[Title 43 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2002 Edition]
[From the U.S. Government Printing Office]



[[Page i]]



                    43


          Parts 1 to 999

                         Revised as of October 1, 2002

Public Lands: Interior





          Containing a codification of documents of general 
          applicability and future effect
          As of October 1, 2002
          With Ancillaries
          Published by
          Office of the Federal Register
          National Archives and Records
          Administration

A Special Edition of the Federal Register



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                     U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 2002



  For sale by the Superintendent of Documents, U.S. Government Printing 
                                  Office
  Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area 
                              (202) 512-1800
      Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001



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                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 43:
          Subtitle A--Office of the Secretary of the Interior        3
    Subtitle B--Regulations Relating to Public Lands
          Chapter I--Bureau of Reclamation, Department of the 
          Interior                                                 545
  Finding Aids:
      Material Approved for Incorporation by Reference........     647
      Table of CFR Titles and Chapters........................     649
      Alphabetical List of Agencies Appearing in the CFR......     667
      List of CFR Sections Affected...........................     677



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                     ----------------------------

                     Cite this Code:  CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 43 CFR 1.1 refers to 
                       title 43, part 1, section 
                       1.

                     ----------------------------

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                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, October 1, 2002), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
Register since the last revision of that volume of the Code. Source 
citations for the regulations are referred to by volume number and page 
number of the Federal Register and date of publication. Publication 
dates and effective dates are usually not the same and care must be 
exercised by the user in determining the actual effective date. In 
instances where the effective date is beyond the cut-off date for the 
Code a note has been inserted to reflect the future effective date. In 
those instances where a regulation published in the Federal Register 
states a date certain for expiration, an appropriate note will be 
inserted following the text.

OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
placed as close as possible to the applicable recordkeeping or reporting 
requirements.

OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
the cover of each volume are not carried. Code users may find the text 
of provisions in effect on a given date in the past by using the 
appropriate numerical list of sections affected. For the period before 
January 1, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in 11 separate 
volumes. For the period beginning January 1, 2001, a ``List of CFR 
Sections Affected'' is published at the end of each CFR volume.

INCORPORATION BY REFERENCE

    What is incorporation by reference? Incorporation by reference was 
established by statute and allows Federal agencies to meet the 
requirement to publish regulations in the Federal Register by referring 
to materials already published elsewhere. For an incorporation to be 
valid, the Director of the Federal Register must approve it. The legal 
effect of incorporation by reference is that the material is treated as 
if it were published in full in the Federal Register (5 U.S.C. 552(a)). 
This material, like any other properly issued regulation, has the force 
of law.
    What is a proper incorporation by reference? The Director of the 
Federal Register will approve an incorporation by reference only when 
the requirements of 1 CFR part 51 are met. Some of the elements on which 
approval is based are:
    (a) The incorporation will substantially reduce the volume of 
material published in the Federal Register.
    (b) The matter incorporated is in fact available to the extent 
necessary to afford fairness and uniformity in the administrative 
process.
    (c) The incorporating document is drafted and submitted for 
publication in accordance with 1 CFR part 51.
    Properly approved incorporations by reference in this volume are 
listed in the Finding Aids at the end of this volume.
    What if the material incorporated by reference cannot be found? If 
you have any problem locating or obtaining a copy of material listed in 
the Finding Aids of this volume as an approved incorporation by 
reference, please contact the agency that issued the regulation 
containing that incorporation. If, after contacting the agency, you find 
the material is not available, please notify the Director of the Federal 
Register, National Archives and Records Administration, Washington DC 
20408, or call (202) 523-4534.

CFR INDEXES AND TABULAR GUIDES

    A subject index to the Code of Federal Regulations is contained in a 
separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Statutory 
Authorities and Agency Rules (Table I). A list of CFR titles, chapters, 
and parts and an alphabetical list of agencies publishing in the CFR are 
also included in this volume.
    An index to the text of ``Title 3--The President'' is carried within 
that volume.
    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
the daily Federal Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

[[Page vii]]


REPUBLICATION OF MATERIAL

    There are no restrictions on the republication of material appearing 
in the Code of Federal Regulations.

INQUIRIES

    For a legal interpretation or explanation of any regulation in this 
volume, contact the issuing agency. The issuing agency's name appears at 
the top of odd-numbered pages.
    For inquiries concerning CFR reference assistance, call 202-741-6000 
or write to the Director, Office of the Federal Register, National 
Archives and Records Administration, Washington, DC 20408 or e-mail 
[email protected].

SALES

    The Government Printing Office (GPO) processes all sales and 
distribution of the CFR. For payment by credit card, call toll free, 
866-512-1800 or DC area, 202-512-1800, M-F, 8 a.m. to 4 p.m. e.s.t. or 
fax your order to 202-512-2250, 24 hours a day. For payment by check, 
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371954, Pittsburgh, PA 15250-7954. For GPO Customer Service call 202-
512-1803.

ELECTRONIC SERVICES

    The full text of the Code of Federal Regulations, The United States 
Government Manual, the Federal Register, Public Laws, Public Papers, 
Weekly Compilation of Presidential Documents and the Privacy Act 
Compilation are available in electronic format at www.access.gpo.gov/
nara (``GPO Access''). For more information, contact Electronic 
Information Dissemination Services, U.S. Government Printing Office. 
Phone 202-512-1530, or 888-293-6498 (toll-free). E-mail, 
[email protected].
    The Office of the Federal Register also offers a free service on the 
National Archives and Records Administration's (NARA) World Wide Web 
site for public law numbers, Federal Register finding aids, and related 
information. Connect to NARA's web site at www.nara.gov/fedreg. The NARA 
site also contains links to GPO Access.

                              Raymond A. Mosley,
                                    Director,
                          Office of the Federal Register.

October 1, 2002.



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                               THIS TITLE

    Title 43--Public Lands: Interior is composed of two volumes. Volume 
one (parts 1-999) contains all current regulations issued under subtitle 
A--Office of the Secretary of the Interior and chapter I--Bureau of 
Reclamation, Department of the Interior. Volume two (part 1000 to End) 
includes all regulations issued under chapter II--Bureau of Land 
Management, Department of the Interior, and Chapter III--Utah 
Reclamation Mitigation and Conservation Commission. The contents of 
these volumes represent all current regulations codified under this 
title of the CFR as of October 1, 2002.

    In the second volume, containing chapter II--Bureau of Land 
Management, Department of the Interior, the OMB control numbers appear 
in a ``Note'' immediately below the ``Group'' headings throughout the 
chapter, if applicable.

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

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                    TITLE 43--PUBLIC LANDS: INTERIOR




                   (This book contains parts 1 to 999)

  --------------------------------------------------------------------
                                                                    Part

SUBTITLE A--Office of the Secretary of the Interior.........           1

            SUBTITLE B--Regulations Relating to Public Lands

chapter i--Bureau of Reclamation, Department of the Interior         402

[[Page 3]]

           Subtitle A--Office of the Secretary of the Interior

  --------------------------------------------------------------------

Part                                                                Page
1               Practices before the Department of the 
                    Interior................................           5
2               Records and testimony; Freedom of 
                    Information Act.........................           6
3               Preservation of American antiquities........          39
4               Department hearings and appeals procedures..          41
5               Making pictures, television productions or 
                    sound tracks on certain areas under the 
                    jurisdiction of the Department of the 
                    Interior................................         166
6               Patent regulations..........................         167
7               Protection of archaeological resources......         176
8               Joint policies of the Departments of the 
                    Interior and of the Army relative to 
                    reservoir project lands.................         192
9               Intergovernmental review of Department of 
                    the Interior programs and activities....         193
10              Native American graves protection and 
                    repatriation regulations................         196
11              Natural resource damage assessments.........         220
12              Administrative and audit requirements and 
                    cost principles for assistance programs.         281
13              Vending facilities operated by blind persons         362
14              Petitions for rulemaking....................         365
15              Key Largo Coral Reef Preserve...............         365
16              Conservation of helium......................         367
17              Nondiscrimination in federally assisted 
                    programs of the Department of the 
                    Interior................................         368
18              New restrictions on lobbying................         405
19              Wilderness preservation.....................         417
20              Employee responsibilities and conduct.......         420
21              Occupancy of cabin sites on public 
                    conservation and recreation areas.......         431

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22              Administrative claims under the Federal Tort 
                    Claims Act and indemnification of 
                    Department of the Interior employees....         435
23              Surface exploration, mining and reclamation 
                    of lands................................         437
24              Department of the Interior fish and wildlife 
                    policy: State-Federal relationships.....         445
26              Grants to States for establishing Youth 
                    Conservation Corps programs.............         450
27              Nondiscrimination in activities conducted 
                    under permits, rights-of-way, public 
                    land orders, and other Federal 
                    authorizations granted or issued under 
                    Title II of Public Law 93-153...........         455
28              Fire protection emergency assistance........         467
29              Trans-Alaska Pipeline Liability Fund........         467
32              Grants to States for establishing Young 
                    Adult Conservation Corps (YACC) program.         474
33              Allocation of duty-free watches from the 
                    Virgin Islands, Guam, and American Samoa 
                    [Note]..................................         484
34              Requirements for equal opportunity during 
                    construction and operation of the Alaska 
                    Natural Gas Transportation System.......         484
35              Administrative remedies for fraudulent 
                    claims and statements...................         495
36              Transportation and utility systems in and 
                    across, and access into, conservation 
                    system units in Alaska..................         510
37              Cave management.............................         520
38              Pay of U.S. Park Police--interim geographic 
                    adjustments.............................         523
41              Nondiscrimination on the basis of sex in 
                    education programs or activities 
                    receiving Federal financial assistance..         524

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PART 1--PRACTICES BEFORE THE DEPARTMENT OF THE INTERIOR--Table of Contents




Sec.
1.1  Purpose.
1.2  Definitions.
1.3  Who may practice.
1.4  Disqualifications.
1.5  Signature to constitute certificate.
1.6  Disciplinary proceedings.

    Authority: Sec. 5, 23 Stat. 101; 43 U.S.C. 1464.

    Source: 29 FR 143, Jan. 7, 1964, unless otherwise noted.



Sec. 1.1  Purpose.

    This part governs the participation of individuals in proceedings, 
both formal and informal, in which rights are asserted before, or 
privileges sought from, the Department of the Interior.



Sec. 1.2  Definitions.

    As used in this part the term:
    (a) Department includes any bureau, office, or other unit of the 
Department of the Interior, whether in Washington, DC, or in the field, 
and any officer or employee thereof;
    (b) Solicitor means the Solicitor of the Department of the Interior 
or his authorized representative;
    (c) Practice includes any action taken to support or oppose the 
assertion of a right before the Department or to support or oppose a 
request that the Department grant a privilege; and the term ``practice'' 
includes any such action whether it relates to the substance of, or to 
the procedural aspects of handling, a particular matter. The term 
``practice'' does not include the preparation or filing of an 
application, the filing without comment of documents prepared by one 
other than the individual making the filing, obtaining from the 
Department information that is available to the public generally, or the 
making of inquiries respecting the status of a matter pending before the 
Department. Also, the term ``practice'' does not include the 
representation of an employee who is the subject of disciplinary, 
loyalty, or other personnel administrative proceedings.



Sec. 1.3  Who may practice.

    (a) Only those individuals who are eligible under the provisions of 
this section may practice before the Department, but this provision 
shall not be deemed to restrict the dealings of Indian tribes or members 
of Indian tribes with the Department.
    (b) Unless disqualified under the provisions of Sec. 1.4 or by 
disciplinary action taken pursuant to Sec. 1.6:
    (1) Any individual who has been formally admitted to practice before 
the Department under any prior regulations and who is in good standing 
on December 31, 1963, shall be permitted to practice before the 
Department.
    (2) Attorneys at law who are admitted to practice before the courts 
of any State, the District of Columbia, the Commonwealth of Puerto Rico, 
American Samoa, the Trust Territory of the Pacific Islands, or the 
District Court of the Virgin Islands will be permitted to practice 
without filing an application for such privilege.
    (3) An individual who is not otherwise entitled to practice before 
the Department may practice in connection with a particular matter on 
his own behalf or on behalf of
    (i) A member of his family;
    (ii) A partnership of which he is a member;
    (iii) A corporation, business trust, or an association, if such 
individual is an officer or full-time employee;
    (iv) A receivership, decedent's estate, or a trust or estate of 
which he is the receiver, administrator, or other similar fiduciary;
    (v) The lessee of a mineral lease that is subject to an operating 
agreement or sublease which has been approved by the Department and 
which grants to such individual a power of attorney;
    (vi) A Federal, State, county, district, territorial, or local 
government or agency thereof, or a government corporation, or a district 
or advisory board established pursuant to statute; or
    (vii) An association or class of individuals who have no specific 
interest that will be directly affected by the disposition of the 
particular matter.



Sec. 1.4  Disqualifications.

    No individual may practice before the Department if such practice 
would violate the provisions of 18 U.S.C. 203, 205, or 207.

[[Page 6]]



Sec. 1.5  Signature to constitute certificate.

    When an individual who appears in a representative capacity signs a 
paper in practice before the Department, his signature shall constitute 
his certificate:
    (a) That under the provisions of this part and the law, he is 
authorized and qualified to represent the particular party in the 
matter;
    (b) That, if he is the partner of a present or former officer or 
employee, including a special Government employee, the matter in respect 
of which he intends to practice is not a matter in which such officer or 
employee of the Government or special Government employee participates 
or has participated personally and substantially as a Government 
employee through decision, approval, disapproval, recommendation, the 
rendering of advice, investigation or otherwise and that the matter is 
not the subject of such partner's official Government responsibility;
    (c) That, if he is a former officer or employee, including a special 
Government employee, the matter in respect of which he intends to 
practice is not a matter in which he participated personally and 
substantially as a Government employee through decision, approval, 
disapproval, recommendation, the rendering of advice, investigation, or 
otherwise, while so employed and, if a period of one year has not passed 
since the termination of his employment with the Government, that the 
matter was not under his official responsibility as an officer or 
employee of the Government; and
    (d) That he has read the paper; that to the best of his knowledge, 
information, and belief there is good ground to support its contents; 
that it contains no scandalous or indecent matter; and that it is not 
interposed for delay.



Sec. 1.6  Disciplinary proceedings.

    (a) Disciplinary proceedings may be instituted against anyone who is 
practicing or has practiced before the Department on grounds that he is 
incompetent, unethical, or unprofessional, or that he is practicing 
without authority under the provisions of this part, or that he has 
violated any provisions of the laws and regulations governing practice 
before the Department, or that he has been disbarred or suspended by any 
court or administrative agency. Individuals practicing before the 
Department should observe the Canons of Professional Ethics of the 
American Bar Association and those of the Federal Bar Association, by 
which the Department will be guided in disciplinary matters.
    (b) Whenever in the discretion of the Solicitor the circumstances 
warrant consideration of the question whether disciplinary action should 
be taken against an individual who is practicing or has practiced before 
the Department, the Solicitor shall appoint a hearing officer to 
consider and dispose of the case. The hearing officer shall give the 
individual adequate notice of, and an opportunity for a hearing on, the 
specific charges against him. The hearing shall afford the individual an 
opportunity to present evidence and cross-examine witnesses. The hearing 
officer shall render a decision either (1) dismissing the charges, or 
(2) reprimanding the individual or suspending or excluding him from 
practice before the Department.
    (c) Within 30 days after receipt of the decision of the hearing 
officer reprimanding, suspending, or excluding an individual from 
practice before the Department, an appeal may be filed with the 
Solicitor, whose decision shall be final.



PART 2--RECORDS AND TESTIMONY; FREEDOM OF INFORMATION ACT--Table of Contents




  Subpart A--Opinions in Adjudication of Cases, Administrative Manuals

Sec.
2.1  Purpose and scope.
2.2  Opinions in adjudication of cases.
2.3  Administrative manuals.

                     Subpart B--Requests for Records

2.11  Purpose and scope.
2.12  Definitions.
2.13  Records available.
2.14  Requests for records.
2.15  Preliminary processing of requests.
2.16  Action on initial requests.
2.17  Time limits for processing initial requests.

[[Page 7]]

2.18  Appeals.
2.19  Action on appeals.
2.20  Fees.
2.21  Waiver of fees.
2.22  Special rules governing certain information concerning coal 
          obtained under the Mineral Leasing Act.

           Subpart C--Declassification of Classified Documents

2.41  Declassification of classified documents.

                         Subpart D--Privacy Act

2.45  Purpose and scope.
2.46  Definitions.
2.47  Records subject to Privacy Act.
2.48  Standards for maintenance of records subject to the Act.
2.49  [Reserved]
2.50  Federal Register notices describing systems of records.
2.51  Assuring integrity of records.
2.52  Conduct of employees.
2.53  Government contracts.
2.54-2.55  [Reserved]
2.56  Disclosure of records.
2.57  Accounting for disclosures.
2.58-2.59  [Reserved]
2.60  Request for notification of existence of records: Submission.
2.61  Requests for notification of existence of records: Action on.
2.62  Requests for access to records.
2.63  Requests for access to records: Submission.
2.64  Requests for access to records: Initial decision.
2.65  Requests for notification of existence of records and for access 
          to records: Appeals.
2.66  Requests for access to records: Special situations.
2.67-2.69  [Reserved]
2.70  Amendment of records.
2.71  Petitions for amendment: Submission and form.
2.72  Petitions for amendment: Processing and initial decision.
2.73  Petitions for amendments: Time limits for processing.
2.74  Petitions for amendment: Appeals.
2.75  Petitions for amendment: Action on appeals.
2.76  [Reserved]
2.77  Statements of disagreement.
2.78  [Reserved]
2.79  Exemptions.

   Subpart E--Legal Process: Testimony by Employees and Production of 
                                 Records

                           General Information

2.80  What does this subpart cover?
2.81  What is the Department's policy on granting requests for employee 
          testimony or Department records?

                     Responsibilities of Requesters

2.82  How can I obtain employee testimony or Department records?
2.83  If I serve a subpoena duces tecum, must I also submit a Touhy 
          Request?
2.84  What information must I put in my Touhy Request?
2.85  How much will I be charged?
2.86  Can I get an authenticated copy of a Department record?

                   Responsibilities of the Department

2.87  How will the Department process my Touhy Request?
2.88  What criteria will the Department consider in responding to my 
          Touhy Request?

                      Responsibilities of Employees

2.89  What must I, as an employee, do upon receiving a request?
2.90   Must I get approval before testifying as an expert witness on a 
          subject outside the scope of my official duties?

Appendix A to Part 2--Fees
Appendix B to Part 2--Bureaus and Offices of the Department of the 
          Interior

    Authority: 5 U.S.C. 301, 552 and 552a; 31 U.S.C. 9701; and 43 U.S.C. 
1460.

    Source: 40 FR 7305, Feb. 19, 1975, unless otherwise noted.



  Subpart A--Opinions in Adjudication of Cases, Administrative Manuals



Sec. 2.1  Purpose and scope.

    This subpart contains the regulations of the Department of the 
Interior concerning the availability to the public of opinions issued in 
the adjudication of cases and of administrative manuals. Persons 
interested in obtaining access to other records are directed to the 
procedures for submission of Freedom of Information requests set out in 
subpart B of this part.



Sec. 2.2  Opinions in adjudication of cases.

    (a)(1) Copies of final decisions and orders issued on and after July 
1, 1970, in the following categories of cases are available for 
inspection and copying in the Office of Hearings and Appeals, 801 North 
Quincy Street, Arlington, Va. 22203:

[[Page 8]]

    (i) Contract appeals;
    (ii) Appeals from decisions rendered by departmental officials 
relating to the use and disposition of public lands and their resources 
and the use and disposition of mineral resources in certain acquired 
lands of the United States and in the submerged lands of the Outer 
Continental Shelf;
    (iii) Appeals from orders and decisions issued by departmental 
officials and administrative law judges in proceedings relating to mine 
health and safety; and
    (iv) Appeals from orders and decisions of administrative law judges 
in Indian probate matters other than those involving estates of Indians 
of the Five Civilized Tribes and Osage Indians.
    (2) Copies of final opinions and orders issued in the following 
categories of cases are available for inspection and copying in the 
Docket and Records Section, Office of the Solicitor, Interior Building, 
Washington, DC 20240:
    (i) Tort claims decided in the headquarters office of the Office of 
the Solicitor, and appeals from decisions of Regional Solicitors or 
Field Solicitors on tort claims;
    (ii) Irrigation claims under Public Works Appropriation Acts (e.g., 
79 Stat., 1103) or 25 U.S.C. 388 decided in the headquarters office of 
the Office of the Solicitor, and appeals from decisions of Regional 
Solicitors on irrigation claims;
    (iii) Appeals under Sec. 2.18 respecting availability of records;
    (iv) Appeals from decisions of officials of the Bureau of Indian 
Affairs, and Indian enrollment appeals; and
    (v) Appeals from decisions of officers of the Bureau of Land 
Management and of the Geological Survey in proceedings relating to lands 
or interests in land, contract appeals, and appeals in Indian probate 
proceedings, issued prior to July 1, 1970.
    (3) An Index-Digest is issued by the Department. All decisions, 
opinions and orders issued in the categories of cases described in 
paragraphs (a)(1), (i), (ii), and (iii) of this section (that is, 
contract appeals, land appeals, and mine health and safety appeals), are 
covered in the Index-Digest; in addition, the Index-Digest covers the 
more important decisions, opinions and orders in the remaining 
categories of cases described in paragraphs (a)(1)(iv) and (a)(2) (i) 
through (iv) of this section, and the more important opinions of law 
issued by the Office of the Solicitor. The Index-Digest is available for 
use by the public in the Office of Hearings and Appeals, 801 North 
Quincy Street, Arlington, Va. 22203, in the Docket and Records Section, 
Office of the Solicitor, Interior Building, Washington, DC 20240, and in 
the offices of the Regional Solicitors and Field Solicitors. Selected 
decisions, opinions, and orders are published in a series entitled 
``Decisions of the United States Department of the Interior'' (cited as 
I.D.), and copies may be obtained by subscription from the 
Superintendent of Documents, U.S. Government Printing Office, 
Washington, DC 20402.
    (4) Copies of final opinions and orders issued by Regional 
Solicitors on tort claims and irrigation claims, and copies of final 
opinions and orders on appeals in Indian probate proceedings issued by 
Regional Solicitors prior to July 1, 1970, are available for inspection 
and copying in their respective offices. Copies of final opinions and 
orders issued by Field Solicitors on tort claims are available for 
inspection and copying in their respective offices.
    (b)(1) Copies of final decisions and orders issued prior to July 1, 
1970, on appeals to the Director, Bureau of Land Management, and by 
hearing examiners of the Bureau of Land Management, in proceedings 
relating to lands and interests in land are available for inspection and 
copying in the Office of Hearings and Appeals, 801 North Quincy Street, 
Arlington, Va. 22203, and in the offices of the Departmental 
administrative law judges.
    (2) Copies of final decisions, opinions and orders issued on and 
after July 1, 1970, by departmental administrative law judges in all 
proceedings before them are available for inspection and copying in 
their respective offices and in the Office of Hearings and Appeals, , 
Arlington, VA 22203.
    (3) Copies of final decisions, opinions and orders issued by 
administrative

[[Page 9]]

law judges in Indian probate proceedings are available for inspection 
and copying in their respective offices.

[40 FR 7305, Feb. 19, 1975, as amended at 67 FR 4368, Jan. 30, 2002]



Sec. 2.3  Administrative manuals.

    The Departmental Manual is available for inspection in the 
Departmental Library, Interior Building, Washington, DC, and at each of 
the regional offices of bureaus of the Department. The administrative 
manuals of those bureaus which have issued such documents are available 
for inspection at the headquarters officers and at the regional offices 
of the bureaus.



                     Subpart B--Requests for Records

    Source: 52 FR 45586, Nov. 30, 1987, unless otherwise noted.



Sec. 2.11  Purpose and scope.

