state's action or omission will substantially
affect the carrying out of an FMP for a fishery, that those effects are
important or material, or considerable in degree. The effects of a
state's action or omission for purposes of this definition include
effects upon:
(1) The achievement of the FMP's goals or objectives for the
fishery;
(2) The achievement of OY from the fishery on a continuing basis;
(3) The attainment of the national standards for fishery
conservation and management (as set forth in section 301(a) of the
Magnuson Act) and compliance with other applicable law; or
(4) The enforcement of regulations implementing the FMP.
Support means any operation by a vessel assisting fishing by
foreign or U.S. vessels, including supplying water, fuel, provisions,
fish processing equipment, or other supplies to a fishing vessel.
Total length (TL) means the straight-line distance from the tip of
the snout to the tip of the tail (caudal fin) while the fish is lying
on its side, normally extended.
Transship means offloading and onloading or otherwise transferring
fish or fish products and/or transporting fish or products made from
fish.
Trawl means a cone or funnel-shaped net that is towed through the
water by one or more vessels.
U.S. observer or observer means any person serving in the capacity
of an observer employed by NMFS, either directly or under contract, or
certified as a supplementary observer by NMFS.
Vessel of the United States or U.S. vessel means:
(1) Any vessel documented under chapter 121 of title 46, United
States Code;
(2) Any vessel numbered under chapter 123 of title 46, United
States Code, and measuring less than 5 net tons;
(3) Any vessel numbered under chapter 123 of title 46, United
States Code, and used exclusively for pleasure; or
(4) Any vessel not equipped with propulsion machinery of any kind
and used exclusively for pleasure.
Sec. 600.15 Other acronyms.
(a) Fishery management terms. (1) ABC--acceptable biological catch
(2) DAH--estimated domestic annual harvest
(3) DAP--estimated domestic annual processing
(4) EIS--environmental impact statement
(5) EY--equilibrium yield
(6) FMP--fishery management plan
(7) JVP--joint venture processing
(8) MSY--maximum sustainable yield
(9) PMP--preliminary FMP
(10) TAC--total allowable catch
(11) TALFF--total allowable level of foreign fishing
(b) Legislation. (1) APA--Administrative Procedure Act
(2) CZMA--Coastal Zone Management Act
(3) ESA--Endangered Species Act
(4) FACA--Federal Advisory Committee Act
(5) FOIA--Freedom of Information Act
(6) FLSA--Fair Labor Standards Act
(7) MFCMA--Magnuson Fishery Conservation and Management Act
(8) MMPA--Marine Mammal Protection Act
(9) MPRSA--Marine Protection, Research, and Sanctuaries Act
(10) NEPA--National Environmental Policy Act
(11) PA--Privacy Act
(12) PRA--Paperwork Reduction Act
(13) RFA--Regulatory Flexibility Act
(c) Federal agencies. (1) CEQ--Council on Environmental Quality
(2) DOC--Department of Commerce
(3) DOI--Department of the Interior
(4) DOS--Department of State
(5) EPA--Environmental Protection Agency
(6) FWS--Fish and Wildlife Service
(7) GSA--General Services Administration
(8) NMFS--National Marine Fisheries Service
(9) NOAA--National Oceanic and Atmospheric Administration
(10) OMB--Office of Management and Budget
(11) OPM--Office of Personnel Management
(12) SBA--Small Business Administration
(13) USCG--United States Coast Guard
Subpart B--Regional Fishery Management Councils
Sec. 600.105 Intercouncil boundaries.
(a) New England and Mid-Atlantic Councils. The boundary begins at
the intersection point of Connecticut, Rhode Island, and New York at
41 deg.18'16.249'' N. lat. and 71 deg.54'28.477'' W. long. and proceeds
south 37 deg.22'32.75'' East to the point of intersection with the
outward boundary of the EEZ as specified in the Magnuson Act.
(b) Mid-Atlantic and South Atlantic Councils. The boundary begins
at the seaward boundary between the States of Virginia and North
Carolina (36 deg.31'00.8'' N. lat.), and proceeds due east to the point
of intersection with the outward boundary of the EEZ as specified in
the Magnuson Act.
(c) South Atlantic and Gulf of Mexico Councils. The boundary
coincides with the line of demarcation between the Atlantic Ocean and
the Gulf of Mexico, which begins at the intersection of the outer
boundary of the EEZ, as specified in the Magnuson Act, and 83 deg.00'
W. long., proceeds northward along that meridian to 24 deg.35' N. lat.,
(near the Dry Tortugas Islands), thence eastward along that parallel,
through Rebecca Shoal and the Quicksand Shoal, to the Marquesas Keys,
and then through the Florida Keys to the mainland at the eastern end of
Florida Bay, the line so running that the narrow waters within the Dry
Tortugas Islands, the Marquesas Keys and the Florida Keys, and between
the Florida Keys and the mainland, are within the Gulf of Mexico.
Sec. 600.110 Intercouncil fisheries.
If any fishery extends beyond the geographical area of authority of
any one Council, the Secretary may--
(a) Designate a single Council to prepare the FMP for such fishery
and any amendments to such FMP, in consultation with the other Councils
concerned; or
(b) Require that the FMP and any amendments be prepared jointly by
all the Councils concerned.
(1) A jointly prepared FMP or amendment must be adopted by a
majority of the voting members, present and voting, of each
participating Council. Different conservation and management measures
may be developed for specific geographic areas, but the FMP should
address the entire geographic range of the stock(s).
(2) In the case of joint FMP or amendment preparation, one Council
will be designated as the
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``administrative lead.'' The ``administrative lead'' Council is
responsible for the preparation of the FMP or any amendments and other
required documents for submission to the Secretary.
(3) None of the Councils involved in joint preparation may withdraw
without Secretarial approval. If Councils cannot agree on approach or
management measures within a reasonable period of time, the Secretary
may designate a single Council to prepare the FMP or may issue the FMP
under Secretarial authority.
Sec. 600.115 Statement of organization, practices, and procedures
(SOPP).
(a) Councils are required to publish and make available to the
public a SOPP in accordance with such uniform standards as are
prescribed by the Secretary (section 302(f)(6)) of the Magnuson Act.
The purpose of the SOPP is to inform the public how the Council
operates within the framework of the Secretary's uniform standards.
(b) Amendments to current SOPPs must be consistent with the
guidelines in this section and the terms and conditions of the
cooperative agreement, the statutory requirements of the Magnuson Act
and other applicable law. Upon approval of a Council's SOPP amendment
by the Secretary, a Notice of Availability will be published in the
Federal Register, including an address where the public may write to
request copies.
(c) Councils may deviate, where lawful, from the guidelines with
appropriate supporting rationale, and Secretarial approval of each
amendment to a SOPP would constitute approval of any such deviations
for that particular Council.
Sec. 600.120 Employment practices.
Council members (except for Federal Government officials) and staff
are not Federal employees subject to OPM regulations. Council staffing
practices are set forth in each Council's SOPP.
Sec. 600.125 Budgeting, funding, and accounting.
Each Council's grant activities are governed by OMB Circular A-110
(Uniform Administrative Requirements for Grants and Agreements with
Institutions of Higher Education, Hospitals, and other Non-Profit
Organizations), OMB Circular A-122 (Cost Principles for Non-Profit
Organizations), 15 CFR Part 29b (Audit Requirements for Institutions of
Higher Education and Other Nonprofit Organizations), and the terms and
conditions of the cooperative agreement. (See 5 CFR 1310.3 for
availability of OMB Circulars.)
Sec. 600.130 Protection of confidentiality of statistics.
Each Council must establish appropriate procedures for ensuring the
confidentiality of the statistics that may be submitted to it by
Federal or state authorities and may be voluntarily submitted to it by
private persons, including, but not limited to (also see Sec. 600.405):
(a) Procedures for the restriction of Council member, employee, or
advisory group access and the prevention of conflicts of interest,
except that such procedures must be consistent with procedures of the
Secretary.
(b) In the case of statistics submitted to the Council by a state,
the confidentiality laws and regulations of that state.
Subpart C--Council Membership
Sec. 600.205 Principal state officials and their designees.
(a) Only a full-time state employee of the state agency responsible
for marine and/or anadromous fisheries shall be designated by a
constituent state Governor as the principal state official for purposes
of section 302(b) of the Magnuson Act. New or revised designations by
state Governors of principal state officials, and new or revised
designations by principal state officials of their designees(s), must
be delivered in writing to the appropriate NMFS Regional Director at
least 48 hours before the individual may vote on any issue before the
Council. Written designation(s) must indicate the employment status of
each principal state official and that of his/her designee(s), how the
official or designee is employed by the state fisheries agency, where
each individual is employed (business address and telephone number),
and whether the official's full salary is paid by the state.
(b) A principal state official may name his/her designee(s) to act
on his/her behalf at Council meetings. Individuals designated to serve
as designees of a principal state official on a Council, pursuant to
section 302(b)(1)(A) of the Magnuson Act, must be full time state
employees involved in the development of fisheries management policies
for that state.
Sec. 600.210 Terms of Council members.
(a) Voting members (other than principal state officials, the
Regional Directors, or their designees) are appointed for a term of 3
years and, except as discussed below, may be reappointed. A voting
member's Council service of 18 months or more during a term of office
will be counted as service for the entire 3-year term.
(b) The anniversary date for measuring terms of membership is
August 11. The Secretary may designate a term of appointment shorter
than 3 years, if necessary, to provide for balanced expiration of terms
of office. Members may not serve more than three consecutive terms.
(c) A member appointed after January 1, 1986, who has completed
three consecutive terms will be eligible for appointment to another
term one full year after completion of the third consecutive term.
Sec. 600.215 Appointments.
The following procedures govern the nomination and appointment of
Council members.
(a) Each year, terms of approximately one-third of the appointed
members of each Council expire. New members will be appointed, or
seated members will be reappointed to another term, by the Secretary to
fill the seats being vacated. The Secretary will select the appointees
from lists of nominees submitted by March 15 of each year by the
Governors of the constituent states that are eligible to nominate
candidates for that vacancy. When an appointed member vacates his/her
seat prior to the expiration of his/her term, the Secretary will fill
the vacancy for the remainder of the term by selecting from among the
nominees submitted by the responsible Governor(s).
(b) A Governor must submit the names of at least three qualified
nominees for each applicable vacancy.
(c) Governors are responsible for ensuring that persons nominated
for appointment meet the qualification requirements of the Magnuson
Act. A Governor must provide a statement explaining how each of his or
her nominees meets the qualification requirements; and must provide
appropriate documentation to the Secretary that each nomination was
made in consultation with commercial and recreational fishing interests
of that state, and that each nominee is knowledgeable and experienced,
by reason of his or her occupational or other experience, scientific
expertise, or training, in one or more of the following ways related to
the fishery resources of the geographical area of concern to the
Council:
(1) Commercial fishing or the processing or marketing of fish, fish
products, or fishing equipment;
(2) Fishing for pleasure, relaxation, or consumption, or experience
in any business supporting fishing;
[[Page 32546]]
(3) Leadership in a state, regional, or national organization whose
members participate in a fishery in the Council's area of authority;
(4) The management and conservation of natural resources, including
related interactions with industry, government bodies, academic
institutions, and public agencies. This includes experience serving as
a member of a Council, AP, SSC, or FIAC;
(5) Representing consumers of fish or fish products through
participation in local, state, or national organizations, or performing
other activities specifically related to the education or protection of
consumers of marine resources; and
(6) Teaching, journalism, writing, consulting, legal practice, or
researching matters related to fisheries, fishery management, and
marine resource conservation.
(d) To assist in identifying necessary qualifications, each nominee
must furnish to the appropriate Governor's office a current resume, or
equivalent, describing career history--with particular attention to
experience related to the above criteria. Nominees may provide such
information in any format they wish. Career and educational history
information sent to the Governors should also be sent to the NMFS
Office of Fisheries Conservation and Management.
(e) The Secretary will review each list submitted by a Governor to
ascertain if the individuals on the list are qualified for the vacancy
on the basis of the criteria prescribed in paragraph (c) of this
section. If the Secretary determines that any nominee is not qualified,
the Secretary will notify the appropriate Governor of that
determination. The Governor shall then submit a revised list or
resubmit the original list with an additional explanation of the
qualifications of the nominee in question. The Secretary reserves the
right to determine whether nominees are qualified.
(f) There are two categories of seats to which voting members are
appointed: ``obligatory'' and ``at-large.''
(1) Each constituent state is entitled to one seat on the Council
on which it is a member, except that Alaska is entitled to five seats
and Washington is entitled to two seats on the North Pacific Fishery
Management Council. When the term of a state's obligatory member is
expiring, or that seat becomes vacant before the expiration of its
term, the Governor of that state must submit the names of at least
three qualified individuals to fill that seat. In order to fill a
state's obligatory seat, the Secretary may select from any of the
nominees for such obligatory seat and from the nominees for any at-
large seat submitted by the Governor of that state. If a Governor fails
to provide a list of at least three qualified nominees for a seat
obligated to that Governor's state, then the state's obligatory seat
will remain vacant until three qualified nominees are submitted by the
Governor and acted upon by the Secretary.
(2) Prior to submitting nominees for appointment to a Council, a
constituent state Governor must determine if each of his or her
nominees is a resident of that constituent state. A State Governor may
not nominate a non-resident of that state for appointment to a Council
seat obligated to that state. If, at any time during a term, an
appointee to an obligatory seat changes residency to another state that
is not a constituent state of that Council, the member may no longer
vote as a representative of that state and must resign from that
obligated seat. For purposes of this paragraph (f)(2), a state resident
is an individual who maintains his/her principal residence within that
constituent state and, if applicable, pays income taxes to that state
and/or to another appropriate jurisdiction within that state.
(g) When the term of an at-large member is expiring, or that seat
becomes vacant before the expiration of a term, the Governors of all
constituent states of that Council must each submit the names of at
least three qualified individuals to fill that seat.
(1) In order to fill an at-large seat, the Secretary may select a
nominee for that seat submitted by any Governor of a constituent state.
When the terms of both an obligatory member and an at-large member
expire concurrently, the Governor of the state holding the expiring
obligatory seat may indicate that the nominees who were not selected
for appointment to the obligatory seat may be considered for
appointment to an at-large seat, provided that the resulting total
number of nominees submitted by that Governor for the expiring at-large
seat is no fewer than three.
(2) If a Governor fails to submit a list of three qualified
nominees for an available at-large seat within the time allotted, then
a new at-large member will be appointed from lists of qualified
nominees submitted by Governors of other constituent states.
(3) If a Governor chooses to submit nominations for one or more
vacant at-large seats on a Council, he or she must submit lists that
contain at least three different nominees for each vacant seat. In
making selections to each of the available at-large seats, the
Secretary will consider all names submitted by the constituent state
governors.
(4) In filling expiring at-large seats, the Secretary will consider
only complete slates of nominees submitted by the Governors of the
Council's constituent states. If nominations are requested to fill more
than one at-large seat and a Governor elects to nominate a total of
four candidates, (i.e., a slate of three candidates for one seat and
one for the other(s)), the set of three candidates will be considered
only for the first seat, but the two candidates who were not selected
will not be considered for the other(s). In this case, the only
candidates considered for the other seat(s) would be derived from the
slates offered by the Governors of the other states that included three
different qualified candidates (i.e., candidates who were not
considered for one of the other seats).
(5) Governors may nominate residents of another constituent state
of a Council for appointment to an at-large seat on that Council.
(6) The Secretary must, to the extent practicable, ensure a fair
and balanced apportionment, on a rotating or other basis, of the active
participants (or their representatives) in the commercial and
recreational fisheries in the Council's area of authority. Further, the
Secretary must take action to ensure, to the extent practicable, that
those persons dependent for their livelihood upon the fisheries in the
Council's area of authority are fairly represented as voting members.
Sec. 600.220 Oath of office.
Each member appointed to a Council must take an oath of office.
Sec. 600.225 Rules of conduct.
(a) Council members, as Federal office holders, and Council
employees are subject to most Federal criminal statutes covering
bribery, conflict-of-interest, disclosure of confidential information,
and lobbying with appropriated funds.
(b) The Councils are responsible for maintaining high standards of
ethical conduct among themselves, their staffs, and their advisory
groups. In addition to abiding by the applicable Federal conflict of
interest statutes, both members and employees of the Councils must
comply with the following standards of conduct:
(1) No employee of a Council may use his or her official authority
or influence derived from his or her position with the Council for the
purpose of interfering with or affecting the result of an election to
or a nomination for any national, state, county, or municipal elective
office.
[[Page 32547]]
(2) No employee of a Council may be deprived of employment,
position, work, compensation, or benefit provided for or made possible
by the Magnuson Act on account of any political activity or lack of
such activity in support of or in opposition to any candidate or any
political party in any national, state, county, or municipal election,
or on account of his or her political affiliation.
(3) No Council member or employee may pay, offer, promise, solicit,
or receive from any person, firm, or corporation a contribution of
money or anything of value in consideration of either support or the
use of influence or the promise of support or influence in obtaining
for any person any appointive office, place, or employment under the
Council.
(4) No employee of a Council may have a direct or indirect
financial interest that conflicts with the fair and impartial conduct
of his or her Council duties. However, an Executive Director may retain
a financial interest in harvesting, processing or marketing activities,
and participate in matters of general public concern on the Council
that might affect that interest, if that interest has been disclosed in
a report filed under Sec. 600.235.
(5) No Council member, employee of a Council, or member of a
Council advisory group may use or allow the use, for other than
official purposes, of information obtained through or in connection
with his or her Council employment that has not been made available to
the general public.
(6) No Council member or employee of the Council may engage in
criminal, infamous, dishonest, notoriously immoral, or disgraceful
conduct.
(7) No Council member or employee of the Council may use Council
property on other than official business. Such property must be
protected and preserved from improper or deleterious operation or use.
(8) No Council member may participate--
(i) Personally and substantially as a member through decision,
approval, disapproval, recommendation, the rendering of advice,
investigation, or otherwise in a particular matter primarily of
individual concern, such as a contract, in which he or she has a
financial interest; or
(ii) In any matter of general public concern that is likely to have
a direct and predictable effect on a member's financial interest,
unless that interest is in harvesting, processing, or marketing
activities and has been disclosed in a report filed under Sec. 600.235.
For purposes of this section, the member's financial interest includes
that of the member's spouse; minor child; partner; organization in
which the member is serving as officer, director, trustee, partner or
employee; or any person or organization with whom the member is
negotiating or has any arrangement concerning prospective employment.
Sec. 600.230 Removal.
The Secretary may remove for cause any Secretarially appointed
member of a Council in accordance with section 302(b)(5) of the
Magnuson Act, wherein the Council concerned first recommends removal of
that member by not less than two-thirds of the voting members. A
recommendation of a Council to remove a member must be made in writing
to the Secretary and accompanied by a statement of the reasons upon
which the recommendation is based.
Sec. 600.235 Financial disclosure.
(a) The Magnuson Act requires the disclosure by each Council
nominee, voting member appointed to the Council by the Secretary, and
Executive Director, of any financial interest of the reporting
individual in any harvesting, processing, or marketing activity that is
being, or will be, undertaken within any fishery under the authority of
the individual's Council, and of any such financial interest of the
reporting individual's spouse, minor child, partner, or any
organization (other than the Council) in which that individual is
serving as an officer, director, trustee, partner, or employee. The
information required to be reported must be disclosed on NOAA Form 88-
195, ``Statement of Financial Interests for Use by Voting Members,
Nominees, and Executive Directors of Regional Fishery Management
Councils'' (Financial Interest Form), or such other form as the
Secretary may prescribe. The report must be filed by each nominee for
Secretarial appointment with the Assistant Administrator by April 15
or, if nominated after March 15, 1 month after nomination by the
Governor. A seated voting member appointed by the Secretary, or an
Executive Director, must file a Financial Interest Form within 45 days
of taking office; must update his or her statement within 30 days of
acquiring any such financial interest, or of substantially changing a
financial interest; and must update his/her statement annually and file
that update by February 1 of each year with the Executive Director of
the appropriate Council, and concurrently provide copies of such
documents to the NMFS Regional Director for the geographic area
concerned. The completed Financial Interest Forms will be kept on file,
and made available for public inspection at reasonable hours at the
Council offices. In addition, the statements will be made available at
each public Council meeting or hearing.
(b) The provisions of 18 U.S.C. 208 do not apply to an individual
who has filed a financial report under this section regarding an
interest that has been reported.
(c) By February 1 of each year, Councils must forward copies of the
completed disclosure from each current Council member and Executive
Director to the Director, Office of Fisheries Conservation and
Management, NMFS. Councils must also include any updates in
disclosures, as well as revisions required for changes of interests.
(d) Councils must retain the disclosure forms for each member for
at least 5 years after the expiration of that member's last term.
Sec. 600.240 Security assurances.
(a) DOC/OS will issue security assurances to Council nominees and
members following completion of background checks. Security assurances
will be valid for 5 years from the date of issuance. A security
assurance will not entitle the member to access classified data. In
instances in which Council members may need to discuss, at closed
meetings, materials classified for national security purposes, the
agency or individual (e.g., DOS, USCG) providing such classified
information will be responsible for ensuring that Council members and
other attendees have the appropriate security clearances.
(b) Each nominee to a Council is required to complete a
Certification of Status form (``form''). All nominees must certify,
pursuant to the Foreign Agents Registration Act of 1938, whether they
serve as an agent of a foreign principal. Each nominee must certify,
date, sign, and return the form with his or her completed nomination
kit. Nominees will not be considered for appointment to a Council if
they have not filed this form. Any nominee who currently is an agent of
a foreign principal will not be eligible for appointment to a Council,
and therefore should not be nominated by a Governor for appointment.
Sec. 600.245 Council member compensation.
(a) The obligatory and at-large voting members of each Council
appointed under section 302(b)(1)(C) of the Magnuson Act who are not
employed by the Federal Government or any state or local government
(i.e., any member who does not receive compensation from any such
government for the period when
[[Page 32548]]
performing duties as a Council member) shall receive compensation at
1.2 times the daily rate for a GS-15 (Step 1) of the General Schedule
(without locality pay) when engaged in actual performance of duties as
assigned by the Chair of the Council. Actual performance of duties, for
the purposes of compensation, may include travel time.
(b) All voting Council members whose eligibility for compensation
has been established in accordance with NOAA guidelines will be paid
through the cooperative agreement as a direct line item on a
contractual basis without deductions being made for Social Security or
Federal and state income taxes. A report of compensation will be
furnished each year by the member's Council to the proper Regional
Program Officer, as required by the Internal Revenue Service. Such
compensation may be paid on a full day's basis, whether in excess of 8
hours a day or less than 8 hours a day. The time is compensable where
the individual member is required to expend a significant private
effort that substantially disrupts the daily routine to the extent that
a work day is lost to the member. ``Homework'' time in preparation for
formal Council meetings is not compensable.
(c) Non-government Council members receive compensation for:
(1) Days spent in actual attendance at a meeting of the Council or
jointly with another Council.
(2) Travel on the day preceding or following a scheduled meeting
that precluded the member from conducting his normal business on the
day in question.
(3) Meetings of standing committees of the Council if approved in
advance by the Chair.
(4) Individual member meeting with scientific and technical
advisors, when approved in advance by the Chair and a substantial
portion of any day is spent at the meeting.
(5) Co
FR Doc. 96-15767 Magnuson Act Provisions; Consolidation and Update of Regulations; Collection-of-Information Approval
nducting or attending hearings, when authorized in advance by
the Chair.
(6) Other meetings involving Council business when approved in
advance by the Chair.
(d) The Executive Director of each Council must submit to the
appropriate Regional Office annually a report, approved by the Council
Chair, of Council member compensation authorized. This report shall
identify, for each member, amount paid, dates, and location and purpose
of meetings attended.
Subpart D--National Standards
Sec. 600.305 General.
(a) Purpose. (1) This subpart establishes guidelines, based on the
national standards, to assist in the development and review of FMPs,
amendments, and regulations prepared by the Councils and the Secretary.
(2) In developing FMPs, the Councils have the initial authority to
ascertain factual circumstances, to establish management objectives,
and to propose management measures that will achieve the objectives.
The Secretary will determine whether the proposed management objectives
and measures are consistent with the national standards, other
provisions of the Magnuson Act, and other applicable law. The Secretary
has an obligation under section 301(b) of the Magnuson Act to inform
the Councils of the Secretary's interpretation of the national
standards so that they will have an understanding of the basis on which
FMPs will be reviewed.
(3) The national standards are statutory principles that must be
followed in any FMP. The guidelines summarize Secretarial
interpretations that have been, and will be, applied under these
principles. The guidelines are intended as aids to decisionmaking; FMPs
formulated according to the guidelines will have a better chance for
expeditious Secretarial review, approval, and implementation. FMPs that
are in substantial compliance with the guidelines, the Magnuson Act,
and other applicable law must be approved.
(b) Fishery management objectives. (1) Each FMP, whether prepared
by a Council or by the Secretary, should identify what the FMP is
designed to accomplish (i.e., the management objectives to be attained
in regulating the fishery under consideration). In establishing
objectives, Councils balance biological constraints with human needs,
reconcile present and future costs and benefits, and integrate the
diversity of public and private interests. If objectives are in
conflict, priorities should be established among them.
(2) How objectives are defined is important to the management
process. Objectives should address the problems of a particular
fishery. The objectives should be clearly stated, practicably
attainable, framed in terms of definable events and measurable
benefits, and based upon a comprehensive rather than a fragmentary
approach to the problems addressed. An FMP should make a clear
distinction between objectives and the management measures chosen to
achieve them. The objectives of each FMP provide the context within
which the Secretary will judge the consistency of an FMP's conservation
and management measures with the national standards.
(c) Word usage. The word usage refers to all regulations in this
subpart.
(1) Must is used, instead of ``shall'', to denote an obligation to
act; it is used primarily when referring to requirements of the
Magnuson Act, the logical extension thereof, or of other applicable
law.
(2) Shall is used only when quoting statutory language directly, to
avoid confusion with the future tense.
(3) Should is used to indicate that an action or consideration is
strongly recommended to fulfill the Secretary's interpretation of the
Magnuson Act, and is a factor reviewers will look for in evaluating a
SOPP or FMP.
(4) May is used in a permissive sense.
(5) May not is proscriptive; it has the same force as ``must not.''
(6) Will is used descriptively, as distinguished from denoting an
obligation to act or the future tense.
(7) Could is used when giving examples, in a hypothetical,
permissive sense.
(8) Can is used to mean ``is able to,'' as distinguished from
``may.''
(9) Examples are given by way of illustration and further
explanation. They are not inclusive lists; they do not limit options.
(10) Analysis, as a paragraph heading, signals more detailed
guidance as to the type of discussion and examination an FMP should
contain to demonstrate compliance with the standard in question.
(11) Determine is used when referring to OY.
(12) Adjust is used when establishing a deviation from MSY for
biological reasons, such as in establishing ABC, TAC, or EY.
(13) Modify is used when the deviation from MSY is for the purpose
of determining OY, in accord with relevant economic, social, or
ecological factors.
Sec. 600.310 National Standard 1--Optimum Yield.
(a) Standard 1. Conservation and management measures shall prevent
overfishing while achieving, on a continuing basis, the OY from each
fishery for the U.S. fishing industry.
(b) General. The determination of OY is a decisional mechanism for
resolving the Magnuson Act's multiple purposes and policies, for
implementing an FMP's objectives, and for balancing the various
interests that comprise the national welfare. OY is based on MSY,
[[Page 32549]]
or on MSY as it may be adjusted under paragraph (d)(3) of this section.
The most important limitation on the specification of OY is that the
choice of OY--and the conservation and management measures proposed to
achieve it--must prevent overfishing.
(c) Overfishing. (1) Overfishing is a level or rate of fishing
mortality that jeopardizes the long-term capacity of a stock or stock
complex to produce MSY on a continuing basis. Each FMP must specify, to
the maximum extent possible, an objective and measurable definition of
overfishing for each stock or stock complex covered by that FMP, and
provide an analysis of how the definition was determined and how it
relates to reproductive potential.
(2) The definition of overfishing for a stock or stock complex may
be developed or expressed in terms of a minimum level of spawning
biomass (``threshold''); maximum level or rate of fishing mortality; or
formula, model, or other measurable standard designed to ensure the
maintenance of the stock's productive capacity. Overfishing must be
defined in a way to enable the Council and the Secretary to monitor and
evaluate the condition of the stock or stock complex relative to the
definition.
(3) Different fishing patterns can produce a variety of effects on
local and areawide abundance, availability, size, and age composition
of a stock. Some of these fishing patterns have been called ``growth,''
``localized,'' or ``pulse'' overfishing; however, these patterns are
not necessarily overfishing under the national standard 1 definition,
which focuses on recruitment and long-term reproductive capacity. (Also
see paragraph (c)(6)(v)).
(4) Overfishing definitions must be based on the best scientific
information available. Councils must build into the definition
appropriate consideration of risk, taking into account uncertainties in
estimating domestic harvest, stock conditions, or the effects of
environmental factors (also see Sec. 600.335). In cases where
scientific data are severely limited, the Councils' informed judgment
must be used, and effort should be directed to identifying and
gathering the needed data.
(5) Secretarial approval or disapproval of the overfishing
definition will be based on consideration of whether the proposal:
(i) Has sufficient scientific merit.
(ii) Is likely to result in effective Council action to prevent the
stock from closely approaching or reaching an overfished status.
(iii) Provides a basis for objective measurement of the status of
the stock against the definition.
(iv) Is operationally feasible.
(6) In addition to a specific definition of overfishing for each
stock or stock complex, an FMP must contain management measures
necessary to prevent overfishing.
(i) If overfishing is defined in terms of a threshold biomass
level, the Council must ensure that fishing effort does not cause
spawning biomass to fall and remain below that threshold.
(ii) If overfishing is defined in terms of a maximum fishing
mortality rate, the Council must ensure that fishing effort on that
stock does not cause the maximum rate to be exceeded.
(iii) If data indicate that an overfished condition exists, a
program must be established for rebuilding the stock over a period of
time specified by the Council and acceptable to the Secretary.
(iv) If data indicate that a stock or stock complex is approaching
an overfished condition, the Council should identify actions or
combination of actions to be undertaken in response.
(v) Depending on the objectives of a particular FMP and the
specific definition of overfishing established for the stock or stock
complex under management, a Council may recommend measures to prevent
or permit pulse, localized, or growth overfishing.
(7) Significant adverse alterations in environment/habitat
conditions increase the possibility that fishing effort will contribute
to a stock collapse. Care should be taken to identify the cause of any
downward trends in spawning stock sizes or average annual recruitment.
(i) Whether these trends are caused by environmental changes or by
fishing effort, the only direct control provided by the Magnuson Act is
to reduce fishing mortality.
(ii) Unless the Council asserts, as supported by appropriate
evidence, that reduced fishing effort would not alleviate the problem,
the FMP must include measures to reduce fishing mortality, regardless
of the cause of the low population level.
(iii) If manmade environmental changes are contributing to the
downward trends, in addition to controlling effort, Councils should
recommend restoration of habitat and other ameliorative programs, to
the extent possible, and consider whether to take action under section
302(i) of the Magnuson Act.
(8) There are certain limited exceptions to the requirement to
prevent overfishing. Harvesting the major component of a mixed fishery
at its optimum level may result in the overfishing of a minor (smaller
or less valuable) stock component in the fishery. A Council may decide
to permit this type of overfishing if it is demonstrated by analysis
(paragraph (f)(5) of this section) that it will result in net benefits
to the Nation, and if the Council's action will not cause any stock to
require protection under the ESA.
