issue-1996-07-23•Federal Register final rules — 1996-07-23
Federal Register final rules — 1996-07-23
issue-1996-07-23Federal Register final rules — 1996-07-23Regulation
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FR Doc. 96-18700 Medical Devices; Medical Device Distributor and Manufacturer Reporting; Certification, Registration, Listing, and Premarket Notification Submission; Stay of Effective Date; Revocation of Final Rule
[Federal Register Volume 61, Number 142 (Tuesday, July 23, 1996)]
[Rules and Regulations]
[Pages 38346-38347]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18700]
[[Page 38345]]
_______________________________________________________________________
Part III
Department of Health and Human Services
_______________________________________________________________________
Food and Drug Administration
_______________________________________________________________________
21 CFR Part 803, et al.
Medical Devices; Final and Proposed Rules
Federal Register / Vol. 61, No. 142 / Tuesday, July 23, 1996 / Rules
and Regulations
[[Page 38346]]
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration
21 CFR Parts 803, 804, and 807
[Docket No. 91N-0295]-
RIN 0910-AA09
Medical Devices; Medical Device Distributor and Manufacturer
Reporting; Certification, Registration, Listing, and Premarket
Notification Submission; Stay of Effective Date; Revocation of Final
Rule
AGENCY: Food and Drug Administration, HHS.
ACTION: Final rule.
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SUMMARY: In response to numerous requests for the Food and Drug
Administration (FDA) to consider further comments concerning medical
device reporting (MDR) certification and U.S. designated agent
requirements, FDA is staying the effective date of these two specific
provisions of the adverse event reporting final rule that was published
in the Federal Register of December 11, 1995. Specifically, these
provisions relate to manufacturer certification and U.S. designated
agent requirements. In addition, for consistency purposes, FDA is
revoking the distributor reporting certification requirement that went
into effect on May 28, 1992.
EFFECTIVE DATE: July 23, 1996.
FOR FURTHER INFORMATION CONTACT: Earl W. Robinson, Center for Devices
and Radiological Health (HFZ-530), Food and Drug Administration, 1350
Piccard Dr., Rockville, MD 20850, 301-594-2735.
SUPPLEMENTARY INFORMATION: In the Federal Register of December 11, 1995
(60 FR 63578), FDA published a final rule amending parts 803 and 807
(21 CFR parts 803 and 807) to require medical device manufacturers,
including U.S. designated agents of foreign manufacturers, to report
adverse events related to medical devices under a uniform reporting
system (hereinafter referred to as the December 1995 final rule). This
rule also required U.S. designated agents to register, list, and submit
premarket notifications on behalf of foreign manufacturers. The
effective date of this rule was to be April 11, 1996. On April 11, 1996
(61 FR 16043), FDA extended the effective date to July 31, 1996.
Earlier, in the Federal Register of September 1, 1993 (58 FR
46514), FDA published a notice announcing that the distributor
reporting requirements, including certification, that were published as
a tentative final rule on November 26, 1991, became effective by
operation of law on May 28, 1992.
After issuing the December 1995 final rule, FDA received numerous
requests for reconsideration of the certification requirements and for
reconsideration of issues relating to U.S. designated agent
requirements. These comments led FDA to meet with the Health Industry
Manufacturers Association (HIMA) and several industry representatives
on April 19, May 23, and June 13, 1996. During these meetings, issues
concerning industry burdens and procedures relating to the
certification and U.S. designated agent requirements were put forth
that had previously not been fully considered.
Section 519(d) of the act (21 U.S.C. 360i(d)) states that each
manufacturer and distributor required to make reports under section
519(a) (21 U.S.C. 360i(a)) of the act must submit annual statements
certifying the number of reports that were filed or that no reports
were filed during the previous 12-month period. The certification
regulations for manufacturers and distributors require that the
certification include the number of MDR's filed during the previous 12-
month period and that all MDR reportable events have been submitted
(Secs. 803.57 and 804.30 (21 CFR 804.30)). FDA required the
certification that all MDR reportable events were filed on the basis of
legislative history citing the General Accounting Office report
recommending that certification state that the reporter ``filed a
specific number of reports * * * and that the firm received or became
aware of information concerning only these events.'' (H. Rept. 808,
101st Cong., 2d sess., 23 (1990).) FDA, in response to comments asking
who should certify for manufacturers, also required in the December
1995 final rule that the certifier must be the president, chief
executive officer, U.S. designated agent of a foreign manufacturer, or
other official most directly responsible for the firm's operations.
After the final rule was issued, FDA received comments taking the
position that the certifier may more appropriately be a person with
more direct involvement with the reporting requirements. Comments also
objected to requiring that the reporter certify all reportable events
have been filed on the basis that such a requirement was not
specifically required in the act, and that potential liability would be
created.
The December 1995 final rule also required that foreign firms
identify a U.S. designated agent who would be responsible for the
foreign firm's MDR reporting requirements, as well as the foreign
manufacturer's registration listing and premarket notification
submissions. After issuing the December 1995 final rule, FDA received
comments from industry objecting to these requirements as being unduly
burdensome. In response to these comments, FDA is publishing a proposed
rule, elsewhere in this issue of the Federal Register, addressing the
certification and U.S. designated agent issues. FDA intends that the
requirements relating to distributor and manufacturer certification,
and to U.S. designated agents, will not be in effect until at least 75
days after the date of publication in the Federal Register of a new
final rule.
The Administrative Procedure Act (Pub. L. 79-404) and FDA
regulations provide that the agency may issue a regulation without
notice and comment procedures when the agency for good cause finds (and
incorporates the finding and a brief statement of reasons thereof in
the rules issued) that notice and public procedure thereon are
impracticable, unnecessary, or contrary to the public interest (5
U.S.C. 553(b)(8); Sec. 10.40(e)(1) (21 CFR 10.40 (e)(1)).) FDA finds
that there is good cause for dispensing with notice and comment
procedures to stay the effective date of the manufacturer certification
and U.S. designated agent reporting provisions, (Secs. 803.3(n)(4),
803.57, 803.58, 807.3(r), 807.20(a)(6), and 807.40) and for revoking
the certification requirements for distributors (Sec. 804.30) because
such notice and comment procedures are impracticable and contrary to
the public interest.
Notice and comment rulemaking on the postponement of manufacturer
certification and U.S.designated agent requirements is impracticable.
FDA was not aware of a number of significant issues relating to these
requirements until after publication of the December 1995 final rule.
Since that time, FDA has had numerous meetings with HIMA and industry
representatives and internal meetings to decide the best approach to
understand and resolve issues concerning the rule. The last meeting
with HIMA and industry representatives occurred on June 13, 1996.
Without the issuance of a stay under good cause procedures, the
certification and U.S. designated agent requirements would become
effective on July 31, 1996.
In addition, notice and comment rulemaking, in this instance, on
the stay of the present certification requirements would be contrary to
the public interest. Because there is not enough time to allow notice
and comment on the issue
[[Page 38347]]
of staying the effective date before it occurs, the certification and
U.S. designated agent requirements would be in effect only for the
interim period between the effective date of the final manufacturer
rule, July 31, 1996, and the date the agency expects that these
provisions, after issuance of a reproposed rule, would be revised and
become final a second time. This result would cause industry to
implement costly certification and U.S. designated agent procedures and
contractual arrangements that would most likely have to be changed with
additional cost after these requirements are reproposed and
refinalized.
It is also against the public interest to have a certification
requirement in effect for distributors, while not having such a
requirement in effect for manufacturers. The MDR system is intended to
operate as a uniform reporting system where user facilities,
distributors, and manufacturers efficiently share, forward, and provide
complementary information on the same adverse events. Having a system
whereby distributors certify reports and manufacturers do not certify
reports would hinder the uniformity of this program and result in
regulatory confusion.
For all the reasons stated above, FDA concludes, under 5 U.S.C.
553(b)(8) and Sec. 10.40(e)(1), that there is good cause for staying
the effective date of the certification and U.S. designated agent
provisions of the December 1995 final rule and for revoking the
distributor certification requirements of the May 28, 1992 rule.
Foreign manufacturers have a responsibility for compliance with all
medical device reporting requirements which will not be affected by the
stay of the effective date of the U.S. designated agent requirements.
This is because the December 1995 final rule contained a significant
change regarding foreign manufacturers. The original medical device
reporting regulation that became effective December 13, 1984, defined a
manufacturer who was required to submit MDR reports as any person who
is required to register under part 807. Because foreign manufacturers
are not required to register, the December 1984 regulation did not
apply to them. The revised December 1995 final rule, however, no longer
defines a manufacturer who is required to report adverse events as a
person who is required to register under part 807. Rather, under
Sec. 803.3(n) of the December 1995 final rule, a manufacturer means any
person who manufactures, prepares, propagates compounds, assembles, or
processes a device by chemical, physical, biological, or other
procedure. Accordingly, foreign manufacturers clearly fit within the
definition of manufacturers who are required to submit MDR's under the
December 1995 final rule. This means that, on July 31, 1996, foreign
manufacturers will be fully subject to the same requirements of part
803 applicable to all domestic manufacturers. This includes, but is not
limited to, the requirements for written procedures (Sec. 803.17), MDR
event files (Sec. 803.18), individual adverse event reports
(Secs. 803.50 and 803.52), 5-day reports (Sec. 803.53), baseline
reports (Sec. 803.55), and supplemental reports (Sec. 803.56). In
addition, existing regulations will remain in effect pending the stay
that permits foreign manufacturers to register (Sec. 807.40(a)) and
submit premarket notifications (Sec. 807.81), and require them to list
their devices (Sec. 807.40(b)).
List of Subjects
21 CFR parts 803 and 804
Imports, Medical devices, Reporting and recordkeeping requirements.
21 CFR part 807
Confidential business information, Imports, Medical devices,
Reporting and recordkeeping requirements.-
Therefore, under the Federal Food, Drug, and Cosmetic Act and under
authority delegated to the Commissioner of Food and Drugs, 21 CFR parts
803, 804, and 807 are amended as follows:
PART 803--MEDICAL DEVICE REPORTING
PART 807--ESTABLISHMENT REGISTRATION AND DEVICE LISTING FOR
MANUFACTURERS AND DISTRIBUTORS OF DEVICES
1. In the revision of part 803 and the amendments to part 807 which
were published at 60 FR 63578 (December 11, 1995), the effective date
of which was extended until July 31, 1996, at 61 FR 16043 (April 11,
1996), the following provisions are stayed until further notice:
A. Secs. 803.3(n)(4), 803.57, and 803.58.
B. The addition of Sec. 807.3(r) and 807.20(a)(6); and
C. The revision of Sec. 807.40.
PART 804--MEDICAL DEVICE DISTRIBUTOR REPORTING
2. The authority citation for 21 CFR part 804 continues to read as
follows:
Authority: Secs. 502, 510, 519, 520, 701, 704 of the Federal Food,
Drug, and Cosmetic Act (21 U.S.C. 352, 360, 360i, 360j, 371, 374).
Sec. 804.30 [Removed]
3. Section 804.30 is removed.
Dated: July 16, 1996.
William K. Hubbard,
Associate Commissioner for Policy Coordination.
[FR Doc. 96-18700 Filed 7-19-96; 2:26 pm]
BILLING CODE 4160-01-F
Complete official Federal Register PDF
FR Doc. 96-18670 State Criminal Alien Assistance Program
[Federal Register Volume 61, Number 142 (Tuesday, July 23, 1996)]
[Rules and Regulations]
[Pages 38085-38086]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18670]
=======================================================================
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DEPARTMENT OF JUSTICE
Office of Justice Programs
Bureau of Justice Assistance
28 CFR Part 82
[OJP (BJA) No. 1010]
RIN 1121-AA24
State Criminal Alien Assistance Program
AGENCY: Office of Justice Programs, Bureau of Justice Assistance (BJA),
Justice.
ACTION: Interim final rule.
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SUMMARY: This document removes the rule governing the State Criminal
Alien Assistance Program (SCAAP). Congress changed the authorization
for SCAAP in Fiscal Year 1996 and, as such, the program as set forth in
this interim final rule is no longer in effect or necessary.
EFFECTIVE DATE: Interim Rule Removal effective on July 23, 1996.
FOR FURTHER INFORMATION CONTACT: The Department of Justice Response
Center or Linda McKay, SCAAP Coordinator, at 1-800-421-6770.
SUPPLEMENTARY INFORMATION: This notice is to announce the removal of
the Interim Final Rule, 28 CFR part 82, which was promulgated as a
result of a directive in the Fiscal Year 1995 Department of Justice
Appropriations Act, Title VIII of Public Law 103-317, and was published
on October 6, 1994, 59 FR 50830. The Fiscal Year 1995 Appropriations
Act allocated $130 million to 8 U.S.C. 1365 to create the State
Criminal Alien Assistance Program (SCAAP) to provide assistance to
states for costs associated with incarcerating illegal criminal aliens.
No
[[Page 38086]]
funds were appropriated under the authority of 8 U.S.C. Sec. 1365 this
Fiscal Year and therefore, this interim rule is no longer in effect and
is being removed. SCAAP will be continued by the Bureau of Justice
Assistance under the authority of 8 U.S.C. 1252(j) to which Congress
appropriated a total of $500 million in Fiscal Year 1996. An
announcement of funding and guidance availability for the Fiscal Year
1996 program is being published concurrently with this notice in the
Federal Register.
List of Subjects in 28 CFR Part 82
Grant programs--aliens, Prisons.
Under the general program and rulemaking authority of 42 U.S.C.
3742 and 3782 and for the reasons set out in the preamble, title 28,
chapter I of the Code of Federal Regulations is amended by removing
part 82.
Nancy Gist,
Director, Bureau of Justice Assistance.
[FR Doc. 96-18670 Filed 7-22-96; 8:45 am]
BILLING CODE 4410-18-P
Complete official Federal Register PDF
FR Doc. 96-18666 Scallop Fishery Off Alaska; Management Measures; 1996-97 Harvest Specifications
[Federal Register Volume 61, Number 142 (Tuesday, July 23, 1996)]
[Rules and Regulations]
[Pages 38099-38106]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18666]
=======================================================================
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 679
[Docket No. 960502124-6190-02; I.D. 042396B]
RIN 0648-AF81
Scallop Fishery Off Alaska; Management Measures; 1996-97 Harvest
Specifications
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule; final 1996-97 harvest specifications; closures.
-----------------------------------------------------------------------
SUMMARY: NMFS issues a final rule to implement Amendment 1 to the
Fishery Management Plan for the Scallop Fishery off Alaska (FMP). The
management measures established under Amendment 1 and implemented by
this final rule include: Gear and efficiency restrictions, scallop
registration areas and districts, procedures for specifying total
allowable catch (TAC) and crab bycatch limits (CBLs), time and area
closures, inseason management authority, fishing seasons, and observer
coverage requirements. This action is necessary to further the
conservation and management objectives of the FMP and the Magnuson
Fishery Conservation and Management Act (Magnuson Act).
EFFECTIVE DATES: The changes to part 679 are effective August 1, 1996.
The final 1996-97 harvest specifications and closure are effective
August 1, 1996, through June 30, 1997.
ADDRESSES: Copies of Amendment 1 and the Environmental Assessment/
Regulatory Impact Review/Final Regulatory Flexibility Analysis (EA/RIR/
FRFA) prepared for Amendment 1 may be obtained from the North Pacific
Fishery Management Council, 605 W. 4th Ave., Suite 306, Anchorage, AK
99501.
FOR FURTHER INFORMATION CONTACT: Kent Lind, 907-586-7228.
SUPPLEMENTARY INFORMATION:
Background
The scallop fishery in the exclusive economic zone (Federal waters)
off Alaska is managed under the FMP. The FMP was prepared by the North
Pacific Fishery Management Council (Council) under the Magnuson Act.
Regulations implementing the FMP are set out at 50 CFR part 679.
General regulations that also affect fishing in Federal waters are set
out at 50 CFR part 600. This action establishes Federal management
measures to replace the interim closure of Federal waters off Alaska to
fishing for scallops. The history of the scallop fishery off Alaska and
the events leading up to the interim closure of Federal waters are
described in the FMP and the preambles to the proposed and final rules
implementing the FMP (60 FR 24822, May 10, 1995, and 60 FR 42070,
August 15, 1995, respectively).
In June 1995, the Council adopted Amendment 1 to the FMP, which
authorizes Federal management measures to replace the interim closure
of Federal waters to fishing for scallops. The Council's preferred
alternative for Amendment 1 was to incorporate certain State of Alaska
management measures into the Federal regulations and implement a vessel
moratorium based on criteria adopted in April 1994 and reaffirmed in
January 1995.
At its January 1993 meeting, the Council determined that
unrestricted
[[Page 38100]]
access to the scallop fishery may be harmful to the resource and result
in a net loss to the Nation. The Council announced a control date of
January 20, 1993, to place the industry on notice that a moratorium for
this fishery may be implemented and any person or fishing vessel that
entered the scallop fisheries in Federal waters off Alaska would not be
assured of future access to those fishery resources if a moratorium is
implemented. In June 1995, the Council developed final qualifying
criteria for the vessel moratorium. Under the Council's qualifying
criteria, vessels would qualify for inclusion in the moratorium if they
made at least one legal landing of scallops in any year from 1991
through 1993, or during any 4 separate years from 1980 through 1990.
This two-tier approach was chosen to emphasize recent participation in
the fishery by allowing all vessels with any legal landings in 1991,
1992 or 1993 to qualify. Historic participants would qualify under the
more restrictive standard of a legal landing in at least 4 years
between 1980 and 1990. The Council's final recommended qualifying
criteria, which were published in the Council's newsletter, means that
fishermen and/or vessels not participating in the fishery by December
31, 1993, may not be guaranteed future access to the fishery.
The Council subsequently separated the vessel moratorium from
Amendment 1 and recommended that the vessel moratorium be implemented
as Amendment 2 to the FMP. The Council took this action to prevent
moratorium issues from delaying the reopening of the scallop fishery.
On May 10, 1996, NMFS published a proposed rule to implement Amendment
1 to the FMP (61 FR 21431). The comment period for the proposed rule
ended on June 21, 1996. Six letters of comment were received, which are
summarized in the Response to Comments section below.
The regulations implementing Amendment 1 were developed in
coordination with the Council and the State and are designed to
complement current State management of the scallop fishery. These
regulations do not preclude the State from imposing additional
regulations on State registered vessels fishing in Federal waters, so
long as State regulations are not in conflict with the FMP and its
implementing regulations. The preamble to the proposed rule provides a
description of and justification for each Federal management measure
including: Gear and efficiency restrictions, scallop registration areas
and districts, procedures for specifying TACs and CBLs, time and area
closures, inseason management authority, fishing seasons, and observer
coverage requirements.
Changes From the Proposed Rule
Four changes were made from the proposed rule. First, since
publication of the proposed rule, the Federal regulations implementing
Alaska FMPs have undergone a comprehensive consolidation. As a
consequence, most of the regulations implementing the FMP for the
scallop fishery off Alaska (50 CFR part 673) have been recodified at 50
CFR 679 subpart F, except for the purpose and scope, definitions, and
prohibitions sections of the scallop regulations, which are now found
in 50 CFR 679 subpart A.
Second, in Sec. 679.1(h)(2) the phrase ``consistent with'' was
changed to ``in addition to, and not in conflict with'' so that
Sec. 679.1(h)(2) reads as follows: ``State of Alaska laws that are in
addition to, and not in conflict with, the regulations in this part are
not preempted for vessels registered under the laws of the State
fishing for scallops in the Federal waters off Alaska.'' This change
was made in response to a comment and clarifies that NMFS intends to
allow the State to impose additional regulations on State-registered
vessels that are fishing for scallops in Federal waters as long as
State regulations are not in direct conflict with Federal regulations
or the FMP.
Third, the 1996 fishing season in Registration Area D is
temporarily extended in response to a comment to allow for the harvest
of remaining 1995-96 State TAC amounts that were not harvested in this
area during the January 1996 fishery in State waters. In January 1996,
the State authorized a fishery in the State waters of Registration Area
D for the estimated portion of the TACs that were attributable to beds
in State waters (8,000 lb (3,628.7 kg) shucked meat from District 16
and 55,000 lb (24,947.6 kg) from the remaining districts of
Registration Area D). Because the entire portion of the 1996 TAC
attributable to beds in State waters has been taken, the State has
closed State waters in Registration Area D until 1997. Because State
waters will remain closed until 1997, the remaining 1996 TAC for this
area, which will become available on August 1, 1996, will be available
only in Federal waters.
Fourth, Sec. 679.62(a) was changed in response to a comment to
require that available TAC be specified by registration area rather
than allow a combined TAC for multiple registration areas. This change
was made to prevent overharvest from within one area. This change
affects Registration Areas M, Q, and R.
1996-97 Total Allowable Catch Specifications
The TACs for Registration Areas A, E, K, and O are unchanged from
the proposed specifications published with the proposed rule. TACS for
Registration Areas D, H, M, Q, and R have been changed from the
proposed specifications for the reasons cited below.
In Registration Area D, the State authorized a January 1996 fishery
inside State waters and allowed the harvest of the percentage of the
annual TAC that was estimated to be attributable to scallop beds within
State waters. Under the new regulations established by this rule, the
fishing year for scallops runs from July 1 through June 30 of the
following fishing year. Consequently, in Registration Area D, two TACs
must be specified to allow for the harvest of the remaining 1995-96 TAC
in Registration Area D. The 1995-96 TAC amount that went unharvested
during the State's January 1996 fishery is specified for the period
August 1, 1996, through December 31, 1996. The TAC for the current
1996-97 fishing year TAC is specified for the period January 1, 1997,
through June 30, 1997.
In Registration Areas M, Q, and R, and H (other than Kamishak
District), a combined TAC of 875,000 lb (396,893.32 kg) shucked meat
was listed in the proposed specifications. This combined TAC was
subdivided by area to prevent overharvest of the TAC from within any
one area. TACs for each of these registration areas are now specified
at the historic high catch, which is equal to the upper end of the OY
range. No TAC is specified for districts other than the Kamishak
District of Registration Area H. The other districts within
Registration Area H lie primarily within State waters and there are no
known commercially viable scallop beds in these districts. The State
may authorize exploratory scallop fishing in these districts within
State waters. Any exploratory fishing in Federal waters within these
districts could be authorized by NMFS pursuant to ``exempted fishing''
regulations published at 50 CFR 600.745.
[[Page 38101]]
Table 1.--Scallop TAC Amounts for the Period August 1, 1996, Through
June 30, 1997, in pounds (kilograms in parentheses) of Shucked Scallop
Meat by Scallop Registration Area and District
------------------------------------------------------------------------
TAC
Scallop registration area -----------------------
lb kg
------------------------------------------------------------------------
Area A (Southeastern)...........................
(1)zero
------------------------------------------------------------------------
Area D (Yakutat):
(Applicable August 1, 1996 through December 31, 1996) 1
------------------------------------------------------------------------
District 16................................. 27,000 12,247
All other districts......................... 195,000 88,451
------------------------------------------------------------------------
(Applicable January 1, 1997 through June 30, 1997)
------------------------------------------------------------------------
District 16................................. 35,000 15,880
All other districts......................... 250,000 113,430
Area E (Prince William Sound)................... 50,000 22,686
Area H (Cook Inlet):
Kamishak District........................... 20,000 9,074
Area K (Kodiak)................................. 400,000 181,488
Area M (Alaska Peninsula)....................... 200,000 90,718
Area O (Dutch Harbor)........................... 170,000 77,132
Area Q (Bering Sea)............................. 600,000 272,155
Area R (Adak)................................... 75,000 43,019
Total \2\................................... 1,800,000 816,416
------------------------------------------------------------------------
\1\ Represents unharvested TAC that would have been specified for the
period July 1, 1995, through June 30 1996. Because the closure of
Federal waters prevented the harvest of this TAC during the January
1996 State-managed opening, NMFS is making this unharvested TAC amount
available on August 1, 1996. The Area D TAC that would normally have
been specified for the period August 1, 1996, through June 30, 1997
will not become effective until January 1, 1997.
\2\ Does not include the August 1, 1996, through December 31, 1996, TAC
for Registration Area D because this TAC amount represents unharvested
TAC from the previous fishing year.
1996-97 Crab Bycatch Limits
Table 2 shows CBLs for the period August 1, 1996, through June 30,
1997. These numbers are unchanged from the proposed specifications.
Table 2.--Crab Bycatch Limits for the Period August 1, 1996, Through
June 30, 1997, in Numbers of Crabs by Scallop Registration Area and
District
------------------------------------------------------------------------
Scallop registration area Red king C. bairdi C. opilio
------------------------------------------------------------------------
Area A (Southeastern)............... .......... .......... ..........
Area D (Yakutat).................... .......... .......... ..........
Area E (Prince William Sound)....... .......... 630 ..........
Area H (Cook Inlet):
Kamishak District............... 40 15,900 ..........
Outer/Eastern Districts......... 98 2,170 ..........
Area K (Kodiak):
Shelikof District............... 22 16,100 ..........
Northeast District.............. 66 130,000 ..........
Area M (Alaska Peninsula)........... 435 22,800 ..........
Area O (Dutch Harbor)............... 10 10,700 ..........
Area Q (Bering Sea)................. 500 257,000 275,000
Area R (Adak)....................... 50 10,000 ..........
------------------------------------------------------------------------
Closure
In Registration Area A, the final scallop TAC amount for the period
August 1, 1996, through June 30, 1997, is zero. Therefore, under
Sec. 679.62(c), NMFS is prohibiting the catch and retention of scallops
in Registration Area A from August 1, 1996, through June 30, 1997.
Response to Comments
Comment 1: The 30-day delay in effectiveness normally incorporated
into Federal rulemaking procedures should be waived. This rule will
impact the industry in a positive way by allowing fishing to resume
after an 18-month hiatus brought about by a lack of Federal regulation.
The period normally viewed as an opportunity for industry to adapt to
an onerous regulation is not needed and would, in fact, present further
hardship to the fishing industry.
Response: NMFS agrees. The 30-day delayed effectiveness period for
this rule has been waived (see ``Classification'' section, below).
Comment 2: The proposed rule has an August 15 opening date for
Registration Area H (Cook Inlet). A later opening date of August 29 is
recommended, because crab tend to move out of this area later in the
season. A later opening date would produce less crab bycatch,
[[Page 38102]]
which is a prime concern of industry and the Council.
Response: Because a single TAC is specified for both the Federal
and State waters of each registration area or district, a simultaneous
opening of Federal and State waters is necessary to prevent localized
overfishing of scallop stocks and reduce administration and enforcement
concerns. For these reasons, opening dates in the Federal waters of
each registration area or district were scheduled to match existing
State opening dates. If the opening date for the Federal waters of
Registration Area H were delayed until August 29, vessel operators
might try to harvest the entire TAC from within State waters that would
open on August 15. This situation could cause localized overfishing of
scallops stocks inside State waters. Moreover, enforcement of closures
would be more problematic if adjacent State and Federal waters were
open at different times. Therefore, the opening date for Registration
Area H is unchanged.
NMFS does not have adequate bycatch data to support or refute the
contention that crab bycatch would be appreciably lower if the opening
date were delayed until August 29. However, crab bycatch was certainly
a consideration of the Board of Fisheries when it established an August
15 opening date for the Cook Inlet Registration Area. In its comments
on the proposed rule, ADF&G has indicated that possible changes to
scallop opening dates will be examined by the Board of Fisheries at the
March 1997 meeting. If bycatch data presented to the Board of Fisheries
indicate that a change in opening dates is warranted for the Cook Inlet
Registration Area, NMFS, in coordination with the Council and the State
could address opening date changes at that time.
Comment 3: While the exemption from observer coverage for vessels
less than 80 ft (24.4 m) length overall (LOA) in Cook Inlet is
justified, a similar exemption is necessary for small vessels fishing
outside Cook Inlet. In the past, State regulations have exempted
vessels less than 65 ft (19.8 m) LOA from observer requirements. A
number of vessels qualified for this exemption. If small vessels must
give up bunk space to carry an observer, they will lose a significant
percentage of their workforce while incurring the extra expense of
accommodating an observer. Therefore, small vessels will be hit doubly
hard by the 100 percent observer coverage requirement. In the
groundfish observer program, vessels between 60 and 125 ft (18.3 and
38.1 m) LOA are only required to carry an observer for 30 percent of
their fishing days. A small vessel exemption should be reinstated for
the scallop fishery, or a percentage-based coverage system similar to
that used in the groundfish fishery.
Response: All vessels required to carry an observer under this rule
will need to provide accommodations for an observer. The loss of a bunk
space is not limited to small vessels. In addition, the restrictions on
dredge width and crew size will tend to limit disparities in harvesting
capacity between large and small vessels. Therefore, NMFS does not
believe that a 100 percent observer coverage requirement will have
inordinate impacts on small vessels. Nevertheless, NMFS is sensitive to
the impacts that this rule will have on small businesses and has taken
numerous steps to reduce burdens on small businesses such as avoiding
duplicate State and Federal recordkeeping and recording requirements.
In addition, the Council heard testimony on the burden of 100 percent
observer requirements from small vessel owners during initial and final
consideration of Amendment 1. However, the Council believes, and NMFS
concurs, that the need for accurate management data outweighed the
economic impacts on small vessels. One hundred percent observer
coverage is necessary outside Cook Inlet to accurately monitor crab
bycatch, which is a primary management concern because crab populations
are severely depleted throughout the area covered by the FMP. Observer
data are also required because little information is presently
available on the status of scallop stocks in much of the management
area. Consequently, no observer coverage exemption was made for small
vessels fishing outside of Cook Inlet.
Comment 4: The Alaska Department of Fish and Game (ADF&G) is
concerned that the Federal regulatory system will not be flexible
enough to reflect season changes made by the Alaska Board of Fisheries,
or by ADF&G emergency order. ADF&G believes that a real likelihood
exists that the State seasons established for Registration Areas D and
E will be changed in 1997. Seasons in State and Federal waters must be
identical for conservation, as well as enforcement and fair start
reasons.
Response: NMFS may make regulatory changes in fishing seasons at
any time for conservation or management reasons in response to
recommendations from ADF&G or the Council. Any changes to State fishing
seasons made at the March 1997 Board of Fisheries meeting could not
become effective before the 1998 fishing season because the 1997
scallop fishery in Registration Areas D and E would have already
occurred in January. NMFS would have more than sufficient time to make
corresponding changes in Federal fishing seasons through the normal
regulatory process. Any conservation emergency that warrants an
immediate adjustment of fishing seasons, or any other management
measure, could be made through the inseason adjustment authority set
out at Sec. 679.63 or through an emergency rule.
Comment 5: The proposed rule establishes the TAC for each
registration area as a single number. ADF&G recommends that the TAC be
set as a range for each registration area. For example, in the Yakutat
Registration Area, TAC should be set at 0 to 250,000 lb (113,430 kg)
shucked meat. By stating TAC as a range, conservation adjustments to
harvest guidelines, either preseason or inseason, would be frameworked
within regulations and would not require additional action by NMFS.
Response: The TACs specified by NMFS simply represent the upper end
of the range of acceptable harvests. No requirement exists that the
entire TAC be harvested in each registration area. Indeed, NMFS expects
that the scallop fishery in some registration areas will close long
before the entire TAC is harvested due to attainment of CBLs. No
management advantage would be achieved by specifying TACs as a range,
because NMFS would still be required to publish an inseason adjustment
or closure to affect any change in the fishery. NMFS believes that the
inseason adjustment authority established by this regulation is
sufficient to implement timely inseason changes to TACs, should they be
warranted for conservation or management reasons.
Comment 6: Paragraph 673.1(c) of the proposed rule states ``State
of Alaska laws that are consistent with the regulations in this part
are not preempted for vessels registered under the laws of the State
fishing for scallops in the Federal waters off Alaska.'' Neither the
FMP nor the proposed rule adopt all of the areas closed by State to
scallop fishing. Thus, one could interpret paragraph 673.1(c) to mean
that State closed areas within Federal waters could be preempted for
State registered vessels. The areas closed by the State to scallop
fishing were adopted by the Board of Fisheries over 20 years ago to
protect king and Tanner crab stocks by using the best scientific
information available along with public testimony. Crab stocks in these
closed areas are very depressed and commercial king crab fisheries have
[[Page 38103]]
been closed since 1983. Based on the crab stock status and additional
public input, the Board of Fisheries confirmed the closures in 1994.
Response: NMFS did not implement all of the closed areas that are
currently established in State regulations, because NMFS did not have
sufficient information on crab bycatch and crab habitat immediately
available to propose such closures. To compile and analyze crab bycatch
statistics for the areas currently closed by the State prior to
publication of the proposed rule could have delayed the timely
reopening of the scallop fishery in Federal waters. However, NMFS
encourages the State to take any additional measures necessary to
protect scallop stocks and bycatch species for State-registered vessels
fishing in Federal waters. In Sec. 679.1(h)(2), the phrase ``consistent
with'' was changed to ``in addition to, and not in conflict with'' to
clarify that NMFS intends to allow the State to impose additional
regulations on State-registered vessels that are fishing for scallops
in Federal waters, as long as State regulations are not in direct
conflict with Federal regulations or the FMP.
Comment 7: The proposed rule does not close Federal waters
presently closed by the State to scallop fishing. ADF&G is concerned
that vessels that are not registered with the State will not comply
with State regulations and could legally fish in these closed areas.
The State's Fish and Wildlife Protection Division cannot enforce
regulations on vessels that are not registered with the State or do not
enter State waters. ADF&G believes that NMFS Enforcement could not
enforce these closed waters if they are not established in Federal
regulations.
Response: The reasons why NMFS did not implement all of the State
closures in Federal waters are outlined in the response to comment 6.
Because the closed areas in question are not established in Federal
regulations, they will not be enforced by NMFS, however, they may be
enforced by the State for State-registered vessels. A vessel fishing
for scallops that is not registered with the State could indeed fish in
areas of Federal waters that the State has closed to State-registered
vessels. However, NMFS believes it is extremely unlikely that a vessel
operator would chose to fish for scallops without registering with the
State. Many scallop beds straddle both State and Federal waters and a
vessel not registered with the State would be prevented from fishing in
State waters and could also be prevented from entering State waters
with unprocessed scallops on board. NMFS believes that the loss of
access to State waters would far outweigh any possible advantage a
vessel would gain by avoiding State-registration simply to fish in the
closed areas in question.
Comment 8: ADF&G believes that separate TACs should be established
for Registration Areas M, Q, and R. The combined TAC of 875,000 lb
(396,893.3 kg) of shucked meat creates a potential risk of overfishing
in any single area. Dependence on CBLs to protect the scallop resource
from overfishing in these areas is not appropriate. TACs for each
registration area should be established at historic high catch:
Registration Area M, 0 to 200,000 lb (90,718 kg) shucked meat;
Registration Area Q, 0 to 600,000 lb (272,155 kg) shucked meat; and
Registration Area R, 0 to 75,000 lb (43,019 kg) shucked meat.
Response: NMFS agrees. The final specifications of TAC for the
period August 1, 1996, through June 30, 1997, have been changed to
reflect TACs of 200,000 lb (90,718 kg) shucked meat for Registration
Area M, 600,000 lb (272,155 kg) shucked meat for Registration Area Q,
and 75,000 lb (43,019 kg) shucked meat for Registration Area R.
Comment 9: The Bristol Bay bottom trawl closures recently adopted
by the Council should also be closed to scallop dredging to be
consistent with Federal groundfish regulations and to assist in the
protection and rebuilding efforts for the Bristol Bay red king crab
stocks.
Response: NMFS agrees. All Federal waters that are closed to
trawling for groundfish with nonpelagic trawl gear for the purpose of
habitat protection, limiting crab bycatch, or protecting walrus
rookeries and Steller sea lion areas are also closed to dredging for
scallops. If the Bristol Bay bottom trawl closures recently adopted by
the Council are approved by NMFS, they will also apply to dredging for
scallops.
Classification
The Director, Alaska Region, NMFS, determined that Amendment 1 is
necessary for the conservation and management of the scallop fishery
off Alaska and that it is consistent with the Magnuson Act and other
applicable laws.