    (a) This subpart contains the procedures for submission to and 
consideration by the Department of the Interior of requests for records 
under the Freedom of Information Act.
    (b) Before invoking the formal procedures set out below, persons 
seeking records from the Department may find it useful to consult with 
the appropriate bureau FOIA officer. Bureau offices are listed in 
Appendix B to this part.
    (c) The procedures in this subpart do not apply to:
    (1) Records published in the Federal Register, opinions in the 
adjudication of cases, statements of policy and interpretations, and 
administrative staff manuals that have been published or made available 
under subpart A of this part.
    (2) Records or information compiled for law enforcement purposes and 
covered by the disclosure exemption described in Sec. 2.13(c)(7) if--
    (i) The investigation or proceeding involves a possible violation of 
criminal law; and
    (ii) There is reason to believe that--
    (A) The subject of the investigation or proceeding is not aware of 
its pendency, and
    (B) Disclosure of the existence of the records could reasonably be 
expected to interfere with enforcement proceedings.
    (3) Informant records maintained by a criminal law enforcement 
component of the Department under an informant's name or personal 
identifier, if requested by a third party according to the informant's 
name or personal identifier, unless the informant's status as an 
informant has been officially confirmed.



Sec. 2.12  Definitions.

    (a) Act and FOIA mean the Freedom of Information Act, 5 U.S.C. 552.
    (b) Bureau refers to all constituent bureaus of the Department of 
the Interior, the Office of the Secretary, and the other Departmental 
offices. A list of bureaus is contained in Appendix B to this part.
    (c) Working day means a regular Federal workday. It does not include 
Saturdays, Sundays or public legal holidays.



Sec. 2.13  Records available.

    (a) Department policy. It is the policy of the Department of the 
Interior to make the records of the Department available to the public 
to the greatest extent possible, in keeping with the spirit of the 
Freedom of Information Act.
    (b) Statutory disclosure requirement. The Act requires that the 
Department, on a request from a member of the public submitted in 
accordance with the procedures in this subpart, make requested records 
available for inspection and copying.
    (c) Statutory exemptions. Exempted from the Act's statutory 
disclosure requirement are matters that are:
    (1)(i) Specifically authorized under criteria established by an 
Executive order to be kept secret in the interest of national defense or 
foreign policy and
    (ii) Are in fact properly classified pursuant to such Executive 
order;
    (2) Related solely to the internal personnel rules and practices of 
an agency;
    (3) Specifically exempted from disclosure by statute (other than the 
Privacy Act), provided that such statute--
    (i) Requires that the matters be withheld from the public in such a 
manner

[[Page 10]]

as to leave no discretion on the issue, or
    (ii) Establishes particular criteria for withholding or refers to 
particular types of matters to be withheld;
    (4) Trade secrets and commercial or financial information obtained 
from a person and privileged or confidential;
    (5) Inter-agency or intra-agency memorandums or letters which would 
not be available by law to a party other than an agency in litigation 
with the agency;
    (6) Personnel and medical files and similar files the disclosure of 
which would constitute a clearly unwarranted invasion of personal 
privacy;
    (7) Records or information compiled for law enforcement purposes, 
but only to the extent that the production of such law enforcement 
records or information--
    (i) Could reasonably be expected to interfere with enforcement 
proceedings,
    (ii) Would deprive a person of a right to a fair or an impartial 
adjudication,
    (iii) Could reasonably be expected to constitute an unwarranted 
invasion of personal privacy,
    (iv) Could reasonably be expected to disclose the identity of a 
confidential source, including a State, local, or foreign agency or 
authority or any private institution which furnished information on a 
confidential basis, and, in the case of a record or information compiled 
by a criminal law enforcement authority in the course of a criminal 
investigation, or by an agency conducting a lawful national security 
intelligence investigtion, information furnished by a confidential 
source,
    (v) Would disclose techniques and procedures for law enforcement 
investigations or prosecutions or would disclose guidelines for law 
enforcement investigations or prosecutions if such disclosure could 
reasonably be expected to risk circumvention of the law, or
    (vi) Could reasonably be expected to endanger the life or physical 
safety of any individual;
    (8) Contained in or related to examination, operating, or condition 
reports prepared by, on behalf of, or for the use of an agency 
responsible for the regulation or supervision of financial institutions; 
or
    (9) Geological and geophysical information and data, including maps, 
concerning wells.
    (d) Decisions on requests. It is the policy of the Department to 
withhold information falling within an exemption only if--
    (1) Disclosure is prohibited by statute or Executive order or
    (2) Sound grounds exist for invocation of the exemption.
    (e) Disclosure of reasonably segregable nonexempt material. If a 
requested record contains material covered by an exemption and material 
that is not exempt, and it is determined under the procedures in this 
subpart to withhold the exempt material, any reasonably segregable 
nonexempt material shall be separated from the exempt material and 
released.



Sec. 2.14  Requests for records.

    (a) Submission of requests. (1) A request to inspect or copy records 
shall be made to the installation where the records are located. If the 
records are located at more than one installation or if the specific 
location of the records is not known to the requester, he or she may 
direct a request to the head of the appropriate bureau or to the 
bureau's FOIA officer. Addresses for bureau heads and FOIA officers are 
contained in Appendix B to this part.
    (2) Exceptions. (i) A request for records located in all components 
of the Office of the Secretary (other than the Office of Hearings and 
Appeals) shall be submitted to: Director, Office of Administrative 
Services, U.S. Department of the Interior, Washington, DC 20240. A 
request for records located in the Office of Hearings and Appeals shall 
be submitted to: Director, Office of Hearings and Appeals, 801 North 
Quincy Street, Arlington, Virginia 22203.
    (ii) A request for records of the Office of Inspector General shall 
be submitted to: Inspector General, Office of the Inspector General, 
U.S. Department of the Interior, Washington, DC 20240.
    (iii) A request for records of the Office of the Solicitor shall be 
submitted to: Solicitor, Office of the Solicitor,

[[Page 11]]

U.S. Department of the Interior, Washington, DC 20240.
    (b) Form of requests. (1) Requests under this subpart shall be in 
writing and must specifically invoke the Act.
    (2) A request must reasonably describe the records requested. A 
request reasonably describes the records requested if it will enable an 
employee of the Department familiar with the subject area of the request 
to locate the record with a reasonable amount of effort. If such 
information is available, the request should identify the subject matter 
of the record, the date when it was made, the place where it was made, 
the person or office that made it, the present custodian of the record, 
and any other information that will assist in locating the requested 
record. If the request involves a matter known by the requester to be in 
litigation, the request should also state the case name and court 
hearing the case.
    (3)(i) A request shall--
    (A) Specify the fee category (commercial use, news media, 
educational institution, noncommercial scientific institution, or other) 
in which the requester claims the request to fall and the basis of this 
claim (see Sec. 2.20(b) through (e) for definitions) and
    (B) State the maximum amount of fees that the requester is willing 
to pay or include a request for a fee waiver.
    (ii) Requesters are advised that, under Sec. 2.20 (f) and (g), the 
time for responding to requests may be delayed--
    (A) If a requester has not sufficiently identified the fee category 
applicable to the request,
    (B) If a requester has not stated a willingness to pay fees as high 
as anticipated by the Department or
    (C) If a fee waiver request is denied and the requester has not 
included an alternative statement of willingness to pay fees as high as 
anticipated by the Department.
    (4) A request seeking a fee waiver shall, to the extent possible, 
address why the requester believes that the criteria for fee waivers set 
out in Sec. 2.21 are met.
    (5) To ensure expeditious handling, requests should be prominently 
marked, both the envelope and on the face of the request, with the 
legend ``FREEDOM OF INFORMATION REQUEST.''
    (c) Creation of records. A request may seek only records that are in 
existence at the time the request is received. A request may not seek 
records that come into existence after the date on which it is received 
and may not require that new records be created in response to the 
request by, for example, combining or compiling selected items from 
manual files, preparing a new computer program, or calculating 
proportions, percentages, frequency distributions, trends or 
comparisons. In those instances where the Department determines that 
creating a new record will be less burdensome than disclosing large 
volumes of unassembled material, the Department may, in its discretion, 
agree to creation of a new record as an alternative to disclosing 
existing records.

[52 FR 45586, Nov. 30, 1987, as amended at 67 FR 4368, Jan. 30, 2002]



Sec. 2.15  Preliminary processing of requests.

    (a) Scope of requests. (1) Unless a request clearly specifies 
otherwise, requests to field installations of a bureau may be presumed 
to seek only records at that installation and requests to a bureau head 
or bureau FOIA officer may be presumed to seek only records of that 
bureau.
    (2) If a request to a field installation of a bureau specifies that 
it seeks records located at other installations of the same bureau, the 
installation shall refer the request to the other installation(s) or the 
bureau FOIA officer for appropriate processing. The time limit provided 
in Sec. 2.17(a) does not start until the request is received at the 
installation having the records or by the bureau FOIA officer.
    (3) If a request to a bureau specifies that it seeks records of 
another bureau, the bureau may return the request (or the relevant 
portion thereof) to the requester with instructions as to how the 
request may be resubmitted to the other bureau.
    (b) Intradepartmental consultation and referral. (1) If a bureau 
(other than the Office of Inspector General) receives a request for 
records in its possession

[[Page 12]]

that originated with or are of substantial concern to another bureau, it 
shall consult with that bureau before deciding whether to release or 
withhold the records.
    (2) As an alternative to consultation, a bureau may refer the 
request (or the relevant protion thereof) to the bureau that originated 
or is substantially concerned with the records. Such referrals shall be 
made expeditiously and the requester shall be notified in writing that a 
referral has been made. A referral under this paragraph does not restart 
the time limit provided in Sec. 2.17.
    (c) Records of other departments and agencies. (1) If a requested 
record in the possession of the Department of the Interior originated 
with another Federal department or agency, the request shall be referred 
to that agency unless--
    (i) The record is of primary interest to the Department,
    (ii) The Department is in a better position than the originating 
agency to assess whether the record is exempt from disclosure, or
    (iii) The originating agency is not subject to the Act.

The Department has primary interest in a record if it was developed or 
prepared pursuant to Department regulations, directives or request.
    (2) In accordance with Execuctive Order 12356, a request for 
documents that were classified by another agency shall be referred to 
that agency.
    (d) Consultation with submitters of commercial and financial 
information. (1) If a request seeks a record containing trade secrets or 
commercial or financial information submitted by a person outside of the 
Federal government, the bureau processing the request shall provide the 
submitter with notice of the request whenever--
    (i) The submitter has made a good faith designation of the 
information as commercially or financially sensitive, or
    (ii) The bureau has reason to believe that disclosure of the 
information may result in commercial or financial injury to the 
submitter.

Where notification of a voluminous number of submitters is required, 
such notification may be accomplished by posting or publishing the 
notice in a place reasonably calculated to accomplish notification.
    (2) The notice to the submitter shall afford the submitter a 
reasonable period within which to provide a detailed statement of any 
objection to disclosure. The submitter's statement shall explain the 
basis on which the information is claimed to be exempt under the FOIA, 
including a specification of any claim of competitive or other business 
harm that would result from disclosure. The statement shall also include 
a certification that the information is confidential, has not been 
disclosed to the public by the submitter, and is not routinely available 
to the public from other sources.
    (3) If a submitter's statement cannot be obtained within the time 
limit for processing the request under Sec. 2.17, the requester shall be 
notified of the delay as provided in Sec. 2.17(f).
    (4) Notification to a submitter is not required if:
    (i) The bureau determines, prior to giving notice, that the request 
for the record should be denied;
    (ii) The information has previously been lawfully published or 
officially made available to the public;
    (iii) Disclosure is required by a statute (other than the FOIA) or 
regulation (other than this subpart);
    (iv) Disclosure is clearly prohibited by a statute, as described in 
Sec. 2.13(c)(3);
    (v) The information was not designated by the submitter as 
confidential when it was submitted, or a reasonable time thereafter, if 
the submitter was specifically afforded an opportunity to make such a 
designation; however, a submitter will be notified of a request for 
information that was not designated as confidential at the time of 
submission, or a reasonable time thereafter, if there is substantial 
reason to believe that disclosure of the information would result in 
competitive harm.
    (vi) The designation of confidentiality made by the submitter is 
obviously frivolous; or
    (vii) The information was submitted to the Department more than 10 
years prior to the date of the request, unless the bureau has reason to 
believe that it continues to be confidential.

[[Page 13]]

    (5) If a requester brings suit to compel disclosure of information, 
the submitter of the information will be promptly notified.



Sec. 2.16  Action on initial requests.

    (a) Authority. (1) Requests to field installations shall be decided 
by the head of the installation or by such higher authority as the head 
of the bureau may designate in writing.
    (2) Requests to the headquarters of a bureau shall be decided only 
by the head of the bureau or an official whom the head of the bureau has 
in writing designated.
    (3) Requests to the Office of the Secretary may be decided by the 
Director of Administrative Services, an Assistant Secretary or Assistant 
Secretary's designee, and any official whom the Secretary has in writing 
designated.
    (4) A decision to withhold a requested record, to release a record 
that is exempt from disclosure, or to deny a fee waiver shall be made 
only after consultation with the office of the appropriate associate, 
regional, or field solicitor.
    (b) Form of grant. (1) When a requested record has been determined 
to be available, the official processing the request shall notify the 
requester as to when and where the record is available for inspection 
or, as the case may be, when and how copies will be provided. If fees 
are due, the official shall state the amount of fees due and the 
procedures for payment, as described in Sec. 2.20.
    (2) If a requested record (or portion thereof) is being made 
available over the objections of a submitter made in accordance with 
Sec. 2.15(d), both the requester and the submitter shall be notified of 
the decision. The notice to the submitter (a copy of which shall be made 
available to the requester) shall be forwarded a reasonable number of 
days prior to the date on which disclosure is to be made and shall 
include:
    (i) A statement of the reasons why the submitter's objections were 
not sustained;
    (ii) A specification of the portions of the record to be disclosed, 
if the submitter's objections were sustained in part; and
    (iii) A specified disclosure date.
    (3) If a claim of confidentiality has been found frivolous in 
accordance with Sec. 2.15(d)(4)(vi) and a determination is made to 
release the information without consultation with the submitter, the 
submitter of the information shall be notified of the decision and the 
reasons therefor a reasonable number of days prior to the date on which 
disclosure is to be made.
    (c) Form of denial. (1) A decision withholding a requested record 
shall be in writing and shall include:
    (i) A reference to the specific exemption or exemptions authorizing 
the withholding;
    (ii) If neither a statute or an Executive order requires 
withholding, the sound ground for withholding;
    (iii) A listing of the names and titles or positions of each person 
responsible for the denial; and
    (iv) A statement that the denial may be appealed to the Assistant 
Secretary--Policy, Budget and Administration and a description of the 
procedures in Sec. 2.18 for appeal.
    (2) A decision denying a request for failure to reasonably describe 
requested records or for other procedural deficiency or because 
requested records cannot be located shall be in writing and shall 
include:
    (i) A description of the basis of the decision;
    (ii) A list of the names and titles or positions of each person 
responsible; and
    (iii) A statement that the matter may be appealed to the Assistant 
Secretary--Policy, Budget and Administration and a description of the 
procedures in Sec. 2.18 for appeal.



Sec. 2.17  Time limits for processing initial requests.

    (a) Basic limit. Requests for records shall be processed promptly. A 
determination whether to grant or deny a request shall be made within no 
more than 10 working days after receipt of a request. This determination 
shall be communicated immediately to the requester.
    (b) Running of basic time limit. (1) The 10 working day time limit 
begins to run when a request meeting the requirements of Sec. 2.14(b) is 
received at a

[[Page 14]]

field installation or bureau headquarters designated in Sec. 2.14(a) to 
receive the request.
    (2) The running of the basic time limit may be delayed or tolled as 
explained in Sec. 2.20 (f), (g) and (h) if a requester--
    (i) Has not stated a willingnes to pay fees as high as are 
anticipated and has not sought and been granted a full fee waiver, or
    (ii) Has not made a required advance payment.
    (c) Extensions of time. In the following unusual circumstances, the 
time limit for acting on an initial request may be extended to the 
extent reasonably necessary to the proper processing of the request, but 
in no case may the time limit be extended for more than 10 working days:
    (1) The need to search for and collect the requested records from 
field facilities or other establishments that are separate from the 
installation processing the request;
    (2) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records demanded in a single 
request; or
    (3) The need for consultation, which shall be conducted with all 
practicable speed, with another agency having a substantial interest in 
the determination of the request or among two or more components of the 
Department having substantial subject-matter interest therein.
    (d) Notice of extension. A requester shall be notified in writing of 
an extension under paragraph (c) of this section. The notice shall state 
the reason for the extension and the date on which a determination on 
the request is expected to be made.
    (e) Treatment of delay as denial. If no determination has been 
reached at the end of the 10 working day period for deciding an initial 
request, or an extension thereof under paragraph (c) of this section, 
the requester may deem the request denied and may exercise a right of 
appeal in accordance with Sec. 2.18.
    (f) Notice of delay. When a determination cannot be reached within 
the time limit, or extension thereof, the requester shall be notified of 
the reason for the delay, of the date on which a determination may be 
expected, and of the right to treat the delay as a denial for purposes 
of appeal to the Assistant Secretary--Policy, Budget and Administration, 
including a description of the procedures for filing an appeal in 
Sec. 2.18.



Sec. 2.18  Appeals.

    (a) Right of appeal. A requester may appeal to the Assistant 
Secretary--Policy, Budget and Administration when--
    (1) Records have been withheld,
    (2) A request has been denied for failure to describe requested 
records or for other procedural deficiency or because requested records 
cannot be located,
    (3) A fee waiver has been denied, or
    (4) A request has not been decided within the time limits provided 
in Sec. 2.17.
    (b) Time for appeal. An appeal must be received no later than 20 
working days after the date of the initial denial, in the case of a 
denial of an entire request, or 20 working days after records have been 
made available, in the case of a partial denial.
    (c) Form of appeal. (1) An appeal shall be initiated by filing a 
written notice of appeal. The notice shall be accompanied by copies of 
the original request and the initial denial and should, in order to 
expedite the appellate process and give the requester an opportunity to 
present his or her arguments, contain a brief statement of the reasons 
why the requester believes the initial denial to have been in error.
    (2) The appeal shall be addressed to the Freedom of Information Act 
Appeals Officer, Office of the Assistant Secretary--Policy, Budget and 
Administration, U.S. Department of the Interior, Washington, DC 20240.
    (3) To expedite processing, both the envelope containing a notice of 
appeal and the face of the notice should bear the legend ``FREEDOM OF 
INFORMATION APPEAL.''



Sec. 2.19  Action on appeals.

    (a) Authority. Appeals shall be decided by the Assistant Secretary--
Policy, Budget and Administration, or the Assistant Secretary's 
designee, after consultation with the Solicitor, the Director of Public 
Affairs and the appropriate program Assistant Secretary.

[[Page 15]]

    (b) Time limit. A final determination shall be made within 20 
working days after receipt of an appeal meeting the requirements of 
Sec. 2.18(c).
    (c) Extensions of time. (1) If the time limit for responding to the 
initial request for a record was not extended under the provisions of 
Sec. 2.17(c) or was extended for fewer than 10 working days, the time 
for processing of the appeal may be extended to the extent reasonably 
necessary to the proper processing of the appeal, but in no event may 
the extension, when taken together with any extension made during 
processing of the initial request, result in an aggregate extension with 
respect to any one request of more than 10 working days. The time for 
processing of an appeal may be extended only if one or more of the 
unusual circumstances listed in Sec. 2.17(c) requires an extension.
    (2) The appellant shall be advised in writing of the reasons for the 
extension and the date on which a final determination on the appeal is 
expected to be dispatched.
    (3) If no determination on the appeal has been reached at the end of 
the 20 working day period, or the extension thereof, the requester is 
deemed to have exhausted his administrative remedies, giving rise to a 
right of review in a district court of the United States, as specified 
in 5 U.S.C. 552(a)(4). When no determination can be reached within the 
applicable time limit, the appeal will nevertheless continue to be 
processed. On expiration of the time limit, the requester shall be 
informed of the reason for the delay, of the date on which a 
determination may be reached to be dispatched and of the right to seek 
judicial review.
    (d) Form of decision. (1) The final determination on an appeal shall 
be in writing and shall state the basis for the determination. If the 
determination is to release the requested records or portions thereof, 
the Assistant Secretary--Policy, Budget and Administration shall 
immediately make the records available or instruct the appropriate 
bureau to make them immediately available. If the determination upholds 
in whole or part the initial denial of a request for records, the 
determination shall advise the requester of the right to obtain judicial 
review in the U.S. District Court for the district in which the withheld 
records are located, or in which the requester resides or has his or her 
principal place of business or in the U.S. District Court for the 
District of Columbia, and shall set forth the names and titles or 
positions of each person responsible for the denial.
    (2) If a requested record (or portion thereof) is being made 
available over the objections of a submitter made in accordance with 
Sec. 2.15(d), the submitter shall be provided notice as described in 
Sec. 2.16(b)(2).



Sec. 2.20  Fees.

    (a) Policy. (1) Unless waived pursuant to the provisions of 
Sec. 2.21, fees for responding to FOIA requests shall be charged in 
accordance with the provisions of this section and the schedule of 
charges contained in Appendix A to this part.
    (2) Fees shall not be charged if the total amount chargeable does 
not exceed $15.00.
    (3) Where there is a reasonable basis to conclude that a requester 
or group of requesters acting in concert has divided a request into a 
series of requests on a single subject or related subjects to avoid 
assessment of fees, the requests may be aggregated and fees charged 
accordingly.
    (b) Commercial use requests. (1) A requester seeking records for 
commercial use shall be charged fees for costs incurred in document 
search, duplication and review.
    (2) A commercial use requester may not be charged fees for time 
spent resolving legal and policy issues affecting access to requested 
records.
    (3) A commercial use request is a request from or on behalf of a 
person who seeks information for a use or purpose that further the 
commercial, trade or profit interests of the requester or the person on 
whose behalf the request is made. The intended use of records may be 
determined on the basis of information submitted by a requester and from 
reasonable inferences based on the identity of the requester and any 
other available information.

[[Page 16]]

    (c) Educational and noncommercial scientific institution requests. 
(1) A requester seeking records under the auspices of an educational 
institution in furtherance of scholarly research or a noncommercial 
scientific institution in furtherance of scientific research shall be 
charged for document duplication, except that the first 100 pages of 
paper copies (or the equivalent cost thereof if the records are in some 
other form) shall be provided without charge.
    (2) Such requesters may not be charged fees for costs incurred in--
    (i) Searching for requested records,
    (ii) Examining requested records to determine whether they are 
exempt from mandatory disclosure,
    (iii) Deleting reasonably segregable exempt matter,
    (iv) Monitoring the requesters' inspection of agency records, or
    (v) Resolving legal and policy issues affecting access to requested 
records.
    (3) An ``educational institution'' is a preschool, a public or 
private elementary or secondary school, an institution of graduate 
higher education, an institution of undergraduate higher education, an 
institution of professional education, or an institution of vocational 
education, which operates a program or programs of scholarly research.
    (4) A ``noncommercial scientific institution'' is an institution 
that is not operated for commerce, trade or profit and that is operated 
solely for the purpose of conducting scientific research the results of 
which are not intended to promote any particular product or industry.
    (d) News media requests. (1) A representative of the new media shall 
be charged for document duplication, except that the first 100 pages of 
paper copies (or the equivalent cost thereof if the records are in some 
other form) shall be provided without charge.
    (2) Representatives of the news media may not be charged fees for 
costs incurred in--
    (i) Searching for requested records,
    (ii) Examining requested records to determine whether they are 
exempt from mandatory disclosure,
    (iii) Deleting reasonably segregable exempt matter,
    (iv) Monitoring the requester's inspection of agency records, or
    (v) Resolving legal and policy issues affecting access to requested 
records.
    (3)(i) A ``representative of the news media'' is any person actively 
gathering news for an entity that is organized and operated to publish 
or broadcast news to the public. The term ``news'' means information 
that is about current events or that is (or would be) of current 
interest to the public. Examples of news media entities include, but are 
not limited to, television or radio stations broadcasting to the public 
at large, and publishers of periodicals (but only in those instances 
when they can qualify as disseminators of ``news'') who make their 
products available for purchase or subscription by the general public. 
As traditional methods of news delivery evolve (e.g., electronic 
dissemination of newspapers through telecommunications services), such 
alternative media would be included in this category.
    (ii) Free-lance journalists may be considered ``representatives of 
the news media'' if they demonstrate a solid basis for expecting 
publication through a news organization, even though not actually 
employed by it. A publication contract or past record of publication, or 
evidence of a specific free-lance assignment from a news organization 
may indicate a solid basis for expecting publication.
    (e) Other requests. (1) A requester not covered by paragraphs (b), 
(c) or (d) of this section shall be charged fees for document search and 
duplication, except that the first two hours of search time and the 
first 100 pages of paper copies (or the equivalent cost thereof if the 
records are in some other form) shall be provided without charge.
    (2) Such requesters may not be charged for costs incurred in--
    (i) Examining requested records to determine whether they are exempt 
from disclosure,
    (ii) Deleting reasonably segregable exempt matter,
    (iii) Monitoring the requester's inspection of agency records, or
    (iv) Resolving legal and policy issues affecting access to requested 
records.