(9) All FMPs should contain a definition of overfishing for the
stock or stock complex managed under the affected FMP.
(d) MSY. (1) MSY is the largest average annual catch or yield that
can be taken over a significant period of time from each stock under
prevailing ecological and environmental conditions.
(2) MSY may be presented as a range of values. One MSY may be
specified for a related group of species in a mixed-species fishery.
Since MSY is a long-term average, it need not be specified annually,
but must be based on the best scientific information available.
(3) MSY may be only the starting point in providing a realistic
biological description of allowable fishery removals. MSY may need to
be adjusted because of environmental factors, stock peculiarities, or
other biological variables, prior to the determination of OY. An
example of such an adjustment is determination of ABC.
(e) ABC. (1) ABC is a preliminary description of the acceptable
harvest (or range of harvests) for a given stock or stock complex. Its
derivation focuses on the status and dynamics of the stock,
environmental conditions, other ecological factors, and prevailing
technological characteristics of the fishery.
(2) When ABC is used, its specification constitutes the first step
in deriving OY from MSY. Unless the best scientific information
available indicates otherwise (see Sec. 600.315, ABC should be no
higher than the product of the stock's natural mortality rate and the
biomass of the exploitable stock. If a threshold has been specified for
the stock, ABC must equal zero when the stock is at or below that
threshold (also see paragraph (c)(2) of this section). ABC may be
expressed in numeric or nonnumeric terms.
(f) OY--(1) Definition. The term ``optimum'' with respect to the
yield from a fishery, means the amount of fish that will provide the
greatest overall benefit to the Nation, with particular reference to
food production and recreational opportunities; and that is prescribed
as such on the basis of the MSY from each fishery, as modified by
[[Page 32550]]
any relevant economic, social, or ecological factors (section 3(21)(b)
of the Magnuson Act).
(2) Values in determination. In determining the greatest benefit to
the Nation, two values that should be weighed are food production and
recreational opportunities (section 3(21)(a) of the Magnuson Act). They
should receive serious attention as measures of benefit when
considering the economic, ecological, or social factors used in
modifying MSY to obtain OY.
(i) Food production encompasses the goals of providing seafood to
consumers, maintaining an economically viable fishery, and utilizing
the capacity of U.S. fishery resources to meet nutritional needs.
(ii) Recreational opportunities includes recognition of the
importance of the quality of the recreational fishing experience, and
of the contribution of recreational fishing to the national, regional,
and local economies and food supplies.
(3) Factors relevant to OY. The Magnuson Act's definition of OY
identifies three categories of factors to be used in modifying MSY to
arrive at OY: Economic, social, and ecological (section 3(21)(b) of the
Magnuson Act). Not every factor will be relevant in every fishery. For
some fisheries, insufficient information may be available with respect
to some factors to provide a basis for corresponding modifications to
MSY.
(i) Economic factors. Examples are promotion of domestic fishing,
development of unutilized or underutilized fisheries, satisfaction of
consumer and recreational needs, and encouragement of domestic and
export markets for U.S.-harvested fish. Some other factors that may be
considered are the value of fisheries, the level of capitalization,
operating costs of vessels, alternate employment opportunities, and
economies of coastal areas.
(ii) Social factors. Examples are enjoyment gained from
recreational fishing, avoidance of gear conflicts and resulting
disputes, preservation of a way of life for fishermen and their
families, and dependence of local communities on a fishery. Among other
factors that may be considered are the cultural place of subsistence
fishing, obligations under Indian treaties, and worldwide nutritional
needs.
(iii) Ecological factors. Examples are the vulnerability of
incidental or unregulated species in a mixed-species fishery, predator-
prey or competitive interactions, and dependence of marine mammals and
birds or endangered species on a stock of fish. Equally important are
environmental conditions that stress marine organisms, such as natural
and manmade changes in wetlands or nursery grounds, and effects of
pollutants on habitat and stocks.
(4) Specification. (i) The amount of fish that constitutes the OY
need not be expressed in terms of numbers or weight of fish. The
economic, social, or ecological modifications to MSY may be expressed
by describing fish having common characteristics, the harvest of which
provides the greatest overall benefit to the Nation. For instance, OY
may be expressed as a formula that converts periodic stock assessments
into quotas or guideline harvest levels for recreational, commercial,
and other fishing. OY may be defined in terms of an annual harvest of
fish or shellfish having a minimum weight, length, or other
measurement. OY may also be expressed as an amount of fish taken only
in certain areas, or in certain seasons, or with particular gear, or by
a specified amount of fishing effort. In the case of a mixed-species
fishery, the incidental-species OY may be a function of the directed
catch, or absorbed into an OY for related species.
(ii) If a numerical OY is chosen, a range or average may be
specified.
(iii) In a fishery where there is a significant discard component,
the OY may either include or exclude discards, consistent with the
other yield determinations.
(iv) The OY specification can be converted into an annual numerical
estimate to establish any TALFF and to analyze impacts of the
management regime. There should be a mechanism in an FMP for periodic
reassessment of the OY specification, so that it is responsive to
changing circumstances in the fishery.
(v) The determination of OY requires a specification of MSY.
However, even where sufficient scientific data as to the biological
characteristics of the stock do not exist, or the period of
exploitation or investigation has not been long enough for adequate
understanding of stock dynamics, or where frequent large-scale
fluctuations in stock size make this concept of limited value, the OY
should be based on the best scientific information available.
(5) Analysis. An FMP must contain an analysis of how its OY
specification was determined (section 303(a)(3) of the Magnuson Act).
It should relate the explanation of overfishing in paragraph (c) of
this section to conditions in the particular fishery, and explain how
its choice of OY and conservation and management measures will prevent
overfishing in that fishery. If overfishing is permitted under
paragraph (c)(8) of this section, the analysis must contain a
justification in terms of overall benefits and an assessment of the
risk of the species or stock component reaching a threatened or
endangered status. A Council must identify those economic, social, and
ecological factors relevant to management of a particular fishery, then
evaluate them to arrive at the modification (if any) of MSY. The choice
of a particular OY must be carefully defined and documented to show
that the OY selected will produce the greatest benefit to the Nation.
(g) OY as a target. (1) The specification of OY in an FMP is not
automatically a quota or ceiling, although quotas may be derived from
the OY, where appropriate. OY is a target or goal; an FMP must contain
conservation and management measures, and provisions for information
collection, that are designed to achieve OY. These measures should
allow for practical and effective implementation and enforcement of the
management regime, so that the harvest is allowed to reach, but not to
exceed OY by a substantial amount. The Secretary has an obligation to
implement and enforce the FMP so that OY is achieved. If management
measures prove unenforceable--or too restrictive, or not rigorous
enough to realize OY--they should be modified; an alternative is to
reexamine the adequacy of the OY specification.
(2) Exceeding OY does not necessarily constitute overfishing,
although they might coincide. Even if no overfishing resulted,
continual harvest at a level above a fixed-value OY would violate
National Standard 1, because OY was exceeded (not achieved) on a
continuing basis.
(3) Part of the OY may be held as a reserve to allow for
uncertainties in estimates of stock size and of DAH or to solve
operational problems in achieving (but not exceeding) OY. If an OY
reserve is established, an adequate mechanism should be included in the
FMP to permit timely release of the reserve to domestic or foreign
fishermen, if necessary.
(h) OY and foreign fishing. Section 201(d) of the Magnuson Act
provides that fishing by foreign nations is limited to that portion of
the OY that will not be harvested by vessels of the United States.
(1) DAH. Councils must consider the capacity of, and the extent to
which, U.S. vessels will harvest the OY on an annual basis. Estimating
the amount that U.S. fishing vessels will actually harvest is required
to determine the surplus.
[[Page 32551]]
(2) DAP. Each FMP must identify the capacity of U.S. processors. It
must also identify the amount of DAP, which is the sum of two
estimates:
(i) The amount of U.S. harvest that domestic processors will
process. This estimate may be based on historical performance and on
surveys of the expressed intention of manufacturers to process,
supported by evidence of contracts, plant expansion, or other relevant
information.
(ii) The amount of fish that will be harvested by domestic vessels,
but not processed (e.g., marketed as fresh whole fish, used for private
consumption, or used for bait).
(iii) JVP. When DAH exceeds DAP, the surplus is available for JVP.
JVP is derived from DAH.
Sec. 600.315 National Standard 2--Scientific Information.
(a) Standard 2. Conservation and management measures shall be based
upon the best scientific information available.
(b) FMP development. The fact that scientific information
concerning a fishery is incomplete does not prevent the preparation and
implementation of an FMP (see related Secs. 600.320(d)(2) and
600.340(b).
(1) Scientific information includes, but is not limited to,
information of a biological, ecological, economic, or social nature.
Successful fishery management depends, in part, on the timely
availability, quality, and quantity of scientific information, as well
as on the thorough analysis of this information, and the extent to
which the information is applied. If there are conflicting facts or
opinions relevant to a particular point, a Council may choose among
them, but should justify the choice.
(2) FMPs must take into account the best scientific information
available at the time of preparation. Between the initial drafting of
an FMP and its submission for final review, new information often
becomes available. This new information should be incorporated into the
final FMP where practicable; but it is unnecessary to start the FMP
process over again, unless the information indicates that drastic
changes have occurred in the fishery that might require revision of the
management objectives or measures.
(c) FMP implementation. (1) An FMP must specify whatever
information fishermen and processors will be required or requested to
submit to the Secretary. Information about harvest within state
boundaries, as well as in the EEZ, may be collected if it is needed for
proper implementation of the FMP and cannot be obtained otherwise. The
FMP should explain the practical utility of the information specified
in monitoring the fishery, in facilitating inseason management
decisions, and in judging the performance of the management regime; it
should also consider the effort, cost, or social impact of obtaining
it.
(2) An FMP should identify scientific information needed from other
sources to improve understanding and management of the resource and the
fishery.
(3) The information submitted by various data suppliers about the
stocks(s) throughout its range or about the fishery should be
comparable and compatible, to the maximum extent possible.
(d) FMP amendment. FMPs should be amended on a timely basis, as new
information indicates the necessity for change in objectives or
management measures.
(e) SAFE Report. (1) The SAFE report is a document or set of
documents that provides Councils with a summary of the most recent
biological condition of species in the FMU, and the social and economic
condition of the recreational and commercial fishing interests and the
fish processing industries. It summarizes, on a periodic basis, the
best available scientific information concerning the past, present, and
possible future condition of the stocks and fisheries being managed
under Federal regulation.
(i) The Secretary has the responsibility to assure that a SAFE
report or similar document is prepared, reviewed annually, and changed
as necessary for each FMP. The Secretary or Councils may utilize any
combination of talent from Council, state, Federal, university, or
other sources to acquire and analyze data and produce the SAFE report.
(ii) The SAFE report provides information to the Councils for
determining annual harvest levels from each stock, documenting
significant trends or changes in the resource and fishery over time,
and assessing the relative success of existing state and Federal
fishery management programs. In addition, the SAFE report may be used
to update or expand previous environmental and regulatory impact
documents, and ecosystem and habitat descriptions.
(iii) Each SAFE report must be scientifically based, and cite data
sources and interpretations.
(2) Each SAFE report should contain information on which to base
harvest specifications.
(3) Each SAFE report should contain information on which to assess
the social and economic condition of the persons and businesses that
rely on the use of fish resources, including fish processing
industries.
(4) Each SAFE report may contain additional economic, social, and
ecological information pertinent to the success of management or the
achievement of objectives of each FMP.
Sec. 600.320 National Standard 3--Management Units.
(a) Standard 3. To the extent practicable, an individual stock of
fish shall be managed as a unit throughout its range, and interrelated
stocks of fish shall be managed as a unit or in close coordination.
(b) General. The purpose of this standard is to induce a
comprehensive approach to fishery management. The geographic scope of
the fishery, for planning purposes, should cover the entire range of
the stocks(s) of fish, and not be overly constrained by political
boundaries. Wherever practicable, an FMP should seek to manage
interrelated stocks of fish.
(c) Unity of management. Cooperation and understanding among
entities concerned with the fishery (e.g., Councils, states, Federal
Government, international commissions, foreign nations) are vital to
effective management. Where management of a fishery involves multiple
jurisdictions, coordination among the several entities should be sought
in the development of an FMP. Where a range overlaps Council areas, one
FMP to cover the entire range is preferred. The Secretary designates
which Council(s) will prepare the FMP, under section 304(f) of the
Magnuson Act.
(d) Management unit. The term ``management unit'' means a fishery
or that portion of a fishery identified in an FMP as relevant to the
FMP's management objectives.
(1) Basis. The choice of a management unit depends on the focus of
the FMP's objectives, and may be organized around biological,
geographic, economic, technical, social, or ecological perspectives.
For example:
(i) Biological--could be based on a stock(s) throughout its range.
(ii) Geographic--could be an area.
(iii) Economic--could be based on a fishery supplying specific
product forms.
(iv) Technical--could be based on a fishery utilizing a specific
gear type or similar fishing practices.
(v) Social--could be based on fishermen as the unifying element,
such as when the fishermen pursue different
[[Page 32552]]
species in a regular pattern throughout the year.
(vi) Ecological--could be based on species that are associated in
the ecosystem or are dependent on a particular habitat.
(2) Conservation and management measures. FMPs should include
conservation and management measures for that part of the management
unit within U.S. waters, although the Secretary can ordinarily
implement them only within the EEZ. The measures need not be identical
for each geographic area within the management unit, if the FMP
justifies the differences. A management unit may contain, in addition
to regulated species, stocks of fish for which there is not enough
information available to specify MSY and OY or to establish management
measures, so that data on these species may be collected under the FMP.
(e) Analysis. To document that an FMP is as comprehensive as
practicable, it should include discussions of the following:
(1) The range and distribution of the stocks, as well as the
patterns of fishing effort and harvest.
(2) Alternative management units and reasons for selecting a
particular one. A less-than-comprehensive management unit may be
justified if, for example, complementary management exits or is planned
for a separate geographic area or for a distinct use of the stocks, or
if the unmanaged portion of the resource is immaterial to proper
management.
(3) Management activities and habitat programs of adjacent states
and their effects on the FMP's objectives and management measures.
Where state action is necessary to implement measures within state
waters to achieve FMP objectives, the FMP should identify what state
action is necessary, discuss the consequences of state inaction or
contrary action, and make appropriate recommendations. The FMP should
also discuss the impact that Federal regulations will have on state
management activities.
(4) Management activities of other countries having an impact on
the fishery, and how the FMP's management measures are designed to take
into account these impacts. International boundaries may be dealt with
in several ways. For example:
(i) By limiting the management unit's scope to that portion of the
stock found in U.S. waters;
(ii) By estimating MSY for the entire stock and then basing the
determination of OY for the U.S. fishery on the portion of the stock
within U.S. waters; or
(iii) By referring to treaties or cooperative agreements.
Sec. 600.325 National Standard 4--Allocations.
(a) Standard 4. Conservation and management measures shall not
discriminate between residents of different states. If it becomes
necessary to allocate or assign fishing privileges among various U.S.
fishermen, such allocation shall be:
(1) Fair and equitable to all such fishermen.
(2) Reasonably calculated to promote conservation.
(3) Carried out in such manner that no particular individual,
corporation, or other entity acquires an excessive share of such
privileges.
(b) Discrimination among residents of different states. An FMP may
not differentiate among U.S. citizens, nationals, resident aliens, or
corporations on the basis of their state of residence. An FMP may not
incorporate or rely on a state statute or regulation that discriminates
against residents of another state. Conservation and management
measures that have different effects on persons in various geographic
locations are permissible if they satisfy the other guidelines under
Standard 4. Examples of these precepts are:
(1) An FMP that restricted fishing in the EEZ to those holding a
permit from state X would violate Standard 4 if state X issued permits
only to its own citizens.
(2) An FMP that closed a spawning ground might disadvantage
fishermen living in the state closest to it, because they would have to
travel farther to an open area, but the closure could be justified
under Standard 4 as a conservation measure with no discriminatory
intent.
(c) Allocation of fishing privileges. An FMP may contain management
measures that allocate fishing privileges if such measures are
necessary or helpful in furthering legitimate objectives or in
achieving the OY, and if the measures conform with paragraphs (c)(3)(i)
through (c)(3)(iii) of this section.
(1) Definition. An ``allocation'' or ``assignment'' of fishing
privileges is a direct and deliberate distribution of the opportunity
to participate in a fishery among identifiable, discrete user groups or
individuals. Any management measure (or lack of management) has
incidental allocative effects, but only those measures that result in
direct distributions of fishing privileges will be judged against the
allocation requirements of Standard 4. Adoption of an FMP that merely
perpetuates existing fishing practices may result in an allocation, if
those practices directly distribute the opportunity to participate in
the fishery. Allocations of fishing privileges include, for example,
per-vessel catch limits, quotas by vessel class and gear type,
different quotas or fishing seasons for recreational and commercial
fishermen, assignment of ocean areas to different gear users, and
limitation of permits to a certain number of vessels or fishermen.
(2) Analysis of allocations. Each FMP should contain a description
and analysis of the allocations existing in the fishery and of those
made in the FMP. The effects of eliminating an existing allocation
system should be examined. Allocation schemes considered, but rejected
by the Council, should be included in the discussion. The analysis
should relate the recommended allocations to the FMP's objectives and
OY specification, and discuss the factors listed in paragraph (c)(3) of
this section.
(3) Factors in making allocations. An allocation of fishing
privileges must be fair and equitable, must be reasonably calculated to
promote conservation, and must avoid excessive shares. These tests are
explained in paragraphs (c)(3)(i) through (c)(3)(iii) of this section:
(i) Fairness and equity. (A) An allocation of fishing privileges
should be rationally connected to the achievement of OY or with the
furtherance of a legitimate FMP objective. Inherent in an allocation is
the advantaging of one group to the detriment of another. The motive
for making a particular allocation should be justified in terms of the
objectives of the FMP; otherwise, the disadvantaged user groups or
individuals would suffer without cause. For instance, an FMP objective
to preserve the economic status quo cannot be achieved by excluding a
group of long-time participants in the fishery. On the other hand,
there is a rational connection between an objective of harvesting
shrimp at their maximum size and closing a nursery area to trawling.
(B) An allocation of fishing privileges may impose a hardship on
one group if it is outweighed by the total benefits received by another
group or groups. An allocation need not preserve the status quo in the
fishery to qualify as ``fair and equitable,'' if a restructuring of
fishing privileges would maximize overall benefits. The Council should
make an initial estimate of the relative benefits and hardships imposed
by the allocation, and compare its consequences with those of
alternative allocation schemes, including the status quo. Where
relevant, judicial guidance and government policy concerning the rights
of treaty Indians and aboriginal
[[Page 32553]]
Americans must be considered in determining whether an allocation is
fair and equitable.
(ii) Promotion of conservation. Numerous methods of allocating
fishing privileges are considered ``conservation and management''
measures under section 303 of the Magnuson Act. An allocation scheme
may promote conservation by encouraging a rational, more easily managed
use of the resource. Or, it may promote conservation (in the sense of
wise use) by optimizing the yield, in terms of size, value, market mix,
price, or economic or social benefit of the product.
(iii) Avoidance of excessive shares. An allocation scheme must be
designed to deter any person or other entity from acquiring an
excessive share of fishing privileges, and to avoid creating conditions
fostering inordinate control, by buyers or sellers, that would not
otherwise exist.
(iv) Other factors. In designing an allocation scheme, a Council
should consider other factors relevant to the FMP's objectives.
Examples are economic and social consequences of the scheme, food
production, consumer interest, dependence on the fishery by present
participants and coastal communities, efficiency of various types of
gear used in the fishery, transferability of effort to and impact on
other fisheries, opportunity for new participants to enter the fishery,
and enhancement of opportunities for recreational fishing.
Sec. 600.330 National Standard 5--Efficiency.
(a) Standard 5. Conservation and management measures shall, where
practicable, promote efficiency in the utilization of fishery
resources; except that no such measure shall have economic allocation
as its sole purpose.
(b) Efficiency in the utilization of resources--(1) General. The
term ``utilization'' encompasses harvesting, processing, and marketing,
since management decisions affect all three sectors of the industry.
The goal of promoting efficient utilization of fishery resources may
conflict with other legitimate social or biological objectives of
fishery management. In encouraging efficient utilization of fishery
resources, this standard highlights one way that a fishery can
contribute to the Nation's benefit with the least cost to society:
Given a set of objectives for the fishery, an FMP should contain
management measures that result in as efficient a fishery as is
practicable or desirable.
(2) Efficiency. In theory, an efficient fishery would harvest the
OY with the minimum use of economic inputs such as labor, capital,
interest, and fuel. Efficiency in terms of aggregate costs then becomes
a conservation objective, where ``conservation'' constitutes wise use
of all resources involved in the fishery, not just fish stocks.
(i) In an FMP, management measures may be proposed that allocate
fish among different groups of individuals or establish a system of
property rights. Alternative measures examined in searching for an
efficient outcome will result in different distributions of gains and
burdens among identifiable user groups. An FMP should demonstrate that
management measures aimed at efficiency do not simply redistribute
gains and burdens without an increase in efficiency.
(ii) Management regimes that allow a fishery to operate at the
lowest possible cost (e.g., fishing effort, administration, and
enforcement) for a particular level of catch and initial stock size are
considered efficient. Restrictive measures that unnecessarily raise any
of those costs move the regime toward inefficiency. Unless the use of
inefficient techniques or the creation of redundant fishing capacity
contributes to the attainment of other social or biological objectives,
an FMP may not contain management measures that impede the use of cost-
effective techniques of harvesting, processing, or marketing, and
should avoid creating strong incentives for excessive investment in
private sector fishing capital and labor.
(c) Limited access. A ``system for limiting access,'' which is an
optional measure under section 303(b) of the Magnuson Act, is a type of
allocation of fishing privileges that may be used to promote economic
efficiency or conservation. For example, limited access may be used to
combat overfishing, overcrowding, or overcapitalization in a fishery to
achieve OY. In an unutilized or underutilized fishery, it may be used
to reduce the chance that these conditions will adversely affect the
fishery in the future, or to provide adequate economic return to
pioneers in a new fishery. In some cases, limited entry is a useful
ingredient of a conservation scheme, because it facilitates application
and enforcement of other management measures.
(1) Definition. Limited access (or limited entry) is a management
technique that attempts to limit units of effort in a fishery, usually
for the purpose of reducing economic waste, improving net economic
return to the fishermen, or capturing economic rent for the benefit of
the taxpayer or the consumer. Common forms of limited access are
licensing of vessels, gear, or fishermen to reduce the number of units
of effort, and dividing the total allowable catch into fishermen's
quotas (a stock-certificate system). Two forms (i.e., Federal fees for
licenses or permits in excess of administrative costs, and taxation)
are not permitted under the Magnuson Act.
(2) Factors to consider. The Magnuson Act ties the use of limited
access to the achievement of OY. An FMP that proposes a limited access
system must consider the factors listed in section 303(b)(6) of the
Magnuson Act and in Sec. 600.325(c)(3). In addition, it should consider
the criteria for qualifying for a permit, the nature of the interest
created, whether to make the permit transferable, and the Magnuson
Act's limitation on returning economic rent to the public under section
304(d)(1). The FMP should also discuss the costs of achieving an
appropriate distribution of fishing privileges.
(d) Analysis. An FMP should discuss the extent to which
overcapitalization, congestion, economic waste, and inefficient
techniques in the fishery reduce the net benefits derived from the
management unit and prevent the attainment and appropriate allocation
of OY. It should also explain, in terms of the FMP's objectives, any
restriction placed on the use of efficient techniques of harvesting,
processing, or marketing. If, during FMP development, the Council
considered imposing a limited-entry system, the FMP should analyze the
Council's decision to recommend or reject limited access as a technique
to achieve efficient utilization of the resources of the fishing
industry.
(e) Economic allocation. This standard prohibits only those
measures that distribute fishery resources among fishermen on the basis
of economic factors alone, and that have economic allocation as their
only purpose. Where conservation and management measures are
recommended that would change the economic structure of the industry or
the economic conditions under which the industry operates, the need for
such measures must be justified in light of the biological, ecological,
and social objectives of the FMP, as well as the economic objectives.
Sec. 600.335 National Standard 6--Variations and Contingencies.
(a) Standard 6. Conservation and management measures shall take
into account and allow for variations among, and contingencies in,
fisheries, fishery resources, and catches.
(b) Conservation and management. Each fishery exhibits unique
uncertainties. The phrase ``conservation and management'' implies the
wise use
[[Page 32554]]
of fishery resources through a management regime that includes some
protection against these uncertainties. The particular regime chosen
must be flexible enough to allow timely response to resource, industry,
and other national and regional needs. Continual data acquisition and
analysis will help the development of management measures to compensate
for variations and to reduce the need for substantial buffers.
Flexibility in the management regime and the regulatory process will
aid in responding to contingencies.
(c) Variations. (1) In fishery management terms, variations arise
from biological, social, and economic occurrences, as well as from
fishing practices. Biological uncertainties and lack of knowledge can
hamper attempts to estimate stock size and strength, stock location in
time and space, environmental/habitat changes, and ecological
interactions. Economic uncertainty may involve changes in foreign or
domestic market conditions, changes in operating costs, drifts toward
overcapitalization, and economic perturbations caused by changed
fishing patterns. Changes in fishing practices, such as the
introduction of new gear, rapid increases or decreases in harvest
effort, new fishing strategies, and the effects of new management
techniques, may also create uncertainties. Social changes could involve
increases or decreases in recreational fishing, or the movement of
people into or out of fishing activities due to such factors as age or
educational opportunities.
(2) Every effort should be made to develop FMPs that discuss and
take into account these vicissitudes. To the extent practicable, FMPs
should provide a suitable buffer in favor of conservation. Allowances
for uncertainties should be factored into the various elements of an
FMP. Examples are:
(i) Reduce OY. Lack of scientific knowledge about the condition of
a stock(s) could be reason to reduce OY.
(ii) Establish a reserve. Creation of a reserve may compensate for
uncertainties in estimating domestic harvest, stock conditions, or
environmental factors.
(iii) Adjust management techniques. In the absence of adequate data
to predict the effect of a new regime, and to avoid creating unwanted
variations, a Council could guard against producing drastic changes in
fishing patterns, allocations, or practices.
(iv) Highlight habitat conditions. FMPs may address the impact of
pollution and the effects of wetland and estuarine degradation on the
stocks of fish; identify causes of pollution and habitat degradation
and the authorities having jurisdiction to regulate or influence such
activities; propose recommendations that the Secretary will convey to
those authorities to alleviate such problems; and state the views of
the Council on unresolved or anticipated issues.
(d) Contingencies. Unpredictable events--such as unexpected
resource surges or failures, fishing effort greater than anticipated,
disruptive gear conflicts, climatic conditions, or environmental
catastrophes--are best handled by establishing a flexible management
regime that contains a range of management options through which it is
possible to act quickly without amending the FMP or even its
regulations.
(1) The FMP should describe the management options and their
consequences in the necessary detail to guide the Secretary in
responding to changed circumstances, so that the Council preserves its
role as policy-setter for the fishery. The description should enable
the public to understand what may happen under the flexible regime, and
to comment on the options.
(2) FMPs should include criteria for the selection of management
measures, directions for their application, and mechanisms for timely
adjustment of management measures comprising the regime. For example,
an FMP could include criteria that allow the Secretary to open and
close seasons, close fishing grounds, or make other adjustments in
management measures.
(3) Amendment of a flexible FMP would be necessary when
circumstances in the fishery change substantially, or when a Council
adopts a different management philosophy and objectives.
Sec. 600.340 National Standard 7--Costs and Benefits.
(a) Standard 7. Conservation and management measures shall, where
practicable, minimize costs and avoid unnecessary duplication.
(b) Necessity of Federal management--(1) General. The principle
that not every fishery needs regulation is implicit in this standard.
The Magnuson Act does not require Councils to prepare FMPs for each and
every fishery--only for those where regulation would serve some useful
purpose and where the present or future benefits of regulation would
justify the costs. For example, the need to collect data about a
fishery is not, by itself, adequate justification for preparation of an
FMP, since there are less costly ways to gather the data (see
Sec. 600.320(d)(2). In some cases, the FMP preparation process itself,
even if it does not culminate in a document approved by the Secretary,
can be useful in supplying a basis for management by one or more
coastal states.
(2) Criteria. In deciding whether a fishery needs management
through regulations implementing an FMP, the following general factors
should be considered, among others:
(i) The importance of the fishery to the Nation and to the regional
economy.
(ii) The condition of the stock or stocks of fish and whether an
FMP can improve or maintain that condition.
(iii) The extent to which the fishery could be or is already
adequately managed by states, by state/Federal programs, by Federal
regulations pursuant to FMPs or international commissions, or by
industry self-regulation, consistent with the policies and standards of
the Magnuson Act.
(iv) The need to resolve competing interests and conflicts among
user groups and whether an FMP can further that resolution.
(v) The economic condition of a fishery and whether an FMP can
produce more efficient utilization.
(vi) The needs of a developing fishery, and whether an FMP can
foster orderly growth.
(vii) The costs associated with an FMP, balanced against the
benefits (see paragraph (d) of this section as a guide).
(c) Alternative management measures. Management measures should not
impose unnecessary burdens on the economy, on individuals, on private
or public organizations, or on Federal, state, or local governments.
Factors such as fuel costs, enforcement costs, or the burdens of
collecting data may well suggest a preferred alternative.
(d) Analysis. The supporting analyses for FMPs should demonstrate
that the benefits of fishery regulation are real and substantial
relative to the added research, administrative, and enforcement costs,
as well as costs to the industry of compliance. In determining the
benefits and costs of management measures, each management strategy
considered and its impacts on different user groups in the fishery
should be evaluated. This requirement need not produce an elaborate,
formalistic cost/benefit analysis. Rather, an evaluation of effects and
costs, especially of differences among workable alternatives, including
the status quo, is adequate. If quantitative estimates are not
possible, qualitative estimates will suffice.
(1) Burdens. Management measures should be designed to give
fishermen the greatest possible freedom of action in conducting
business and pursuing recreational opportunities that are consistent
with ensuring wise use of the
[[Page 32555]]
resources and reducing conflict in the fishery. The type and level of
burden placed on user groups by the regulations need to be identified.
Such an examination should include, for example: Capital outlays;
operating and maintenance costs; reporting costs; administrative,
enforcement, and information costs; and prices to consumers. Management
measures may shift costs from one level of government to another, from
one part of the private sector to another, or from the government to
the private sector. Redistribution of costs through regulations is
likely to generate controversy. A discussion of these and any other
burdens placed on the public through FMP regulations should be a part
of the FMP's supporting analyses.
(2) Gains. The relative distribution of gains may change as a
result of instituting different sets of alternatives, as may the
specific type of gain. The analysis of benefits should focus on the
specific gains produced by each alternative set of management measures,
including the status quo. The benefits to society that result from the
alternative management measures should be identified, and the level of
gain assessed.
Subpart E--Confidentiality of Statistics
Sec. 600.405 Types of statistics covered.