The Federal waters off Alaska have been closed to scallop fishing
under an emergency interim rule and subsequent final rule since
February 23, 1995 (60 FR 11054, March 1, 1995 and 60 FR 42070, August
15, 1995, respectively). The management measures established under this
final rule relieve this restriction by reopening Federal waters to
fishing for scallops. Therefore, as this rule relieves a restriction,
delayed effectiveness under 5 U.S.C. 553(d)(1) is not required.
Additionally, with respect to the new management measures imposed by
this rule, there is good cause to waive the delayed effectiveness
period under 5 U.S.C. 553(d)(3) because of the need to coordinate the
opening of Federal waters with the August 1, 1996, opening of State
waters within each registration area. Furthermore, all vessels expected
to fish in Federal waters also fish in State waters where these
regulatory requirements have been in effect and are familiar to the
fleet.
This rule has been determined to be not significant for the
purposes of E.O. 12866.
The Council prepared a FRFA as part of the RIR, which describes the
impacts that this rule is expected to have on small entities. The
economic effects of this rule to the regulated community are expected
to be significant and positive. Because this rule repeals the total
closure of Federal waters to fishing for scallops, significant
opportunities for scallop fishing will exist that could otherwise be
unavailable under current regulations. The analysis concluded that in
1994, 86 percent of the scallops harvested off Alaska were taken from
Federal waters and 11 of the 16 vessels harvesting scallops
participated in no other fishery. This rule will restore the
opportunity to fish in Federal waters that was available prior to 1995.
A copy of this analysis is available from NMFS (see ADDRESSES).
List of Subjects in 50 CFR Part 679
Fisheries, Reporting and recordkeeping requirements.
Dated: July 17, 1996.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 679 is amended
as follows:
PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA
1. The authority citation for part 679 continues to read as
follows:
Authority: 16 U.S.C. 773 et seq., 1801 et seq.
2. In Sec. 679.1, paragraph (h) is revised to read as follows:
Sec. 679.1 Purpose and scope.
* * * * *
(h) Fishery Management Plan for the Scallop Fishery off Alaska. (1)
Regulations in this part govern commercial fishing for scallops in the
Federal waters off Alaska by vessels of
[[Page 38104]]
the United States (see subparts A and F of this part).
(2) State of Alaska laws that are in addition to, and not in
conflict with, the regulations in this part are not preempted for
vessels registered under the laws of the State fishing for scallops in
the Federal waters off Alaska.
3. In Sec. 679.2 the definition of ``Authorized fishing gear'' is
amended by revising the introductory paragraph, redesignating
paragraphs (1) through (9) and (10) as paragraphs (2) through (10) and
(12), respectively, and adding new paragraphs (1) and (11). New
definitions of ``CBL'' and ``Shucking machine'' are added, in
alphabetical order, to read as follows:
Sec. 679.2 Definitions.
* * * * *
Authorized fishing gear means dive, fixed gear, hook-and-line, jig,
longline, longline pot, nonpelagic trawl, nontrawl, pelagic trawl, pot-
and-line, scallop dredge, and trawl defined as follows:
(1) Dive means any scuba or surface supported diving equipment that
allows for the underwater harvest of scallops by divers, or the taking
of scallops by means of such gear.
* * * * *
(11) Scallop dredge means gear consisting of a mouth frame attached
to a holding bag constructed of metal rings, or any modification to
this design that can be or is used in the harvest of scallops, or the
taking of scallops by means of such gear.
* * * * *
CBL means crab bycatch limit.
* * * * *
Shucking machine means any mechanical device that automatically
removes the meat or the adductor muscle from the shell.
* * * * *
4. In Sec. 679.7, paragraph (h) is added to read as follows:
Sec. 679.7 Prohibitions.
* * * * *
(h) Scallop fishery off Alaska. It is unlawful for any person to
violate any provision of subpart F of this part while fishing for
scallops in the Federal waters off Alaska.
5. Subpart F is revised to read as follows:
Subpart F--Scallop Fishery Off Alaska
Sec.
679.60 Gear and efficiency limits.
679.61 Registration areas.
679.62 General limitations.
679.63 Inseason adjustments.
679.64 Seasons.
679.65 Observer requirements.
Subpart F--Scallop Fishery Off Alaska
Sec. 679.60 Gear and efficiency limits.
(a) General. Scallops may be taken only with dive gear or scallop
dredge gear as defined at Sec. 679.2.
(b) The inside ring diameter on all dredges used or carried by a
vessel fishing for weathervane scallops (Patinopectin caurinus) must be
4 inches (10.16 cm) or larger.
(c) The inside ring diameter on all dredges used or carried by a
vessel fishing for scallops other than weathervane scallops must be 3
inches (7.62 cm) or larger.
(d) No person may use chafing gear or other devices that decrease
the legal inside ring diameter of a scallop dredge.
(e) Except as provided in paragraph (f) of this section, no more
than two scallop dredges may be operated at one time from a vessel, and
the opening of a scallop dredge must be equal to or less than 15 ft
(4.57 m) wide.
(f) In the Kamishak, Southern, and Central Districts of Scallop
Registration Area H defined under Sec. 679.61, no more than one scallop
dredge may be operated at one time from a vessel, and the opening of a
dredge may not be more than 6 ft (1.83 m) in width.
(g) Scallops must be shucked by hand only. A shucking machine must
not be on board a vessel that is fishing for scallops or that has
scallops on board.
(h) No vessel fishing for scallops in Federal waters may have
aboard more than 12 persons, exclusive of ADF&G or NMFS observers.
Sec. 679.61 Registration areas.
For the purpose of managing the scallop fishery, the Federal waters
off Alaska and adjacent State waters are divided into nine scallop
registration areas. Three scallop registration areas are further
subdivided into districts. The scallop registration areas and districts
are defined as follows:
(a) Registration Area A (Southeastern) has as its southern boundary
the international boundary at Dixon Entrance, and as its northern
boundary Loran-C line 7960-Y-29590, which intersects the western tip of
Cape Fairweather at 58 deg.47'58'' N. lat., 137 deg.56'30'' W. long.,
except for ADF&G District 16 defined under paragraph (b) of this
section.
(b) Registration Area D (Yakutat) has as its western boundary the
longitude of Cape Suckling (143 deg.53' W. long.), and as its southern
boundary Loran-C line 7960-Y-29590, which intersects the western tip of
Cape Fairweather at 58 deg.47'58'' N. lat., 137 deg.56'30'' W. long.,
and ADF&G District 16 defined as all waters all waters north of a line
projecting west from the southernmost tip of Cape Spencer and south of
a line projecting southwest from the westernmost tip of Cape
Fairweather.
(c) Registration Area E (Prince William Sound) has as its western
boundary the longitude of Cape Fairfield (148 deg.50' W. long.), and
its eastern boundary the longitude of Cape Suckling (143 deg.53' W.
long.).
(d) Registration Area H (Cook Inlet) has as its eastern boundary
the longitude of Cape Fairfield (148 deg.50' W. long.) and its southern
boundary the latitude of Cape Douglas (58 deg.52' N. lat.).
(1) Northern District. North of a line extending from Boulder Point
at 60 deg.46'23'' N. lat., to Shell Platform C, then to a point on the
west shore at 60 deg.46'23'' N. lat.
(2) Central District. All waters between a line extending from
Boulder Point at 60 deg.46'23'' N. lat., to Shell Platform C, to a
point on the west shore at 60 deg.46'23'' N. lat., and the latitude of
Anchor Point Light (59 deg.46'12'' N. lat.).
(3) Southern District. All waters enclosed by a line from Anchor
Point Light west to 59 deg.46'12'' N. lat., 152 deg.20' W. long., then
south to 59 deg.03'25'' N. lat., 152 deg.20' W. long., then in a
northeasterly direction to the tip of Cape Elizabeth at 59 deg.09'30''
N. lat., 151 deg.53' W. long., then from the tip of Cape Elizabeth to
the tip of Point Adam at 59 deg.15'20'' N. lat., 151 deg.58'30'' W.
long.
(4) Kamishak Bay District. All waters enclosed by a line from
59 deg.46'12'' N. lat., 153 deg.00'30'' W. long., then east to
59 deg.46'12'' N. lat., 152 deg.20' W. long., then south to
59 deg.03'25'' N. lat., 152 deg.20' W. long., then southwesterly to
Cape Douglas (58 deg.52' N. lat.). The seaward boundary of the Kamishak
Bay District is 3 nautical miles seaward from the shoreline between a
point on the west shore of Cook Inlet at 59 deg.46'12'' N. lat.,
153 deg.00'30'' W. long., and Cape Douglas at 58 deg.52' N. lat.,
153 deg.15' W. long., including a line three nautical miles seaward
from the shorelines of Augustine Island and Shaw Island, and including
the line demarking all state waters shown on NOAA chart 16640, 21st
Ed., May 5, 1990 (Available from Alaska Region).
(5) Barren Island District. All waters enclosed by a line from Cape
Douglas (58 deg.52' N. lat.) to the tip of Cape Elizabeth at
59 deg.09'30'' N. lat., 151 deg.53' W. long., then south to 58 deg.52'
N. lat., 151 deg.53' W. long., then west to Cape Douglas.
(6) Outer District. All waters enclosed by a line from the tip of
Point Adam to the tip of Cape Elizabeth, then south to 58 deg.52' N.
lat., 151 deg.53' W. long., then east to the longitude of Aligo Point
[[Page 38105]]
(149 deg.44'33'' W. long.), then north to the tip of Aligo Point.
(7) Eastern District. All waters east of the longitude of Aligo
Point (149 deg.44'33'' W. long.), west of the longitude of Cape
Fairfield (148 deg.50' W. long.), and north of 58 deg.52' N. lat.
(e) Registration Area K (Kodiak) has as its northern boundary the
latitude of Cape Douglas (58 deg.52' N lat.), and as its western
boundary the longitude of Cape Kumlik (157 deg.27' W. long.).
(1) Northeast District. All waters northeast of a line extending
168 deg. from the easternmost tip of Cape Barnabas, east of a line from
the northernmost tip of Inner Point to the southernmost tip of Afognak
Point, east of 152 deg.30' W. long. in Shuyak Strait, and east of the
longitude of the northernmost tip of Shuyak Island (152 deg.20' W.
long.).
(2) Southeast District. All waters southwest of a line extending
168 deg. from the easternmost tip of Cape Barnabas and east of a line
extending 222 deg. from the southernmost tip of Cape Trinity.
(3) Southwest District. All waters west of a line extending
222 deg. from the southernmost tip of Cape Trinity, south of a line
from the westernmost tip of Cape Ikolik to the southernmost tip of Cape
Kilokak and east of the longitude of Cape Kilokak (156 deg.19' W.
long.).
(4) Semidi Island District. All waters west of the longitude of
Cape Kilokak at 156 deg.19' W. long. and east of the longitude of Cape
Kumlik at 157 deg.27' W. long.
(5) Shelikof District. All waters north of a line from the
westernmost tip of Cape Ikolik to the southernmost tip of Cape Kilokak,
west of a line from the northernmost tip of Inner Point to the
southernmost tip of Afognak Point, west of 152 deg.30' W. long., in
Shuyak Strait, and west of the longitude of the northernmost tip of
Shuyak Island (152 deg.20' W. long.).
(f) Registration Area M (Alaska Peninsula) has as its eastern
boundary the longitude of Cape Kumlik (157 deg.27' W. long.), and its
western boundary the longitude of Scotch Cap Light. The registration
area also includes all waters of Bechevin Bay and Isanotski Strait
south of a line from the easternmost tip of Chunak Point to the
westernmost tip of Cape Krenitzen.
(g) Registration Area O (Dutch Harbor) has as its northern boundary
the latitude of Cape Sarichef (54 deg.36' N. lat.), as its eastern
boundary the longitude of Scotch Cap Light, and as its western boundary
171 deg. W. long., excluding the waters of Statistical Area Q.
(h) Registration Area Q (Bering Sea) has as its southern boundary a
line from Cape Sarichef (54 deg.36' N. lat.), to 54 deg.36' N. lat.,
171 deg. W. long., to 55 deg.30' N. lat., 171 deg. W. long., to
55 deg.30' N. lat., 173 deg.30' E. long., as its northern boundary the
latitude of Point Hope (68 deg.21' N. lat.).
(i) Registration Area R (Adak) has as its eastern boundary 171 deg.
W. long., and as its northern boundary 55 deg.30' N. lat.
Sec. 679.62 General limitations.
(a) Harvest limits--(1) General. NMFS will establish TAC amounts
and CBLs for the scallop fishery off Alaska according to the procedures
described under this section. The total annual TAC amount for scallops
off Alaska will be established within the OY range of 0 to 1.8 million
lb (0 to 815.5 mt) of shucked scallop meat.
(2) TACs. (i) The annual TACs for scallops in each Registration
Area or part thereof will be established as a weight in pounds of
shucked scallop meat based on a review of the following:
(A) Assessments of the biological condition of each scallop
species. Assessments will include, where practicable, updated estimates
of MSY; historical catch trends and current catch statistics, reviews
of alternative harvesting strategies; and relevant information relating
to changes in scallop markets.
(B) Socioeconomic considerations that are consistent with the goals
and objectives of the FMP.
(ii) Annual scallop TACs will be specified for the 12-month time
period extending from July 1 through June 30 of the following year. An
annual TAC amount is available for harvest only for the registration
area or district specified, only during the applicable season set out
in Sec. 679.64, and only if no closure or other restriction or
limitation is applicable.
(3) CBLs. (i) CBLs may be specified for red king crab and Tanner
crab species for any registration area or district.
(ii) Except as provided under paragraph (a)(3)(iii) of this
section, annual CBLs will be based on the biological condition of each
crab species, historical bycatch rates in the scallop fishery, and
other socioeconomic considerations that are consistent with the goals
and objectives of the FMP.
(iii) Annual CBLs in Registration Area Q will equal the following
amounts:
(A) The CBL for red king crab caught while conducting any fishery
for scallops will be specified within the range of 500 to 3,000 crab
based on the considerations listed in paragraph (a)(3)(ii) of this
section.
(B) The CBL for Chionoecetes opilio Tanner crab caught while
conducting any fishery for scallops is 0.003176 percent of the best
available estimate of C. opilio abundance in Registration Area Q.
(C) The CBL for C. bairdi Tanner crab caught while conducting any
fishery for scallops is 0.13542 percent of the best available estimate
of C. bairdi abundance in Registration Area Q.
(iv) Annual CBLs will be specified for the 12-month time period
from July 1 through June 30 of the following year. An annual CBL may be
utilized only for the registration area or district specified, only if
any applicable TAC amount is available for harvest, only during the
applicable season set out in Sec. 679.64, and only if no closure or
other limitation or restriction is applicable.
(b) Specifications. The following procedure is established for
specifying TAC amounts and CBLs:
(1) On an annual basis, prior to the April Council meeting, the
Council will distribute a summary of the State's most recent TAC and
CBL recommendations and supporting documentation to the public through
its mailing list, as well as provide copies of the recommendations,
documentation, and the annual SAFE report to the public upon request.
The Council will notify the public of its intent to develop final
recommendations at the April Council meeting and solicit public comment
both before and during the April Council meeting.
(2) Following the April Council meeting, the Council will submit
its TAC and CBL recommendations along with rationale and supporting
information to NMFS for review and implementation.
(3) As soon as practicable after receiving recommendations from the
Council, NMFS will publish in the Federal Register annual
specifications of TAC amounts and CBLs for the succeeding 12-month
period extending from July 1 through June 30 of the following year.
(c) Closures. (1) If the Director, Alaska Region, NMFS, determines
that a TAC or CBL specified under paragraphs (a) and (b) of this
section has been or will be reached, NMFS will publish notification in
the Federal Register prohibiting the taking and retention of scallops
in the Federal waters of the registration area or district where the
notification is applicable.
(2) It is unlawful for any person to conduct any fishing for
scallops contrary to the notification of closure issued pursuant to
this paragraph.
(d) Closed areas. It is unlawful for any person to dredge for
scallops in any Federal waters off Alaska that are closed to fishing
with trawl gear or non pelagic trawl gear under Sec. 679.22(a)(1)(i),
(a)(2)(i), (a)(4), (a)(6), (a)(7) and (b).
[[Page 38106]]
Sec. 679.63 Inseason adjustments.
(a) Inseason adjustments may be issued by NMFS to implement the
closure, extension, opening, or reopening of a season in all or part of
a scallop registration area; and the adjustment of TAC amounts or CBLs.
(b) Determinations for any inseason adjustment authorized under
paragraph (a) of this section must be consistent with
Sec. 679.25(a)(2).
(c) Procedures for making inseason adjustments are specified at
Sec. 679.25(c).
(d) It is unlawful for any person to conduct any fishing for
scallops contrary to an inseason adjustment issued pursuant to this
section.
Sec. 679.64 Seasons.
(a) Fishing for scallops in the Federal waters off Alaska is
authorized from 0001 hours, A.l.t., July 1, through 2400 hours, A.l.t.,
June 30, subject to the other provisions of this part, except as
provided in paragraphs (b) through (e) of this section.
(b) Fishing for scallops in the Federal waters of Scallop
Registration Areas K, M, O, Q, and R is authorized from 1200 hours,
A.l.t., July 1 through 1200 hours, A.l.t., February 15 of the following
year, subject to the other provisions of this part.
(c) Fishing for scallops in the Federal waters of the Kamishak
District of Scallop Registration Area H is authorized from 1200 hours,
A.l.t., August 15 through 1200 hours, A.l.t., October 31, subject to
the other provisions of this part.
(d) (Applicable January 1, 1997) Fishing for scallops in the
Federal waters of Scallop Registration Areas A, D, and E is authorized
from 1200 hours, A.l.t., January 10 through 2400 hours, A.l.t., June
30, subject to the other provisions of this part.
(e) (Applicable through December 31, 1996) Fishing for scallops in
the Federal waters of Scallop Registration Area D is authorized from
1200 hours, A.l.t., August 1 through 2400 hours, A.l.t., December 31,
subject to the other provisions of this part. Fishing for scallops in
the Federal waters of Scallop Registration Areas A and E is not
authorized.
Sec. 679.65 Observer requirements.
(a) Except as provided in paragraph (c) of this section, vessels
must carry a NMFS-certified or ADF&G-certified scallop observer at all
times while fishing for scallops in Federal waters.
(b) An operator of a vessel required to carry an observer must
comply with all safety and conduct requirements set out at
Sec. 679.7(g).
(c) Vessels less than 80 ft (24.4 m) LOA are exempt from the
requirements of this section while fishing for scallops in the Federal
waters of Registration Area H.
[FR Doc. 96-18666 Filed 7-18-96; 4:19 pm]
BILLING CODE 3510-22-P
Complete official Federal Register PDF
FR Doc. 96-18664 Changes in Flood Elevation Determinations
[Federal Register Volume 61, Number 142 (Tuesday, July 23, 1996)]
[Rules and Regulations]
[Pages 38092-38094]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18664]
-----------------------------------------------------------------------
FEDERAL EMERGENCY MANAGEMENT AGENCY
44 CFR Part 65
[Docket No. FEMA-7186]
Changes in Flood Elevation Determinations
AGENCY: Federal Emergency Management Agency, FEMA.
ACTION: Interim rule.
-----------------------------------------------------------------------
SUMMARY: This interim rule lists communities where modification of the
base (1% annual chance) flood elevations is appropriate because of new
scientific or technical data. New flood insurance premium rates will be
calculated from the modified base flood elevations for new buildings
and their contents.
[[Page 38093]]
DATES: These modified base flood elevations are currently in effect on
the dates listed in the table and revise the Flood Insurance Rate
Map(s) (FIRMs) in effect prior to this determination for each listed
community.
From the date of the second publication of these changes in a
newspaper of local circulation, any person has ninety (90) days in
which to request through the community that the Acting Associate
Director reconsider the changes. The modified elevations may be changed
during the 90-day period.
ADDRESSES: The modified base flood elevations for each community are
available for inspection at the office of the Chief Executive Officer
of each community. The respective addresses are listed in the following
table.
FOR FURTHER INFORMATION CONTACT: Michael K. Buckley, P.E., Chief,
Hazard Identification Branch, Mitigation Directorate, 500 C Street
S.W., Washington, DC 20472, (202) 646-2756.
SUPPLEMENTARY INFORMATION: The modified base flood elevations are not
listed for each community in this interim rule. However, the address of
the Chief Executive Officer of the community where the modified base
flood elevation determinations are available for inspection is
provided.
Any request for reconsideration must be based upon knowledge of
changed conditions, or upon new scientific or technical data.
The modifications are made pursuant to section 201 of the Flood
Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance
with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq.,
and with 44 CFR part 65.
For rating purposes, the currently effective community number is
shown and must be used for all new policies and renewals.
The modified base flood elevations are the basis for the floodplain
management measures that the community is required to either adopt or
to show evidence of being already in effect in order to qualify or to
remain qualified for participation in the National Flood Insurance
Program.
These modified elevations, together with the floodplain management
criteria required by 44 CFR 60.3, are the minimum that are required.
They should not be construed to mean that the community must change any
existing ordinances that are more stringent in their floodplain
management requirements. The community may at any time enact stricter
requirements of its own, or pursuant to policies established by other
Federal, state or regional entities.
The changes in base flood elevations are in accordance with 44 CFR
65.4.
National Environmental Policy Act
This rule is categorically excluded from the requirements of 44 CFR
Part 10, Environmental Consideration. No environmental impact
assessment has been prepared.
Regulatory Flexibility Act
The Acting Associate Director, Mitigation Directorate, certifies
that this rule is exempt from the requirements of the Regulatory
Flexibility Act because modified base flood elevations are required by
the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are
required to maintain community eligibility in the National Flood
Insurance Program. No regulatory flexibility analysis has been
prepared.
Regulatory Classification
This interim rule is not a significant regulatory action under the
criteria of section 3(f) of Executive Order 12866 of September 30,
1993, Regulatory Planning and Review, 58 FR 51735.
Executive Order 12612, Federalism
This rule involves no policies that have federalism implications
under Executive Order 12612, Federalism, dated October 26, 1987.
Executive Order 12778, Civil Justice Reform
This rule meets the applicable standards of section 2(b)(2) of
Executive Order 12778.
List of Subjects in 44 CFR Part 65
Flood insurance, Floodplains, Reporting and recordkeeping
requirements.
Accordingly, 44 CFR part 65 is amended to read as follows:
PART 65--[AMENDED]
1. The authority citation for part 65 continues to read as follows:
Authority: 42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of
1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR,
1979 Comp., p. 376.
Sec. 65.4 [Amended]
2. The tables published under the authority of Sec. 65.4 are
amended as follows:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Chief executive
State and county Location Dates and name of newspaper officer of Effective date of Community
where notice was published community modification No.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Alabama: Lauderdale......... City of Florence............ May 24, 1996, May 31, 1996, The Honorable August 29, 1996............. 010140 C
Times Daily. Eddie Frost,
Mayor of the
City of
Florence, 110
West College
Street,
Florence,
Alabama 35630.
Illinois:
Tazewell................ Village of Morton........... June 5, 1996, June 12, 1996 Dr. Robert D. May 28, 1996................ 170652D
Tazewell News. Hertenstein,
President of
the Village of
Morton, P.O.
Box 28, 120
North Main
Street,
Morton,
Illinois 61550.
LaSalle and Livingston.. City of Streator............ May 7, 1996, May 14, 1996, The The Honorable May 2, 1996................. 170408 B
Times Press. Robert Lee II,
Mayor of the
City of
Streator, 204
South
Bloomington
Street, P.O.
Box 517,
Streator,
Illinois 61364.
[[Page 38094]]
Indiana: Porter............. Town of Porter.............. May 28, 1996, June 4, 1996, Ms. Charlene May 21, 1996................ 180208 B
Chesterton Tribune. Hauber, Porter
Town Clerk/
Treasurer,303
Franklin
Street,
Porter,
Indiana 46304.
Massachusetts:
Barnstable.............. Town of Barnstable......... May 13, 1996, May 20, 1996 Cape Mr. Warren J. May 1, 1996................. 250001 D
Cod Times. Rutherford,
Town of
Barnstable
Manager, Town
Hall, 367 Main
Street,
Hyannis,
Massachusetts
02601.
Do...................... do.......................... May 28, 1996, June 4, 1996, Cape do............. May 17, 1996................ 250001 D
Cod Times.
Michigan: Wayne............. Township of Canton.......... May 30, 1996, June 6, 1996, Mr. Thomas May 21, 1996................ 260219 B
Canton Observer. Yack, Canton
Township
Supervisor,
1150 South
Canton Center
Road, Canton,
Michigan 48188.
Ohio:
Lorain.................. City of Avon................ April 30, 1996, May 7, 1996, The The Honorable April 18, 1996.............. 390348C
Morning Journal. James A.
Smith, Mayor
of the City of
Avon,36774
Detroit Road,
Avon, Ohio
44011.
Fairfield............... Unincorporated Areas........ May 7, 1996, May 14, 1996, Eagle- Mr. Allan Reid, April 30, 1996.............. 390158 D
Gazette. President of
the Fairfield
County Board
of
Commissioners,
Fairfield
County
Courthouse,
210 East Main
Street, Room
301,
Lancaster,
Ohio 43130.
Montgomery.............. do.......................... May 29, 1996, June 5, 1996, Ms. Vicki Pegg, May 24, 1996................ 390775 C
Dayton Daily News. Montgomery
County
Commissioner,
451 West Third
Street,Dayton,
Ohio 45422-
1260.
Tennessee: Shelby........... City of Germantown.......... May 2, 1996, May 9, 1996, The Honorable April 23, 1996.............. 470353 E
Germantown News. Sharon
Goldsworthy,
Mayor of the
City of
Germantown,
1930 South
Germantown
Road, P.O. Box
38809,
Germantown,
Tennessee
38183-0809.
--------------------------------------------------------------------------------------------------------------------------------------------------------
(Catalog of Federal Domestic Assistance No. 83.100, ``Flood
Insurance.'')
Dated: July 10, 1996.
Richard W. Krimm,
Acting Associate Director for Mitigation.
[FR Doc. 96-18664 Filed 7-22 -96; 8:45 am]
BILLING CODE 6718-03-P
Complete official Federal Register PDF
FR Doc. 96-18662 Changes in Flood Elevation Determinations
[Federal Register Volume 61, Number 142 (Tuesday, July 23, 1996)]
[Rules and Regulations]
[Pages 38091-38092]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18662]
=======================================================================
-----------------------------------------------------------------------
FEDERAL EMERGENCY MANAGEMENT AGENCY
44 CFR Part 65
Changes in Flood Elevation Determinations
AGENCY: Federal Emergency Management Agency, FEMA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: Modified base (1% annual chance) flood elevations are
finalized for the communities listed below. These modified elevations
will be used to calculate flood insurance premium rates for new
buildings and their contents.
EFFECTIVE DATES: The effective dates for these modified base flood
elevations are indicated on the following table and revise the Flood
Insurance Rate Map(s) (FIRMs) in effect for each listed community prior
to this date.
ADDRESSES: The modified base flood elevations for each community are
available for inspection at the office of the Chief Executive Officer
of each community. The respective addresses are listed in the following
table.
FOR FURTHER INFORMATION CONTACT: Michael K. Buckley, P.E., Chief,
Hazard Identification Branch, Mitigation Directorate, 500 C Street
S.W., Washington, DC 20472, (202) 646-2756.
SUPPLEMENTARY INFORMATION: The Federal Emergency Management Agency
makes the final determinations listed below of modified base flood
elevations for each community listed. These modified elevations have
been published in newspapers of local circulation and ninety (90) days
have elapsed since that publication. The Acting Associate Director has
resolved any appeals resulting from this notification.
The modified base flood elevations are not listed for each
community in this notice. However, this rule includes the address of
the Chief Executive Officer of the community where the modified base
flood elevation determinations are available for inspection.
The modifications are made pursuant to section 206 of the Flood
Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance
with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq.,
and with 44 CFR part 65.
For rating purposes, the currently effective community number is
shown and must be used for all new policies and renewals.
The modified base flood elevations are the basis for the floodplain
management measures that the community is required to either adopt or
to show evidence of being already in effect in order to qualify or to
remain qualified for participation in the National Flood Insurance
Program.
These modified elevations, together with the floodplain management
criteria required by 44 CFR 60.3, are the minimum that are required.
They should not be construed to mean that the community must change any
existing ordinances that are more stringent in their floodplain
management requirements. The community may at any time enact stricter
requirements of its own, or pursuant to policies established by other
Federal, state or regional entities.
These modified elevations are used to meet the floodplain
management requirements of the NFIP and are also used to calculate the
appropriate flood insurance premium rates for new buildings built after
these elevations are made final, and for the contents in these
buildings.
The changes in base flood elevations are in accordance with 44 CFR
65.4.
National Environmental Policy Act
This rule is categorically excluded from the requirements of 44 CFR
Part 10, Environmental Consideration. No environmental impact
assessment has been prepared.
Regulatory Flexibility Act
The Acting Associate Director, Mitigation Directorate, certifies
that this rule is exempt from the requirements of the Regulatory
Flexibility Act because modified base flood elevations are required by
the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are
required to maintain community eligibility in the National Flood
Insurance Program. No regulatory flexibility analysis has been
prepared.
Regulatory Classification
This final rule is not a significant regulatory action under the
criteria of section 3(f) of Executive Order 12866 of
[[Page 38092]]
September 30, 1993, Regulatory Planning and Review, 58 FR 51735.
Executive Order 12612, Federalism
This rule involves no policies that have federalism implications
under Executive Order 12612, Federalism, dated October 26, 1987.
Executive Order 12778, Civil Justice Reform
This rule meets the applicable standards of section 2(b)(2) of
Executive Order 12778.
List of Subjects in 44 CFR Part 65
Flood insurance, Floodplains, Reporting and recordkeeping
requirements.
Accordingly, 44 CFR part 65 is amended to read as follows:
PART 65--[AMENDED]
1. The authority citation for part 65 continues to read as follows:
Authority: 42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of
1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR,
1979 Comp., p. 376.
Sec. 65.4 [Amended]
2. The tables published under the authority of Sec. 65.4 are
amended as follows:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Chief executive
State and county Location Dates and name of newspaper officer of Effective date of Community
where notice was published community modification No.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Georgia: Chatham (FEMA Unincorporated Areas........ December 27, 1995, January 3, Mr. Joseph April 3, 1996............... 130030C
Docket Areas No. 7173). 1996, Savannah News-Press. Mahany,
Chairman of
the Chatham
County Board
of
Commissioners,
124 Bull
Street, P.O.
Box 8161,
Savannah,
Georgia 31412.
Illinois:
Cook (FEMA Docket No. City of Country Club Hills.. July 27, 1995, August 3, 1995, The Honorable July 20, 1995............... 170078 C
7150). The Daily Southtown and The Dwight W.
Star. Welch, Mayor
of the City of
Country Club
Hills, 3700
West 175th
Place, Country
Club Hills,
Illinois 60478.
DeKalb (FEMA Docket No. City of DeKalb.............. December 8, 1995, December 15, The Honorable December 4, 1995............ 170182 B
7173). 1995, Daily Chronicle. Greg Sparrow,
Mayor of the
City of
DeKalb, 200
South 4th
Street,
DeKalb,
Illinois 60115.
DuPage County (FEMA Unincorporated Areas........ March 20, 1995, March 27, 1995, Mr. Gayle M. March 15, 1995.............. 170197 B
Docket No. 7137). Chicago Tribune. Franzen,
DuPage County
Board
Chairman, 421
North County
Farm Road,
Wheaton,
Illinois 60187.
New Jersey: Hunterdon (FEMA Township of Delaware........ December 28, 1995, January 4, The Honorable April 4, 1996............... 340506 B
Docket No. 7173). 1996, Hunterdon County Democrat. Robert Reed,
Mayor of the
Township of
Delaware,
Township Hall,
Sergeantville,
New Jersey
08557.
Ohio: Lorain (FEMA Docket City of Avon................ December 28, 1995, January 4, The Honorable December 15, 1995........... 390348 C
No. 7173). 1996, The Morning Journal. James A.
Smith, Mayor
of the City of
Avon, 36774
Detroit Road,
Avon, Ohio
44011.
Wisconsin: La Crosse (FEMA Unincorporated Areas........ January 4, 1996, January 11, Mr. James A. December 28, 1995........... 550217 A
Docket No. 7173). 1996, La Crosse Tribune. Ehrsam, La
Crosse County
Board
Chairman, 400
North Fourth
Street, La
Crosse,
Wisconsin
54601.
--------------------------------------------------------------------------------------------------------------------------------------------------------
(Catalog of Federal Domestic Assistance No. 83.100, ``Flood
Insurance'')
Dated: July 10, 1996.
Richard W. Krimm,
Acting Associate Director for Mitigation.
[FR Doc. 96-18662 Filed 7-22-96; 8:45 am]
BILLING CODE 6718-03-P
Complete official Federal Register PDF
FR Doc. 96-18660 Final Flood Elevation Determinations; Alabama, Et Al.
[Federal Register Volume 61, Number 142 (Tuesday, July 23, 1996)]
[Rules and Regulations]
[Pages 38094-38099]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18660]
-----------------------------------------------------------------------
FEDERAL EMERGENCY MANAGEMENT AGENCY
44 CFR Part 67
Final Flood Elevation Determinations; Alabama, Et Al.
AGENCY: Federal Emergency Management Agency (FEMA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: Base (1% annual chance) flood elevations and modified base
flood elevations are made final for the communities listed below. The
base flood elevations and modified base flood elevations are the basis
for the floodplain management measures that each community is required
either to adopt or to show evidence of being already in effect in order
to qualify or remain qualified for participation in the National Flood
Insurance Program (NFIP).
EFFECTIVE DATE: The date of issuance of the Flood Insurance Rate Map
(FIRM) showing base flood elevations and modified base flood elevations
for each community. This date may be obtained by contacting the office
where the maps are available for inspection as indicated on the table
below.
ADDRESSES: The final base flood elevations for each community are
available for inspection at the office of the Chief Executive Officer
of each community. The respective addresses are listed in the table
below.
FOR FURTHER INFORMATION CONTACT: Michael K. Buckley, P.E., Chief,
Hazard Identification Branch, Mitigation Directorate, 500 C Street
S.W., Washington, DC 20472, (202) 646-2756.
SUPPLEMENTARY INFORMATION: The Federal Emergency Management Agency
(FEMA or Agency) makes final
[[Page 38095]]
determinations listed below of base flood elevations and modified base
flood elevations for each community listed. The proposed base flood
elevations and proposed modified base flood elevations were published
in newspapers of local circulation and an opportunity for the community
or individuals to appeal the proposed determinations to or through the
community was provided for a period of ninety (90) days. The proposed
base flood elevations and proposed modified base flood elevations were
also published in the Federal Register.
This final rule is issued in accordance with section 110 of the
Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part
67.
The Agency has developed criteria for floodplain management in
floodprone areas in accordance with 44 CFR part 60.
Interested lessees and owners of real property are encouraged to
review the proof Flood Insurance Study and Flood Insurance Rate Map
available at the address cited below for each community.
The base flood elevations and modified base flood elevations are
made final in the communities listed below. Elevations at selected
locations in each community are shown.
National Environmental Policy Act. This rule is categorically
excluded from the requirements of 44 CFR Part 10, Environmental
Consideration. No environmental impact assessment has been prepared.
Regulatory Flexibility Act. The Acting Associate Director,
Mitigation Directorate, certifies that this rule is exempt from the
requirements of the Regulatory Flexibility Act because final or
modified base flood elevations are required by the Flood Disaster
Protection Act of 1973, 42 U.S.C. 4104, and are required to establish
and maintain community eligibility in the National Flood Insurance
Program. No regulatory flexibility analysis has been prepared.
Regulatory Classification. This final rule is not a significant
regulatory action under the criteria of section 3(f) of Executive Order
12866 of September 30, 1993, Regulatory Planning and Review, 58 FR
51735.
Executive Order 12612, Federalism. This rule involves no policies
that have federalism implications under Executive Order 12612,
Federalism, dated October 26, 1987.