[[Page 17]]

    (f) Requests for clarification. Where a request does not provide 
sufficient information to determine whether it is covered by paragraph 
(b), (c), (d) or (e) of this section, the requester should be asked to 
provide additional clarification. If it is necessary to seek such 
clarification, the request may be deemed to have not been received for 
purposes of the time limits established in Sec. 2.17 until the 
clarification is received. Requests to requesters for clarification 
shall be made promptly.
    (g) Notice of anticipated fees. Where a request does not state a 
willingness to pay fees as high as anticipated by the Department, and 
the requester has not sought and been granted a full waiver of fees 
under Sec. 2.21, the request may be deemed to have not been received for 
purposes of the time limits established in Sec. 2.17 until the requester 
has been notified of and agrees to pay the anticipated fee. Advice to 
requesters with respect to anticipated fees shall be provided promptly.
    (h) Advance payment. (1) Where it is anticipated that allowable fees 
are likely to exceed $250.00 and the requester does not have a history 
of prompt payment of FOIA fees, the requester may be required to make an 
advance payment of the entire fee before processing of his or her 
request.
    (2) Where a requester has previously failed to pay a fee within 30 
calendar days of the date of billing, processing of any new request from 
that requester shall ordinarily be suspended until the requester pays 
any amount still owed, including applicable interest, and makes advance 
payment of allowable fees anticipated in connection with the new 
request.
    (3) Advance payment of fees may not be required except as described 
in paragraphs (h) (1) and (2) of this section.
    (4) Issuance of a notice requiring payment of overdue fees or 
advance payment shall toll the time limit in Sec. 2.17 until receipt of 
payment.
    (i) Form of payment. Payment of fees should be made by check or 
money order payable to the Department of the Interior or the bureau 
furnishing the information. The term United States or the initials 
``U.S.'' should not be included on the check or money order. Where 
appropriate, the official responsible for handling a request may require 
that payment by check be made in the form of a certified check.
    (j) Billing procedures. A bill for collection, Form DI-1040, shall 
be prepared for each request that requires collection of fees. The 
requester shall be provided the first sheet of the DI-1040. This 
Accounting Copy of the Form shall be transmitted to the agency's finance 
office for entry into accounts receivable records. Upon receipt of 
payment from the requester, the recipient shall forward the payment 
along with a copy of the DI-1040 to the finance office.
    (k) Collection of fees. The bill for collection or an accompanying 
letter to the requester shall include a statement that interest will be 
charged in accordance with the Debt Collection Act of 1982, 31 U.S.C. 
3717, and implementing regulations, 4 CFR 102.13, if the fees are not 
paid within 30 calendar days of the date of the bill for collection is 
mailed or hand-delivered to the requester. This requirement does not 
apply if the requester is a unit of state or local government. Other 
authorities of the Debt Collection Act of 1982 shall be used, as 
appropriate, to collect the fees (see 4 CFR parts 101-105).



Sec. 2.21  Waiver of fees.

    (a) Statutory fee waiver. (1) Documents shall be furnished without 
charge or at a charge reduced below the fees chargeable under Sec. 2.20 
and appendix A to this part if disclosure of the information is in the 
public interest because it--
    (i) Is likely to contribute significantly to public understanding of 
the operations or activities of the government and
    (ii) Is not primarily in the commercial interest of the requester.
    (2) Factors to be considered in determining whether disclosure of 
information ``is likely to contribute significantly to public 
understanding of the operations or activities of the government'' are 
the following:
    (i) Does the record concern the operations or activities of the 
government? Records concern the operations or activities of the 
government if they relate to or will illuminate the manner in which the 
Department or a bureau is carrying out identifiable operations or

[[Page 18]]

activities or the manner in which an operation or activity affects the 
public. The connection between the records and the operations and 
activities to which they are said to relate should be clear and direct, 
not remote and attenuated. Records developed outside of the government 
and submitted to or obtained by the Department may relate to the 
operations and activities of the government if they are informative on 
how an agency is carrying out its regulatory, enforcement, procurement 
or other activities that involve private entities.
    (ii) If a record concerns the operations or activities of the 
government, is its disclosure likely to contribute to public 
understanding of these operations and activities? The likelihood of a 
contribution to public understanding will depend on consideration of the 
content of the record, the identity of the requester, and the 
interrelationship between the two. Is there a logical connection between 
the content of the requested record and the operations or activities in 
which the requester is interested? Are the disclosable contents of the 
record meaningfully informative on the operations or activities? Is the 
focus of the requester on contribution to public understanding, rather 
than on the individual understanding of the requester or a narrow 
segment of interested persons? Does the requester have expertise in the 
subject area and the ability and intention to disseminate the 
information to the general public or otherwise use the information in a 
manner that will contribute to public understanding of government 
operations or activities? Is the requested information sought by the 
requester because it may be informative on government operations or 
activities or because of the intrinsic value of the information 
independent of the light that it may shed on government operations or 
activities?
    (iii) If there is likely to be a contribution to public 
understanding, will that contribution be significant? A contribution to 
public understanding will be significant if the information disclosed is 
new, clearly supports public oversight of Department operations, 
including the quality of Department activities and the effect of policy 
and regulations on public health and safety, or otherwise confirms or 
clarifies data on past or present operations of the Department. A 
contribution will not be significant if disclosure will not have a 
positive impact on the level of public understanding of the operations 
or activities involved that existed prior to the disclosure. In 
particular, a significant contribution is not likely to arise from 
disclosure of information already in the public domain because it has, 
for example, previously been published or is routinely available to the 
general public in a public reading room.
    (3) Factors to be considered in determining whether disclosure ``is 
primarily in the commercial interest of the requester'' are the 
following:
    (i) Does the requester have a commercial interest that would be 
furthered by the requested disclosure? A commercial interest is a 
commercial, trade or profit interest as these terms are commonly 
understood. An entity's status is not determinative. Not only profit-
making corporations, but also individuals or other organizations, may 
have a commercial interest to be served by disclosure, depending on the 
circumstances involved.
    (ii) If the requester has a commercial interest, will disclosure be 
primarily in that interest? The requester's commercial interest is the 
primary interest if the magnitude of that interest is greater than the 
public interest to be served by disclosure. Where a requester is a 
representative of a news media organization seeking information as part 
of the news gathering process, it may be presumed that the public 
interest outweighs the organization's commercial interest.
    (4) Notice of denial. If a requested statutory fee waiver or 
reduction is denied, the requester shall be notified in writing. The 
notice shall include:
    (i) A statement of the basis on which the waiver or reduction has 
been denied.
    (ii) A listing of the names and titles or positions of each person 
responsible for the denial.

[[Page 19]]

    (iii) A statement that the denial may be appealed to the Assistant 
Secretary--Policy, Budget and Administration and a description of the 
procedures in Sec. 2.18 for appeal.
    (b) Discretionary waivers. Fees otherwise chargeable may be waived 
at the discretion of a bureau if a request involves:
    (1) Furnishing unauthenticated copies of documents reproduced for 
gratuitous distribution;
    (2) Furnishing one copy of a personal document (e.g., a birth 
certificate) to a person who has been required to furnish it for 
retention by the Department;
    (3) Furnishing one copy of the transcript of a hearing before a 
hearing officer in a grievance or similar proceeding to the employee for 
whom the hearing was held.
    (4) Furnishing records to donors with respect to their gifts;
    (5) Furnishing records to individuals or private non-profit 
organizations having an official voluntary or cooperative relationship 
with the Department to assist the individual or organization in its work 
with the Department;
    (6) Furnishing records to state, local and foreign governments, 
public international organizations, and Indian tribes, when to do so 
without charge is an appropriate courtesy, or when the recipient is 
carrying on a function related to that of the Department and to do so 
will help to accomplish the work of the Department;
    (7) Furnishing a record when to do so saves costs and yields income 
equal to the direct cost of providing the records (e.g., where the 
Department's fee for the service would be included in a billing against 
the Department);
    (8) Furnishing records when to do so is in conformance with 
generally established business custom (e.g., furnishing personal 
reference data to prospective employers of former Department employees);
    (9) Furnishing one copy of a record in order to assist the requester 
to obtain financial benefits to which he or she is entitled (e.g., 
veterans or their dependents, employees with Government employee 
compensation claims or persons insured by the Government).



Sec. 2.22  Special rules governing certain information concerning coal obtained under the Mineral Leasing Act.

    (a) Definitions. As used in the section:
    (1) Act means the Mineral Leasing Act of February 25, 1920, as 
amended by the Act of August 4, 1976, Pub. L. 94-377, 90 Stat. 1083 (30 
U.S.C. 181 et seq.), and the Mineral Leasing Act for Acquired Lands, as 
amended (30 U.S.C. 351 et seq.)
    (2) Exploration license means a license issued by the Secretary of 
the Interior to conduct coal exploration operations on land subject to 
the Act pursuant to the authority in section 2(b) of the Act, as amended 
(30 U.S.C. 201(b)).
    (3) Fair-market value of coal to be leased means the minimum amount 
of a bid the Secretary has determined he is willing to accept in leasing 
coal within leasing tracts offered in general lease sales or reserved 
and offered for lease to public bodies, including Federal agencies, 
rural electric cooperatives, or non-profit corporations, controlled by 
any of such entities pursuant to section 2(a) of the Act (30 U.S.C. 
201(a)(1)).
    (4) Information means data, statistics, samples and other facts, 
whether analyzed or processed or not, pertaining to Federal coal 
resources, which fit within an exemption to the Freedom of Information 
Act, 5 U.S.C. 552(b).
    (b) Applicability. This section applies to the following categories 
of information:
    (1) Category A. Information provided to or obtained by a bureau 
under section 2(b)(3) of the Act from the holder of an exploration 
license;
    (2) Category B. Information acquired from commercial or other 
sources under service contract with Geological Survey pursuant to 
section 8A(b) of the Act, and information developed by the Geological 
Survey under an exploratory program authorized by section 8A of the Act;
    (3) Category C. Information obtained from commercial sources which 
the commercial source acquired while not under contract with the United 
States Government;
    (4) Category D. Information provided to the Secretary by a federal 
department or agency pursuant to section 8A(e) of the Act; and

[[Page 20]]

    (5) Category E. The fair-market value of coal to be leased and 
comments received by the Secretary with respect to such value.
    (c) Availability of information. Information obtained by the 
Department from various sources will be made available to the public as 
follows:
    (1) Category A--Information. Category A information shall not be 
disclosed to the public until after the areas to which the information 
pertains have been leased by the Department, or until the Secretary 
determines that release of the information to the public would not 
damage the competitive position of the holder of the exploration 
license, whichever comes first.
    (2) Category B--Information. Category B information shall not be 
withheld from the public; it will be made available by means of and at 
the time of open filing or publication by Geological Survey.
    (3) Category C--Information. Category C information shall not be 
made available to the public until after the areas to which the 
information pertains have been leased by the Department.
    (4) Category D--Information. Category D information shall be made 
available to the public under the terms and conditions to which, at the 
time he or she acquired it, the head of the department or agency from 
whom the Secretary later obtained the information agreed.
    (5) Category E--Information. Category E information shall not be 
made public until the lands to which the information pertains have been 
leased, or until the Secretary has determined that its release prior to 
the issuance of a lease is in the public interest.



           Subpart C--Declassification of Classified Documents



Sec. 2.41  Declassification of classified documents.

    (a) Request for classification review. (1) Requests for a 
classification review of a document of the Department of the Interior 
pursuant to section 5(c) of Executive Order 11652 (37 FR 5209, March 10, 
1972) and section III B of the National Security Council Directive 
Governing Classification, Downgrading, Declassification and Safeguarding 
of National Security Information (37 FR 10053, May 1972) shall be made 
in accordance with the procedures established by this section.
    (2) Any person desiring a classification review of a document of the 
Department of the Interior containing information classified as National 
Security Information by reason of the provisions of Executive Order 
12065 (or any predecessor executive order) and which is more than 10 
years old, should address such request to the Chief, Division of 
Enforcement and Security Management, Office of Administrative Services, 
U.S. Department of the Interior, Washington, DC 20240.
    (3) Requests need not be made on any special form, but shall, as 
specified in the executive order, describe the document with sufficient 
particularity to enable identification of the document requested with 
expenditure of no more than a reasonable amount of effort.
    (4) Charges for locating and reproducing copies of records will be 
made when deemed applicable in accordance with appendix A to this part 
and the requester will be notified.
    (b) Action on requests for classification review. (1) The Chief, 
Division of Enforcement and Security Management, shall, unless the 
request is for a document over 30 years old, assign the request to the 
bureau having custody of the requested records for action. In the case 
of requests for declassification of records in the custody of the Office 
of the Secretary and less than 30 years old, the request shall be 
processed by the Chief, Division of Enforcement and Security Management. 
Requests for declassification of documents over 30 years shall be 
referred directly to the Archivist of the United States. The bureau 
which has been assigned the request, or the Chief, Division of 
Enforcement and Security Management, in the case of requests assigned to 
him, shall immediately acknowledge the request in writing. Every effort 
will be made to complete action on each request within thirty (30) days 
of its receipt. If action cannot be completed within thirty (30) days, 
the requester shall be so advised.
    (2) If the requester does not receive a decision on his request 
within sixty (60) days from the date of receipt of his request, or from 
the date of his most recent response to a request for more

[[Page 21]]

particulars, he may apply to the Department of the Interior Oversight 
Committee for Security, U.S. Department of the Interior, Washington, DC 
20240, for a decision on his request. The Committee must render a 
decision within thirty (30) days.
    (c) Form of decision and appeal to Oversight Committee for Security. 
In the event that the bureau to which a request is assigned or the 
Chief, Division of Enforcement and Security Management, in the case of a 
request assigned to him, determines that the requested information must 
remain classified by reason of the provisions of Executive Order 11652, 
the requester shall be given prompt notification of that decision and, 
whenever possible, shall be provided with a brief statement as to why 
the information or material cannot be declassified. He shall also be 
advised that if he desires he may appeal the determination to the 
Chairman, Department of the Interior Oversight Committee for Security, 
U.S. Department of the Interior, Washington, DC 20240. An appeal shall 
include a brief statement as to why the requester disagrees with the 
decision which he is appealing. The Department Oversight Committee for 
Security shall render its decision within thirty (30) days of receipt of 
an appeal. The Departmental Committee shall be authorized to over-rule 
previous determinations in whole or in part when, in its judgement, 
continued protection is no longer required.
    (d) Appeal to Interagency Classification Review Committee. Whenever 
the Department of the Interior Oversight Committee for Security confirms 
a determination for continued classification, it shall so notify the 
requester and advise him that he is entitled to appeal the decision to 
the Interagency Classification Review Committee established under 
section 8(A) of the Executive Order 11652. Such appeals shall be 
addressed to the Interagency Classification Review Committee, the 
Executive Office Building, Washington, DC 20500.
    (e) Suggestions and complaints. Any person may also direct 
suggestions or complaints with respect to the administration of the 
other provisions of Executive Order 11652 and the NSC Directive by the 
Department of the Interior to the Department of the Interior Oversight 
Committee for Security, U.S. Department of the Interior, Washington, DC 
20240.

[40 FR 7305, Feb. 19, 1975, as amended at 47 FR 38327, Aug. 31, 1982]



                         Subpart D--Privacy Act

    Source: 40 FR 44505, Sept. 26, 1975, unless otherwise noted.



Sec. 2.45  Purpose and scope.

    This subpart contains the regulations of the Department of the 
Interior implementing section 3 of the Privacy Act. Sections 2.47 
through 2.57 describe the procedures and policies of the Department 
concerning maintenance of records which are subject to the Act. Sections 
2.60 through 2.66 describe the procedure under which individuals may 
determine whether systems of records subject to the Act contain records 
relating to them and the procedure under which they may seek access to 
existing records. Sections 2.70 through 2.77 describe the procedure 
under which individuals may petition for amendment of records subject to 
the Act relating to them. Section 2.79 lists records systems that have 
been exempted from certain requirements of the Act.

[48 FR 56583, Dec. 22, 1983]



Sec. 2.46  Definitions.

    (a) Act. As used in this subpart, ``Act'' means section 3 of the 
Privacy Act, 5 U.S.C. 552a.
    (b) Bureau. For purposes of this subpart, a ``bureau'' is any 
constituent bureau or office of the Department, including the Office of 
the Secretary and any other Departmental office.
    (c) Individual. As used in this subpart, ``individual'' means a 
citizen of the United States or an alien lawfully admitted for permanent 
residence.
    (d) Maintain. As used in this subpart, the term ``maintain'' 
includes maintain, collect, use or disseminate.
    (e) Record. As used in this subpart, ``record'' means any item, 
collection, or grouping of information about an individual that is 
maintained by the Department or a bureau thereof, including, but not 
limited to, education, financial transactions, medical history,

[[Page 22]]

and criminal or employment history and that contains the individual's 
name, or the identifying number, symbol, or other identifying particular 
assigned to the individual, such as a finger or voice print, or a 
photograph.
    (f) System of records. As used in this subpart, ``System of 
records'' means a group of any records under the control of the 
Department or a bureau thereof from which information is retrieved by 
the name of the individual or by some identifying number, symbol, or 
other identifying particular assigned to the individual.
    (g) Medical records. As used in this subpart, ``medical records'' 
means records which relate to the identification, prevention, cure or 
alleviation of any disease, illness or injury including psychological 
disorders, alcoholism and drug addiction.
    (h) Office of Personnel Management personnel records. As used in the 
subpart, ``Office of Personnel Management personnel records'' means 
records maintained for the Office of Personnel Management by the 
Department and used for personnel management programs or processes such 
as staffing, employee development, retirement, and grievances and 
appeals.
    (i) Statistical records. As used in this subpart, ``statistical 
records'' means records in a system of records maintained for 
statistical research or reporting purposes only and not used in whole or 
in part in making any determination about an identifiable individual.
    (j) Routine use. As used in this subpart, ``routine use'' means a 
use of a record for a purpose which is compatible with the purpose for 
which it was collected.
    (k) System notice. As used in this subpart, ``system notice'' means 
the notice describing a system of records required by 5 U.S.C. 
552a(e)(4) to be published in the Federal Register upon establishment or 
revision of the system of records.
    (l) System manager. As used in this subpart, ``system manager'' 
means the official designated in a system notice as having 
administrative responsibility for a system of records.
    (m) Departmental Privacy Act Officer. As used in this subpart, 
``Departmental Privacy Act Officer'' means the official in the Office of 
the Assistant Secretary--Policy, Budget and Administration charged with 
responsibility for assisting the Assistant Secretary--Policy, Budget and 
Administration in carrying out the functions assigned in this subpart 
and for coordinating the activities of the bureaus of the Department in 
carrying out the functions which they are assigned in this subpart.
    (n) Bureau Privacy Act Officer. As used in this subpart, ``Bureau 
Privacy Act Officer'' means the official within each bureau assigned 
responsibility for bureau implementation of the Act and the regulations 
of this subpart.
    (o) Working day. As used in this subpart, ``working day'' means a 
regular Federal work day. It does not include Saturdays, Sundays or 
public legal holidays.

[40 FR 44505, Sept. 26, 1975, as amended at 47 FR 38327, Aug. 31, 1982; 
48 FR 56583, Dec. 22, 1983; 53 FR 3749, Feb. 9, 1988]



Sec. 2.47  Records subject to Privacy Act.

    The Privacy Act applies to all ``records,'' as that term is defined 
in Sec. 2.46(e), which the Department maintains in a ``system of 
records,'' as that term is defined in Sec. 2.46(f).



Sec. 2.48  Standards for maintenance of records subject to the Act.

    (a) Content of records. Records subject to the Act shall contain 
only such information about an individual as is relevant and necessary 
to accomplish a purpose of the agency required to be accomplished by 
statute or Executive Order of the President.
    (b) Standards of accuracy. Records subject to the Act which are used 
in making any determination about any individual shall be maintained 
with such accuracy, relevance, timeliness, and completeness as is 
reasonably necessary to assure fairness to the individual in making the 
determination.
    (c) Collection of information. (1) Information which may be used in 
making determinations about an individual's rights, benefits, and 
privileges under Federal programs shall, to the greatest extent 
practicable, be collected directly from that individual.

[[Page 23]]

    (2) In deciding whether collection of information from an 
individual, as opposed to a third party source, is practicable, the 
following factors, among others, may be considered:
    (i) Whether the nature of the information sought is such that it can 
only be obtained from a third party;
    (ii) Whether the cost of collecting the information from the 
individual is unreasonable when compared with the cost of collecting it 
from a third party;
    (iii) Whether there is a risk that information collected from third 
parties, if inaccurate, could result in an adverse determination to the 
individual concerned;
    (iv) Whether the information, if supplied by the individual, would 
have to be verified by a third party; or
    (v) Whether provisions can be made for verification, by the 
individual, of information collected from third parties.
    (d) Advice to individuals concerning uses of information. (1) Each 
individual who is asked to supply information about him or herself which 
will be added to a system of records shall be informed of the basis for 
requesting the information, how it may be used, and what the 
consequences, if any, are of not supplying the information.
    (2) At a minimum, the notice to the individual must state:
    (i) The authority (whether granted by statute or Executive Order of 
the President) which authorizes the solicitation of the information and 
whether disclosure of such information is mandatory or voluntary;
    (ii) The principal purpose or purposes for which the information is 
intended to be used;
    (iii) The routine uses which may be made of the information; and
    (iv) The effects on the individual, if any, of not providing all or 
any part of the requested information.
    (3)(i) When information is collected on a standard form, the notice 
to the individual shall be provided on the form, on a tear-off sheet 
attached to the form, or on a separate sheet, whichever is most 
practical.
    (ii) When information is collected by an interviewer, the 
interviewer shall privide the individual with a written notice which the 
individual may retain. If the interview is conducted by telephone, 
however, the interviewer may summarize the notice for the individual and 
need not provide a copy to the individual unless the individual requests 
a copy.
    (iii) An individual may be asked to acknowledge, in writing, that 
the notice required by this section has been provided.
    (e) Records concerning activity protected by the First Amendment. No 
record may be maintained describing how any individual exercises rights 
guaranteed by the First Amendment to the Constitution unless the 
maintenance of the record is (1) expressly authorized by statute or by 
the individual about whom the record is maintained or (2) pertinent to 
and within the scope of an authorized law enforcement activity.

[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56583, Dec. 22, 1983]



Sec. 2.49  [Reserved]



Sec. 2.50  Federal Register notices describing systems of records.

    (a) The Privacy Act requires publication of a notice in the Federal 
Register describing each system of records subject to the Act. Such 
notice will be published prior to the establishment or a revision of the 
system of records. 5 U.S.C. 552a(e)(4).
    (b) Each bureau shall notify the Departmental Privacy Act Officer 
promptly of any modifications or amendments which are required in the 
then-current notice describing a system of records for which it is 
responsible.
    (c) A bureau desiring to establish a new system of records or a new 
use for an existing system of records shall notify the Departmental 
Privacy Act Officer, no fewer than ninety (90) calendar days in advance.

[48 FR 56583, Dec. 22, 1983]



Sec. 2.51  Assuring integrity of records.