NOAA is authorized under the Magnuson Act and other statutes to
collect proprietary or confidential commercial or financial
information. This part applies to all pertinent data required to be
submitted to the Secretary with respect to any FMP including, but not
limited to, information regarding the type and quantity of fishing gear
used, catch by species in numbers of fish or weight thereof, areas in
which fishing occurred, time of fishing, number of hauls, and the
estimated processing capacity of, and the actual processing capacity
utilized by, U.S. fish processors.
Sec. 600.410 Collection and maintenance of statistics.
(a) General. (1) All statistics required to be submitted to the
Secretary are provided to the Assistant Administrator.
(2) After receipt, the Assistant Administrator will remove all
identifying particulars from the statistics if doing so is consistent
with the needs of NMFS and good scientific practice.
(3) Appropriate safeguards as specified by NOAA Directives, or
other NOAA or NMFS internal procedures, apply to the collection and
maintenance of all statistics, whether separated from identifying
particulars or not, so as to ensure their confidentiality.
(b) Collection agreements with states. (1) The Assistant
Administrator may enter into an agreement with a state authorizing the
state to collect statistics on behalf of the Secretary.
(2) NMFS will not enter into a cooperative collection agreement
with a state unless the state has authority to protect the statistics
from disclosure in a manner at least as protective as these
regulations.
Sec. 600.415 Access to statistics.
(a) General. In determining whether to grant a request for access
to confidential data, the following information will be taken into
consideration (also see Sec. 600.130):
(1) The specific types of data required.
(2) The relevance of the data to conservation and management
issues.
(3) The duration of time access will be required: continuous,
infrequent, or one-time.
(4) An explanation of why the availability of aggregate or non-
confidential summaries of data from other sources would not satisfy the
requested needs.
(b) Federal employees. Statistics submitted as a requirement of an
FMP and that reveal the identity of the submitter will only be
accessible to the following:
(1) Personnel within NMFS responsible for the collection,
processing, and storage of the statistics.
(2) Federal employees who are responsible for FMP development,
monitoring, and enforcement.
(3) Personnel within NMFS performing research that requires
confidential statistics.
(4) Other NOAA personnel on a demonstrable need-to-know basis.
(5) NOAA/NMFS contractors or grantees who require access to
confidential statistics to perform functions authorized by a Federal
contract or grant.
(c) State personnel. Upon written request, confidential statistics
will only be accessible if:
(1) State employees demonstrate a need for confidential statistics
for use in fishery conservation and management.
(2) The state has entered into a written agreement between the
Assistant Administrator and the head of the state's agency that manages
marine and/or anadromous fisheries. The agreement shall contain a
finding by the Assistant Administrator that the state has
confidentiality protection authority comparable to the Magnuson Act and
that the state will exercise this authority to limit subsequent access
and use of the data to fishery management and monitoring purposes.
(d) Councils. Upon written request by the Council Executive
Director, access to confidential data will be granted to:
(1) Council employees who are responsible for FMP development and
monitoring.
(2) A Council for use by the Council for conservation and
management purposes, with the approval of the Assistant Administrator.
In addition to the information described in paragraph (a) of this
section, the Assistant Administrator will consider the following in
deciding whether to grant access:
(i) The possibility that Council members might gain personal or
competitive advantage from access to the data.
(ii) The possibility that the suppliers of the data would be placed
at a competitive disadvantage by public disclosure of the data at
Council meetings or hearings.
(3) A contractor of the Council for use in such analysis or studies
necessary for conservation and management purposes, with approval of
the Assistant Administrator and execution of an agreement with NMFS as
described by NOAA Administrative Order (NAO) 216-100.
(e) Prohibitions. Persons having access to these data are
prohibited from unauthorized use or disclosure and are subject to the
provisions of 18 U.S.C. 1905, 16 U.S.C. 1857, and NOAA/NMFS internal
procedures, including NAO 216-100.
Sec. 600.420 Control system.
(a) The Assistant Administrator maintains a control system to
protect the identity of submitters of statistics required by an FMP.
The control system:
(1) Identifies those persons who have access to the statistics.
(2) Contains procedures to limit access to confidential data to
authorized users.
(3) Provides for safeguarding the data.
(b) This system requires that all persons who have authorized
access to the data be informed of the confidentiality of the data.
These persons are required to sign a statement that they:
(1) Have been informed that the data are confidential.
(2) Have reviewed and are familiar with the procedures to protect
confidential statistics.
Sec. 600.425 Release of statistics.
(a) The Assistant Administrator will not release to the public any
statistics
[[Page 32556]]
required to be submitted under an FMP in a form that would identify the
submitter, except as required by law.
(b) All requests from the public for statistics submitted in
response to a requirement of an FMP will be processed consistent with
the NOAA FOIA regulations (15 CFR part 903), NAO 205-14, Department of
Commerce Administrative Orders 205-12 and 205-14 and 15 CFR part 4.
(c) NOAA does not release or allow access to confidential
information in its possession to members of Council advisory groups,
except as provided by law.
Subpart F--Foreign Fishing
Sec. 600.501 Vessel permits.
(a) General. (1) Each FFV fishing under the Magnuson Act must have
on board a permit issued under this section, unless it is engaged only
in recreational fishing.
(2) Permits issued under this section do not authorize FFV's or
persons to harass, capture, or kill marine mammals. No marine mammals
may be taken in the course of fishing unless that vessel has on board a
currently valid Authorization Certificate under the MMPA. Regulations
governing the taking of marine mammals incidental to commercial fishing
operations are contained in 50 CFR part 229 of this title.
(b) Responsibility of owners and operators. The owners and
operators of each FFV are jointly and severally responsible for
compliance with the Magnuson Act, the applicable GIFA, this subpart,
and any permit issued under the Magnuson Act and this subpart. The
owners and operators of each FFV bear civil responsibility for the acts
of their employees and agents constituting violations, regardless of
whether the specific acts were authorized or even forbidden by the
employer or principal, and regardless of knowledge concerning the
occurrence.
(c) Activity codes. Permits to fish under a GIFA may be issued by
the Assistant Administrator for the activities described in this
paragraph, but the permits may be modified by regulations of this
subpart, and by the conditions and restrictions attached to the permit
(see paragraphs (e)(1)(v) and (l) of this section). The Assistant
Administrator may issue a permit, as appropriate, for one or more of
the activity codes listed below. The activity codes are described as
follows:
(1) Activity Code 1. Catching, scouting, processing, transshipping,
and supporting foreign vessels. Activity is limited to fish harvested
or to be harvested by foreign vessels in the EEZ.
(2) Activity Code 2. Processing, scouting, transshipping, and
supporting foreign vessels. Activity is limited to fish harvested or to
be harvested by foreign vessels in the EEZ.
(3) Activity Code 3. Transshipping, scouting, and supporting
foreign vessels. Activity is limited to fish harvested or to be
harvested by foreign vessels in the EEZ.
(4) Activity Code 4. Processing, scouting, transshipping, and
supporting U.S. vessels delivering fish to foreign vessels. Activity is
limited to the receipt of unprocessed fish harvested or to be harvested
by U.S. vessels.
(5) Activity Code 5. Transshipping, scouting, and supporting
foreign vessels. Transshipment limited to fish received or to be
received from foreign vessels processing fish from U.S. harvesting
vessels.
(6) Activity Code 6. Transshipping, scouting, and supporting U.S.
vessels. Transshipment limited to U.S.-harvested fish processed on
board U.S. vessels.
(7) Activity Code 7. Processing, transshipping, and supporting
foreign vessels. Activity limited to fish harvested or to be harvested
by foreign vessels seaward of the EEZ.
(8) Activity Code 8. Transshipping and supporting foreign vessels.
Activity is limited to fish harvested or to be harvested seaward of the
EEZ by foreign vessels or fish duly authorized for processing in the
internal waters of one of the states.
(9) Activity Code 9. Supporting U.S. fishing vessels and U.S. fish
processing vessels and any foreign fishing vessels authorized under any
activity code under paragraph (c) of this subpart.
(d) Application. (1) Applications for FFV permits must be submitted
by each foreign nation to the DOS. Application forms are available from
OES/OMC, DOS, Washington, DC. The applicant should allow 90 days for
review and comment by the public, involved governmental agencies, and
appropriate Councils, and for processing before the anticipated date to
begin fishing. The permit application fee must be paid at the time of
application according to Sec. 600.518.
(2) Applicants must provide complete and accurate information
requested on the permit application form.
(3) Applicants for FFV's that will support U.S. vessels in joint
ventures (Activity Code 4) must provide the additional information
specified by the permit application form.
(4) Each foreign nation may substitute one FFV for another by
submitting a new vessel information form and a short explanation of the
reason for the substitution to the DOS. Each substitution is considered
a new application and a new application fee must be paid. NMFS will
promptly process an application for a vessel replacing a permitted FFV
that is disabled or decommissioned, once the DOS has notified the
appropriate Council(s) of the substituted application.
(e) Issuance. (1) Permits may be issued to an FFV by the Assistant
Administrator through the DOS after--
(i) The Assistant Administrator determines that the fishing
described in the application will meet the requirements of the Magnuson
Act and approves the permit application.
(ii) The foreign nation has paid the fees, including any surcharge
fees and provided any assurances required by the Secretary in
accordance with the provisions of Sec. 600.518.
(iii) The foreign nation has appointed an agent.
(iv) The foreign nation has identified a designated representative.
(v) The general ``conditions and restrictions'' of receiving
permits, as required by section 204(b)(7) of the Magnuson Act, and any
``additional restrictions'' attached to the permit for the conservation
and management of fishery resources or to prevent significant
impairment of the national defense or security interests, have been
accepted by the nation issuing the FFV's documents.
(2) NMFS will distribute blank permit forms to the designated
representative while the application is being processed. The designated
representative must ensure that each FFV receives a permit form and
must accurately transmit the permit form and the contents of the permit
to the FFV when it is issued. NMFS may authorize the modification and
use of the previous year's permit forms to be used on an interim basis
in place of the current year's permit forms if the current forms were
not made available to the designated representatives for timely
distribution. The FFV owner or operator must accurately complete the
permit form prior to fishing in the EEZ.
(3) A completed permit form must contain--
(i) The name and IRCS of the FFV and its permit number.
(ii) The permitted fisheries and activity codes.
(iii) The date of issuance and expiration date, if other than
December 31.
(iv) All conditions and restrictions, and any additional
restrictions and
[[Page 32557]]
technical modifications appended to the permit.
(4) Permits are not issued for boats that are launched from larger
vessels. Any enforcement action that results from the activities of a
launched boat will be taken against the permitted vessel.
(f) Duration. A permit is valid from its date of issuance to its
date of expiration, unless it is revoked or suspended or the nation
issuing the FFV's documents does not accept amendments to the permit
made by the Assistant Administrator in accordance with the procedures
of paragraph (l) of this section. The permit will be valid for no
longer than the calendar year in which it was issued.
(g) Transfer. Permits are not transferable or assignable. A permit
is valid only for the FFV to which it is issued.
(h) Display. Each FFV operator must have a properly completed
permit form available on board the FFV when engaged in fishing
activities and must produce it at the request of an authorized officer
or observer.
(i) Suspension and revocation. NMFS may apply sanctions to an FFV's
permit by revoking, suspending, or imposing additional permit
restrictions on the permit under 15 CFR part 904, if the vessel is
involved in the commission of any violation of the Magnuson Act, the
GIFA, or this subpart; if an agent and a designated representative are
not maintained in the United States; if a civil penalty or criminal
fine imposed under the Magnuson Act has become overdue; or as otherwise
specified in the Magnuson Act.
(j) Fees. Permit application fees are described in Sec. 600.518.
(k) Change in application information. (1) The foreign nation must
report, in writing, any change in the information supplied under
paragraph (d) of this section to the Assistant Administrator within 15
calendar days after the date of the change. Failure to report a change
in the ownership from that described in the current application within
the specified time frame voids the permit, and all penalties involved
will accrue to the previous owner.
(2) The Assistant Administrator may make technical modifications or
changes in the permit application requested or reported by a Nation,
such as a change in radio call sign, processing equipment, or tonnage,
which will be effective immediately.
(3) If, in the opinion of the Assistant Administrator, a permit
change requested by a Nation could significantly affect the status of
any fishery resource, such request will be processed as an application
for a new permit under this section.
(4) The Assistant Administrator will notify the designated
representative of any revision that must be made on the permit form as
the result of a permit change.
(5) The vessel owner or operator must record the modification on
the permit form.
(l) Permit amendments. (1) The Assistant Administrator may amend a
permit by adding ``additional restrictions'' for the conservation and
management of fishery resources covered by the permit, or for the
national defense or security if the Assistant Administrator determines
that such interests would be significantly impaired without such
restrictions. Compliance with the added additional restrictions is a
condition of the permit. Violations of added additional restrictions
will be treated as violations of this subpart.
(2) The Assistant Administrator may make proposed additional
restrictions effective immediately, if necessary, to prevent
substantial harm to a fishery resource of the United States, to allow
for the continuation of ongoing fishing operations, or to allow for
fishing to begin at the normal time for opening of the fishery.
(3) The Assistant Administrator will send proposed additional
restrictions to each Nation whose vessels are affected (via the
Secretary of State), to the appropriate Councils, and to the Commandant
of the Coast Guard. NMFS will, at the same time, publish a document of
any significant proposed additional restrictions in the Federal
Register. The document will include a summary of the reasons underlying
the proposal, and the reasons that any proposed additional restrictions
are made effective immediately.
(4) The Nation whose vessels are involved, the owners of the
affected vessels, their representatives, the agencies specified in
paragraph (l)(3) of this section, and the public may submit written
comments on the proposed additional restrictions within 30 days after
publication in the Federal Register.
(5) The Assistant Administrator will make a final decision
regarding the proposed additional restrictions as soon as practicable
after the end of the comment period. The Assistant Administrator will
provide the final additional restrictions to the Nation whose vessels
are affected (via the Secretary of State) according to the procedures
of paragraph (e) of this section. The Assistant Administrator will
include with the final additional restrictions to the Nation, a
response to comments submitted.
(6) Additional restrictions may be modified by following the
procedures of paragraphs (l)(2) through (l)(5) of this section.
Sec. 600.502 Vessel reports.
(a) The operator of each FFV must report the FFV's activities
within the EEZ to the USCG and NMFS as specified in this section.
(b) All reports required by this section must be in English and in
the formats specified in the permit additions and restrictions. Reports
must be delivered via private or commercial communications facilities,
facsimile, or other electronic means acceptable to NMFS and the USCG,
directly to the appropriate NMFS Region or Center and USCG commander.
Weekly reports must also be delivered directly to the appropriate NMFS
Region or Center (see tables 1 and 2 of this section). (The required
reports may be delivered to the closest USCG communication station as
indicated in table 3 of this section or other USCG communication
station only if adequate private or commercial communications
facilities have not been successfully contacted.) Radio reports must be
made via radiotelegraphy, Telex, or facsimile where available. For the
purposes of this section, a message is considered ``transmitted'' when
its receipt is acknowledged by a communications facility and considered
``delivered'' upon its receipt by the offices of the appropriate USCG
commander, NMFS Regional Office, or NMFS Center identified in table 2
of this section. Reports required by this section may be submitted by
the vessel's designated representative; however, the operator of the
FFV is responsible for the correct and timely filing of all required
reports.
(c) Activity reports. The operator of each FFV must report the
FFV's movements and activities before or upon the event, as specified
in this paragraph (c). Appropriate forms, instructions, codes, and
examples are contained in the conditions and restrictions of the FFV's
permit. Each FFV report must contain the following information: The
message identifier ``VESREP'' to indicate it is a vessel activity
report, FFV name, international radio call sign IRCS, date (month and
day based on GMT), time (hour and minute GMT), position (latitude and
longitude to the nearest degree and minute) where required, area (by
fishing area code) where required, the appropriate action code,
confirmation codes where required, and the other
[[Page 32558]]
information specified in paragraphs (c)(1) through (c)(11) of this
section.
(1) ``BEGIN''. Each operator must specify the date, time, position,
and area the FFV will actually ``BEGIN'' fishing in the EEZ and the
species (by species code), product (by product code), and quantity of
all fish and fish products (by product weight to the nearest hundredth
of a metric ton) on board when entering the EEZ (action code
``BEGIN''). The message must be delivered at least 24 hours before the
vessel begins to fish.
(2) ``DEPART''. Each operator must specify the date, time,
position, and area the FFV will ``DEPART'' the EEZ to embark or debark
an observer, to visit a U.S. port, to conduct a joint venture in
internal waters, or to otherwise temporarily leave an authorized
fishing area, but not depart the seaward limit of the EEZ (action code
``DEPART''). The message must be transmitted before the FFV departs the
present fishing area and delivered within 24 hours of its transmittal.
(3) ``RETURN''. Each operator must specify the date, time,
position, and area the FFV will ``RETURN'' to the EEZ following a
temporary departure, and the species (by species code), product (by
product code), and quantity of all fish and fish products (by product
weight to the nearest hundredth of a metric ton) on board that were
received in a joint venture in internal waters (action code
``RETURN''). The message must be transmitted before returning to the
EEZ and delivered within 24 hours of its transmittal.
(4) ``SHIFT''. Each operator must report each SHIFT in fishing area
(as described for each fishery) by specifying the date, time, and
position the FFV will start fishing, and the new area (action code
``SHIFT''). The message must be transmitted before leaving the original
area and delivered within 24 hours of its transmittal. If a foreign
vessel operates within 20 nautical miles (37.04 km) of a fishing area
boundary, its operator may submit in one message the shift reports for
all fishing area shifts occurring during 1 fishing day (0001-2400 GMT).
This message must be transmitted prior to the last shift expected to be
made in the day and delivered within 24 hours of its transmittal.
(5) ``JV OPS''. Each operator must specify the date, time,
position, and area at which the FFV will ``START'' joint venture
operations (action code ``START JV OPS'') or ``END'' joint venture
operations (action code ``END JV OPS''). These reports must be made in
addition to other activity reports made under this section. Each
message must be transmitted before the event and delivered within 24
hours of its transmittal.
(6) ``TRANSFER''. The operator of each FFV that anticipates a
transshipping operation in which the FFV will receive fish or fisheries
products must specify the date, time, position and area the FFV will
conduct the ``TRANSFER'' and the name and IRCS of the other FFV or U.S.
vessel involved (action code ``TRANSFER''). The report must include the
FR Doc. 96-15767 Magnuson Act Provisions; Consolidation and Update of Regulations; Collection-of-Information Approval
permit activity code under which the transfer will be made. The message
must be transmitted prior to the transfer and delivered within 24 hours
of its transmittal. The movement of raw fish from a permitted foreign
catching vessel or, under an Activity Code 4, from a U.S. fishing
vessel to the reporting processing vessel and the return of nets or
codends is not considered a transfer.
(7) ``OFFLOADED''. Each operator must specify the date, time,
position, and area the FFV ``OFFLOADED'' fish or fisheries products TO
another FFV or a U.S. vessel in a transfer, the other FFV's or U.S.
vessel's name, IRCS, Permit Activity Code under which the transfer was
made, species (by species code) and quantity of fish and fisheries
products (by product code and by product weight, to the nearest
hundredth of a metric ton) offloaded (action code ``OFFLOADED TO'').
The message must be transmitted within 12 hours after the transfer is
completed and delivered within 24 hours of its transmittal and before
the FFV ceases fishing in the EEZ.
(8) ``RECEIVED''. Each operator must specify the date, time,
position and area the vessel ``RECEIVED'' fish or fisheries products
FROM another FFV in a transfer, the other FFV's or U.S. vessel's name,
IRCS, Permit Activity Code under which the receipt was made, species
(by species code) and quantity of fish and fisheries products (by
product code and by product weight, to the nearest hundredth of a
metric ton) received (action code ``RECEIVED FROM''). The message must
be transmitted within 12 hours after the transfer is completed and
delivered within 24 hours of its transmittal and before the vessel
ceases fishing in the EEZ.
(9) ``CEASE''. Each operator must specify the date, time, position,
and area the FFV will ``CEASE'' fishing in order to leave the EEZ
(action code ``CEASE''). The message must be delivered at least 24
hours before the FFV's departure.
(10) ``CHANGE''. Each operator must report any ``CHANGE'' TO the
FFV's operations if the position or time of an event specified in an
activity report will vary more than 5 nautical miles (9.26 km) or 4
hours from that previously reported, by sending a revised message
inserting the word ``CHANGE'' in front of the previous report,
repeating the name, IRCS, date, and time of the previous report, adding
the word ``TO'' and the complete revised text of the new report (action
code ``CHANGE TO''). Changes to reports specifying an early beginning
of fishing by an FFV or other changes to reports contained in
paragraphs (c)(1) through (c)(9) of this section must be transmitted
and delivered as if the ``CHANGE'' report were the original message.
(11) ``CANCEL''. Each operator wanting to ``CANCEL'' a previous
report may do so by sending a revised message, and inserting the word
``CANCEL'' in front of the previous report's vessel name, IRCS, date,
time and action code canceled (action code ``CANCEL''). The message
must be transmitted and delivered prior to the date and time of the
event in the original message.
(d) The operator of an FFV will be in violation of paragraphs
(c)(1) through (c)(9) of this section if the FFV does not pass within 5
nautical miles (9.26 km) of the position given in the report within 4
hours of the time given in the report.
(e) The notices required by this section may be provided for
individual or groups of FFV's (on a vessel-by-vessel basis) by
authorized persons. An FFV operator may retransmit reports on the
behalf of another FFV, if authorized by that FFV's operator. This does
not relieve the individual vessel operator of the responsibility of
filing required reports. In these cases, the message format should be
modified so that each line of text under ``VESREP'' is a separate
vessel report.
(f) Weekly reports. (1) The operator of each FFV in the EEZ must
submit appropriate weekly reports through the Nation's designated
representative. The report must arrive at the address and time
specified in paragraph (g) of this section. The reports may be sent by
facsimile or Telex, but a completed copy of the report form must be
mailed or hand delivered to confirm the Telex. Appropriate forms,
instructions, codes, and examples are contained in the conditions and
restrictions of the FFV's permit. Designated representatives may
include more than one vessel report in a facsimile or Telex message, if
the information is submitted on a vessel-by-vessel basis. Requests for
corrections to previous reports must be submitted through the Nation's
designated representative and mailed or hand-delivered, together with a
written explanation of the reasons for the errors. The appropriate
Regional or Science and Research Director may accept or
[[Page 32559]]
reject any correction and initiate any appropriate civil penalty
actions.
(2) Weekly catch report (CATREP). The operator of each FFV must
submit a weekly catch report stating any catch (Activity Code 1) in
round weight of each species or species group allocated to that Nation
by area and days fished in each area for the weekly period Sunday
through Saturday, GMT, as modified by the fishery in which the FFV is
engaged. Foreign vessels delivering unsorted, unprocessed fish to a
processing vessel are not required to submit CATREP's, if that
processing vessel (Activity Code 2) submits consolidated CATREP's for
all fish received during each weekly period. No report is required for
FFV's that do not catch or receive foreign-caught fish during the
reporting period.
(3) Weekly receipts report (RECREP). The operator of each FFV must
submit a weekly report stating any receipts of U.S.-harvested fish in a
joint venture (Activity Code 4) for the weekly period Sunday through
Saturday, GMT, as modified by the fishery in which the FFV is engaged,
for each fishing area, by authorized or prohibited species or species
group; days fish received; round weight retained or returned to the
U.S. fishing vessel; number of codends received; and number of vessels
transferring codends. The report must also include the names of U.S.
fishing vessels transferring codends during the week. No report is
required for FFV's that do not receive any U.S.-harvested fish during
the reporting period.
(4) Marine mammal report (MAMREP). The operator of each FFV must
submit a weekly report stating any incidental catch or receipt of
marine mammals (Activity Codes 1 or 2 and/or 4), the geographical
position caught, the condition of the animal, number caught (if more
than one of the same species and condition), and nationality of the
catching vessel for the period Sunday through Saturday, GMT, as
modified by the fishery in which the vessel is engaged. Foreign
catching vessels delivering unsorted, unprocessed fish to processing
vessel are not required to submit MAMREP's, provided that the
processing or factory vessel (Activity Code 2) submits consolidated
MAMREP's for all fish received during each weekly period. FFV's
receiving U.S.-harvested fish in a joint venture (Activity Code 4) must
submit consolidated reports for U.S. vessels operating in the joint
venture. No report is required for FFV's that do not catch or receive
marine mammals during the reporting period.
(g) Submission instructions for weekly reports. The designated
representative for each FFV must submit weekly reports in the
prescribed format to the appropriate Regional or Science and Research
Director of NMFS by 1900 GMT on the Wednesday following the end of the
reporting period. However, by agreement with the appropriate Director,
the designated representative may submit weekly reports to some other
facility of NMFS.
Table 1 to Sec. 600.502.--Addresses
------------------------------------------------------------------------
NMFS science and U.S. Coast Guard
NMFS regional directors research directors commanders
------------------------------------------------------------------------
Director, Northeast Region, Director, Northeast Commander, Atlantic
National Marine Fisheries Fisheries Science Area, U.S. Coast
Service, NOAA, One Center, National Guard, 431 Crawford
Blackburn drive, Marine Fisheries Street, Portsmouth,
Gloucester, MA 01930-2298. Service, NOAA, 166 VA 23704.
Water Street, Woods
Hole, MA 02543-1097.
Director, Southeast Region, Director, Southeast Commander, Atlantic
National Marine Fisheries Fisheries Science Area, U.S. Coast
Service, NOAA, 9721 Exec. Center, National Guard, Governor's
Center Drive N., St. Marine Fisheries Island, New York,
Petersburg, FL 33702. Service, NOAA, 75 NY 10004.
Virginia Beach
Drive, Miami, FL
33149-1003.
Director, Northwest Region, Director, Northwest Commander, Pacific
National Marine Fisheries Fisheries Science Area, U.S. Coast
Service, NOAA, 7600 Sand Center, National Guard, Government
Point Way, NE, BIN C15700, Marine Fisheries Island, Alameda, CA
Bldg. 1, Seattle, WA 98115. Service, NOAA, 2725 94501.
Montlake Boulevard
East, Seattle, WA
98112-2097.
Director, Alaska Region, Director, Alaska Commander,
National Marine Fisheries Fisheries Science Seventeenth Coast
Service, NOAA, P.O. Box Center, National Guard District,
21668, Juneau, AK 99802- Marine Fisheries P.O. Box 25517,
1668. Service, NOAA, 7600 Juneau, AK 99802.
Sand Point Way, NE,
BIN C15700, Bldg.
4, Seattle, WA
98115-0070.
Director, Southwest Region Director, Southwest Commander,
National Marine Fisheries Fisheries Science Fourteenth Coast
Service, NOAA, 501 West Center, National Guard District, 300
Ocean Blvd, Suite 4200, Marine Fisheries Ala Moana Blvd.,
Long Beach, CA 90802-4213. Service, NOAA, P.O. Honolulu, HI 96850.
Box 271, La Jolla,
CA 92038-0271.
------------------------------------------------------------------------
Table 2 to Sec. 600.502.--Areas of Responsibility of NMFS and U.S.
Coast Guard Offices
------------------------------------------------------------------------
Area of responsibility/ National Marine
fishery Fisheries Service U.S. Coast Guard
------------------------------------------------------------------------
Atlantic Ocean North of Cape Director, Northeast Commander, Atlantic
Hatteras. Center, Attn: Area.
Observer Program.
Atlantic Ocean South of Cape Director, Northeast Commander, Atlantic
Hatteras. Center, Attn: Area.
Observer Program.
Atlantic Tunas, Swordfish, Director, Office of Commander, Atlantic
Billfish and Sharks. Fisheries Area.
Conservation and
Management.
Gulf of Mexico and Caribbean Director, Southeast Commander, Atlantic
Sea. Region. Area.
Pacific Ocean off the States Director, Northwest Commander, Pacific
of California, Oregon, and Region. Area.
Washington.
North Pacific Ocean and Director, Alaska Commander,
Bering Sea off Alaska. Region. Seventeenth Coast
Guard District.
[[Page 32560]]
Pacific Ocean off Hawaii and Director, Southwest Commander,
Other U.S. Insular Region. Fourteenth Coast
Possessions in the Central Guard District.
and Western Pacific.
------------------------------------------------------------------------
Table 3 to Sec. 600.502.--U.S. Coast Guard Communications Stations and Frequencies
----------------------------------------------------------------------------------------------------------------
Radiotelephone
U.S. Coast Guard communications ---------------------------------------------------------------------------
station IRCS Channel \1\ GMT time
----------------------------------------------------------------------------------------------------------------
Boston.............................. NMF A-E 2330-1100.
...................... B,C All.
...................... D 1100-2330.
...................... E (On request).
CAMSLANT Chesapeake (Portsmouth, VA) NMN A 2330-1100.
...................... B,C All.
...................... D 1100-2330.
...................... E (On request).
New Orleans......................... NMG A 2330-1100.
...................... B,C All.
...................... D 1100-2330.
...................... E (On request).
CAMSPAC Point Reyes (San Francisco, NMC A-D All.
CA).
...................... E (On request).
Honolulu............................ NMO A-D All.
...................... E (On request).
Kodiak.............................. NOJ A-D All.
...................... E (On request). .
----------------------------------------------------------------------------------------------------------------
\1\ Carrier frequencies of duplex, high-frequency single-sideband channels are:
------------------------------------------------------------------------
Letter Shore transmit Ship transmit
------------------------------------------------------------------------
A................................. 4426.0 4134.0
B................................. 6501.0 6200.0
C................................. 8764.0 8240.0
D................................. 13089.0 12242.0
E................................. 17314.0 16432.0
------------------------------------------------------------------------
Sec. 600.503 Vessel and gear identification.
(a) Vessel identification. (1) The operator of each FFV assigned an
IRCS must display that call sign amidships on both the port and
starboard sides of the deckhouse or hull, so that it is visible from an
enforcement vessel, and on an appropriate weather deck so it is visible
from the air.
(2) The operator of each FFV not assigned an IRCS, such as a small
trawler associated with a mothership or one of a pair of trawlers, must
display the IRCS of the associated vessel, followed by a numerical
suffix. (For example, JCZM-1, JCZM-2, etc., would be displayed on small
trawlers not assigned an IRCS operating with a mothership whose IRCS is
JCZM; JANP-1 would be displayed by a pair trawler not assigned an IRCS
operating with a trawler whose IRCS is JANP.)
(3) The vessel identification must be in a color in contrast to the
background and must be permanently affixed to the FFV in block Roman
alphabet letters and Arabic numerals at least 1 m in height for FFV's
over 20 m in length, and at least 0.5 m in height for all other FFV's.
(b) Navigational lights and shapes. Each FFV must display the
lights and shapes prescribed by the International Regulations for
Preventing Collisions at Sea, 1972 (TIAS 8587, and 1981 amendment TIAS
10672), for the activity in which the FFV is engaged (as described at
33 CFR part 81).
(c) Gear identification. (1) The operator of each FFV must ensure
that all deployed fishing gear that is not physically and continuously
attached to an FFV:
(i) Is clearly marked at the surface with a buoy displaying the
vessel identification of the FFV (see paragraph (a) of this section) to
which the gear belongs.
(ii) Has attached a light visible for 2 nautical miles (3.70 km) at
night in good visibility.
(iii) Has a radio buoy.
Trawl codends passed from one vessel to another are considered
continuously attached gear and are not required to be marked.
(2) The operator of each FFV must ensure that deployed longlines,
strings of traps or pots, and gillnets are marked at the surface at
each terminal end with: (see paragraphs (c)(1)(i) through (c)(1)(iii)
of this section).