Executive Order 12778, Civil Justice Reform. This rule meets the
applicable standards of section 2(b)(2) of Executive Order 12778.
Administrative practice and procedure, Flood insurance, Reporting
and recordkeeping requirements.
Accordingly, 44 CFR part 67 is amended as follows:
PART 67--[AMENDED]
1. The authority citation for part 67 continues to read as follows:
Authority: 42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of
1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR,
1979 Comp., p. 376.
Sec. 67.11 [Amended]
2. The tables published under the authority of Sec. 67.11 are
amended as follows:
------------------------------------------------------------------------
#Depth in
feet above
ground.
Source of Flooding and Location *Elevation
in feet
(NGVD)
------------------------------------------------------------------------
ALABAMA
-------------------------------------------------------------
Valley Head (Town), De Kalb County (FEMA Docket No. 7172)
Big Wills Creek (With Southern Railway):
At upstream side of Southern Railway...................... *1014
Approximately 1,175 feet upstream of State Highway 117.... *1049
Big Wills Creek (Without Southern Railway):
Approximately 1,500 feet downstream of City Park Bridge... *977
Approximately 1,625 feet upstream of State Highway 117.... *1053
Maps available for inspection at the Valley Head Town Hall,
41 Anderson Avenue, Valley Head, Alabama.
-------------------------------------------------------------
ILLINOIS
-------------------------------------------------------------
Village of Aroma Park, Kankakee County (FEMA Docket No.
7175)
Iroquois River:
At the confluence with Kankakee River..................... *608
Approximately 0.3 mile upstream of the confluence with
Kankakee River........................................... *608
Kankakee River:
Approximately 0.5 mile downstream of the confluence of
Iroquois River........................................... *608
At the confluence of Spring Creek......................... *608
Maps available for inspection at the Aroma Park Village
Hall, 108 West Front Street, Aroma Park, Illinois.
------
Momence (City), Kankakee County (FEMA Docket No. 7175)
Kankakee River (Main Channel):
Approximately 0.52 mile downstream of Dixie Highway....... *615
Approximately 625 feet upstream of Union Pacific Railroad. *620
Kankakee River North Channel:
Just upstream of spillway................................. *618
Approximately 475 feet upstream of Union Pacific Railroad. *620
Maps available for inspection at the City Hall, 123 West
River Street, Momence, Illinois.
-------------------------------------------------------------
MASSACHUSETTS
-------------------------------------------------------------
Nantucket (Town), Nantucket County (FEMA Docket No. 7168)
Atlantic Ocean:
At Great Point............................................ *10
Approximately 0.2 mile southeast of Great Point........... *7
At the shoreline approximately 160 feet south of the
intersection of Clifford Street and Nonatum Avenue....... *9
Approximately 150 feet east of the intersection of Adams
Street and Nobadeer Avenue............................... *7
At the southern portion of Miacomet Pond.................. *8
At Hummock Pond........................................... *7
Nantucket Sound:
Head of the Harbor northern portion....................... *7
Maps available for inspection at the Nantucket Building
Commissioners Office, 37 Washington Street, Nantucket,
Massachusetts.
-------------------------------------------------------------
NEW JERSEY
-------------------------------------------------------------
Clinton (Town), Hunterdon County (FEMA Docket No. 7172)
Beaver Brook:
Approximately 150 feet upstream of Interstate 78.......... *205
At upstream corporate limits.............................. *207
Maps available for inspection at the Clinton Town Hall, 43
Leigh Street, Clinton, New Jersey.
-----------
[[Page 38096]]
NEW YORK
-------------------------------------------------------------
Gorham (Town), Ontario County (FEMA Docket No. 7164)
Canandaigua Lake:
At shoreline west of Orchard Rest Road.................... *692
At shoreline west of intersection of East Lake and
Townline Road............................................ *692
Maps available for inspection at the Gorham Town Hall, 4736
South Elm Street, Gorham, New York.
------
Putnam (Town), Washington County (FEMA Docket No. 7159)
Lake George:
Entire shoreline within community......................... *321
Maps available for inspection at the Putnam Town Clerk's
Office, Route 22, Putnam Station, New York.
-------------------------------------------------------------
NORTH CAROLINA
-------------------------------------------------------------
Cary (Town), Pine Lake (FEMA Docket No. 7159)
Pine Lake:
Entire shoreline of Pine Lake............................. *383
Swift Creek Tributary No. 7 (Basin 20, Stream 24) (Currently
shown as Pine Lake):
Approximately 550 feet downstream of Lake Pine Drive...... *383
Approximately 1,275 feet downstream of Lake Pine Drive.... *383
Maps available for inspection at the Engineering Department,
318 North Academy, Cary, North Carolina.
-------------------------------------------------------------
PENNSYLVANIA
-------------------------------------------------------------
Avondale (Borough), Chester County (FEMA Docket No. 7164)
East Branch White Clay Creek:
Approximately 750 feet downstream of confluence of Chatham
Run...................................................... *270
Approximately 550 feet upstream of confluence of Chatham
Run...................................................... *271
Trout Run:
At confluence with East Branch White Clay Creek........... *270
Approximately 670 feet above confluence with East Branch
White Clay Creek......................................... *270
Chatham Run:
At confluence with East Branch White Clay Creek........... *271
Approximately 475 feet upstream of Pomeroy Street......... *283
Maps available for inspection at the Avondale Borough Hall,
Pomeroy Avenue, Avondale, Pennsylavnia.
------
Caln (Township), Chester County (FEMA Docket No. 7138)
Beaver Creek:
Approximately 0.6 mile downstream of Lloyd Avenue......... *245
Approximately 300 feet downstream of Lloyd Avenue......... *250
Copeland Run:
At CONRAIL................................................ *282
Approximately 100 feet upstream of Donofrio Drive......... *282
Maps available for inspection at the Caln Township
Engineering and Codes Department Municipal Building, 253
Municipal Drive, Thorndale, Pennsylvania.
------
Downingtown (Borough), Chester County (FEMA Docket No. 7138)
East Branch Brandywine Creek:
Approximately 650 feet downstream of U.S. Highway 30...... *247
Approximately 375 feet upstream of U.S. Highway 30........ *250
Maps available for inspection at the Borough Hall, 4 West
Lancaster Avenue, Downingtown, Pennsylvania.
------
East Brandywine (Township), Chester County (FEMA Docket No.
7138)
Beaver Creek:
At its upstream corporate limit........................... *482
Maps available for inspection at the East Brandywine
Township Municipal Office, 1214 Horseshoe Pike,
Downingtown, Pennsylvania.
------
East Caln (Township), Chester County (FEMA Docket No. 7138)
East Branch Brandywine Creek:
Approximately 650 feet downstream of CONRAIL,
approximately 600 feet east of the intersection of
Brandywine Avenue and Boot Road.......................... *233
Maps available for inspection at the East Caln Township
Building, 110 Bell Tavern Road, P.O. Box 232, Downingtown,
Pennsylvania.
------
East Coventry (Township), Chester County (FEMA Docket No.
7138)
Schuylkill River:
At the confluence with Pigeon Creek....................... *122
At the upstream corporate limits.......................... *135
Pigeon Creek:
At the confluence with the Schuylkill River............... *122
At downstream side of Bethel Church Road.................. *125
Maps available for inspection at the East Coventry Township
Building, 855 Ellis Woods Road, Pottstown, Pennsylvania
------
East Fallowfield (Township), Chester County (FEMA Docket No.
7138)
Doe Run:
Approximately 1.64 miles downstream of State Route 82..... *264
West Branch Brandywine Creek:
Approximately 700 feet downstream of Strasburg Road....... *251
Maps available for inspection at the Township Building, 2264
Strasburg Road, East Fallowfield, Pennsylvania.
------
East Pikeland (Township), Chester County (FEMA Docket No.
7138)
Schuylkill River:
At the confluence of Stony Run............................ *107
Approximately 0.8 mile upstream of Conrail................ *109
French Creek:
Downstream of State Routes 724 and 23 (Schuylkill Road)... *118
Maps available for inspection at the East Pikeland Township
Building, Rapps Dam Road, Kimberton, Pennsylvania.
------
East Vincent (Township), Chester County (FEMA Docket No.
7138)
Schuylkill River:
Approximately 1,300 feet upstream of State Route 683...... *113
At the upstream corporate limits.......................... *122
Pigeon Creek:.............................................
At the confluence with Schuylkill River................... *122
Approximately 1,550 feet downstream of Bethel Church Road. *124
French Creek:
Approximately 1,700 feet downstream of Hollow Road........ *206
[[Page 38097]]
Approximately 0.4 mile upstream of Bertolet School Road... *249
Maps available for inspection at the East Vincent Township
Building, 262 Ridge Road, Spring City, Pennsylvania.
------
Franklin (Township), Chester County (FEMA Docket Nos. 7138
and 7164)
East Branch White Clay Creek:
Approximately 0.7 mile downstream of Newgarden Station
Road..................................................... *255
Approximately 0.2 mile downstream of Newgarden Station
Road..................................................... *259
Middle Branch White Clay Creek:
Approximately 0.4 mile downstream of Avondale-New London
Road..................................................... *301
Approximately 1,300 feet downstream of Avondale-New London
Road..................................................... *306
Maps available for inspection at the Franklin Township
Building, Walker Road, Kemblesville, Pennsylvania.
------
Highland (Township), Chester County (FEMA Docket No. 7164)
Buck Run:
Approximately 2,000 feet downstream of Buck Run Road...... *357
Approximately 900 feet upstream of most upstream CONRAIL
crossing................................................. *447
Doe Run:
Approximately 560 feet upstream of abandoned CONRAIL...... *339
Approximately 1,400 feet upstream of Creek Road........... *413
Maps available for inspection at the Highland Township
Building, R.D. 3, Guntree Road, Coatesville, Pennsylvania.
------
Kennett Square (Borough), Chester County (FEMA Docket No.
7138)
Tributary 2 to East Branch Red Road Clay Creek:
Approximately 750 feet downstream of Walnut............... *316
Maps available for inspection at the Kennett Square Borough
Hall, 120 North Broad Street, Kennett Square, Pennsylvania.
------
New Garden (Township), Chester County (FEMA Docket Nos. 7138
and 7164)
East Branch White Clay Creek:
Approximately 0.4 mile upstream of confluence with Egypt
Run...................................................... *253
Approximately 0.9 mile upstream of confluence with Egypt
Run...................................................... *255
West Branch Red Clay Creek:
Approximately 1,050 feet upstream of Cedarcroft Road...... *286
At the downstream side of Township Line Road.............. *294
Maps available for inspection at the New Garden Township
Building, 8934 Gap Newport Pike, Avondale, Pennsylvania.
------
North Coventry (Township), Chester County (FEMA Docket No.
7138)
Schuylkill River:
Approximately 900 feet downstream of U.S. Route 422....... *135
At the county boundary.................................... *148
Maps available for inspection at the North Coventry Township
Building, 845 South Hanover Street, Pottstown,
Pennsylvania.
------
Penn (Township), Chester County (FEMA Docket No. 7140)
Middle Branch White Clay Creek:
Approximately 100 feet upstream of Tice Road.............. *422
Approximately 1,200 feet upstream of Tice Road............ *428
Maps available for inspection at the Penn Township Building,
150 Sunnyside Road, West Grove, Pennsylvania.
------
Phoenixville (Borough), Chester County (FEMA Docket No.
7138)
Schuylkill River:
Approximately 0.6 mile downstream of State Route 29
(Church Street).......................................... *98
At confluence of Stony Run................................ *107
French Creek:
At confluence with Schuylkill River....................... *99
Approximately 50 feet downstream of Main Street........... *101
Maps available for inspection at the Pheonixville Borough
Hall, 140 Church Street, Pheonixville, Pennsylvania.
------
Sadsbury (Township), Chester County (FEMA Docket No. 7138)
Little Buck Run:
Approximately 0.6 mile downstream of most downstream
crossing of U.S. Route 10................................ *470
Approximately 610 feet upstream of Private Road........... *592
Maps available for inspection at the Sadsbury Township
Building, Pine Alley, Sadsburyville, Pennsylvania.
------
Schuylkill Haven (Borough), Schuylkill County (FEMA Docket
No. 7164)
Schuylkill River:
Approximately 1.7 mile downstream of confluence of Long
Run...................................................... *501
Approximately 370 feet upstream of confluence of West
Branch Schuylkill River.................................. 526
Long Run:
At confluence with Schuylkill River....................... *511
Approximately 1,325 feet upstream of Stoyers Dam.......... *511
Maps available for inspection at the Schuylkill Haven
Borough Hall, 12 West Main Street, Schuylkill Haven,
Pennsylvania.
------
Schuylkill (Township), Chester County (FEMA Docket No. 7138)
Schuylkill River:
At confluence of Valley Creek (at the county boundary).... *88
Approximately 0.5 mile upstream of confluence of Pickering
Creek.................................................... *98
Pickering Creek:
At confluence with Schuylkill River....................... *98
At downstream side of State Route 23...................... *98
French Creek:
At u pstream side of State Route 23 and 724 (Nutt Road)... *118
At downstream side of Township Line Road.................. *119
Maps available for inspection at the Schuylkill Township
Hall, 801 Valley Park Road, Pheonixville, Pennsylvania
------
Spring City (Borough), Chester County (FEMA Docket No. 7138)
Schuylkill River:
[[Page 38098]]
Approximately 1.2 miles downstream of State Route 683..... *109
Approximately 1,300 feet upstream of State Route 683...... *113
Maps available for inspection at the Spring City Borough
Hall, 6 South Church Street, Spring City, Pennsylvania.
------
Thornbury (Township), Chester County (FEMA Docket No. 7138)
West Fork of East Branch Chester Creek:
Approximately 950 feet upstream of Farm Lane.............. 287*
Approximately 1,600 feet upstream of Farm Lane............ *290
Maps available for inspection at the Thornbury Township
Building, Building #3, 754 Cheyney-Thornton Road, Westtown,
Pennsylvania.
------
Upper Uwchlan (Township), Chester County (FEMA Docket No.
7138)
East Branch Brandywine Creek:
Approximately 575 feet downstream of Dolans Mill Road..... *283
Approximately 0.7 mile upstream of Lyndell Road at its
upstream corporate limit................................. *343
Maps available for inspection at the Upper Uwchlan Township
Building, 140 Pottstown Pike, Chester Springs,
Pennsylvania.
------
West Bradford (Township), Chester County (FEMA Docket No.
7138)
East Branch Brandywine Creek:
Approximately 0.75 mile upstream of Strasburg Road........ *206
Approximately 0.3 mile downstream of Downingtown West
Chester Road............................................. *209
West Branch Brandywine Creek:
Approximately 750 feet upstream of its confluence with
Tributary 2.............................................. *194
At confluence of Broad Run................................ *198
Approximately 750 feet upstream of Northbrook Road........ *203
Maps available for inspection at the West Bradford Township
Hall, 1385 Campus Drive, Downingtown, Pennsylvania.
------
West Brandywine (Township), Chester County (FEMA Docket No.
7138)
West Branch Brandywine Creek:
At State Route 340........................................ *364
Approximately 50 feet upstream of Hibernia Road........... *443
Maps available for inspection at the West Brandywine
Township Building, 1199 Lafayette Road, Coatesville,
Pennsylvania.
------
West Chester (Borough), Chester County (FEMA Docket No.
7138)
Marshall Manor Tributary:
At the downstream Limit of Study (Goshen Road)............ *360
Approximately 195 feet upstream of Hillside Drive South... *419
Maps available for inspection at the Building Inspectors
Office, 401 East Gay Street, West Chester, Pennsylvania.
------
West Grove (Borough), Chester County (FEMA Docket No. 7138)
Middle Branch White Clay Creek:
Approximately 150 feet downstream of Valley Road.......... *372
Approximately 50 feet upstream of Valley Road............. *373
Maps available for inspection at the West Grove Borough
Building, 117 Rose Hill Avenue, West Grove, Pennsylvania.
West Marlborough (Township), Chester County (FEMA Docket
Nos. 7138 and 7164)
Buck Run:
At upstream side of State Route 82........................ *326
Approximately 1,700 feet downstream of Buck Run Road...... *358
Chatham Run:
At State Road 926......................................... *504
Approximately 350 feet upstream of Mosquito Road.......... *509
Maps available for inspection at the Township Building, Doe
Run Road, Route 82, Village of Doe Run, Pennsylvania.
------
West Sadsbury (Township), Chester County (FEMA Docket No.
7138)
Pine Creek No. 2:
At confluence with East Branch Octoraro Creek and Williams
Run...................................................... *464
Approximately 575 feet upstream of Zion Hill Road......... *483
East Branch Octoraro Creek:
Just downstream of State Route 372........................ *458
At confluence with Pine Creek and Williams Run............ *464
Officers Run:
Approximately 150 feet upstream of State Route 41......... *461
Approximately 350 feet downstream of CONRAIL bridge....... *474
Valley Creek No. 3:
Approximately 175 feet upstream of State Route 41......... *461
Maps available for inspection at the West Sadsbury Township
Building, Moscow Road, Parkesburg, Pennsylvania.
------
Willistown (Township), Chester County (FEMA Docket No. 7138)
East Branch Ridley Creek:
Approximately 500 feet upstream of Warrior Road........... *437
Approximately 0.2 mile upstream of Warrior Road........... *445
Maps available for inspection at the Willistown Township
Municipal Building, 688 Sugartown Road, Malvern,
Pennsylvania.
-------------------------------------------------------------
VIRGINIA
-------------------------------------------------------------
City of Virginia Beach, Independent City (FEMA Docket No.
7155)
Chesapeake Bay:
At the intersection of Oceanview and Fentiess Avenues..... *9
Approximately 220 feet north of the intersection of Windy
Road and Sandy Bay Drive................................. *12
Approximately 650 feet northwest of the intersection of
Shore Drive and Vista Circle............................. *10
Approximately 310 feet north of the intersection of Ebb
Tide Road and Ocean Shore Avenue......................... *11
Atlantic Ocean:
Approximately 130 feet east of the intersection of 20th
Street and Atlantic Avenue............................... *11
Approximately 450 feet east of the intersection of 8th
Street and Atlantic Avenue............................... *14
Lake Wishart:
Entire shoreline.......................................... *8
Bradford Lake:
Entire shoreline.......................................... *9
Chubb Lake:
Entire shoreline.......................................... *9
Fox Run Canal:
At the confluence with Eastern Branch Elizabeth River..... *9
Approximately 1,200 feet upstream of Churchill Drive...... *13
Left Bank Tributary Thalia Creek:
[[Page 38099]]
Approximately 1,400 feet upstream of the mouth of Thalia
Creek.................................................... *8
At Windsor Oaks Boulevard................................. *10
Holland Road Tributary Thalia Creek:
At the confluence with Left Bank Tributary Thalia Creek... *10
At the downstream side of Holland Road.................... *10
Unnamed Pond:
Approximately 100 feet east of the intersection of East
Port Road and Gammon Road................................ *9
Shallow Ponding Area:
Approximately 400 feet east of Atlantic Avenue on 65th
Street................................................... #1
Shallow Ponding Area:
Located in the vicinity of the intersection of Sandpiper
Road and Oyster Lane..................................... #2
Shallow Ponding Area:
Approximately 500 feet north of the State boundary line... #3
Maps available for inspection at the City of Virginia Beach
Municipal Center, Operations Building No. 2, Virginia
Beach.
-------------------------------------------------------------
WISCONSIN
-------------------------------------------------------------
Kenosha (City), Kenosha County (FEMA Docket No. 7172)
Pike River:
At confluence with Lake Michigan.......................... *585
At downstream side of State Route 32...................... *585
Lake Michigan:
Entire shoreline within the community..................... *585
Maps available for inspection at the Kenosha City Hall, 625
52nd Street, Kenosha, Wisconsin.
------
Kenosha County (Unincorporated Areas) (FEMA Docket No. 7172)
Lake Michigan:
Entire shoreline within community......................... *585
Camp Lake:
Entire shoreline within community......................... *743
Center Lake:
Entire shoreline within community......................... *744
Unnamed Tributary:
At the State boundary..................................... *742
At Camp Lake dam.......................................... *743
Unnamed Tributary to Center Lake:
At Center Lake inlet...................................... *744
Approximately 0.3 mile upstream of County Highway AH (89th
Street).................................................. *763
Maps available for inspection at the Kenosha County
Administration Building, 1010 56th Street, Kenosha,
Wisconsin.
------
Pleasant Praire (Village), Kenosha County (FEMA Docket 7172)
Lake Michigan:
Entire shoreline within community......................... *585
Barnes Creek North Outlet:
At the confluence with Lake Michigan...................... *585
Approximately 100 feet downstream of First Avenue......... *586
Barnes Creek South Outlet:
At the confluence with Lake Michigan...................... *585
Approximately 200 feet upstream of Third Avenue........... *585
Maps available for inspection at the Pleasant Prairie
Village Hall, 9915 39th Avenue, Kenosha, Wisconsin.
------------------------------------------------------------------------
(Catalog of Federal Domestic Assistance No. 83.100, ``Flood
Insurance.'')
Dated: July 10, 1996.
Richard W. Krimm,
Acting Associate Director for Mitigation.
[FR Doc. 96-18660 Filed 7-22-96; 8:45 am]
BILLING CODE 6718-04-P
Complete official Federal Register PDF
FR Doc. 96-18617 Commerce in Explosives; Implementation of Provisions of Public Law 104-132, the Antiterrorism and Effective Death Penalty Act of 1996, Relating to Plastic Explosives
[Federal Register Volume 61, Number 142 (Tuesday, July 23, 1996)]
[Rules and Regulations]
[Pages 38084-38085]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18617]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE TREASURY
Bureau of Alcohol, Tobacco and Firearms
27 CFR Part 55
[T.D. ATF-382; (95R-0360)]
RIN 1512-AB61
Commerce in Explosives; Implementation of Provisions of Public
Law 104-132, the Antiterrorism and Effective Death Penalty Act of 1996,
Relating to Plastic Explosives
AGENCY: Bureau of Alcohol, Tobacco and Firearms, (ATF), Department of
the Treasury.
-----------------------------------------------------------------------
ACTION: Final rule (Treasury decision).
SUMMARY: This final rule implements certain provisions of Public Law
104-132, the Antiterrorism and Effective Death Penalty Act of 1996.
These regulations implement the law by requiring that all persons
possessing plastic explosives on the date of enactment report the
quantity of such explosives possessed and certain other information to
the Director within 120 days after the date of enactment.
EFFECTIVE DATE: The regulations are effective on July 23, 1996.
FOR FURTHER INFORMATION CONTACT: Gail E. Hosey, Firearms and Explosives
Regulatory Division, 650 Massachusetts Avenue, NW., Washington, DC
20226, (202) 927-8310.
SUPPLEMENTARY INFORMATION:
Background
Public Law 104-132, 110 Stat. 1214, the ``Antiterrorism and
Effective Death Penalty Act of 1996'' (hereafter ``the Act'') was
enacted on April 24, 1996. The Act amended a number of provisions of
the Federal explosives laws in 18 U.S.C. Chapter 40. Title VI of the
Act, ``Implementation of Plastic Explosives Convention'', added new
requirements to 18 U.S.C. Chapter 40 to implement the ``Convention on
the Marking of Plastic Explosives for the Purpose of Detection, Done at
Montreal on 1 March 1991.'' In general, the amendments make it unlawful
to ship, transport, transfer, receive, or possess any plastic explosive
that does not contain a detection agent. A number of exceptions are
provided in the law, including an exception for possession of plastic
explosives imported into or manufactured in the United States prior to
April 24, 1996. This exception expires at the end of the 3-year period
beginning April 24, 1996. See 18 U.S.C. 842(n)(2)(A).
Section 607 of the Act provides that, except as otherwise provided,
the amendments made by Title VI shall take effect 1 year after the date
of enactment. Accordingly, the majority of the amendments made by Title
VI do not take effect until April 24, 1997.
However, section 603 added a new section 842(o) to Title 18,
U.S.C., which provides that any person, other than an agency of the
United States (including any military reserve component) or the
National Guard of any State, possessing any plastic explosive on the
date of enactment, shall report to the Secretary within 120 days after
the date of enactment the quantity of such explosives possessed, the
manufacturer or importer, any marks of identification on such
explosives, and such other information as the Secretary may prescribe
by regulation.
This Treasury Decision adds a new Subpart J to the regulations in
27 C.F.R. Part 55 titled ``Marking of Plastic Explosives.'' All
regulations relating to Title VI of the Act will be in this subpart. A
new section 55.181 implements the reporting requirement of section
842(o). This section requires that any person, other than an agency of
the United States or the National Guard, possessing plastic explosive
on April 24, 1996, submit a report to the Director, ATF, no later than
August 22, 1996. The report must be written and shall include the
quantity of explosives possessed, the name and address of the
manufacturer or importer, any marks of identification, the location
where the explosives are stored, and the name and address of the
possessor.
The regulation adds two items of information to be reported in
addition to the information required by statute, i.e., storage location
and name and address of the possessor. All information required by this
final rule will assist ATF in determining whether plastic explosives
are possessed in compliance with the law. Specifically, the information
will assist in determining whether plastic explosives possessed after
April 24, 1997, were imported into or manufactured in the United States
prior to April 24, 1996 and are lawfully possessed under the 3-year
exception.
Executive Order 12866
It has been determined that this final rule is not a significant
regulatory action, because the economic effects flow directly from the
underlying statute and not from this final rule. Therefore, a
regulatory assessment is not required.
Administrative Procedure Act
Because this document merely implements the one-time reporting
requirement of section 842(o) that must
[[Page 38085]]
be met on or before August 22, 1996, and because immediate guidance is
necessary for possessors of plastic explosives to comply with the
requirement, it is found to be impracticable to issue this Treasury
decision with notice and public procedure under 5 U.S.C. 553(b), or
subject to the effective date limitation in section 553(d).
Regulatory Flexibility Act
The provisions of the Regulatory Flexibility Act relating to an
initial and final regulatory analysis (5 U.S.C. 604) are not applicable
to this final rule because the agency was not required to publish a
notice of proposed rulemaking under 5 U.S.C. 553 or any other law.
Accordingly, a regulatory flexibility analysis is not required.
Paperwork Reduction Act
This regulation is being issued without prior notice and public
procedure pursuant to the Administrative Procedure Act (5 U.S.C. 553).
For this reason, the collection of information contained in this
regulation has been reviewed under the requirements of the Paperwork
Reduction Act (44 U.S.C. 3507(j)) and, pending receipt and evaluation
of public comments, approved by the Office of Management and Budget
(OMB) under control number 1512-0535. An agency may not conduct or
sponsor, and a person is not required to respond to, a collection of
information unless it displays a valid control number assigned by the
Office of Management and Budget.
Comments concerning the collection of information should be
directed to the Office of Management and Budget, Attention: Desk
Officer for the Department of the Treasury/Bureau of Alcohol, Tobacco
and Firearms, Office of Information and Regulatory Affairs, Washington,
DC 20503, with copies to the Chief, Document Services Branch, Room
3450, Bureau of Alcohol, Tobacco and Firearms, 650 Massachusetts
Avenue, N.W., Washington, DC 20226.
The estimated average annual burden associated with the collection
of information in this regulation is 1.0 hour per respondent or
recordkeeper.
The collection of information in this regulation is in section 27
CFR 55.181. This information is required by 18 U.S.C. 842(o) which
requires that any person possessing plastic explosives on April 24,
1996, report the quantity of such explosives possessed, the
manufacturer or importer, any marks of identification on such
explosives, and such other information as the Secretary may prescribe
by regulation within 120 days of the date of enactment. The likely
respondents are Federal explosives licensees, and State, and local
governmental entities. Estimated total annual reporting and
recordkeeping burden: 1,000 hours. Estimated number of respondents and
recordkeepers: 1,000. Estimated annual frequency of responses: One time
only.
Drafting Information. The author of this document is Gail E.
Hosey, Firearms and Explosives Regulatory Division, Bureau of
Alcohol, Tobacco and Firearms.
List of Subjects in 27 CFR Part 55
Administrative practice and procedure, Authority delegations,
Customs duties and inspection, Explosives, Hazardous materials,
Imports, Penalties, Reporting and recordkeeping requirements, Safety,
Security measures, Seizures and forfeitures, Transportation, and
Warehouses.
Authority and Issuance
27 CFR part 55 is amended as follows:
PART 55--COMMERCE IN EXPLOSIVES
Paragraph 1. The authority citation for 27 CFR part 55 is revised
to read as follows:
Authority: 18 U.S.C. 842, 843, 845, 846, 847.
Par. 2. Section 55.11 is amended by adding the term ``plastic
explosive'' to read as follows:
Sec. 55.11 Meaning of terms.
* * * * *
Plastic explosive. An explosive material in flexible or elastic
sheet form formulated with one or more high explosives which in their
pure form has a vapor pressure less than 10-4 Pa at a temperature
of 25 deg. C., is formulated with a binder material, and is as a
mixture malleable or flexible at normal room temperature.
* * * * *
Par. 3. Subpart J consisting of Sec. 55.181 is added to read as
follows:
Subpart J--Marking of Plastic Explosives
Sec. 55.181 Reporting of plastic explosives.
All persons, other than an agency of the United States (including
any military reserve component) or the National Guard of any State,
possessing any plastic explosive on April 24, 1996, shall submit a
report to the Director no later than August 22, 1996. The report shall
be in writing and mailed by certified mail (return receipt requested)
to the Director at P.O. Box 50204, Washington, DC 20091-0204. The
report shall include the quantity of plastic explosives possessed on
April 24, 1996; any marks of identification on such explosives; the
name and address of the manufacturer or importer; the storage location
of such explosives, including the city and State; and the name and
address of the person possessing the plastic explosives.
Signed: June 20, 1996.
John W. Magaw,
Director.
Approved: July 3, 1996.
John P. Simpson,
Deputy Assistant Secretary (Regulatory, Tariff, and Trade Enforcement).
[FR Doc. 96-18617 Filed 7-19-96; 9:57 am]
BILLING CODE 4810-31-P
Complete official Federal Register PDF
FR Doc. 96-18615 General Administrative Regulations; Food Security Act of 1985, Implementation; Denial of Benefits
[Federal Register Volume 61, Number 142 (Tuesday, July 23, 1996)]
[Rules and Regulations]
[Pages 38057-38058]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18615]
========================================================================
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. 142 / Tuesday, July 23, 1996 / Rules
and Regulations
[[Page 38057]]
DEPARTMENT OF AGRICULTURE
Federal Crop Insurance Corporation
7 CFR Part 400
RIN 0563-AB59
General Administrative Regulations; Food Security Act of 1985,
Implementation; Denial of Benefits
AGENCY: Federal Crop Insurance Corporation.
ACTION: Interim rule.
-----------------------------------------------------------------------
SUMMARY: The Federal Crop Insurance Corporation (FCIC) amends the
General Administrative Regulations located at 7 CFR part 400. The
intended effect of this interim rule is to remove restrictions mandated
by the Food Security Act of 1985 that preclude eligibility for crop
insurance for any person who in any crop year produces an agricultural
commodity on a field which is classified as predominantly highly
erodible land (sodbuster provision) or converted wetland (swampbuster
provision). The Federal Agriculture Improvement and Reform Act of 1996
(the 1996 Act) amends the crop insurance restriction, so producers who
are in violation of the sodbuster/swampbuster provisions will be
eligible for crop insurance coverage on or after July 3, 1996.
DATES: Effective July 3, 1996. Written comments, data, and opinions on
this rule will be accepted until close of business September 20, 1996.
ADDRESSES: Interested persons are invited to submit written comments to
the Chief, Product Development Branch, Federal Crop Insurance
Corporation, United States Department of Agriculture (USDA), 9435
Holmes Road, Kansas City, MO 64131. Written comments will be available
for public inspection and copying in room 0324, South Building, USDA,
14th and Independence Avenue, SW., Washington, DC., 8:15 a.m.-4:45
p.m., Monday through Friday, except holidays.
FOR FURTHER INFORMATION CONTACT: Stephen Hoy, Program Analyst, Research
and Development Division, Product Development Branch, FCIC, at the
Kansas City, MO, address listed above, telephone (816) 926-7730.
SUPPLEMENTARY INFORMATION:
Executive Order No. 12866 and Departmental Regulation 1512-1
This action has been reviewed under USDA procedures established by
Executive Order No. 12866 and Departmental Regulation 1512-1.
This action constitutes a review as to the need, currency, clarity,
and effectiveness of these regulations under those procedures. The
sunset review date established for these regulations is June 30, 2001.
This rule has been determined to be significant for the purposes of
Executive Order No. 12866 and therefore has been reviewed by the Office
of Management and Budget (OMB).
Cost-Benefit Analysis
A Cost-Benefit Analysis has been completed and is available to
interested persons at the address listed above. In summary, the
analysis finds that the removal of sanctions affecting a producer's
eligibility for Federal crop insurance as specified in the sodbuster
and swampbuster provisions will result in two types of costs. First,
environmental costs, in some cases, will be incurred as the elimination
of crop insurance from the list of denied benefits reduces the
sanctions associated with violating sodbuster/swampbuster provisions.
Second, if acres affected by the sodbuster/swampbuster provisions are
increasingly planted and insured, the costs to the Federal Crop
Insurance Corporation will rise. The environmental and Federal costs
associated with elimination of crop insurance as a sodbuster/
swampbuster sanction are, however, largely unknown.
Environmental costs will depend on the extent farmers produce
insurable crops (or alter practices or structures) on sodbuster/
swampbuster acreage when such activity would not otherwise occur. Many
variables will affect a producer's decision, including the amount of
land affected by sodbuster/swampbuster relative to the producer's total
acreage receiving benefits, expected prices and yields, the loss of
USDA benefits (other than crop insurance), expected crop insurance
benefits, and the expected environmental impact.
Federal costs associated with the elimination of crop insurance as
a sodbuster/swampbuster sanction are unknown because the number of
producers who will violate sodbuster/swampbuster provisions, and insure
crops produced on their farms, is impossible to judge. The actual
realized cost will depend to a large extent on FCIC's appropriately
rating sodbuster and swampbuster acreage that is planted and insured.
Between $500,000 and $1 million in crop insurance benefits were denied
annually due to sodbuster/swampbuster violations in recent years.
Benefits of a similar magnitude to the recent denials will probably be
paid in future years.
Paperwork Reduction Act of 1995
In accordance with the Paperwork Reduction Act of 1995, the
information collection requirements contained in these regulations have
been previously approved by OMB and assigned OMB control numbers 0563-
0003, 0563-0016 and 0560-0004. Copies of the information collections
may be obtained from Bonnie Hart, USDA, FSA, Advisory and Corporate
Operations Staff, Regulatory Review Group, PO Box 2415, Ag Box 0572,
Washington, DC 20013-2415, 8:15 a.m.-4:45 p.m., Monday through Friday,
except holidays, telephone (202) 690-2857.
Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandate Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, FCIC
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with Federal mandates that may
result in expenditures of State, local, or tribal governments, in the
aggregate, or to the private sector, of $100 million or more in any one
year. When such a statement is needed for a rule, section 205 of the
UMRA generally requires FCIC to identify and consider a reasonable
number of regulatory alternatives and
[[Page 38058]]
adopt the least costly, more cost-effective or least burdensome
alternative that achieves the objectives of the rule.
This rule contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) for State, local, and tribal
governments or the private sector. Thus, this rule is not subject to
the requirements of sections 202 and 205 of the UMRA.
Executive Order No. 12612
It has been determined under section 6(a) of Executive Order No.
12612, Federalism, that this rule does not have sufficient Federalism
implication to warrant the preparation of a Federalism Assessment. The
provisions contained in this rule will not have a substantial direct
effect on States or their political subdivisions, or on the
distribution of power and responsibilities among the various levels of
Government.