    (a) Statutory requirement. The Privacy Act requires that records 
subject to the Act be maintained with appropriate administrative, 
technical and physical safeguards to insure the security and 
confidentiality of records and to protect against any anticipated 
threats or hazards to their security or integrity

[[Page 24]]

which could result in substantial harm, embarassment, inconvenience, or 
unfairness to any individual on whom information is maintained, 5 U.S.C. 
552a(e)(10).
    (b) Records maintained in manual form. When maintained in manual 
form, records subject to the Privacy Act shall be maintained in a manner 
commensurate with the sensitivity of the information contained in the 
system of records. The following minimum safeguards, or safeguards 
affording comparable protection, are applicable to Privacy Act systems 
of records containing sensitive information:
    (1) Areas in which the records are maintained or regularly used 
shall be posted with an appropriate warning stating that access to the 
records is limited to authorized persons. The warning also shall 
summarize the requirements of Sec. 2.52 and state that the Privacy Act 
contains a criminal penalty for the unauthorized disclosure of records 
to which it applies.
    (2) During working hours, (i) the area in which the records are 
maintained or regularly used shall be occupied by authorized personnel 
or (ii) access to the records shall be restricted by their storage in 
locked metal file cabinets or a locked room.
    (3) During non-working hours, access to the records shall be 
restricted by their storage in locked metal file cabinets or a locked 
room.
    (4) Where a locked room is the method of security provided for a 
system, the bureau responsible for the system shall supplement that 
security by (i) providing lockable file cabinets or containers for the 
records or (ii) changing the lock or locks for the room so that they may 
not be opened with a master key. For the purposes of this paragraph, a 
master key is a key which may be used to open rooms other than the room 
containing records subject to the Privacy Act, unless those rooms are 
utilized by officials or employees authorized to have access to the 
records subject to the Privacy Act.
    (c) Records maintained in computerized form. When maintained in 
computerized form, records subject to the Privacy Act shall be 
maintained, at a minimum, subject to safeguards based on those 
recommended in the National Bureau of Standard's booklet ``Computer 
Security Guidelines for Implementing the Privacy Act of 1974'' (May 30, 
1975), and any supplements thereto, which are adequate and appropriate 
to assuring the integrity of records in the system.
    (d) Office of Personnel Management personnel records. A system of 
records made up of Office of Personnel Management personnel records 
shall be maintained under the security requirements set out in 5 CFR 
293.106 and 293.107.
    (e) Bureau responsibility. (1) The bureau responsible for a system 
of records shall be responsible for assuring that specific procedures 
are developed to assure that the records in the system are maintained 
with security meeting the requirements of the Act and this section.
    (2) These procedures shall be in writing and shall be posted or 
otherwise periodically brought to the attention of employees working 
with the records contained in the system.

[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56583, Dec. 22, 1983]



Sec. 2.52  Conduct of employees.

    (a) Handling of records subject to the Act. Employees whose duties 
require handling of records subject to the Privacy Act shall, at all 
times, take care to protect the integrity, security and confidentiality 
of these records.
    (b) Disclosure of records. No employee of the Department may 
disclose records subject to the Privacy Act unless disclosure is 
permitted under Sec. 2.56 or is to the individual to whom the record 
pertains.
    (c) Alteration of records. No employee of the Department may alter 
or destroy a record subject to the Privacy Act unless (1) such 
alteration or destruction is properly undertaken in the course of the 
employee's regular duties or (2) such alteration or destruction is 
required by a decision under Secs. 2.70 through 2.75 or the decision of 
a court of competent jurisdiction.
    (d) Bureau responsibility. The bureau responsible for a system of 
records shall be responsible for assuring that employees with access to 
the system are made aware of the requirements of this section and of 5 
U.S.C. 552a(i)(1), which imposes criminal penalties for

[[Page 25]]

knowingly and willfully disclosing a record about an individual without 
the written request or consent of that individual unless disclosure is 
permitted under one of the exceptions listed in Sec. 2.56 (b) and (c).



Sec. 2.53  Government contracts.

    (a) Required contract provisions. When a contract provides for the 
operation by or on behalf of the Department of a system of records to 
accomplish a Department function, the contract shall, consistent with 
the Department's authority, cause the requirements of 5 U.S.C. 552a and 
the regulations contained in this subpart to be applied to such system.
    (b) System manager. The head of the bureau responsible for the 
contract shall designate a regular employee of the bureau to be the 
manager for a system of records operated by a contractor.



Secs. 2.54-2.55  [Reserved]



Sec. 2.56  Disclosure of records.

    (a) Prohibition of disclosure. No record contained in a system of 
records may be disclosed by any means of communication to any person, or 
to another agency, except pursuant to a written request by, or with the 
prior written consent of, the individual to whom the record pertains.
    (b) General exceptions. The prohibition contained in paragraph (a) 
does not apply where disclosure of the record would be:
    (1) To those officers or employees of the Department who have a need 
for the record in the performance of their duties; or
    (2) Required by the Freedom of Information Act, 5 U.S.C. 552.
    (c) Specific exceptions. The prohibition contained in paragraph (a) 
of this section does not apply where disclosure of the record would be:
    (1) For a routine use as defined in Sec. 2.46(j) which has been 
described in a system notice published in the Federal Register;
    (2) To the Bureau of the Census for purposes of planning or carrying 
out a census or survey or related activity pursuant to the provisions of 
Title 13, U.S. Code.
    (3) To a recipient who has provided the system manager responsible 
for the system in which the record is maintained with advance adequate 
written assurance that the record will be used solely as a statistical 
research or reporting record, and the record is to be transferred in a 
form that is not individually identifiable;
    (4) To the National Archives and Records Administration as a record 
which has sufficient historical or other value to warrant its continued 
preservation by the U.S. Government, or for evaluation by the Archivist 
of the United States or the designee of the Archivist to determine 
whether the record has such value;
    (5) To another agency or to an instrumentality of any governmental 
jurisdiction within or under the control of the United States for a 
civil or criminal law enforcement activity if the activity is authorized 
by law, and if the head of the agency or instrumentality has made a 
written request to the Department specifying the particular portion 
desired and the law enforcement activity for which the record is sought;
    (6) To a person pursuant to a showing of compelling circumstances 
affecting the health or safety of an individual if upon such disclosure 
notification is transmitted to the last known address of such 
individual;
    (7) To either House of Congress, or, to the extent of matter within 
its jurisdiction, any committee or subcommittee thereof, any joint 
committee of Congress or subcommittee of any such joint committee;
    (8) To the Comptroller General, or any of his authorized 
representatives, in the course of the performance of the duties of the 
General Accounting Office;
    (9) Pursuant to the order of a court of competent jurisdiction; or
    (10) To a consumer reporting agency in accordance with section 3(d) 
of the Federal Claims Collection Act of 1966, as amended (31 U.S.C. 
3711(f)).
    (d) Reviewing records prior to disclosure. (1) Prior to any 
disclosure of a record about an individual, unless disclosure is 
required by the Freedom of Information Act, reasonable efforts shall be 
made to assure that the

[[Page 26]]

records are accurate, complete, timely and relevant for agency purposes.
    (2) When a record is disclosed in connection with a Freedom of 
Information request made under subpart B of this part and it is 
appropriate and administratively feasible to do so, the requester shall 
be informed of any information known to the Department indicating that 
the record may not be fully accurate, complete, or timely.

[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56584, Dec. 22, 1983; 
50 FR 45114, Oct. 30, 1985]



Sec. 2.57  Accounting for disclosures.

    (a) Maintenance of an accounting. (1) Where a record is disclosed to 
any person, or to another agency, under any of the specific exceptions 
provided by Sec. 2.56 (c), an accounting shall be made.
    (2) The accounting shall record (i) the date, nature, and purpose of 
each disclosure of a record to any person or to another agency and (ii) 
the name and address of the person or agency to whom the disclosure was 
made.
    (3) Accountings prepared under this section shall be maintained for 
at least five years or the life of the record, whichever is longer, 
after the disclosure for which the accounting is made.
    (b) Access to accountings. (1) Except for accountings of disclosures 
made under Sec. 2.56(c)(5), accountings of all disclosures of a record 
shall be made available to the individual to whom the record relates at 
the individual's request.
    (2) An individual desiring access to an accounting of disclosures of 
a record pertaining to the individual shall submit a request by 
following the procedures of Sec. 2.63.
    (c) Notification of disclosure. When a record is disclosed pursuant 
to Sec. 2.56(c)(9) as the result of the order of a court of competent 
jurisdiction, reasonable efforts shall be made to notify the individual 
to whom the record pertains as soon as the order becomes a matter of 
public record.

[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56584, Dec. 22, 1983]



Secs. 2.58-2.59  [Reserved]



Sec. 2.60  Request for notification of existence of records: Submission.

    (a) Submission of requests. (1)(i) Individuals desiring to determine 
under the Privacy Act whether a system of records contains records 
pertaining to them shall address inquiries to the system manager having 
responsibility for the system unless the system notice describing the 
system prescribes or permits submission to some other official or 
officials.
    (ii) If a system notice describing a system requires individuals to 
contact more than two officials concerning the existence of records in 
the system, individuals desiring to determine whether the system 
contains records pertaining to them may contact the system manager for 
assistance in determining which official is most likely to be in 
possession of records pertaining to those individuals.
    (2) Individuals desiring to determine whether records pertaining to 
them are maintained in two or more systems shall make a separate inquiry 
concerning each system.
    (b) Form of request. (1) An inquiry to determine whether a system of 
records contains records pertaining to an individual shall be in 
writing.
    (2) To insure expeditious handling, the request shall be prominently 
marked, both on the envelope and on the face of the request, with the 
legend ``PRIVACY ACT INQUIRY.''
    (3) The request shall state that the individual is seeking 
information concerning records pertaining to him or herself and shall 
supply such additional identifying information, if any, as is called for 
in the system notice describing the system.
    (4) Individuals who have reason to believe that information 
pertaining to them may be filed under a name other than the name they 
are currently using (e.g., maiden name), shall include such information 
in the request.

[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56584, Dec. 22, 1983]

[[Page 27]]



Sec. 2.61  Requests for notification of existence of records: Action on.

    (a) Decisions on request. (1) Individuals inquiring to determine 
whether a system of records contains records pertaining to them shall be 
promptly advised whether the system contains records pertaining to them 
unless (i) the records were compiled in reasonable anticipation of a 
civil action or proceeding or (ii) the system of records is one which 
has been excepted from the notification provisions of the Privacy Act by 
rulemaking (Sec. 2.79).
    (2) If the records were compiled in reasonable anticipation of a 
civil action or proceeding or the system of records is one which has 
been excepted from the notification provisions of the Privacy Act by 
rulemaking, the individuals will be promptly notified that they are not 
entitled to notification of whether the system contains records 
pertaining to them.
    (b) Authority to deny requests. A decision to deny a request for 
notification of the existence of records shall be made by the system 
manager responsible for the system of records concerning which inquiry 
has been made and shall be concurred in by the bureau Privacy Act 
officer for the bureau which maintains the system, provided, however 
that the head of a bureau may, in writing, require (1) that the decision 
be made by the bureau Privacy Act officer and/or (2) that the bureau 
head's own concurrence in the decision be obtained.
    (c) Form of decision. (1) No particular form is required for a 
decision informing individuals whether a system of records contains 
records pertaining to them.
    (2) A decision declining to inform an individual whether or not a 
system of records contains records pertaining to him or her shall be in 
writing and shall:
    (i) State the basis for denial of the request.
    (ii) Advise the individual that an appeal of the declination may be 
made to the Assistant Secretary--Policy, Budget and Administration 
pursuant to Sec. 2.65 by writing to the Privacy Act Officer, Office of 
the Assistant Secretary--Policy, Budget and Administration, U.S. 
Department of the Interior, Washington, DC 20240.
    (iii) State that the appeal must be received by the foregoing 
official within twenty (20) working days of the date of the decision.
    (3) If the decision declining a request for notification of the 
existence of records involves Department employee records which fall 
under the jurisdiction of the Office of Personnel Management, the 
individual shall be informed in a written response which shall:
    (i) State the reasons for the denial.
    (ii) Include the name, position title, and address of the official 
responsible for the denial.
    (iii) Advise the individual that an appeal of the declination may be 
made only to the Assistant Director for Workforce Information, Personnel 
Systems Oversight Group, Office of Personnel Management, 1900 E Street 
NW., Washington, DC 20415.
    (4) Copies of decisions declining a request for notification of the 
existence of records made pursuant to paragraphs (c)(2) and (c)(3) of 
this section shall be provided to the Departmental and Bureau Privacy 
Act Officers.

[48 FR 56584, Dec. 22, 1983, as amended at 53 FR 3749, Feb. 9, 1988]



Sec. 2.62  Requests for access to records.

    The Privacy Act permits individuals, upon request, to gain access to 
their records or to any information pertaining to them which is 
contained in a system and to review the records and have a copy made of 
all or any portion thereof in a form comprehensive to them. 5 U.S.C. 
552a(d)(1). A request for access shall be submitted in accordance with 
the procedures in this subpart.

[48 FR 56584, Dec. 22, 1983]



Sec. 2.63  Requests for access to records: Submission.

    (a) Submission of requests. (1)(i) Requests for access to records 
shall be submitted to the system manager having responsibility for the 
system in which the records are maintained unless the system notice 
describing the system prescribes or permits submission to some other 
official or officials.

[[Page 28]]

    (ii) If a system notice describing a system requires individuals to 
contact more than two officials concerning access to records in the 
system, individuals desiring to request access to records pertaining to 
them may contact the system manager for assistance in determining which 
official is most likely to be in custody of records pertaining to that 
individual.
    (2) Individuals desiring access to records maintained in two or more 
separate systems shall submit a separate request for access to the 
records in each system.
    (b) Form of request. (1) A request for access to records subject to 
the Privacy Act shall be in writing.
    (2) To insure expeditious handling, the request shall be prominently 
marked, both on the envelope and on the face of the request, with the 
legend ``PRIVACY ACT REQUEST FOR ACCESS.''
    (3) Requesters shall specify whether they seek all of the records 
contained in the system which relate to them or only some portion 
thereof. If only a portion of the records which relate to the individual 
are sought, the request shall reasonably describe the specific record or 
records sought.
    (4) If the requester seeks to have copies of the requested records 
made, the request shall state the maximum amount of copying fees which 
the requester is willing to pay. A request which does not state the 
amount of fees the requester is willing to pay will be treated as a 
request to inspect the requested records. Requesters are further 
notified that under Sec. 2.64(d) the failure to state willingness to pay 
fees as high as are anticipated by the Department will delay processing 
of a request.
    (5) The request shall supply such identifying information, if any, 
as is called for in the system notice describing the system.
    (6) Requests failing to meet the requirements of this paragraph 
shall be returned to the requester with a written notice advising the 
requester of the deficiency in the request.

[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56585, Dec. 22, 1983]



Sec. 2.64  Requests for access to records: Initial decision.

    (a) Decisions on requests. A request made under this subpart for 
access to a record shall be granted promptly unless (1) the record was 
compiled in reasonable anticipation of a civil action or proceeding or 
(2) the record is contained in a system of records which has been 
excepted from the access provisions of the Privacy Act by rulemaking 
(Sec. 2.79).
    (b) Authority to deny requests. A decision to deny a request for 
access under this subpart shall be made by the system manager 
responsible for the system of records in which the requested record is 
located and shall be concurred in by the bureau Privacy Act officer for 
the bureau which maintains the system, provided, however, that the head 
of a bureau may, in writing, require (1) that the decision be made by 
the bureau Privacy Act officer and/or (2) that the bureau head's own 
concurrence in the decision be obtained.
    (c) Form of decision. (1) No particular form is required for a 
decision granting access to a record. The decision shall, however, 
advise the individual requesting the record as to where and when the 
record is available for inspection or, as the case may be, where and 
when copies will be available. If fees are due under Sec. 2.64(d), the 
individual requesting the record shall also be notified of the amount of 
fees due or, if the exact amount has not been determined, the 
approximate amount of fees due.
    (2) A decision denying a request for access, in whole or part, shall 
be in writing and shall:
    (i) State the basis for denial of the request.
    (ii) Contain a statement that the denial may be appealed to the 
Assistant Secretary--Policy, Budget and Administration pursuant to 
Sec. 2.65 by writing to the Privacy Act Officer, Office of the Assistant 
Secretary--Policy, Budget and Administration, U.S. Department of the 
Interior, Washington, DC 20240.
    (iii) State that the appeal must be received by the foregoing 
official within twenty (20) working days of the date of the decision.

[[Page 29]]

    (3) If the decision denying a request for access involves Department 
employee records which fall under the jurisdiction of the Office of 
Personnel Management, the individual shall be informed in a written 
response which shall:
    (i) State the reasons for the denial.
    (ii) Include the name, position title, and address of the official 
responsible for the denial.
    (iii) Advise the individual that an appeal of the denial may be made 
only to the Assistant Director for Workforce Information, Personnel 
Systems and Oversight Group, Office of Personnel Management, 1900 E 
Street NW., Washington, DC 20415.
    (4) Copies of decisions denying requests for access made pursuant to 
paragraphs (c)(2) and (c)(3) of this section will be provided to the 
Departmental and Bureau Privacy Act Officers.
    (d) Fees. (1) No fees may be charged for the cost of searching for 
or reviewing a record in response to a request made under Sec. 2.63.
    (2) Fees for copying a record in response to a request made under 
Sec. 2.63 shall be charged in accordance with the schedule of charges 
contained in Appendix A to this part, unless the official responsible 
for processing the request determines that reduction or waiver of fees 
is appropriate.
    (3) Where it is anticipated that fees chargeable in connection with 
a request will exceed the amount the person submitting the request has 
indicated a willingness to pay, the official processing the request 
shall notify the requester and shall not complete processing of the 
request until the requester has agreed, in writing, to pay fees as high 
as are anticipated.

[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56585, Dec. 22, 1983; 
53 FR 3749, Feb. 9, 1988]



Sec. 2.65  Requests for notification of existence of records and for access to records: Appeals.

    (a) Right of appeal. Except for appeals pertaining to Office of 
Personnel Management records, individuals who have been notified that 
they are not entitled to notification of whether a system of records 
contains records pertaining to them or have been denied access, in whole 
or part, to a requested record may appeal to the Assistant Secretary--
Policy, Budget and Administration.
    (b) Time for appeal. (1) An appeal must be received by the Privacy 
Act Officer no later than twenty (20) working days after the date of the 
initial decision on a request.
    (2) The Assistant Secretary--Policy, Budget and Administration may, 
for good cause shown, extend the time for submission of an appeal if a 
written request for additional time is received within twenty (20) 
working days of the date of the initial decision on the request.
    (c) Form of appeal. (1) An appeal shall be in writing and shall 
attach copies of the initial request and the decision on the request.
    (2) The appeal shall contain a brief statement of the reasons why 
the appellant believes the decision on the initial request to have been 
in error.
    (3) The appeal shall be addressed to Privacy Act Officer, Office of 
the Assistant Secretary--Policy, Budget and Administration, U.S. 
Department of the Interior, Washington, DC 20240.
    (d) Action on appeals. (1) Appeals from decisions on initial 
requests made pursuant to Secs. 2.61 and 2.63 shall be decided for the 
Department by the Assistant Secretary--Policy, Budget and Administration 
or an official designated by the Assistant Secretary after consultation 
with the Solicitor.
    (2) The decision on an appeal shall be in writing and shall state 
the basis for the decision.

[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56585, Dec. 22, 1983; 
53 FR 3749, Feb. 9, 1988]



Sec. 2.66  Requests for access to records: Special situations.

    (a) Medical records. (1) Medical records shall be disclosed to the 
individual to whom they pertain unless it is determined, in consultation 
with a medical doctor, that disclosure should be made to a medical 
doctor of the individual's choosing.
    (2) If it is determined that disclosure of medical records directly 
to the individual to whom they pertain could

[[Page 30]]

have an adverse effect on that individual, the individual may designate 
a medical doctor to receive the records and the records will be 
disclosed to that doctor.
    (b) Inspection in presence of third party. (1) Individuals wishing 
to inspect records pertaining to them which have been opened for their 
inspection may, during the inspection, be accompanied by a person of 
their own choosing.
    (2) When such a procedure is deemed appropriate, individuals to whom 
the records pertain may be required to furnish a written statement 
authorizing discussion of their records in the accompanying person's 
presence.

[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56585, Dec. 22, 1983]



Secs. 2.67-2.69  [Reserved]



Sec. 2.70  Amendment of records.

    The Privacy Act permits individuals to request amendment of records 
pertaining to them if they believe the records are not accurate, 
relevant, timely or complete. 5 U.S.C. 552a(d)(2). A request for 
amendment of a record shall be submitted in accordance with the 
procedures in this subpart.

[48 FR 56585, Dec. 22, 1983]



Sec. 2.71  Petitions for amendment: Submission and form.

    (a) Submission of petitions for amendment. (1) A request for 
amendment of a record shall be submitted to the system manager for the 
system of records containing the record unless the system notice 
describing the system prescribes or permits submission to a different 
official or officials. If an individual wishes to request amendment of 
records located in more than one system, a separate petition must be 
submitted to each system manager.
    (2) A petition for amendment of a record may be submitted only if 
the individual submitting the petition has previously requested and been 
granted access to the record and has inspected or been given a copy of 
the record.
    (b) Form of petition. (1) A petition for amendment shall be in 
writing and shall specifically identify the record for which amendment 
is sought.
    (2) The petition shall state, in detail, the reasons why the 
petitioner believes the record, or the objectionable portion thereof, is 
not accurate, relevant, timely or complete. Copies of documents or 
evidence relied upon in support of these reasons shall be submitted with 
the petition.
    (3) The petition shall state, specifically and in detail, the 
changes sought in the record. If the changes involve rewriting the 
record or portions thereof or involve adding new language to the record, 
the petition shall propose specific language to implement the changes.

[48 FR 56585, Dec. 22, 1983]



Sec. 2.72  Petitions for amendment: Processing and initial decision.

    (a) Decisions on petitions. In reviewing a record in response to a 
petition for amendment, the accuracy, relevance, timeliness and 
completeness of the record shall be assessed against the criteria set 
out in Sec. 2.48. In addition, personnel records shall be assessed 
against the criteria for determining record quality published in the 
Federal Personnel Manual and the Departmental Manual addition thereto.
    (b) Authority to decide. An initial decision on a petition for 
amendment may be made only by the system manager responsible for the 
system of records containing the challenged record. If the system 
manager declines to amend the record as requested, the bureau Privacy 
Act officer for the bureau which maintains the system must concur in the 
decision, provided, however, that the head of a bureau may, in writing, 
require (1) that the decision be made by the bureau Privacy Act officer 
and/or (2) that the bureau head's own concurrence in the decision be 
obtained.
    (c) Acknowledgement of receipt. Unless processing of a petition is 
completed within ten (10) working days, the receipt of the petition for 
amendment shall be acknowledged in writing by the system manager to whom 
it is directed.
    (d) Inadequate petitions. (1) If a petition does not meet the 
requirements of Sec. 2.71, the petitioner shall be so advised and shall 
be told what additional information must be submitted to meet the 
requirements of Sec. 2.71.
    (2) If the petitioner fails to submit the additional information 
within a

[[Page 31]]

reasonable time, the petition may be rejected. The rejection shall be in 
writing and shall meet the requirements of paragraph (e) of this 
section.
    (e) Form of decision. (1) A decision on a petition for amendment 
shall be in writing and shall state concisely the basis for the 
decision.
    (2) If the petition for amendment is rejected, in whole or part, the 
petitioner shall be informed in a written response which shall:
    (i) State concisely the basis for the decision.
    (ii) Advise the petitioner that the rejection may be appealed to the 
Assistant Secretary--Policy, Budget and Administration by writing to the 
Privacy Act Officer, Office of the Assistant Secretary--Policy, Budget 
and Administration, U.S. Department of the Interior, Washington, DC 
20240.
    (iii) State that the appeal must be received by the foregoing 
official within twenty (20) working days of the decision.
    (3) If the petition for amendment involves Department employee 
records which fall under the jurisdiction of the Office of Personnel 
Management and is rejected, in whole or part, the petitioner shall be 
informed in a written response which shall:
    (i) State concisely the basis for the decision.
    (ii) Advise the petitioner that an appeal of the rejection may be 
made pursuant to 5 CFR 297.306 only to the Assistant Director for 
Workforce Information, Personnel Systems and Oversight Group, Office of 
Personnel Management, 1900 E Street NW., Washington, DC 20415.
    (4) Copies of rejections of petitions for amendment made pursuant to 
paragraphs (e)(2) and (e)(3) of this section will be provided to the 
Departmental and Bureau Privacy Act Officers.
    (f) Implementation of initial decision. If a petition for amendment 
is accepted, in whole or part, the bureau maintaining the record shall:
    (1) Correct the record accordingly and,
    (2) Where an accounting of disclosures has been made pursuant to 
Sec. 2.57, advise all previous recipients of the record that the 
correction was made and the substance of the correction.

[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56585, Dec. 22, 1983; 
53 FR 3750, Feb. 9, 1988]]



Sec. 2.73  Petitions for amendments: Time limits for processing.