(3) Additional requirements may be specified for the fishery in
which the vessel is engaged.
(4) Unmarked or incorrectly identified fishing gear may be
considered abandoned and may be disposed of in accordance with
applicable Federal regulations by any authorized officer.
(d) Maintenance. The operator of each FFV must--
(1) Keep the vessel and gear identification clearly legible and in
good repair.
(2) Ensure that nothing on the FFV obstructs the view of the
markings from an enforcement vessel or aircraft.
(3) Ensure that the proper navigational lights and shapes are
[[Page 32561]]
displayed for the FFV's activity and are properly functioning.
Sec. 600.504 Facilitation of enforcement.
(a) General. (1) The owner, operator, or any person aboard any FFV
subject to this subpart must immediately comply with instructions and
signals issued by an authorized officer to stop the FFV; to move the
FFV to a specified location; and to facilitate safe boarding and
inspection of the vessel, its gear, equipment, records, and fish and
fish products on board for purposes of enforcing the Magnuson Act and
this subpart.
(2) The operator of each FFV must provide vessel position or other
information when requested by an authorized officer within the time
specified in the request.
(b) Communications equipment. (1) Each FFV must be equipped with a
VHF-FM radiotelephone station located so that it may be operated from
the wheelhouse. Each operator must maintain a continuous listening
watch on channel 16 (156.8 mHz).
(2) Each FFV must be equipped with a radiotelephone station capable
of communicating via 2182 kHz (SSB) radiotelephony and at least one set
of working frequencies identified in table 3 to Sec. 600.502
appropriate to the fishery in which the FFV is operating. Each operator
must monitor and be ready to communicate via 2182 kHz (SSB)
radiotelephone each day from 0800 GMT to 0830 GMT and 2000 to 2030 GMT,
and in preparation for boarding.
(3) FFV's that are not equipped with processing facilities and that
deliver all catches to a foreign processing vessel are exempt from the
requirements of paragraph (b)(2) of this section.
(4) FFV's with no IRCS that do not catch fish and are used as
auxiliary vessels to handle codends, nets, equipment, or passengers for
a processing vessel are exempt from the requirements of paragraphs
(b)(1) and (b)(2) of this section.
(5) The appropriate Regional Director, with the agreement of the
appropriate USCG commander, may, upon request by a foreign nation,
accept alternatives to the radio requirements of this section to
certain FFV's or types of FFV's operating in a fishery, provided they
are adequate for the communications needs of the fishery.
(c) Communications procedures. (1) Upon being approached by a USCG
vessel or aircraft, or other vessel or aircraft with an authorized
officer aboard, the operator of any FFV subject to this subpart must be
alert for communications conveying enforcement instructions. The
enforcement unit may communicate by channel 16 VHF-FM radiotelephone,
2182 kHz (SSB) radiotelephone, message block from an aircraft, flashing
light or flag signals from the International Code of Signals, hand
signal, placard, loudhailer, or other appropriate means. The following
signals, extracted from the International Code of Signals, are among
those that may be used.
(i) ``AA, AA, AA, etc.'', which is the call for an unknown station.
The signaled vessel should respond by identifying itself or by
illuminating the vessel identification required by Sec. 600.505.
(ii) ``RY-CY'', meaning ``You should proceed at slow speed, a boat
is coming to you''.
(iii) ``SQ3'', meaning ``You should stop or heave to; I am going to
board you''.
(iv) ``L'', meaning ``You should stop your vessel instantly.''
(2) Failure of an FFV's operator to stop the vessel when directed
to do so by an authorized officer using VHF-FM radiotelephone (channel
16), 2182 kHz (SSB) radiotelephone (where required), message block from
an aircraft, flashing light signal, flaghoist, or loudhailer
constitutes a violation of this subpart.
(3) The operator of or any person aboard an FFV who does not
understand a signal from an enforcement unit and who is unable to
obtain clarification by radiotelephone or other means must consider the
signal to be a command to stop the FFV instantly.
(d) Boarding. The operator of an FFV signaled for boarding must--
(1) Monitor 2182 kHz (SSB) radiotelephone and channel 16 (156.8
mHz) VHF-FM radiotelephone.
(2) Stop immediately and lay to or maneuver in such a way as to
maintain the safety of the FFV and facilitate boarding by the
authorized officer and the boarding party or an observer.
(3) Provide the authorized officer, boarding party, or observer a
safe pilot ladder. The operator must ensure the pilot ladder is
securely attached to the FFV and meets the construction requirements of
Regulation 17, Chapter V of the International Convention for the Safety
of Life at Sea (SOLAS), 1974 (TIAS 9700 and 1978 Protocol, TIAS 10009),
or a substantially equivalent national standard approved by letter from
the Assistant Administrator, with agreement with the USCG. Safe pilot
ladder standards are summarized below:
(i) The ladder must be of a single length of not more than 9 m (30
ft), capable of reaching the water from the point of access to the FFV,
accounting for all conditions of loading and trim of the FFV and for an
adverse list of 15 deg.. Whenever the distance from sea level to the
point of access to the ship is more than 9 m (30 ft), access must be by
means of an accommodation ladder or other safe and convenient means.
(ii) The steps of the pilot ladder must be--
(A) Of hardwood, or other material of equivalent properties, made
in one piece free of knots, having an efficient non-slip surface; the
four lowest steps may be made of rubber of sufficient strength and
stiffness or of other suitable material of equivalent characteristics.
(B) Not less than 480 mm (19 inches) long, 115 mm (4.5 inches)
wide, and 25 mm (1 inch) in depth, excluding any non-slip device.
(C) Equally spaced not less than 300 millimeters (12 inches) nor
more than 380 mm (15 inches) apart and secured in such a manner that
they will remain horizontal.
(iii) No pilot ladder may have more than two replacement steps that
are secured in position by a method different from that used in the
original construction of the ladder.
(iv) The side ropes of the ladder must consist of two uncovered
manila ropes not less than 60 mm (2.25 inches) in circumference on each
side (or synthetic ropes of equivalent size and equivalent or greater
strength). Each rope must be continuous, with no joints below the top
step.
(v) Battens made of hardwood, or other material of equivalent
properties, in one piece and not less than 1.80 m (5 ft 10 inches) long
must be provided at such intervals as will prevent the pilot ladder
from twisting. The lowest batten must be on the fifth step from the
bottom of the ladder and the interval between any batten and the next
must not exceed nine steps.
(vi) Where passage onto or off the ship is by means of a bulwark
ladder, two handhold stanchions must be fitted at the point of boarding
or leaving the FFV not less than 0.70 m (2 ft 3 inches) nor more than
0.80 m (2 ft 7 inches) apart, not less than 40 mm (2.5 inches) in
diameter, and must extend not less than 1.20 m (3 ft 11 inches) above
the top of the bulwark.
(4) When necessary to facilitate the boarding or when requested by
an authorized officer or observer, provide a manrope, safety line, and
illumination for the ladder; and
(5) Take such other actions as necessary to ensure the safety of
the authorized officer and the boarding party and to facilitate the
boarding and inspection.
(e) Access and records. (1) The owner and operator of each FFV must
provide
[[Page 32562]]
authorized officers access to all spaces where work is conducted or
business papers and records are prepared or stored, including but not
limited to, personal quarters and areas within personal quarters.
(2) The owner and operator of each FFV must provide to authorized
officers all records and documents pertaining to the fishing activities
of the vessel, including but not limited to, production records,
fishing logs, navigation logs, transfer records, product receipts,
cargo stowage plans or records, draft or displacement calculations,
customs documents or records, and an accurate hold plan reflecting the
current structure of the vessel's storage and factory spaces.
(f) Product storage. The operator of each permitted FFV storing
fish or fish products in a storage space must ensure that all non-fish
product items are neither stowed beneath nor covered by fish products,
unless required to maintain the stability and safety of the vessel.
These items include, but are not limited to, portable conveyors,
exhaust fans, ladders, nets, fuel bladders, extra bin boards, or other
movable non-product items. These items may be in the space when
necessary for safety of the vessel or crew or for storage of the
product. Lumber, bin boards, or other dunnage may be used for shoring
or bracing of product to ensure safety of crew and to prevent shifting
of cargo within the space.
Sec. 600.505 Prohibitions.
(a) It is unlawful for any person to do any of the following:
(1) Ship, transport, offer for sale, sell, purchase, import,
export, or have custody, control, or possession of any fish taken or
retained in violation of the Magnuson Act, the applicable GIFA, this
subpart, or any permit issued under this subpart;
(2) Refuse to allow an authorized officer to board an FFV for
purposes of conducting any search or inspection in connection with the
enforcement of the Magnuson Act, the applicable GIFA, this subpart, or
any other permit issued under this subpart;
(3) Assault, resist, oppose, impede, intimidate, or interfere with
any authorized officer in the conduct of any inspection or search
described in paragraph (a)(2) of this section;
(4) Resist a lawful arrest for any act prohibited by the Magnuson
Act, the applicable GIFA, this subpart, or any permit issued under this
subpart;
(5) Interfere with, delay, or prevent by any means the apprehension
or arrest of another person with the knowledge that such other person
has committed any act prohibited by the Magnuson Act, the applicable
GIFA, this subpart, or any permit issued under this subpart;
(6) Interfere with, obstruct, delay, oppose, impede, intimidate, or
prevent by any means any boarding, investigation or search, wherever
conducted, in the process of enforcing the Magnuson Act, the applicable
GIFA, this subpart, or any permit issued under this subpart;
(7) Engage in any fishing activity for which the FFV does not have
a permit as required under Sec. 600.501;
(8) Engage in any fishing activity within the EEZ without a U.S.
observer aboard the FFV, unless the requirement has been waived by the
appropriate Regional Director;
(9) Retain or attempt to retain within the EEZ, directly or
indirectly, any U.S. harvested fish, unless the FFV has a permit for
Activity Codes 4 or 6.
(10) Use any fishing vessel to engage in fishing after the
revocation, or during the period of suspension, of an applicable permit
issued under this subpart;
(11) Violate any provision of the applicable GIFA;
(12) Falsely or incorrectly complete (including by omission) a
permit application or permit form as specified in Sec. 600.501 (d) and
(k);
(13) Fail to report to the Assistant Administrator within 15 days
any change in the information contained in the permit application for a
FFV, as specified in Sec. 600.501(k);
(14) Assault, resist, oppose, impede, intimidate, or interfere with
an observer placed aboard an FFV under this subpart;
(15) Interfere with or bias the sampling procedure employed by an
observer, including sorting or discarding any catch prior to sampling,
unless the observer has stated that sampling will not occur; or tamper
with, destroy, or discard an observer's collected samples, equipment,
records, photographic film, papers, or effects without the express
consent of the observer;
(16) Prohibit or bar by command, impediment, threat, coercion, or
refusal of reasonable assistance, an observer from collecting samples,
conducting product recovery rate determinations, making observations,
or otherwise performing the observer's duties;
(17) Harass or sexually harass an authorized officer or observer;
(18) Fail to provide the required assistance to an observer as
described at Sec. 600.506 (c) and (e);
(19) Fail to identify, falsely identify, fail to properly maintain,
or obscure the identification of the FFV or its gear as required by
this subpart;
(20) Falsify or fail to make, keep, maintain, or submit any record
or report required by this subpart;
(21) Fail to return to the sea or fail to otherwise treat
prohibited species as required by this subpart;
(22) Fail to report or falsely report any gear conflict;
(23) Fail to report or falsely report any loss, jettisoning, or
abandonment of fishing gear or other article into the EEZ that might
interfere with fishing, obstruct fishing gear or vessels, or cause
damage to any fishery resource or marine mammals;
(24) Continue Activity Codes 1 through 4 after those activity codes
have been canceled under Sec. 600.511;
(25) Fail to maintain health and safety standards set forth in
Sec. 600.506(d);
(26) Violate any provisions of regulations for specific fisheries
of this subpart;
(27) On a scientific research vessel, engage in fishing other than
recreational fishing authorized by applicable state, territorial, or
Federal regulations;
(28) Violate any provision of this subpart, the Magnuson Act, the
applicable GIFA, any notice issued under this subpart or any permit
issued under this subpart; or
(29) Attempt to do any of the foregoing.
(b) It is unlawful for any FFV, and for the owner or operator of
any FFV except an FFV engaged only in recreational fishing, to fish--
(1) Within the boundaries of any state, unless the fishing is
authorized by the Governor of that state as permitted by section 306(c)
of the Magnuson Act to engage in a joint venture for processing and
support with U.S. fishing vessels in the internal waters of that state;
or
(2) Within the EEZ, or for any anadromous species or continental
shelf fishery resources beyond the EEZ, unless the fishing is
authorized by, and conducted in accordance with, a valid permit issued
under Sec. 600.501.
Sec. 600.506 Observers.
(a) General. To carry out such scientific, compliance monitoring,
and other functions as may be necessary or appropriate to carry out the
purposes of the Magnuson Act, the appropriate Regional or Science and
Research Director (see table 2 to Sec. 600.502) may assign U.S.
observers to FFV's. Except as provided for in section 201(i)(2) of the
Magnuson Act, no FFV may conduct fishing operations within the EEZ
unless a U.S. observer is aboard.
(b) Effort plan. To ensure the availability of an observer as
required by this section, the owners and operators of FFV's wanting to
fish within the EEZ
[[Page 32563]]
will submit to the appropriate Regional Director or Science and
Research Director; and also to the Chief, Office of Enforcement, NMFS,
Silver Spring, MD, a schedule of fishing effort 30 days prior to the
beginning of each quarter. A quarter is a time period of 3 consecutive
months beginning January 1, April 1, July 1, and October 1 of each
year. The schedule will contain the name and IRCS of each FFV intending
to fish within the EEZ during the upcoming quarter, and each FFV's
expected date of arrival and expected date of departure.
(1) The appropriate Regional or Science and Research Director must
be notified immediately of any substitution of vessels or any
cancellation of plans to fish in the EEZ for FFV's listed in the effort
plan required by this section.
(2) If an arrival date of an FFV will vary more than 5 days from
the date listed in the quarterly schedule, the appropriate Regional or
Science and Research Director must be notified at least 10 days in
advance of the rescheduled date of arrival. If the notice required by
this paragraph (b)(2) is not given, the FFV may not engage in fishing
until an observer is available and has been placed aboard the vessel or
the requirement has been waived by the appropriate Regional or Science
and Research Director.
(c) Assistance to observers. To assist the observer in the
accomplishment of his or her assigned duties, the owner and operator of
an FFV to which an observer is assigned must--
(1) Provide, at no cost to the observer or the United States,
accommodations for the observer aboard the FFV that are equivalent to
those provided to the officers of that vessel.
(2) Cause the FFV to proceed to such places and at such times as
may be designated by the appropriate Regional or Science and Research
Director for the purpose of embarking and debarking the observer.
(3) Allow the observer to use the FFV's communications equipment
and personnel upon demand for the transmission and receipt of messages.
(4) Allow the observer access to and use of the FFV's navigation
equipment and personnel upon demand to determine the vessel's position.
(5) Allow the observer free and unobstructed access to the FFV's
bridge, trawl, or working decks, holding bins, processing areas,
freezer spaces, weight scales, cargo holds and any other space that may
be used to hold, process, weigh, or store fish or fish products at any
time.
(6) Allow the observer to inspect and copy the FFV's daily log,
communications log, transfer log, and any other log, document, notice,
or record required by these regulations.
(7) Provide the observer copies of any records required by these
regulations upon demand.
(8) Notify the observer at least 15 minutes before fish are brought
on board or fish or fish products are transferred from the FFV to allow
sampling the catch or observing the transfer, unless the observer
specifically requests not to be notified.
(9) Provide all other reasonable assistance to enable the observer
to carry out his or her duties.
(d) Health and safety standards. All foreign fishing vessels to
which an observer is deployed must maintain, at all times that the
vessel is in the EEZ, the following:
(1) At least one working radar.
(2) Functioning navigation lights as required by international law.
(3) A watch on the bridge by appropriately trained and experienced
personnel while the vessel is underway.
(4) Lifeboats and/or inflatable life rafts with a total carrying
capacity equal to or greater than the number of people aboard the
vessel. Lifeboats and inflatable life rafts must be maintained in good
working order and be readily available.
(5) Life jackets equal or greater in number to the total number of
persons aboard the vessel. Life jackets must be stowed in readily
accessible and plainly marked positions throughout the vessel, and
maintained in a state of good repair.
(6) At least one ring life buoy for each 25 ft (7.6 m) of vessel
length, equipped with automatic water lights. Ring life buoys must have
an outside diameter of not more than 32 inches (81.3 cm) nor less than
30 inches (76.2 cm), and must be maintained in a state of good repair.
Ring life buoys must be readily available, but not positioned so they
pose a threat of entanglement in work areas. They must be secured in
such a way that they can be easily cast loose in the event of an
emergency.
(7) At least one VHF-FM radio with a functioning channel 16 (156.8
mHz), International Distress, Safety and Calling Frequency, and one
functioning AM radio (SSB-Single Side Band) capable of operating at
2182 kHz (SSB). Radios will be maintained in a radio room, chartroom,
or other suitable location.
(8) At least one Emergency Position Indicating Radio Beacon
(EPIRB), approved by the USCG for offshore commercial use, stowed in a
location so as to make it readily available in the event of an
emergency.
(9) At least six hand-held, rocket-propelled, parachute, red-flare
distress signals, and three orange-smoke distress signals stowed in the
pilothouse or navigation bridge in portable watertight containers.
(10) All lights, shapes, whistles, foghorns, fog bells and gongs
required by and maintained in accordance with the International
Regulations for Preventing Collisions at Sea.
(11) Clean and sanitary conditions in all living spaces, food
service and preparation areas and work spaces aboard the vessel.
(e) Observer transfers. (1) The operator of the FFV must ensure
that transfers of observers at sea via small boat or raft are carried
out during daylight hours as weather and sea conditions allow, and with
the agreement of the observer involved. The FFV operator must provide
the observer 3 hours advance notice of at-sea transfers, so that the
observer may collect personal belongings, equipment, and scientific
samples.
(2) The FFV's involved must provide a safe pilot ladder and conduct
the transfer according to the procedures of Sec. 600.504(d) to ensure
the safety of the during the transfer.
(3) An experienced crew member must assist the observer in the
small boat or raft in which the transfer is made.
(f) Supplementary observers. In the event funds are not available
from Congressional appropriations of fees collected to assign an
observer to a foreign fishing vessel, the appropriate Regional or
Science and Research Director will assign a supplementary observer to
that vessel. The costs of supplementary observers will be paid for by
the owners and operators of foreign fishing vessels as provided for in
paragraph (h) of this section.
(g) Supplementary observer authority and duties. (1) A
supplementary observer aboard a foreign fishing vessel has the same
authority and must be treated in all respects as an observer who is
employed by NMFS, either directly or under contract.
(2) The duties of supplementary observers and their deployment and
work schedules will be specified by the appropriate Regional or Science
and Research Director.
(3) All data collected by supplementary observers will be under the
exclusive control of the Assistant Administrator.
(h) Supplementary observer payment--(1) Method of payment. The
owners and operators of foreign fishing vessels must pay directly to
the contractor the costs of supplementary observer coverage. Payment
must be made to the contractor supplying
[[Page 32564]]
supplementary observer coverage either by letter of credit or certified
check drawn on a federally chartered bank in U.S. dollars, or other
financial institution acceptable to the contractor. The letter of
credit used to pay supplementary observer fees to contractors must be
separate and distinct from the letter of credit required by
Sec. 600.518(b)(2). Billing schedules will be specified by the terms of
the contract between NOAA and the contractors. Billings for
supplementary observer coverage will be approved by the appropriate
Regional or Science and Research Director and then transmitted to the
owners and operators of foreign fishing vessels by the appropriate
designated representative. Each country will have only one designated
representative to receive observer bills for all vessels of that
country, except as provided for by the Assistant Administrator. All
bills must be paid within 10 working days of the billing date. Failure
to pay an observer bill will constitute grounds to revoke fishing
permits. All fees collected under this section will be considered
interim in nature and subject to reconciliation at the end of the
fiscal year in accordance with paragraph (h)(4) of this section and
Sec. 600.518(d).
(2) Contractor costs. The costs charged for supplementary observer
coverage to the owners and operators of foreign fishing vessels may not
exceed the costs charged to NMFS for the same or similar services,
except that contractors may charge to the owners and operators of
foreign fishing vessels an additional fee to cover the administrative
costs of the program not ordinarily part of contract costs charged to
NMFS. The costs charged foreign fishermen for supplementary observers
may include, but are not limited to the following:
(i) Salary and benefits, including overtime, for supplementary
observers.
(ii) The costs of post-certification training required by paragraph
(j)(2) of this section.
(iii) The costs of travel, transportation, and per diem associated
with deploying supplementary observers to foreign fishing vessels
including the cost of travel, transportation, and per diem from the
supplementary observer's post of duty to the point of embarkation to
the foreign fishing vessel, and then from the point of disembarkation
to the post of duty from where the trip began. For the purposes of
these regulations, the appropriate Regional or Science and Research
Director will designate posts of duty for supplementary observers.
(iv) The costs of travel, transportation, and per diem associated
with the debriefing following deployment of a supplementary observer by
NMFS officials.
(v) The administrative and overhead costs incurred by the
contractor and, if appropriate, a reasonable profit.
(3) NMFS costs. The owners and operators of foreign fishing vessels
must also pay to NMFS as part of the surcharge required by section
201(i)(4) of the Magnuson Act, the following costs:
(i) The costs of certifying applicants for the position of
supplementary observer.
(ii) The costs of any equipment, including safety equipment,
sampling equipment, operations manuals, or other texts necessary to
perform the duties of a supplementary observer. The equipment will be
specified by the appropriate Regional or Science and Research Director
according to the requirements of the fishery to which the supplementary
observer will be deployed.
(iii) The costs associated with communications with supplementary
observers for transmission of data and routine messages.
(iv) For the purposes of monitoring the supplementary observer
program, the costs for the management and analysis of data.
(v) The costs for data editing and entry.
(vi) Any costs incurred by NMFS to train, deploy or debrief a
supplementary observer.
(vii) The cost for U.S. Customs inspection for supplementary
observers disembarking after deployment.
(4) Reconciliation. Fees collected by the contractor in excess of
the actual costs of supplementary observer coverage will be refunded to
the owners and operators of foreign fishing vessels, or kept on deposit
to defray the costs of future supplementary observer coverage. Refunds
will be made within 60 days after final costs are determined and
approved by NMFS.
(i) Supplementary observer contractors--(1) Contractor eligibility.
Supplementary observers will be obtained by NMFS from persons or firms
having established contracts to provide NMFS with observers. In the
event no such contract is in place, NMFS will use established,
competitive contracting procedures to select persons or firms to
provide supplementary observers. The services supplied by the
supplementary observer contractors will be as described within the
contract and as specified below.
(2) Supplementary observer contractors must submit for the approval
of the Assistant Administrator the following:
(i) A copy of any contract, including all attachments, amendments,
and enclosures thereto, between the contractor and the owners and
operators of foreign fishing vessels for whom the contractor will
provide supplementary observer services.
(ii) All application information for persons whom the contractor
desires to employ as certified supplementary observers.
(iii) Billing schedules and billings to the owners and operators of
foreign fishing vessels for further transmission to the designated
representative of the appropriate foreign nation.
(iv) All data on costs.
(j) Supplementary observers--certification, training--(1)
Certification. The appropriate Regional or Science and Research
Director will certify persons as qualified for the position of
supplementary observer once the following conditions are met:
(i) The candidate is a citizen or national of the United States.
(ii) The candidate has education or experience equivalent to the
education or experience required of persons used as observers by NMFS
as either Federal personnel or contract employees. The education and
experience required for certification may vary according to the
requirements of managing the foreign fishery in which the supplementary
observer is to be deployed. Documentation of U.S. citizenship or
nationality, and education or experience will be provided from personal
qualification statements on file with NMFS contractors who provide
supplementary observer services, and will not require the submission of
additional information to NMFS.
(2) Training. Prior to deployment to foreign fishing vessels,
certified supplementary observers must also meet the following
conditions:
(i) Each certified supplementary observer must satisfactorily
complete a course of training approved by the appropriate Regional or
Science and Research Director as equivalent to that received by persons
used as observers by NMFS as either Federal personnel or contract
employees. The course of training may vary according to the foreign
fishery in which the supplementary observer is to be deployed.
(ii) Each certified supplementary observer must agree in writing to
abide by standards of conduct as set forth in Department of Commerce
Administrative Order 202-735 (as provided by the contractor).
[[Page 32565]]
(k) Supplementary observer certification suspension or revocation.
(1) Certification of a supplementary observer may be suspended or
revoked by the Assistant Administrator under the following conditions:
(i) A supplementary observer fails to perform the duties specified
in paragraph (g)(2) of this section.
(ii) A supplementary observer fails to abide by the standards of
conduct described by Department of Commerce Administrative Order 202-
735.
(2) The suspension or revocation of the certification of a
supplementary observer by the Assistant Administrator may be based on
the following:
(i) Boarding inspection reports by authorized officers of the USCG
or NMFS, or other credible information, that indicate a supplementary
observer has failed to abide by the established standards of conduct;
or
(ii) An analysis by NMFS of the data collected by a supplementary
observer indicating improper or incorrect data collection or recording.
The failure to properly collect or record data is sufficient to justify
decertification of supplementary observers; no intent to defraud need
be demonstrated.
(3) The Assistant Administrator will notify the supplementary
observer, in writing, of the Assistant Administrator's intent to
suspend or revoke certification, and the reasons therefor, and provide
the supplementary observer a reasonable opportunity to respond. If the
Assistant Administrator determines that there are disputed questions of
material fact, then the Assistant Administrator may in this respect
appoint an examiner to make an informal fact-finding inquiry and
prepare a report and recommendations.
Sec. 600.507 Recordkeeping.
(a) General. The owner and operator of each FFV must maintain
timely and accurate records required by this section as modified by the
regulations for the fishery in which the FFV is engaged.
(1) The owner and operator of each FFV must maintain all required
records in English, based on Greenwich mean time (GMT) unless otherwise
specified in the regulation, and make them immediately available for
inspection upon the request of an authorized officer or observer.
(2) The owner and operator of each FFV must retain all required
records on board the FFV whenever it is in the EEZ, for 3 years after
the end of the permit period.
(3) The owner and operator of each FFV must retain the required
records and make them available for inspection upon the request of an
authorized officer at any time during the 3 years after the end of the
permit period, whether or not such records are on board the vessel.
(4) The owner and operator of each FFV must provide to the
Assistant Administrator, in the form and at the times prescribed, any
other information requested that the Assistant Administrator determines
is necessary to fulfill the fishery conservation, management and
enforcement purposes of the Magnuson Act.
(b) Communications log. The owner and operator of each FFV must
record in a separate communications log, at the time of transmittal,
the time and content of each notification made under Sec. 600.504.
(c) Transfer log. Except for the transfer of unsorted, unprocessed
fish via codend from a catching vessel to a processing vessel (Activity
Code 2 or 4), the owner and operator of each FFV must record, in a
separate transfer log, each transfer or receipt of any fish or fishery
product, including quantities transferred or offloaded outside the EEZ.
The operator must record in the log within 12 hours of the completion
of the transfer:
(1) The time and date (GMT) and location (in geographic
coordinates) the transfer began and was completed.
(2) The product weight, by species and product (use species and
product codes), of all fish transferred, to the nearest 0.01 mt.
(3) The name, IRCS, and permit number of both the FFV offloading
the fish and the FFV receiving the fish.
(d) Daily fishing log. (1) The owner or operator of each FFV
authorized to catch fish (Activity Code 1) must maintain a daily
fishing log of the effort, catch and production of the FFV, as modified
by paragraph (d)(2) of this section and the regulations for the fishery
in which the FFV is engaged. The operator must maintain on a daily and
cumulative basis for the permit period a separate log for each fishery
(see table 2 to Sec. 600.502) in which the FFV is engaged according to
this section and in the format specified in the instructions provided
with the permit or other format authorized under paragraph (i) of this
section. Daily effort entries are required for each day the vessel
conducts fishing operations within the EEZ. Daily entries are not
required whenever the FFV is in port or engaged in a joint venture in
the internal waters of a state. Each page of log may contain entries
pertaining to only one day's fishing operations or one gear set,
whichever is longer.
(2) The owner or operator of each FFV authorized to catch fish
(Activity Code 1) and that delivers all catches to a processing vessel,
must maintain only ``SECTION ONE-EFFORT'', of the daily fishing log,
provided the processing vessel maintains a daily consolidated fishing
log as described in paragraphs (f) and (g) of this section.
(e) Daily fishing log--contents. The daily fishing log must contain
the following information, as modified by paragraph (d)(2) of this
section and the regulations for the fishery in which the FFV is
engaged, and be completed according to the format and instructions
provided with the permit or other format authorized under paragraph (i)
of this section.
(1) ``SECTION ONE-EFFORT'' must contain on a daily basis--
(i) A consecutive page number, beginning with the first day the
vessel started fishing operations within the EEZ and continuing
throughout the log.
(ii) The date (based on GMT).
(iii) The FFV's name.
(iv) The FFV's IRCS.
(v) The FFV's U.S. permit number.
(vi) The FFV's noon (1200 GMT) position in geographic coordinates.
(vii) The master or operator's signature or title.
(2) ``SECTION ONE-EFFORT'' must contain, for each trawl or set, as
appropriate to the gear type employed--
(i) The consecutive trawl or set number, beginning with the first
set of the calendar year.
(ii) The fishing area in which the trawl or set was completed.
(iii) The gear type.
(iv) The time the gear was set.
(v) The position of the set.
(vi) The course of the set.
(vii) The sea depth.
(viii) The depth of the set.
(ix) The duration of the set.
(x) The hauling time.
(xi) The position of the haul.
(xii) The number of pots or longline units (where applicable).
(xiii) The average number of hooks per longline unit (where
applicable).
(xiv) The trawl speed (where applicable).
(xv) The mesh size of the trawl's codend (where applicable).
(xvi) The estimated total weight of the catch for the trawl of set,
to at least the nearest metric ton round weight.
(3) ``SECTION TWO-CATCH'' must contain, for each trawl or set--
(i) The consecutive set or trawl number from ``SECTION ONE''.
(ii) The catch of each allocated species or species group to at
least the nearest 0.1 mt round weight.
(iii) The prohibited species catch to at least the nearest 0.1 mt
round weight or by number, as required by the
[[Page 32566]]
regulations for the fishery in which the FFV is engaged.
(iv) The species code of each marine mammal caught and its
condition when released.
(4) ``SECTION TWO-CATCH'' must contain, on a daily basis--
(i) The species codes for all allocated or prohibited species or
species groups caught.
(ii) For each allocated species--the amount, to at least the
nearest 0.1 mt, and the daily disposition, either processed for human
consumption, used for fishmeal, or discarded; the daily catch by
fishing area; the daily catch for all fishing areas; and the cumulative
total catch.
(iii) For the total catch of allocated species--the amount to at
least the nearest 0.1 mt and the daily disposition, daily total catch
by fishing area, daily total catch for all fishing areas, and
cumulative total catch.
(iv) The catch by fishing area, daily total, and cumulative total
of each prohibited species.
(5) ``SECTION THREE--PRODUCTION'' must contain, on a daily basis,
for each allocated species caught and product produced--
(i) The product by species code and product type.