Regulatory Flexibility Act
This regulation will not have a significant impact on a substantial
number of small entities. Under the current regulations, a producer is
required to complete a crop insurance acreage report, an insurance
application and a continuous contract. If the crop is damaged or
destroyed, the insured is required to give notice of loss and provide
the necessary information to complete a claim for indemnity. The
insured may use actual records of production or receive a transitional
yield which does not require the maintenance of production records. If
the insured elects to use actual records of acreage and production as
the basis for the production guarantee, the insured must report this
information on a yearly basis. This regulation does not alter those
requirements. Therefore, the amount of work required of the insurance
companies and Farm Service agency (FSA) offices delivering and
servicing these policies will not increase significantly from the
amount of work currently required. This rule does not have any greater
or lesser impact on the producer. Therefore, this action is determined
to be exempt from the provisions of the Regulatory Flexibility Act (5
U.S.C. 605), and no Regulatory Flexibility Analysis was prepared.
Federal Assistance Program
This program is listed in the Catalog of Federal Domestic
Assistance under No. 10.450.
Executive Order No. 12372
This program is not subject to the provisions of Executive Order
No. 12372, which require intergovernmental consultation with state and
local officials. See the Notice related to 7 CFR part 3015, subpart V,
published at 48 FR 29115, June 24, 1983.
Executive Order No. 12778
The Office of the General Counsel has determined that these
regulations meet the applicable standards provided in sections 2(a) and
2(b)(2) of Executive Order No. 12778. The provisions of this rule will
not have a retroactive effect prior to the effective date. The
provisions of this rule will preempt State and local laws to the extent
such state and local laws are inconsistent herewith. The administrative
appeal provisions in 7 CFR parts 11 and 780 must be exhausted before
any action for judicial review may be brought.
Environmental Evaluation
This action is not expected to have a significant impact on the
quality of the human environment, health, and safety. Therefore,
neither an Environmental Assessment nor an Environmental Impact
Statement is needed.
Background
This final rule amends the General Administrative Regulations (7
CFR part 400) as mandated by the Federal Agriculture Improvement and
Reform Act of 1996. The 1996 Act removes the sodbuster/swampbuster
restrictions of Title XII of the Food Security Act of 1985 (Pub. L. 99-
198) which preclude eligibility for crop insurance under the Federal
Crop Insurance Act (7 U.S.C. 1501 et seq.), to any person who in any
crop year produces an agricultural commodity on highly erodible land or
converted wetland. On or after the effective date of July 3, 1996, a
person who produces an agricultural commodity on a field which is
classified as predominantly highly erodible land or a converted wetland
may apply for crop insurance if the sales closing date has not passed.
Until the effective date, crop insurance policyholders must remain in
compliance with the sodbuster/swampbuster provisions. Since these
provisions are mandated by statute and planting decisions for the 1996
crop year have been or will shortly be made, it is impracticle and
contrary to the public interest to publish this rule for notice and
comment prior to making the rule effective. However, comments are
solicited for 60 days after the date of publication in the Federal
Register and will be considered by FCIC before this rule is made final.
List of Subjects in 7 CFR Part 400
Crop insurance.
Final Rule
Pursuant to the authority contained in the Federal Crop Insurance
Act, as amended (7 U.S.C. 1501 et seq.), the Federal Crop Insurance
Corporation hereby amends the General Administrative Regulations, (7
CFR part 400), effective July 3, 1996, to read as follows:
PART400--[AMENDED]
1. The authority citation for 7 CFR part 400, subpart F, continues
to read as follows:
Authority: Secs, 1506, 1516, Pub. L. 75-430, 52 Stat. 73, 77, as
amended (7 U.S.C. 1501 et seq.); sec. 1244, Pub. L. 99-198.
Sec. 400.47 [Amended]
2. Section 400.47, Denial of crop insurance, is amended by removing
paragraphs (b), (c), and (e) and redesignating paragraph (d) as
paragraph (b), paragraph (f) as paragraph (c), and paragraph (g) as
paragraph (d);
Sec. 400.48 [Amended]
3. Section 400.48, Protection of interests of tenants landlords, or
producers, is amended by removing paragraph (b) and redesignating
paragraph (c) as paragraph (b);
Sec. 400.49 [Removed and Reserved]
4. Section 400.49, Certification, is removed and reserved; and
Sec. 400.50 [Removed and Reserved]
5. Section 400.50, Graduated sanctions, is removed and reserved.
Signed in Washington, DC, on July 16, 1996.
Suzette M. Dittrick,
Deputy Manager, Federal Crop Insurance Corporation.
[FR Doc. 96-18615 Filed 7-22-96; 8:45 am]
BILLING CODE 3410-FA-P
Complete official Federal Register PDF
FR Doc. 96-18363 Grants and Agreements With Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations, Uniform Administrative Requirements (OMB A-110 Implementation)
[Federal Register Volume 61, Number 142 (Tuesday, July 23, 1996)]
[Rules and Regulations]
[Pages 38058-38084]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18363]
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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
14 CFR Part 1260
RIN 2700-AA95
Grants and Agreements With Institutions of Higher Education,
Hospitals, and Other Non-Profit Organizations, Uniform Administrative
Requirements (OMB A-110 Implementation)
AGENCY: Office of Procurement, National Aeronautics and Space
Administration (NASA).
ACTION: Interim rule.
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SUMMARY: This rule revises NASA's grant regulations in order to adopt
[[Page 38059]]
uniform administrative requirements. Institutions that receive grants
from more than one Federal agency may find it easier to follow the
format of these uniform requirements.
DATES: This rule is effective August 22, 1996. All comments on this
interim rule should be in writing and must be received by September 23,
1996.
ADDRESSES: Rich Kall, Code HK, NASA Headquarters, Washington, DC 20546.
FOR FURTHER INFORMATION CONTACT:
Rich Kall, (202) 358-0459.
SUPPLEMENTARY INFORMATION:
Background
This rule revises 14 CFR part 1260 to adopt the language of OMB
Circular No. A-110 by using a format similar to the Department of
Energy's regulation at 10 CFR part 600. A new subpart A provides the
text of provisions and special conditions for grants and cooperative
agreements and addresses NASA's authority, definitions, applicability,
amendments, publications, deviations, pre-award requirements, and post-
award requirements currently covered by 14 CFR part 1260. A new subpart
B adopts the uniform administrative requirements of OMB Circular No. A-
110 and includes NASA's choices in alternatives offered by A-110.
Because A-110 was already published for public comment, NASA's adoption
of the language is being done as an interim rule. NASA has added
subpart C, Administrative Requirements for State and Local Governments
(formerly in OMB Circular A-102 and currently in the agencies' Grants
Management Common Rule), which has been codified at 14 CFR part 1273,
FR 33694, 6-29-95.
Procedural Requirements
Review Under the Regulatory Flexibility Act
The rule was reviewed under the Regulatory Flexibility Act of 1980.
NASA certifies that the rule will not have a significant economic
impact on a substantial number of small entities.
Review Under the Paperwork Reduction Act
Under 5 CFR 1320.5(b)(2)(i), NASA is required to inform potential
persons who are to respond to the collection of information that such
persons are not required to respond to the collection of information
unless it displays a currently valid OMB control number. Under 5 CFR
1320.5(b)(2)(ii)(C), this paragraph meets that display requirement by
providing the following statement: information collection under 14 CFR
part 1260 is not changed by this rule and was previously approved under
OMB Control Numbers 2700-0047, 2700-0048, and 2700-0049.
Executive Order 12866
NASA has determined that this rule is significant under E.O. 12866.
This regulation is needed because OMB Circular No. A-110 encourages
agencies to adopt uniform administrative requirements for grants. The
regulation meets that need by adopting the requirements of A-110. The
potential costs and benefits of the regulatory action are that
institutions that receive grants from more than one Federal agency may
find it easier to follow the format of these uniform requirements.
These requirements implement several Federal statutes applicable to
grants, e.g., civil rights, clean air and water, and drug-free
workplace.
List of Subjects in 14 CFR Part 1260
Grant programs.
Tom Luedtke,
Deputy Associate Administrator for Procurement.
Accordingly, 14 CFR part 1260 is revised to read as follows:
PART 1260--GRANTS AND COOPERATIVE AGREEMENTS
Subpart A--General
Sec.
1260.1 Authority.
1260.2 Definitions.
1260.3 Applicability.
1260.4 Amendment.
1260.5 Publication.
1260.6 Deviations.
Pre-Award Requirements
1260.10 Proposals.
1260.11 Evaluation and selection.
1260.12 Choice of award instrument.
1260.13 Award procedures.
1260.14 Limitations.
1260.15 Format and numbering.
1260.16 Distribution.
Provisions
1260.20 Provisions.
1260.21 Publications and reports.
1260.22 Extensions.
1260.23 Termination and enforcement.
1260.24 Change in principal investigator or scope.
1260.25 Allowable costs.
1260.26 Financial management.
1260.27 Equipment and other property.
1260.28 Patent rights.
1260.29 Rights in data.
1260.30 National security.
1260.31 Nondiscrimination.
1260.32 Subcontracts.
1260.33 Clean air and water.
1260.34 Procurement standards.
1260.35 Foreign national employee investigative requirements.
1260.36 Travel and transportation.
Special Conditions
1260.50 Special conditions.
1260.51 Cooperative agreement special condition.
1260.52 Multiple year grant.
1260.53 Incremental funding.
1260.54 Cost sharing.
1260.55 Reports substitution.
1260.56 Withholding.
1260.57 Training grant reports.
1260.58 Interest bearing accounts.
1260.59 Choice of law.
1260.60 Invention reporting and rights.
1260.61 Public information.
1260.62 Allocation of risk/liability.
1260.63 Payment--to foreign organizations.
1260.64 Customs clearance and visas.
1260.65 Taxes.
1260.66 Exchange of technical data and goods.
Post-Award Requirements
1260.70 Delegation of administration.
1260.71 Supplements and renewals.
1260.72 Adherence to original budget estimates.
1260.73 Transfers, novations, and change of name agreements.
1260.74 Property use, disposition, and vesting of title.
1260.75 Reports.
1260.76 Suspension or termination.
1260.77 Closeout procedures.
Appendix to Subpart A to Part 1260--Listing of Exhibits
Subpart B--Uniform Administrative Requirements for Grants and
Cooperative Agreements With Institutions of Higher Education,
Hospitals, and Other Non-Profit Organizations
General
Sec.
1260.101 Purpose.
1260.102 Definitions.
1260.103 Effect on other issuances.
1260.104 Deviations.
1260.105 Subawards.
Pre-Award Requirements
1260.110 Purpose.
1260.111 Pre-award policies.
1260.112 Forms for applying for Federal assistance.
1260.113 Debarment and suspension.
1260.114 Special award conditions.
1260.115 Metric system of measurement.
1260.116 Resource Conservation and Recovery Act (RCRA).
1260.117 Certifications and representations.
Post-Award Requirements
Financial and Program Management
1260.120 Purpose of financial and program management.
1260.121 Standards for financial management systems.
1260.122 Payment.
1260.123 Cost sharing or matching.
1260.124 Program income.
1260.125 Revision of budget and program plans.
1260.126 Non-Federal audits.
1260.127 Allowable costs.
1260.128 Period of availability of funds.
[[Page 38060]]
Property Standards
1260.130 Purpose of property standards.
1260.131 Insurance coverage.
1260.132 Real property.
1260.133 Federally-owned and exempt property.
1260.134 Equipment.
1260.135 Supplies and other expendable property.
1260.136 Intangible property.
1260.137 Property trust relationship.
Procurement Standards
1260.140 Purpose of procurement standards.
1260.141 Recipient responsibilities.
1260.142 Codes of conduct.
1260.143 Competition.
1260.144 Procurement procedures.
1260.145 Cost and price analysis.
1260.146 Procurement records.
1260.147 Contract administration.
1260.148 Contract provisions.
Reports and Records
1260.150 Purpose of reports and records.
1260.151 Monitoring and reporting program performance.
1260.152 Financial reporting.
1260.153 Retention and access requirements for records.
Termination and Enforcement
1260.160 Purpose of termination and enforcement.
1260.161 Termination.
1260.162 Enforcement.
After-the-Award Requirements
1260.170 Purpose.
1260.171 Closeout procedures.
1260.172 Subsequent adjustments and continuing responsibilities.
1260.173 Collection of amounts due.
Appendix A to Subpart B of Part 1260--Contract Provisions
Authority: 42 U.S.C. 2473(c)(1), Pub. L. 97-258, 96 Stat. 1003
(31 U.S.C. 6301 et seq.), and OMB Circular A-110.
Subpart A--General
Sec. 1260.1 Authority.
(a) The National Aeronautics and Space Administration (NASA) awards
grants and cooperative agreements under the authority of 42 U.S.C.
2473(c)(5), the Space Act. This part 1260 is issued under the authority
of 42 U.S.C. 2473(c)(1).
(b) The Office of Management and Budget (OMB) approved information
collection under the Paperwork Reduction Act through September 30, 1998
and assigned OMB control numbers 2700-0047, Property Management and
Control; 2700-0048, Patents; and 2700-0049, Financial Management and
Control. OMB control number 2700-0047 applies to grants subject to
subparts A and B of this part.
Sec. 1260.2 Definitions.
Additional definitions can be found in Sec. 1260.102.
Administrative grant officer. A Federal employee delegated
responsibility for grant administration; e.g., under a delegation from
a NASA grant officer.
Effective date. The date work can begin and the recipient can start
spending grant funds. The effective date could be earlier or later than
the date of signature on a basic award or modification.
Extension. A modification of an award, which would otherwise
expire, to provide additional time, and if appropriate, additional
funds for completion of project activities.
Grant specialist. A Government employee who is assigned the
responsibility of negotiating and/or administering grants.
Historically Black Colleges and Universities. Institutions
determined by the Secretary of Education to meet the requirements of 34
CFR 608.2 and listed therein.
Minority educational institution. An institution determined by the
Secretary of Education to meet the requirements of 34 CFR 637.4.
Multiple year grant. A grant for which NASA obligates funds for an
initial period and states an intention to obligate funds for one or
more additional periods. The initial period together with the unfunded
periods exceeds one year (see Sec. 1260.13(b)).
Non-profit organization. An organization that qualifies for the
exemption from taxation under Sec. 501 of the Internal Revenue Code of
1954, as amended, 26 U.S.C. 501.
Performance Report. A concise statement of work accomplished during
the report period (see Sec. 1260.75(e)).
Provision. A term or condition applicable to grants awarded under
this part 1260 (see Sec. 1260.20).
Recipient acquired equipment. Equipment purchased or fabricated
with grant funds by a recipient for the performance of work under its
grant.
Small business concern. A concern, including its affiliates, which
is independently owned and operated, not dominant in the field of
operation in which it is bidding, and qualifies as a small business
under the criteria and size standards in 13 CFR part 121.
Small disadvantaged business concern. A small business concern
owned and controlled by individuals who are both socially and
economically disadvantaged (within the meaning of Sec. 8(a (5) and (6)
of the Small Business Act, as amended; 15 U.S.C. 637(a (5) and (6); and
13 CFR 24).
Special condition. A term or condition that is not applicable to
all grants or is temporary in nature (see Sec. 1260.50).
Summary of Research. A document summarizing the results of the
entire project, which includes bibliographies, abstracts, and lists of
other media in which the research was discussed (see
Sec. 1260.75(f)(1)).
Supplement. The document NASA uses to effect changes and renewals
to grants and cooperative agreements. They can be awarded unilaterally
at the discretion of the grant officer.
Women-owned small business concern. A small business concern that
is at least 51 percent owned by women who are U.S. citizens and who
also control and operate the business (15 U.S.C. 637(d)).
Sec. 1260.3 Applicability.
Subparts A and B of this part 1260 establish policies and
procedures for all grants and cooperative agreements awarded by NASA to
educational institutions and other non-profit organizations.
Sec. 1260.4 Amendment.
This part 1260 will be amended by publication of changes in the
Federal Register. Changes that require immediate dissemination may be
issued as Grant Notices.
Sec. 1260.5 Publication.
(a) The NASA Grant and Cooperative Agreement Handbook is published
as part 1260 of title 14 of the Code of Federal Regulations (CFR).
(b) Subscriptions to the NASA Grant and Cooperative Agreement
Handbook may be purchased from the Superintendent of Documents, United
States Government Printing Office, Washington, DC 20402, telephone
number (202) 512-1800. Requests should cite GPO Subscription Stock No.
933-001-00000-8. A subscription consists of the basic edition, plus all
changes issued for an indefinite period.
Sec. 1260.6 Deviations.
(a) A deviation is required for any of the following.
(1) When a prescribed provision (but not a special condition) set
forth verbatim in this part 1260 is modified or omitted.
(2) When a provision is set forth in this part 1260, but not for
use verbatim, and the Center substitutes a provision which is
inconsistent with the intent, principle, and substance of the
provision.
(3) When a form prescribed by this part 1260 is altered or another
form is used in its place.
[[Page 38061]]
(4) When limitations, imposed by this handbook upon the use of a
grant provision, form, procedure, or any other grant action, are
changed.
(5) When a form is created for recipient use that constitutes a
``Collection of Information'' within the meaning of the Paperwork
Reduction Act (44 U.S.C. 35) and its implementation in 5 CFR part 1320.
(b) Requests for authority to deviate from this part 1260 shall be
submitted to the Office of Procurement, NASA Headquarters, Contract
Management Division (Code HK). Requests, signed by the Procurement
Officer, shall contain:
(1) A full description of the deviation, the circumstances in which
it will be used, and identification of the requirement from which a
deviation is sought;
(2) The rationale for the request, pertinent background
information, and the intended effect of the deviation;
(3) The name of the recipient, identification of the grant
affected, and the dollar value;
(4) A statement as to whether the deviation has been requested
previously, and, if so, details of that request; and
(5) A copy of legal counsel's concurrence or comments.
(c) Where it is necessary to obtain a deviation on OMB Circular A-
110 (Subpart B of this part), Code HK will process all necessary
documents in accordance with Sec. 1260.104.
Pre-Award Requirements
Sec. 1260.10 Proposals.
(a) A grant can result from:
(1) An NRA, AO, CAN or BAA. A proposal submitted in response to a
broad agency announcement (BAA) such as a NASA Research Announcement
(NRA), Announcement of Opportunity (AO), Cooperative Agreement Notice
(CAN), an agencywide program announcement such as the Graduate Student
Research Program, or after approval by the Associate Administrator for
Procurement or designee. NRA's and BAA's are described in the NASA FAR
Supplement (NFGS) 48 CFR part 1835. AO's are described in 48 CFR part
1870, subpart 1870.1.
(2) An unsolicited proposal. Guidance on unsolicited proposals is
contained in the Federal Acquisition Regulation (FAR) 48 CFR subpart
15.5 and NFS 48 CFR subpart 1815.5. The synopsis requirement in FAR 48
CFR 15.507(b)(4), however, does not apply to the grant process. Contact
with NASA technical personnel prior to proposal submission is
encouraged to determine if preparation of a proposal is warranted.
These discussions should be limited to understanding NASA research
needs and do not jeopardize the unsolicited status of any subsequently
submitted proposal.
(b) The proposal shall contain a detailed narrative description of
the work to be undertaken, including the objectives of the project and
the applicant's plan for carrying it out.
(1) Budget content. All proposals shall include budget data as
prescribed in the Budget Summary in Exhibit C of the appendix to this
subpart A of this part 1260. Narrative detail must support the budgets
as designated in Exhibit C to Appendix to this subpart.
(i) Cost issues. The recipient institution is responsible for
ensuring that costs charged are allowable, allocable, and reasonable
under the applicable cost principles governed by OMB Circular Nos. A-21
and A-122. For other details see Sec. Sec. 1260.25 and 1260.127.
(ii) Indirect Costs. Subject to applicable cost principles, rates
are negotiated between recipients and the cognizant agencies assigned
under OMB Circular No. A-21. NASA is required to apply the negotiated
rate for all grants awarded.
(iii) Cost sharing. NASA may accept cost sharing when voluntarily
offered, and all awards including cost-sharing are subject to
Sec. Sec. 1260.13(c) and 1260.123. The amount of cost sharing will not
be a factor in determining whether to select a proposal for award.
However, recipients may be requested to secure nonfederal matching
funds equal to the program portion to training and education grants.
(2) Multiple year grants. In accordance with NASA policy to foster
continuity of research, multiple year grant proposals are encouraged,
where appropriate, for a period generally up to three years. Continuing
research programs will be subject to peer evaluation at least once
every three years. Proposals for multiple year grants shall describe
the entire research project and include a complete budget for year one
and separate estimates for each subsequent year (see Sec. 1260.13(b)).
(c) Certifications and assurances shall be made in accordance with
Sec. 1260.117, as follows.
(1) Civil rights requirements. Annually, recipients must furnish
assurances on NASA Form 1206 of compliance with civil rights statutes
specified in 14 CFR parts 1250 through 1252.
(2) Debarment and suspension, drug-free workplace, and lobbying.
NASA grants are subject to the provisions of: 14 CFR part 1265,
Governmentwide Debarment and Suspension (Nonprocurement);
Governmentwide requirements for Drug-Free Workplace (Grants), unless
excepted by Sec. 1265.110 or Sec. 1265.610; and 14 CFR part 1271 ``New
Restrictions on Lobbying.'' These certifications are required to be
submitted with each proposal, including extensions. NASA does not
require any particular form or format, but does require specific
language.
Sec. 1260.11 Evaluation and selection.
(a) General. Technical evaluation of proposals will be conducted by
the cognizant NASA technical office and may be based on peer reviews.
(b) Under NRA's, AO's, CAN's, and other BAA's. The selecting
official will furnish the grant officer a signed selection statement
and a technical evaluation based on the evaluation criteria stated in
the NRA, AO, CAN, or BAA. If a proposal is not selected, the proposer
will be notified in accordance with the NRA, AO, CAN, or BAA.
(c) Under unsolicited proposals. (1) The evaluation of unsolicited
proposals must consider:
(i) If the subject of the proposal is available to NASA from
another source without restriction.
(ii) If the proposal closely resembles a pending competitive
acquisition or a current, open BAA's under which the unsolicited
proposal could be evaluated.
(iii) If the research proposed demonstrates an innovative and
unique method, approach, or concept.
(iv) The proposals overall scientific or technical merit.
(v) The potential contribution to NASA's mission.
(vi) The offeror's capabilities, related experience, facilities,
techniques, or unique combinations of these which are integral factors
for achieving the proposal objectives.
(vii) The qualifications, capabilities, and experience of the
proposed principal investigator, team leader, or key personnel who are
critical in achieving the proposal objectives.
(2) An unsolicited proposal recommended for acceptance shall be
supported by a Justification for Acceptance of an Unsolicited Proposal
(JAUP) prepared by the cognizant technical office. The JAUP shall be
submitted for the approval of the grant officer after review and
concurrence at a level above the technical officer. The grant officer's
signature on the award document will indicate approval.
(3) NASA will promptly notify in writing each organization that
submitted a proposal that will not be funded.
[[Page 38062]]
Proposals will be returned only when requested.
(d) Equipment justification or travel justification. These
documents will be submitted by the technical office for grant officer
approval when more than half of the proposed budget is for equipment or
travel and associated indirect cost. The justification shall describe
the extent to which the equipment or travel is necessary.
(3) Proposal budget evaluation. (1) The technical officer will
review the budget for conformance to program requirements and fund
availability, indicating the results of this review in Column B of the
proposed budget.
(2) The grant officer will review the budget, and any changes made
by the technical officer, to identify any item which may be unallowable
under the cost principles, or which appear unreasonable or unnecessary.
The grant officer will complete Column C of the proposed budget after
discussing significant changes with the recipient. Any request for
details should be limited.
(f) Incremental funding. NASA reserves the right to either fully
fund or incrementally fund grants. Grants with anticipated annual
funding exceeding $50,000 may be funded for less than the amount stated
in the proposal, provided:
(1) Two increments per grant year are authorized. The second
increment will be the balance of funding for the year.
(2) The special condition Sec. 1260.53, Incremental Funding, is
included in the grant.
(g) Printing, binding, and duplicating. Proposals for efforts that
involve printing, binding, and duplicating in excess of 25,000 pages
are subject to the Government Printing and Binding Regulations, No. 26,
February 1990, S. Pub. 101-9, U.S. Government Printing Office,
Washington, DC 20402, (202) 512-1800, published by the Congressional
Joint Committee on Printing. The technical office will refer such
proposals to the Installation Central Printing Management Officer
(ICPMO). The grant officer will be advised in writing of the results of
the ICPMO review.
(h) Rights in data. Section 1260.29 is adequate only for grants for
basic or applied research where the principal purpose (or only expected
NASA involvement) is the publication or dissemination of the results,
such as in journals or NASA publications (see Sec. 1260.21).
(i) Clean Air and Federal Water Pollution Control Acts.
(1) By accepting a grant that contains Sec. 1260.33, the recipient
agrees that the expenditure of grant funds is in compliance with the
Acts.
(2) The Administrator may approve exemptions from this prohibition
under certain circumstances under E.O. 11738. Requests for exemptions
or renewals thereof shall be made to the Office of Procurement, NASA
Headquarters, Contract Management Division (Code HK), Washington, DC
20546.
Sec. 1260.12 Choice of award instrument.
(a) This section and Sec. 1260.111 provide guidance on the
appropriate choice of award instruments consistent with 31 U.S.C. 6301
to 6308. Throughout Sec. 1260.12, the term ``grant'' does not include
``cooperative agreements.''
(b) A procurement contract is a mutually binding legal relationship
obligating the seller to furnish supplies or services (including
construction), and the buyer pays for them.
(1) The principal purpose of a procurement contract is to acquire,
for NASA's direct use or benefit, a well-defined, specific effort
clearly required for the accomplishment of a scheduled NASA mission or
project.
(2) If it is determined that a procurement contract is the
appropriate type of funding instrument to meet NASA's purposes, the
procurement shall be conducted under the FAR and the NFS.
(c) A grant shall be used as the legal instrument to reflect a
relationship between NASA and a recipient whenever the principal
purpose is the transfer of a thing of value to the recipient to
accomplish a public purpose of support or stimulation authorized by
Federal statute. The following general characteristics meet the
statutory criteria for use of a grant:
(1) Substantial involvement is not expected between NASA and the
recipient when carrying out the activity.
(2) The exact course of the work and its outcome cannot be defined
precisely and specific points in time for achievement of significant
results cannot be realistically specified.
(3) Simplicity and economy in execution and administration are
mutually desirable.
(4) Grants are distinguished from contracts in that grants provide
financial or other tangible assistance to the recipient to carry on a
fairly autonomous research program.
(d) The following defines various types of NASA grants:
(1) A research grant is used to accomplish a NASA objective through
stimulating or supporting the acquisition of knowledge or understanding
of the subject or phenomena under study, or attempting to determine and
exploit the potential of scientific discoveries or improvements in
technology, materials, processes, methods, devices, or techniques and
advance the state of the art.
(i) The research requires long term support (i.e., in excess of one
year) for the study to mature to maximum scientific effectiveness (this
does not preclude shorter-term grants;
(ii) NASA desires, or the nature of the proposed investigation is
such, that the recipient will bear prime responsibility for the conduct
of research, and exercises judgment and original thought toward
attaining the scientific goals within broad parameters of the research
areas proposed and the resources provided;
(iii) Meaningful technical reports (as distinguished from
Performance Reports) can be prepared only as new findings are made,
rather than on a predetermined time schedule.
(2) An education grant is an agreement that provides funds to an
educational institution or other nonprofit organizations within one or
more of the following areas:
(i) Capturing student interest and/or improving student performance
in science, mathematics, technology, or related fields;
(ii) Enhancing the skill, knowledge, or ability of teachers or
faculty members in science, mathematics, or technology;
(iii) Supporting national educational reform movements;
(iv) Conducting pilot programs or research to increase
participation and/or to enhance performance in science, mathematics, or
technology education at all levels; and
(v) Developing instructional materials (e.g., teacher guides,
printed publications, computer software, and videotapes) or networked
information services for education.
(3) A training grant is an agreement that provides funds to an
educational institution or other non-profit organization solely by
providing scholarships, fellowships, or stipends to students, teachers,
and/or faculty.
(i) NASA training grants are awarded to colleges, universities, or
other non-profit organizations; not to individual students, teachers,
or faculty members. It is the responsibility of the institution
receiving the grant to approve the faculty, teachers, and/or students
who will participate in the specific program, in cooperation with NASA.
If a student, teacher, or faculty member ceases to participate in the
program for any reason, the institution, with prior NASA approval, may
appoint another student, teacher, or faculty member to complete
[[Page 38063]]
the remaining portion of the grant period. Replacement students,
teachers, and/or faculty electing to apply for the following program
year are not automatically entitled to an award and are subject to the
evaluation/selection procedures administered to new applicants. Any
participant receiving support under a NASA training grant may not
concurrently hold another Federal fellowship or traineeship.
(ii) No applicant shall be denied consideration or appointment on
the grounds of race, creed, color, national origin, age, sex, or
disability.
(iii) Students and faculty receiving direct support under a NASA
training grant must be U.S. citizens.
(iv) Duration of the award is program specific. Refer to program
policies and procedures for details. Renewal is contingent upon a
successful performance evaluation as prescribed by the program,
concurrence by the NASA technical officer, and the availability of
funds.
(v) No substantial involvement is expected between NASA and the
recipient. A student or faculty member receiving support under a NASA
training grant does not incur any formal obligation to the Government.
(vi) Unused funds may be carried over into the following program
year without further NASA approval. This carry-over amount need not be
shown in the budget for the next program year.
(vii) The use of training grant funds to acquire equipment,
passenger carrying vehicles, land (or any interest therein), or to
acquire or construct facilities will not be permitted. Government
furnished equipment will not be provided.
(viii) All foreign travel must be clearly essential to the research
effort and must, to be charged to a grant, have the prior written
approval of the NASA technical officer and the grant officer for each
trip, regardless of its inclusion in the proposal budget.
(ix) An Administrative Report must be submitted under the
guidelines described by the specific program policies and procedures.
(4) A facilities grant can be issued by NASA under the authority of
the Space Act, 42 U.S.C. 2473(c)(5). It is used to provide for the
acquisition, construction, use, maintenance, and disposition of
facilities. Facilities, as used in this subpart, means property used
for production, maintenance, research, development, or testing.
(i) Prior approval by the Associate Administrator of Procurement
and a review by legal counsel to assure legal sufficiency are required.
It is unlikely an award will be made unless Congressionally mandated.
(ii) To obtain approval, prior to proceeding with the award a
package will be forwarded to the Director, Contract Management Division
(HK), that includes pertinent background information, detailed
rationale for the request, dollar value, and name of the recipient.
(e) A cooperative agreement shall be used as the legal instrument
to reflect a relationship between NASA and a recipient whenever the
principal purpose is the transfer of a thing of value to the recipient
to accomplish a public purpose of support or stimulation authorized by
Federal statute and substantial involvement is expected between NASA
and the recipient during performance of the contemplated activity.
Under 31 U.S.C. 6305, characteristics inherent in a cooperative
agreement include those that apply to a grant, plus the following:
(1) Substantial NASA involvement in and contribution to the
technical aspects of the effort are necessary for its accomplishment.
This could involve an active NASA role in collaborative relations,
access to a NASA site or equipment, or sharing NASA facilities and
personnel;
(2) The project, conducted as proposed, would not be possible
without extensive NASA-recipient technical collaboration;
(3) The nature of the collaboration can be clearly defined and
specified in advance (special provision Sec. 1260.51 shall be used).
Cooperative agreements would be appropriate, for instance, where a
university investigator works for a substantial amount of time at a
NASA Center (or a NASA investigator works at a university), or when the
collaboration is such that a jointly authored report or education
curriculum product is appropriate.
(f) Grants and cooperative agreements with foreign organizations
are awarded under the authority of the Space Act, 42 U.S.C. 2473(c)(5).
(1) Before initiating action, the grant officer shall coordinate
with the Headquarters Office of External Relations, International
Relations Division (Code IR). Grants to other than foreign government
institutions require a review by the Office of General Counsel.
(2) It is NASA policy that, in general, research will be
accomplished on a no-exchange-of-funds basis with foreign entities. In
these cases, NASA enters into agreements undertaking projects of
international scientific collaboration. In rare instances, NASA may
enter into an international agreement under which funds will be
transferred to a foreign recipient.
Sec. 1260.13 Award procedures.
(a) Multiple year grant. NASA policy is to make maximum use of
multiple year grants to support research projects that may span several
years.
(1) At the time a research proposal is recommended for award, a
decision will be made whether to award a multiple year grant. Special
condition Sec. 1260.52, Multiple Year Grant, would be included at
award.
(i) For the periods approved in Sec. 1260.52, neither a new
proposal nor another technical evaluation is required unless a special
need for review is indicated through monitoring the project and its
reports, by the introduction of work outside the scope of the approved
proposal, or by the need for substantial unanticipated funding.
(ii) A funded extension beyond the period listed in Sec. 1260.52
may be made by using the provision Sec. 1269.22, Extensions. This
requires the submission of a new proposal, subject to full review as
discussed in Secs. 1260.11 and 1260.71(b), plus consideration of the
timely submission of reports as required in Sec. 1260.21.
(2) Normally, each year of a multiple year grant will be funded at
the approximate level in the original award instrument. However, NASA
program constraints and developments within the project may dictate
adjustment in the originally anticipated level. When the actual differs
from the planned funding, the technical officer shall mark up Column B
of the budget summary and send it to the grant officer with an
explanation. The recipient may rebudget under the grant provisions to
keep the project within the funding actually provided.
(b) Annual grant. Grants may be awarded for a short term (e.g., on
an annual basis) and may be extended, if appropriate, as described in
Sec. 1260.71. Extensions should be executed prior to the grant
expiration date.
(c) Cost sharing. NASA grant recipients usually gain no measurable
benefit from grants, other than conducting the research. Cost sharing
based on mutuality of interest applies to NASA grants where the grant
officer has reason to believe that the recipient will benefit from the
research results through sales to non-Federal entities (see
Sec. 1260.123) When cost sharing is used, the grant officer shall use a
Special Condition substantially as shown in Sec. 1260.54.
(d) Partial support. NASA may provide partial support for a
research project or conference where additional funding may be provided
by other Federal agencies. If the grant also involves cost sharing by
the recipient,
[[Page 38064]]
the grant officer will ensure that Sec. 1260.54 applies only to the
non-Federal funding.
Sec. 1260.14 Limitations.
(a) As a matter of policy, NASA does not award grants to commercial
firms. However, Cooperative Agreements may be awarded to commercial
firms in accordance with Sec. 1260.300.
(b) NASA does not award grants for donative assistance purposes,
but only to meet program objectives. Research in any academic
discipline related to NASA interests normally will qualify. However,
advice of legal counsel should be sought in unusual situations, or when
unusual project activities or organizational attributes are evident.
(c) It is NASA's policy that non-monetary (zero dollar) grants or
cooperative agreements shall not be used (except for no-cost
extensions). Loans of Government personal property not associated with
a contract, grant, or cooperative agreement under 31 U.S.C. 6301 to
6308, and made under the Space Act of 1958, should be consummated as
loan agreements.
(d) Grants and cooperative agreements shall not be used as legal
instruments for consulting service arrangements (see 48 CFR subpart
37.2 (FAR) and 48 CFR subpart 18237.2 (NFS)).
Sec. 1260.15 Format and numbering.
(a) General, A grant shall be brief, containing only those
provisions and special conditions necessary to protect the interests of
the Government.
(b) Formats. Those shown in Exhibit B of the appendix to this
subpart A shall be used for the award of all NASA grants and
cooperative agreements. Computer-generated versions are allowed.
Provisions for grants with U.S. organizations shall be incorporated by
reference, and preprinted checklists may be used. Special conditions
and provisions for grants with foreign organizations will be printed in
full text. An acceptance block may be added when the grant officer
finds it necessary to require bilateral execution of the grant. When
attaching detailed budgets, salaries will not be revealed.
(c) The identification numbering system. (1) For research,
education, and facilities grants, numbering shall conform to NFS 48 CFR
1804.7102-3, except that a NAG prefix will be used in lieu of the NAS
prefix The prefix designation will include the Center Identification
Number; e.g., NAG5 would be the Goddard prefix designation. They will
be sequentially numbered.
(2) Cooperative agreements will use the prefix NCC plus the Center
Identification Number. They will be sequentially numbered.