    (a) Acknowledgement of receipt. The acknowledgement of receipt of a 
petition required by Sec. 2.72(c) shall be dispatched not later than ten 
(10) working days after receipt of the petition by the system manager 
responsible for the system containing the challenged record, unless a 
decision on the petition has been previously dispatched.
    (b) Decision on petition. A petition for amendment shall be 
processed promptly. A determination whether to accept or reject the 
petition for amendment shall be made within thirty (30) working days 
after receipt of the petition by the system manager responsible for the 
system containing the challenged record.
    (c) Suspension of time limit. The thirty (30) day time limit for a 
decision on a petition shall be suspended if it is necessary to notify 
the petitioner, pursuant to Sec. 2.72(d), that additional information in 
support of the petition is required. Running of the thirty (30) day time 
limit shall resume on receipt of the additional information by the 
system manager responsible for the system containing the challenged 
record.
    (d) Extensions of time. (1) The thirty (30) day time limit for a 
decision on a petition may be extended if the official responsible for 
making a decision on the petition determines that an extension is 
necessary for one of the following reasons:
    (i) A decision on the petition requires analysis of voluminous 
record or records;
    (ii) Some or all of the challenged records must be collected from 
facilities other than the facility at which the official responsible for 
making the decision is located.
    (iii) Some or all of the challenged records are of concern to 
another bureau of the Department or another agency of the Federal 
Government whose assistance and views are being sought in processing the 
request.

[[Page 32]]

    (2) If the official responsible for making a decision on the 
petition determines that an extension is necessary, the official shall 
promptly inform the petitioner of the extension and the date on which a 
decision is expected to be dispatched.

[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56586, Dec. 22, 1983; 
53 FR 3750, Feb. 9, 1988]



Sec. 2.74  Petitions for amendment: Appeals.

    (a) Right of appeal. Except for appeals pertaining to Office of 
Personnel Management records, where a petition for amendment has been 
rejected in whole or in part, the individual submitting the petition may 
appeal the denial to the Assistant Secretary--Policy, Budget and 
Administration.
    (b) Time for appeal. (1) An appeal must be received no later than 
twenty (20) working days after the date of the decision on a petition.
    (2) The Assistant Secretary--Policy, Budget and Administration may, 
for good cause shown, extend the time for submission of an appeal if a 
written request for additional time is received within twenty (20) 
working days of the date of the decision on a petition.
    (c) Form of appeal. (1) An appeal shall be in writing and shall 
attach copies of the initial petition and the decision on that petition.
    (2) The appeal shall contain a brief statement of the reasons why 
the appellant believes the decision on the petition to have been in 
error.
    (3) The appeal shall be addressed to Privacy Act Officer, Office of 
the Assistant Secretary--Policy, Budget and Administration, U.S. 
Department of the Interior, Washington, DC 20240.

[40 FR 44505, Sept. 26, 1975, as amended at 47 FR 38328, Aug. 31, 1982; 
53 FR 3750, Feb. 9, 1988]



Sec. 2.75  Petitions for amendment: Action on appeals.

    (a) Authority. Appeals from decisions on initial petitions for 
amendment shall be decided for the Department by the Assistant 
Secretary--Policy, Budget and Administration or an official designated 
by the Assistant Secretary, after consultation with the Solicitor.
    (b) Time limit. (1) A final determination on any appeal shall be 
made within thirty (30) working days after receipt of the appeal.
    (2) The thirty (30) day period for decision on an appeal may be 
extended, for good cause shown, by the Secretary of the Interior. If the 
thirty (30) day period is extended, the individual submitting the appeal 
shall be notified of the extension and of the date on which a 
determination on the appeal is expected to be dispatched.
    (c) Form of decision. (1) The final determination on an appeal shall 
be in writing and shall state the basis for the determination.
    (2) If the determination upholds, in whole or part, the initial 
decision rejecting the petition for amendment, the determination shall 
also advise the individual submitting the appeal:
    (i) Of his or her right to file a concise statement of the reasons 
for disagreeing with the decision of the agency;
    (ii) Of the procedure established by Sec. 2.77 for the filing of the 
statement of disagreement;
    (iii) That the statement which is filed will be made available to 
anyone to whom the record is subsequently disclosed together with, at 
the discretion of the Department, a brief statement by the Department 
summarizing its reasons for refusing to amend the record;
    (iv) That prior recipients of the challenged record will be provided 
a copy of any statement of dispute to the extent that an accounting of 
disclosure was maintained; and
    (v) Of his or her right to seek judicial review of the Department's 
refusal to amend the record.
    (3) If the determination reverses, in whole or in part, the initial 
decision rejecting the petition for amendment, the system manager 
responsible for the system containing the challenged record shall be 
directed to:
    (i) Amend the challenged record accordingly; and

[[Page 33]]

    (ii) If an accounting of disclosures has been made, advise all 
previous recipients of the record of the amendment and its substance.

[40 FR 44505, Sept. 26, 1975, as amended at 48 FR 56586, Dec. 22, 1983; 
53 FR 3750, Feb. 9, 1988]



Sec. 2.76  [Reserved]



Sec. 2.77  Statements of disagreement.

    (a) Filing of statement. If the determination of the Assistant 
Secretary--Policy, Budget and Administration under Sec. 2.75 rejects in 
whole or part, a petition for amendment, the individual submitting the 
petition may file with the system manager for the system containing the 
challenged record a concise written statement setting forth the reasons 
for disagreement with the determination of the Department.
    (b) Disclosure of statements. In any disclosure of a record 
containing information about which an individual has filed a statement 
of disagreement under this section which occurs after the filing of the 
statement, the disputed portion of the record will be clearly noted and 
the recipient shall be provided copies of the statement of disagreement. 
If appropriate, a concise statement of the reasons of the Department for 
not making the requested amendments may also be provided to the 
recipient.
    (c) Maintenance of statements. System managers shall develop 
procedures to assure that statements of disagreement filed with them 
shall be maintained in such a way as to assure dissemination of the 
statements to recipients of the records to which the statements pertain.

[48 FR 56586, Dec. 22, 1983]



Sec. 2.78  [Reserved]



Sec. 2.79  Exemptions.

    (a) Criminal law enforcement records exempt under 5 U.S.C. 
552a(j)(2). Pursuant to 5 U.S.C 552a(j)(2) the following systems of 
records have been exempted from all of the provisions of 5 U.S.C. 552a 
and the regulations in the subpart except paragraphs (b), (c) (1) and 
(2), (e)(4) (A) through (F), (e) (6), (7), (9), (10), and (11), and (i) 
of 5 U.S.C. 552a and the portions of the regulations in this subpart 
implementing these paragraphs:
    (1) Investigative Case File System, Interior/FWS-20.
    (2) Law Enforcement Services System, Interior/BIA-18.
    (3) Law Enforcement Statistical Reporting System, Interior/NPS-19.
    (4) Investigative Records, Interior/Office of Inspector General--2.
    (b) Law enforcement records exempt under 5 U.S.C. 552a(k)(2). 
Pursuant to 5 U.S.C. 552a(k)(2), the following systems of records have 
been exempted from paragraphs (c)(3), (d), (e)(1), (e)(4) (G), (H), and 
(I), and (f) of 5 U.S.C. 552a and the provisions of the regulations in 
this subpart implementing these paragraphs:
    (1) Investigative Records, Interior/Office of Inspector General--2.
    (2) Permits System, Interior/FWS-21.
    (3) Criminal Case Investigation System, Interior/BLM-18.
    (4) Civil Trespass Case Investigations, Interior/BLM-19.
    (5) Employee Conduct Investigations, Interior/BLM-20.
    (6)-(7) [Reserved]
    (8) Employee Financial Irregularities, Interior/NPS-17.
    (9) Trespass Cases, Interior/Reclamation-37.
    (10) Litigation, Appeal and Case Files System, Interior/Office of 
the Solicitor-1 to the extent that it consists of investigatory material 
compiled for law enforcement purposes.
    (11) Endangered Species Licenses System, Interior/FWS-19.
    (12) Investigative Case File, Interior/ FWS-20.
    (13) Timber Cutting and Trespass Claims Files, Interior/BIA-24.
    (c) Investigatory records exempt under 5 U.S.C. 552a(k)(5), the 
following systems of records have been exempted from subsections (c)(3), 
(d), (e)(1), (e)(4) (G), (H), and (I) and (f) of 5 U.S.C. 552a and the 
provisions of the regulations in this subpart implementing these 
subsections:
    (1) [Reserved]
    (2) National Research Council Grants Program, Interior/GS-9

[[Page 34]]

    (3) Committee Management Files, Interior/Office of the Secretary--
68.

(5 U.S.C. 301, 552a and 5 U.S.C. app. sections 9(a)(1)(D) and 9(b); 5 
U.S.C. 301, 552, and 552a; 31 U.S.C. 483a; and 43 U.S.C. 1460)

[40 FR 44505, Sept. 26, 1975, as amended at 40 FR 54790, Nov. 26, 1975; 
47 FR 38328, Aug. 31, 1982; 48 FR 37412, Aug. 18, 1983; 48 FR 56586, 
Dec. 22, 1983; 49 FR 6907, Feb. 24, 1984]



   Subpart E--Legal Process: Testimony by Employees and Production of 
                                 Records

    Source: 65 FR 46369, July 28, 2000, unless otherwise noted.

                           General Information



Sec. 2.80  What does this subpart cover?

    (a) This subpart describes how the Department of the Interior 
(including all its bureaus and offices) responds to requests or 
subpoenas for:
    (1) Testimony by employees in State, territorial or Tribal judicial, 
legislative or administrative proceedings concerning information 
acquired while performing official duties or because of an employee's 
official status;
    (2) Testimony by employees in Federal court civil proceedings in 
which the United States is not a party concerning information acquired 
while performing official duties or because of an employee's official 
status;
    (3) Testimony by employees in any judicial or administrative 
proceeding in which the United States, while not a party, has a direct 
and substantial interest;
    (4) Official records or certification of such records for use in 
Federal, State, territorial or Tribal judicial, legislative or 
administrative proceedings.
    (b) In this subpart, ``employee'' means a current or former 
Department employee, including a contract or special government 
employee.
    (c) This subpart does not apply to:
    (1) Congressional requests or subpoenas for testimony or records;
    (2) Federal court civil proceedings in which the United States is a 
party;
    (3) Federal administrative proceedings;
    (4) Federal, State and Tribal criminal court proceedings;
    (5) Employees who voluntarily testify, while on their own time or in 
approved leave status, as private citizens as to facts or events that 
are not related to the official business of the Department. The employee 
must state for the record that the testimony represents the employee's 
own views and is not necessarily the official position of the 
Department. See 5 CFR Secs. 2635.702(b), 2635.807 (b).
    (6) Testimony by employees as expert witnesses on subjects outside 
their official duties, except that they must obtain prior approval if 
required by Sec. 2.90.
    (d) This subpart does not affect the rights of any individual or the 
procedures for obtaining records under the Freedom of Information Act 
(FOIA), Privacy Act, or statutes governing the certification of official 
records. The Department FOIA and Privacy Act regulations are found at 43 
CFR Part 2, subparts B and D.
    (e) Nothing in this subpart is intended to impede the appropriate 
disclosure under applicable laws of Department information to Federal, 
State, territorial, Tribal, or foreign law enforcement, prosecutorial, 
or regulatory agencies.
    (f) This subpart only provides guidance for the internal operations 
of the Department, and neither creates nor is intended to create any 
enforceable right or benefit against the United States.



Sec. 2.81  What is the Department's policy on granting requests for employee testimony or Department records?

    (a) Except for proceedings covered by Sec. 2.80(c) and (d), it is 
the Department's general policy not to allow its employees to testify or 
to produce Department records either upon request or by subpoena. 
However, if you request in writing, the Department will consider whether 
to allow testimony or production of records under this subpart. The 
Department's policy ensures the orderly execution of its mission and 
programs while not impeding any proceeding inappropriately.
    (b) No Department employee may testify or produce records in any 
proceeding to which this subpart applies unless authorized by the 
Department under Secs. 2.80 through 2.90 United States

[[Page 35]]

ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).

                     Responsibilities of Requesters



Sec. 2.82  How can I obtain employee testimony or Department records?

    (a) To obtain employee testimony, you must submit:
    (1) A written request (hereafter a ``Touhy Request;'' see Sec. 2.84 
and United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951)); and
    (2) A statement that you will submit a check for costs to the 
Department of the Interior, in accordance with Sec. 2.85, if your Touhy 
Request is granted.
    (b) To obtain official Department records, you must submit:
    (1) A Touhy Request; and
    (2) A Statement that you agree to pay the costs of duplication in 
accordance with 43 CFR Part 2, appendix A, if your Touhy Request is 
granted.
    (c) You must send your Touhy Request to:
    (1) The employee's office address;
    (2) The official in charge of the employee's bureau, division, 
office or agency; and
    (3) The appropriate unit of the Solicitor's Office.
    (d) To obtain employee testimony or records of the Office of 
Inspector General, you must send your Touhy Request to the General 
Counsel for the Office of Inspector General.
    (e) 43 CFR Part 2, Appendix B contains a list of the addresses of 
the Department's bureaus and offices and the units of the Solicitor's 
Office. The General Counsel for the Inspector General is located at the 
address for the Office of the Inspector General. If you do not know the 
employee's address, you may obtain it from the employee's bureau or 
office.



Sec. 2.83  If I serve a subpoena duces tecum, must I also submit a Touhy request?

    Yes. If you serve a subpoena for employee testimony, you also must 
submit a request under United States ex rel. Touhy v. Regan, 340 U.S. 
462 (1951)? If you serve a subpoena duces tecum for records in the 
possession of the Department, you also must submit a Touhy Request.



Sec. 2.84  What information must I put in my Touhy Request?

    Your Touhy Request must:
    (a) Identify the employee or record;
    (b) Describe the relevance of the desired testimony or records to 
your proceeding and provide a copy of the pleadings underlying your 
request;
    (c) Identify the parties to your proceeding and any known 
relationships they have to the Department's mission or programs;
    (d) Show that the desired testimony or records are not reasonably 
available from any other source;
    (e) Show that no record could be provided and used in lieu of 
employee testimony;
    (f) Provide the substance of the testimony expected of the employee; 
and
    (g) Explain why you believe your Touhy Request complies with 
Sec. 2.88.



Sec. 2.85  How much will I be charged?

    We will charge you the costs, including travel expenses, for 
employees to testify under the relevant substantive and procedural laws 
and regulations. You must pay costs for record production under 43 CFR 
Part 2, Appendix A. Costs must be paid by check or money order payable 
to the Department of the Interior.



Sec. 2.86  Can I get an authenticated copy of a Department record?

    Yes. We may provide an authenticated copy of a Department record, 
for purposes of admissibility under Federal, State or Tribal law. We 
will do this only if the record has been officially released or would 
otherwise be released under Sec. 2.13 or this Subpart.

                    Responsibility of the Department



Sec. 2.87  How will the Department process my Touhy Request?

    (a) The appropriate Department official will decide whether to grant 
or deny your Touhy Request. Our Solicitor's Office or, in the case of 
the Office of Inspector General, its General Counsel, may negotiate with 
you or your attorney to refine or limit both the timing and content of 
your Touhy Request. When necessary, the Solicitor's Office or, in the 
case of the Office of Inspector General, its General Counsel, also will

[[Page 36]]

coordinate with the Department of Justice to file appropriate motions, 
including motions to remove the matter to Federal court, to quash, or to 
obtain a protective order.
    (b) We will limit our decision to allow employee testimony to the 
scope of your Touhy Request.
    (c) If you fail to follow the requirements of this Subpart, we will 
not allow the testimony or produce the records.
    (d) If your Touhy Request is complete, we will consider the request 
under Sec. 2.88.



Sec. 2.88  What criteria will the Department consider in responding to my Touhy Request?

    In deciding whether to grant your Touhy Request, the appropriate 
Department official will consider:
    (a) Your ability to obtain the testimony or records from another 
source;
    (b) The appropriateness of the employee testimony and record 
production under the relevant regulations of procedure and substantive 
law, including the FOIA or the Privacy Act; and
    (c) Our ability to:
    (1) Conduct our official business unimpeded;
    (2) Maintain impartiality in conducting our business;
    (3) Minimize the possibility that we will become involved in issues 
that are not related to our mission or programs;
    (4) Avoid spending public employee's time for private purposes;
    (5) Avoid the negative cumulative effect of granting similar 
requests;
    (6) Ensure that privileged or protected matters remain confidential; 
and
    (7) Avoid undue burden on us.

                      Responsibilities of Employees



Sec. 2.89  What must I, as an employee, do upon receiving a request?

    (a) If you receive a request or subpoena that does not include a 
Touhy Request, you must immediately notify your supervisor and the 
Solicitor's Office, or the General Counsel of the Office of the 
Inspector General, as applicable, for assistance in issuing the proper 
response.
    (b) If you receive a Touhy Request, you must promptly notify your 
supervisor and forward the request to the head of your bureau, division 
or office. After consulting with the Solicitor's Office or, in the case 
of the Office of Inspector General, its General Counsel, the official in 
charge will decide whether to grant the Touhy Request under Sec. 2.88.
    (c) All decisions granting or denying a Touhy Request must be in 
writing. The official in charge must ask the applicable unit of the 
Solicitor's Office or, in the case of the Office of Inspector General, 
its General Counsel, for advice when preparing the decision.
    (d) Under 28 U.S.C. 1733, Federal Rule of Civil Procedure 44(a)(1), 
or comparable State or Tribal law, a request for an authenticated copy 
of a Department record may be granted by the person having the legal 
custody of the record. If you believe that you have custody of a record:
    (1) Consult your delegated authority to determine if you can grant a 
request for authentication of records; and
    (2) Consult the Solicitor's Office or, in the case of the Office of 
Inspector General, its General Counsel, concerning the proper form of 
the authentication (as authentication requirements may vary by 
jurisdiction).



Sec. 2.90  Must I get approval before testifying as an expert witness on a subject outside the scope of my official duties?

    (a) You must comply with 5 CFR 2635.805(c), which details the 
authorization procedure for an employee to testify as an expert witness, 
not on behalf of the United States, in any judicial or administrative 
proceeding in which the United States is a party or has a direct and 
substantial interest. This procedure means:
    (1) You must obtain the written approval of your Deputy Ethics 
Official;
    (2) You must be in an approved leave status if you testify during 
duty hours; and
    (3) You must state for the record that you are appearing as a 
private individual and that your testimony does not represent the 
official views of the Department.
    (b) If you testify as an expert witness on a matter outside the 
scope of yoru

[[Page 37]]

official duties, and which is not covered by paragraph (a) of this 
section, you must comply with 5 CFR 2635.802 and 5 CFR 3501.105.

                       Appendix A to Part 2--Fees

    The following uniform fee schedule is applicable to all constituent 
units of the Department. It states the fees to be charged to members of 
the public for services performed in searching for, reviewing and 
duplicating requested records in connection with FOIA requests made 
under subpart B of this part and to services performed in making 
documents available for inspection and copying under subpart A of this 
part. The duplicating fees stated in the schedule are also applicable to 
duplicating of records in response to requests made under the Privacy 
Act. The schedule also states the fee to be charged for certification of 
documents.
    (1) Copies, basic fee. For copies of documents reproduced on a 
standard office copying machine in sizes to 8\1/
2\x14, the charge will be $0.13 per page.
    Examples: For one copy of a three-page document, the fee would be 
$0.39. For two copies of a three-page document, the fee would be $0.78. 
For one copy of a 60-page document, the fee would be $7.80.
    (2) Copies, documents requiring special handling. For copies of 
documents which require special handling because of their age, size, 
etc., cost will be based on direct costs of reproducing the materials.
    (3)-(4) [Reserved]
    (5) Searches. For each quarter hour, or portion thereof, spent by 
clerical personnel in manual searches to locate requested records: 
$2.30. For each quarter hour, or portion thereof, spent by professional 
or managerial personnel in manual searches to locate requested records 
because the search cannot be performed by clerical personnel: $4.65.
    Search time for which fees may be charged includes all time spent 
looking for material that is responsive to a request, including line-by-
line or page-by-page search to determine whether a record is responsive, 
even if the search fails to locate records or the records located are 
determined to be exempt from disclosure. Searches will be conducted in 
the most efficient and least expensive manner, so as to minimize costs 
for both the agency and the requester. Line-by-line or page-by-page 
identification should not be necessary if it is clear on the face of a 
document that it is covered by a request.
    (6) Review of records. For each quarter hour, or portion thereof, 
spent by clerical personnel in reviewing records: $2.30. For each 
quarter hour, or portion thereof, spent by professional or managerial 
personnel in reviewing records: $4.65.
    Review is the examination of documents located in response to a 
commercial use request to determine whether any portion of any document 
located is permitted to be withheld and the subsequent processing of 
documents for disclosure by excising exempt material or otherwise 
preparing them for release. Review does not include time spent in 
resolving general legal or policy issues regarding the application of 
exemptions.
    (7) [Reserved]
    (8) Certification. For each certificate of verification attached to 
authenticated copies of records furnished to the public the charge will 
be $0.25.
    (9) [Reserved]
    (10) Computerized records. Charges for services in processing 
requests for records maintained in computerized form will be calculated 
in accordance with the following criteria:
    (a) Costs for processing a data request will be calculated using the 
same standard direct costs charged to other users of the facility, and/
or as specified in the user's manual or handbook published by the 
computer center in which the work will be performed.
    (b) An itemized listing of operations required to process the job 
will be prepared (i.e., time for central processing unit, input/output, 
remote terminal, storage, plotters, printing, tape/disc mounting, etc.) 
with related associated costs applicable to each operation.
    (c) Material costs (i.e., paper, disks, tape, etc.) will be 
calculated using the latest acquisition price paid by the facility.
    (d) ADP facility managers must assure that all cost estimates are 
accurate, and if challenged, be prepared to substantiate that the rates 
are not higher than those charged to other users of the facility for 
similar work. Upon request, itemized listings of operations and 
associated costs for processing the job may be furnished to members of 
the public.
    (e) Requesters entitled to two hours of free search time under 43 
CFR 2.20(e) shall not be charged for that portion of a computer search 
that equals two hours of the salary of the operator performing the 
search.
    (11) Postage/mailing costs. Mailing charges may be added for 
services (such as express mail) that exceed the cost of first class 
postage.
    (12)-(13) [Reserved]
    (14) Other services. When a response to a request requires services 
or materials other than those described in this schedule, the direct 
cost of such services or materials to the Government may be charged, but 
only if the requester has been notified of such cost before it is 
incurred.
    (15) Effective date. This schedule applies to all requestes made 
under the Freedom of Information Act and Privacy Act after December 30, 
1987.

[52 FR 45592, Nov. 30, 1987]

[[Page 38]]

   Appendix B to Part 2--Bureaus and Offices of the Department of the 
                                Interior

    1. Bureaus and Offices of the Department of the Interior. (The 
address for all bureaus and offices, unless otherwise indicated, is U.S. 
Department of the Interior, Washington, DC 20240.)

Secretary of the Interior, Office of the Secretary
Office of Administrtative Services (for Office of the Secretary 
components)
Assistant Secretary, Territorial and International Affairs
Commissioner, Bureau of Indian Affairs
Director, U.S. Fish and Wildlife Service
Director, National Park Service, P.O. Box 37127, Washington, DC, 20013-
7127
Commissioner, Bureau of Reclamation
Director, Bureau of Land Management
Director, Minerals Management Service
Director, Bureau of Mines, Columbia Plaza, 2401 E Street NW., 
Washington, DC 20241
Director, Geological Survey, The National Center, Reston, VA 22092
Director, Office of Surface Mining Reclamation and Enforcement
Director, Office of Hearings and Appeals, 801 North Quincy Street, 
Arlington, VA 22203
Inspector General, Office of Inspector General
Solicitor, Office of the Solicitor

    2. Freedom of Information Officers of the Department of the 
Interior. (The address for all Freedom of Information Officers, unless 
otherwise indicated, is U.S. Department of the Interior, Washington, DC 
20240.)