(ii) The daily product recovery rate of each species and product.
(iii) The daily total product produced by species to at least the
nearest 0.01 mt.
(iv) The cumulative total of each product to at least the nearest
0.01 mt.
(v) The cumulative amount of product transferred.
(vi) The balance of product remaining aboard the FFV.
(vii) The total daily amount, cumulative amount, transferred
product and balance of frozen product aboard the FFV to the nearest
0.01 mt.
(viii) Transferred amount and balance of fishmeal and fish oil
aboard to at least the nearest 0.01 mt.
(f) Daily consolidated fishing or joint venture log. The operator
of each FFV that receives unsorted, unprocessed fish from foreign
catching vessels (Activity Code 2) for processing or receives U.S.-
harvested fish from U.S. fishing vessels in a joint venture (Activity
Code 4) must maintain a daily joint venture log of the effort, catch
and production of its associated U.S. or foreign fishing vessels and
the processing vessel as modified by the regulations for the fishery in
which the FFV is engaged. This log is separate and in addition to the
log required by paragraph (d) of this section. The operator must
maintain a separate log for each fishery in which the FFV is engaged,
on a daily and cumulative basis, according to this section and in the
format specified in the instructions provided with the permit or other
format authorized under paragraph (i) of this section. Receipts of fish
caught outside the EEZ must be included. Each page of the log may
contain entries pertaining to only one day's fishing operations.
(g) Daily joint venture log--contents. Daily joint venture logs
must contain the following information, as modified by the fishery in
which the vessel is engaged, and be completed according to the format
and instructions provided with the permit or other format authorized
under paragraph (i) of this section.
(1) ``SECTION ONE-EFFORT'' must contain, on a daily basis, that
information required in paragraph (e)(1) of this section.
(2) ``SECTION ONE-EFFORT'' must contain for each receipt of a
codend--
(i) The consecutive codend number, beginning with the first codend
received for the calendar year.
(ii) The name of the U.S. fishing vessel or the name and IRCS of
the foreign fishing vessel the codend was received from.
(iii) The fishing area where the codend was received.
(iv) The time the codend was received.
(v) The position the codend was received.
(vi) The estimated weight of the codend to at least the nearest
metric ton round weight.
(3) ``SECTION TWO-CATCH'' must contain, for each codend received--
(i) The consecutive codend number from ``SECTION ONE''.
(ii) The receipts of each authorized species or species group and
its disposition, either processed for human consumption, used for
fishmeal, discarded, or returned to the U.S. fishing vessel, to at
least the nearest 0.1 mt round weight.
(iii) The estimated receipts of each prohibited species or species
group and its disposition, either discarded or returned to the U.S.
fishing vessel if authorized in the fishery in which the U.S. vessel is
engaged, to at least the nearest 0.1 mt round weight.
(iv) The species code of each marine mammal received and its
condition when released.
(4) ``SECTION TWO-CATCH'' must contain on a daily basis--
(i) The species codes of all authorized or prohibited species or
species groups received.
(ii) The daily disposition, as described in paragraph (g)(3)(ii) of
this section, daily total, and cumulative total receipts of each
authorized species or species groups.
(iii) The daily disposition, daily total and cumulative total
receipts of all authorized species or species groups.
(iv) The daily and cumulative total receipts of prohibited species
groups and their disposition as described in paragraph (g)(3)(iii) of
this section.
(5) ``SECTION THREE--PRODUCTION'' must contain, on a daily basis,
for each authorized species or species group received and product
produced, that information required in paragraph (e)(5) of this
section.
(h) Daily log maintenance. The logs required by paragraphs (e)
through (g) of this section must be maintained separately for each
fishery (see table 2 to Sec. 600.502).
(1) The effort section (all of ``SECTION ONE'') of the daily logs
must be updated within 2 hours of the hauling or receipt time. The
catch or receipt by trawl or set (``SECTION TWO'') must be entered
within 12 hours of the hauling or receipt time. The daily and
cumulative total catch or receipts (``SECTION TWO'') and the production
portion (``SECTION THREE'') of the log must be updated within 12 hours
of the end of the day on which the catch was taken. The date of catch
is the day and time (GMT) the gear is hauled.
(2) Entries for total daily and cumulative catch or receipt weights
(disposition ``C'' or ``M'') must be based on the most accurate method
available to the vessel, either scale round weights or factory weights
converted to round weights. Entries for daily and cumulative weights of
discarded or returned fish (disposition ``D'' or ``R'') must be based
on the most accurate method available to the vessel, either actual
count, scale round weight, or estimated deck weights. Entries for
product weights must be based on the number of production units (pans,
boxes, blocks, trays, cans, or bags) and the average weight of the
production unit, with reasonable allowances for water added. Allowances
for water added cannot exceed 5 percent of the unit weight. Product
weights cannot be based on the commercial or arbitrary wholesale weight
of the product, but must be based on the total actual weight of the
product as determined by representative samples.
(3) The owner or operator must make all entries in indelible ink,
with corrections to be accomplished by lining out and rewriting, rather
than erasure.
(i) Alternative log formats. As an alternative to the use of the
specific formats provided, a Nation may submit a proposed log format
for FFV's of that Nation for a general type of fishery operation in a
fishery (i.e., joint venture operations) to the appropriate Regional
[[Page 32567]]
Director and the USCG commander (see tables 1 and 2 to Sec. 600.502).
With the agreement of the USCG commander, the Regional Director may
authorize the use of that log format for vessels of the requesting
Nation.
Sec. 600.508 Fishing operations.
(a) Catching. Each FFV authorized for activity code 1 may catch
fish. An FFV may retain its catch of any species or species group for
which there is an unfilled national allocation. All fish caught will be
counted against the national allocation, even if the fish are
discarded, unless exempted by the regulations of the fishery in which
the FFV is engaged. Catching operations may be conducted as specified
by the regulations of the fishery in which the FFV is engaged and as
modified by the FFV's permit.
(b) Scouting. Each FFV authorized for Activity Codes 1 through 6
may scout for fish. Scouting may be conducted only in the fisheries
area authorized by the scouting vessel's permit and under such other
circumstances as may be designated in this subpart or the permit.
(c) Processing. Each FFV with Activity Code 1 or 2 may process
fish. Processing may only be conducted whenever and wherever catching
operations for FFV's of that Nation are permitted, whenever and
wherever joint venture operations are authorized by an FFV's permit
under Activity Code 4, and under such other circumstances as may be
designated in this subpart or the permit.
(d) Support. Each FFV with Activity Codes 1, 2, 3, 5, or 8 may
support other permitted FFV's. Each FFV with Activity Codes 4 or 6 may
support U.S. vessels. Support operations may be conducted only in the
fisheries areas authorized by the supporting vessel's permit, and under
such other circumstances as may be designated in this subpart or the
permit.
(e) Joint ventures. Each FFV with Activity Code 4 in addition to
Activity Codes 1 or 2 may also conduct operations with U.S. fishing
vessels. These joint venture operations with U.S. fishing vessels may
be conducted throughout the EEZ, and under such other circumstances as
may be designated in these regulations or the permit. FFV's with
activity code 4 may continue operations assisting U.S. fishing vessels,
despite closures under Sec. 600.511(a).
(f) Each FFV authorized by the Governor of a state under section
306(c) of the Magnuson Act may engage in processing and support of U.S.
fishing vessels within the internal waters of that state in compliance
with terms and conditions set by the authorizing Governor.
Sec. 600.509 Prohibited species.
(a) The owner or operator of each FFV must minimize its catch or
receipt of prohibited species.
(b) After allowing for sampling by an observer (if any), the owner
or operator of each FFV must sort its catch of fish received as soon as
possible and return all prohibited species and species parts to the sea
immediately with a minimum of injury, regardless of condition, unless a
different procedure is specified by the regulations for the fishery in
which the FFV is engaged. All prohibited species must be recorded in
the daily fishing log and other fishing logs as specified by the
regulations for the fishery in which the FFV is engaged.
(c) All species of fish that an FFV has not been specifically
allocated or authorized under this subpart to retain, including fish
caught or received in excess of any allocation or authorization, are
prohibited species.
(d) It is a rebuttable presumption that any prohibited species or
species part found on board an FFV was caught and retained in violation
of this section.
Sec. 600.510 Gear avoidance and disposal.
(a) Vessel and gear avoidance. (1) FFV's arriving on fishing
grounds where fishing vessels are already fishing or have set their
gear for that purpose must ascertain the position and extent of gear
already placed in the sea and must not place themselves or their
fishing gear so as to interfere with or obstruct fishing operations
already in progress. Vessels using mobile gear must avoid fixed fishing
gear.
(2) The operator of each FFV must maintain on its bridge a current
plot of broadcast fixed-gear locations for the area in which it is
fishing, as required by the regulations for the fishery in which the
FFV is engaged.
(b) Gear conflicts. The operator of each FFV that is involved in a
conflict or that retrieves the gear of another vessel must immediately
notify the appropriate USCG commander identified in tables 1 and 2 to
Sec. 600.502 and request disposal instructions. Each report must
include:
(1) The name of the reporting vessel.
(2) A description of the incident and articles retrieved, including
the amount, type of gear, condition, and identification markings.
(3) The location of the incident.
(4) The date and time of the incident.
(c) Disposal of fishing gear and other articles. (1) The operator
of an FFV in the EEZ may not dump overboard, jettison or otherwise
discard any article or substance that may interfere with other fishing
vessels or gear, or that may catch fish or cause damage to any marine
resource, including marine mammals and birds, except in cases of
emergency involving the safety of the ship or crew, or as specifically
authorized by communication from the appropriate USCG commander or
other authorized officer. These articles and substances include, but
are not limited to, fishing gear, net scraps, bale straps, plastic
bags, oil drums, petroleum containers, oil, toxic chemicals or any
manmade items retrieved in an FFV's gear.
(2) The operator of an FFV may not abandon fishing gear in the EEZ.
(3) If these articles or substances are encountered, or in the
event of accidental or emergency placement into the EEZ, the vessel
operator must immediately report the incident to the appropriate USCG
Commander indicated in tables 1 and 2 to Sec. 600.502, and give the
information required in paragraph (b) of this section.
Sec. 600.511 Fishery closure procedures.
(a) Activity Codes 1 and 2 for a fishery are automatically canceled
in the following cases, unless otherwise specified by regulations
specific to a fishery, when--
(1) The OY for any allocated species or species group has been
reached in that fishery;
(2) The TALFF or catch allowance for any allocated species or
species group has been reached in that fishery;
(3) The foreign nation's allocation for any allocated species or
species group has been reached; or
(4) The letter of credit required in Sec. 600.518(b)(2) is not
established and maintained.
(b) Activity Code 4 is automatically canceled when--
(1) The OY for a species with a JVP amount is reached;
(2) The JVP amount for a species or species group is reached; or
(3) The letter of credit required in Sec. 600.518(b)(2) is not
established and maintained.
(c) Notification. (1) The Regional Director is authorized to close
a fishery on behalf of NMFS. The Regional Director will notify each
FFV's designated representative of closures.
(2) If possible, notice will be given 48 hours before the closure.
However, each Nation and the owners and operators of all FFV's of that
Nation are responsible for ending fishing operations when an allocation
is reached.
(d) Catch reconciliation. Vessel activity reports, U.S.
surveillance observations, observer reports, and
[[Page 32568]]
foreign catch and effort reports will be used to make the determination
listed in paragraphs (a) and (b) of this section. If NMFS estimates of
catch or other values made during the season differ from those reported
by the foreign fleets, efforts may be initiated by the designated
representative of each Nation to resolve such differences with NMFS.
If, however, differences still persist after such efforts have been
made, NMFS estimates will be the basis for decisions and will prevail.
(e) Duration. Any closure under this section will remain in effect
until an applicable new or increased allocation or JVP becomes
available or the letter of credit required by Sec. 600.518(b)(2) is
reestablished.
Sec. 600.512 Scientific research.
(a) Scientific research activity. Persons planning to conduct
scientific research activities in the EEZ that may be confused with
fishing are encouraged to submit to the appropriate Regional Director,
Director, or designee, 60 days or as soon as practicable prior to its
start, a scientific research plan for each scientific cruise. The
Regional Director, Director, or designee will acknowledge notification
of scientific research activity by issuing to the operator or master of
that vessel, or to the sponsoring institution, a letter of
acknowledgment. This letter of acknowledgment is separate and distinct
from any permit required under any other applicable law. If the
Regional Director, Director, or designee, after review of a research
plan, determines that it does not constitute scientific research
activity, but rather fishing, the Regional Director, Director, or
designee will inform the applicant as soon as practicable and in
writing. The Regional Director, Director, or designee may also make
recommendations to revise the research plan to make the cruise
acceptable as scientific research activity. In order to facilitate
identification of activity as scientific research, persons conducting
scientific research activities are advised to carry a copy of the
scientific research plan and the letter of acknowledgment on board the
scientific research vessel. Activities conducted in accordance with a
scientific research plan acknowledged by such a letter are presumed to
be scientific research activities. The presumption may be overcome by
showing that an activity does not fit the definition of scientific
research activity or is outside the scope of the scientific research
plan.
(b) Reports. Persons conducting scientific research are requested
to submit a copy of any cruise report or other publication created as a
result of the cruise, including the amount, composition, and
disposition of their catch, to the appropriate Science and Research
Director.
Sec. 600.513 Recreational fishing.
(a) Foreign vessels conducting recreational fishing must comply
only with this section, and Secs. 600.10, 600.504(a)(1), and 600.505
(as applicable). Such vessels may conduct recreational fishing within
the EEZ and within the boundaries of a state. Any fish caught may not
be sold, bartered, or traded.
(
FR Doc. 96-15767 Magnuson Act Provisions; Consolidation and Update of Regulations; Collection-of-Information Approval
b) The owners or operator and any other person aboard any foreign
vessel conducting recreational fishing must comply with any Federal
laws or regulations applicable to the domestic fishery while in the
EEZ, and any state laws or regulations applicable while in state
waters.
Sec. 600.514 Relation to other laws.
(a) Persons affected by these regulations should be aware that
other Federal and state statutes may apply to their activities.
(b) Fishing vessel operators must exercise due care in the conduct
of fishing activities near submarine cables. Damage to submarine cables
resulting from intentional acts or from the failure to exercise due
care in the conduct of fishing operations subjects the fishing vessel
operator to enforcement action under the International Convention for
the Protection of Submarine Cables, and to the criminal penalties
prescribed by the Submarine Cable Act (47 U.S.C. 21) and other laws
that implement that Convention. Fishing vessel operators also should be
aware that the Submarine Cable Act prohibits fishing operations at a
distance of less than 1 nautical mile (1.85 km) from a vessel engaged
in laying or repairing a submarine cable; or at a distance of less than
0.25 nautical mile (0.46 km) from a buoy or buoys intended to mark the
position of a cable when being laid, or when out of order, or broken.
Sec. 600.515 Interpretation of 16 U.S.C. 1857(4).
Section 307(4) of the Magnuson Act prohibits any fishing vessel
other than a vessel of the United States (foreign fishing vessel) from
operating in the EEZ if all of the fishing gear on board the vessel is
not stowed in compliance with that section ``unless such vessel is
authorized to engage in fishing in the area in which the vessel is
operating.'' If such a vessel has a permit authorization that is
limited to fishing activities other than catching, taking or harvesting
(such as support, scouting or processing activities), it must have all
of its fishing gear stowed at all times while it is in the EEZ. If such
a vessel has a permit authorization to engage in catching, taking or
harvesting activities, but such authorization is limited to a specific
area within the EEZ, and/or to a specific period of time, the vessel
must have all of its fishing gear stowed while it is in the EEZ, except
when it is in the specific area authorized, and/or during the specific
period of time authorized.
Sec. 600.516 Total allowable level of foreign fishing (TALFF).
(a) The TALFF, if any, with respect to any fishery subject to the
exclusive fishery management authority of the United States, is that
portion of the OY of such fishery that will not be caught by vessels of
the United States.
(b) Each specification of OY and each assessment of the anticipated
U.S. harvest will be reviewed during each fishing season. Adjustments
to TALFF's will be made based on updated information relating to status
of stocks, estimated and actual performance of domestic and foreign
fleets, and other relevant factors.
(c) Specifications of OY and the initial estimates of U.S. harvests
and TALFF's at the beginning of the relevant fishing year will be
published in the Federal Register. Adjustments to those numbers will be
published in the Federal Register upon occasion or as directed by
regulations implementing FMPs. For current apportionments, contact the
appropriate Regional Director or the Director.
Sec. 600.517 Allocations.
The Secretary of State, in cooperation with the Secretary,
determines the allocation among foreign nations of fish species and
species groups. The Secretary of State officially notifies each foreign
nation of its allocation. The burden of ascertaining and accurately
transmitting current allocations and status of harvest of an applicable
allocation to fishing vessels is upon the foreign nation and the owner
or operator of the FFV.
Sec. 600.518 Fee schedule for foreign fishing.
(a) Permit application fees. Each vessel permit application
submitted under Sec. 600.501 must be accompanied by a fee of $354 per
vessel, plus the surcharge, if required under paragraph (e) of this
section, rounded to the nearest dollar. At the time the application is
submitted to the DOS, a check for the fees, drawn on a U.S. bank, made
out to ``Department of Commerce, NOAA,'' must be sent to the
[[Page 32569]]
Director. The permit fee payment must be accompanied by a list of the
vessels for which the payment is made.
(b) Poundage fees--(1) Rates. If a Nation chooses to accept an
allocation, poundage fees must be paid at the rate specified in the
following table, plus the surcharge required by paragraph (c) of this
section.
Table--Species and Poundage Fees
[Dollars per metric ton, unless otherwise noted]
------------------------------------------------------------------------
Poundage
Species fees fees
------------------------------------------------------------------------
Northwest Atlantic Ocean fisheries:
1. Butterfish.............................................. 274.61
2. Hake, red............................................... 163.97
3. Hake, silver............................................ 174.63
4. Herring................................................. 61.76
5. Mackerel, Atlantic...................................... 58.33
6. Other groundfish........................................ 119.09
7. Squid, Illex............................................ 103.98
8. Squid, Loligo........................................... 245.73
------------------------------------------------------------------------
(2) Method of payment of poundage fees, surcharges and observer
fees. (i) If a Nation chooses to accept an allocation, a revolving
letter of credit (L/C) must be established and maintained to cover the
poundage fees for at least 25 percent of the previous year's total
allocations at the rate in paragraph (b)(1) of this section, or as
determined by the Assistant Administrator, plus the surcharges and
observer fees required by paragraphs (c) and (d) of this section. The
L/C must--
(A) Be irrevocable.
(B) Be with a bank subscribing to ICC Pub. 290.
(C) Designate ``Department of Commerce, NOAA'' as beneficiary;
(D) Allow partial withdrawals.
(E) Be confirmed by a U.S. bank.
(ii) The customer must pay all commissions, transmission, and
service charges. No fishing will be allowed until the L/C is
established, and authorized written notice of its issuance is provided
to the Assistant Administrator.
(3) Assessment of poundage fees. Poundage fees will be assessed
quarterly for the actual catch during January through March, April
through June, July through September, and October through December. The
appropriate Regional Director will reconcile catch figures with each
country following the procedures of Sec. 600.511(d). When the catch
figures are agreed upon, NOAA will present a bill for collection as the
documentary demand for payment to the confirming bank. If, after 45
days from the end of the quarter, catches have not been reconciled, the
estimate of the Regional Director will stand and a bill will be issued
for that amount. If necessary, the catch figures may be refined by the
Regional Director during the next 60 days, and any modifications will
be reflected in the next quarter's bill.
(c) Surcharges. The owner or operator of each foreign vessel who
accepts and pays permit application or poundage fees under paragraph
(a) or (b) of this section must also pay a surcharge. The Assistant
Administrator may reduce or waive the surcharge if it is determined
that the Fishing Vessel and Gear Damage Compensation Fund is
capitalized sufficiently. The Assistant Administrator also may increase
the surcharge during the year to a maximum level of 20 percent, if
needed, to maintain capitalization of the fund. The Assistant
Administrator has effectively waived the surcharge until further
notice.
(d) Observer fees. The Assistant Administrator will notify the
owners or operators of FFV's of the estimated annual costs of placing
observers aboard their vessels. The owners or operators of any such
vessel must provide for repayment of those costs by including one-
fourth of the estimated annual observer fee as determined by the
Assistant Administrator in a L/C as prescribed in Sec. 600.518(b)(2).
During the fiscal year, payment will be withdrawn from the L/C as
required to cover anticipated observer coverage for the upcoming
fishery. The Assistant Administrator will reconcile any differences
between the estimated cost and actual costs of observer coverage within
90 days after the end of the fiscal year.
(e) Financial assurances. (1) A foreign nation, or the owners and
operators of certain vessels of that foreign nation, may be required by
the Assistant Administrator to provide financial assurances. Such
assurances may be required if--
(i) Civil and criminal penalties assessed against fishing vessels
of the Nation have not effectively deterred violations;
(ii) Vessels of that Nation have engaged in fishing in the EEZ
without proper authorization to conduct such activities;
(iii) The Nation's vessel owners have refused to answer
administrative charges or summons to appear in court; or
(iv) Enforcement of Magnuson Act civil or criminal judgments in the
courts of a foreign nation is unattainable.
(2) The level of financial assurances will be guided by the level
of penalties assessed and costs to the U.S. Government.
Sec. 600.520 Northwest Atlantic Ocean fishery.
(a) Purpose. Sections 600.520 and 600.525 regulate all foreign
fishing conducted under a GIFA within the EEZ in the Atlantic Ocean
north of 35 deg.00' N. lat.
(b) Authorized fishery--(1) Allocations. Foreign vessels may engage
in fishing only in accordance with applicable national allocations.
(2) Time and area restrictions. (i) Fishing, including processing,
scouting, and support of foreign or U.S. vessels, is prohibited south
of 35 deg.00' N. lat., and north and east of a line beginning at the
shore at 44 deg.22' N. lat., 67 deg.52' W. long. and intersecting the
boundary of the EEZ at 44 deg.11'12'' N. lat., 67 deg.16'46'' W. long.
(ii) The Regional Director will consult with the Council prior to
giving notice of any area or time restriction. NMFS will also consult
with the USCG if the restriction is proposed to reduce gear conflicts.
If NMFS determines after such consultation that the restriction appears
to be appropriate, NMFS will publish the proposed restriction in the
Federal Register, together with a summary of the information on which
the restriction is based. Following a 30-day comment period, NMFS will
publish a final action.
(iii) The Regional Director may rescind any restriction if he/she
determines that the basis for the restriction no longer exists.
(iv) Any notice of restriction shall operate as a condition imposed
on the permit issued to the foreign vessels involved in the fishery.
(3) TALFF. The TALFFs for the fisheries of the Northwest Atlantic
Ocean are published in the Federal Register. Current TALFFs are also
available from the Regional Director.
(4) Species definitions. The category ``other finfish'' used in
TALFFs and in allocations includes all species except:
(i) The other allocated species, namely: Short-finned squid, long-
finned squid, Atlantic herring, Atlantic mackerel, river herring
(includes alewife, blueback herring, and hickory shad), and butterfish.
(ii) The prohibited species, namely: American plaice, American
shad, Atlantic cod, Atlantic menhaden, Atlantic redfish, Atlantic
salmon, all marlin, all spearfish, sailfish, swordfish, black sea bass,
bluefish, croaker, haddock, ocean pout, pollock, red hake, scup, sea
turtles, sharks (except dogfish), silver hake, spot, striped bass,
summer flounder, tilefish, yellowtail
[[Page 32570]]
flounder, weakfish, white hake, windowpane flounder, winter flounder,
witch flounder, Continental Shelf fishery resources, and other
invertebrates (except nonallocated squids).
(5) Closures. The taking of any species for which a Nation has an
allocation is permitted, provided that:
(i) The vessels of the foreign nation have not caught the
allocation of that Nation for any species or species group (e.g.,
``other finfish''). When vessels of a foreign nation have caught an
applicable allocation of any species, all further fishing other than
scouting, processing, or support by vessels of that Nation must cease,
even if other allocations have not been reached. Therefore, it is
essential that foreign nations plan their fishing strategy to ensure
that the reaching of an allocation for one species does not result in
the premature closing of a Nation's fishery for other allocated
species.
(ii) The fishery has not been closed for other reasons under
Sec. 600.511.
(6) Allocation utilization. Foreign fishing vessels may elect to
retain or discard allocated species; however, the computation of
allocation utilization and fee refunds will be based on the total
quantity of that species that was caught. Prohibited species must
always be returned to the sea as required under Sec. 600.509.
(c) Fishing areas. For the purposes of the Northwest Atlantic Ocean
fishery, fishing areas are that portion of the EEZ shown inside the
boundaries of the ``three digit statistical areas'' described in Figure
1 to this section.
BILLING CODE 3510-22-W
[[Page 32571]]
Figure 1 to Sec. 600.520--Fishing Areas of the Northwest Atlantic
Ocean Fisheries
[GRAPHIC] [TIFF OMITTED] TR24JN96.000
BILLING CODE 3510-22-C
[[Page 32572]]
Sec. 600.525 Atlantic herring fishery.
(a) Initial specifications. The initial specifications of OY, DAH,
DAP, JVP, TALFF, and reserve (if any) have been established by the PMP
for Atlantic herring approved on July 6, 1995. These annual
specifications will remain in effect unless adjusted pursuant to the
provisions specified in paragraph (b) of this section.
(b) Procedures to adjust initial specifications. NMFS may adjust
these initial specifications upward or downward to produce the greatest
overall benefit to the United States at any time prior to or during the
fishing years for which the initial specifications are set by
publishing notification in the Federal Register with the reasons for
such adjustments. Any notice of adjustment may provide for public
comment. Adjustments to the initial specifications may take into
account the following information:
(1) The estimated domestic processing capacity and extent to which
it will be used.;
(2) Landings and catch statistics.;
(3) Stock assessments.
(4) Relevant scientific information.
Subpart G--Preemption of State Authority Under Section 306(b)
Sec. 600.605 General policy.
It is the policy of the Secretary that preemption proceedings will
be conducted expeditiously. The administrative law judge and counsel or
other representative for each party are encouraged to make every effort
at each stage of the proceedings to avoid delay.
Sec. 600.610 Factual findings for Federal preemption.
(a) The two factual findings for Federal preemption of state
management authority over a fishery are:
(1) The fishing in a fishery that is covered by an FMP implemented
under the Magnuson Act is engaged in predominately within the EEZ and
beyond such zone.
(2) A state has taken any action, or omitted to take any action,
the results of which will substantially and adversely affect the
carrying out of such FMP.
(b) Whether fishing is engaged in ``predominately'' within or
beyond the EEZ will be determined after consideration of relevant
factors, including but not limited to, the catch (based on numbers,
value, or weight of fish caught, or other relevant factors) or fishing
effort during the appropriate period, and in light of historical
patterns of the distribution of catch or fishing effort for such stock
or stocks of fish.
(c) Whether relevant effects are substantial will be determined
after consideration of the magnitude of such actual or potential
effects. Relevant to this determination are various factors, including
but not limited to, the proportion of the fishery (stock or stocks of
fish and fishing for such stocks) that is subject to the effects of a
particular state's action or omission, the characteristics and status
(including migratory patterns and biological condition) of the stock or
stocks of fish in the fishery, and the similarity or dissimilarity
between the goals, objectives, or policies of the state's action or
omission and the management goals or objectives specified in the FMP
for the fishery or between the state and Federal conservation and
management measures of the fishery.
Sec. 600.615 Commencement of proceedings.
(a) Notice of proposed preemption. (1) If a proceeding under this
part is deemed necessary, the Administrator must issue a notice of
proposed preemption to the Attorney General of the State or States
concerned. The notice will contain:
(i) A recital of the legal authority and jurisdiction for
instituting the proceeding.
(ii) A concise statement of the Sec. 600.610 factual findings for
Federal preemption upon which the notice is based.
(iii) The time, place, and date of the hearing.
(2) The notice of proposed preemption will also be published in the
Federal Register. This notification may be combined with any notice of
proposed rulemaking published under paragraph (d)(1) of this section.
(b) Response. The state will have the opportunity to respond in
writing to the notice of proposed preemption.
(c) Amendment. The Administrator may, at any time prior to the
Secretary's decision, withdraw the notice of proposed preemption. Upon
motion of either party before the record is closed, the administrative
law judge may amend the notice of proposed preemption.
(d) Proposed regulations--(1) In general. If additional regulations
are required to govern fishing within the boundaries of a state, the
Administrator may publish proposed regulations in the Federal Register
concurrently with issuing the notification indicated in paragraph (a)
of this section.
(2) Emergency actions. Nothing in this section will prevent the
Secretary from taking emergency action under section 305(e) of the
Magnuson Act.
Sec. 600.620 Rules pertaining to the hearing.
(a) The civil procedure rules of the NOAA currently set forth in 15
CFR part 904, subpart C (or as subsequently amended), apply to the
proceeding after its commencement by service of notice (pursuant to
Sec. 600.615) and prior to the Secretary's decision (Sec. 600.625),
except that the following sections will not apply:
(1) 15 CFR 904.201 (Definitions);
(2) 15 CFR 904.206(a)(1) (Duties and powers of Judge); and
(3) 15 CFR 904.272 (Administrative review of decision).
(b) Additional duties and powers of judge--(1) Time periods. The
administrative law judge is authorized to modify all time periods
pertaining to the course of the hearing (under Secs. 600.615 and
600.620) to expedite the proceedings, upon application and appropriate
showing of need or emergency circumstances by a party.
(2) Intervention. Intervention by persons not parties is not
allowed.
Sec. 600.625 Secretary's decision.
(a) The Secretary will, on the basis of the hearing, record the
administrative law judge's recommended decision:
(1) Accept or reject any of the findings or conclusions of the
administrative law judge and decide whether the factual findings exist
for Federal preemption of a state's authority within its boundaries
(other than in its internal waters) with respect to the fishery in
question;
(2) Reserve decision on the merits or withdraw the notice of
proposed preemption; or
(3) Remand the case to the administrative law judge for further
proceedings as may be appropriate, along with a statement of reasons
for the remand.
(b) Notification. (1) If the factual findings for Federal
preemption are determined to exist, the Secretary will notify in
writing the Attorney General of that state and the appropriate
Council(s) of the preemption of that state's authority. The Secretary
will also direct the Administrator to promulgate appropriate
regulations proposed under Sec. 600.615(d) and otherwise to begin
regulating the fishery within the state's boundaries (other than in its
internal waters).
(2) If the factual findings for Federal preemption are determined
not to exist, the Secretary will notify, in writing, the Attorney
General of the state and the appropriate Council(s) of that
determination. The Secretary will also direct the Administrator to
issue a notice withdrawing any regulations proposed under
Sec. 600.615(d).
[[Page 32573]]
Sec. 600.630 Application for reinstatement of state authority.
(a) Application or notice. (1) At any time after the promulgation
of regulations under Sec. 600.625(b)(1) to regulate a fishery within a
state's boundaries, the affected state may apply to the Secretary for
reinstatement of state authority. The Secretary may also serve upon
such state a notice of intent to terminate such Federal regulation. A
state's application must include a clear and concise statement of:
(i) The action taken by the State to correct the action or omission
found to have substantially and adversely affected the carrying out of
the FMP; or
(ii) Any changed circumstances that affect the relationship of the
state's action or omission to take action to the carrying out of the
FMP (including any amendment to such plan); and
(iii) Any laws, regulations, or other materials that the state
believes support the application.