(3) Training grants will use the prefix NGT plus the Center
Identification Number. They will be sequentially numbered.
(4) The Catalog of Federal Domestic Assistance (CFDA) Numbers does
not apply to NASA grants.
Sec. 1260.16 Distribution.
Copies of grants and supplements will be provided to: payment
offices (original copy); technical officers; administrative grant
officers when delegated; the NASA Center for AeroSpace Information
(CASI), Attn: Document Processing Section, 800 Elkridge Landing Road,
Linthicum Heights, Maryland 21090-2934; and other appropriate offices.
The statement of work accepted by NASA and a copy of the approved
budget will be provided to the administrative grant officers. CASI will
also receive the statement of work. The file will record the addresses
for distribution.
Provisions
Sec. 1260.20 Provisions.
(a) The provisions set forth in Secs. 1260.21 through 1260.37 shall
be incorporated by reference and made a part of NASA research grants,
education grants, and cooperative agreements with U.S. educational
institutions and nonprofit organizations.
(b) In training grants, the provisions of the following section
will be incorporated: Secs. 1260.22, 1260.23, 1260.25, 1260.26, 126.28,
1260.29, 1260.31, and 1269.35.
(c) In facilities grants, provisions will be selected on a case-by-
case basis.
(d) In research grants awarded to foreign organizations, the
provisions of the following sections, modified as necessary, will be in
full text: Secs. 1260.21, 1260.22, 1260.23, 120.24, 1260.26, 1260.27,
1260.32, and 1260.36. References will not be used to handbooks,
statutes, or other regulations which the recipient may neither have
access to or can realistically be expected to comply.
(e) Whenever the word ``grant'' appears in sections Secs. 1260.21
through 1260.38, it shall be deemed to include, as appropriate, the
term ``cooperative agreement''.
(f) Section 1260.148 and Appendix A to subpart B to part 1260
address provisions to be used in contracts awarded by recipients.
Sec. 1260.21 Publications and reports.
Publications and Reports (July 1996)
(a) NASA encourages the widest practicable dissemination of
research results at any time during the course of the investigation.
All information disseminated as a result of the grant shall contain
a statement which acknowledges NASA's support and identifies the
grant by number (e.g., ``The material is based upon work supported
by NASA under award No(s) ________'').
(b) Reports shall be in the English language, informal in
nature, and ordinarily not exceed three pages (not counting
bibliographies, abstracts, and lists of other media). The recipient
shall submit the following reports:
(1) A Performance Report for all but the final year of the
grant. Each report is due 60 days before the anniversary date of the
grant and shall briefly describe what was accomplished during the
reporting period as outlined in Sec. 1260.151(d). A special
provision specifying more frequent reporting may be required.
(2) A Summary of Research (or Educational Activity Report in the
case of Education Grants) is due within 90 days after the expiration
date of the grant, regardless of whether or not support is continued
under another grant. This report shall be comprehensive summary of
significant accomplishments during the duration of the grant.
(c) Performance Reports, Summaries of Research, and Education
Activity Reports shall include the following on the first page:
(1) Title of the grant.
(2) Type of report.
(3) Name of the principal investigator.
(4) Period covered by the report.
(5) Name and address of the recipient's institution.
(6) Grant number.
(e) Performance Reports, Summaries of Research, and Education
Activity Reports shall be distributed as follows:
(1) The Original to the administration grant officer, with a
notice to the grant officer that a report was sent.
(2) One copy, in both hard copy and electronic format, to the
technical officer.
(f) For Summaries of Research and published reports, one Micro-
reproducible copy shall be sent to the NASA Center for AeroSpace
Information (CASI), Attn: Accessioning Department, 800 Elkridge
Landing Road, Linthicum Heights, Maryland 21090-2934.
Sec. 1260.22 Extensions.
Extensions (July 1996)
(a) It is NASA policy to provide maximum possible continuity in
funding grant--supported research and educational activities,
therefore, grants may be extended for additional periods of time.
Any extension requiring additional funding should be supported by a
proposal submitted at least three months is advance of the
expiration date of the grant.
(b) Recipients may extend the expiration date of a grant if
additional time beyond the established expiration date is required
to assure adequate completion of the original scope of work within
the funds already made available. For this purpose, in accordance
with Sec. 1260.125(e)(2), the recipient may unilaterally make a one-
time no-cost
[[Page 38065]]
extension, not to exceed 12 months, prior to the established
expiration date. Written notification of such an extension, with the
supporting reasons, must be received by the grant officer at least
ten days prior to the expiration of the award.
(c) Requests for approval for all other extensions (in excess of
30 days) must be submitted in writing to the grant officer.
Sec. 1260.23 Termination and Enforcement.
Termination and Enforcement (July 1996)
Termination and enforcement conditions of this award are
specified in Secs. 1260.160 through 1260.162. If NASA determines
that the recipient has materially failed to comply with the terms
and conditions of the grant, NASA may suspend or terminate the grant
in whole or in part after consultation with the recipient. However,
NASA may immediately suspend or terminate the award without prior
notice when it believes such action is necessary to protect the
interest of the Government.
Sec. 1260.24 Change in principal investigator or scope.
Change in Principal Investigator or Scope (July 1996)
The recipient organization and the principal investigator are
responsible for the effective conduct of the project or activity
supported by this award.
(a) The recipient shall obtain the approval of the NASA grant
officer to change the principal investigator or to continue the
research work during a continuous period in excess of three months
without the participation of an approved principal investigator.
Significantly reduced availability of the services of the principal
investigator(s) named in the grant instrument could be grounds for
termination, unless alternatives arrangements are made and approved
in writing by the grant officer.
(b) Prior written approval is required from NASA if there is to
be a significant change in the objective or scope.
Sec. 1260.25 Allowable costs.
Allowable Costs (July 1996)
(a) The recipient institution is responsible for ensuring that
costs charged to this award are allowable, allocable, and reasonable
under the applicable cost principles defined in Sec. 1260.127.
Sections 1260.24, 1260,27, 1260.32, and requests for additional
funding require prior approvals.
(b) Payments to individuals for consultant services under a NASA
grant shall not exceed the daily equivalent of the maximum rate paid
for Level IV of the Executive Schedule, exclusive of expenses and
indirect cost.
(c) Recipients may incur pre-award costs 90 calendar days prior
to award, provided the costs are necessary for the effective and
economical conduct of the project and are otherwise allowable under
the terms of the grant. All preaward costs are incurred at the
recipient's risk. NASA is under no obligation to reimburse such
costs if an award is not subsequently made, or if an award is made
for a lesser amount than the recipient anticipated and is
insufficient to cover the pre-award costs.
(d) Comptroller General decisions govern allowability of costs
for international air transportation (see Sec. 1260.37).
Sec. 1260.26 Financial management.
Financial Management (July 1996)
(a) Payment. Advance payments by electronic funds transfer will
be made by the Financial Management Office of the NASA Center which
issued the grant in accordance with procedures provided to the
recipient. The recipient shall submit Federal Cash Transaction
Reports (SF 272) to the aforementioned office and, if NASA has
delegated administration, to the administrative grant officer,
within 15 working days following the end of each Federal fiscal
quarter, containing current estimates of the cash requirements for
each of the four months following the quarter being reported. The
final SF 272 is due within 90 days after the expiration date of the
grant.
(b) Management and records. Financial and program management
requirements of Secs. 1260.120 through 1260.128 apply to all
recipients. Financial records, supporting documents, statistical
records, and all other records pertinent to this award shall be
retained in accordance with Sec. 1260.153. Provisions of
Sec. 1260.26(c) shall apply to subcontractors performing substantive
work under this grant.
(c) Unexpended balances. Any unexpended balance of funds which
remains at the end of any funding period, except the final funding
period of the grant, shall be carried over to the next funding
period, and may be used to defray costs of any funding period of the
grant. The estimated amount of unexpended funds shall be identified
in the grant budget section of the recipient's renewal proposal.
(d) Program income will be subject to Sec. 1260.124.
(e) Provisions of Sec. 1260.26(c) shall apply to subcontractors
performing substantive work under this grant.
Sec. 1260.27 Equipment and other property.
Equipment and Other Property (July 1996)
(a) NASA permits acquisition of special purpose equipment (as
defined in OMB Circulars A-21 and A-122) specifically required and
only used for research, medical, scientific or other technical
activities.
(1) Acquisition of special purpose equipment, costing in excess
of $5,000 and not included in the approved proposal budget, requires
the prior approval of the administrative grant officer (unless the
item is merely a different model of an item in the approved proposal
budget).
(2) Title to special purpose equipment acquired by the recipient
with grant funds, valued under $5,000 in acquisition cost, shall
vest in the recipient and will be considered ``exempt'' in
accordance with Sec. 1260.133(b).
(3) NASA may elect to take title to items of special purpose
equipment valued at more than $5,000 (acquisition cost each) or when
fabricated into a single coherent system (aggregate acquisition
cost). The recipient will be advised of the Government's intention
to take title in writing if the item is approved for recipient
purchase. If the Government does not exercise its right to take
title to property acquired by the recipient with grant funds at the
time of approval, the property will be considered exempt according
to Sec. 1260.133(b). The recipient shall hold title without further
obligation to the Federal Government.
(b) General purpose equipment items require the prior approval
of the Grant Officer to be a direct charge, shall be titled to NASA,
managed in accordance with Sec. 1260.134(f), and reported in
accordance with Sec. 1260.27(e).
(c) Grant funds may be expended for the acquisition of land or
interests therein or for the acquisition and construction of
facilities only under a facilities grant, as defined in
Sec. 1260.12(g).
(d) The recipient shall maintain a property management system
which meets the requirements of Secs. 1260.130 through 1260.137. The
cognizant property administration officer or property administrator
shall be notified of any major change to an approved system.
(e) The recipient shall submit an Inventory Report, to be
received no later than October 31 of each year, which lists all
Federally owned property in its custody as of September 30. A Final
Inventory Report of Federally Owned Property, including equipment
where title was taken by the Government, will be submitted by the
recipient no later than 60 days after the expiration date of the
grant.
(1) All reports will include the information listed in paragraph
(f)(1) of Sec. 1260.134, Equipment.
(2) Negative responses in the Final Inventory Report, when there
is no reportable equipment, are required.
(3) The original of each report shall be submitted to the Center
Deputy Chief Financial Officer (Finance). Copies shall be furnished
to the Center industrial property officer and to ONR .
Sec. 1260.28 Patent rights.
Patent Rights (July 1996)
This award is subject to the provisions of 37 CFR 401.3(a) which
requires use of the standard clause set out at 37 CFR 401.14
``Patent Rights (Small Business Firms and Nonprofit Organizations)''
and the following:
(a) Where the term ``contract'' or ``contractor'' is used in the
``Patent Rights'' clause, the term shall be replaced by the term
``grant'' or ``recipient,'' respectively.
(b) In each instance where the term ``Federal Agency,''
``agency,'' or ``funding Federal agency'' is used in the ``Patent
Rights'' clause, the term shall be replaced by the term ``NASA.''
(c) The NASA regulation applicable to paragraph (e) of the
``Patent Rights'' clause is at 37 CFR Part 404, Licensing of
Government-owned Inventions.
(d) The following item is added to the end of paragraph (f) of
the ``Patent Rights'' clause:
(5) The recipient shall include a list of all Subject Inventions
required to be disclosed during the preceding year in the
performance report, technical report, or renewal proposal, and a
complete list (or a negative statement)
[[Page 38066]]
for the entire award period shall be included in the summary of
research.
(e) The term ``subcontract'' in paragraph (g) of the ``Patent
Rights'' clause shall include purchase orders.
(f) The NASA implementing regulation for paragraph (g)(2) of the
``Patent Rights'' clause is at 48 CFR 1827.373(b).
(g) The following requirement constitutes paragraph (1) of the
``Patent Rights'' clause:
(1) Communications. A copy of all submissions or requests
required by this clause, plus a copy of any reports, manuscripts,
publications or similar material bearing on patent matters, shall be
sent to the Center Patent Counsel and the administrative grant
officer in addition to any other submission requirements in the
grant provisions. If any reports contain information describing a
``subject invention'' for which the recipient has elected or may
elect to retain title, NASA will use reasonable efforts to delay
public release by NASA or publication by NASA in a NASA technical
series until an application filing date has been established,
provided that the recipient identify the information and the
``subject invention'' to which it relates at the time of submittal.
If required by the administrative grant officer, the recipient shall
provide the filing date, serial number and title, a copy of the
patent application, and a patent number and issue date for any
``subject invention'' in any country in which the recipient has
applied for patents.
h. NASA Inventions. NASA will use reasonable efforts to report
inventions made by NASA employees as a consequence of, or which bear
a direct relation to, the performance of specified NASA activities
under this agreement and, upon timely request, will use reasonable
efforts to grant recipient an exclusive, or partially exclusive,
revocable, royalty-bearing license, subject to the retention of a
royalty-free right of the Government to practice or have practiced
the invention by or on behalf of the Government.
i. In the event NASA contractors are tasked to perform work in
support of specified activities under a cooperative agreement and
inventions are made by contractor employees, and NASA has the right
to acquire or has acquired title to such inventions, NASA will use
reasonable efforts to report such inventions and, upon timely
request, will use reasonable efforts to grant recipient an
exclusive, or partially exclusive, revocable, royalty-bearing
license, subject to the retention of a royalty-free right of the
Government to practice or have practiced the invention by or on
behalf of the Government.
Sec. 1260.29 Rights in data.
Rights in Data (July 1996)
(a) Fully Funded Efforts.
(1) ``Data'' means recorded information, regardless of form, the
media on which it may be recorded, or the method of recording,
created under the grant. The term includes, but is not limited to,
data of a scientific or technical nature, and any copyrightable work
in which the recipient asserts copyright, or for which copyright
ownership was purchased, under the grant.
(2) The recipient grants to the Federal Government, a royalty-
free, nonexclusive and irrevocable license to use, reproduce,
distribute (including distribution by transmission) to the public,
perform publicly, prepare derivative works, and display publicly,
data in whole or in part and in any manner for Federal purposes and
to have or permit others to do so for Federal purposes only. Federal
purposes include competitive procurement but do not include the
right to have or permit others to use data for commercial purposes.
(3) In order that the Federal Government may exercise its
license rights in data, the Federal Government, upon request to the
recipient, shall have the right to review and/or obtain delivery of
data resulting from the performance of work under this grant, and
authorize others to receive data to use for Federal purposes.
(4) If information which recipient considers to embody trade
secrets or to comprise commercial or financial information which is
privileged or confidential is disclosed orally or visually to NASA,
such information must be reduced to tangible, recorded form (i.e.,
converted into data as defined herein), identified and marked with a
suitable notice or legend and furnished to NASA within 10 days after
such oral or visual disclosure, or NASA shall have no duty to limit
or restrict, and shall not incur any liability for, any disclosure
and use of such information.
(b) Cost Sharing and/or Matching Efforts. When the recipient
cost shares with the Government on the effort, the following is
added:
(5) In the event data first produced by recipient in carrying
out recipient's responsibilities under an agreement is furnished to
NASA, and recipient considers such data to embody trade secrets or
to comprise commercial or financial information which is privileged
or confidential, and such data is so identified with a suitable
notice or legend, the data will be maintained in confidence and
disclosed and used by the Government and its contractors (under
suitable protective conditions) only for experimental, evaluation,
research and development purposes, by or on behalf of the Government
for an agreed to period of time, and thereafter for Federal purposes
as defined in Sec. 1260.29(a)(2).
c. Add the following paragraph in Cooperative Agreements. (#) As
to data first produced by NASA in carrying out NASA's
responsibilities under a cooperative agreement and which data would
embody trade secrets or would comprise commercial or financial
information that is privileged or confidential if it has been
obtained from the recipient, such data will be marked with an
appropriate legend and maintained in confidence for an agreed to
period of up to ____ years (insert a period of up to 5 years.) after
development of the information, with the express understanding that
during the aforesaid period such data may be disclosed and used
(under suitable protective conditions) by or on behalf of the
Government for Government purposes only, and thereafter for any
purpose whatsoever without restriction on disclosure and use.
Recipient agrees not to disclose such data to any third party
without NASA's written approval until the aforementioned restricted
period expires.
Sec. 1260.30 National security.
National Security (July 1996)
Normally, NASA grants do not involve classified information.
However, if information is sought or developed by the recipient that
should be classified in the interests of national security, the NASA
grant officer who issued the grant shall be notified immediately.
Sec. 1260.31 Nondiscrimination.
Nondiscrimination (July 1996)
(a) To the extent provided by law and any applicable agency
regulations, this award and any program assisted thereby are subject
to the provisions of Title VI of the Civil Rights Act of 1964 (Pub.
L. 88-352), Title IX of the Education amendments of 1972 (Pub. L.
92-318), 20 U.S.C. 1681 et seq.), Section 504 of the Rehabilitation
Act of 1973 (29 U.S.C. 794), the Age Discrimination Act of 1975
(Pub. L. 94-135), the implementing regulations issued pursuant
thereto by NASA, and the assurance of compliance which the recipient
has filed with NASA.
(b) The recipient shall obtain from each organization that
applies or serves as a subrecipient, contractor or subcontractor
under this award (for other than the provision of commercially
available supplies, materials, equipment, or general support
services) an assurance of compliance as required by NASA
regulations.
(c) Work on NASA grants is subject to the provisions of Title VI
of the Civil Rights Act of 1964 (Pub. L. 88-352; 42 U.S.C. 2000d-l),
Title IX of the Education Amendments of 1972 (20 U.S.C. 1680 et
seq.), section 504 of the Rehabilitation Act of 1973, as amended (29
U.S.C. 794), the Age Discrimination Act of 1975 (42 U.S.C. 6101 et
seq.), and the NASA implementing regulations (14 CFR parts 1250,
1251, and 1252).
Sec. 1260.32 Subcontracts.
Subcontracts (July 1996)
(a) For all subcontracts over $25,000 awarded by the recipient,
the recipient shall provide the following to the NASA grant office
for approval.
(1) A copy of the proposed subcontract.
(2) Basis for subcontractor selection.
(3) Justification for lack of competition when competitive bids
or offers are not obtained.
(4) The subcontract budget and basis for subcontract cost or
price.
(b) The recipient (with the exception of foreign organizations)
shall utilize small business concerns, small disadvantaged business
concerns, Historically Black Colleges and Universities, minority
educational institutions, and women-owned small business concerns as
subcontractors to the maximum extent practicable.
(c) All contracts awarded by a recipient, including small
purchases, shall contain the provisions found in appendix A to
subpart B of part 1260, as applicable.
[[Page 38067]]
Sec. 1260.33 Clean Air and Water.
Clean Air and Water (July 1996)
(Applicable only if the award exceeds $100,000, or a facility to
be used has been the subject of a conviction under the Clean Air Act
(42 U.S.C. 1857c-8(c)(1) or the Federal Water Pollution Control Act
(42 U.S.C. 1857c-8(c)(1) or the Federal Water Pollution Control Act
(33 U.S.C. 1319(c)), and 9s listed by EPA, or if the award is not
otherwise exempt).
The recipient agrees to he following:
(a) Comply with applicable standards, orders or regulations
issued pursuant to the Clean Air Act, as amended (42 U.S.C. 7401, et
seq.) and of the Federal Water Pollution Control Act (33 U.S.C. 1251
et seq.).
(b) That no portion of the work under this award will be
performed in a facility listed on the Environmental Protection
Agency (EPA) List of Violating Facilities on the date that this
award was effective unless and until the EPA eliminates the name of
such facility or facilities from such listings.
(c) Use its best efforts to comply with clear air standards and
clean water standards at the facility in which the award is being
preformed.
(b) Insert the substance of the provisions of this clause into
any nonexempt subward or contract under the award.
(e) Report violations to NASA or to EPA.
Sec. 1260.34 Procurement standards.
Procurement Standards (July 1996)
a. The recipient shall maintain a procurement system which, at a
minimum, meets the requirements set forth in Secs. 1260.140 through
1260.148.
b. Procurement programs funded with Federal funds shall give
preference to he purchase of recycled products pursuant to EOA
guidelines.
Sec. 1260.35 Foreign national employee investigative requirements.
Foreign National Employee Investigative Requirements (July 1966)
(a) The recipient agrees to provide the information requested by
NASA to allow the recipient's access to a NASA Center for
performance of this grant. All visit requests must be submitted in a
timely manner in accordance with instructions provided by the
Center(s) to be visited.
(b) The recipient acknowledges that NASA reserves the right to
perform security checks on foreign national visitors, and to deny or
restrict access to a NASA Center, facility, computer system, or
technical information in the interest of national security.
Sec. 1260.36 Travel and transportation.
Travel and Transportation (July 1996)
(a) The Fly America Act, 49 U.S.C. 40118, requires the recipient
to use U.S. flag air carriers for international air transportation
of personnel and property to he extent that service by those
carriers is available.
(b) Department of Transportation regulations, 49 CFR part 173,
govern recipient shipment of hazardous materials and other items.
Special Conditions
Sec. 1260.50 Special conditions.
(a) In addition to the provisions set forth in Secs. 1260.21
through 1260.37, NASA grants are subject to special conditions,
which either are not applicable to all awards or are temporary in
nature. Examples are found in Secs. 1260.51 through 1260.66, but
NASA may impose other conditions as discussed in Sec. 1260.114 or as
the requirements dictate. A deviation to this handbook is not
required for changes to special conditions.
(b) Special conditions will be printed in full text.
(c) For training grants, use Sec. 1260.57 plus any other special
conditions necessary.
(d) In facilities grants, special conditions will be selected on
a case-by-case basis. As appropriate, the requirements of the
following sections will apply: Secs. 1260.132, Real property;
1260.123(c), Cost sharing or matching; and 1260.125(h), Revision of
budget and program plans.
(e) Research grants with foreign organizations will include
special conditions Secs. 1260.58 through 1260.62, modified as
necessary, when not covered under a Memorandum of Agreement (MOA).
In addition, other clauses (e.g., Secs. 1260.63 through 1260.66)
will be written with the aid of General Counsel, and added when
necessary.
Sec. 1260.51 Cooperative agreement special condition.
Cooperative Agreement Special Condition (July 1996)
(a) This award is a cooperative agreement as it is anticipated
there will be substantial NASA involvement during performance of the
effort. NASA and the recipient mutually agree to the following
statement of anticipated cooperative interactions which may occur
during the performance of this effort:
(Reference the approved proposal that contains a detailed
description of the work and insert a concise statement of the exact
nature of the cooperative interactions that deals with existing
facts and not contingencies.)
(b) The terms ``grant'' and ``recipient'' mean ``cooperative
agreement'' and ``recipient of cooperative agreement,''
respectively, wherever the terms appear in provisions and special
conditions included in this agreement.
(c) NASA's ability participate and perform its collaborative
effort under this cooperative agreement is subject to the
availability of appropriated funds and nothing in this cooperative
agreement commits the United States Congress to appropriate funds
therefor.
Sec. 1260.52 Multiple year grant.
Multiple Year Grant (July 1996)
This is a multiple year grant. Contingent on the availability of
funds, scientific progress of the project, an continued relevance to
NASA programs, NASA anticipates continuing support at approximately
the following levels:
Second year $________, Anticipated funding date ________.
Third year $________, Anticipated funding date ________.
(Periods may be added or omitted, as applicable).
Sec. 1260.53 Incremental funding.
Incremental Funding (July 1996)
Only $________ of the amount indicated on the face of this award
is available for payment and allotted to this award. NASA
contemplates making an additional allotment in the amount of
$________ by ________. These funds will be obligated as appropriated
funds become available without any action required by the recipient.
The recipient will be given written notification by the NASA grant
officer. NASA is not obligated to reimburse the recipient for the
expenditure of amounts in excess of the total funds allotted by
NASA.
Sec. 1260.54 Cost sharing.
Cost Sharing (July 1996)
(a) NASA and the recipient will share in providing the resources
necessary to perform the agreement. NASA funding and non-cash
contributions (personnel, equipment, facilities, etc.) and the
dollar value of the recipient's cash and/or non-cash contribution
will be on a ____ percent NASA; ____ percent recipient basis.
Criteria and procedures for the allowability and allocability of
cash and non-cash contributions shall be governed by Sec. 1260.123,
Cost Sharing or Matching. The applicable Federal cost principles are
cited in Sec. 1260.127.
(b) The recipient's share shall not be charged to the Government
under this agreement or under any other contract, grant, or
cooperative agreement.
Sec. 1260.55 Reports substitution.
Reports Substitution (July 1996)
Technical Reports may be substituted for the required
Performance Reports. The title page of such reports shall clearly
indicate that the substitution has been made and will show the
period covered by the originally required Performance Report.
Sec. 1260.56 Withholding.
Withhold (July 1996)
Pending receipt of a satisfactorily completed Summary of
Research and/or other reports required under NASA grant No.
________, the Financial Management Office will withhold all payments
under this grant (including advance payments). The grant officer
will notify the NASA Financial Management Office when payments can
resume.
Sec. 1260.57 Training grant reports.
Training Grant Reports (July 1996)
No later than 60 days after the ending date of the grant, the
recipient will provide the NASA Headquarters Office of Human
Resources and Education an Administrative Report that details the
fellow's research and academic progress. Pertinent information
relating to the student, including the degree granted and employment
plans, are to be included. Students are required to submit a
[[Page 38068]]
Student Evaluation Form to the administrative contact at the Center
monitoring the work 90 days prior to the ending date of the
fellowship.
Sec. 1260.58 Interest bearing accounts.
Interest Bearing Accounts (July 1996)
Advances of federal funds shall be maintained in interest-
bearing accounts. Interest earned on federal advances deposited in
such accounts shall be remitted to DHHS at least quarterly, as
instructed by the Financial Management Office of the NASA Center
which issued the grant. Interest amounts up to $250 per year may be
retained by the recipient.
Sec. 1260.59 Choice of law.
Choice of Law (July 1996)
The rights and obligations of the parties to the grant (or
cooperative agreement) shall be ascertainable by recourse to the
laws of the United States of America. However, it is understood that
the laws of the recipient's country will generally apply to
recipient activities within that country.
Sec. 1260.60 Invention reporting and rights.
Invention Reporting and Rights (July 1996)
(a) As used in this provision:
(1) The term ``invention'' means any invention, discovery or
improvement:
(2) The term ``made'' means the conception or first actual
demonstration that the invention is useful and operable.
(b) The recipient shall report promptly to the grant officer
each invention made in the performance of work under this grant. The
report of such invention shall:
(1) Identify the inventor(s) by full name; and
(2) Include such full and complete technical information
concerning the invention as is necessary to enable an understanding
of the nature and operation thereof.
(c) The recipient hereby grants to the Government of the United
States of American, as represented by the Administrator of the
National Aeronautics and Space Administration, the full rights,
title, and interest in and to each such invention throughout the
world except ____________________.
Sec. 1260.61 Public information.
Public Information (July 1996)
Information regarding this grant (including a copy of this award
document) may be released by the recipient without restriction.
However, technical information relating to work performed under this
grant where there was a NASA contribution should be released by the
recipient only after consultation with the NASA Technical Officer.
Sec. 1260.62 Allocation of risk/liability.
Allocation of Risk/Liability (July 1996)
a. With respect to activities undertaken under this agreement,
the recipient agrees not to make any claim against NASA or the U.S.
Government with respect to the injury or death of its employees or
its contractors and subcontractor employees, or to the loss of its
property or that of its contractors and subcontractors, whether such
injury, death, damage or loss arises through negligence or
otherwise, except in the case of willful misconduct.
b. In addition, the recipient agrees to indemnify and hold the
U.S. Government and its contractors and subcontractors harmless from
any third party claim, judgment, or cost arising from the injury to
or death of any person, or for damage to or loss of any property,
arising as a result of its possession or use of any U.S. Government
property.
Sec. 1260.63 Payment--to foreign organizations.
Payment--To Foreign Organizations
(For grants or cooperative agreements with foreign
organizations, this clause will be developed on a case-by-case
basis.)
Sec. 1260.64 Customs clearance and visas.
Customs Clearance and Visas
(For grants or cooperative agreements with foreign
organizations, this clause will be developed on a case-by-case
basis.)
Sec. 1260.65 Taxes.
Taxes
(For grants or cooperative agreements with foreign
organizations, this clause will be developed on a case-by-case
basis.)
Sec. 1260.66 Exchange of technical data and goods.
Exchange of Technical Data and Goods
(For grants or cooperative agreements with foreign
organizations, this clause will be developed on a case-by-case
basis.)
Post-Award Requirements
Sec. 1260.70 Delegation of administration.
(a) Pursuant to the Government-wide ``cross-servicing'' policy,
NASA grants and cooperative agreements shall be delegated for full
administration (including property and closeout) to the Office of Naval
Research (ONR). Exceptions to this policy must be approved by the
Procurement Officer, documented, and made part of the file.
(b) Delegations will be made by using NASA Form NF 1671. The grant
officer will strike out any parts of the form that do not apply and
write in specific instructions regarding actions requiring ONR
involvement. The grant officer will inform the recipient, in writing,
that a delegation has been made.
(c) ONR will acknowledge this delegation by returning a NF 1431 to
the grant officer within five days of receipt.
Sec. 1260.71 Supplements and renewals.
(a) A NASA grant officer can unilaterally make minor or
administrative changes to a grant; e.g., Reports Substitution
(Sec. 1260.55), Withholding (Sec. 1260.56), and Novations
(Sec. 1260.74). Renewal of
FR Doc. 96-18363 Grants and Agreements With Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations, Uniform Administrative Requirements (OMB A-110 Implementation)
grant (Sec. 1260.22) is a unilateral
decision by NASA based upon availability of funds, continued research
relevance, and progress made by the recipient.
(b) To eliminate the paperwork burdens associated with closeout and
negotiations for a new grant, ongoing efforts to continue the same
effort at the same institution will be accomplished by modifying the
current instrument, unless there is a significant change in the nature
of the work or closure would be in the best interest of the Government.
(1) Grants should be renewed prior to their expiration date. When
possible, the period of performance should be continuous with the prior
grant. If otherwise acceptable, NASA may fund an extension through a
multiple year grant (Sec. 1260.13(a)) or by extending the existing
grant. Such extensions (other than no-cost extensions) must be
supported by a new proposal from the recipient.
(2) To insure continuation, the technical office should forward to
the grant office a complete technical evaluation, support
documentation, and/or a funded Procurement Request at least 45 days
before the expiration of the funded period.
Although the grant officer has little control over the timely
receipt of purchase requests, he/she is responsible for informing the
technical officer of current lead-time requirements and for timely
processing continuation agreements.
(3) The technical office will notify the recipient if the grant is
to be funded or if additional information is required. Alternatively,
if a grant is not to be renewed, the program office should give the
grant officer and the recipient 30-day notice.
(c) Requests by the recipient to modify a grant must be in writing
to the grant officer. Examples might include changes in principal
investigator or additional funding. After concurrence by the program
manager, a grant supplement will be unilaterally issued at the
discretion of the grant officer.
(d) A single no-cost extension for up to 12 months can be
unilaterally issued by the recipient as detailed in paragraph (b) of
the provision Sec. 1260.22, Extensions.
(e) When two or more actions are completed on a single supplement,
the supplement will reflect the effective date of the earliest action.
[[Page 38069]]
Sec. 1260.72 Adherence to original budget estimates.
(a) Although NASA assumes no responsibility for budget overruns,
the recipient may spend grant funds without strict adherence to
individual allocations within the proposed budgets, except as provided
in Secs. 1260.27 and 1260.32.
(b) The revision of budgets and program plans are covered in
Sec. 1260.125.
Sec. 1260.73 Transfers, novations, and change of name agreements.
(a) Transfer of grants. Novation as provided in Sec. 1260.73(b), is
the only means by which a grant may be transferred from one institution
to another. When the principal investigator changes organizational
affiliation and desires support for the research at a new location and
novation is not used, a new proposal must be submitted to NASA via the
appropriate officials of the new institution. Although such a proposal
will be reviewed in the normal manner, every effort will be made to
expedite a decision. Regardless of the action taken on the new
proposal, final reports on the original grant, describing the
scientific progress and expenditure to date, will be required.
(b) Novation and change of name. All novation agreements and change
of name agreements of the recipient, prior to execution, shall be
reviewed by legal counsel for legal sufficiency. When a change in
principal investigator from one institution to another occurs, novation
of the grant is preferable to termination.
Sec. 1260.74 Property use, disposition, and vesting of title.
(a) Administrative grant officers shall not approve the expenditure
of grant funds for the acquisition of general purpose equipment as
defined by OMB Circulars A-21 and A-122 unless the recipient's
justification for the equipment demonstrates that the equipment will be
used exclusively for research.
(b) Property administration and plant clearance for all grants and
cooperative agreements will be delegated to the appropriate DoD
property administration office.
(c) Administrative grant officers will provide copies of property
related grant documentation to the Center industrial property officer
(prior to award or modification) when the program office elects to
retain title to an existing item of Government property, to furnish the
property to the recipient in lieu of donation or to take title to
property acquired by the recipient. When NASA acquires title to items
of recipient acquired equipment or when NASA transfers an item of
Government property to a recipient as Federally owned property, the
administrative grant officer shall notify both the cognizant NASA
Center financial management officer and the equipment management
officer to ensure proper entries in financial and property accounting
records.
(d) NASA policy encourages titling as ``exempt'' all property
acquired by a nonprofit organization whose primary purpose is the
conduct of scientific research, without further obligation to the
Federal Government. Unless NASA takes title, equipment purchased with
grant funds vests in the recipient subject to Sec. 1260.134.
(1) If NASA elects to take title to recipient acquired property,
said decision will be subject to Sec. 1260.132(b)(3).
(2) Title to individual items or coherent systems (as defined in
Sec. 1260.74(f)) of recipient acquired equipment purchased at a cost of
more than $5,000 may revert back to NASA at NASA's discretion, subject
to the following conditions.
(i) NASA shall notify the recipient in writing as part of the
approval for retaining the item. If the item was requested as part of
the original budget, the award must specify NASA's intention to take
title.
(ii) Government titled property will be subject to the provisions
for other Federally owned property as stated in Sec. 1260.133.
(3) Title to equipment costing $5,000 or less is not subject to
transfer to the agency, except under the conditions of Sec. 1260.74(f).
(e) Title to Federally-owned property remains with the Government.
(1) In accordance with Pub. L. 94-519, NASA will not acquire
property from other agencies for use on NASA grants.
(2) When Federally-owned property is reported excess by a
recipient, the administrative grant officer will report the equipment
to the Center property disposal officer.
(3) NASA policy encourages the donation of existing, excess NASA
property to nonprofit organizations whose primary purpose is the
conduct of scientific research.
(f) When two or more components are fabricated into a single
coherent system in such a way that the components lose their separate
identities, and their separation would render the system useless for
its original purpose, the components will be considered as integral
parts of a single system. If such a system includes recipient-owned
components, the property will be considered to be exempt. The
requirement for agreement regarding NASA's retention of its option to
take title shall further apply where it is expected that one or more
recipient-acquired components costing $5,000 or less will be fabricated
into a single coherent system costing in excess of $5,000. However, an
item that is used ancillary to a system, without loss of its separate
identity and usefulness, will be considered as a separate item and not
as an integral component of the system.
Sec. 1260.75 Reports.
(a) The grant officer is responsible for submitting the Individual
Procurement Action Report (NASA Form 507) for all grant actions.
(b) The Committee on Academic Science and Engineering (CASE) Report
(NASA Form 1356), for research grants awarded to educational
institutions, is submitted with the basic award procurement request. In
the case of certain non-funded actions for educational institutions,
the NF 1356 is initiated by the grant officer.
(c) The Federal Cash Transactions Report (SF 272) shall be
submitted by the recipient within 15 working days following the end of
each Federal fiscal quarter, as a condition of receiving advance
payments. Instructions and answers to payment questions will be
provided by the Financial Management Office of the Center that issued
the grant. (see Sec. 1260.152.)
(d) The annual Inventory Report of Federally Owned Property in
Custody of the Recipient will be submitted by the recipient by October
31, as required by Sec. 1260.27(e). The listing shall include
information specified in Sec. 1260.134(f) together with beginning and
ending dollar value totals for the reporting period.