Director, Office of Administrative Services (for Office of the Secretary 
components), U.S. Department of the Interior
Director, Office of Administration, Bureau of Indian Affairs
Freedom of Information Act Officer, Bureau of Land Management
Assistant Director, Finance and Management, Bureau of Mines, Columbia 
Plaza, 2401 E Street NW., Washington, DC 20241
Freedom of Information Act Officer, Bureau of Reclamation
Chief, Division of Media Information, National Park Service
Chief, Regulatory Development and Issues Management, Office of Surface 
Mining Reclamation and Enforcement
Chief, Directives Management Branch, Policy and Directives Management, 
U.S. Fish and Wildlife Service,
Chief, Paperwork Management Unit, U.S. Geological Survey, The National 
Center, Reston, VA 22092
Freedom of Information Act Officer, Minerals Management Service, 12203 
Sunrise Valley Drive, Reston, VA 22091
Information Officer, Office of Inspector General

    3. Office of Hearings and Appeals--Field Offices:

Administrative Law Judge, 710 Locust St., Federal Building, Suite 116, 
Knoxville, TN 37902
Administrative Law Judges, 6432 Federal Bldg., Salt Lake City, UT 84138
Administrative Law Judge, 2901 N. Central Ave., Suite 955, Phoenix, AZ 
85012-2739
Administrative Law Judge, 2020 Hurley Way, Suite 150, Sacramento, CA 
95825
Administrative Law Judges, Bishop Henry Whipple Federal Building, 1 
Federal Drive, rooms 674 and 688, Fort Snelling, MN 55111
Administrative Law Judge, 1700 Louisiana N.E., Suite 220, Albuquerque, 
NM 87110
Administrative Law Judge, 215 Dean A. McGee Ave., room 507, Oklahoma 
City, OK 73102
Administrative Law Judge (Indian Probate), Federal Bldg. & Courthouse, 
515 9th St., Suite 201, Rapid City, SD 57701
Administrative Law Judge (Indian Probate), Federal Bldg. & Courthouse, 
Rm. 3329, 316 N. 26th St., Billings, MT 59101

    4. Office of the Solicitor-- Field Offices.

                           Regional Solicitors

Regional Solicitor, U.S. Department of the Interior, 701 C Street, 
Anchorage, AK 99513
Regional Solicitor, U.S. Department of the Interior, Room E-2753, 2800 
Cottage Way, Sacramento, CA 95825
Regional Solicitor, U.S. Department of the Interior, P.O. Box 25007, 
Denver Federal Center, Denver, CO 80225
Regional Solicitor, U.S. Department of the Interior, Richard B. Russell 
Federal Building, 75 Spring Street, SW., Suite 1328, Atlanta, GA 30303
Regional Solicitor, U.S. Department of the Interior, Suite 612, One 
Gateway Center, Newton Corner, MA 02158
Regional Solicitor, U.S. Department of the Interior, Room 3068, Page 
Belcher Federal Building, 333 West 4th Street, Tulsa, OK 74103
Regional Solicitor, U.S. Department of the Interior, Lloyd 500 Building, 
Suite 607, 500 N.E. Multnomah, Portland, OR 97232
Regional Solicitor, U.S. Department of the Interior, Suite 6201, Federal 
Building, 125 South State Street, Salt Lake City, UT 84138

                            Field Solicitors

Field Solicitor, U.S. Department of the Interior, Suite 150, 505 North 
Second St., Phoenix, AZ 85004
Field Solicitor, U.S. Department of the Interior, P.O. Box M, Window 
Rock, AZ 86515

[[Page 39]]

Field Solicitor, U.S. Department of the Interior, Box 36064, 450 Golden 
Gate Avenue, Room 14126, San Francisco, CA 94102
Field Solicitor, U.S. Department of the Interior, Box 020, Federal 
Building, U.S. Courthouse, 550 West Fort Street, Boise, ID 83724
Field Solicitor, U.S. Department of the Interior, 686 Federal Building, 
Twin Cities, MN 55111
Field Solicitor, U.S. Department of the Interior, Room 5431, Federal 
Building, 316 N. 26th Street, Billings, MT 59101
Field Solicitor, U.S. Department of the Interior, P.O. Box 1042, Santa 
Fe, NM 87504
Field Solicitor, U.S. Department of the Interior, Osage Agency, 
Grandview Avenue, Pawhuska, OK 74056
Field Solicitor, U.S. Department of the Interior, Suite 502J, U.S. Post 
Office and Courthouse, Pittsburgh, PA 15219
Field Solicitor, U.S. Department of the Interior, P.O. Box 15006, 
Knoxville, TN 37901
Field Solicitor, U.S. Department of the Interior, 1100 South Fillmore, 
Amarillo, TX 79101
Field Solicitor, U.S. Department of the Interior, 603 Morris Street, 2nd 
Floor, Charleston, WV 25301.

[52 FR 45593, Nov. 30, 1987, as amended at 53 FR 16128, May 5, 1988; 58 
FR 48973, Sept. 21, 1993; 67 FR 4368, Jan. 30, 2002]



PART 3--PRESERVATION OF AMERICAN ANTIQUITIES--Table of Contents




Sec.
3.1  Jurisdiction.
3.2  Limitation on permits granted.
3.3  Permits; to whom granted.
3.4  No exclusive permits granted.
3.5  Application.
3.6  Time limit of permits granted.
3.7  Permit to become void.
3.8  Applications referred for recommendation.
3.9  Form and reference of permit.
3.10  Reports.
3.11  Restoration of lands.
3.12  Termination.
3.13  Report of field officer.
3.14  Examinations by field officer.
3.15  Persons who may apprehend or cause to be arrested.
3.16  Seizure.
3.17  Preservation of collection.

    Authority: Secs. 3, 4, 34 Stat. 225, as amended; 16 U.S.C. 432.

    Source: 19 FR 8838, Dec. 23, 1954, unless otherwise noted.



Sec. 3.1  Jurisdiction.

    Jurisdiction over ruins, archeological sites, historic and 
prehistoric monuments and structures, objects of antiquity, historic 
landmarks, and other objects of historic and scientific interest, shall 
be exercised under the act by the respective Departments as follows:
    (a) By the Secretary of Agriculture over lands within the exterior 
limits of forest reserves;
    (b) By the Secretary of the Army over lands within the exterior 
limits of military reservations;
    (c) By the Secretary of the Interior over all other lands owned or 
controlled by the Government of the United States, Provided, The 
Secretaries of the Army and Agriculture may by agreement cooperate with 
the Secretary of the Interior in the supervision of such monuments and 
objects covered by the Act of June 8, 1906 (34 Stat. 225; 16 U.S.C. 431-
-433), as may be located on lands near or adjacent to forest reserves 
and military reservations, respectively.



Sec. 3.2  Limitation on permits granted.

    No permit for the removal of any ancient monument or structure which 
can be permanently preserved under the control of the United States in 
situ, and remain an object of interest, shall be granted.



Sec. 3.3  Permits; to whom granted.

    Permits for the examination of ruins, the excavation of 
archeological sites, and the gathering of objects of antiquity will be 
granted, by the respective Secretaries having jurisdiction, to reputable 
museums, universities, colleges, or other recognized scientific or 
educational institutions, or to their duly authorized agents.



Sec. 3.4  No exclusive permits granted.

    No exclusive permits shall be granted for a larger area than the 
applicant can reasonably be expected to explore fully and systematically 
within the time limit named in the permit.



Sec. 3.5  Application.

    Each application for a permit should be filed with the Secretary 
having jurisdiction, and must be accompanied by a definite outline of 
the proposed work, indicating the name of the institution making the 
request, the date proposed for beginning the field work, the length of 
time proposed to be devoted to it,

[[Page 40]]

and the person who will have immediate charge of the work. The 
application must also contain an exact statement of the character of the 
work, whether examination, excavation, or gathering, and the public 
museum in which the collections made under the permit are to be 
permanently preserved. The application must be accompanied by a sketch 
plan or description of the particular site or area to be examined, 
excavated, or searched, so definite that it can be located on the map 
with reasonable accuracy.



Sec. 3.6  Time limit of permits granted.

    No permit will be granted for a period of more than 3 years, but if 
the work has been diligently prosecuted under the permit, the time may 
be extended for proper cause upon application.



Sec. 3.7  Permit to become void.

    Failure to begin work under a permit within 6 months after it is 
granted, or failure to diligently prosecute such work after it has been 
begun, shall make the permit void without any order or proceeding by the 
Secretary having jurisdiction.



Sec. 3.8  Applications referred for recommendation.

    Applications for permits shall be referred to the Smithsonian 
Institution for recommendation.



Sec. 3.9  Form and reference of permit.

    Every permit shall be in writing and copies shall be transmitted to 
the Smithsonian Institution and the field officer in charge of the land 
involved. The permittee will be furnished with a copy of the regulations 
in this part.



Sec. 3.10  Reports.

    At the close of each season's field work the permittee shall report 
in duplicate to the Smithsonian Institution, in such form as its 
secretary may prescribe, and shall prepare in duplicate a catalogue of 
the collections and of the photographs made during the season, 
indicating therein such material, if any, as may be available for 
exchange.



Sec. 3.11  Restoration of lands.

    Institutions and persons receiving permits for excavation shall, 
after the completion of the work, restore the lands upon which they have 
worked to their customary condition, to the satisfaction of the field 
officer in charge.



Sec. 3.12  Termination.

    All permits shall be terminable at the discretion of the Secretary 
having jurisdiction.



Sec. 3.13  Report of field officer.

    The field officer in charge of land owned or controlled by the 
Government of the United States shall, from time to time, inquire and 
report as to the existence, on or near such lands, of ruins and 
archaeological sites, historic or prehistoric ruins or monuments, 
objects of antiquity, historic landmarks, historic and prehistoric 
structures, and other objects of historic or scientific interest.



Sec. 3.14  Examinations by field officer.

    The field officer in charge may at all times examine the permit of 
any person or institution claiming privileges granted in accordance with 
the act and this part, and may fully examine all work done under such 
permit.



Sec. 3.15  Persons who may apprehend or cause to be arrested.

    All persons duly authorized by the Secretaries of Agriculture, Army 
and Interior may apprehend or cause to be arrested, as provided in the 
Act of February 6, 1905 (33 Stat. 700) any person or persons who 
appropriate, excavate, injure, or destroy any historic or prehistoric 
ruin or monument, or any object of antiquity on lands under the 
supervision of the Secretaries of Agriculture, Army, and Interior, 
respectively.



Sec. 3.16  Seizure.

    Any object of antiquity taken, or collection made, on lands owned or 
controlled by the United States, without a permit, as prescribed by the 
act and this part, or there taken or made, contrary to the terms of the 
permit, or contrary to the act and this part, may be seized wherever 
found and at any

[[Page 41]]

time, by the proper field officer or by any person duly authorized by 
the Secretary having jurisdiction, and disposed of as the Secretary 
shall determine, by deposit in the proper national depository or 
otherwise.



Sec. 3.17  Preservation of collection.

    Every collection made under the authority of the act and of this 
part shall be preserved in the public museum designated in the permit 
and shall be accessible to the public. No such collection shall be 
removed from such public museum without the written authority of the 
Secretary of the Smithsonian Institution, and then only to another 
public museum, where it shall be accessible to the public; and when any 
public museum, which is a depository of any collection made under the 
provisions of the act and this part, shall cease to exist, every such 
collection in such public museum shall thereupon revert to the national 
collections and be placed in the proper national depository.



PART 4--DEPARTMENT HEARINGS AND APPEALS PROCEDURES--Table of Contents




           Subpart A--General; Office of Hearings and Appeals

Sec.
4.1  Scope of authority; applicable regulations.
4.2  Membership of appeals boards; decisions, functions of Chief Judges.
4.3  Representation before appeals boards.
4.4  Public records; locations of field offices.
4.5  Power of the Secretary and Director.

      Subpart B--General Rules Relating to Procedures and Practice

4.20  Purpose.
4.21  General provisions.
4.22  Documents.
4.23  Transcript of hearings.
4.24  Basis of decision.
4.25  Oral argument.
4.26  Subpoena power and witness provisions generally.
4.27  Standards of conduct.
4.28  Interlocutory appeals.
4.29  Remands from courts.
4.30  Information required by forms.
4.31  Request for limiting disclosure of confidential information.

   Subpart C--Special Rules of Practice Before the Interior Board of 
                            Contract Appeals

4.100  General rules and guidelines.

                       Prehearing Procedure Rules

4.101  Who may appeal.
4.102  Appeals--how taken.
4.103  Forwarding and docketing of appeals.
4.104  Preparation, organization, transmittal, and status of appeal 
          file.
4.105  Dismissal for lack of jurisdiction.
4.106  Representation and appearances.
4.107  Pleadings.
4.108  Amendments of pleadings or record.
4.109  Hearing--election.
4.110  Prehearing briefs.
4.111  Prehearing or presubmission conference.
4.112  Submission without a hearing.
4.113  Optional small claims (expedited) and accelerated procedures. 
          (See Sec. 4.100(a)(2).)
4.114  Settling of the record.
4.115  Discovery--depositions.
4.116  Interrogatories to parties; inspection of documents; admission of 
          facts.
4.117  Service of papers.

                         Hearing Procedure Rules

4.118  Hearings--where and when held.
4.119  Notice of hearings.
4.120  Subpoenas. (See Sec. 4.100(a)(2).)
4.121  Unexcused absence of a party.
4.122  Nature of hearings.
4.123  Examination of witnesses.
4.124  Submission of briefs.

                       Posthearing Procedure Rules

4.125  Decisions.
4.126  Motions for reconsideration.
4.127  Dismissals.
4.128  Remands from courts.

Appendix I to Subpart C of Part 4--Suggested Form of Notice of Appeal

   Subpart D--Rules Applicable in Indian Affairs Hearings and Appeals

 Determinations of Heirs and Approval of Wills, Except as to Members of 
    the Five Civilized Tribes and Osage Indians; Tribal Purchases of 
                    Interests Under Special Statutes

  Scope of Regulations; Definitions; General Authority of OHA Deciding 
                                Officials

4.200  Scope of regulations.
4.201  Definitions.
4.202  General authority of OHA deciding officials.

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 Determination of Heirs; Approval of Wills; Settlement of Indian Trust 
                                 Estates

4.203  Determination as to nonexistent persons and other irregularities 
          of allotments.
4.204  Presumption of death.
4.205  Escheat.
4.206  Determinations of nationality or citizenship and status affecting 
          character of land titles.
4.207  Compromise settlement.
4.208  Renunciation of interest.

                   Commencement of Probate Proceedings

4.210  Commencement of probate.
4.211  Notice.
4.212  Contents of notice.

            Depositions, Discovery, and Prehearing Conference

4.220  Production of documents for inspection and copying.
4.221  Depositions.
4.222  Written interrogatories; admission of facts and documents.
4.223  Objections to and limitations on production of documents, 
          depositions, and interrogatories.
4.224  Failure to comply with orders.
4.225  Prehearing conference.

                                Hearings

4.230  Authority and duties of the OHA deciding official.
4.231  Hearings.
4.232  Evidence; form and admissibility.
4.233  Proof of wills, codicils, and revocations.
4.234  Witnesses, interpreters, and fees.
4.235  Supplemental hearings.
4.236  Record.

                                Decisions

4.240  Decision of administrative law judge and notice thereof.
4.241  Rehearing.
4.242  Reopening.
4.243  Appeals from BIA.

                                 Claims

4.250  Filing and proof of creditor claims; limitations.
4.251  Priority of claims.
4.252  Property subject to claims.

                                  Wills

4.260  Making; review as to form; revocation.
4.261  Anti-lapse provisions.
4.262  Felonious taking of testator's life.

                   Custody and Distribution of Estates

4.270  Custody and control of trust estates.
4.271  Omitted property.
4.272  Improperly included property.
4.273  Distribution of estates.

                              Miscellaneous

4.281  Claims for attorney fees.
4.282  Guardians for incompetents.

           Tribal Purchase of Interests Under Special Statutes

4.300  Authority and scope.
4.301  Valuation report.
4.302  Conclusion of probate and tribal exercise of statutory option.
4.303  Notice by surviving spouse to reserve a life estate.
4.304  Rehearing.
4.305  Hearing.
4.306  Time for payment.
4.307  Title.
4.308  Disposition of income.

 General Rules Applicable to Proceedings on Appeal Before the Interior 
                         Board of Indian Appeals

4.310  Documents.
4.311  Briefs on appeal.
4.312  Decisions.
4.313  Amicus Curiae; intervention; joinder motions.
4.314  Exhaustion of administrative remedies.
4.315  Reconsideration.
4.316  Remands from courts.
4.317  Standards of conduct.
4.318  Scope of review.

        Appeals to the Board of Indian Appeals in Probate Matters

4.320  Who may appeal.
4.321  Notice of transmittal of record on appeal.
4.322  Docketing.
4.323  Disposition of the record.

 Appeals to the Board of Indian Appeals From Administrative Actions of 
  Officials of the Bureau of Indian Affairs: Administrative Review in 
        Other Indian Matters Not Relating to Probate Proceedings

4.330  Scope.
4.331  Who may appeal.
4.332  Appeal to the Board; how taken; mandatory time for filing; 
          preparation assistance; requirement for bond.
4.333  Service of notice of appeal.
4.334  Extensions of time.
4.335  Preparation and transmittal of record by official of the Bureau 
          of Indian Affairs.
4.336  Docketing.
4.337  Action by the Board.
4.338  Submission by administrative law judge of proposed findings, 
          conclusions and recommended decision.

[[Page 43]]

4.339  Exceptions or comments regarding recommended decision by 
          administrative law judge.
4.340  Disposition of the record.

   White Earth Reservation Land Settlement Act of 1985; Authority of 
 Administrative Judges; Determinations of the Heirs of Persons Who Died 
                        Entitled to Compensation

4.350  Authority and scope.
4.351  Commencement of the determination process.
4.352  Determination of administrative judge and notice thereof.
4.353  Record.
4.354  Reconsideration or rehearing.
4.355  Omitted compensation.
4.356  Appeals.
4.357  Guardians for minors and incompetents.

 Subpart E--Special Rules Applicable to Public Land Hearings and Appeals

                           Appeals Procedures

                       appeals procedures; general

4.400  Definitions.
4.401  Documents.
4.402  Summary dismissal.
4.403  Finality of decision; reconsideration.

                  appeals to the board of land appeals

4.410  Who may appeal.
4.411  Appeal; how taken, mandatory time limit.
4.412  Statement of reasons, statement of standing, written arguments, 
          briefs.
4.413  Service of notice of appeal and of other documents.
4.414  Answers.

                    actions by board of land appeals

4.415  Request for hearings on appeals involving questions of fact.

                           Hearings Procedures

                      hearings procedures; general

4.420  Applicability of general rules.
4.421  Definitions.
4.422  Documents.
4.423  Subpoena power and witness provisions.

             hearings on appeals involving questions of fact

4.430  Prehearing conferences.
4.431  Fixing of place and date for hearing; notice.
4.432  Postponements.
4.433  Authority of the administrative law judge.
4.434  Conduct of hearing.
4.435  Evidence.
4.436  Reporter's fees.
4.437  Copies of transcript.
4.438  Summary of evidence.
4.439  Action by administrative law judge.

                     contest and protest proceedings

4.450  Private contests and protests.
4.450-1  By whom private contest may be initiated.
4.450-2  Protests.
4.450-3  Initiation of contest.
4.450-4  Complaints.
4.450-5  Service.
4.450-6  Answer to complaint.
4.450-7  Action by manager.
4.450-8  Amendment of answer.
4.451  Government contests.
4.451-1  How initiated.
4.451-2  Proceedings in Government contests.
4.452  Proceedings before the administrative law judge.
4.452-1  Prehearing conferences.
4.452-2  Notice of hearing.
4.452-3  Postponements.
4.452-4  Authority of administrative law judge.
4.452-5  Conduct of hearing.
4.452-6  Evidence.
4.452-7  Reporter's fees.
4.452-8  Findings and conclusions; decision by administrative law judge; 
          submission to Board for decision.
4.452-9  Appeal to Board.

       Grazing Proceedures (Inside and Outside Grazing Districts)

4.470  Appeal to administrative law judge; motion to dismiss.
4.471  Time and place of hearing; notice; intervenors.
4.472  Authority of administrative law judge.
4.473  Service.
4.474  Conduct of hearing; reporter's fees; transcript.
4.475  Findings of fact and decision by administrative law judge: 
          Notice; submission to Board of Land Appeals for decision.
4.476  Appeals to the Board of Land Appeals.
4.477  Effect of decision suspended during appeal.
4.478  Conditions of decision action.

 Subpart F--Implementation of the Equal Access to Justice Act in Agency 
                               Proceedings

                           General Provisions

4.601  Purpose of these rules.
4.602  Definitions.
4.603  Proceedings covered.
4.604  Applicability to Department of the Interior proceedings.
4.605  Eligibility of applicants.
4.606  Standards for awards.
4.607  Allowable fees and expenses.

[[Page 44]]

                  Information Required From Applicants

4.608  Contents of application.
4.609  Net worth exhibit.
4.610  Documentation of fees and expenses.
4.611  Time for submission of application.

                 Procedures for Considering Applications

4.612  Filing and service of documents.
4.613  Answer to application.
4.614  Settlement.
4.615  Extensions of time and further proceedings.
4.616  Decision on application.
4.617  Appeals Board review.
4.618  Judicial review.
4.619  Payment of award.

    Subpart G--Special Rules Applicable to Other Appeals and Hearings

4.700  Who may appeal.
4.701  Notice of appeal.
4.702  Transmittal of appeal file.
4.703  Pleadings.
4.704  Decisions on appeals.

Subpart H [Reserved]

Subpart I--Special Procedural Rules Applicable to Practice and Procedure

 
for Hearings, Decisions, and Administrative Review Under Part 17 of This 
     Title--Nondiscrimination in Federally Assisted Programs of the 
Department of the Interior--Effectuation of Title VI of the Civil Rights 
                               Act of 1964

                                 General

4.800  Scope and construction of rules.
4.801  Suspension of rules.
4.802  Definitions.
4.803  Computation of time.
4.804  Extensions of time.
4.805  Reduction of time to file documents.

      Designation and Responsibilities of Administrative Law Judge

4.806  Designation.
4.807  Authority and responsibilities.

                         Appearance and Practice

4.808  Participation by a party.
4.809  Determination of parties.
4.810  Complainants not parties.
4.811  Determination and participation of amici.

                      Form and Filing of Documents

4.812  Form.
4.813  Filing and service.
4.814  Certificate of service.

                               Procedures

4.815  How proceedings are commenced.
4.816  Notice of hearing and response thereto.
4.817  Notice of opportunity to request a hearing and response thereto.
4.818  Answer.
4.819  Amendment of notice or answer.
4.820  Consolidated or joint hearings.
4.821  Motions.
4.822  Disposition of motions.
4.823  Interlocutory appeals.
4.824  Exhibits.
4.825  Admissions as to facts and documents.
4.826  Discovery.
4.827  Depositions.
4.828  Use of depositions at hearing.
4.829  Interrogatories to parties.
4.830  Production of documents and things and entry upon land for 
          inspection and other purposes.
4.831  Sanctions.
4.832  Consultation and advice.

                               Prehearing

4.833  Prehearing conferences.

                                 Hearing

4.834  Purpose.
4.835  Evidence.
4.836  Official notice.
4.837  Testimony.
4.838  Objections.
4.839  Exceptions.
4.840  Offer of proof.
4.841  Official transcript.

                         Posthearing Procedures

4.842  Proposed findings of fact and conclusions of law.
4.843  Record for decision.
4.844  Notification of right to file exceptions.
4.845  Final review by Secretary.

 Subpart J--Special Rules Applicable to Appeals Concerning Federal Oil 
                  and Gas Royalties and Related Matters

4.901  What is the purpose of this subpart?
4.902  What appeals are subject to this subpart?
4.903  What definitions apply to this subpart?
4.904  When does my appeal commence and end?
4.905  What if a due date falls on a day the Department or relevant 
          office is not open for business?
4.906  What if the Department does not issue a decision by the date my 
          appeal ends?
4.907  What if an IBLA decision requires MMS or a delegated State to 
          recalculate royalties or other payments?
4.908  What is the administrative record for my appeal if it is deemed 
          decided?
4.909  How do I request an extension of time?

[[Page 45]]

Subpart K  [Reserved]

Subpart L--Special Rules Applicable to Surface Coal Mining Hearings and 
                                 Appeals

                           General Provisions

4.1100  Definitions.
4.1101  Jurisdiction of the Board.
4.1102  Construction.
4.1103  Eligibility to practice.
4.1104  General rules relating to procedure and practice.
4.1105  Parties.
4.1106  Hearing sites.
4.1107  Filing of documents.
4.1108  Form of documents.
4.1109  Service.
4.1110  Intervention.
4.1111  Voluntary dismissal.
4.1112  Motions.
4.1113  Consolidation of proceedings.
4.1114  Advancement of proceedings.
4.1115  Waiver of right to hearing.
4.1116  Status of notices of violation and orders of cessation pending 
          review by the Office of Hearings and Appeals.