(2) Any such application received by the Secretary or notice issued
to the State will be published in the Federal Register.
(b) Informal response. The Secretary has sole discretion to accept
or reject the application or response. If the Secretary accepts the
application or rejects any responses and finds that the reasons for
regulation of the fishery within the boundaries of the state no longer
prevail, the Secretary will promptly terminate such regulation and
publish in the Federal Register any regulatory amendments necessary to
accomplish that end.
(c) Hearing. The Secretary has sole discretion to direct the
Administrator to schedule hearings for the receipt of evidence by an
administrative law judge. Hearings before the administrative law judge
to receive such evidence will be conducted in accordance with
Sec. 600.620. Upon conclusion of such hearings, the administrative law
judge will certify the record and a recommended decision to the
Secretary. If the Secretary, upon consideration of the state's
application or any response to the notice published under
Sec. 600.630(a)(2), the hearing record, the recommended decision, and
any other relevant materials finds that the reasons for regulation of
the fishery within the boundaries of the state no longer prevail, the
Secretary will promptly terminate such regulation and publish in the
Federal Register any regulatory amendments necessary to accomplish that
end.
Subpart H--General Provisions for Domestic Fisheries
Sec. 600.705 Relation to other laws.
(a) General. Persons affected by these regulations should be aware
that other Federal and state statutes and regulations may apply to
their activities. Vessel operators may wish to refer to USCG
regulations found in the Code of Federal Regulations title 33--
Navigation and Navigable Waters and 46--Shipping; 15 CFR part 904,
subpart D--Permit Sanctions and Denials; and title 43--Public Lands (in
regard to marine sanctuaries).
(b) State responsibilities. Certain responsibilities relating to
data collection and enforcement may be performed by authorized state
personnel under a state/Federal agreement for data collection and a
tripartite agreement among the state, the USCG, and the Secretary for
enforcement.
(c) Submarine cables. Fishing vessel operators must exercise due
care in the conduct of fishing activities near submarine cables. Damage
to the submarine cables resulting from intentional acts or from the
failure to exercise due care in the conduct of fishing operations
subjects the fishing vessel operator to the criminal penalties
prescribed by the Submarine Cable Act (47 U.S.C. 21) which implements
the International Convention for the Protection of Submarine Cables.
Fishing vessel operators also should be aware that the Submarine Cable
Act prohibits fishing operations at a distance of less than 1 nautical
mile (1.85 km) from a vessel engaged in laying or repairing a submarine
cable; or at a distance of less than 0.25 nautical mile (0.46 km) from
a buoy or buoys intended to mark the position of a cable when being
laid or when out of order or broken.
(d) Marine mammals. Regulations governing exemption permits and the
recordkeeping and reporting of the incidental take of marine mammals
are set forth in part 229 of this title.
(e) Halibut fishing. Fishing for halibut is governed by regulations
of the International Pacific Halibut Commission set forth at part 300
of this title.
(f) Marine sanctuaries. All fishing activity, regardless of species
sought, is prohibited under 15 CFR part 924 in the U.S.S. Monitor
Marine Sanctuary, which is located approximately 15 miles southwest of
Cape Hatteras off the coast of North Carolina.
Sec. 600.710 Permits.
Regulations pertaining to permits required for certain fisheries
are set forth in the parts of this chapter governing those fisheries.
Sec. 600.715 Recordkeeping and reporting.
Regulations pertaining to records and reports required for certain
fisheries are set forth in the parts of this chapter governing those
fisheries.
Sec. 600.720 Vessel and gear identification.
Regulations pertaining to special vessel and gear markings required
for certain fisheries are set forth in the parts of this chapter
governing those fisheries.
Sec. 600.725 General prohibitions.
It is unlawful for any person to do any of the following:
(a) Possess, have custody or control of, ship, transport, offer for
sale, sell, purchase, land, import, or export, any fish or parts
thereof taken or retained in violation of the Magnuson Act or any other
statute administered by NOAA and/or any regulation or permit issued
under the Magnuson Act.
(b) Transfer or attempt to transfer, directly or indirectly, any
U.S.-harvested fish to any foreign fishing vessel, while such vessel is
in the EEZ, unless the foreign fishing vessel has been issued a permit
under section 204 of the Magnuson Act, which authorizes the receipt by
such vessel of U.S.- harvested fish.
(c) Fail to comply immediately with enforcement and boarding
procedures specified in Sec. 600.730.
(d) Refuse to allow an authorized officer to board a fishing vessel
or to enter areas of custody for purposes of conducting any search,
inspection, or seizure in connection with the enforcement of the
Magnuson Act or any other statute administered by NOAA.
(e) Dispose of fish or parts thereof or other matter in any manner,
after any communication or signal from an authorized officer, or after
the approach by an authorized officer or an enforcement vessel or
aircraft.
(f) Assault, resist, oppose, impede, intimidate, threaten, or
interfere with any authorized officer in the conduct of any search,
inspection, or seizure in connection with enforcement of the Magnuson
Act or any other statute administered by NOAA.
(g) Interfere with, delay, or prevent by any means, the
apprehension of another person, knowing that such person has committed
any act prohibited by the Magnuson Act or any other statute
administered by NOAA.
(h) Resist a lawful arrest for any act prohibited under the
Magnuson Act or any other statute administered by NOAA.
[[Page 32574]]
(i) Make any false statement, oral or written, to an authorized
officer concerning the taking, catching, harvesting, landing, purchase,
sale, offer of sale, possession, transport, import, export, or transfer
of any fish, or attempts to do any of the above.
(j) Interfere with, obstruct, delay, or prevent by any means an
investigation, search, seizure, or disposition of seized property in
connection with enforcement of the Magnuson Act or any other statute
administered by NOAA.
(k) Fish in violation of the terms or conditions of any permit or
authorization issued under the Magnuson Act or any other statute
administered by NOAA.
(l) Fail to report catches as required while fishing pursuant to an
exempted fishing permit.
(m) On a scientific research vessel, engage in fishing other than
recreational fishing authorized by applicable state or Federal
regulations.
(n) Trade, barter, or sell; or attempt to trade, barter, or sell
fish possessed or retained while fishing pursuant to an authorization
for an exempted educational activity.
(o) Harass or sexually harass an authorized officer or an observer.
(p) It is prohibited to violate any other provision of this part,
the Magnuson Act or any other statute administered by NOAA, any notice
issued under this part, or any other regulation promulgated under the
Magnuson Act or any other statute administered by NOAA.
Sec. 600.730 Facilitation of enforcement.
(a) General. The operator of, or any other person aboard, any
fishing vessel subject to parts 625 through 699 of this chapter must
immediately comply with instructions and signals issued by an
authorized officer to stop the vessel and with instructions to
facilitate safe boarding and inspection of the vessel, its gear,
equipment, fishing record (where applicable), and catch for purposes of
enforcing the Magnuson Act or any other statute administered by NOAA
and this chapter.
(b) Communications. (1) Upon being approached by a USCG vessel or
aircraft, or other vessel or aircraft with an authorized officer
aboard, the operator of a fishing vessel must be alert for
communications conveying enforcement instructions.
(2) VHF-FM radiotelephone is the preferred method for communicating
between vessels. If the size of the vessel and the wind, sea, and
visibility conditions allow, a loudhailer may be used instead of the
radio. Hand signals, placards, high frequency radiotelephone, or voice
may be employed by an authorized officer, and message blocks may be
dropped from an aircraft.
(3) If other communications are not practicable, visual signals may
be transmitted by flashing light directed at the vessel signaled. USCG
units will normally use the flashing light signal ``L'' as the signal
to stop. In the International Code of Signals, ``L'' (.-..) means ``you
should stop your vessel instantly.'' (Period (.) means a short flash of
light; dash (-) means a long flash of light.)
(4) Failure of a vessel's operator promptly to stop the vessel when
directed to do so by an authorized officer using loudhailer,
radiotelephone, flashing light signal, or other means constitutes prima
facie evidence of the offense of refusal to permit an authorized
officer to board.
(5) The operator of a vessel who does not understand a signal from
an enforcement unit and who is unable to obtain clarification by
loudhailer or radiotelephone must consider the signal to be a command
to stop the vessel instantly.
(c) Boarding. The operator of a vessel directed to stop must:
(1) Guard Channel 16, VHF-FM, if so equipped.
(2) Stop immediately and lay to or maneuver in such a way as to
allow the authorized officer and his/her party to come aboard.
(3) Except for those vessels with a freeboard of 4 ft (1.2 m) or
less, provide a safe ladder, if needed, for the authorized officer and
his/her party to come aboard.
(4) When necessary to facilitate the boarding or when requested by
an authorized officer or observer, provide a manrope or safety line,
and illumination for the ladder.
(5) Take such other actions as necessary to facilitate boarding and
to ensure the safety of the authorized officer and the boarding party.
(d) Signals. The following signals, extracted from the
International Code of Signals, may be sent by flashing light by an
enforcement unit when conditions do not allow communications by
loudhailer or radiotelephone. Knowledge of these signals by vessel
operators is not required. However, knowledge of these signals and
appropriate action by a vessel operator may preclude the necessity of
sending the signal ``L'' and the necessity for the vessel to stop
instantly. (Period (.) means a short flash of light; dash (-) means a
long flash of light.)
(1) ``AA'' repeated (.-.-) is the call to an unknown station. The
operator of the signaled vessel should respond by identifying the
vessel by radiotelephone or by illuminating the vessel's
identification.
(2) ``RY-CY'' (.-. -.-- -.-. -.--) means ``you should proceed at
slow speed, a boat is coming to you.'' This signal is normally employed
when conditions allow an enforcement boarding without the necessity of
the vessel being boarded coming to a complete stop, or, in some cases,
without retrieval of fishing gear which may be in the water.
(3) ``SQ3'' (... --.- ...--) means ``you should stop or heave to; I
am going to board you.''
Sec. 600.735 Penalties.
Any person committing, or fishing vessel used in the commission of
a violation of the Magnuson Act or any other statute administered by
NOAA and/or any regulation issued under the Magnuson Act, is subject to
the civil and criminal penalty provisions and civil forfeiture
provisions of the Magnuson Act, to this section, to 15 CFR part 904
(Civil Procedures), and to other applicable law.
Sec. 600.740 Enforcement policy.
(a) The Magnuson Act provides four basic enforcement remedies for
violations, in ascending order of severity, as follows:
(1) Issuance of a citation (a type of warning), usually at the
scene of the offense (see 15 CFR part 904, subpart E).
(2) Assessment by the Administrator of a civil money penalty.
(3) For certain violations, judicial forfeiture action against the
vessel and its catch.
(4) Criminal prosecution of the owner or operator for some
offenses. It shall be the policy of NMFS to enforce vigorously and
equitably the provisions of the Magnuson Act by utilizing that form or
combination of authorized remedies best suited in a particular case to
this end.
(b) Processing a case under one remedial form usually means that
other remedies are inappropriate in that case. However, further
investigation or later review may indicate the case to be either more
or less serious than initially considered, or may otherwise reveal that
the penalty first pursued is inadequate to serve the purposes of the
Magnuson Act. Under such circumstances, the Agency may pursue other
remedies either in lieu of or in addition to the action originally
taken. Forfeiture of the illegal catch does not fall within this
general rule and is considered in most cases as only the initial step
in
[[Page 32575]]
remedying a violation by removing the ill-gotten gains of the offense.
(c) If a fishing vessel for which a permit has been issued under
the Magnuson Act is used in the commission of an offense prohibited by
section 307 of the Magnuson Act, NOAA may impose permit sanctions,
whether or not civil or criminal action has been undertaken against the
vessel or its owner or operator. In some cases, the Magnuson Act
requires permit sanctions following the assessment of a civil penalty
or the imposition of a criminal fine. In sum, the Magnuson Act treats
sanctions against the fishing vessel permit to be the carrying out of a
purpose separate from that accomplished by civil and criminal penalties
against the vessel or its owner or operator.
Sec. 600.745 Scientific research activity, exempted fishing, and
exempted educational activity.
(a) Scientific research activity. Nothing in this section is
intended to inhibit or prevent any scientific research activity
conducted by a scientific research vessel. Persons planning to conduct
scientific research activities in the EEZ are encouraged to submit to
the appropriate Regional Director, Director, or designee, 60 days or as
soon as practicable prior to its start, a scientific research plan for
each scientific cruise. The Regional Director, Director, or designee
will acknowledge notification of scientific research activity by
issuing to the operator or master of that vessel, or to the sponsoring
institution, a letter of acknowledgment. This letter of acknowledgment
is separate and distinct from any permit required by any other
applicable law. If the Regional Director, Director, or designee, after
review of a research plan, determines that it does not constitute
scientific research but rather fishing, the Regional Director,
Director, or designee will inform the applicant as soon as practicable
and in writing. The Regional Director, Director, or designee may also
make recommendations to revise the research plan to make the cruise
acceptable as scientific research activity or recommend the applicant
request an EFP. In order to facilitate identification of activity as
scientific research, persons conducting scientific research activities
are advised to carry a copy of the scientific research plan and the
letter of acknowledgment on board the scientific research vessel.
Activities conducted in accordance with a scientific research plan
acknowledged by such a letter are presumed to be scientific research
activity. The presumption may be overcome by showing that an activity
does not fit the definition of scientific research activity or is
outside the scope of the scientific research plan.
(b) Exempted fishing.--(1) General. A NMFS Regional Director or
Director may authorize, for limited testing, public display, data
collection, exploratory, health and safety, environmental cleanup, and/
or hazard removal purposes, the target or incidental harvest of species
managed under an FMP or fishery regulations that would otherwise be
prohibited. Exempted fishing may not be conducted unless authorized by
an EFP issued by a Regional Director or Director in accordance with the
criteria and procedures specified in this section. The Regional
Director or Director may charge a fee to recover the administrative
expenses of issuing an EFP. The amount of the fee will be calculated,
at least annually, in accordance with procedures of the NOAA Handbook
for determining administrative costs of each special product or
service; the fee may not exceed such costs. Persons may contact the
appropriate Regional Director or Director to find out the applicable
fee.
(2) Application. An applicant for an EFP shall submit a completed
application package to the appropriate Regional Director or Director,
as soon as practicable and at least 60 days before the desired
effective date of the EFP. Submission of an EFP application less than
60 days before the desired effective date of the EFP may result in a
delayed effective date because of review requirements. The application
package must include payment of any required fee as specified by
paragraph (b)(1) of this section, and a written application that
includes, but is not limited to, the following information:
(i) The date of the application.
(ii) The applicant's name, mailing address, and telephone number.
(iii) A statement of the purposes and goals of the exempted fishery
for which an EFP is needed, including justification for issuance of the
EFP.
(iv) For each vessel to be covered by the EFP, as soon as the
information is available and before operations begin under the EFP:
(A) A copy of the USCG documentation, state license, or
registration of each vessel, or the information contained on the
appropriate document.
(B) The current name, address, and telephone number of the owner
and master, if not included on the document provided for the vessel.
(v) The species (target and incidental) expected to be harvested
under the EFP, the amount(s) of such harvest necessary to conduct the
exempted fishing, the arrangements for disposition of all regulated
species harvested under the EFP, and any anticipated impacts on marine
mammals or endangered species.
(vi) For each vessel covered by the EFP, the approximate time(s)
and place(s) fishing will take place, and the type, size, and amount of
gear to be used.
(vii) The signature of the applicant.
(viii) The Regional Director or Director, as appropriate, may
request from an applicant additional information necessary to make the
determinations required under this section. An incomplete application
or an application for which the appropriate fee has not been paid will
not be considered until corrected in writing and the fee paid. An
applicant for an EFP need not be the owner or operator of the vessel(s)
for which the EFP is requested.
(3) Issuance. (i) The Regional Director or Director, as
appropriate, will review each application and will make a preliminary
determination whether the application contains all of the required
information and constitutes an activity appropriate for further
consideration. If the Regional Director or Director finds that any
application does not warrant further consideration, both the applicant
and the affected Council(s) will be notified in writing of the reasons
for the decision. If the Regional Director or Director determines that
any application warrants further consideration, notification of receipt
of the application will be published in the Federal Register with a
brief description of the proposal, and the intent of NMFS to issue an
EFP. Interested persons will be given a 15- to 45-day opportunity to
comment and/or comments will be requested during public testimony at a
Council meeting. The notification may establish a cut-off date for
receipt of additional applications to participate in the same, or a
similar, exempted fishing activity. The Regional Director or Director
also will forward copies of the application to the Council(s), the
USCG, and the appropriate fishery management agencies of affected
states, accompanied by the following information:
(A) The effect of the proposed EFP on the target and incidental
species, including the effect on any TAC.
(B) A citation of the regulation or regulations that, without the
EFP, would prohibit the proposed activity.
(C) Biological information relevant to the proposal, including
appropriate statements of environmental impacts, including impacts on
marine mammals and threatened or endangered species.
[[Page 32576]]
(ii) If the application is complete and warrants additional
consultation, the Regional Director or Director may consult with the
appropriate Council(s) concerning the permit application during the
period in which comments have been requested. The Council(s) or the
Director or Regional Director shall notify the applicant in advance of
any meeting at which the application will be considered, and offer the
applicant the opportunity to appear in support of the application.
(iii) As soon as practicable after receiving responses from the
agencies identified in paragraph (b)(3)(i) of this section, and/or
after the consultation, if any, described in paragraph (b)(3)(ii) of
this section, the Regional Director or Director shall notify the
applicant in writing of the decision to grant or deny the EFP, and, if
denied, the reasons for the denial. Grounds for denial of an EFP
include, but are not limited to, the following:
(A) The applicant has failed to disclose material information
required, or has made false statements as to any material fact, in
connection with his or her application; or
(B) According to the best scientific information available, the
harvest to be conducted under the permit would detrimentally affect the
well-being of the stock of any regulated species of fish, marine
mammal, or threatened or endangered species in a significant way; or
(C) Issuance of the EFP would have economic allocation as its sole
purpose; or
(D) Activities to be conducted under the EFP would be inconsistent
with the intent of this section, the management objectives of the FMP,
or other applicable law; or
(E) The applicant has failed to demonstrate a valid justification
for the permit; or
(F) The activity proposed under the EFP could create a significant
enforcement problem.
(iv) The decision of a Regional Director or Director to grant or
deny an EFP is the final action of NMFS. If the permit, as granted, is
significantly different from the original application, or is denied,
NMFS may publish notification in the Federal Register describing the
exempted fishing to be conducted under the EFP or the reasons for
denial.
(v) The Regional Director or Director may attach terms and
conditions to the EFP consistent with the purpose of the exempted
fishing, including, but not limited to:
(A) The maximum amount of each regulated species that can be
harvested and landed during the term of the EFP, including trip
limitations, where appropriate.
(B) The number, size(s), name(s), and identification number(s) of
the vessel(s) authorized to conduct fishing activities under the EFP.
(C) The time(s) and place(s) where exempted fishing may be
conducted.
(D) The type, size, and amount of gear that may be used by each
vessel operated under the EFP.
(E) The condition that observers, a vessel monitoring system, or
other electronic equipment be carried on board vessels operated under
an EFP, and any necessary conditions, such as predeployment
notification requirements.
(F) Reasonable data reporting requirements.
(G) Other conditions as may be necessary to assure compliance with
the purposes of the EFP, consistent with the objectives of the FMP and
other applicable law.
(H) Provisions for public release of data obtained under the EFP
that are consistent with NOAA confidentiality of statistics procedures
at set out in subpart E. An applicant may be required to waive the
right to confidentiality of information gathered while conducting
exempted fishing as a condition of an EFP.
(4) Duration. Unless otherwise specified in the EFP or a
superseding notice or regulation, an EFP is effective for no longer
than 1 year, unless revoked, suspended, or modified. EFPs may be
renewed following the application procedures in this section.
(5) Alteration. Any permit that has been altered, erased, or
mutilated is invalid.
(6) Transfer. EFPs issued under this section are not transferable
or assignable. An EFP is valid only for the vessel(s) for which it is
issued.
(7) Inspection. Any EFP issued under this section must be carried
on board the vessel(s) for which it was issued. The EFP must be
presented for inspection upon request of any authorized officer.
(8) Sanctions. Failure of a permittee to comply with the terms and
conditions of an EFP may be grounds for revocation, suspension, or
modification of the EFP with respect to all persons and vessels
conducting activities under the EFP. Any action taken to revoke,
suspend, or modify an EFP for enforcement purposes will be governed by
15 CFR part 904, subpart D.
(c) Reports. (1) Persons conducting scientific research activity
are requested to submit a copy of any cruise report or other
publication created as a result of the cruise, including the amount,
composition, and disposition of their catch, to the appropriate Science
and Research Director.
(2) Persons fishing under an EFP are required to report their
catches to the appropriate Regional Director or Director, as specified
in the EFP.
(d) Exempted educational activities--(1) General. A NMFS Regional
Director or Director may authorize, for educational purposes, the
target or incidental harvest of species managed under an FMP or fishery
regulations that would otherwise be prohibited. The decision of a
Regional Director or Director to grant or deny an exempted educational
activity authorization is the final action of NMFS. Exempted
educational activities may not be conducted unless authorized in
writing by a Regional Director or Director in accordance with the
criteria and procedures specified in this section. Such authorization
will be issued without charge.
(2) Application. An applicant for an exempted educational activity
authorization shall submit to the appropriate Regional Director or
Director, at least 15 days before the desired effective date of the
authorization, a written application that includes, but is not limited
to, the following information:
(i) The date of the application.
(ii) The applicant's name, mailing address, and telephone number.
(iii) A brief statement of the purposes and goals of the exempted
educational activity for which authorization is requested, including a
general description of the arrangements for disposition of all species
collected.
(iv) Evidence that the sponsoring institution is a valid
educational institution, such as accreditation by a recognized national
or international accreditation body.
(v) The scope and duration of the activity.
(vi) For each vessel to be covered by the authorization:
(A) A copy of the U.S. Coast Guard documentation, state license, or
registration of the vessel, or the information contained on the
appropriate document.
(B) The current name, address, and telephone number of the owner
and master, if not included on the document provided for the vessel.
(vii) The species and amounts expected to be caught during the
exempted educational activity.
(viii) For each vessel covered by the authorization, the
approximate time(s) and place(s) fishing will take place, and
[[Page 32577]]
the type, size, and amount of gear to be used.
(ix) The signature of the applicant.
(x) The Regional Director or Director may request from an applicant
additional information necessary to make the determinations required
under this section. An incomplete application will not be considered
until corrected in writing.
(3) Issuance. (i) The Regional Director or Director, as
appropriate, will review each application and will make a determination
whether the application contains all of the required information, is
consistent with the goals, objectives, and requirements of the FMP or
regulations and other applicable law, and constitutes a valid exempted
educational activity. The applicant will be notified in writing of the
decision within 5 working days of receipt of the application.
(ii) The Regional Director or Director may attach terms and
conditions to the authorization, consistent with the purpose of the
exempted educational activity, including, but not limited to:
(A) The maximum amount of each regulated species that may be
harvested.
(B) The time(s) and place(s) where the exempted educational
activity may be conducted.
(C) The type, size, and amount of gear that may be used by each
vessel operated under the authorization.
(D) Reasonable data reporting requirements.
(E) Such other conditions as may be necessary to assure compliance
with the purposes of the authorization, consistent with the objectives
of the FMP or regulations.
(F) Provisions for public release of data obtained under the
authorization, consistent with NOAA confidentiality of statistics
procedures in subpart E. An applicant may be required to waive the
right to confidentiality of information gathered while conducting
exempted educational activities as a condition of the authorization.
(iii) The authorization will specify the scope of the authorized
activity and will include, at a minimum, the duration, vessel(s),
species and gear involved in the activity, as well as any additional
terms and conditions specified under paragraph (d)(3)(ii) of this
section.
(4) Duration. Unless otherwise specified, authorization for an
exempted educational activity is effective for no longer than 1 year,
unless revoked, suspended, or modified. Authorizations may be renewed
following the application procedures in this section.
(5) Alteration. Any authorization that has been altered, erased, or
mutilated is invalid.
(6) Transfer. Authorizations issued under this paragraph (d) are
not transferable or assignable.
(7) Inspection. Any authorization issued under this paragraph (d)
must be carried on board the vessel(s) for which it was issued or be in
possession of the applicant to which it was issued while the exempted
educational activity is being conducted. The authorization must be
presented for inspection upon request of any authorized officer.
Activities that meet the definition of fishing, despite an educational
purpose, are fishing. An authorization may allow covered fishing
activities; however, fishing activities conducted outside the scope of
an authorization for exempted educational activities are illegal.
PARTS 601, 602, 603, 605, 611, 619, 620, and 621 [REMOVED]
4. Under the authority of 16 U.S.C. 1801 et seq., parts 601, 602,
603, 605, 611, 619, 620, and 621 are removed.
[FR Doc. 96-15767 Filed 6-21-96; 8:45 am]
BILLING CODE 3510-22-W
Complete official Federal Register PDF
FR Doc. 96-15555 Airworthiness Directives; PTC Seating Products Division, B/E Aerospace, Model 950 Series Passenger Seats Equipped With Footrest Assembly
[Federal Register Volume 61, Number 122 (Monday, June 24, 1996)]
[Rules and Regulations]
[Pages 32317-32318]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15555]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. 95-ANE-25; Amendment 39-9651; AD 96-12-09]
RIN 2120-AA64
Airworthiness Directives; PTC Seating Products Division, B/E
Aerospace, Model 950 Series Passenger Seats Equipped With Footrest
Assembly
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This amendment adopts a new airworthiness directive (AD),
applicable to PTC Seating Products Division, B/E Aerospace (PTC),
formally known as PTC Aerospace, Model 950 series passenger seats with
footrest assembly. This amendment will require the removal of the
footrest assembly arms and the installation of a conversion kit on each
PTC Model 950 series passenger seat equipped with footrest assembly.
This amendment is prompted by two incidents of finger injuries that
occurred during attempts to either extend or retract the footrest
system on PTC Model 950 series passenger seats equipped with footrest
assembly. The actions specified by this AD are intended to prevent
injury to hands during the operation of a PTC Model 950 series
passenger seat equipped with footrest assembly.
DATES: Effective July 29, 1996.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register
July 29, 1996.
ADDRESSES: The service information referenced in this AD may be
obtained from B/E Aerospace, PTC Seating Products Division, 607 Bantam
Road, Litchfield, CT 06759. This information may be examined at the
FAA, New England Region, Office of the Assistant Chief Counsel, 12 New
England Executive Park, Burlington, MA; or at the Office of the Federal
Register, 800 North Capitol Street, NW, suite 700, Washington, DC.
FOR FURTHER INFORMATION CONTACT: Richard Noll, Aerospace Engineer,
Boston Aircraft Certification Office, FAA, Engine and Propeller
Directorate, 12 New England Executive Park, Burlington, MA 01803-5299;
telephone (617) 238-7160, fax (617) 238-7199.
SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal
Aviation Regulations (14 CFR part 39) to include an airworthiness
directive (AD) that is applicable to PTC Model 950 series passenger
seats equipped with footrest assembly was published in the Federal
Register on October 2, 1995 (60 FR 51375). That action proposed to
require the removal of the footrest assembly arms and the installation
of a conversion kit on each PTC Model 950 series passenger seat
equipped with footrest assembly.
Interested persons have been afforded an opportunity to participate
in the making of this amendment. Due consideration has been given to
the comments received.
One commenter states that the compliance time of 9 months should
only apply to the footrest on first class Model 950 seats, stating that
the potential problem with the linkage only occurs on the first class
Model 950 seats when the footrest is in a horizontal position. The
commenter further states, that the compliance time should be increased
to 18 months on the executive class Model 950 seats, since the footrest
has a physical stop that limits the travel of the linkage and thus the
footrest to approximately 45 degrees.
The FAA disagrees. The FAA has examined the various seats equipped
with footrest and finds that the potential for injury to the hands
exists on all of these seat models. The FAA considers the modification
to be repetitive and not complex, therefore, does not need to be done
during scheduled maintenance. An increase of the compliance time to 18
months is not needed.
There are approximately 5800 seats equipped with footrest assembly
of the affected design in the worldwide fleet. The FAA estimates that
5000 seats
[[Page 32318]]
equipped with footrest assembly installed on aircraft of U.S. registry
would be affected by this AD, that it would take approximately \3/4\
work hours per seat to accomplish the required actions, and that the
average labor rate is $60 per work hour. Required parts will cost
approximately $30 per seat. Based on these figures, the total cost
impact of the AD on U.S. operators is estimated to be $225,000.
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under the DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) will not have a
significant economic impact, positive or negative, on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act. A final evaluation has been prepared for this action
and is contained at the location provided under the caption ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 U.S.C. 106(g); 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding the following new
airworthiness directive: 4
96-12-09 PTC Seating Products Division, B/E Aerospace:Amendment 39-
9651. Docket No. 95-ANE-25.
Applicability: PTC Seating Products Division, B/E Aerospace
(PTC) Model 950 series passenger seat equipped with footrest
assembly.
Note: This AD applies to each seat identified in the preceding
applicability provision, regardless of whether it has been modified,
altered, or repaired in the area subject to the requirements of this
AD. For seats equipped with footrest assembly that have been
modified, altered, or repaired so that the performance of the
requirements of this AD is affected, the owner/operator must use the
authority provided in paragraph (b) to request approval from the
FAA. This approval may address either no action, if the current
configuration eliminates the unsafe condition, or different actions
necessary to address the unsafe condition described in this AD. Such
a request should include an assessment of the effect of the changed
configuration on the unsafe condition addressed by this AD. In no
case does the presence of any modification, alteration, or repair
remove any seat from the applicability of this AD.
Compliance: Required as indicated, unless accomplished
previously. To prevent injury to hands during operation of the PTC
Model 950 series passenger seats equipped with footrest assembly,
accomplish the following:
(a) Within nine calendar months after the effective date of this
AD,
(1) Remove seat footrest assembly arms, P/N 98440-1 or -2, in
accordance with the Accomplishment Instructions of PTC Aerospace
Service Bulletin (SB) 25-1192, Revision A, dated March 16, 1992.
(2) Install conversion kit, P/N 122966-1, in accordance with
Section 2, Accomplishment Instructions of PTC Seating Products
Division, B/E Aerospace SB 25-1330, dated July 27, 1994.
(b) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Boston Aircraft Certification
Office. The request should be forwarded through an appropriate FAA
Principal Maintenance Inspector, who may add comments and then send
it to the Manager, Boston Aircraft Certification Office.
Note: Information concerning the existence of approved
alternative methods of compliance with this airworthiness directive,
if any, may be obtained from the Boston Aircraft Certification
Office.
(c) The removal of seat footrest assembly arms and replacement
of the conversion kit shall be done in accordance with PTC Aerospace
Service Bulletin (SB) 25-1192, Revision A, dated March 16, 1992,
pages 1-5, and PTC Seating Products Division, B/E Aerospace SB 25-
1330, dated July 27, 1994, pages 1-12. This incorporation by
reference was approved by the Director of the Federal Register in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be
obtained from B/E Aerospace, PTC Seating Products Division, 607
Bantam Road, Litchfield, CT 06759. Copies may be inspected at the
FAA, New England Region, Office of the Assistant Chief Counsel, 12
New England Executive Park, Burlington, MA; or at the Office of the
Federal Register, 800 North Capital Street, NW., suite 700,
Washington, DC.