(e) A Performance Report shall be submitted in accordance with
Secs. 1260.21 and 1260.151(d). Recipients shall not be required to
submit more than the original and two copies of performance reports
(Sec. 1260.151(e)). At the request of the technical officer, this
requirement may be modified by use of special condition Sec. 1260.55
entitled ``Reports Substitution''.
(f) Final reports are as follows.
(1) A Summary of Research for research grants, an Education
Activity Report for education grants, or an Administrative Report for
training grants, shall be submitted as required by Sec. 1260.21 or
Sec. 1260.57. Citation of publications resulting from research, or
abstracts thereof, may serve as all or part of the summary. A separate
report is required if inventions and patents
[[Page 38070]]
resulted from the work. In addition, students are required to submit a
Student Evaluation Form to the administrative contact at the Center
monitoring the work 90 days prior to the ending date of a fellowship.
(2) A Final Inventory Report of Federally Owned Property, including
equipment where title was taken by the Government, shall be submitted
by the recipient no later than 60 days after the end of the grant, as
required by Sec. 1260.27.
(3) A properly certified Final Federal Cash Transactions Report, SF
272, is required from the recipient for each grant, as addressed in
Sec. 1260.26(a).
(g) One copy of each Disclosure of Lobbying Activities (SF LLL),
under 14 CFR 1271.110, shall be provided by the grant officer to the
Procurement Officer for transmittal to the Director, Contract
Management Division (Code HK). Suspected violations of the statutory
prohibitions implemented by 14 CFR part 1271 shall be reported to Code
HK.
(h) The Director, Program Operations Division (Code HS), shall
provide to the General Services Administration information concerning
all NASA debarments, suspensions, determinations of ineligibility, and
voluntary exclusions of persons in accordance with 14 CFR 1265.505.
(i) Remedies for Noncompliance are delineated in Sec. 1260.162.
(1) Failure of the recipient to provide a required grant report can
result in the Agency and the public being denied information about
grant activities, NASA officials having less information for making
decisions, grant closeout being delayed, and confidence being
undermined as to whether the recipient will meet the requirements under
other grants. Because NASA grants provide for advance payments, a
recipient could be fully paid before final reports are due. At this
point, it is too late to withhold payment on the existing grant.
(2) Consistent with Secs. 1260.122(h) and 1260.162(a), NASA does
not withhold payment until a recipient has failed to comply with report
requirements for more than 90 days. To remedy failure to furnish
reports, special condition Sec. 1260.56, Withholding, should be used
when awarding a new grant or modifying an existing grant with non-
responsive organizations.
(i) Special condition Sec. 1260.56 instructs the Financial
Management Office to withhold payment pending receipt of the
satisfactorily completed reports required in Sec. 1260.75.
(ii) The grant officer may waive the withholding requirement when
the recipient has taken corrective action that makes withholding
unnecessary. To release for payment the amount withheld, grant officers
shall send a memorandum to their Financial Management Office.
Sec. 1260.76 Suspension or termination.
Suspension of termination of a grant prior to the planned
expiration date must be reserved for exceptional situations that cannot
be handled any other way (see Secs. 1260.23 and 1260.160). Before
suspending or terminating any grant with a university, the NASA grant
officer and technical officer shall take into account the consequences
to graduate students working under the grant.
Sec. 1260.77 Closeout procedures.
The closeout of a grant is the process by which NASA determines
that all applicable administrative actions and all required work under
the instrument have been completed by both the recipient and NASA and
no further action is necessary (see Sec. 1260.171).
(a) Initiation. The NASA grant officer shall determine from the
technical officer that work under a particular grant will not be
continued or is completed. The NASA grant officer will promptly notify
ONR to begin closeout within 90 days of this determination. ONR will
inform the recipient of pending closeout and the final documentation
required, to the extent practicable, prior to the grant's expiration
date.
(1) To expedite closeout, NASA grant officers shall respond to ONR
inquiries within 30 days. The use of E-mail communication between ONR
and NASA is encouraged.
(2) Recipients shall not be requested to complete forms or supply
information other than discussed in Sec. 1260.75(c) through (f), except
in unusual situations.
(b) Reports submission. ONR will ensure that all reports required
from the recipient (see Sec. 1260.75) have been received by the
appropriate NASA offices.
(c) Reports certification. ONR will obtain from those that receive
NASA reports, written certification that the reports have been
satisfactorily completed. The property certification should indicate
that disposal of any remaining Government property has been made as
directed and that NASA has been compensated for any residual inventory
(see Sec. 1260.135). In reviewing the certifications, see
Secs. 1260.171 and 1260.172.
(d) Administrativly complete. A grant is administratively complete
when
(1) All reports have been received;
(2) All certifications have been received;
(3) Payments have been made for allowable reimbursable costs and
refunds have been received for any balance of unobligated cash advanced
that is not authorized to be retained for use on other grants; and
(4) A DD Form 1594 has been provided by ONR to the NASA grant
officer.
(e) Retention of documents. Records will be retained in accordance
with Sec. 1260.153.
Appendix to Subpart A to Part 1260--Listing of Exhibits
Exhibit A--Delegation of Administration
Exhibit B--Formats
Example 1--Research Grant
Example 2--Cooperative Agreement
Example 3--Training Grant
Example 4--Education Grant
Example 5--Grant or Cooperative Agreement with Foreign Organizations
Exhibit C--Budget Summary
Note: Exhibits are available at NASA Headquarters, Code HK,
Washington, DC 20546.
Subpart B--Uniform Administrative Requirements for Grants and
Cooperative Agreements with Institutions of Higher Education,
Hospitals, and Other Non-Profit Organizations
General
Sec. 1260.101 Purpose.
This subpart implements OMB Circular No. A-110 and establishes
uniform administrative requirements for NASA grants and agreements
awarded to institutions of higher education, hospitals, and other non-
profit organizations. NASA shall not impose additional or inconsistent
requirements, except as provided in Secs. 1260.104 and 1260.114 or
unless specifically required by Federal statute or executive order.
Non-profit organizations that implement Federal programs for the States
are also subject to State requirements.
Sec. 1260.102 Definitions.
(a) Accrued expenditures means the charges incurred by the
recipient during a given period requiring the provision of funds for:
(1) Goods and other tangible property received;
(2) Services performed by employees, contractors, subcontractors,
and other payees; and,
(3) Other amounts becoming owed under programs for which no current
services or performance is required.
(b) Accrued income means the sum of:
[[Page 38071]]
(1) Earnings during a given period from services performed by the
recipient, and goods and other tangible property delivered to
purchasers; and
(2) Amounts becoming owed to the recipient for which no current
services or performance is required by the recipient.
(c) Acquisition cost of equipment means the net invoice price of
the equipment, including the cost of modifications, attachments,
accessories, or auxiliary apparatus necessary to make the property
usable for the purpose for which it was acquired. Other charges, such
as the cost of installation, transportation, taxes, duty or protective
in-transit insurance, shall be included or excluded from the unit
acquisition cost in accordance with the recipient's regular accounting
practices.
(d) Advance means a payment made by Treasury check or other
appropriate payment mechanism to a recipient upon its request either
before outlays are made by the recipient or through the use of
predetermined payment schedules.
(e) Award means a grant or cooperative agreement that provides
support or stimulation to accomplish a public purpose. Awards include
research grants, training grants, facilities grants, educational
grants, and cooperative agreements in the form of money or property in
lieu of money, by NASA to an eligible recipient. The term does not
include: technical assistance, which provides services instead of
money; other assistance in the form of loans, loan guarantees, interest
subsidies, or insurance; direct payments of any kind of individuals;
and, contracts which are required to be entered into and administered
under procurement laws and regulations.
(f) Cash contributions means the recipient's cash outlay, including
the outlay of money contributed to the recipient by third parties.
(g) Closeout means the process by which NASA determines that all
applicable administrative actions and all required work of the award
have been completed by the recipient and NASA.
(h) Contract means a procurement contract under an award, and a
procurement subcontract under a recipient's contract.
(i) Cost sharing or matching means that portion of project or
program costs not borne by NASA.
(j) Date of completion means the date on which all work under an
award is completed or the date on the award document, or any supplement
or amendment thereto, on which NASA sponsorship ends.
(k) Disallowed costs means those charges to an award that NASA
determines to be unallowable, in accordance with the applicable Federal
cost principles or other terms and conditions contained in the award.
(l) Equipment means tangible nonexpendable personal property
including exempt property charged directly to the award having a useful
life of more than one year and an acquisition cost of $5,000 or more
per unit. However, consistent with recipient policy, lower limits may
be established.
(m) Excess property means property under the control of any Federal
awarding agency that, as determined by the head thereof, is no longer
required for its needs or the discharge of its responsibilities.
(n) Exempt property means tangible personal property acquired in
whole or in part with Federal funds, where a Federal awarding agency
has statutory authority to vest title in the recipient without further
obligation to the Federal Government. An example of exempt property
authority is contained in the Federal Grant and Cooperative Agreement
Act (31 U.S.C. 6306), for property acquired under an award to conduct
basic or applied research by a non-profit institution of higher
education or non-profit organization whose principal purpose is
conducting scientific research.
(o) NASA means the National Aeronautics and Space Administration
(NASA), including its authorized representatives.
(p) Federal funds authorized means the total amount of Federal
funds obligated by the Federal Government for use by the recipient.
This amount may include any authorized carryover of unobligated funds
from prior funding periods when permitted by agency regulations or
agency implementing instructions.
(q) Federal share of real property, equipment, or supplies means
that percentage of the property's acquisition costs and any improvement
expenditures paid with Federal funds.
(r) Funding period means the period of time when NASA funding is
available for obligation by the recipient.
(s) Intangible property and debt instruments means, but is not
limited to, trademarks, copyrights, patents and patent applications and
such property as loans, notes and other debt instruments, lease
agreements, stock and other instruments of property ownership, whether
considered tangible or intangible.
(t) Obligations mean the amounts of orders placed, contracts and
grants awarded, services received and similar transactions during a
given period that require payment by the recipient during the same or a
future period.
(u) Outlays or expenditures means charges made to the project or
program. They may be reported on a cash or accrual basis. For reports
prepared on a cash basis, outlays are the sum of cash disbursements for
direct charges for goods and services, the amount of indirect expense
charged, the value of third party in-kind contributions applied and the
amount of cash advances and payments made to subcontractors. For
reports prepared on an accrual basis, outlays are the sum of cash
disbursements for direct charges for goods and services, the amount of
indirect expense incurred, the value of in-kind contributions applied,
and the net increase (or decrease) in the amounts owed by the recipient
for good and other property received, for services performed by
employees, contractors, subcontractors and other payees and other
amounts becoming owed under programs for which no current services or
performance are required.
(v) Personal property means property of any kind except real
property. It may be tangible, having physical existence, or intangible,
having no physical existence, such as copyrights, patents, or
securities.
(w) Prior approval means written approval by an authorized official
evidencing prior consent.
(x) Program income means gross income earned by the recipient that
is directly generated by a supported activity or earned as a result of
the award (see exclusions in Sec. 1270.24(e) and (h). Program income
includes, but is not limited to, income from fees for services
performed, the use or rental of real or personal property acquired
under federally-funded projects, the sale of commodities or items
fabricated under an award, license fees and royalties on patents and
copyrights, and interest on loans made with award funds. Interest
earned on advances of NASA funds is not program income. Except as
otherwise provided in these regulations or the terms and conditions of
the award, program income does not include the receipt of principal on
loans, rebates, credits, discounts, etc., or interest earned on any of
them.
(y) Project costs means all allowable costs, as set forth in the
applicable Federal cost principles, incurred by a recipient and the
value of the contributions made by third parties in accomplishing the
objectives of the award during the project period.
(z) Project period means the period established in the award
document
[[Page 38072]]
during which NASA sponsorship begins and ends.
(aa) Property means, unless otherwise stated, real property,
equipment, intellectual property and debt instruments.
(bb) Real property means land, including land improvements,
structures and appurtenances thereto, but excludes movable machinery
and equipment.
(cc) Recipient means an organization receiving an award directly
from NASA to carry out a project or program. The term includes public
and private institutions of higher education, public and private
hospitals, and other quasi-public and private non-profit organizations
such as, but not limited to, community action agencies, research
institutes, educational associations, and health centers. The term may
include commercial organizations, foreign or international
organizations (such as agencies of the United Nations) which are
recipients, subcontractors, or contractors or subcontractors of
recipients. The term does not include government-owned contractor-
operated facilities or research centers providing continued support for
mission-oriented, large-scale programs that are government-owned or
controlled, or are designated as federally-funded research and
development centers.
(dd) Research and development means all research activities, both
basic and applied, and all development activities that are supported at
universities, colleges, and other nonprofit institutions. Research is
defined as a systematic study directed toward fuller scientific
knowledge or understanding of the subject studied. Development is the
systematic use of knowledge and understanding gained from research
directed toward the production of useful materials, devices, systems,
or methods, including design and development of prototypes and
processes. The term research also included activities involving the
training of individuals in research techniques where such activities
utilize the same facilities as other research and development
activities and where such activities are not included in the
instruction function.
(ee) Small awards means a grant or cooperative agreement not
exceeding the small purchase threshold.
(ff) Subaward means an award of financial assistance in the form of
money, or property in lieu of money, made under an award by a recipient
to an eligible subrecipient or by a subrecipient to a lower tier
subrecipient. The term includes financial assistance when provided by
any legal agreement, even if the agreement is called a contract, but
does not include procurement of goods and services nor does it include
any form of assistance which is excluded from the definition of
``award'' in paragraph (e) of this section.
(gg) Subrecipient means the legal entity to which a subaward is
made and which is accountable to the recipient for the use of the funds
provided. The term may include foreign or international organizations
(such as agencies of the United Nations).
(hh) Supplies means all personal property excluding equipment,
intellectual property, and debt instruments as defined in this section,
and inventions of a contractor conceived or first actually reduced to
practice in the performance of work under a funding agreement
(``subject inventions''), as defined in 37 CFR part 401, ``Rights to
Inventions Made by Nonprofit Organizations and Small Business Firms
Under Government Grants, Contracts, and Cooperative Agreements.''
(ii) Suspension means an action by NASA that temporarily withdraws
NASA sponsorship under an award, pending corrective action by the
recipient or pending a decision to terminate the award by NASA.
Suspension of an award is a separate action from suspension under
Federal agency regulations implementing Executive Orders 12549 and
12689, ``Debarment and Suspension.''
(jj) Termination means the cancellation of Federal sponsorship, in
whole or in part, under an agreement at any time prior to the date of
completion.
(kk) Third party in-kind contributions means the value of non-cash
contributions provided by non-Federal third parties. Third party in-
kind contributions may be in the form of real property, equipment,
supplies and other expendable property, and the value of goods and
services directly benefiting and specifically identifiable to the
project or program.
(ll) Unliquidated obligations, for financial reports prepared on a
cash basis, means the amount of obligations incurred by the recipient
that have not been paid. For reports prepared on an accrued expenditure
basis, they represent the amount of obligations incurred by the
recipient for which an outlay has not been recorded.
(mm) Unobligated balance means the portion of the funds authorized
by NASA that has not been obligated by the recipient and is determined
by deducting the cumulative obligations from the cumulative funds
authorized.
(nn) Unrecovered indirect cost means the difference between the
amount awarded and the amount which could have been awarded under the
recipient's approved negotiated indirect cost rate.
(oo) Working capital advance means a procedure whereby funds are
advanced to the recipient to cover its estimated disbursement needs for
a given initial period.
Sec. 1260.103 Effect on other issuances.
For awards subject to this subpart, all administrative requirements
of codified program regulations, program manuals, handbooks and other
nonregulatory materials which are inconsistent with the requirements of
this subpart shall be superseded, except to the extent they are
required by statute, or authorized in accordance with the deviations
provision in Sec. 1260.104.
Sec. 1260.104 Deviations.
The Office of Management and Budget (OMB) may grant exceptions for
classes of grants or recipients subject to the requirements of this
subpart when exceptions are not prohibited by statute. However, in the
interest of maximum uniformity, exceptions from the requirements of
this subpart shall be permitted only in unusual circumstances. NASA may
apply more restrictive requirements to a class of recipients when
approved by OMB. NASA may apply less restrictive requirements when
awarding small awards, except for those requirements which are
statutory. Exceptions on a case-by-case basis may also be made by NASA.
See Sec. 1260.6(c).
Sec. 1260.105 Subawards.
Unless sections of this subpart specifically exclude subrecipients
from coverage, the provisions of this subpart shall be applied to
subrecipients performing work under awards if such subrecipients are
institutions of higher education, hospitals or other non-profit
organizations. State and local government subrecipients are subject to
the provisions of 14 CFR part 1273, ``Uniform Administrative
Requirements for Grants and Cooperative Agreements to State and Local
Governments.''
Pre--Award Requirements
Sec. 1260.110 Purpose.
Sections 1260.111 through 1260.117 prescribe forms and instructions
and other pre-award matters to be used in applying for NASA awards.
Sec. 1260.111 Pre-award policies.
(a) Use of grants and cooperative agreements, and contracts. In
each instance, NASA shall decide on the appropriate award instrument
(i.e., grant, cooperative agreement, or
[[Page 38073]]
contract). The Federal Grant and Cooperative Agreement Act (31 U.S.C.
6301-08) governs the use of grants, cooperative agreements and
contracts. A grant or cooperative agreement shall be used only when the
principal purpose of a transaction is to accomplish a public purpose of
support or stimulation authorized by Federal statute. The statutory
criterion for choosing between grants and cooperative agreements is
that for the latter, ``substantial involvement is expected between the
executive agency and the State, local government, or other recipient
when carrying out the activity contemplated in the agreement.''
Contracts shall be used when the principal purpose is acquisition of
property or services for the direct benefit or use of the Federal
Government.
(b) Public Notice and Priority Setting. NASA shall notify the
public of its intended funding priorities for discretionary grant
programs, unless funding priorities are established by Federal statute.
Sec. 1260.112 Forms for applying for Federal assistance.
(a) NASA shall comply with the applicable report clearance
requirements of 5 CFR part 1320, ``Controlling Paperwork Burdens on the
Public,'' with regard to all forms used by the NASA in place of or as a
supplement to the Standard Form 424 (SF-424) series.
(b) Applicants shall use those forms and instructions prescribed by
NASA in Sec. 1260.
Sec. 1260.113 Debarment and suspension.
NASA and recipients shall comply with the nonprocurement debarment
and suspension rule, 14 CFR part 1265, ``Governmentwide Debarment and
Suspension (Nonprocurement) and Governmentwide Requirements for Drug-
Free Workplace (Grants),'' implementing Executive Orders 12549 and
12689, ``Debarment and Suspension.'' This rule restricts contracts with
certain parties that are debarred, suspended or otherwise excluded from
or ineligible for participation in Federal assistance programs or
activities.
Sec. 1260.114 Special award conditions.
If an applicant or recipient has a history of poor performance, is
not financially stable, has a management system that does not meet the
standards prescribed in this subpart, has not conformed to the terms
and conditions of a previous award, or is not otherwise responsible,
NASA may impose additional requirements as needed. Such applicant or
recipient will be notified in writing as to the nature of the
additional requirements, the reason why the additional requirements are
being imposed, the nature of the corrective action needed, the time
allowed for completing the corrective actions, and the method for
requesting reconsideration of the additional requirements imposed. Any
special conditions shall be promptly removed once the conditions that
prompted them have been corrected.
Sec. 1260.115 Metric system of measurement.
The Metric Conversion Act, as amended by the Omnibus Trade and
Competitiveness Act (15 U.S.C. 205) declares that the metric system is
the preferred measurement system for U.S. trade and commerce. The Act
requires each Federal agency to establish a date or dates in
consultation with the Secretary of Commerce, when the metric system of
measurement will be used in the agency's procurements, grants, and
other business-related activities. Metric implementation may take
longer where the use of the system is initially impractical or likely
to cause significant inefficiencies in the accomplishment of federally-
funded activities. NASA shall follow the provisions of Executive Order
12770, ``Metric Usage in Federal Government Programs.''
Sec. 1260.116 Resource Conservation and Recovery Act (RCRA).
Under the RCRA (Pub. L. 94-580 codified at 42 U.S.C. 6962), any
State agency or agency of a political subdivision of a State which is
using appropriated Federal funds must comply with Section 6002 of the
RCRA (42 U.S.C. 6962). Section 6002 requires that preference be given
in procurement programs to the purchase of specific products containing
recycled materials identified in guidelines developed by the
Environmental Protection Agency (EPA) (40 CFR parts 247-254).
Accordingly, State and local institutions of higher education,
hospitals, and non-profit organizations that receive direct Federal
awards or other Federal funds shall give preference in their
procurement programs funded with Federal funds to the purchase of
recycled products pursuant to the EPA guidelines.
Sec. 1260.117 Certifications and representations.
Unless prohibited by statute or codified regulation, NASA will
allow recipients to submit certain certifications and representations
required by statute, executive order, or regulation on an annual basis,
if the recipients have ongoing and continuing relationships with the
agency. Annual certifications and representations shall be signed by
responsible officials with the authority to ensure recipient's
compliance with the pertinent requirements.
Post Award Requirements
Financial and Program Management
Sec. 1260.120 Purpose of financial and program management.
Sections 1260.121 through 1260.128 prescribe standards for
financial management systems, methods for making payments and rules
for: satisfying cost sharing and matching requirements, accounting for
program income, budget revision approvals, making audits, determining
allowability of cost, and establishing fund availability.
Sec. 1260.121 Standards for financial management systems.
(a) Recipients shall relate financial data to performance data and
develop unit cost information whenever practical. For awards that
support research, it should be noted that it is generally not
appropriate to develop unit cost information.
(b) Recipients' financial management systems shall provide for the
following.
(1) Accurate, current and complete disclosure of the financial
results of each federally-sponsored project or program in accordance
with the reporting requirements set forth in Sec. 1260.152. If NASA
requires reporting on an accrual basis from a recipient that maintains
its records on other than an accrual basis, the recipient shall not be
required to establish an accrual accounting system. These recipients
may develop such accrual data for its reports on the basis of an
analysis of the documentation on hand.
(2) Records that identify adequately the source and application of
funds for federally-sponsored activities. These records shall contain
information pertaining to Federal awards, authorizations, obligations,
unobligated balances, assets, outlays, income and interest.
(3) Effective control over and accountability for all funds,
property and other assets. Recipients shall adequately safeguard all
such assets and assure they are used solely for authorized purposes.
(4) Comparison of outlays with budget amounts for each award.
Whenever appropriate, financial information should be related to
performance and unit cost data.
[[Page 38074]]
(5) Written procedures to minimize the time elapsing between the
transfer of funds to the recipient from the U.S. Treasury and the
issuance or redemption of checks, warrants or payments by other means
for program purposes by the recipient. To the extent that the
provisions of the Cash Management Improvement Act (CMIA) (Pub. L. 101-
453) govern, payment methods of State agencies, instrumentalities, and
fiscal agents shall be consistent with CMIA Treasury-State Agreements
or the CMIA default procedures codified at 31 CFR part 205,
``Withdrawal of Cash from the Treasury for Advances under Federal Grant
and Other Programs.''
(6) Written procedures for determining the reasonableness,
allocability and allowability of costs in accordance with the
provisions of the applicable Federal cost principles and the terms and
conditions of the award.
(7) Accounting records including cost accounting records that are
supported by source documentation.
(c) Where the Federal Government guarantees or insures the
repayment of money borrowed by the recipient, NASA, at its discretion,
may require adequate bonding and insurance if the bonding and insurance
requirements of the recipient are not deemed adequate to protect the
interest of the Federal Government.
(d) NASA may require adequate fidelity bond coverage where the
recipient lacks sufficient coverage to protect the Federal Government's
interest.
(e) Where bonds are required in the situations described above, the
bonds shall be obtained from companies holding certificates of
authority as acceptable sureties, as prescribed in 31 CFR part 223,
``Surety Companies Doing Business with the Unites States.''
Sec. 1260.122 Payment.
(a) Payment methods shall minimize the time elapsing between the
transfer of funds from the United States Treasury and the issuance or
redemption of checks, warrants, or payment by other means by the
recipients. Payment methods of State agencies or instrumentalities
shall be consistent with Treasury-State CMIA agreements or default
procedures codified at 31 CFR part 205.
(b)(1) Recipients are to be paid in advance, provided they maintain
or demonstrate the willingness to maintain:
(i) Written procedures that minimize the time elapsing between the
transfer of funds and disbursement by the recipient; and
(ii) Financial management systems that meet the standards for fund
control and accountability as established in Sec. 1260.121.
(2) Cash advances to a recipient organization shall be limited to
the minimum amounts needed and be timed to be in accordance with the
actual, immediate cash requirements of the recipient organization in
carrying out the purpose of the approved program or project. The timing
and amount of cash advances shall be as close as is administratively
feasible to the actual disbursements by the recipient organization for
direct program or project costs and the proportionate share of any
allowable indirect costs.
(c) Whenever possible, advances shall be consolidated to cover
anticipated cash needs for all awards made by NASA to the recipient.
(1) Advance payments will be made by electronic funds transfer.
(2) Advance payment mechanisms are subject to 31 CFR part 205.
(d) [Reserved. Not used by NASA.]
(e) Reimbursement is the preferred method when the requirements in
paragraph (b) of this section cannot be met. NASA may also use this
method on any construction agreement, or if the major portion of the
construction project is accomplished through private market financing
or Federal loans, and the Federal assistance constitutes a minor
portion of the project. When the reimbursement method is used, NASA
shall make payment within 30 days after receipt of the billing, unless
the billing is improper.
(f) If a recipient cannot meet the criteria for advance payments
and NASA has determined that reimbursement is not feasible because the
recipient lacks sufficient working capital, NASA may provide cash on a
working capital advance basis. Under this procedure, NASA shall advance
cash to the recipient to cover its estimated disbursement needs for an
initial period generally geared to the awardee's disbursing cycle.
Thereafter, NASA shall reimburse the recipient for its actual cash
disbursements. The working capital advance method of payment shall not
be used for recipients unwilling or unable to provide timely advances
to their subcontractor to meet the subcontractor's actual cash
disbursements.
(g) To the extent available, recipients shall disburse funds
available from repayments to and interest earned on a revolving fund,
program income, rebates, refunds, contract settlements, audit
recoveries and interest earned on such funds before requesting
additional cash payments.
(h) Unless otherwise required by statute, NASA will not withhold
payments for proper charges made by recipients at any time during the
project period unless the conditions in paragraph (h) (1) or (2) of
this section apply.
(1) A recipient has failed to comply with the project objectives,
the terms and conditions of the award, or NASA reporting requirements.
(2) The recipient is delinquent in a debt to the United States as
defined in OMB Circular A-129, ``Managing Federal Credit Programs.''
Under such conditions, NASA may, upon reasonable notice, inform the
recipient that payments shall not be made for obligations incurred
after a specified date until the conditions are corrected or the
indebtedness to the Federal Government is liquidated.
(i) Standards governing the use of banks and other institutions as
depositories of funds advanced under awards are as follows.
(1) Except for situations described in paragraph (i)(2) of this
section, NASA shall not require separate depository accounts for funds
provided to a recipient or establish any eligibility requirements for
depositories for funds provided to a recipient. However, recipients
must be able to account for the receipt, obligation and expenditure of
funds.
(2) Advances of Federal funds shall be deposited and maintained in
insured accounts whenever possible.
(j) Consistent with the national goal of expanding the
opportunities for women-owned and minority-owned business enterprises,
recipients shall be encouraged to use women-owned and minority-owned
banks (a bank which is owned at least 50 percent by women or minority
group members).
(k) Recipients shall maintain advances of Federal funds in interest
bearing accounts, unless the conditions in paragraph (k) (1), (2) or
(3) of this section apply.
(1) The recipient receives less than $120,000 in Federal awards per
year.
(2) The best reasonable available interest bearing account would
not be expected to earn interest in excess of $250 per year on Federal
cash balances.
(3) The depository would require an average or minimum balance so
high that it would not be feasible within the expected Federal and non-
Federal cash resources.
(l) Interest earned on Federal advances deposited in interest-
bearing accounts in excess of $250 per year shall be remitted annually
to Department of Health and Human Services (DHHS), Payment Management
System,
[[Page 38075]]
Rockville, MD 20852. Interest amounts up to $250 per year may be
retained by the recipient for administrative expense. In accordance
with 31 CFR part 206, interest should be remitted electronically
through the Automated Clearing House (ACT) to DHHS. Recipients without
this capability may make the remittance by check. In either case, the
remittance should be payable to DHHS and should indicate the
recipient's Entity Identification Number (EIN) and reason, i.e.,
``Interest earned.''
(m) Except as noted elsewhere in this subpart, only the following
forms shall be authorized for the recipients in requesting advances and
reimbursements. Federal agencies shall not require more than an
original and two copies of these forms.
(1) SF-270, Request for Advance or Reimbursement. [Reserved. Not
used by NASA.]
(2) SF-271, Outlay Report and Request for Reimbursement for
Construction Programs. The SF-271 may be used for requesting
reimbursement for NASA construction programs.
Sec. 1260.123 Cost sharing or matching.
(a) All contributions, including cash and third party in-kind,
shall be accepted as part of the recipient's cost sharing or matching
when such contributions meet all of the following criteria.
(1) Are verifiable from the recipient's records.
(2) Are not included as contributions for any other federally-
assisted project or program.
(3) Are necessary and reasonable for proper and efficient
accomplishment of project or program objectives.
(4) Are allowable under the applicable cost principles.
(5) Are not paid by the Federal Government under another award,
except where authorized by Federal statute to be used for cost sharing
or matching.
(6) Are provided for in the approved budget when required by NASA.
(7) Conform to other provisions of this subpart, as applicable.
(b) Unrecovered indirect costs may be included as part of cost
sharing or matching only with the prior approval of NASA.
(c) Values for recipient contributions of services and property
shall be established in accordance with the applicable cost principles.
If NASA authorizes recipients to donate buildings or land for
construction/facilities acquisition projects or long-term use, the
value of the donated property for cost sharing or matching shall be the
lesser of paragraph (c) (1) or (2) of this section.
(1) The certified value of the remaining life of the property
recorded in the recipient's accounting records at the time of donation.
(2) The current fair market value. However, when there is
sufficient justification, NASA may approve the use of the current fair
market value of the donated property, even if it exceeds the certified
value at the time of donation to the project.
(d) Volunteer services furnished by professional and technical
personnel, consultants, and other skilled and unskilled labor may be
counted as cost sharing or matching if the service is an integral and
necessary part of an approved project or program. Rates for volunteer
services shall be consistent with those paid for similar work in the
recipient's organization. In those instances in which the required
skills are not found in the recipient organization, rates shall be
consistent with those paid for similar work in the labor market in
which the recipient competes for the kind of services involved. In
either case, paid fringe benefits that are reasonable, allowable, and
allocable may be included in the valuation.
(e) When an employer other than the recipient furnishes the
services of an employee, these services shall be valued at the
employee's regular rate of pay (plus an amount of fringe benefits that
are reasonable, allowable, and allocable, but exclusive of overhead
costs), provided these services are in the same skill for which the
employee is normally paid.
(f) Donated supplies may include such items as expendable
equipment, office supplies, laboratory supplies or workshop and
classroom supplies. Value assessed to donated supplies included in the
cost sharing or matching share shall be reasonable and shall not exceed
the fair market value of the property at the time of the donation.
(g) The method used for determining cost sharing or matching for
donated equipment, buildings and land for which title passes to the
recipient may differ according to the purpose of the award, if the
conditions in paragraph (g) (1) or (2) of this section apply.
(1) If the purpose of the award is to assist the recipient in the
acquisition of equipment, buildings or land, the total value of the
donated property may be claimed as cost sharing or matching.
(2) If the purpose of the award is to support activities that
require the use of equipment, buildings or land, normally only
depreciation or use charges for equipment and buildings may be made.
However, the full value of equipment or other capital assets and fair
rental charges for land may be allowed, provided that NASA has approved
the charges.
(h) The value of donated property shall be determined in accordance
with the usual accounting policies of the recipient, with the following
qualifications.
(1) The value of donated land and buildings shall not exceed its
fair market value at the time of donation to the recipient as
established by an independent appraiser (e.g., certified real property
appraiser or General Services Administration representative) and
certified by a responsible official of the recipient.
(2) The value of donated equipment shall not exceed the fair market
value of equipment of the same age and condition at the time of
donation.
(3) The value of donated space shall not exceed the fair rental
value of comparable space as established by an independent appraisal of
comparable space and facilities in a privately-owned building in the
same locality.
(4) The value of loaned equipment shall not exceed its fair rental
value.
(5) The following requirements pertain to the recipient's
supporting records for in-kind contributions from third parties.
(i) Volunteer services shall be documented and, to the extent
feasible, supported by the same methods used by the recipient for its
own employees.
(ii) The basis for determining the valuation for personal service,
material, equipment, buildings and land shall be documented.
Sec. 1260.124 Program income.
(a) The standards set forth in this section shall be used to
account for program income related to projects financed in whole or in
part with Federal funds.
(b) Except as provided in paragraph (h) of this section, program
income earned during the project period shall be retained by the
recipient and, in accordance with the terms and conditions of the
award, shall be used in one or more of the ways listed in the
following.
(1) Added to funds committed to the project by NASA and recipient
and used to further eligible project or program objectives.
(2) Used to finance the non-Federal share of the project or
program.
(3) Deducted from the total project or program allowable cost in
determining the net allowable costs on which the Federal share of costs
is based.
(c) When NASA authorizes the disposition of program income as
[[Page 38076]]
described in paragraphs (b)(1) or (b)(2) of this section, program
income in excess of any limits stipulated shall be used in accordance
with paragraph (b)(3) of this section.
(d) In the event that the program regulations or the terms and
conditions of the award do not specify how program income is to be
used, paragraph (b)(3) of this section shall apply automatically to all
projects or programs except research. For awards that support research,
paragraph (b)(1) shall apply automatically unless the awarding agency
indicates in the terms and conditions another alternative on the award
or the recipient is subject to special award conditions, as indicated
in Sec. 1260.114.
(e) Unless program regulations or the terms and conditions of the
award provide otherwise, recipients shall have no obligation to the
Federal Government regarding program income earned after the end of the
project period.
(f) Unless program regulations or the terms and conditions of the
award provide otherwise, costs incident to the generation of program
income may be deducted from gross income to determine program income,
provided these costs have not been charged to the award.
(g) Proceeds from the sale of property shall be handled in
accordance with the requirements of the Property Standards (See
Secs. 1260.130 through 1260.137).
(h) Unless program regulations or the terms and condition of the
award provide otherwise, recipients shall have no obligation to the
Federal Government with respect to program income earned from license
fees and royalties for copyrighted material, patents, patent
applications, trademarks, and inventions produced under an award.
However, Patent and Trademark Amendments (35 U.S.C. 18) apply to
inventions made under an experimental, developmental, or research
award.
Sec. 1260.125 Revision of budget and program plans.
(a) The budget plan is the financial expression of the project or
program as approved during the award process. It may include either the
Federal and non-Federal share, or only the Federal share, depending
upon requirements in these regulations. It shall be related to
performance for program evaluation purposes whenever appropriate.
(b) Recipients are required to report deviations from budget and
program plans, and request prior approvals for budget and program plan
revisions, in accordance with this section.
(c) For nonconstruction awards, recipients shall request prior
approvals from NASA for one or more of the following program or budget
related reasons.
(1) Change in the scope or the objective of the project or program
(even if there is no associated budget revision requiring prior written
approval).
(2) Change in a key person specified in the application or award
document.
(3) The absence for more than three months, or a 25 percent
reduction in time devoted to the project, by the approved project
director or principal investigator.
(4) The need for additional Federal funding.
(5) The transfer of amounts budgeted for indirect costs to absorb
increases in direct costs, or vice versa, if approval is required by
NASA.