                          Evidentiary Hearings

4.1120  Presiding officers.
4.1121  Powers of administrative law judges.
4.1122  Conduct of administrative law judges.
4.1123  Notice of hearing.
4.1124  Certification of interlocutory ruling.
4.1125  Summary decision.
4.1126  Proposed findings of fact and conclusions of law.
4.1127  Initial orders and decisions.
4.1128  Effect of initial order or decision.
4.1129  Certification of record.

                                Discovery

4.1130  Discovery methods.
4.1131  Time for discovery.
4.1132  Scope of discovery.
4.1133  Sequence and timing of discovery.
4.1134  Supplementation of responses.
4.1135  Motion to compel discovery.
4.1136  Failure to comply with orders compelling discovery.
4.1137  Depositions upon oral examination or upon written questions.
4.1138  Use of depositions.
4.1139  Written interrogatories to parties.
4.1140  Production of documents and things and entry upon land for 
          inspection and other purposes.
4.1141  Admissions.

     Petitions for Review of Proposed Assessments of Civil Penalties

4.1150  Who may file.
4.1151  Time for filing.
4.1152  Contents of petition; payment required.
4.1153  Answer.
4.1154  Review of waiver determination.
4.1155  Burdens of proof in civil penalty proceedings.
4.1156  Summary disposition.
4.1157  Determination by administrative law judge.
4.1158  Appeals.

   Review of Section 521 Notices of Violation and Orders of Cessation

4.1160  Scope.
4.1161  Who may file.
4.1162  Time for filing.
4.1163  Effect of failure to file.
4.1164  Contents of application.
4.1165  Answer.
4.1166  Contents of answer.
4.1167  Notice of hearing.
4.1168  Amendments to pleadings.
4.1169  Failure to state a claim.
4.1170  Related notices or orders.
4.1171  Burden of proof in review of section 521 notices or orders.

 Expedited Review of Section 521(a)(2) or 521(a)(3) Orders of Cessation

4.1180  Purpose.
4.1181  Who may file.
4.1182  Where to file.
4.1183  Time for filing.
4.1184  Contents of application.
4.1185  Computation of time for decision.
4.1186  Waiver of the 30-day decision requirement.
4.1187  Procedure if 30-day decision requirement is not waived.

   Proceedings for Suspension or Revocation of Permits Under Section 
                          521(a)(4) of the Act

4.1190  Initiation of proceedings.
4.1191  Answer.
4.1192  Contents of answer.
4.1193  Notice of hearing.
4.1194  Burden of proof in suspension or revocation proceedings.
4.1195  Determination by the administrative law judge.
4.1196  Summary disposition.
4.1197  Appeals.

Applications for Review of Alleged Discriminatory Acts Under Section 703 
                               of the Act

4.1200  Filing of the application for review with the Office of Hearings 
          and Appeals.
4.1201  Request for scheduling of a hearing.
4.1202  Response to request for the scheduling of a hearing.
4.1203  Application for temporary relief from alleged discriminatory 
          acts.
4.1204  Determination by administrative law judge.
4.1205  Appeals.

[[Page 46]]

                    Applications for Temporary Relief

4.1260  Scope.
4.1261  When to file.
4.1262  Where to file.
4.1263  Contents of application.
4.1264  Response to application.
4.1265  Determination on application concerning a notice of violation 
          issued pursuant to section 521(a)(3) of the Act.
4.1266  Determination on application concerning an order of cessation.
4.1267  Appeals.

  Appeals to the Board From Decisions or Orders of Administrative Law 
                                 Judges

4.1270  Petition for discretionary review of a proposed civil penalty.
4.1271  Notice of appeal.
4.1272  Interlocutory appeals.
4.1273  Briefs.
4.1274  Remand.
4.1275  Final decisions.
4.1276  Reconsideration.

   Appeals to the Board From Decisions of the Office of Surface Mining

4.1280  Scope.
4.1281  Who may appeal.
4.1282  Appeals; how taken.
4.1283  Service.
4.1284  Answer.
4.1285  Summary dismissal.
4.1286  Request for hearings.

 Petitions for Award of Costs and Expenses Under Section 525(e) of the 
                                   Act

4.1290  Who may file.
4.1291  Where to file; time for filing.
4.1292  Contents of petition.
4.1293  Answer.
4.1294  Who may receive an award.
4.1295  Awards.
4.1296  Appeals.

 Petitions for Review of Proposed Individual Civil Penalty Assessments 
                     Under Section 518(f) of the Act

4.1300  Scope.
4.1301  Who may file.
4.1302  Time for filing.
4.1303  Contents and service of petition.
4.1304  Answer, motion, or statement of OSM.
4.1305  Amendment of petition.
4.1306  Notice of hearing.
4.1307  Elements; burdens of proof.
4.1308  Decision by administrative law judge.
4.1309  Petition for discretionary review.

 Request for Hearing on a Preliminary Finding Concerning a Demonstrated 
Pattern of Willful Violations Under Section 510(c) of the Act, 30 U.S.C. 
  1260(c) (Federal Program; Federal Lands Program; Federal Program for 
                              Indian Lands)

4.1350  Scope.
4.1351  Preliminary finding by OSM.
4.1352  Who may file; where to file; when to file.
4.1353  Contents of request.
4.1354  Determination by the administrative law judge.
4.1355  Burden of proof.
4.1356  Appeals.

 Request for Review of Approval or Disapproval of Applications for New 
Permits, Permit Revisions, Permit Renewals, the Transfer, Assignment or 
  Sale of Rights Granted Under Permit (Federal Program; Federal Lands 
  Program; Federal Program for Indian Lands) and for Coal Exploration 
                        Permits (Federal Program)

4.1360  Scope.
4.1361  Who may file.
4.1362  Where to file; when to file.
4.1363  Contents of request; amendment of request; responses.
4.1364  Time for hearing; notice of hearing; extension of time for 
          hearing.
4.1365  Status of decision pending administrative review.
4.1366  Burdens of proof.
4.1367  Request for temporary relief.
4.1368  Determination by the Administrative Law Judge.
4.1369  Petition for discretionary review; judicial review.

Review of OSM Decisions Proposing To Suspend or Rescind or Suspending or 
                 Rescinding Improvidently Issued Permits

4.1370  Scope.
4.1371  Who may file, where to file, when to file.
4.1372  Contents of request for review, response to request, amendment 
          of request.
4.1373  Hearing.
4.1374  Burdens of proof.
4.1375  Time for initial decision.
4.1376  Petition for temporary relief from notice of proposed suspension 
          or rescission or notice of suspension or rescission; appeals 
          from decisions granting or denying temporary relief.
4.1377  Petition for discretionary review of initial decision.

[[Page 47]]

    Review of Office of Surface Mining Written Decisions Concerning 
                     Ownership or Control Challenges

4.1380  Scope.
4.1381  Who may file; when to file; where to file.
4.1382  Contents of request for review; response to request; amendment 
          of request.
4.1383  Hearing.
4.1384  Burdens of proof.
4.1385  Time for initial decision.
4.1386  Petition for temporary relief from decision; appeals from 
          decisions granting or denying temporary relief.
4.1387  Petition for discretionary review of initial decisions.

Request for Review of OSM Determinations of Issues Under 30 CFR Part 761 
  (Federal Program; Federal Lands Program; Federal Program for Indian 
                                 Lands)

4.1390  Scope.
4.1391  Who may file; where to file; when to file; filing of 
          administrative record.
4.1392  Contents of request; amendment of request; responses.
4.1393  Status of decision pending administrative review.
4.1394  Burden of proof.

 Subpart M--Special Procedural Rules Applicable to Appeals of Decisions 
                      Made Under OMB Circular A-76

4.1600  Purpose and nature of the appeal process.
4.1601  Basis for appeal.
4.1602  Who may appeal under this procedure.
4.1603  Appeal period.
4.1604  Method of filing an appeal.
4.1605  Action by the Office of Hearings and Appeals.
4.1606  Department representation.
4.1607  Processing the appeal.
4.1608  Oral presentations.
4.1609  Multiple appeals.
4.1610  Decision of the appeals official.

    Authority: R.S. 2478, as amended, 43 U.S.C. sec. 1201, unless 
otherwise noted.

    Source: 36 FR 7186, Apr. 15, 1971, unless otherwise noted.



           Subpart A--General; Office of Hearings and Appeals



Sec. 4.1  Scope of authority; applicable regulations.

    The Office of Hearings and Appeals, headed by a Director, is an 
authorized representative of the Secretary for the purpose of hearing, 
considering and determining, as fully and finally as might the 
Secretary, matters within the jurisdiction of the Department involving 
hearings, and appeals and other review functions of the Secretary. 
Principal components of the Office include:
    (a) A Hearings Division comprised of administrative law judges who 
are authorized to conduct hearings in cases required by law to be 
conducted pursuant to 5 U.S.C. 554, and hearings in other cases arising 
under statutes and regulations of the Department, including rule making 
hearings, and
    (b) Appeals Boards, shown below, with administrative jurisdiction 
and special procedural rules as indicated. General rules applicable to 
all types of proceedings are set forth in subpart B of this part. 
Therefore, for information as to applicable rules, reference should be 
made to the special rules in the subpart relating to the particular type 
of proceeding, as indicated, and to the general rules in subpart B of 
this part. Wherever there is any conflict between one of the general 
rules in subpart B of this part and a special rule in another subpart 
applicable to a particular type of proceeding, the special rule will 
govern. Reference should be made also to the governing laws, substantive 
regulations and policies of the Department relating to the proceeding. 
In addition, reference should be made to part 1 of this subtitle which 
regulates practice before the Department of the Interior.
    (1) Board of Contract Appeals. The Board considers and decides 
finally for the Department appeals to the head of the Department from 
findings of fact or decisions by contracting officers of any bureau or 
office of the Department, wherever situated, or any field installation 
thereof, and orders and conducts hearings as necessary. Special 
regulations applicable to proceedings before the Board are contained in 
subpart C of this part.
    (2) Board of Indian Appeals. The Board decides finally for the 
Department appeals to the head of the Department pertaining to:
    (i) Administrative actions of officials of the Bureau of Indian 
Affairs, issued under 25 CFR chapter I, except as limited in 25 CFR 
chapter I or Sec. 4.330 of this part, and

[[Page 48]]

    (ii) Orders and decisions of Administrative Law Judges in Indian 
probate matters other than those involving estates of the Five Civilized 
Tribes of Indians. The Board also decides such other matters pertaining 
to Indians as are referred to it by the Secretary, the Director of the 
Office of Hearings and Appeals, or the Assistant Secretary-Indian 
Affairs for exercise of review authority of the Secretary. Special 
regulations applicable to proceedings before the Board are contained in 
subpart D of this part.
    (3) Board of Land Appeals. The Board decides finally for the 
Department appeals to the head of the Department from decisions rendered 
by Departmental officials relating to: (i) The use and disposition of 
public lands and their resources, including land selections arising 
under the Alaska Native Claims Settlement Act, as amended; (ii) the use 
and disposition of mineral resources in certain acquired lands of the 
United States and in the submerged lands of the Outer Continental Shelf; 
and (iii) the conduct of surface coal mining under the Surface Mining 
Control and Reclamation Act of 1977. Special procedures for hearings, 
appeals and contests in public land cases are contained in subpart E of 
this part; special procedures for hearings and appeals under the Surface 
Mining Control and Reclamation Act of 1977 are contained in subpart L of 
this part.
    (4) Ad Hoc Board of Appeals. Appeals to the head of the Department 
which do not lie within the appellate review jursidiction of an 
established Appeals Board and which are not specifically excepted in the 
general delegation of authority to the Director may be considered and 
ruled upon by the Director or by Ad Hoc Boards of Appeals appointed by 
the Director to consider the particular appeals and to issue decisions 
thereon, deciding finally for the Department all questions of fact and 
law necessary for the complete adjudication of the issues. Jurisdiction 
of the Boards would include, but not be limited to, the appellate and 
review authority of the Secretary referred to in parts 13, 21, and 230 
of this title, and in 36 CFR parts 8 and 20. Special regulations 
applicable to proceedings in such cases are contained in subpart G of 
this part.

(Sec. 525, Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. 
1275, and sec. 301, Administrative Procedure Act, 5 U.S.C. 301)

[36 FR 7186, Apr. 15, 1971, as amended at 40 FR 33172, Aug. 6, 1975; 47 
FR 26392, June 18, 1982; 49 FR 7565, Mar. 1, 1984; 54 FR 6485, Feb. 10, 
1989; 61 FR 47434, Sept. 9, 1996; 61 FR 49976, Sept. 24, 1996]



Sec. 4.2  Membership of appeals boards; decisions, functions of Chief Judges.

    (a) The Appeals Boards consist of regular members, who are hereby 
designated Administrative Judges, one of whom is designated as Chief 
Administrative Judge, the Director as an ex officio member, and 
alternate members who may serve, when necessary, in place of or in 
addition to regular members. The Chief Administrative Judge of an 
Appeals Board may direct that an appeal may be decided by a panel of any 
two Administrative Judges of the Board, but if they are unable to agree 
upon a decision, the Chief Administrative Judge may assign one or more 
additional Administrative Judges of the Board to consider the appeal. 
The concurrence of a majority of the Board Administrative Judges who 
consider an appeal shall be sufficient for a decision.
    (b) Decisions of the Board must be in writing and signed by not less 
than a majority of the Administrative Judges who considered the appeal. 
The Director, being an ex officio member, may participate in the 
consideration of any appeal and sign the resulting decision.
    (c) The Chief Administrative Judge of an Appeals Board shall be 
responsible for the internal management and administration of the Board, 
and the Chief Administrative Judge is authorized to act on behalf of the 
Board in conducting correspondence and in carrying out such other duties 
as may be necessary in the conduct of routine business of the Board.

[39 FR 7931, Mar. 1, 1974]



Sec. 4.3  Representation before appeals boards.

    (a) Appearances generally. Representation of parties in proceedings 
before

[[Page 49]]

Appeals Boards of the Office of Hearings and Appeals is governed by Part 
1 of this subtitle, which regulates practice before the Department of 
the Interior.
    (b) Representation of the Government. Department counsel designated 
by the Solicitor of the Department to represent agencies, bureaus, and 
offices of the Department of the Interior in proceedings before the 
Office of Hearings and Appeals, and Government counsel for other 
agencies, bureaus or offices of the Federal Government involved in any 
proceeding before the Office of Hearings and Appeals, shall represent 
the Government agency in the same manner as a private advocate 
represents a client.
    (c) Appearances as amicus curiae. Any person desiring to appear as 
amicus curiae in any proceeding shall make timely request stating the 
grounds for such request. Permission to appear, if granted, will be for 
such purposes as established by the Director or the Appeals Board in the 
proceeding.



Sec. 4.4  Public records; locations of field offices.

    Part 2 of this subtitle prescribes the rules governing availability 
of the public records of the Office of Hearings and Appeals. It includes 
a list of the field offices of the Office of Hearings and Appeals and 
their locations.



Sec. 4.5  Power of the Secretary and Director.

    (a) Secretary. Nothing in this part shall be construed to deprive 
the Secretary of any power conferred upon him by law. The authority 
reserved to the Secretary includes, but is not limited to:
    (1) The authority to take jurisdiction at any stage of any case 
before any employee or employees of the Department, including any 
administrative law judge or board of the Office, except a case before 
the Board of Contract Appeals which is subject to the Contract Disputes 
Act of 1978, and render the final decision in the matter after holding 
such hearing as may be required by law; and
    (2) The authority to review any decision of any employee or 
employees of the Department, including any administrative law judge or 
board of the Office, or to direct any such employee or employees to 
reconsider a decision, except a decision by the Board of Contract 
Appeals which is subject to the Contract Disputes Act of 1978.
    (b) The Director. Except for cases or decisions subject to the 
Contract Disputes Act of 1978, the Director, pursuant to his delegated 
authority from the Secretary, may assume jurisdiction of any case before 
any board of the Office or review any decision of any board of the 
Office or direct reconsideration of any decision by any board of the 
Office.
    (c) Exercise of reserved power. If the Secretary or Director assumes 
jurisdiction of a case or reviews a decision, the parties and the 
appropriate Departmental personnel will be advised in writing of such 
action, the administrative record will be requested, and, after the 
review process is completed, a written decision will be issued.

[50 FR 43705, Oct. 29, 1985, as amended at 52 FR 46355, Dec. 7, 1987; 52 
FR 47097, Dec. 11, 1987]



      Subpart B--General Rules Relating to Procedures and Practice



Sec. 4.20  Purpose.

    In the interest of establishing and maintaining uniformity to the 
extent feasible, this subpart sets forth general rules applicable to all 
types of proceedings before the Hearings Division and the several 
Appeals Boards of the Office of Hearings and Appeals.



Sec. 4.21  General provisions.

    (a) Effect of decision pending appeal. Except as otherwise provided 
by law or other pertinent regulation:
    (1) A decision will not be effective during the time in which a 
person adversely affected may file a notice of appeal; when the public 
interest requires, however, the Director or an Appeals Board may provide 
that a decision, or any part of a decision, shall be in full force and 
effective immediately;
    (2) A decision will become effective on the day after the expiration 
of the time during which a person adversely

[[Page 50]]

affected may file a notice of appeal unless a petition for a stay 
pending appeal is filed together with a timely notice of appeal; a 
petition for a stay may be filed only by a party who may properly 
maintain an appeal;
    (3) A decision, or that portion of a decision, for which a stay is 
not granted will become effective immediately after the Director or an 
Appeals Board denies or partially denies the petition for a stay, or 
fails to act on the petition within the time specified in paragraph 
(b)(4) of this section.
    (b) Standards and procedures for obtaining a stay. Except as 
otherwise provided by law or other pertinent regulation:
    (1) A petition for a stay of a decision pending appeal shall show 
sufficient justification based on the following standards:
    (i) The relative harm to the parties if the stay is granted or 
denied,
    (ii) The likelihood of the appellant's success on the merits,
    (iii) The likelihood of immediate and irreparable harm if the stay 
is not granted, and
    (iv) Whether the public interest favors granting the stay;
    (2) The appellant requesting the stay bears the burden of proof to 
demonstrate that a stay should be granted;
    (3) The appellant shall serve a copy of its notice of appeal and 
petition for a stay on each party named in the decision from which the 
appeal is taken, and on the Director or the Appeals Board to which the 
appeal is taken, at the same time such documents are served on the 
appropriate officer of the Department; any party, including the officer 
who made the decision being appealed, may file a response to the stay 
petition within 10 days after service; failure to file a response shall 
not result in a default on the question of whether a stay should be 
granted; service shall be made by delivering copies personally or by 
sending them by registered or certified mail, return receipt requested;
    (4) The Director or an Appeals Board shall grant or deny a petition 
for a stay pending appeal, either in whole or in part, on the basis of 
the factors listed in paragraph (b)(1) of this section, within 45 
calendar days of the expiration of the time for filing a notice of 
appeal;
    (c) Exhaustion of administrative remedies. No decision which at the 
time of its rendition is subject to appeal to the Director or an Appeals 
Board shall be considered final so as to be agency action subject to 
judicial review under 5 U.S.C. 704, unless a petition for a stay of 
decision has been timely filed and the decision being appealed has been 
made effective in the manner provided in paragraphs (a)(3) or (b)(4) of 
this section or a decision has been made effective pending appeal 
pursuant to paragraph (a)(1) of this section or pursuant to other 
pertinent regulation.
    (d) Finality of decision. No further appeal will lie in the 
Department from a decision of the Director or an Appeals Board of the 
Office of Hearings and Appeals. Unless otherwise provided by regulation, 
reconsideration of a decision may be granted only in extraordinary 
circumstances where, in the judgment of the Director or an Appeals 
Board, sufficient reason appears therefor. Requests for reconsideration 
must be filed promptly, or within the time required by the regulations 
relating to the particular type of proceeding concerned, and must state 
with particularity the error claimed. The filing and pendency of a 
request for reconsideration shall not operate to stay the effectiveness 
of the decision involved unless so ordered by the Director or an Appeals 
Board. A request for reconsideration need not be filed to exhaust 
administrative remedies.

[36 FR 7186, Apr. 15, 1971, as amended at 58 FR 4942, Jan. 19, 1993]



Sec. 4.22  Documents.

    (a) Filing of documents. A document is filed in the Office where the 
filing is required only when the document is received in that office 
during the office hours when filing is permitted and the document is 
received by a person authorized to receive it.
    (b) Service generally. A copy of each document filed in a proceeding 
before the Office of Hearings and Appeals must be served by the filing 
party on the other party or parties in the case, except as otherwise 
provided by Sec. 4.31. In all cases where a party is represented by an 
attorney, such attorney

[[Page 51]]

will be recognized as fully controlling the case on behalf of his/her 
client, and service of any document relating to the proceeding shall be 
made upon such attorney in addition to any other service specifically 
required by law or by order of a presiding official or an appeals board. 
Where a party is represented by more than one attorney, service upon one 
of the attorneys shall be sufficient.
    (c) Retention of documents. All documents, books, records, papers, 
etc., received in evidence in a hearing or submitted for the record in 
any proceeding before the Office of Hearings and Appeals will be 
retained with the official record of the proceedings. However, the 
withdrawal of original documents may be permitted while the case is 
pending upon the submission of true copies in lieu thereof. When a 
decision has become final, an appeals board in its discretion may, upon 
request and after notice to the other party or parties, permit the 
withdrawal of original exhibits or any part thereof by the party 
entitled thereto. The substitution of true copies of exhibits or any 
part thereof may be required by the Board in its discretion as a 
condition of granting permission for such withdrawal. Transcripts of 
testimony and/or documents received or reviewed pursuant to Sec. 4.31 of 
these rules shall be sealed against disclosure to unauthorized persons 
and retained with the official record, subject to the withdrawal and 
substitution provisions hereof.
    (d) Record address. Every person who files a document for the record 
in connection with any proceeding before the Office of Hearings and 
Appeals shall at the time of his initial filing in the matter state his 
address. Thereafter he must promptly inform the office in which the 
matter is pending of any change in address, giving the docket or other 
appropriate numbers of all matters in which he has made such a filing. 
The successors of such person shall likewise promptly inform such office 
of their interest in the matters and state their addresses. If a person 
fails to furnish a record address as required herein, he will not be 
entitled to notice in connection with the proceedings.
    (e) Computation of time for filing and service. Except as otherwise 
provided by law, in computing any period of time prescribed for filing 
and serving a document, the day upon which the decision or document to 
be appealed from or answered was served or the day of any other event 
after which the designated period of time begins to run is not to be 
included. The last day of the period so computed is to be included, 
unless it is a Saturday, Sunday, Federal legal holiday, or other 
nonbusiness day, in which event the period runs until the end of the 
next day which is not a Saturday, Sunday, Federal legal holiday, or 
other nonbusiness day. When the time prescribed or allowed is 7 days or 
less, intermediate Saturdays, Sundays, Federal legal holidays and other 
nonbusiness days shall be excluded in the computation.
    (f) Extensions of time. (1) The time for filing or serving any 
document may be extended by the Appeals Board or other officer before 
whom the proceeding is pending, except for the time for filing a notice 
of appeal and except where such extension is contrary to law or 
regulation.
    (2) A request for an extension of time must be filed within the time 
allowed for the filing or serving of the document and must be filed in 
the same office in which the document in connection with which the 
extension is requested must be filed.

[36 FR 7186, Apr. 15, 1971, as amended at 53 FR 49660, Dec. 9, 1988]



Sec. 4.23  Transcript of hearings.

    Hearings will be recorded verbatim and transcripts thereof shall be 
made when requested by interested parties, costs of transcripts to be 
borne by the requesting parties. Fees for transcripts prepared from 
recordings by Office of Hearings and Appeals employees will be at rates 
which cover the cost of manpower, machine use and materials, plus 25 
percent, adjusted to the nearest 5 cents. If the reporting is done 
pursuant to a contract between the reporter and the Department of the 
Interior Agency or office which is involved in the proceeding, or the 
Office of Hearings and Appeals, fees for transcripts will be at rates 
established by the contract.

[[Page 52]]



Sec. 4.24  Basis of decision.