(d) This amendment becomes effective July 29, 1996.
Issued in Burlington, Massachusetts on June 4, 1996.
James C. Jones,
Acting Manager, Engine and Propeller Directorate, Aircraft
Certification Service.
[FR Doc. 96-15555 Filed 6-21-96; 8:45 am]
BILLING CODE 4910-13-U
Complete official Federal Register PDF
FR Doc. 96-15366 Acquisition Regulation; Department of Energy Management and Operating Contracts
[Federal Register Volume 61, Number 122 (Monday, June 24, 1996)]
[Rules and Regulations]
[Pages 32584-32587]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15366]
[[Page 32583]]
_______________________________________________________________________
Part V
Department of Energy
_______________________________________________________________________
48 CFR Part 917, et al.
Management and Operating Contracts; Interim Final Rule and Proposed
Rule
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules
and Regulations
[[Page 32584]]
DEPARTMENT OF ENERGY
48 CFR Parts 917 and 970
[1991-AB-09]
Acquisition Regulation; Department of Energy Management and
Operating Contracts
AGENCY: Department of Energy.
ACTION: Interim final rule with request for comment.
-----------------------------------------------------------------------
SUMMARY: The Department of Energy (DOE) today publishes an interim
rulemaking to set forth its policy regarding the competition and
extension of the Department's management and operating contracts. Under
its policy, the Department affirms its commitment to provide for full
and open competition in the award of its management and operating
contracts, except where the Department determines that competitive
procedures should not be used pursuant to one of the circumstances
authorized by the Competition in Contracting Act of 1984 (41 U.S.C.
254), as implemented in Part 6 of the Federal Acquisition Regulation.
This rulemaking implements one of the key recommendations of the
Department's contract reform initiative to improve its acquisition
system.
DATES: This interim rule is effective August 23, 1996. Written comments
should be forwarded no later than August 23, 1996.
ADDRESSES: Comments should be submitted to Connie P. Fournier, Office
of Policy (HR-51), Department of Energy, 1000 Independence Avenue, SW,
Washington, D.C. 20585; (202) 586-0545 (facsimile);
[email protected] (Internet).
The administrative record regarding this rulemaking that is on file
for public inspection is located in the Department's Freedom of
Information Reading Room, Room 1E-190, 1000 Independence Avenue, SW,
Washington, DC 20585.
FOR FURTHER INFORMATION CONTACT: Connie P. Fournier at (202) 586-8245.
SUPPLEMENTARY INFORMATION:
I. Background
II. Section-by-Section Analysis
III. Procedural Requirements
A. Review Under Executive Order 12866
B. Review Under Executive Order 12778
C. Review Under the Regulatory Flexibility Act
D. Review Under the Paperwork Reduction Act
E. Review Under Executive Order 12612
F. Review Under the National Environmental Policy Act
IV. Public Comments
I. Background
The Department's contracts for the management and operation of its
facilities have historically been subject to specialized rules
pertaining to their periodic extension. Under these rules, contained at
Department of Energy Acquisition Regulation (DEAR) 970.0001 and 917.6,
existing policy favored non-competitive extensions of incumbent
contractors. Competition was permitted only when it appeared likely
that the Government's position might be meaningfully improved in terms
of cost or performance and only then when it was determined that to
change a contractor would not be contrary to the best interest of the
Government. This resulted in noncompetition as the preferential norm.
The Department's Contract Reform Report, Making Contracting Work
Better and Cost Less (February 1994), in recommending a number of
changes, called for a reversal of this policy. Accordingly, the
Department published Acquisition Letter 94-14 in the Federal Register
(59 FR 50733), October 5, 1994, as an interim policy setting forth
guidelines for the competition or extension of the Department's
management and operating contracts. The interim policy established
competition as the preferential norm. Exceptions to competition were to
be made on a case-by-case basis, only in exceptional circumstances, and
only when authorized by the Head of the Agency. The intent was to
balance the positive effects of a competitive environment with the
recognition that long-term contractual relationships can facilitate
superior contractor performance, especially given the highly complex
and multi-faceted work performed under management and operating
contracts. The Department has competed, or is competing, a number of
management and operating contracts in accordance with this interim
policy.
After considering the comments received in response to the interim
policy, as set forth in Acquisition Letter 94-14, and its experience
under that policy, the Department has concluded that certain aspects of
the Acquisition Letter are appropriate for regulation, as modified for
consistency with applicable law. Other aspects of the Acquisition
Letter will be incorporated into nonregulatory internal Department
guidance. Under the rulemaking published today, the Department affirms
its commitment to full and open competition as the norm for its
management and operating contracts. Exceptions to the use of full and
open competition will be made on a case-by-case basis: (1) only in
accordance with the circumstances authorized by the Competition in
Contracting Act of 1984 (CICA) and Part 6 of the Federal Acquisition
Regulation (FAR), and (2) only when authorized by the Head of the
Agency. Adherence to the existing statutory requirements of CICA, as
implemented in FAR Part 6, preserves a preference for competition;
conforms the Department's decisionmaking process to noncompetitively
award contracts with Federal-wide standards found in statute and
regulation; and eliminates unnecessary, agency-specific regulations.
Today's interim rule supersedes both the Department's regulation that
created a noncompetitive norm and Acquisition Letter 94-14.
A notice of proposed rulemaking published elsewhere in this issue
of the Federal Register discusses changes proposed to the Department of
Energy Acquisition Regulation to implement other contract reform
recommendations. A third rulemaking that discusses the Department's fee
policies for profit making and nonprofit management and operating
contractors will be promulgated as a separate proposal. Together, these
three rulemakings constitute the Department's regulatory implementation
of certain key contract reform initiatives in its acquisition
regulation.
II. Section-by-Section Analysis
A detailed list of changes in the interim rule follows.
1. 917.602, Policy. This section is added to prescribe the
Department's policy to provide for full and open competition and the
use of competitive procedures in the award of management and operating
contracts, except as authorized by law and the Head of the Agency.
2. 917.605, Award, renewal, and extension. This section is amended
to remove the existing coverage at 917.605(b) that prescribes the
Department's internal processing and documentation requirements for
extend/compete decisions. This nonregulatory subject matter will be
reflected in internal Department guidance. A new section 917.605(d) is
added to provide for the conditional approval of any noncompetitive
extension (other than an extension accomplished by the exercise of an
option) subject to the successful achievement of the Government's
negotiation objectives. This section also permits adequate time to
compete the contract in the event that the negotiations cannot be
successfully concluded.
3. 970.0001, Renewal of management and operating contracts. This
section is
[[Page 32585]]
amended to delete the Department's previous policy that competition
generally would be used only when it appeared likely that the
Government's position might be meaningfully improved in terms of cost
or performance, unless it was determined that to change a contractor
would be contrary to the best interest of the Government. This section
is removed and reserved for future use.
4. 970.17, Special Contracting Methods. This subpart is added to
provide for coverage concerning contract term and options to extend
management and operating contracts.
5. 970.1702-1, Contract term and option to extend. This section is
added to provide policy guidance on (1) the total period of performance
permitted under a management and operating contract and (2) the
requirements governing the exercise of an option to extend the term of
an existing contract. Paragraph (a) of the section states that
management and operating contracts may provide for a base period of up
to 5 years and may include an option to extend the period of
performance for up to an additional total of 5 years. The purpose of
permitting the inclusion of an option to extend the term of the
contract is to facilitate long-term contractual relationships where the
mission of the Department is best served by such an extension and to
reward contractors for superior performance under the contract.
Regarding the exercise of options under paragraph (b), the
contracting officer may exercise an option to extend a competitively
awarded contract only after assessing certain factors, including the
contractor's past performance. The decision of the contracting officer
must be approved by the Head of the Contracting Activity and the
cognizant Assistant Secretary(s).
6. 970.1701-2, Solicitation provision and contract clause. This
section is added to provide instruction to the contracting officer on
the application of the solicitation provision and contract clause
pertaining to the use of options in management and operating contracts.
7. 970.5204-73, Notice regarding option. This section is added to
subpart 970.52, Contract clauses for management and operating
contracts, to provide a solicitation provision for options to extend
the term of the contract.
8. 970.5204-74, Option to extend the term of the contract. This
section is added to subpart 970.52, Contract clauses for management and
operating contracts, to provide a contract clause for options to extend
the term of the contract.
III. Procedural Requirements
A. Review Under Executive Order 12866
This regulatory action has been determined not to be a
``significant regulatory action'' under Executive Order 12866,
``Regulatory Planning and Review,'' (58 FR 51735, October 4, 1993).
Accordingly, this action was not subject to review, under that
Executive Order, by the Office of Information and Regulatory Affairs of
the Office of Management and Budget (OMB).
B. Review Under Executive Order 12988
With respect to the review of existing regulations and the
promulgation of new regulations, section 3(a) of Executive Order 12988,
``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on
Executive agencies the general duty to adhere to the following
requirements: (1) eliminate drafting errors and ambiguity; (2) write
regulations to minimize litigation; and (3) provide a clear legal
standard for affected conduct rather than a general standard and
promote simplification and burden reduction. With regard to the review
required by section 3(a), section 3(b) of Executive Order 12988
specifically requires that Executive agencies make every reasonable
effort to ensure that the regulation: (1) clearly specifies the
preemptive effect , if any; (2) clearly specifies any effect on
existing Federal law or regulation; (3) provides a clear legal standard
for affected conduct while promoting simplification and burden
reduction; (4) specifies the retroactive effect, if any; (5) adequately
defines key terms; and (6) addresses other important issues affecting
clarity and general draftsmanship under any guidelines issued by the
Attorney General. Section 3(c) of Executive Order 12988 requires
Executive agencies to review regulations in light of applicable
standards in section 3(a) and section 3(b) to determine whether they
are met or it is unreasonable to meet one or more of them. DOE has
completed the required review and determined that, to the extent
permitted by law, the interim final regulations meet the relevant
standards of Executive Order 12988.
C. Review Under the Regulatory Flexibility Act
This rule is not subject to review under the Regulatory Flexibility
Act of 1980, 5 U.S.C. 601, et seq., because it is not subject to a
legal requirement to publish a general notice of proposed rulemaking.
D. Review Under the Paperwork Reduction Act
No new information collection or recordkeeping requirements are
imposed by this rule. Accordingly, no Office of Management and Budget
clearance is required under the Paperwork Reduction Act of 1980 (44
U.S.C. 3501, et seq.).
E. Review Under Executive Order 12612
Executive Order 12612, entitled ``Federalism,'' 52 FR 41685
(October 30, 1987), requires that regulations, rules, legislation, and
any other policy actions be reviewed for any substantial direct effects
on States, on the relationship between the Federal Government and the
States, or in the distribution of power and responsibilities among
various levels of government. If there are sufficient substantial
direct effects, then the Executive Order requires preparation of a
federalism assessment to be used in all decisions involved in
promulgating and implementing a policy action. The Department has
determined that this rule will not have a substantial direct effect on
the institutional interests or traditional functions of States.
F. Review Under the National Environmental Policy Act
Pursuant to the Council on Environmental Quality Regulations (40
CFR 1500-1508), the Department has established guidelines for its
compliance with the provisions of the National Environmental Policy Act
(NEPA) of 1969 (42 U.S.C. 4321, et seq.). Pursuant to Appendix A of
Subpart D of 10 CFR 1021, National Environmental Policy Act
Implementing Procedures (Categorical Exclusion A6), the Department has
determined that this rule is categorically excluded from the need to
prepare an environmental impact statement or environmental assessment.
IV. Public Comments
A. Written Comments
Although the interim regulations published in this rule are not
substantive regulations with the kind of impact that warrants prior
notice, the Department is nevertheless providing an opportunity for
public comment. Interested persons are invited to participate by
submitting data, views, or arguments with respect to the DEAR
amendments set forth in this rule. Three copies of written comments
should be submitted to the address indicated in the ADDRESSES section
of this rule. In addition, it is requested that you provide a copy of
your comments on a
[[Page 32586]]
WordPerfect 6.1 or ASCII diskette. Comments may be sent to the Internet
address in the ADDRESSES section of this rule instead of the written
copies and diskette, provided they are transmitted in a WordPerfect 6.1
compatible format and include the name, title, organization, postal
address, and Internet address with the text of the comments. All
comments received will be available for public inspection in the
Department of Energy Reading Room, 1E-190, Forrestal Building, 1000
Independence Avenue, SW., Washington, D.C. 20585, between the hours of
9 a.m. and 4 p.m., Monday through Friday, except Federal holidays. All
written comments received on or before the date specified in the
beginning of this rule and all other relevant information will be
considered by the Department before taking final action. Comments
received after that date will be considered to the extent that time
allows. Any person submitting information which that person believes to
be confidential and which may be exempt from public disclosure should
submit one complete copy, as well as an additional copy from which the
information claimed to be confidential has been deleted. The Department
reserves the right to determine the confidential status of the
information or data and to treat it according to its determination. The
Department's generally applicable procedures for handling information
which has been submitted in a document and may be exempt from public
disclosure are set forth in 10 CFR 1004.11.
B. Public Hearing Determination
The Department has concluded that this rule does not involve any
significant issues of law or fact. Therefore, consistent with 5 U.S.C.
553, the Department has not scheduled a public hearing. However, a
public hearing will be held on the notice of proposed rulemaking
published elsewhere in this issue of the Federal Register on other
contract reform changes proposed to the Department of Energy
Acquisition Regulation. Any person who has an interest in those
proposed contract reform changes may request an opportunity to make an
oral presentation in accordance with the procedures described in that
rulemaking.
List of Subjects in 48 CFR Parts 917 and 970
Government procurement.
Issued in Washington, D.C., on June 7, 1996.
Richard H. Hopf,
Deputy Assistant Secretary for Procurement and Assistance Management.
For the reasons set out in the preamble, Chapter 9 of Title 48 of
the Code of Federal Regulations is amended as set forth below:
PART 917--SPECIAL CONTRACTING METHODS
1. The authority citation for Part 917 continues to read as
follows:
Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).
2. Subpart 917.6, Management and Operating Contracts, is amended to
add new section 917.602, Policy, to read as follows:
917.602 Policy.
(a) It is the policy of the Department of Energy to provide for
full and open competition in the award of management and operating
contracts, including performance-based management contracts.
(b) A management and operating contract may be awarded or extended
at the completion of its term without providing for full and open
competition only when such award or extension is justified under one of
the statutory authorities identified in FAR 6.302 and only when
authorized by the Head of the Agency. Documentation and processing
requirements for justifications for the use of other that full and open
competition shall be accomplished in accordance with internal agency
procedures.
3. Section 917.605 is revised to read as follows:
917.605 Award, renewal, and extension.
Conditional Authorization of Non-competitive Extension Made
Pursuant to Authority Under CICA. Authorization to extend by the Head
of the Agency shall be considered conditional upon the successful
negotiation of the contract to be extended in accordance with the
Department's negotiation objectives. The Head of the Contracting
Activity shall advise the Procurement Executive no later than 6 months
after receipt of the conditional authorization as to whether the
Department's objectives will be met and, if not, the contracting
activity's plans for competing the requirement.
PART 970--DOE MANAGEMENT AND OPERATING CONTRACTS
4. The authority citation for Part 970 continues to read as
follows:
Authority: Sec. 161 of the Atomic Energy Act of 1954 (42 U.S.C.
2201), sec. 644 of the Department of Energy Organization Act, Public
Law 95-91 (42 U.S.C. 7254).
970.0001 [Removed and reserved]
5. Section 970.0001 is removed and reserved.
6. Subpart 970.17, Special contracting methods, is added to read as
follows:
970.17 Special contracting methods.
970.1702-1 Term of contract and option to extend.
970.1702-2 Solicitation provision and contract clause.
970.1702-1 Term of contract and option to extend.
(a) Contract term. Effective work performance under a management
and operating contract is facilitated by the use of a relatively long
contract term of up to ten (10) years. Accordingly, management and
operating contracts shall provide for a basic contract term not to
exceed five (5) years and may include an option(s) to extend the term
for additional periods; provided, that no one option period exceeds
five (5) years in duration and the total term of the contract,
including any options exercised, does not exceed ten (10) years. The
specific term of the base period and of any options periods shall be
determined at the time of the authorization to compete or extend the
contract. The term ``option'' as used herein means a unilateral right
in the contract by which the Government can extend the term of the
contract. Accordingly, except as may be provided for through the
inclusion of an option(s) in the contract to extend the term, any
extension to continue the contract with the incumbent contractor beyond
its term shall only occur when such extension can be justified under
one of the statutory authorities identified in FAR 6.302 and when
authorized by the Head of the Agency.
(b) Exercise of option. As part of the review required by FAR
17.605(b), the contracting officer shall assess whether competing the
contract will produce a more advantageous offer than exercising the
option. The incumbent contractor's past performance under the contract,
the extent to which performance-based management contract provisions
are present, or can be negotiated into, the contract, and the impact of
a change in a contractor on the Department's discharge of its programs
are considerations that shall be addressed in the contracting officer's
decision that the exercise of the option is in the Government's best
interest. The contracting officer's decision shall be approved by the
Procurement Executive and the cognizant Assistant Secretary(s).
[[Page 32587]]
970.1702-2 Solicitation provision and contract clause.
(a) The contracting officer shall insert a provision substantially
the same as the provision at 48 CFR (DEAR) 970.5204-73, Notice
Regarding Options, in solicitations when the inclusion of an option to
extend the term of the contract has been authorized.
(b) The contracting officer shall insert the clause at 48 CFR
(DEAR) 970.5204-74, Option to extend the term of the contract, when the
inclusion of an option to extend the term of the contract has been
authorized.
7. Subpart 970.52 is amended by adding sections 970.5204-73, Notice
regarding options, and 970.5204-74, Option to extend the term of the
contract, to read as follows:
970.5204-73 Notice regarding options.
As prescribed in 48 CFR (DEAR) 970.1702-2(a), insert the following
provision:
Notice Regarding Options (June 1996)
The contract resulting from this solicitation is expected to
include one or more options to extend the term of the contract.
Exercise of any option to extend the term of contract will be at the
unilateral right of the Department of Energy. The contractor's
performance under the basic contract, including any previously
exercised options, will be among the significant considerations in
the Department's decision to exercise any option.
970.5204-74 Option to extend the term of the contract.
As prescribed in 48 CFR (DEAR) 970.1702-2(b), insert the following
clause:
Option to Extend the Term of The Contract (June 1996)
(a) The Department of Energy may unilaterally extend the term of
this performance-based management contract by written notice to the
contractor within [Insert the period of time in which the
contracting officer has to exercise the option]; provided, that the
Department of Energy shall give the contractor a preliminary written
notice of its intent to extend at least twelve (12) months before
the basic term of the contract expires. The preliminary notice does
not commit the Department of Energy to an extension.
(b) The option(s) to extend the contract is identified in
[Specify section of contract and clause number and name] of the
contract. The Department of Energy may exercise any, or all, of the
options identified in the contract. The total duration of this
contract, including the exercise of any option(s) under this clause,
shall not exceed 120 months.
[FR Doc. 96-15366 Filed 6-21-96; 8:45 am]
BILLING CODE 6450-01-P
Complete official Federal Register PDF
FR Doc. 96-14824 Notification of Foreign Official Status; Elimination and Reinvention of Regulations
[Federal Register Volume 61, Number 122 (Monday, June 24, 1996)]
[Rules and Regulations]
[Pages 32327-32328]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14824]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF STATE
Office of Protocol
22 CFR Part 4
[Public Notice 2402]
Notification of Foreign Official Status; Elimination and
Reinvention of Regulations
AGENCY: Office of Protocol, State.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of State is eliminating and reinventing its
regulations as part of the President's Regulatory Reinvention
Initiative. In furtherance of this project, the Office of Protocol has
determined that 22 CFR Part 4 should be updated and clarified to
reflect changes which have occurred since that part originally was
published.
EFFECTIVE DATE: June 24, 1996.
FOR FURTHER INFORMATION CONTACT:
Lawrence Dunham, Assistant Chief of Protocol (202) 647-1985.
SUPPLEMENTARY INFORMATION: 22 CFR, Part 4 is that portion of the
Department's regulations setting forth
[[Page 32328]]
the rules which foreign embassies must follow to notify the Office of
Protocol of the arrival or employment, in the United States, of the
foreign government officers or employees (including domestics and
family members) described below. Since it originally was promulgated,
changes in the notification procedure, as well as in the documents
required, have taken place, and the Department has determined that it
is desirable to update and simplify the regulations. This involves a
foreign affairs function of the United States and thus is excluded from
5 U.S.C. 553 and from analyses under the Regulatory Flexibility Act of
1980. In addition the modifications set forth do not change the
existing procedure fundamentally and merely reflect changes (such as
new form numbers) which already have gone into effect.
While this rule is legally exempt from review under Executive Order
12866, it has been reviewed to ensure consistency with its overall
policies and objectives. This final rule does not contain a new or
amended information requirement subject to the Paperwork Reduction Act
(44 U.S.C. 3501 et seq.). The forms referenced in the regulation have
been notified in the Federal Register and approved by OMB as required
by that act.
List of Subjects in 22 CFR Part 4
Aliens, Foreign officials.
Accordingly, 22 CFR, Part 4 is revised to read as follows:
PART 4--NOTIFICATION OF FOREIGN OFFICIAL STATUS
Authority: 22 U.S.C. 2651a(a)(4).
Sec. 4.1 General.
In accordance with Article 10 of the Vienna Convention on
Diplomatic Relations and Article 24 of the Vienna Convention on
Consular Relations, diplomatic missions must notify the Office of
Protocol immediately upon the arrival, in the United States, of any
foreign government officer or employee (including domestics and family
members), who are serving at diplomatic missions, consular posts, or
miscellaneous foreign government offices. If the employee is already in
the United States in some other capacity, the notification should be
made upon assumption of duties. This initial notification requirement
also includes all U.S. citizens and permanent resident aliens who are
employed by foreign missions.
Sec. 4.2 Procedure.
Notification and subsequent changes are made as follows:
(a) Diplomatic and career consular officers and their dependents:
Form DSP-110, Notification of Appointment of Foreign Diplomatic Officer
and Career Consular Officer;
(b) All other foreign government employees who are serving at
diplomatic missions, consular posts, or miscellaneous foreign
government offices and their dependents: Form DSP-111, Notification of
Appointment of Foreign Government Employee.
(c) Honorary consular officers: Form DSP-112, Notification of
Appointment of Honorary Consular Officer.
(d) Missions should use Form DSP-113, Notification of Change--
Identification Card Request, to promptly inform the Department of State
of any change in the status of officers or employees of the missions
and their family members originally reported to Protocol, or to apply
for an identification card.
(e) Upon termination of employment of any diplomatic or consular
officer, honorary consular officer, embassy or consular employee, or
miscellaneous foreign government staff member, a Form DSP-115, Notice
of Termination of Diplomatic, Consular, or Foreign Government
Employment, must be submitted to the Office of Protocol.
Dated: May 29, 1996.
Molly Raiser,
Chief of Protocol.
[FR Doc. 96-14824 Filed 6-21-96; 8:45 am]
BILLING CODE 4710-20-M
Complete official Federal Register PDF
FR Doc. 96-14246 Transportation for Individuals With DisabilitiesCorrection of Organizational References
[Federal Register Volume 61, Number 122 (Monday, June 24, 1996)]
[Rules and Regulations]
[Pages 32354-32355]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14246]
=======================================================================
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DEPARTMENT OF TRANSPORTATION
Office of the Secretary
49 CFR Parts 27 and 28
Transportation for Individuals With Disabilities--Correction of
Organizational References
AGENCY: Office of the Secretary, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Transportation proposes to amend its rules
to reflect a statutory change in the name of the Department's transit
agency from the Urban Mass Transportation Administration (UMTA) to the
Federal Transit Administration (FTA).
EFFECTIVE DATE: This rule is effective July 24, 1996.
FOR FURTHER INFORMATION CONTACT: Robert C. Ashby, Deputy Assistant
General Counsel for Regulation and Enforcement, Department of
Transportation, 400 7th Street, S.W., Washington, D.C. 20590. (202)
366-9306 (voice); (202)755-7687(TDD).
SUPPLEMENTARY INFORMATION: In his Regulatory Reinvention Initiative
Memorandum of March 4, 1995, President Clinton directed Federal
agencies to conduct a page-by-page review of all their regulations and
to ``eliminate or revise those that are outdated or otherwise in need
of reform.'' In response to that directive, the Department has
undertaken a review of its regulations as contained in 49 CFR Parts 27
and 28. This rule is a result of those efforts. Pursuant to the name
change mandated by Title III--Federal Transit Act Amendments of 1991,
of the Intermodal Surface Transportation Efficiency Act of 1991 (P.L.
102-240), the words ``Urban Mass Transportation Administration'' are
changed to the words ``Federal Transit Administration'' in every
instance in which those words appear; and the letters ``UMTA'' are
changed to the letters ``FTA'' in every instance in which those letters
appear.
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
This rule is not a significant regulatory action under section 3(f)
of Executive Order 12866. It has not been reviewed by the Office of
Management and Budget under that order. It is not significant under the
regulatory policies and procedures of the Department of Transportation
(DOT) (44 FR 11040, February 26, 1979). Because this rule is editorial
in nature, it involves no costs and no economic evaluation has been
prepared.
In accordance with the Regulatory Flexibility Act, the Department
has evaluated the effects of this action on small entities. Based upon
this evaluation, the Department certifies that the amendment will not
have a significant economic impact on a substantial number of small
entities.
Executive Order 12612 (Federalism)
These amendments have been analyzed in accordance with the
principles and criteria contained in Executive Order 12612. The
Department has determined that the amendments do not have sufficient
federalism implications to warrant the preparation of a Federalism
Assessment. The amendments will not have a substantial direct effect on
the States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government.
National Environmental Policy Act
The Department has also analyzed the amendments for the purpose of
the National Environmental Policy Act. The amendments will not have any
significant impact on the quality of the human environment.
Paperwork Reduction Act
There are no reporting or recordkeeping requirements associated
with the amendments.
Notice and Opportunity for Public Comment Unnecessary
Under the Administrative Procedure Act (5 U.S.C. section 553), the
Department determines that notice and an opportunity for public comment
are unnecessary and contrary to the public interest. The amendments
made in this document are ministerial and will have no substantive
impact.
List of Subjects
49 CFR Part 27
Administrative practice and procedure, Airports, Civil rights,
Highways and roads, Individuals with disabilities, Mass transit,
Railroads, Reports and recordkeeping requirements.
49 CFR Part 28
Administrative practice and procedure, Civil rights, Equal
employment opportunity, Federal buildings and facilities, Individuals
with disabilities, Mass transit, Railroads, Reports and recordkeeping
requirements.
PART 27--[AMENDED]
1. The authority citation for Part 27 is revised to read as
follows:
Authority: Sec. 504 of the Rehabilitation Act of 1973, as
amended (29 U.S.C. 794); secs. 16(a) and 16(d) of the Federal
Transit Laws (49 U.S.C. Chapter 5301 et seq.); sec. 165(b) of the
Federal-aid Highway Act of 1973 (49 U.S.C. 142nt.); the Americans
with Disabilities Act of 1990 (42 U.S.C. 12101-12213; and 49 U.S.C.
322).
Sec. 27.5 Definitions [Amended]
2. In the definition of ``Head of Operating Administration'' in
Sec. 27.5, remove the words ``Urban Mass Transportation
Administration,'' and in their place, add the words ``Federal Transit
Administration''.
Sec. 27.19 Compliance with Americans with Disabilities Act
requirements and FTA policy--[Amended]
3. The heading of Sec. 27.19 is revised to read as set forth above.
4. In Sec. 27.19(b), remove the word ``UMTA,'' and add, in its
place, the word ``FTA''; remove the words ``Urban Mass Transportation
Administration,'' and add, in their place, the words ``Federal Transit
Administration.''
PART 28--[AMENDED]
5. The authority citation for Part 28 continues to read as follows:
Authority: 29 U.S.C. 794.
Sec. 28.103 Definitions [Amended]
6. In Sec. 28.103, paragraph (g) of the difinition of
``Departmental Element'', remove the words ``Urban Mass Transportation
Administration (UMTA),'' and in their place, add the words ``Federal
Transit Administration (FTA).''
[[Page 32355]]
Issued on Washington, DC, on May 31, 1996.
Federico Pena,
Secretary of Transportation.
[FR Doc. 96-14246 Filed 6-21-96; 8:45 am]
BILLING CODE 4910-62-P
Complete official Federal Register PDF
FR Doc. 96-13986 Nevada: Final Authorization of State Hazardous Waste Management Program Revisions
[Federal Register Volume 61, Number 122 (Monday, June 24, 1996)]
[Rules and Regulations]
[Pages 32345-32346]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13986]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 271
[FRL-5510-9]
Nevada: Final Authorization of State Hazardous Waste Management
Program Revisions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Immediate final rule.
-----------------------------------------------------------------------
SUMMARY: The State of Nevada has applied for final authorization of
revisions to its hazardous waste program under the Resource
Conservation and Recovery Act (RCRA), as amended. The Environmental
Protection Agency (EPA) has completed its review of Nevada's
application and has made a decision, subject to public review and
comment, that Nevada's hazardous waste program revisions satisfy all of
the requirements necessary to qualify for final authorization. Thus,
EPA intends to approve Nevada's hazardous waste program revisions.
Nevada's application for program revision is available for public
review and comment.
DATES: Final authorization for Nevada is effective August 23, 1996.
Unless EPA publishes a prior Federal Register action withdrawing this
immediate final rule. All comments on Nevada's program revision
application must be received by the close of business July 24, 1996.
ADDRESSES: Copies of Nevada's program revision application is available
during the business hours of 9:00 a.m. to 5:00 p.m. at the following
addresses for inspection and copying:
Nevada Department of Conservation and Natural Resources, Division of
Environmental Protection, 333 W. Nye Lane, Carson City, NV 89710 Phone:
702/687-5872, Contact L. H. Dodgion, Administrator
U.S. EPA Region IX Library-Information Center, 75 Hawthorne Street, San
Francisco, CA 94105 Phone: 415/744-1510.
Written comments should be sent to Lisa McClain-Vanderpool, U.S.
EPA Region IX (H-4), 75 Hawthorne Street, San Francisco, CA 94105
Phone: 415/744-2086.
FOR FURTHER INFORMATION CONTACT: Lisa McClain-Vanderpool , U.S. EPA
Region IX (H-4), 75 Hawthorne Street, San Francisco, CA 94105 Phone:
415/744-2086.
SUPPLEMENTARY INFORMATION:
A. Background
States with final authorization under section 3006(b) of the
Resource Conservation and Recovery Act (``RCRA'' or ``the Act''), 42
U.S.C. 6929(b), have a continuing obligation to maintain a hazardous
waste program that is equivalent to, consistent with, and no less
stringent than the Federal hazardous waste program. Revisions to State
hazardous waste programs are necessary when Federal or State statutory
or regulatory authority is modified or when certain other changes
occur. Most commonly, State program revisions are necessitated by
changes to EPA's regulations in 40 CFR parts 260-266, 268, 124, 270 and
279.
B. Nevada
Nevada initially received final authorization for the base program
on November 1, 1985. On June 12, 1995, Nevada received final
authorization for revisions to its hazardous waste program, which
included substantially all the Federal RCRA implementing regulations
published in the Federal Register through July 1, 1994. On March 28,
1996, Nevada submitted an application for additional revision
approvals. Nevada is seeking approval of its program revisions in
accordance with 40 CFR 271.21.