(6) The inclusion, unless waived by NASA, of costs that require
prior approval in accordance with OMB Circular A-21, ``Cost Principles
for Institutions of Higher Education;'' OMB Circular A-122, ``Cost
Principles for Non-Profit Organizations;'' 45 CFR part 74 Appendix E,
``Principles for Determining Costs Applicable to Research and
Development under Grants and Contracts with Hospitals;'' or 48 CFR part
31, ``Contract Cost Principles and Procedures,'' as applicable.
(7) The transfer of funds allotted for training allowances (direct
payment to trainees) to other categories of expense.
(8) Unless described in the application and funded in the approved
awards, the subaward, transfer or contracting out of any work under an
award. This provision does not apply to the purchase of supplies,
material, equipment or general support services.
(d) No other prior approval requirements for specific items may be
imposed unless a deviation has been approved by OMB.
(e) Except for requirements listed in paragraphs (c)(1) and (c)(4)
of this section, NASA is authorized, at its option, to waive cost-
related and administrative prior written approvals required by this
Part and OMB Circulars A-21 and A-122. Such waivers may include
authorizing recipients to do any one or more of the following.
(1) Incur pre-award costs 90 calendar days prior to award or more
than 90 calendar days with the prior approval of NASA. All pre-award
costs are incurred at the recipient's risk (i.e., NASA is under no
obligation to reimburse such costs if for any reason the recipient does
not receive an award or if the award is less than anticipate and
inadequate to cover such costs).
(2) Initiated a non-time extension of the expiration date of the
award of up to 12 months unless one or more of the following conditions
apply. For one-time extensions, the recipient must notify NASA in
writing with the supporting reasons and revised expiration date at
least 10 days before the expiration date specified in the award. This
one-time extension may not be exercised merely for the purpose of using
unobligated balances.
(i) The terms and conditions of award prohibit the extension.
(ii) The extension requires additional Federal funds.
(iii) The extension involves any change in the approved objectives
or scope of the project.
(3) Carry forward unobligated balances to subsequent funding
periods.
(4) For awards that support research, unless NASA provides
otherwise in the award or in the agency's regulations, the prior
approval requirements described in paragraph (e) of this section are
automatically waived (i.e., recipients need not obtain such prior
approvals) unless one of the conditions included in paragraph (e)(2) of
this section applies.
(f) Program regulations may restrict the transfer of funds among
direct cost categories or programs, functions and activities for awards
in which NASA's share of the project exceeds $100,000 and the
cumulative amount of such transfers exceeds or is expected to exceed 10
percent of the total budget as last approved by NASA. However, no
program regulation shall permit a transfer that would cause any Federal
appropriation or part thereof to be used for purposes other than those
consistent with the original intent of the appropriation.
(g) All other changes to nonconstruction budgets, except for the
changes described in paragraph (j), do not require prior approval.
(h) For construction awards, recipients shall request prior written
approval promptly from NASA for budget revisions whenever the
conditions in paragraphs (h)(1), (2) or (3) or this section apply.
(1) The revision results from changes in the scope or the objective
of the project or program.
(2) The need arises for additional Federal funds to complete the
project.
(3) A revision is desired which involves specific costs for which
prior written approval requirements may be imposed consistent with
applicable OMB cost principles listed in Sec. 1260.127.
(i) No other prior approval requirements for specific items may be
imposed unless a deviation has been approved by OMB.
[[Page 38077]]
(j) When NASA makes an award that provides support for both
construction and nonconstruction work, NASA may require the recipient
to request prior approval from NASA before making any fund or budget
transfers between the two types of work supported.
(k) For both construction and nonconstruction awards, NASA shall
require recipients to notify NASA in writing promptly whenever the
amount of Federal authorized funds is expected to exceed the needs of
the recipient for the project period by more than $5,000 or five
percent of the Federal award, whichever is greater. This notification
shall not be required if an application for additional funding is
submitted for a continuation award.
(l) When requesting approval for budget revisions, recipients shall
use the budget forms that were used in the application unless NASA
indicates a letter of request suffices.
(m) Within 30 calendar days from the date of receipt of the request
for budget revisions, NASA shall review the request and notify the
recipient whether the budget revisions have been approved. If the
revision is still under consideration at the end of 30 calendar days,
NASA shall inform the recipient in writing of the date when the
recipient may expect the decision.
Sec. 1260.126 Non-Federal audits.
(a) Recipients that are institutions of higher education or other
non-profit organizations shall be subject to the audit requirements
contained in OMB Circular A-133, ``Audits of Institutions of Higher
Education and Other Non-Profit Institutions.''
(b) State and local governments shall be subject to the audit
requirements contained in the Single Audit Act (31 U.S.C. 7501-7) and
NASA regulations implementing OMB Circular A-128, ``Audits of State and
Local Governments.''
(c) Hospitals not covered by the audit provisions of OMB Circular
A-133 shall be subject to the audit requirements of NASA.
(d) Commercial organizations shall be subject to the audit
requirements of NASA or the prime recipient as incorporated into the
award document.
Sec. 1260.127 Allowable costs.
For each kind of recipient, there is a set of Federal principles
for determining allowable costs. Allowability of costs shall be
determined in accordance with the cost principles applicable to the
entity incurring the costs. Thus, allowability of costs incurred by
State, local or federally-recognized Indian tribal governments is
determined in accordance with the provisions of OMB Circular A-87,
``Cost Principles for State and Local Governments.'' The allowability
of costs incurred by non-profit organizations is determined in
accordance with the provisions of OMB Circular A-122, ``Cost Principles
for Non-Profit Organizations.'' The allowability of costs incurred by
institutions of higher education is determined in accordance with the
provisions of OMB Circular A-21, ``Cost Principles for Educational
Institutions.'' The allowability of costs incurred by hospitals is
determined in accordance with the provisions of Appendix E of 45 CFR
part 74, ``Principles for Determining Costs Applicable to Research and
Development Under Grants and Contracts with Hospitals.'' The
allowability of costs incurred by commercial organizations and those
non-profit organizations listed in Attachment C to Circular A-122 is
determined in accordance with the provisions of the Federal Acquisition
Regulation (FAR) at 48 CFR part 31.
Sec. 1260.128 Period of availability of funds.
Where a funding period is specified, a recipient may charge to the
grant only allowable costs resulting from obligations incurred during
the funding period and any pre-award costs authorized by NASA.
Property Standards
Sec. 1260.130 Purpose of property standards.
Sections 1260.131 through 1260.137 set forth uniform standards
governing management and disposition of property furnished by the
Federal Government whose cost was charged to a project supported by a
Federal award. Recipients shall observe these standards under awards
and NASA will not impose additional requirements, unless specifically
required by Federal statue. The recipient may use its own property
management standards and procedures provided it observes the provisions
of Secs. 1260.131 through 1260.137.
Sec. 1260.131 Insurance coverage.
Recipients shall, at a minimum, provide the equivalent insurance
coverage for real property and equipment acquired with Federal funds as
provided for property owned by the recipient. Federally-owned property
need not be insured unless required by the terms and conditions of the
award.
Sec. 1260.132 Real property.
Unless otherwise provided by statue, the requirements concerning
the use and disposition of real property acquired in whole or in part
under awards are as follows:
(a) Title to real property shall vest in the recipient subject to
the condition that the recipient shall use the real property for the
authorized purpose of the project as long as it is needed and shall not
encumber the property without approval of NASA.
(b) The recipient shall obtain written approval by NASA for the use
of real property in other federally-sponsored projects when the
recipient determines that the property is no longer needed for the
purpose of the original project. Use in other projects shall be limited
to those under federally-sponsored projects (i.e., awards) or programs
that have purposes consistent with those authorized for support by
NASA.
(c) When the real property is no longer needed as provided in
paragraph (a) and (b), the recipient shall request disposition
instructions from NASA or its successor Federal awarding agency. NASA
shall observe one or more of the following disposition instructions.
(1) The recipient may be permitted to retain title without further
obligation to the Federal Government after it compensates the Federal
Government for the percentage of the current fair market value of the
property attributable to the Federal participation in the project.
(2) The recipient may be directed to sell the property under
guidelines provided by NASA and pay the Federal Government for that
percentage of the current fair market value of the property
attributable to the Federal participation in the project (after
deducting actual and reasonable selling and fix-up expenses, if any,
from the sales proceeds). When the recipient is authorized or required
to sell the property, proper sales procedures shall be established that
provide for competition to the extent practicable and result in the
highest possible return.
(3) The recipient may be directed to transfer title to the property
to the Federal Government or to an eligible third party provided that,
in such cases, the recipient shall be entitled to compensation for its
attributable percentage of the current fair market value of the
property.
Sec. 1260.133 Federally-owned and exempt property.
(a) Federally-owned property. (1) Title to federally-owned property
remains vested in the Federal Government. Recipients shall submit
annually an inventory listing of federally-owned property in their
custody to NASA. Upon completion of the award or when the property is
no longer needed, the recipient shall report the property to
[[Page 38078]]
NASA for further Federal agency utilization.
(2) If NASA has no further need for the property, it shall be
declared excess and reported to the General Services Admiration, unless
NASA has statutory authority to dispose of the property by alternative
methods (e.g, the authority provided by the Federal Technology Transfer
Act (15 U.S.C. 3710 (I)) to donate research equipment to educational
and non-profit organizations in accordance with E.O. 12821, ``Improving
Mathematics and Science Education in Support of the National Education
Goals.'') Appropriate instructions shall be issued to the recipient by
NASA.
(b) Exempt property. Title to nonexpendable personal property
acquired with grant funds shall be vested in the recipient upon
acquisition, unless it is determined that to do so is not in
furtherance of the objectives of NASA. When title is vested in the
recipient, the recipient shall have no other obligation or
accountability to the Federal Government for its use or disposition,
except as provided in Sec. 1260.27.
Sec. 1260.134 Equipment.
(a) Title to equipment acquired by a recipient with Federal funds
shall vest in the recipient, subject to conditions of this section.
(b) The recipient shall not use equipment acquired with Federal
funds to provide services to non-Federal outside organizations for a
fee that is less than private companies charge for equivalent services,
unless specifically authorized by Federal statute, for as long as the
Federal Government retains an interest in the equipment.
(c) The recipient shall use the equipment in the project or program
for which it was acquired as long as needed, whether nor not the
project or program continues to be supported by Federal funds and shall
not encumber the property without approval of NASA. When no longer
needed for the original project or program, the recipient shall use the
equipment in connection with its other federally-sponsored activities,
in the following order of priority:
(1) Activities sponsored by NASA, then
(2) Activities sponsored by other Federal agencies.
(d) During the time that equipment is used on the project or
program for which it was acquired, the recipient shall make it
available for use on other projects or programs if such other use will
not interfere with the work on the project or program for which the
equipment was originally acquired. First preference for such other use
shall be given to other projects or programs sponsored by NASA; second
preference shall be given to projects or programs sponsored by other
Federal agencies. If the equipment is owned by the Federal Government,
use on other activities not sponsored by the Federal Government shall
be permissible if authorized by NASA. User charges shall be treated as
program income.
(e) When acquiring replacement equipment, the recipient may use the
equipment to be replaced as trade-in or sell the equipment and use the
proceeds to offset the costs of the replacement equipment subject to
the approval of NASA.
(f) The recipients's property management standards for equipment
acquired with Federal funds and federally-owned equipment shall include
all of the following.
(1) Equipment records shall be maintained accurately and shall
include the following information.
(i) A description of the equipment.
(ii) Manufacturer's serial number, model number, Federal stock
number, national stock number, or other identification number.
(iii) Source of the equipment, including the award number.
(iv) Whether title vests in the recipient or the Federal
Government.
(v) Acquisition date (or date received, if the equipment was
furnished by the Federal Government) and cost.
(vi) Information from which one can calculate the percentage of
Federal participation in the cost of the equipment (not applicable to
equipment furnished by the Federal Government).
(vii) Location and condition of the equipment and the date the
information was reported.
(viii) Unit acquisition cost.
(ix) Ultimate disposition data, including date of disposal and
sales price or the method used to determine current fair market value
where a recipient compensates NASA for its share.
(2) Equipment owned by the Federal Government shall be identified
to indicate Federal ownership.
(3) A physical inventory of equipment shall be taken and the
results reconciled with the equipment records at least once every two
years. Any differences between quantities determined by the physical
inspection and those shown in the accounting records shall be
investigated to determine the causes of the difference. The recipient
shall, in connection with the inventory, verify the existence, current
utilization, and continued need for the equipment.
(4) A control system shall be in effect to insure adequate
safeguards to prevent loss, damage, or theft of the equipment. Any
loss, damage, or theft of equipment shall be investigated and fully
documented; if the equipment was owned by the Federal Government, the
recipient shall promptly notify NASA.
(5) Adequate maintenance procedures shall be implemented to keep
the equipment in good condition.
(6) Where the recipient is authorized or required to sell the
equipment, proper sales procedures shall be established which provide
for competition to the extent practicable and result in the highest
possible return.
(g) When the recipient no longer needs the equipment, the equipment
may be used for other activities in accordance with the following
standards. For equipment with a current per unit fair market value of
$5,000 or more, the recipient may retain the equipment for other uses
provided that compensation is made to the original Federal awarding
agency or its successor. The amount of compensation shall be computed
by applying the percentage of Federal participation in the cost of the
original project or program to the current fair market value of the
equipment. If the recipient has no need for the equipment, the
recipient shall request disposition instructions from NASA. NASA shall
determine whether the equipment can be used to meet NASA's
requirements. If no requirement exists within NASA, the availability of
the equipment shall be reported to the General Services Administration
by NASA to determine whether a requirement for the equipment exists in
other Federal agencies. NASA shall issue instructions to the recipient
no later than 120 calendar days after the recipient's request and the
following procedures shall govern.
(1) If so instructed or if disposition instructions are not issued
within 120 calendar days after the recipient's request, the recipient
shall sell the equipment and reimburse NASA an amount computed by
applying to the sales proceeds the percentage of Federal participation
in the cost of the original project or program. However, the recipient
shall be permitted to deduct and retain from the Federal share $500 or
ten percent of the proceeds, whichever is less, for the recipient's
selling and handling expenses.
(2) If the recipient is instructed to ship the equipment elsewhere,
the recipient shall be reimbursed by the Federal Government by an
amount which i
FR Doc. 96-18363 Grants and Agreements With Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations, Uniform Administrative Requirements (OMB A-110 Implementation)
s computed by applying the percentage of the recipient's
[[Page 38079]]
participation in the cost of the original project or program to the
current fair market value of the equipment, plus any reasonable
shipping or interim storage costs incurred.
(3) If the recipient is instructed to otherwise dispose of the
equipment, the recipient shall be reimbursed by NASA for such costs
incurred in its disposition.
(4) NASA may reserve the right to transfer the title to the Federal
Government or to a third party named by NASA when such third party is
otherwise eligible under existing statutes. Such transfer shall be
subject to the following standards.
(i) The equipment shall be appropriately identified in the award or
otherwise made known to the recipient in writing.
(ii) NASA shall issue disposition instructions within 120 calendar
days after receipt of a final inventory. The final inventory shall list
all equipment acquired with grant funds and federally-owned equipment.
If NASA fails to issue disposition instructions within the 120 calendar
day period, the recipient shall apply the standards of this section, as
appropriate.
(iii) When NASA exercises its right to take title, the equipment
shall be subject to the provisions for federally-owned equipment.
Sec. 1260.135 Supplies and other expendable property.
(a) Title to supplies and other expendable property shall vest in
the recipient upon acquisition. If there is a residual inventory of
unused supplies exceeding $5,000 in total aggregate value upon
termination or completion of the project or program and the supplies
are not needed for any other federally-sponsored project or program,
the recipient shall retain the supplies for use on non-Federal
sponsored activities or sell them, but shall, in either case,
compensate the Federal Government for its share. The amount of
compensation shall be computed in the same manner as for equipment.
(b) The recipient shall not use supplies acquired with Federal
funds to provide services to non-Federal outside organizations for a
fee that is less than private companies charge for equivalent services,
unless specifically authorized by Federal statute as long as the
Federal Government retains an interest in the supplies.
Sec. 1260.136 Intangible property.
(a) The recipient may assert copyright in any work that is subject
to copyright and was created, or for which copyright ownership was
purchased, under an award. NASA is granted a royalty-free, nonexclusive
and irrevocable right to reproduce, publish, or otherwise use the work
for Federal purposes, and to authorize others to do so.
(b) Recipients are subject to applicable regulations governing
patents and inventions, including government-wide regulations issued by
the Department of Commerce at 37 CFR part 401, ``Rights to Inventions
Made by Nonprofit Organizations and Small Business Firms Under
Government Grants, Contracts and Cooperative Agreements.''
(c) NASA has the right to:
(1) Obtain, reproduce, publish or otherwise use the data first
produced under an award.
(2) Authorize others to receive, reproduce, publish, or otherwise
use such data for Federal purposes.
(d) Title to intellectual property and debt instruments acquired
under an award or subcontract vests upon acquisition in the recipient.
The recipient shall use that property for the originally-authorized
purpose, and the recipient shall not encumber the property without
approval of NASA. When no longer needed for the originally authorized
purpose, disposition of the intangible property shall occur in
accordance with the provisions of Sec. 1260.134(g).
(e) Due to the substantial involvement on the part of NASA under a
cooperative agreement, intellectual property may be produced by Federal
employees and NASA contractors tasked to perform NASA assigned
activities. Title to intellectual property created under the
cooperative agreement by NASA or its contractors will initially vest
with the creating party. Certain rights may be exchanged with the
recipient.
Sec. 1260.137 Property trust relationship.
Real property, equipment, intangible property and debt instruments
that are acquired or improved with Federal funds shall be held in trust
by the recipient as trustee for the beneficiaries of the project or
program under which the property was acquired or improved. NASA may
require recipients to record liens or other appropriate notices of
record to indicate that personal or real property has been acquired or
improved with Federal funds and that use and disposition conditions
apply to the property.
Procurement Standards
Sec. 1260.140 Purpose of procurement standards.
Sections 1260.141 through 1260.148 set forth standards for use by
recipients in establishing procedures for the procurement of supplies
and other expendable property, equipment, real property and other
services with Federal funds. These standards are furnished to ensure
that such materials and services are obtained in an effective manner
and in compliance with the provisions of applicable Federal statutes
and executive orders. No additional procurement standards or
requirements shall be imposed by NASA upon recipients, unless
specifically required by Federal statute or executive order or approved
in accordance with the deviation procedures of Sec. 1260.6.
Sec. 1260.141 Recipient responsibilities.
The standards contained in this section do not relieve the
recipient of the contractual responsibilities arising under its
contract(s). The recipient is the responsible authority, without
recourse to NASA, regarding the settlement and satisfaction of all
contractual and administrative issues arising out of procurements
entered into in support of an award or other agreement. This includes
disputes, claims, protests of award, source evaluation or other matters
of a contractual nature. Matters concerning violation of statute are to
be referred to such Federal, State or local authority as may have
proper jurisdiction.
Sec. 1260.142 Codes of conduct.
The recipient shall maintain written standards of conduct governing
the performance of its employees engaged in the award and
administration of contracts. No employee, officer, or agent shall
participate in the selection, award, or administration of a contract
supported by Federal funds if a real or apparent conflict of interest
would be involved. Such a conflict would arise when the employee,
officer, or agent, any member of his or her immediate family, his or
her partner, or an organization which employs or is about to employ any
of the parties indicated herein, has a financial or other interest in
the firm selected for an award. The officers, employees, and agents of
the recipient shall neither solicit nor accept gratuities, favors, or
anything of monetary value from contractors, or parties to
subagreements. However, recipients may set standards for situations in
which the financial interest is not substantial or the gift is an
unsolicited item of nominal value. The standards of conduct shall
provide for disciplinary actions to be applied for violations of such
standards by officers, employees, or agents of the recipient.
[[Page 38080]]
Sec. 1260.143 Competition.
All procurement transactions shall be conducted in a manner to
provide, to the maximum extent practical, open and free competition.
The recipient shall be alert to organizational conflicts of interest as
well as noncompetitive practices among contractors that may restrict or
eliminate competition or otherwise restrain trade. In order to ensure
objective contractor performance and eliminate unfair competitive
advantage, contractors that develop or draft specifications,
requirements, statements of work, invitations for bids and/or requests
for proposals shall be excluded from competing for such procurements.
Awards shall be made to the bidder or offeror whose bid or offer is
responsive to the solicitation and is most advantageous to the
recipient, price, quality and other factors considered. Solicitations
shall clearly set forth all requirements that the bidder or offeror
shall fulfill in order for the bid or offer to be evaluated by the
recipient. Any and all bids or offers may be rejected when it is in the
recipient's interest to do so.
Sec. 1260.144 Procurement procedures.
(a) All recipients shall establish written procurement procedures.
These procedures shall provide for, at a minimum, that the conditions
in paragraphs (a) (1), (2) and (3) of this section apply.
(1) Recipients avoid purchasing unnecessary items.
(2) Where appropriate, an analysis is made of lease and purchase
alternatives to determine which would be the most economical and
practical procurement for the Federal Government.
(3) Solicitations for goods and services provide for all of the
following.
(i) A clear and accurate description of the technical requirements
for the material, product or service to be procured. In competitive
procurements, such a description shall not contain features which
unduly restrict competition.
(ii) Requirements which the bidder/offeror must fulfill and all
other factors to be used in evaluating bids or proposals.
(iii) A description, whenever practicable, of technical
requirements in terms of functions to be performed or performance
required, including the range of acceptable characteristics or minimum
acceptable standards.
(iv) The specific features of ``brand name or equal'' descriptions
that bidders are required to meet when such items are included in the
solicitation.
(v) The acceptance, to the extent practicable and economically
feasible, of products and services dimensioned in the metric system of
measurement.
(vi) Preference, to the extent practicable and economically
feasible, for products and services that conserve natural resources and
protect the environment and are energy efficient.
(b) Positive efforts shall be made by recipients to utilize small
businesses, minority-owned firms, and women's business enterprises,
whenever possible. Recipients of NASA awards shall take all of the
following steps to further this goal.
(1) Ensure that small businesses, minority-owned firms, and women's
business enterprises are used to the fullest extent practicable.
(2) Make information on forthcoming opportunities available and
arrange time frames for purchases and contracts to encourage and
facilitate participation by small businesses, minority-owned firms, and
women's business enterprises.
(3) Consider in the contract process whether firms competing for
larger contracts intend to subcontract with small businesses, minority-
owned firms, and women's business enterprises.
(4) Encourage contracting with consortiums of small businesses,
minority-owned firms and women's business enterprises when a contract
is too large for one of these firms to handle individually.
(5) Use the services and assistance, as appropriate, of such
organizations as the Small Business Administration and the Department
of Commerce's Minority Business Development Agency in the solicitation
and utilization of small businesses, minority-owned firms and women's
business enterprises.
(c) The type of procuring instruments used (e.g., fixed price
contracts, cost reimbursable contracts, purchase orders, and incentive
contracts) shall be determined by the recipient but shall be
appropriate for the particular procurement and for promoting the best
interest of the program or project involved. The ``cost-plus-a-
percentage-of-cost'' or ``percentage of construction cost'' methods of
contracting shall not be used.
(d) Contracts shall be made only with responsible contractors who
possess the potential ability to perform successfully under the terms
and conditions of the proposed procurement. Consideration shall be
given to such matters as contractor integrity, record of past
performance, financial and technical resources or accessibility to
other necessary resources. In certain circumstances, contracts with
certain parties are restricted by 14 CFR part 1265, the implementation
of Executive Order 12549 and 12689, ``Debarment and Suspension.''
(e) Recipients shall, on request, make available for NASA, pre-
award review and procurement documents, such as request for proposals
or invitations for bids, independent cost estimates, etc., when any of
the following conditions apply.
(1) A recipient's procurement procedures or operation fails to
comply with the procurement standards in NASA's implementation of this
Regulation.
(2) The procurement is expected to exceed the small purchase
threshold and is to be awarded without competition or only one bid or
offer is received in response to a solicitation.
(3) The procurement, which is expected to exceed the small purchase
threshold, specifies a ``brand name'' product.
(4) The proposed award over the small purchase threshold is to be
awarded to other than the apparent low bidder under a sealed bid
procurement.
(5) A proposed contract modification changes the scope of a
contract or increases the contract amount by more than the amount of
the small purchase threshold.
Sec. 1260.145 Cost and price analysis.
Some form of cost or price analysis shall be made and documented in
the procurement files in connection with every procurement action.
Price analysis may be accomplished in various ways, including the
comparison of price quotations submitted, market prices and similar
indicia, together with discounts. Cost analysis is the review and
evaluation of each element of cost to determine reasonableness,
allocability and allowability.
Sec. 1260.146 Procurement records.
Procurement records and files for purchases in excess of the small
purchase threshold shall include the following at a minimum.
(a) Basis for contractor selection,
(b) Justification for lack of competition when competitive bids or
offers are not obtained, and
(c) Basis for award cost or price.
Sec. 1260.147 Contract administration.
A system for contract administration shall be maintained to ensure
contractor conformance with the terms, conditions and specifications of
the contract and to ensure adequate and timely follow up of all
purchases. Recipients shall evaluate contractor performance and
document, as appropriate, whether contractors have met the terms,
conditions and specifications of the contract.
[[Page 38081]]
Sec. 1260.148 Contract provisions.
The recipient shall include, in addition to provisions to define a
sound and complete agreement, the following provisions in all
contracts. The following provisions shall also be applied to
subcontracts.
(a) Contracts in excess of the small purchase threshold shall
contain contractual provisions or conditions that allow for
administrative, contractual, or legal remedies in instances in which a
contractor violates or breaches the contract terms, and provide for
such remedial actions as may be appropriate.
(b) All contracts in excess of the small purchase threshold shall
contain suitable provisions for termination by the recipient, including
the manner by which termination shall be effected and the basis for
settlement. In addition, such contracts shall describe conditions under
which the contract may be terminated for default as well as conditions
where the contract may be terminated because of circumstances beyond
the control of the contractor.
(c) Except as otherwise required by statute, an award that requires
the contracting (or subcontracting) for construction or facility
improvements shall provide for the recipient to follow its own
requirements relating to bid guarantees, performance bonds, and payment
bonds unless the construction contract or subcontract exceeds $100,000.
For those contracts or subcontracts exceeding $100,000, NASA may accept
the bonding policy and requirements of the recipient, provided the NASA
has made a determination that the Federal Government's interest is
adequately protected. If such a determination has not been made, the
minimum requirements shall be as follows.
(1) A bid guarantee from each bidder equivalent to five percent of
the bid price. The ``bid guarantee'' shall consist of a firm commitment
such as a bid bond, certified check, or other negotiable instrument
accompanying a bid as assurance that the bidder shall, upon acceptance
of his bid, execute such contractual documents as may be required
within the time specified.
(2) A performance bond on the part of the contractor for 100
percent of the contract price. A ``performance bond'' is one executed
in connection with a contract to secure fulfillment of all the
contractor's obligations under such contract.
(3) A payment bond on the part of the contractor for 100 percent of
the contract price. A ``payment bond'' is one executed in connection
with a contract to assure payment as required by statute of all persons
supplying labor and material in the execution of the work provided for
in the contract.
(4) Where bonds are required in the situations described herein,
the bonds shall be obtained from companies holding certificates of
authority as acceptable sureties pursuant to 31 CFR part 223, ``Surety
Companies Doing Business with the United States.''
(d) All negotiated contracts (except those for less than the small
purchase threshold) awarded by recipients shall include a provision to
the effect that the recipient, NASA, the Comptroller General of the
United States, or any of their duly authorized representatives, shall
have access to any books, documents, papers and records of the
contractor which are directly pertinent to a specific program for the
purpose of making audits, examinations, excerpts and transcriptions.
(e) All contracts, including small purchases, awarded by recipients
and their contractors shall contain the procurement provisions of
Appendix A to this subpart, as applicable.
Reports and Records
Sec. 1260.150 Purpose of reports and records.
Sections 1260.151 through 1260.153 set forth the procedures for
monitoring and reporting on the recipient's financial and program
performance and the necessary standard reporting forms. They also set
forth record retention requirements.
Sec. 1260.151 Monitoring and reporting program performance.
(a) Recipients are responsible for managing and monitoring each
project, program, subcontract, function or activity supported by the
award. Recipients shall monitor subcontracts to ensure subcontractors
have met the audit requirements as delineated in Sec. 1260.126.
(b) The terms and conditions of the award shall prescribe the
frequency with which the performance reports shall be submitted. Except
as provided in Sec. 1260.151(f), performance reports shall not be
required more frequently than quarterly or, less frequently than
annually. Annual reports shall be due 90 calendar days after the grant
year; quarterly or semi-annual reports shall be due 30 days after the
reporting period. NASA may require annual reports before the
anniversary dates of multiple year awards in lieu of these
requirements. The final performance reports are due 90 calendar days
after the expiration or termination of the award.
(c) If inappropriate, a final technical or performance report shall
not be required after completion of the project.
(d) When required, performance reports shall generally contain, for
each award, brief information on each of the following.
(1) A comparison of actual accomplishments with the goals and
objectives established for the period, the findings of the
investigator, or both. Whenever appropriate and the output of programs
or projects can be readily quantified, such quantitative data should be
related to cost data for computation of unit costs.
(2) Reasons why established goals were not met, if appropriate.
(3) Other pertinent information including, when appropriate,
analysis and explanation of cost overruns or high unit costs.
(e) Recipients shall not be required to submit more than the
original and two copies of performance reports.
(f) Recipients shall immediately notify NASA of developments that
have a significant impact on the award-supported activities. Also,
notification shall be given in the case of problems, delays, or adverse
conditions which materially impair the ability to meet the objectives
of the award. This notification shall include a statement of the action
taken or contemplated, and any assistance needed to resolve the
situation.
(g) NASA may make site visits, as needed.
(h) NASA shall comply with clearance requirements of 5 CFR part
1320 when requesting performance data from recipients.
Sec. 1260.152 Financial reporting.
(a) When funds are advanced to recipients, each recipient is
required to submit the SF-272, Report of Federal Cash Transactions,
and, when necessary, its continuation sheet, SF 272a. NASA uses this
report to monitor cash advanced to the recipient and obtain
disbursement information for each agreement with the recipient.
(b) NASA requires forecasts of the recipient's cash requirements
for each of the four months following the quarter being reported, in
the ``Remarks'' section of the report.
(c) Recipients are required to submit the original of the report
for the Financial Management Office of the NASA Center which issued the
agreement 15 working days following the end of each Federal fiscal
quarter. Copies will be furnished to the appropriate grants officer
(see Sec. 1260.26(c)).
[[Page 38082]]
Sec. 1260.153 Retention and access requirements for records.
(a) This section sets forth requirements for record retention and
access to records for awards to recipients. NASA shall not impose any
other record retention or access requirements upon recipients.
(b) Financial records, supporting documents, statistical records,
and all other records pertinent to an award shall be retained for a
period of three years from the date of submission of the final
expenditure report or, for awards that are renewed quarterly or
annually, from the date of the submission of the quarterly or annual
financial report, as authorized by NASA. The only exceptions are the
following.
(1) If any litigation, claim, or audit is started before the
expiration of the three-year period, the records shall be retained
until all litigation, claims or audit findings involving the records
have been resolved and final action taken.
(2) Records for real property and equipment acquired with Federal
funds shall be retained for 3 years after final disposition.
(3) When records are transfered to or maintained by NASA, the 3-
year retention requirement is not applicable to the recipient.
(4) Indirect cost rate proposals, cost allocations plans, etc. as
specified in section 1260.153(g).
(c) Copies of original records may be substituted for the original
records if authorized by NASA.
(d) NASA shall request transfer of certain records to its custody
from recipients when it determines that the records possess long term
retention value. However, in order to avoid duplicate record keeping,
NASA may make arrangements for recipients to retain any records that
are continuously needed for joint use.
(e) NASA, the Inspector General, Comptroller General of the United
States, or any of their duly authorized representatives, have the right
of timely and unrestricted access to any books, documents, papers, or
other records of recipients that are pertinent to the awards, in order
to make audits, examinations, excerpts, transcripts and copies of such
documents. This right also includes timely and reasonable access to a
recipient's personnel for the purpose of interview and discussion
related to such documents. The rights of access in this paragraph are
not limited to the required retention period, but shall last as long as
records are retained.
(f) Unless required by statute, NASA shall place no restrictions on
recipients that limit public access to the records of recipients that
are pertinent to an award, except when NASA can demonstrate that such
records shall be kept confidential and would have been exempted from
disclosure pursuant to the Freedom of Information Act (5 U.S.C. 552) if
the records have belonged to NASA.
(g) Indirect cost rate proposals, cost allocations plan, etc.
Paragraphs (g)(1) and (g)(2) of this section apply to the following
types of documents, and their supporting records: Indirect cost rate
computations or proposals, cost allocation plans, and any similar
accounting computations of the rate at which a particular group of
costs is chargeable (such as computer usage chargeback rates or
composite fringe benefit rates).
(1) If submitted for negotiation. If the recipient submits to NASA
or the subrecipient submits to the recipient the proposal, plan, or
other computation to form the basis for negotiation of the rate, then
the 3-year retention period for its supporting records starts on the
date of such submission.
(2) If not submitted for negotiation. If the recipient is not
required to submit to NASA or the subrecipient is not required to
submit to the recipient the proposal, plan, or other computation for
negotiation purposes, then the 3-year retention period for the
proposal, plan, or other computation and its supporting records starts
at the end of the fiscal year (or other accounting period) covered by
the proposal, plan, or other computation.
Termination and Enforcement
Sec. 1260.160 Purpose of termination and enforcement.
Sections 1260.161 and 1260.162 set forth uniform suspension,
termination and enforcement procedures.
Sec. 1260.161 Termination.
(a) Awards may be terminated in whole or in part only if the
conditions in paragraph (a)(1), (2) or (3) of this section apply.
(1) By NASA, if a recipient materially fails to comply with the
terms and conditions of an award.
(2) By NASA with the consent of the recipient, in which case the
two parties shall agree upon the termination conditions, including the
effective date and, in the case of partial termination, the portion to
be terminated.
(3) By the recipient upon sending to NASA written notification
setting forth the reasons for such termination, the effective date,
and, in the case of partial termination, the portion to be terminated.
However, if NASA determines in the case of partial termination that the
reduced or modified portion of the grant will not accomplish the
purposes for which the grant was made, it may terminate the grant in
its entirety under either paragraphs (a)(1) or (2) or this section.
(b) If costs are allowed under an award, the responsibilities of
the recipient referred to in Sec. 1260.171(a), including those for
property management as applicable, shall be considered in the
termination of the award, and provision shall be made for continuing
responsibilities of the recipient after termination, as appropriate.
Sec. 1260.162 Enforcement.
(a) Remedies for noncompliance. If a recipient materially fails to
comply with the terms and conditions of an award, whether stated in a
Federal statute, regulation, assurance, application, or notice of
award, NASA may, in addition to imposing any of the special conditions
outlined in Sec. 1260.114, take one or more of the following actions,
as appropriate in the circumstances.
(1) Temporarily withhold cash payments pending correction of the
deficiency by the recipient or more severe enforcement action by NASA.
(2) Disallow (that is, deny both use of funds and any applicable
matching credit for) all or part of the cost of the activity or action
not in compliance.
(3) Wholly or partly suspend or terminate the current award.
(4) Withhold further awards.
(5) Take other remedies that may be legally available.
(b) Hearings and appeals. In taking an enforcement action, NASA
shall provide the recipient an opportunity for hearing, appeal, or
other administrative proceeding to which the recipient is entitled
under any statue or regulation applicable to the action involved.
(c) Effects of suspension and termination. Costs of a recipient
resulting from obligations incurred by the recipient during a
suspension or after termination of an award are not allowable unless
NASA expressly authorizes them in the notice of suspension or
termination or subsequently. Other recipient costs during suspension or
after termination which are necessary and not reasonably avoidable are
allowable if the conditions in paragraphs (c) (1) and (2) of this
section apply.
(1) The costs results from obligations which were properly incurred
by the recipient before the effective date of suspension or
termination, are not in anticipation of it, and in the case of a
termination, are noncancellable.
[[Page 38083]]
(2) The costs would be allowable if the award were not suspended or
expired normally at the end of the funding period in which the
termination takes effect.