EPA has reviewed Nevada's application, and has made an immediate
final decision that Nevada's hazardous
[[Page 32346]]
waste program revisions satisfy all of the requirements necessary to
qualify for final authorization. Consequently, EPA intends to approve
final authorization for Nevada's hazardous waste program revisions. The
public may submit written comments on EPA's immediate final decision up
until July 24, 1996. Copies of Nevada's applications for program
revision are available for inspection and copying at the locations
indicated in the Addresses section of this notice.
Approval of Nevada's program revisions is effective in 60 days
unless an adverse comment pertaining to the State's revisions discussed
in this notice is received by the end of the comment period. If an
adverse comment is received, EPA will publish either (1) a withdrawal
of the immediate final decision or (2) a notice containing a response
to the comment which either affirms that the immediate final decision
takes effect or reverses the decision.
Nevada is applying for authorization for changes and additions to
the Federal RCRA implementing regualtions that occurred between July 1,
1994 and July 1, 1995, including the following Federal hazardous waste
regulations:
------------------------------------------------------------------------
Federal requirement State analog
------------------------------------------------------------------------
Recovered oil exclusion; (59 FR Nevada Revised Statutes (NRS) 459.485
38536, July 28, 1994). and 459.490; Nevada Administrative
Code (NAC) 444.8632 through 444.8634
and regulations included as Section
4 of LCB File No. R027-95.
Removal of the conditional Same as above.
exemption for certain slag
residues; (59 FR 43496, August
24, 1994).
Universal treatment standards and Same as above.
treatment standards for organic
toxicity characteristic wastes
and newly listed wastes; (59 FR
47982, September 19, 1994).
Organic air emission standards Same as above.
for tanks, surface impoundments,
and containers; amendment; (59
FR 62896, December 6, 1994 and
60 FR 26828, May 19, 1995).
Hazardous Waste Management Same as above.
System; Testing and monitoring
activities amendment I; (60 FR
3089, January 13, 1995).
Carbamate production Same as above.
identification and listing of
hazardous waste; (60 FR 7824,
February 9, 1995).
Hazardous Waste Management Same as above.
System; Testing and monitoring
activities amendment II; (60 FR
17001, April 4, 1995).
Universal Waste Rule; (60 FR Same as above.
25492, May 11, 1995) Removal of
legally obsolete rules; (60 FR
33912, June 29, 1995).
------------------------------------------------------------------------
Note: NRS 459.485 effective 1981, amended 1991; NRS 459.490 effective
1981, amended 1987. NAC 444.8632 adopts by reference 40 CFR part 2,
subpart A; part 124, subparts A and B; parts 260 through 270,
inclusive; part 273 and part 279 as modified by NAC 444.8633, NAC
444.8634, 444.86325 and the regulations included as Section 4 of LCB
file no. R027-95 (filed with the Secretary of State on November 9,
1995).
Nevada agrees to review all State hazardous waste permits which
have been issued under State law prior to the effective date of this
authorization. Nevada agrees to then modify or revoke and reissue such
permits as necessary to require compliance with the amended State
program. The modifications or revocation and reissuance will be
scheduled in the annual State Grant Work Plan.
Nevada is not being authorized to operate any portion of the
hazardous waste program on Indian lands.
C. Decision
I conclude that Nevada's application for program revision meets all
of the statutory and regulatory requirements established by RCRA.
Accordingly, Nevada is granted final authorization to operate its
hazardous waste program as revised.
Nevada is now responsible for permitting treatment, storage, and
disposal facilities within its borders and carrying out the aspects of
the RCRA program described in its revised program application, subject
to the limitations of the Hazardous and Solid Waste Amendments of 1984
(Public Law 98-616, November 8, 1984) (``HSWA''). Nevada also has
primary enforcement responsibilities, although EPA retains the right to
conduct inspections under section 3007 of RCRA and to take enforcement
actions under section 3008, 3013 and 7003 of RCRA.
Compliance With Executive Order 12866
The Office of Management and Budget has exempted this rule from the
requirements of Section 6 of Executive Order 12866.
Certification Under the Regulatory Flexibility Act
Pursuant to the provisions of 5 USC 605(b), I hereby certify that
this authorization will not have a significant economic impact on a
substantial number of small entities. This authorization effectively
suspends the applicability of certain Federal regulations in favor of
Nevada's program, thereby eliminating duplicative requirements for
handlers of hazardous waste in the State. It does not impose any new
burdens on small entities. This rule, therefore, does not require a
regulatory flexibility analysis.
List of Subjects in 40 CFR Part 271
Environmental Protection, Administrative practice and procedure,
Confidential business information, Hazardous materials transportation,
Hazardous waste, Indian lands, Intergovernmental relations, Penalties,
Reporting and recordkeeping requirements, Water pollution control,
Water supply.
Authority: This notice is issued under the authority of Sections
2002(a), 3006 and 7004(b) of the Solid Waste Disposal Act as amended
42 U.S.C. 6912(a), 6926, 6974(b).
Dated: May 20, 1996.
Felicia Marcus,
Regional Administrator.
[FR Doc. 96-13986 Filed 6-21-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-13521 Medicare and Medicaid Programs; Provider Appeals: Technical Amendments
[Federal Register Volume 61, Number 122 (Monday, June 24, 1996)]
[Rules and Regulations]
[Pages 32346-32351]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13521]
=======================================================================
-----------------------------------------------------------------------
[[Page 32347]]
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Health Care Financing Administration
42 CFR Parts 405, 417, 431, 473, and 498
[BPD-704-FC]
Medicare and Medicaid Programs; Provider Appeals: Technical
Amendments
AGENCY: Health Care Financing Administration (HCFA), HHS.
ACTION: Final rule with comment period.
-----------------------------------------------------------------------
SUMMARY: This rule amends the HCFA regulations pertaining to appeals
procedures available to providers and suppliers dissatisfied with
determinations that affect their participation in Medicare or Medicaid.
These are technical amendments that simplify, clarify, and update
existing rules without substantive change.
DATES: Effective date: July 24, 1996.
Comment date: August 23, 1996.
ADDRESSES: Please mail written comments (an original and three copies)
to the following address: Health Care Financing Administration,
Department of Health and Human Services, Attention: BPD-704-FC, P.O.
Box 26676, Baltimore, MD 21207,
If you prefer, you may deliver your comments (original and three
copies) to either of the following addresses:
Room 309-G, Hubert H. Humphrey Building, 200 Independence Avenue, SW,
Washington, DC 20201
Room C5-09-26 7500 Security Boulevard, Baltimore, MD 21244-1850.
Because of staffing and resource limitations, we cannot accept
comments by facsimile (FAX) transmission. In commenting, please refer
to file code BPD-704-FC. Comments received timely will be available for
public inspection as they are received, generally beginning
approximately 3 weeks after publication of the document, in Room 309-G
of the Department's offices at 200 Independence Avenue, SW.,
Washington, DC, Monday through Friday of each week from 8:30 a.m. to 5
p.m. (phone: (202) 690-7890).
FOR FURTHER INFORMATION CONTACT: Luisa V. Iglesias, (202) 690-6383.
SUPPLEMENTARY INFORMATION:
A. Background
Part 498 of the HCFA regulations sets forth the rules for
administrative and judicial review of Federal determinations that
affect participation in Medicare and, in some instances, in Medicaid.
Part 431 of those regulations sets forth the appeals procedures for
State determinations that affect participation in Medicaid.
A final rule identified as HSQ-156-F (Survey, Certification, and
Enforcement for Skilled Nursing Facilities and Nursing Facilities),
published on November 10, 1994 (59 FR 56116) amended both of those
parts. The changes made by HSQ-156-F implement statutory amendments
which provide that, for long-term care facilities with deficiencies,
the State must establish remedies to be imposed in lieu of, or in
addition to, termination of the facility's provider agreement.
B. Provisions of This Rule
This rule makes the following technical and editorial changes:
1. Makes nomenclature changes throughout chapter IV to reflect the
fact that review of a hearing decision is now the responsibility of the
Departmental Appeals Board, not the Appeals Council.
2. Simplifies and clarifies Secs. 431.151 and 431.153 of the
Medicaid appeals regulations, primarily by putting related content
together and by providing descriptive headings for more paragraphs and
paragraph subdivisions.
3. Updates Sec. 498.1 (Statutory basis) to conform to changes in
the applicable statutory provisions (for example, section 1866(h)
rather than 1869(c), and section 1128A instead of previously specified
subsections of section 1866(b)(2)). This requires removal of paragraph
(e). Paragraph (f) is removed because there have been changes in
delegations of authority and, since those changes are likely to
continue, it is not possible to ensure that the paragraph could always
be kept up to date.
4. Amends Sec. 498.2 (Definitions) to substitute a definition of
``Departmental Appeals Board'' for the definition of ``Appeals
Council'', make the conforming nomenclature changes, and amend the
definition of ``provider'' to remove reference to ``a nursing facility
(NF) or intermediate care facility for the mentally retarded (ICF/
MR)''. These Medicaid providers are not subject to all part 498
provisions and are appropriately covered in the Medicaid rules and as
indicated under items 6 and 7, below.
5. Expands Sec. 498.3 (Scope and applicability) to identify and
give the location of other rules that make the part 498 provisions
applicable to certain determinations that do not affect participation
in Medicare.
6. Amends Sec. 498.5 (Appeal rights) to specify the appeal rights
of NFs.
7. Amends Secs. 498.60 (Conduct of hearing) and 498.61 (Evidence)
to make clear that limits on the scope of review in appeals from civil
money penalties affect the conduct of the hearing.
8. Amends Sec. 498.74 (Administrative Law Judge's decision) to make
the nomenclature changes and to specify that, for civil money
penalties, judicial review must be sought in a United States Court of
Appeals (rather than in a United States District Court, as is the case
for other alternative sanctions).
9. Revises Sec. 498.90 (Effect of Departmental Appeals Board
decision) to simplify and clarify the policy. This requires
reorganization and moving recently added content to a more appropriate
location, the section on appeal rights, specifically current paragraph
(c) and new paragraph (k) of Sec. 498.5.
C. Waiver of Proposed Rulemaking
The changes made by this rule are technical and editorial in
nature. They simplify, clarify, and update certain existing regulations
without substantive change. They have no impact on program costs.
Accordingly, we find that prior notice and opportunity for public
comment are unnecessary and contrary to the public interest, and that,
therefore, there is good cause to waive proposed rulemaking procedures.
However, as previously indicated, we will consider timely comments
from anyone who believes that, in making the technical and editorial
changes, we have unintentionally altered the substance. Although we
cannot respond to comments individually, if we change these rules as a
result of comments, we will discuss all timely comments in the preamble
to the revised rules.
D. Paperwork Reduction Act
This rule contains no information collection requirements subject
to review by the Office of Management and Budget under the Paperwork
Reduction Act.
E. Regulatory Impact Statement
Consistent with the Regulatory Flexibility Act (RFA) and section
1102(b) of the Social Security Act, we prepare a regulatory flexibility
analysis for each regulation unless we can certify that the particular
regulation will not have a significant economic impact on a substantial
number of small entities, or a significant impact on the operation of a
substantial number of small rural hospitals.
The RFA defines ``small entity'' as a small business, a nonprofit
enterprise, or a governmental jurisdiction (such as
[[Page 32348]]
a county, city, or township) with a population of less than 50,000. We
also consider all providers and suppliers of services to be small
entities. For purposes of section 1102(b) of the Act, we define small
rural hospital as a hospital that has fewer than 50 beds, and is not
located in a Metropolitan Statistical Area.
We have not prepared a regulatory flexibility analysis because we
have determined, and we certify, that this rule will not have a
significant impact on a substantial number of small entities or a
significant impact on the operation of a substantial number of small
rural hospitals.
In accordance with the provisions of Executive Order 12866, this
rule was not reviewed by the Office of Management and Budget.
List of Subjects
42 CFR Part 405
Administrative practice and procedure, Health facilities, Health
professions, Kidney diseases, Medicare, Reporting and record keeping
requirements, Rural areas, X-rays
42 CFR Part 417
Administrative practice and procedure, Grant programs--health,
Health care, Health facilities Health insurance, Health maintenance
organizations(HMOs), Loan programs--health, Medicare, Reporting and
record keeping requirements.
42 CFR Part 431
Grant programs--health, Health facilities, Medicaid, Privacy,
Reporting and recordkeeping requirements.
42 CFR Part 473
Administrative practice and procedure, Health care, Health
professions, Peer review organizations,(PROs), Reporting and record
keeping requirements.
42 CFR Part 498
Administrative practice and procedure, Health facilities, Health
professions, Medicare, Reporting and recordkeeping requirements.
42 CFR Chapter IV is amended as set forth below.
PART 405--FEDERAL HEALTH INSURANCE FOR THE AGED AND DISABLED
A. Part 405, subpart G is amended as set forth below.
1. The authority citation for subpart G is revised to read as
follows:
Authority: Secs. 1102, 1155, 1869(b), 1871, 1872, and 1879 of
the Social Security Act (42 U.S.C. 1302, 1320c-4, 1395ff(b), 1395hh,
1395ii, and 1395pp).
Secs. 405.718a, 405.718c, 405.718e, 405.724, 405.730,
405.750 [Amended]
2. In the following sections, ``Appeals Council'' is revised to
read ``Departmental Appeals Board'' each time it appears: Secs. 405.718
introductory text, 405.718a(b)(4), 405.718c(a)(2)(ii), 405.718e,
405.724, 405.730, and 405.750 heading and paragraph (b) introductory
text.
B. Part 405, subpart H is amended as set forth below.
1. The authority citation for subpart H continues to read as
follows:
Authority: Secs 1102, 1842(b)(3)(C), 1869(b), and 1871 of the
Social Security Act (42 U.S.C. 1302, 1395u(b)(3)(C), 1395ff(b), and
1395hh).
Sec. 405.815 [Amended]
2. In Sec. 405.815, ``Appeals Council'' is revised to read
``Departmental Appeals Board''.
PART 417--HEALTH MAINTENANCE ORGANIZATIONS, COMPETITIVE MEDICAL
PLANS, AND HEALTH CARE PREPAYMENT PLANS
C. Part 417 is amended as set forth below.
1. The authority citation for part 417 continues to read as
follows:
Authority: Secs. 1102 and 1871 of the Social Security Act (42
U.S.C. 1302 and 1395hh), Title XIII of the Public Health Service Act
(42 U.S.C. 300e through 300e-17), and 31 U.S.C. 9701, unless
otherwise noted.
Secs. 417.634, 417.636, 417.638, 417.830, 417.840 [Amended]
2. In the following sections, ``Appeals Council'' is revised to
read ``Departmental Appeals Board'': Secs. 417.634 heading and text,
417.636 paragraphs (a)(1), and (b) heading and introductory text,
417.638, 417.830, and 417.840.
PART 431--STATE ORGANIZATION AND GENERAL ADMINISTRATION
D. Part 431 is amended as set forth below.
1. The authority citation for part 431 continues to read as
follows:
Authority: Sec. 1102 of the Social Security Act (42 U.S.C.
1302).
Sec. 431.151 [Revised]
2. Section 431.151 is revised to read as follows:
Subpart D--Appeals Process
Sec. 431.151 Scope and applicability.
(a) General rules. This subpart sets forth the appeals procedures
that a State must make available as follows:
(1) To a nursing facility (NF) that is dissatisfied with a State's
finding of noncompliance that has resulted in one of the following
adverse actions:
(i) Denial or termination of its provider agreement.
(ii) Imposition of a civil money penalty or other alternative
remedy.
(2) To an intermediate care facility for the mentally retarded
(ICF/MR) that is dissatisfied with a State's finding of noncompliance
that has resulted in the denial, termination, or nonrenewal of its
provider agreement.
(b) Special rules. This subpart also sets forth the special rules
that apply in particular circumstances, the limitations on the grounds
for appeal, and the scope of review during a hearing.
Sec. 431.152 [Amended]
3. In Sec. 431.152, ``Secs. 431.153 through 431.154'' is revised to
read ``Secs. 431.153 and 431.154''.
4. Section 431.153 is revised to read as follows:
Sec. 431.153 Evidentiary hearing.
(a) Right to hearing. Except as provided in paragraph (b) of this
section, and subject to the provisions of paragraphs (c) through (j) of
this section, the State must give the facility a full evidentiary
hearing for any of the actions specified in Sec. 431.151.
(b) Limit on grounds for appeal. The following are not subject to
appeal:
(1) The choice of sanction or remedy.
(2) The State monitoring remedy.
(3) The loss of approval for a nurse-aide training program.
(4) The level of noncompliance found by a State except when a
favorable final administrative review decision would affect the range
of civil money penalty amounts the State could collect.
(c) Notice of deficiencies and impending remedies. The State must
give the facility a written notice that includes:
(1) The basis for the decision; and
(2) A statement of the deficiencies on which the decision was
based.
(d) Request for hearing. The facility or its legal representative
or other authorized official must file written request for hearing
within 60 days of receipt of the notice of adverse action.
(e) Special rules: Denial, termination or nonrenewal of provider
agreement. (1) Appeal by an ICF/MR. If an ICF/MR requests a hearing on
denial, termination, or nonrenewal of its provider agreement--
(i) The evidentiary hearing must be completed either before, or
within 120 days after, the effective date of the adverse action; and
(ii) If the hearing is made available only after the effective date
of the
[[Page 32349]]
action, the State must, before that date, offer the ICF/MR an informal
reconsideration that meets the requirements of Sec. 431.154.
(2) Appeal by an NF. If an NF requests a hearing on the denial or
termination of its provider agreement, the request does not delay the
adverse action and the hearing need not be completed before the
effective date of the action.
(f) Special rules: Imposition of remedies. If a State imposes a
civil money penalty or other remedies on an NF, the following rules
apply:
(1) Basic rule. Except as provided in paragraph (f)(2) of this
section (and notwithstanding any provision of State law), the State
must impose all remedies timely on the NF, even if the NF requests a
hearing.
(2) Exception. The State may not collect a civil money penalty
until after the 60-day period for request of hearing has elapsed or, if
the NF requests a hearing, until issuance of a final administrative
decision that supports imposition of the penalty.
(g) Special rules: Dually participating facilities. If an NF is
also participating or seeking to participate in Medicare as an SNF, and
the basis for the State's denial or termination of participation in
Medicaid is also a basis for denial or termination of participation in
Medicare, the State must advise the facility that--
(1) The appeals procedures specified for Medicare facilities in
part 498 of this chapter apply; and
(2) A final decision entered under the Medicare appeals procedures
is binding for both programs.
(h) Special rules: Adverse action by HCFA. If HCFA finds that an NF
is not in substantial compliance and either terminates the NF's
Medicaid provider agreement or imposes alternative remedies on the NF
(because HCFA's findings and proposed remedies prevail over those of
the State in accordance with Sec. 488.452 of this chapter), the NF is
entitled only to the appeals procedures set forth in part 498 of this
chapter, instead of the procedures specified in this subpart.
(i) Required elements of hearing. The hearing must include at least
the following:
(1) Opportunity for the facility--
(i) To appear before an impartial decision-maker to refute the
finding of noncompliance on which the adverse action was based;
(ii) To be represented by counsel or other representative; and
(iii) To be heard directly or through its representative, to call
witnesses, and to present documentary evidence.
(2) A written decision by the impartial decision-maker, setting
forth the reasons for the decision and the evidence on which the
decision is based.
(j) Limits on scope of review: Civil money penalty cases. In civil
money penalty cases--
(1) The State's finding as to a NF's level of noncompliance must be
upheld unless it is clearly erroneous; and
(2) The scope of review is as set forth in Sec. 488.438(e) of this
chapter.
Sec. 431.154 [Amended]
5. In Sec. 431.154, the following changes are made:
a. Paragraph (a) and the designation ``(b)'' are removed.
b. Paragraphs (b)(1), (b)(2), and (b)(3) are redesignated as
paragraphs (a), (b), and (c), respectively.
PART 473--RECONSIDERATIONS AND APPEALS
E. Part 473 is amended as set forth below.
1. The authority citation for part 473 continues to read as
follows:
Authority: Secs. 1102 and 1871 of the Social Security Act (42
U.S.C. 1302 and 1395hh).
Secs. 473.22, 473.46, 473.48 [Amended]
2. In the following sections, ``Appeals Council'' is revised to
read ``Departmental Appeals Board'' each time it appears:
Secs. 473.22(b)(5), 473.46 heading and paragraphs (a) and (b), 473.48
paragraphs (b) heading and text, and (c).
PART 498--APPEALS PROCEDURES FOR DETERMINATIONS THAT AFFECT
PARTICIPATION IN MEDICARE AND FOR DETERMINATIONS THAT AFFECT
PARTICIPATION OF ICFs/MR AND CERTAIN NFs IN MEDICAID
F. Part 498 is amended as set forth below.
1. The authority citation for part 498 continues to read as
follows:
Authority: Secs. 1102 and 1871 of the Social Security Act (42
U.S.C. 1302 and 1395hh).
2. Nomenclature change.
a. In the following locations, ``Appeals Council'' is revised to
read ``Departmental Appeals Board'' wherever it appears:
498.10(b).
498.15.
498.17 heading and paragraph (a).
498.44 paragraphs (a), (b), and (c).
498.45(c)(2).
498.71(b).
498.76 heading.
Subpart E heading.
498.80 heading and text.
498.82 heading and paragraphs (a)(1) and (a)(2).
498.83 heading and paragraphs (a) and (c).
498.85 heading and text.
498.86 (a).
498.88 heading and paragraph (a).
498.95(a).
Subpart F heading.
498.100 paragraphs (a), (b)(1), and (b)(2).
498.102 paragraphs (a) introductory text, and (b)(1), and (b)(2).
498.103 paragraphs (a), (b)(1), and (b)(2) heading.
b. In the following locations, ``Council'' is revised to read
``Board'' wherever it appears:
498.17 paragraph (b)(1).
498.76 paragraphs (a) and (c).
498.82 paragraph (a)(2).
498.83 paragraph (b) introductory text and paragraphs (b)(4) and
(d).
498.86 paragraphs (a), (b), and (d).
498.88 paragraphs (a) through (e) and paragraph (f) introductory
text and (f)(1)(i).
498.95 paragraphs (a) through (c).
498.100 heading and paragraph (a).
498.102 paragraph (a)(2)(ii).
498.103 paragraphs (a) and (b)(2).
c. In Sec. 498.88(f)(1) introductory text and (f)(2), and in
Sec. 498.95(a), ``Council's'' is revised to read ``Board's''.
d. In Sec. 498.17(b)(2), ``council'' is revised to read ``Board''.
Sec. 498.1 [Amended]
3. In Sec. 498.1, the following changes are made:
a. In paragraph (a), ``1869(c)'' is revised to read ``1866(h)''.
b. In paragraph (c), ``section'' is revised to read ``sections'',
the period is removed, and ``and section 1128(f) provides for hearing
and judicial review for exclusions.'' is added at the end.
c. Paragraphs (e) and (f) are removed and reserved.
d. Paragraphs (g) and (h) are revised, and paragraphs (i), (j) and
(k) are added, to read as set forth below.
Sec. 498.1 Statutory basis.
* * * * *
(g) Although Sec. 1866(h) of the Act is silent regarding appeal
rights for suppliers and practitioners, the rules in this part include
procedures for review of determinations that affect those two groups.
(h) Section 1128A(c)(2) of the Act provides that the Secretary may
not collect a civil money penalty until the affected entity has had
notice and opportunity for a hearing.
(i) Section 1819(h) of the Act--
(l) Provides that, for SNFs found to be out of compliance with the
[[Page 32350]]
requirements for participation, specified remedies may be imposed
instead of, or in addition to, termination of the facility's Medicare
provider agreement; and
(2) Makes certain provisions of section 1128A of the Act applicable
to civil money penalties imposed on SNFs.
(j) Section 1891(e) of the Act provides that, for home health
agencies (HHAs) found to be out of compliance with the conditions of
participation, specified remedies may be imposed instead of, or in
addition to, termination of the HHA's Medicare provider agreement.
(k) Section 1891(f) of the Act--
(1) Requires the Secretary to develop a range of such remedies; and
(2) Makes certain provisions of section 1128A of the Act applicable
to civil money penalties imposed on HHAs.
Sec. 498.2 [Amended]
4. In Sec. 498.2, the following changes are made:
a. The definition of ``Appeals Council'' is removed.
b. A definition of ``Departmental Appeals Board'' is added, in
alphabetical order, to read as set forth below.
c. In the definition of ``provider'', the words ``a nursing
facility (NF) or intermediate care facility for the mentally retarded
(ICF/MR)'' are removed.
Sec. 498.2 Definitions.
* * * * *
Departmental Appeals Board or Board means a Board established in
the Office of the Secretary to provide impartial review of disputed
decisions made by the operating components of the Department.
* * * * *
5. In Sec. 498.3, the introductory text of paragraph (b) is
republished; paragraphs (a), (b)(4), (b)(7), (b)(8), (b)(12), (b)(13),
(d) introductory text and (d)(1) are revised, paragraphs (d)(10)
through (d)(12) are redesignated as paragraphs (d)(10)(i) through
(d)(10)(iii), newly designated paragraph (d)(10) is revised, a new
paragraph (d)(11) is added, and paragraphs (d)(13) and (d)(14) are
redesignated as paragraphs (d)(12) and (d)(13) respectively, to read as
follows:
Sec. 498.3 Scope and applicability.
(a) Scope. (1) This part sets forth procedures for reviewing
initial determinations that HCFA makes with respect to the matters
specified in paragraph (b) of this section and that the OIG makes with
respect to the matters specified in paragraph (c) of this section.
(2) The determinations listed in this section affect participation
in the Medicare program. Many of the procedures of this part also apply
to other determinations that do not affect participation in Medicare.
Examples are:
(i) HCFA's determination to terminate an NF's Medicaid provider
agreement;
(ii) HCFA's determination to cancel the approval of an intermediate
care facility for the mentally retarded (ICF/MR) under section 1910(b)
of the Act; and
(iii) HCFA's determination, under the Clinical Laboratory
Improvement Act (CLIA), to impose alternative sanctions or to suspend,
limit, or revoke the certificate of a laboratory even though it does
not participate in Medicare.
(3) The following parts of this chapter specify the applicability
of the provisions of this part 498 to sanctions or remedies imposed on
the indicated entities:
(i) Part 431, subpart D--for nursing facilities (NFs).
(ii) Part 488, subpart E (Sec. 488.330(e)--for SNFs and NFs.
(iii) Part 493, subpart R (Sec. 493.1844)--for laboratories.
(b) Initial determinations by HCFA. HCFA makes initial
determinations with respect to the following matters:
* * * * *
(4) Whether a prospective supplier meets the conditions for
coverage of its services as those conditions are set forth elsewhere in
this chapter.
* * * * *
(7) The termination of a provider agreement in accordance with
Sec. 489.53 of this chapter, or the termination of a rural health
clinic agreement in accordance with Sec. 405.2404 of this chapter, or
the termination of a Federally qualified health center agreement in
accordance with Sec. 405.2436 of this chapter.
(8) HCFA's cancellation, under section 1910(b) of the Act, of an
ICF/MR's approval to participate in Medicaid.
* * * * *
(12) With respect to an SNF or NF, a finding of noncompliance that
results in the imposition of a remedy specified in Sec. 488.406 of this
chapter, except the State monitoring remedy, and the loss of the
approval for a nurse-aide training program.
(13) The level of noncompliance found by HCFA in an SNF or NF but
only if a successful challenge on this issue would affect the range of
civil money penalty amounts that HCFA could collect. (The scope of
review during a hearing on imposition of a civil money penalty is set
forth in Sec. 488.438(e) of this chapter.)
* * * * *
(d) Administrative actions that are not initial determinations.
Administrative actions that are not initial determinations include but
are not limited to the following:
(1) The finding that a provider or supplier determined to be in
compliance with the conditions or requirements for participation or for
coverage has deficiencies.
* * * * *
(10) With respect to an SNF or NF-(i) The finding that the SNF's or
NF's deficiencies pose immediate jeopardy to the health or safety of
its residents;
(ii) Except as provided in paragraph (b)(13) of this section, a
determination by HCFA as to the facility's level of noncompliance; and
(iii) The imposition of State monitoring or the loss of the
approval for a nurse-aide training program.
(11) The choice of alternative sanction or remedy to be imposed on
a provider or supplier.
* * * * *
6. Section 498.5 is amended to revise paragraph (c) and to add a
new paragraph (k), to read as follows:
Sec. 498.5 Appeal rights.
* * * * *
(c) Appeal rights of providers and prospective providers. Any
provider or prospective provider dissatisfied with a hearing decision
may request Departmental Appeals Board review, and has a right to seek
judicial review of the Board's decision.
* * * * *
(k) Appeal rights of NFs. Under the circumstances specified in
Sec. 431.153 (g) and (h) of this chapter, an NF has a right to a
hearing before an ALJ, to request Board review of the hearing decision,
and to seek judicial review of the Board's decision.
7. Section 498.60 is amended to add a new paragraph (c), to read as
follows:
Sec. 498.60 Conduct of hearing.
* * * * *
(c) Scope of review: Civil money penalty. In civil money penalty
cases--
(1) The scope of review is as specified in Sec. 488.438(e) of this
chapter; and
(2) HCFA's determination as to the level of noncompliance of an SNF
or NF must be upheld unless it is clearly erroneous.
Sec. 498.61 [Amended]
8. In Sec. 498.61, the designation ``(a)'' and paragraph (b) are
removed.
[[Page 32351]]
Sec. 498.74 [Amended]
9. In Sec. 498.74, the following changes are made:
a. In paragraph (b)(1), ``within the stated time period'' is
revised to read ``within the time period specified in Sec. 498.82''.
b. In paragraphs (b)(1), (b)(2), and (b)(3), ``Appeals Council'' is
revised to read ``Departmental Appeals Board'' in paragraphs (b)(1) and
(b)(4), ``Council'' revised to read ``Board'',
c. In paragraph (b)(2), ``in a Federal district court;'' is revised
to read ``in a United States District Court or, in the case of a civil
money penalty, in a United States Court of Appeals;''.
10. Section 498.90 is revised to read as follows:
Sec. 498.90 Effect of Departmental Appeals Board Decision
(a) General rule. The Board's decision is binding unless--
(1) The affected party has a right to judicial review and timely
files a civil action in a United States District Court or, in the case
of a civil money penalty, in a United States Court of Appeals; or
(2) The Board reopens and revises its decision in accordance with
Sec. 498.102.
(b) Right to judicial review. Section 498.5 specifies the
circumstances under which an affected party has a right to seek
judicial review.
(c) Special rules: Civil money penalty.
(1) Finality of Board's decision. When HCFA imposes a civil money
penalty, notice of the Board's decision (or denial of review) is the
final administrative action that initiates the 60-day period for
seeking judicial review.
(2) Timing for collection of civil money penalty. For SNFs and NFs,
the rules that apply are those set forth in subpart F of part 488 of
this chapter.
(Catalog of Federal Domestic Assistance Program No. 93.778, Medical
Assistance; Program No. 93.773, Medicare--Hospital Insurance;
Program No. 93.774, Medicare--Supplementary Medical Insurance)
Dated: May 16, 1996.
Bruce C. Vladeck,
Administrator, Health Care Financing Administration.
[FR Doc. 96-13521 Filed 6-21-96; 8:45 am]
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