(d) Relationship to debarment and suspension. The enforcement
remedies identified in this section, including suspension and
termination, do not preclude a recipient from being subject to
debarment and suspension under E.O.'s 12549 and 12689 and 14 CFR part
1265 (see Section 1260.113).
After-The Award Requirements
Sec. 1260.170 Purpose.
Sections 1260.171 through 1260.173 contain closeout procedures and
other procedures for subsequent disallowances and adjustments.
Sec. 1260.171 Closeout procedures.
(a) Recipients shall submit, within 90 calendar days after the date
of completion of the award, all financial, performance, and other
reports as required by the terms and conditions of the award. NASA may
approve extensions when requested by the recipient.
(b) Unless NASA authorizes an extension, a recipient shall
liquidate all obligations incurred under the award not later than 90
calendar days after the funding period or the date of completion as
specified in the terms and conditions of the award or in agency
implementing instructions.
(c) NASA shall make prompt payments to a recipient for allowable
reimbursable costs under the award being closed out.
(d) The recipient shall promptly refund any balances of unobligated
cash that NASA has advanced or paid and that is not authorized to be
retained by the recipient for use in other projects. OMB Circular A-129
governs unreturned amounts that become delinquent debts.
(e) When authorized by the terms and conditions of the award, NASA
shall make a settlement for any upward or downward adjustments to the
Federal share of costs after closeout reports are received.
(f) The recipient shall account for any real and personal property
acquired with Federal funds or received from the Federal Government in
accordance with Sec. Sec. 1260.131 through 1260.137.
(g) In the event a final audit has not been performed prior to the
closeout of an award, NASA shall retain the right to recover an
appropriate amount after fully considering the recommendations on
disallowed costs resulting from the final audit.
Sec. 1260.172 Subsequent adjustments and continuing responsibilities.
(a) The closeout of an award does not affect any of the following.
(1) The right of NASA to disallow costs and recover funds on the
basis of a later audit or other review.
(2) The obligation of the recipient to return any funds due as a
result of later refunds, corrections, or other transactions.
(3) Audit requirements in Sec. 1260.126.
(4) Property management requirements in Secs. 1260.131 through
1260.137.
(5) Records retention as required in Sec. 1260.153.
(b) After closeout of an award, a relationship created under an
award may be modified or ended in whole or in part with the consent of
the NASA and the recipient, provided the responsibilities of the
recipient referred to in Sec. 1260.173(a), including those for property
management as applicable, are considered and provisions made for
continuing responsibilities of the recipient, as appropriate.
Sec. 1260.173 Collection of amounts due.
(a) Any funds paid to a recipient in excess of the amount to which
the recipient is finally determined to be entitled under the terms and
conditions of the award constitute a debt to the Federal Government. If
not paid within a reasonable period after the demand for payment, NASA
may reduce the debt by the provisions of paragraph (a) (1), (2) or (3)
of this section.
(1) Making an administrative offset against other requests for
reimbursements.
(2) Withholding advance payments otherwise due to the recipient.
(3) Taking other action permitted by statute.
(b) Except as otherwise provided by law, NASA shall charge interest
on an overdue debt in accordance with 4 CFR chapter II, ``Federal
Claims Collection Standards.''
Appendix A to Subpart B of Part 1260--Contract Provisions
All contracts awarded by a recipient, including small purchases,
shall contain the following provisions as applicable:
1. Equal Employment Opportunity--All contracts shall contain a
provision requiring compliance with Executive Order 11246; ``Equal
Employment Opportunity,'' as amended by Executive Order 11375,
``Amending Executive Order 11246 Relating to Equal Employment
Opportunity,'' and as supplemented by regulations at 41 CFR part 60,
``Office of Federal Contract Compliance Programs, Equal Employment
Opportunity, Department of Labor.''
2. Copeland ``Anti-Kickback'' Act (18 U.S.C. 874 and 40 U.S.C.
276c)--All contracts in excess of $2,000 for construction or repair
awarded by recipients shall include a provision for compliance with
the Copeland ``Anti-Kickback'' Act (18 U.S.C. 874), as supplemented
by Department of Labor regulations (29 CFR part 3, ``Contractors and
Subcontractors on Public Building or Public Work Financed in Whole
or in Part by Loans or Grants from the United States''). The Act
provides that each contractor shall be prohibited from inducing, by
any means, any person employed in the construction, completion, or
repair of public work, to give up any part of the compensation to
which he is otherwise entitled. The recipient shall report all
suspected or reported violations to NASA.
3. Davis-Bacon Act, as amended (40 U.S.C. 276a to a-7)--When
required by Federal program legislation, all construction contracts
awarded by the recipients of more than $2,000 shall include a
provision for compliance with the Davis-Bacon Act (40 U.S.C. 276a to
a-7) and as supplemented by Department of Labor regulations (29 CFR
part 5, ``Labor Standards Provisions Applicable to Contracts
Governing Federally Financed and Assisted Construction''). Under
this Act, contractors shall be required to pay wages to laborers and
mechanics at a rate not less than the minimum wages specified in a
wage determination made by the Secretary of Labor. In addition,
contractors shall be required to pay wages not less than once a
week. The recipient shall place a copy of the current prevailing
wage determination issued by the Department of Labor in each
solicitation and the award of a contract shall be conditioned upon
the acceptance of the wage determination. The recipient shall report
all suspected or reported violations to the NASA.
4. Contract Work Hours and Safety Standards Act (40 U.S.C. 327-
333)--Where applicable, all contracts awarded by recipients in
excess of $2,000 for construction contracts and in excess of $2,500
for other contracts that involve the employment of mechanics or
laborers shall include a provision for compliance with sections 102
and 107 of the Contract Work Hours and Safety Standards Act (40
U.S.C. 327-333), as supplemented by Department of Labor regulations
(29 CFR part 5). Under Subsection 102 of the Act, each contractor
shall be required to compute the wages of every mechanic and laborer
on the basis of a standard work week of 40 hours. Work in excess of
the standard work week is permissible provided that the worker is
compensated at a rate of not less than 1\1/2\ times the basic rate
of pay for all hours worked in excess of 40 hours in the work week.
Section 107 of the Act is applicable to construction work and
provides that no laborer or mechanic shall be required to work in
surroundings or under working conditions which are unsanitary,
hazardous or dangerous. These requirements do not apply to the
purchases of supplies or materials or articles ordinarily available
on the open market, or contracts for transportation or transmission
of intelligence.
5. Rights to Inventions Made Under a Contract or Agreement--
Contracts or agreements for the performance of
[[Page 38084]]
experimental, developmental, or research work shall provide for the
rights of the Federal Government and the recipient in any resulting
invention in accordance with 37 CFR part 401, ``Rights to Inventions
Made by Nonprofit Organizations and Small Business Firms Under
Government Grants, Contracts and Cooperative Agreements,'' and any
implementing regulations issued by the awarding agency.
6. Clean Air Act (42 U.S.C. 7401 et seq.) and the Federal Water
Pollution Control Act (33 U.S.C. 1251 et seq.), as amended--
Contracts of amounts in excess of $100,000 shall contain a provision
that requires the recipient to agree to comply with all applicable
standards, orders or regulations issued pursuant to the Clean Air
Act (42 U.S.C. 7401 et seq.) and the Federal Water Pollution Control
Act as amended (33 U.S.C. 1251 et seq.) Violations shall be reported
to NASA and the Regional Office of the Environmental Protection
Agency (EPA).
7. Byrd Anti-Lobbying Amendment (31 U.S.C. 1352)--Contractors
who apply or bid for an award of $100,000 or more shall file the
required certification. Each tier certifies to the tier above that
it will not and has not used Federal appropriated funds to pay any
person or organization for influencing or attempting to influence an
officer or employee of any agency, a member of Congress, officer or
employee of Congress, or an employee of a member of Congress in
connection with obtaining any Federal contract, grant or any other
award covered by 31 U.S.C. 1352. Each tier shall also disclose any
lobbying with non-Federal funds that takes place in connection with
obtaining any Federal award. Such disclosures are forwarded from
tier to tier up to the recipient.
8. Debarment and Suspension (Executive Orders 12549 and 12689)--
No contract shall be made to parties listed on the General Services
Administration's List of Parties Excluded from Federal Procurement
or Nonprocurement Programs in accordance with Executive Orders 12549
and 12689, ``Debarment and Suspension.'' This list contains the
names of parties debarred, suspended, or otherwise excluded by
agencies, and contractors declared ineligible under statutory or
regulatory authority other than Executive Order 12549. Contractors
with awards that exceed the small purchase threshold shall provide
the required certification regarding its exclusion status and that
of its principal employees.
[FR Doc. 96-18363 Filed 7-22-96; 8:45 am]
BILLING CODE 7510-01-M
Complete official Federal Register PDF
FR Doc. 96-18199 Approval and Promulgation of Air Quality Implementation Plans; Washington; Revision to the State Implementation Plan Vehicle Inspection and Maintenance Programs
[Federal Register Volume 61, Number 142 (Tuesday, July 23, 1996)]
[Rules and Regulations]
[Pages 38086-38091]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18199]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[WA43-7116a; FRL-5514-4]
Approval and Promulgation of Air Quality Implementation Plans;
Washington; Revision to the State Implementation Plan Vehicle
Inspection and Maintenance Programs
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rulemaking.
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SUMMARY: In this action, EPA is approving the Inspection and
Maintenance (I/M) State Implementation Plan (SIP), for Washington
State. On August 21, 1995, Washington submitted SIP revision requests
to the EPA to satisfy the requirements of sections 182(b)(4) and
182(c)(3) of the Clean Air Act, as amended and Federal I/M rule 40 CFR
part 51, subpart S. These SIP revisions will require vehicle owners to
comply with the Washington I/M program in the two Washington ozone
nonattainment areas classified as ``marginal'' and in the three carbon
monoxide nonattainment areas classified as ``moderate''. This revision
applies to the Washington counties of Clark, King, Pierce, Snohomish,
and Spokane.
DATES: This action is effective on September 23, 1996, unless adverse
or critical comments are received by August 22, 1996. If the effective
date is delayed, timely notice will be published in the Federal
Register.
ADDRESSES: Written comments should be sent to Montel Livingston SIP
Manager, Office of Air Quality (OAQ-107), EPA, 1200 6th Avenue,
Seattle, WA 98101. Copies of material submitted to EPA may be examined
during normal business hours at the following locations: EPA, Region
10, Office of Air Quality, 1200 Sixth Avenue (OAQ-107), Seattle,
Washington 98101, and the Washington State Department of Ecology, P.O.
Box 47600, Olympia, WA 98504-7600.
FOR FURTHER INFORMATION CONTACT: Stephanie Cooper, Office of Air
Quality, (OAQ-107), 1200 6th Avenue, Seattle, WA 98101, (206) 553-6917.
SUPPLEMENTARY INFORMATION:
I. Clean Air Act Requirements
The Clean Air Act, as amended in 1990 (CAA or Act), requires States
to make changes to improve existing I/M programs or implement new ones.
Section 182(a)(2)(B) required any ozone nonattainment area which has
been classified as ``marginal'' (pursuant to section 181(a) of the Act)
or worse with an existing I/M program that was part of a SIP, or any
area that was required by the 1977 Amendments to the Act to have an I/M
program, to immediately submit a SIP revision to bring the program up
to the level required in past EPA guidance or to what had been
committed to previously in the SIP, whichever was more stringent. All
carbon monoxide nonattainment areas were also subject to this
requirement to improve existing or previously required programs to this
level. In addition, any ozone nonattainment area classified as moderate
or worse must implement a basic or an enhanced I/M program depending
upon its classification, regardless of previous requirements.
Congress directed the EPA in section 182(a)(2)(B) to publish
updated guidance for State I/M programs, taking into consideration
findings of the Administrator's audits and investigations of these
programs. The States were to incorporate this guidance into the SIP for
all areas required by the Act to have an I/M program. Ozone
nonattainment areas classified as ``serious'' or worse with populations
of 200,000 or more, and CO nonattainment areas with design values above
12.7 ppm and populations of 200,000 or more, and metropolitan
statistical areas with populations of 100,000 or more in the northeast
ozone transport region, were required to meet EPA guidance for enhanced
I/M programs.
The EPA has designated two areas as ozone nonattainment in the
State of Washington. The Puget Sound ozone nonattainment area is
classified as marginal and contains King, Pierce, and Snohomish
counties. The Vancouver Air Quality Maintenance Area is classified as
marginal and contains Clark county. Additionally, three areas in
Washington state are designated as CO nonattainment areas. Both the
Spokane Carbon Monoxide Nonattainment area (Spokane County) and the
Puget Sound Carbon Monoxide Nonattainment area (King, Pierce, and
portions of Snohomish Counties) have design values greater than 12.7
ppm and are designated as ``moderate plus''. The Vancouver Air Quality
Maintenance Area is a ``moderate'' carbon monoxide nonattainment area,
with a design value below 12.7 ppm. The central Puget Sound has an
urbanized area population of 1,793,612, and Spokane has an urbanized
area population of 266,709. Based on these nonattainment designations
and populations, a basic I/M program is required in the Vancouver and
Puget Sound ozone nonattainment area, while enhanced I/M programs are
required in the Puget Sound, and Spokane carbon monoxide nonattainment
areas.
By this action, the EPA is approving the submittal of the
Washington I/M SIP. The EPA has reviewed the State submittal against
the statutory requirements and for consistency with the EPA
regulations. A summary of the EPA's analysis is provided below. In
addition, a history and a summary to support approval of the State
submittal is contained in a TSD, dated May 10, 1996, which is available
from the Region 10 Office (address provided above).
II. I/M Regulation General SIP Submittal Requirements
The original I/M regulation was codified at 40 CFR part 51, Subpart
S, and required States to submit an I/M SIP revision which includes all
necessary legal authority and the items specified in 40 CFR 51.372
(a)(1) through (a)(8) by November 15, 1993. On September 18, 1995, the
EPA published a final regulation establishing the ``low enhanced'' I/M
requirements, pursuant to section 182 and 187 of the Act (40 CFR part
51). These low enhanced I/M requirements superseded the former enhanced
I/M requirements. The State has met the low enhanced I/M requirements
established by the September 18, 1995 rulemaking.
[[Page 38087]]
III. State Submittal.
On August 21, 1995, the State of Washington submitted the I/M SIP
for its three nonattainment areas. Public hearings for the submittal
were held in Vancouver, Bellevue, and Spokane on June 6, 7, and 8,
1995, respectively.
The submittals provide for the continued implementation of I/M
programs in the Puget Sound, Spokane, and Vancouver areas. Inspection
and Maintenance programs have been running in the Puget Sound area
since 1982, in Spokane since 1985, and in Vancouver since 1993.
Washington's centralized, test only, biennial program meets the
requirements of EPA's low enhanced performance standard and other
requirements contained in the Federal I/M rule in the applicable
nonattainment counties. Testing will be overseen by the Washington
State Department of Ecology and its I/M contractor, Systems Control.
Other aspects of the Washington I/M program include: testing of 1968
and later light duty vehicles and trucks and heavy duty trucks, a test
fee to ensure the State has adequate resources to implement the
program, enforcement by registration denial, a repair effectiveness
program, contractual requirements for testing convenience, quality
assurance, data collection, reporting, test equipment and test
procedure specifications, public information and consumer protection,
and inspector training and certification. In addition, the low enhanced
I/M programs will include: a two-speed (2500 and idle) test or a loaded
idle test, and a program to evaluate on-road testing. An analysis of
how the Washington I/M program meets the EPA's I/M regulation is
provided below.
A. Applicability
The SIP needs to describe the applicable areas in detail and,
consistent with 40 CFR 51.372, needs to include the legal authority or
rules necessary to establish program boundaries.
The Washington I/M regulations specify that I/M programs be
implemented in the counties as described above. Although Vancouver
requires only the basic I/M program for both its ozone and carbon
monoxide nonattainment areas, the state is implementing one ``low
enhanced'' program in all areas that require I/M programs. In the SIP,
however, the performance standard for Vancouver is compared to EPA's
basic performance standard.
B. Enhanced and Basic I/M Performance Standard
The I/M programs provided for in the SIP are required to meet a
performance standard, either basic or low enhanced as applicable, for
the pollutants that caused the affected area to come under I/M
requirements. The performance standard sets an emission reduction
target that must be met by a program in order for the SIP to be
approvable. The SIP must also provide that the program will meet the
performance standard in actual operation, with provisions for
appropriate adjustments if the standard is not met.
The State has submitted a modeling demonstration using the EPA
computer model MOBILE5ah showing that the low enhanced performance
standard is met for Puget Sound and Spokane. The State has also
submitted modeling for the basic I/M area of Vancouver to demonstrate
that the program meets EPA's basic performance standard.
C. Network Type and Program Evaluation
The SIP needs to include a description of the network to be
employed, and the required legal authority. For enhanced I/M areas, the
SIP needs to include a description of the evaluation schedule and
protocol, the sampling methodology, the data collection and analysis
system, the resources and personnel for evaluation, and related details
of the evaluation program, and the legal authority enabling the
evaluation program.
The Washington program has chosen to implement a test only I/M
network program design which will utilize operating contractors to
implement the inspection portion of the program. The Washington State
Department of Ecology describes and commits, in its SIP narrative, to
institute a continuous ongoing evaluation program consistent with the
low enhanced I/M rule. The results of the evaluation program will be
reported to EPA on a biennial basis. Legal authority which is contained
in the Revised Code of Washington section 70.120.170 allows the WDOE to
authorize, through contracts, the establishment and operation of
inspection stations to conduct vehicle inspections. Washington commits
to an ongoing evaluation to quantify the emission reduction benefits of
the program.
D. Adequate Tools and Resources
The SIP needs to include a description of the resources that will
be used for program operation, and discuss how the performance standard
will be met which includes: (1) A detailed budget plan which describes
the source of funds for personnel, program administration, program
enforcement, purchase of necessary equipment (such as vehicles for
undercover audits), and any other requirements discussed throughout,
for the period prior to the next biennial self-evaluation required in
the Federal I/M rule, (2) a description of personnel resources, the
number of personnel dedicated to overt and covert auditing, data
analysis, program administration, enforcement, and other necessary
functions and the training attendant to each function.
The Emission Check program is funded by a biennial appropriation
from the state general fund. The fee will be set at the minimum whole
dollar amount required to (i) compensate the contractor or inspection
facility owner, and (ii) offset the general fund appropriation to the
department to cover the administrative costs of the motor vehicle
emission inspection program (RCW 70.120.170(4)(a)). Currently, the
inspection fee is $12 and the administrative cost per vehicle is $3.90
for the 1993-1995 biennium.
In May, 1996, Ecology submitted a supplement to the SIP providing
more detail on budget and staffing levels. The I/M program has a
General Fund budget of $3,861,939 for the 1995-97 biennium, and that
budget will likely be carried into the 1997-99 biennium. Ecology
dedicates a staffing level of 31 full-time equivalent employees (FTEs)
to support the program.
E. Test Frequency and Convenience
The SIP needs to include the test schedule in detail including the
test year selection scheme if testing is other than annual. Also, the
SIP needs to include the legal authority necessary to implement and
enforce the test frequency requirement and explain how the test
frequency will be integrated with the enforcement process. In addition,
in low enhanced I/M programs the SIP needs to demonstrate that the
network of stations providing test services is sufficient to insure
short waiting times to get a test and short driving distances.
The Washington SIP requires biennial inspections for all privately
owned vehicles within the subject area, and annual tests for state and
local government vehicles. The inspections will be conducted so that
odd model year vehicles must test in the odd calendar year and even
model year vehicles must test in the even calendar year. The authority
for the enforcement of the testing frequency is contained in the
Washington I/M rule. Short waiting
[[Page 38088]]
times are addressed the contracts between the State and its managing
contractors. In terms of driving distances, 95% of the subject public
are within ten minutes of most test facilities.
F. Vehicle Coverage
The SIP needs to include a detailed description of the number and
types of vehicles to be covered by the program, and a plan for how
those vehicles are to be identified, including vehicles that are
routinely operated in the area but may not be registered in the area.
Also, the SIP needs to include a description of any special exemptions
which will be granted by the program, and an estimate of the percentage
and number of subject vehicles which will be impacted. Such exemptions
need to be accounted for in the emission reduction analysis. In
addition, the SIP needs to include the legal authority or rule
necessary to implement and enforce the vehicle coverage requirement.
The Washington program includes coverage of all 1968 and newer
model year gasoline powered light-duty vehicles and light-duty and
heavy-duty trucks up to 8,500 GVWR, registered or required to be
registered within the nonattainment areas and fleets primarily operated
within an I/M program area. The starting model year of a vehicle
testing program may be changed each year to include the most recent 24
model years. I/M testing exemptions are granted for change of
ownership, alternative fuel vehicles, electric vehicles, and
motorcycles.
All subject fleets must complete the emission inspection process,
without a waiver option being available. Fleets may be inspected in
facilities other than Systems Control facilities provided that Ecology
approves the alternative tests. Vehicles operated on federal
installations are required to be tested regardless of whether the
vehicles are registered in the state or local I/M area. Legal authority
for the vehicle coverage is contained in the Washington I/M rule.
G. Test Procedures and Standards
The SIP needs to include a description of each test procedure used.
The SIP also needs to include the rule, ordinance or law describing and
establishing the test procedures.
The Washington I/M SIP establishes test vehicle procedures and
standards that at a minimum are consistent with EPA regulations. Test
procedures and standards are specified in WAC 173-422-070. In
Washington, all 1968 and newer gasoline or diesel-fueled vehicles are
tested. The State will test vehicles on a steady-state dynamometer or
by a two-speed idle and 2500 RPM unloaded test. Diesel vehicles are
tested for exhaust opacity only. Specified vehicles are tested using a
transient emissions test.
H. Test Equipment
The SIP needs to include written technical specifications for all
test equipment used in the program and shall address each of the
requirements in 40 CFR 51.358 of the Federal I/M rule. The
specifications need to describe the emission analysis process, the
necessary test equipment, the required features, and written acceptance
testing criteria and procedures.
The Washington I/M SIP describes the performance features of
computerized test systems, gasoline exhaust gas analyzer
specifications, and exhaust gas analyzer specifications. For transient
emissions tests, EPA's ``High Tech I/M Test Procedures, Emission
Standards, Quality Control Requirements and Equipment Specifications''
Final Technical Guidance is followed.
I. Quality Control
The SIP needs to include a description of quality control and
recordkeeping procedures. The SIP needs to include the procedures
manual, rule, and ordinance or law describing and establishing the
procedures of quality control.
The Washington I/M SIP includes a Quality Control Plan that
specifies quality control and periodic maintenance procedures. Quality
control procedures are specified in WAC 173-422-120 and authorized by
RCW 70.120. The Department of Ecology's Emission Check staff performs
inspections to ensure that operation of the emission testing
facilities, calibration and maintenance of exhaust analyzers and test
procedures, training of management and inspection personnel meet the
standards as outlined in WAC 173-422.
J. Waivers and Compliance via Diagnostic Inspection
The SIP needs to include a maximum waiver rate expressed as a
percentage of initially failed vehicles. This waiver rate needs to be
used for estimating emission reduction benefits in the modeling
analysis. Also, the State needs to take corrective action if the waiver
rate exceeds that estimated in the SIP or revise the SIP and the
emission reductions claimed accordingly. In addition, the SIP needs to
describe the waiver criteria and procedures, including cost limits,
quality assurance methods and measures, and administration. Lastly, the
SIP shall include the necessary legal authority, ordinance, or rules to
issue waivers, set and adjust cost limits as required, and carry out
any other functions necessary to administer the waiver system,
including enforcement of the waiver provisions.
Cost limits for the minimum expenditure waivers must be in
accordance with the CAA and Federal I/M rule. To receive a waiver
within basic and enhanced areas within Washington, vehicle owners are
required to spend at least $100 or more on 1968 to 1980 vehicles, and
at least $150 or more on 1981 and newer vehicles in an attempt to
correct applicable emission failure(s). The SIP pledges that by 1998,
these limits will be adjusted to $450 in the enhanced I/M areas, and in
basic areas, to $200. Washington's waiver rates (as percentages of
initially failed vehicles) are, for Central Puget Sound and Vancouver,
15% for 1980 and older vehicles, and 14% for 1981 and newer vehicles;
and for Spokane, 13% for 1980 and older vehicles, and 12% for 1981 and
newer vehicles. These waiver rates are used in the modeling
demonstration. Ecology states in the SIP that if the waiver rates are
higher than estimated, the State will take corrective action to address
the deficiency so that compliance with the performance standard is
assured. In Washington, a waiver, or ``Certificate of Acceptance'',
(COA) is issued by the contractor through authority granted by the
Department of Ecology. These waivers are consistent with the low-
enhanced I/M rule.
K. Motorist Compliance Enforcement
The SIP needs to provide information concerning the enforcement
process, including: (1) A description of the existing compliance
mechanism if it is to be used in the future and the demonstration that
it is as effective or more effective than registration-denial
enforcement; (2) an identification of the agencies responsible for
performing each of the applicable activities in this section; (3) a
description of and accounting for all classes of exempt vehicles; and
(4) a description of the plan for testing fleet vehicles, rental car
fleets, leased vehicles, and any other special classes of subject
vehicles, e.g. those operated in (but not necessarily registered in)
the program area. Also, the SIP needs to include a determination of the
current compliance rate based on a study of the system that includes an
estimate of compliance losses due to loopholes, counterfeiting, and
unregistered vehicles. In addition, the SIP needs to include the legal
authority to implement and enforce the
[[Page 38089]]
program. Lastly, the SIP needs to include a commitment to an
enforcement level to be used for modeling purposes and to be
maintained, at a minimum, in practice.
The State has chosen to use registration denial as its primary
enforcement mechanism in both basic and enhanced I/M areas. Motorists
will be denied vehicle registration unless the vehicle has complied
with the I/M program requirements. The motorist licensing compliance
enforcement program will be implemented by the Washington State
Department of Licensing (DOL). The DOL will deny registration unless
the vehicle owner demonstrates proof of having passed an emissions
test, or has a waiver. Persons who reside in emissions-contributing
areas and who register their vehicle outside of that area are subject
to a $250 fine. A $250 fine will also be given to citizens who obtain a
vehicle license without having an emissions test. The legal authority
to implement and enforce the program is in Chapter 173-422 WAC.
L. Motorist Compliance Enforcement Program Oversight
The SIP needs to include a description of enforcement program
oversight and information management activities.
The Washington I/M SIP provides for monthly reviews of exemptions
and waivers conducted by I/M field staff. Additionally, the SIP
provides for the implementation of procedures to ensure effective
overall performance of the enforcement system. Examples include
verification of exempt vehicle status by inspecting and confirming such
vehicles by the program or its delegate, and maintenance of an audit
trail to allow for assessment of enforcement effectiveness. Ecology
will establish an information base used to evaluate and enforce the
program. As part of this effort, the testing database will be reviewed
for accuracy and compared to the registration database to determine
program effectiveness, and establish compliance rates. Noncomplying
motorists will have to pay a $250 fine.
M. Quality Assurance
The SIP needs to include a description of the quality assurance
program, and written procedures manuals covering both overt and covert
performance audits, record audits, and equipment audits. This
requirement does not include materials or discussion of details of
enforcement strategies that would ultimately hamper the enforcement
process.
The Washington I/M SIP includes a description of its quality
assurance program. The goal of the quality assurance program is to
discover, correct, and prevent fraud, waste and abuse within the
Emission Check program, including the accuracy of equipment and the
adequacy of procedures. The administration of quality assurance is
performed by the Emission Check staff and the Department of Ecology's
DOL liaison. The SIP text describes the performance audits, overt
performance audits, covert performance audits, record audits, and
equipment audits to occur under the quality assurance plan.
N. Enforcement Against Contractors, Stations and Inspectors
The SIP needs to include the penalty schedule and the legal
authority for establishing and imposing penalties, civil fines, license
suspension, and revocations. In the case of state constitutional
impediments to immediate suspension authority, the state Attorney
General shall furnish an official opinion for the SIP explaining the
constitutional impediment as well as relevant case law. Also, the SIP
needs to describe the administrative and judicial procedures and
responsibilities relevant to the enforcement process, including which
agencies, courts, and jurisdictions are involved; who will prosecute
and adjudicate cases; and other aspects of the enforcement of the
program requirements, the resources to be allocated to this function,
and the source of those funds.
The Washington I/M SIP includes specific penalties in its
enforcement against contractors, stations and inspectors. The SIP
includes the State's enforcement procedures which can be pursued
through either contractual (Systems Control Contract #99-92) or
regulatory action (WAC 173-422). Specific penalties are outlined
against the contractor, fleet testers, and emission specialists.
Emission Check personnel have authority under the Systems Control
contract to stop inspections if invalid inspections are a possibility.
Inspectors may be suspended if the Emission Check Program staff
determines that they are not qualified. Legal authority is contained in
WAC 173-422-120.
O. Data Analysis and Reporting
The SIP needs to describe the types of data to be collected.
The Washington I/M SIP commits the Department of Ecology to provide
to EPA annual reports containing basic statistics on the program for
the previous year. The state commits to providing all area specific
applicable data as required, including computerized test data, quality
assurance data, quality control, and enforcement data. Ecology's
Information Data Services maintains the data and evaluates it for
inclusion in yearly and biennial reports. The biennial reports will
discuss any changes to the program design or implementation, program
weaknesses, and cures for those weaknesses.
P. Inspector Training and Licensing or Certification
The SIP needs to include a description of the training program, the
written and hands-on tests, and the licensing or certification process.
The Department of Ecology has a formal training and certification
program for fleet and centralized contractor testing facilities.
Washington's program includes training, certification, test procedures,
and public relations. Certification occurs after an inspector has
passed an approved Department of Ecology written test with a score of
80% or better, and after a hands-on test. The legal authority for
inspectors to attend and pass a course of study and become certified is
established by RCW 70.120.020.
Q. Improving Repair Effectiveness
The SIP needs to include a description of the technical assistance
program to be implemented to improve repair effectiveness, a
description of the procedures and criteria to be used in meeting the
performance monitoring requirements of this section for enhanced I/M
programs, and a description of the repair technician training resources
available in the community.
Washington has several facets to its repair effectiveness program.
Technician training is an ongoing element of the Emission Check
Program, and technical colleges, independent training facilities, etc,
are working to assess and improve the current program. Emission system
diagnosis and repair curriculum will be consistent with 40 CFR 51.369
(c). Also, performance monitoring and evaluation of the repair
facilities will help to identify the most effective repair shops and
the emission reductions obtained through these facilities. A list of
the most effective repair shops will be provided to the public through
Systems Control. Also, repair shops are visited during audits, and
technicians are notified of information regarding effective repairs via
a Department of Ecology newsletter. Technician assistance is available
through a 1-800 number; the same
[[Page 38090]]
service is available to the public at another 1-800 number.
R. Compliance With Recall Notices
The SIP needs to describe the procedures used to incorporate the
vehicle recall lists provided into the inspection or registration
database, the quality control methods used to insure that recall
repairs are properly documented and tracked, and the method (inspection
failure or registration denial) used to enforce the recall
requirements.
The Washington I/M SIP states that vehicles that were not repaired
as required by an emission recall for which owner notification was
attempted after January 1, 1995 will not be inspected until compliance
with that recall is established. Information on recall notification is
intended to remind the vehicle owner or operator that an emission test
is required and that manufacturers recalls must be completed before
tabs will be renewed. Thereby, notification of recall can be directly
referenced during the inspection.
S. On-Road Testing
The SIP needs to include a detailed description of the on-road
testing program required in enhanced I/M areas, including the types of
testing, test limits and criteria, the number of vehicles (the
percentage of the fleet) to be tested, the methods for collecting,
analyzing, utilizing, and reporting the results of on-road testing, and
the portion of the program budget to be dedicated to on-road testing.
The Washington SIP includes a description of its on-road testing
program. The Department of Ecology will conduct an evaluation of on-
road testing options beginning in 1996. This testing should involve the
required .5 percent of the subject fleet. The State did not include
additional modeling credit for this program in their modeling
demonstration needed to meet EPA's performance standard.
T. Concluding Statement
The criteria used to review the submitted SIP revision are based on
the requirements stated in Section 182 of the CAA and the most recent
FederalI/M regulations (September 18, 1995). EPA has reviewed the
Washington I/M SIP revision. The Washington regulations and
accompanying materials contained in the SIP represent an acceptable
approach to the I/M requirements and meet the criteria required for
approvability.
IV. Today's Action
The EPA is approving the Washington I/M SIP as meeting the
requirements of the CAA and the Federal I/M rule. All required SIP
items have been adequately addressed as discussed in this Federal
Register action.
V. Administrative Review
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 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 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 any small entities affected. 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 to base its actions concerning SIPs on such grounds.
Union Electric Co. v. E.P.A., 427 U.S. 246, 256-66 (S.Ct. 1976); 42
U.S.C. 7410(a)(2).
Under Section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate; or to
the private sector, of $100 million or more. Under Section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that the approval action promulgated does not
include a Federal mandate that may result in estimated costs of $100
million or more to either State, local, or tribal governments in the
aggregate, or to the private sector. This Federal action approves pre-
existing requirements under State or local law, and imposes no new
Federal requirements. Accordingly, no additional costs to State, local,
or tribal governments, or to the private sector, result from this
action.
The EPA has reviewed this request for revision of the federally-
approved SIP for conformance with the provisions of the 1990 Clean Air
Act Amendments enacted on November 15, 1990. The EPA has determined
that this action conforms with those requirements.
Nothing in this action should be construed as permitting or
allowing or establishing a precedent for any future request for
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.
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 E.O. 12866 review.
The EPA is publishing this action without prior proposal because
the Agency views this as a noncontroversial action and anticipates no
adverse comments. However, in a separate document in this Federal
Register publication, the EPA is proposing to approve the SIP revision
should adverse or critical comments be filed. This action will be
effective September 23, 1996 unless, by August 22, 1996 adverse or
critical comments are received.
If the 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 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, the public is
advised that this action will be effective September 23, 1996.
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by September 23, 1996. Filing a
petition for
[[Page 38091]]
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the purposes of judicial review nor does
it extend the time within which a petition for judicial review may be
filed and shall not postpone the effectiveness of such rule or action.
This action may not be challenged later in proceedings to enforce its
requirements. (See section 307(b)(2), 42 U.S.C. 7607(b)(2).
Submission to Congress and the General Accounting Office
Under section 801(a)(1)(A) of the Administrative Procedure Act
(APA) as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996, EPA submitted a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives and the Comptroller General of the General Accounting
Office prior to publication of this rule in today's Federal Register.
This rule is not a ``major rule'' as defined by section 804(2) of the
APA as amended.
List of Subjects in 40 CFR Part 52
Air pollution control, Carbon monoxide, Hydrocarbons, Incorporation
by reference, Nitrogen dioxide, Ozone, Volatile organic compounds.
Note: Incorporation by reference of the Implementation Plan for
the State of Washington was approved by the Director of the Office
of Federal Register on July 1, 1982.
Dated: May 24, 1996.
Jane S. Moore,
Acting Regional Administrator.
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 WW--Washington
2. Section 52.2470 is amended by adding paragraph (c)(61) to read
as follows:
Sec. 52.2470 Identification of plan.
* * * * *
(c) * * *
(61) SIP revisions received from WDOE on August 21, 1995, requiring
vehicle owners to comply with its I/M program in the two Washington
ozone nonattainment areas classified as ``marginal'' and in the three
carbon monoxide nonattainment areas classified as ``moderate''. This
revision applies to the Washington counties of Clark, King, Pierce,
Snohomish, and Spokane.
(i) Incorporation by reference.
(A) July 26, 1995 letter from Director of WDOE to the Regional
Administrator of EPA submitting revisions to WDOE's SIP consisting of
the July 1995 Washington State Implementation Plan for the Motor
Vehicle Inspection and Maintenance Program (including Appendices A
through F), adopted August 1, 1995, and a supplement letter and ``Tools
and Resources'' table dated May 10, 1996.
[FR Doc. 96-18199 Filed 7-22-96; 8:45 am]
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