    (a) Record. (1) The record of a hearing shall consist of the 
transcript of testimony or summary of testimony and exhibits together 
with all papers and requests filed in the hearing.
    (2) If a hearing has been held on an appeal pursuant to instructions 
of an Appeals Board, this record shall be the sole basis for decision 
insofar as the referred issues of fact are involved except to the extent 
that official notice may be taken of a fact as provided in paragraph (b) 
of this section.
    (3) Where a hearing has been held in other proceedings, the record 
made shall be the sole basis for decision except to the extent that 
official notice may be taken of a fact as provided in paragraph (b) of 
this section.
    (4) In any case, no decision after a hearing or on appeal shall be 
based upon any record, statement, file, or similar document which is not 
open to inspection by the parties to the hearing or appeal, except for 
documents or other evidence received or reviewed pursuant to 
Sec. 4.31(d).
    (b) Official notice. Official notice may be taken of the public 
records of the Department of the Interior and of any matter of which the 
courts may take judicial notice.

[36 FR 7186, Apr. 15, 1971, as amended at 53 FR 49660, Dec. 9, 1988]



Sec. 4.25  Oral argument.

    The Director or an Appeals Board may, in their discretion, grant an 
opportunity for oral argument.



Sec. 4.26  Subpoena power and witness provisions generally.

    (a) Compulsory attendance of witnesses. The administrative law 
judge, on his own motion, or on written application of a party, is 
authorized to issue subpoenas requiring the attendance of witnesses at 
hearings to be held before him or at the taking of depositions to be 
held before himself or other officers. Subpoenas will be issued on a 
form approved by the Director. A subpoena may be served by any person 
who is not a party and is not less than 18 years of age, and the 
original subpoena bearing a certificate of service shall be filed with 
the administrative law judge. A witness may be required to attend a 
deposition or hearing at a place not more than 100 miles from the place 
of service.
    (b) Application for subpoena. Where the file has not yet been 
transmitted to the administrative law judge, the application for a 
subpoena may be filed in the office of the officer who made the decision 
appealed from, or in the office of the Bureau of Land Management in 
which the complaint was filed, in which cases such offices will forward 
the application to the examiner.
    (c) Fees payable to witnesses. (1) Witnesses subpoenaed by any party 
shall be paid the same fees and mileage as are paid for like service in 
the District Courts of the United States. The witness fees and mileage 
shall be paid by the party at whose instance the witness appears.
    (2) Any witness who attends any hearing or the taking of any 
deposition at the request of any party to the controversy without having 
been subpoenaed to do so shall be entitled to the same mileage and 
attendance fees, to be paid by such party, to which he would have been 
entitled if he had been first duly subpoenaed as a witness on behalf of 
such party. This paragraph does not apply to Government employees who 
are called as witnesses by the Government.



Sec. 4.27  Standards of conduct.

    (a) Inquiries. All inquiries with respect to any matter pending 
before the Office of Hearings and Appeals shall be directed to the 
Director, the Chief Administrative Law Judge, or the Chairman of the 
appropriate Board.
    (b) Ex parte communication--(1) Prohi-
bition. Except to the extent required for the disposition of ex parte 
matters as authorized by law, there shall be no communication concerning 
the merits of a proceeding between any party to the proceeding or any 
person interested in the proceeding or any representative of a party or 
interested person and any Office personnel involved or who may 
reasonably be expected to become involved in the decisionmaking process 
on that proceeding, unless the communication, if oral, is made in the 
presence of all other parties or their representatives, or, if written, 
is furnished

[[Page 53]]

to all other parties. Proceedings include cases pending before the 
Office, rulemakings amending this Part 4 that might affect a pending 
case, requests for reconsideration or review by the Director, and any 
other related action pending before the Office. The terms ``interested 
person'' and ``person interested in the proceeding'' include any 
individual or other person with an interest in the agency proceeding 
that is greater than the interest that the public as a whole may have. 
This regulation does not prohibit communications concerning case status 
or advice concerning compliance with procedural requirements unless the 
area of inquiry is in fact an area of controversy in the proceeding. Any 
oral communication made in violation of this regulation shall be reduced 
to writing in a memorandum to the file by the person receiving the 
communication and shall be included in the record. Any written 
communication made in violation of this regulation shall be included in 
the record. In proceedings other than informal rulemakings copies of the 
memorandum or communication shall be provided to all parties, who shall 
be given an opportunity to respond in writing.
    (2) Sanctions. The administrative law judge, board, or Director who 
has responsibility for the matter with respect to which a prohibited 
communication has been knowingly made may impose appropriate sanctions 
on the offending person or persons, which may include requiring an 
offending party to show cause why its claim, motion, or interest should 
not be dismissed, denied, or otherwise adversely affected; disciplining 
offending Office personnel pursuant to the Department's standards of 
conduct (43 CFR part 20); and invoking such sanctions against other 
offending persons as may be appropriate under the circumstances.
    (c) Disqualification. An administrative law judge or Board member 
shall withdraw from a case if he deems himself disqualified under the 
recognized canons of judicial ethics. If, prior to a decision of an 
administrative law judge or an Appeals Board, there is filed in good 
faith by a party an affidavit of personal bias or disqualification with 
substantiating facts, and the administrative law judge or Board member 
concerned does not withdraw, the Board or the Director, as appropriate, 
shall determine the matter of disqualification.

[36 FR 7186, Apr. 15, 1971, as amended at 50 FR 43705, Oct. 29, 1985; 53 
FR 49660, Dec. 9, 1988]



Sec. 4.28  Interlocutory appeals.

    There shall be no interlocutory appeal from a ruling of an 
administrative law judge unless permission is first obtained from an 
Appeals Board and an administrative law judge has certified the 
interlocutory ruling or abused his discretion in refusing a request to 
so certify. Permission will not be granted except upon a showing that 
the ruling complained of involves a controlling question of law and that 
an immediate appeal therefrom may materially advance the final decision. 
An interlocutory appeal shall not operate to suspend the hearing unless 
otherwise ordered by the Board.



Sec. 4.29  Remands from courts.

    Whenever any matter is remanded from any court for further 
proceedings, and to the extent the court's directive and time 
limitations will permit, the parties shall be allowed an opportunity to 
submit to the appropriate Appeals Board, a report recommending 
procedures to be followed in order to comply with the court's order. The 
Board will review the reports and enter special orders governing the 
handling of matters remanded to it for further proceedings by any court.



Sec. 4.30  Information required by forms.

    Whenever a regulation of the Office of Hearing and Appeals requires 
a form approved or prescribed by the Director, the Director may in that 
form require the submission of any information which he considers to be 
necessary for the effective administration of that regulation.



Sec. 4.31  Request for limiting disclosure of confidential information.

    (a) If any person submitting a document in a proceeding under this 
part claims that some or all of the information contained in that 
document is exempt from the mandatory public disclosure requirements of 
the Freedom of

[[Page 54]]

Information Act (5 U.S.C. 552), is information referred to in section 
1905 of title 18 of the United States Code (disclosure of confidential 
information), or is otherwise exempt by law from public disclosure, the 
person:
    (1) Must indicate in the document that it is exempt, or contains 
information which is exempt, from disclosure;
    (2) Must request the presiding officer or appeals board not to 
disclose such information except to the parties to the proceeding under 
the conditions provided in paragraphs (b) and (c) of this section, and 
must serve the request upon the parties to the proceeding. The request 
shall include the following items:
    (i) A copy of the document from which has been deleted the 
information for which the person requests nondisclosure; if it is not 
practicable to submit such copy of the document because deletion of the 
information would render the document unintelligible, a description of 
the document may be substituted;
    (ii) A statement specifying why the information is confidential, if 
the information for which nondisclosure is requested is claimed to come 
within the exception in 5 U.S.C. 552(b)(4) for trade secrets and 
commercial or financial information:
    (iii) A statement specifying the justification for nondisclosure, if 
the information for which nondisclosure is requested is not within the 
exception in 5 U.S.C. 552(b)(4).
    (b) If information is submitted in accordance with paragraph (a) of 
this section, the information will not be disclosed except as provided 
in the Freedom of Information Act, in accordance with part 2 of this 
title, or upon request from a party to the proceeding under the 
restrictions stated in paragraph (c) of this section.
    (c) At any time, a party may request the presiding officer or 
appeals board to direct a person submitting information under paragraph 
(a) of this section to provide that information to the party. The 
presiding officer or board will so direct, unless paragraph (d) of this 
section is applicable, if the party requesting the information agrees 
under oath in writing:
    (1) Not to use or disclose the information except in the context of 
the proceeding conducted pursuant to this part; and
    (2) To return all copies of the information at the conclusion of the 
proceeding to the person submitting the information under paragraph (a) 
of this section.
    (d) If any person submitting a document in a proceeding under this 
Part other than a hearing conducted pursuant to 5 U.S.C. 554 claims that 
a disclosure of information in that document to another party to the 
proceeding is prohibited by law, notwithstanding the protection provided 
under paragraph (c) of this section, such person:
    (1) Must indicate in the original document that it contains 
information of which disclosure is prohibited;
    (2) Must request that the presiding officer or appeals board review 
such evidence as a basis for its decision without disclosing it to the 
other party or parties, and serve the request upon the parties to the 
proceeding. The request shall include a copy of the document or 
description as required by paragraph (a)(2)(i) of this section and state 
why disclosure is prohibited, citing pertinent statutory or regulatory 
authority. If the prohibition on disclosure is intended to protect the 
interest of a person who is not a party to the proceeding, the party 
making the request must demonstrate that such person refused to consent 
to the disclosure of the evidence to other parties to the proceeding.
    (3) If the presiding officer or an appeals board denies the request, 
the person who made the request shall be given an opportunity to 
withdraw the evidence before it is considered by the presiding official 
or board unless a Freedom of Information Act request, administrative 
appeal from the denial of a request, or lawsuit seeking release of the 
information is pending.
    (e) If the person submitting a document does not submit the copy of 
the document or description required by paragraph (a)(2)(i) or (d)(2) of 
this section, the presiding officer or appeals board may assume that 
there is no objection to public disclosure of the document in its 
entirety.

[[Page 55]]

    (f) Where a decision by a presiding officer or appeals board is 
based in whole or in part on evidence not included in the public record 
or disclosed to all parties, the decision shall so state, specifying the 
nature of the evidence and the provision of law under which disclosure 
was denied, and the evidence so considered shall be retained under seal 
as part of the official record.

[53 FR 49661, Dec. 9, 1988]



   Subpart C--Special Rules of Practice Before the Interior Board of 
                            Contract Appeals

    Authority: 5 U.S.C. 301 and the Contract Disputes Act of 1978 (Pub. 
L. 95-563, Nov. 1, 1978 (41 U.S.C. 601-613)).

    Source: 46 FR 57499, Nov. 24, 1981, unless otherwise noted.



Sec. 4.100  General rules and guidelines.

    (a) Effective date and applicability--(1) Effective date and general 
applicability. These rules shall be in effect on and after March 1, 
1979, and except as qualified by the provisions of paragraphs (a)(2) and 
(3) of this section, shall apply to all appeals brought before the 
Interior Board of Contract Appeals.
    (2) Special applicability. The rule set forth in Sec. 4.102(a) 
provides for alternative applicability, depending upon whether the 
appeal involved is subject to the Contract Disputes Act of 1978, Public 
Law 95-563 (41 U.S.C. 601-613). The rules set forth in Secs. 4.102 (c), 
(d), and (e), 4.113, and 4.120 shall apply exclusively to appeals which 
are subject to the Contract Disputes Act of 1978.
    (3) When an appeal is subject to the Contract Disputes Act of 1978. 
An appeal shall be subject to the Contract Disputes Act of 1978 if it 
involves a contract entered into on or after March 1, 1979; or, at the 
election of the appellant, if the appeal involves a contract entered 
into before March 1, 1979, and the contracting officer's decision from 
which the appeal is taken is dated March 1, 1979, or thereafter.
    (b) Jurisdiction for considering appeals. The Interior Board of 
Contract Appeals (referred to herein as the ``Board'') shall consider 
and determine appeals from decisions of contracting officers relating to 
contracts made by (i) the Department of the Interior or (ii) any other 
executive agency when such agency or the Administrator of the Office of 
Federal Procurement Policy has duly designated the Board to decide the 
appeal.
    (c) Location and organization of the Board. (1) The Board's address 
is 801 North Quincy Street, Arlington, Virginia 22203. Its telephone 
number is (703) 235-3813.
    (2) The Board consists of a Chairman, Vice Chairman, and other 
members all of whom are attorneys at law duly licensed by a State, 
Commonwealth, Territory, or the District of Columbia. In general, the 
appeals are assigned to a panel of at least two members who decide the 
cases. However, in cases of disagreement, or unusual circumstances, a 
panel of three members will be assigned to decide by a majority vote. 
Board members are designated Administrative Judges.
    (d) Time extensions and computations. (1) Where possible, procedural 
actions should be taken in less time than the maximum time allowed. 
Where appropriate and justified, however, extensions of time will be 
granted. All requests for extensions of time shall be in writing.
    (2) In computing any period of time, the day of the event from which 
the designated period of time begins to run shall not be included, but 
the last day of the period shall be included unless it is a Saturday, 
Sunday, or a legal holiday, in which event the period shall run to the 
end of the next business day.
    (e) General guidelines--(1) Place of filings. Unless the Board 
otherwise directs, all notices of appeal, pleadings, and other 
communications shall be filed with the Board at the address indicated 
herein. Communications to the Board shall be addressed to Interior Board 
of Contract Appeals, 801 North Quincy Street, Arlington, Virginia 22203.
    (2) Representation of parties. Whenever in these rules reference is 
made to contractor, appellant, contracting officer, respondent, or 
parties, this shall include respective counsel for the parties, as soon 
as appropriate notices of appearances have been filed with the

[[Page 56]]

Board. In those cases where an executive agency, other than the 
Department of the Interior, has designated the Board to adjudicate its 
contract appeals, the term, ``Department Counsel,'' shall mean 
Government Counsel assigned to represent such agency.
    (3) Interpretation of these rules. These rules will be interpreted 
so as to secure a just and inexpensive determination of appeals without 
unnecessary delay.
    (4) Decisions on questions of law. When an appeal is taken pursuant 
to a disputes clause in a contract which limits appeals to disputes 
concerning questions of fact, the Board will, nevertheless, consider and 
decide all questions of law necessary for the complete adjudication of 
the issues.
    (f) Ex parte communications. No member of the Board or of the 
Board's staff shall entertain, nor shall any person directly or 
indirectly involved in an appeal submit to the Board or the Board's 
staff, off the record, any evidence, explanation, analysis, or advice, 
whether written or oral, without the knowledge and consent of the 
adverse party, regarding any matter at issue in that appeal. This 
provision does not apply to consultation among Board members or to ex 
parte communications concerning the Board's administrative functions or 
procedures.
    (g) Sanctions. If any party fails or refuses to obey an order issued 
by the Board, the Board may make such order in regard to the failure as 
it considers necessary to the just and expeditious conduct of the 
appeal.

[46 FR 57499, Nov. 24, 1981, as amended at 50 FR 8325, Mar. 1, 1985; 67 
FR 4368, Jan. 30, 2002]

                       Prehearing Procedure Rules



Sec. 4.101  Who may appeal.

    Any contractor may appeal to the Board from decisions of contracting 
officers of any bureau or office of the Department of the Interior, or 
of any other agency with respect to which the Board exercises contract 
appeals jurisdiction, on disputed questions under contract provisions 
requiring the determination of such appeals by the head of the agency or 
his duly authorized representative or Board.



Sec. 4.102  Appeals--how taken.

    (a) Notice of appeal. Notice of an appeal must be in writing (a 
suggested form of notice appears as appendix I to subpart C herein 
following Sec. 4.128). The original, together with two copies, may be 
filed with the Board or the contracting officer from whose decision the 
appeal is taken. The notice of appeal must be mailed or otherwise filed 
within 90 days from the date of receipt of the contracting officer's 
decision, if the appeal is subject to the Contract Disputes Act of 1978; 
otherwise, within the time specified therefor in the contract.
    (b) Contents of notice of appeal. A notice of appeal should indicate 
that an appeal is thereby intended, and should identify the contract (by 
number), the Department's bureau or office involved in the dispute, and 
the decision from which the appeal is taken. The notice of appeal should 
be signed personally by the appellant (the contractor making the 
appeal), or by an authorized officer of the appellant corporation or 
member of the appellant firm, or by the contractor's duly authorized 
representative or attorney. The complaint referred to in Sec. 4.107 may 
be filed with the notice of appeal, or the contractor may designate the 
notice of appeal as a complaint, if it otherwise fulfills the 
requirements of a complaint.
    (c) Failure of CO to issue decision on claims of $50,000 or less. 
Where the contractor has submitted a claim of $50,000 or less to the 
contracting officer and has requested a written decision within 60 days 
from receipt of the request, and the contracting officer has not 
complied, the contractor may file a notice of appeal as provided in 
paragraph (a) of this section, citing the failure of the contracting 
officer to issue a decision. (See Sec. 4.100(a)(2).)
    (d) Failure of CO to issue decision on claims in excess of $50,000. 
Where the contractor has submitted a claim in excess of $50,000 to the 
contracting officer and the contracting officer has failed to issue a 
decision within a reasonable time, the contractor may file a notice of 
appeal as provided in paragraph (a) of this section, citing the failure 
to issue a decision. (See Sec. 4.100(a)(2).)
    (e) Optional stay of proceeding. Upon docketing of appeals filed 
pursuant to

[[Page 57]]

paragraphs (c) or (d) of this section, the Board may at its option, stay 
further proceedings pending issuance of a final decision by the 
contracting officer within such period of time as is determined by the 
Board. (See Sec. 4.100(a)(2).)



Sec. 4.103  Forwarding and docketing of appeals.

    (a) Forwarding of appeal. When a notice of appeal in any form has 
been received by the contracting officer, he shall endorse thereon the 
date of mailing (or the date of receipt, if the notice was otherwise 
conveyed) and within 5 days shall forward said notice of appeal to the 
Board by certified mail. He shall also promptly notify the Department's 
Office of the Solicitor, in accordance with instructions of the 
Solicitor, that the appeal has been received in order that a Department 
counsel may be appointed.
    (b) Docketing of appeals. When a notice of appeal in any form has 
been received by the Board, it shall be docketed promptly. Notice in 
writing of the fact of docketing, together with a copy of these rules, 
shall be mailed promptly by certified mail to the appellant. Also, a 
copy of such notice, together with a copy of the notice of appeal if not 
originally filed with the contracting officer, shall be mailed promptly 
by certified mail to the contacting officer. Such notice shall 
acknowledge receipt of the appeal and advise appellant of the appeal 
number assigned to the appeal.



Sec. 4.104  Preparation, organization, transmittal, and status of appeal file.

    (a) Preparation and transmittal of appeal file. Following receipt of 
a notice of appeal, or advice that an appeal has been docketed, the 
contracting officer shall promptly, and in any event within 30 days, 
compile and transmit to the Board the appeal file which shall consist of 
copies of all documents pertinent to the appeal. Within the same time 
period the contracting officer shall also prepare and transmit a copy of 
the appeal file to the Department counsel and a copy to the appellant or 
appellant's counsel. (However, the obligations of this subparagraph are 
subject to the provisions of paragraph (e) of this section.)
    (b) Composition of appeal file. The appeal file shall include the 
following:
    (1) The findings of fact and decision from which the appeal is 
taken, and the letter or letters or other documents of claim in response 
to which the decision was issued;
    (2) The contract, and pertinent plans, drawings, specifications, 
amendments, and change orders;
    (3) All correspondence between the parties pertinent to the appeal; 
and
    (4) Such additional information as may be considered pertinent and 
material.
    (c) Organization of appeal file. Documents in the appeal file may be 
originals, legible facsimiles, or authenticated copies thereof, and 
shall be arranged in chronological order where practicable, numbered 
sequentially, tabbed, and indexed to indentify the contents of the file, 
and bound. Any single document consisting of three or more pages shall 
be numbered sequentially for convenient reference at the hearing and in 
the preparation of briefs.
    (d) Opportunity for appellant to supplement appeal file. The 
appellant shall be afforded the opportunity of supplementing the appeal 
file with such documentation as may be deemed pertinent to the appeal. 
The appellant shall be obligated, however, to furnish to Department 
counsel a copy of any document by which the appeal file is supplemented.
    (e) Burdensome documents. The Board may waive the requirement of 
furnishing to the other party copies of bulky, lengthy, or out-of-size 
documents in the appeal file if a party has shown that doing so would 
impose an undue burden. At the time a party files with the Board a 
document as to which such a waiver has been granted, he shall notify the 
other party that the same or a copy is available for inspection at the 
offices of the Board or of the party filing the same.

[[Page 58]]



Sec. 4.105  Dismissal for lack of jurisdiction.

    Any motion challenging the jurisdiction of the Board shall be filed 
promptly. Hearing on the motion shall be afforded on application of 
either party, unless the Board determines that its decision on the 
motion will be deferred pending hearing on both the merits and the 
motion. The Board has authority to raise at any time and on its own 
motion the issue of its jurisdiction to conduct a proceeding and may 
afford the parties an opportunity to be heard thereon.



Sec. 4.106  Representation and appearances.

    (a) The Appellant. An individual appellant may appear before the 
Board in person, a corporation by one if its officers; and a partnership 
or joint venture by one of its members; or any of these by an attorney 
at law duly licensed in any state, commonwealth, territory, the District 
of Columbia, or in a foreign country. An attorney representing an 
appellant shall file a written notice of appearance with the Board.
    (b) The Government. Department or Government counsel may, in 
accordance with their authority, represent the interest of the 
Government before the Board. They shall file notices of appearance with 
the Board, and notice thereof will be given appellant or appellant's 
attorney.



Sec. 4.107  Pleadings.

    (a) Complaint. Within 30 days after receipt of notice of docketing 
of the appeal, the appellant shall file with the Board an original and 
one copy of a complaint setting forth simple, concise, and direct 
statements of each claim, alleging the basis with appropriate reference 
to contract provisions for each claim, and the dollar amount claimed. 
This pleading shall fulfill the generally recognized requirements of a 
complaint, although no particular form or formality is required. Letter 
size paper should be used for the complaint and for all other papers 
filed with the Board. Where the appeal arises out of a contract made 
with the Department of the Interior, a copy of the complaint shall be 
served by appellant upon the Department counsel if known, otherwise, 
upon the Solicitor, U.S. Department of the Interior, C Street, between 
18th and 19th Streets, NW., Washington, DC 20240. Where the appeal 
arises out of a contract made with an agency other than the Department 
of the Interior, a copy of the complaint shall be served by appellant 
upon the General Counsel for that agency. All such service shall be made 
in accordance with Sec. 4.117. Should the complaint not be received 
within 30 days, appellant's claim and appeal documents may, if in the 
opinion of the Board the issues before the Board are sufficiently 
defined, be deemed to set forth a complaint and the Department counsel 
will be so notified.
    (b) Answer. Within 30 days from receipt of said complaint, or the 
aforesaid notice from the Board, the Department counsel shall prepare 
and file with the Board an original and one copy of an answer thereto, 
setting forth simple, concise, and direct statements of the Government's 
defenses to each claim asserted by appellant. This pleading shall 
fulfill the generally recognized requirements of an answer, and shall 
set forth any affirmative defenses or counterclaims, as appropriate. One 
copy of the answer will be served by the Department counsel upon the 
appellant in accordance with Sec. 4.117. Should the answer not be 
received within 30 days, the Board, may, in its discretion enter a 
general denial on behalf of the Government, and the appellant shall be 
so notified.



Sec. 4.108  Amendments of pleadings or record.

    (a) The Board may, in its discretion, upon its own initiative or 
upon application by a party, order a party to make a more definite 
statement of the complaint or answer, or to reply to an answer.
    (b) The Board may, in its discretion, and within the proper scope of 
the appeal, permit either party to amend his pleading upon conditions 
just to both parties. When issues within the proper scope of the appeal, 
but not raised by the pleadings or the appeal file, are tried by express 
or implied consent of the parties, or by permission of the

[[Page 59]]

Board, they shall be treated in all respects as if they had been raised 
therein. In such circumstances motions to amend the pleadings to conform 
to the proof may be entered, but are not required. If evidence is 
objected to at a hearing on the ground that is is not within the issues 
raised by the pleadings or said appeal file (which shall be deemed part 
of the pleadings for this purpose), it may be admitted within the proper 
scope of the appeal: Provided, however, That the objecting party may be 
granted a continuance if necessary to enable him to meet such evidence.



Sec. 4.109  Hearing--election.

    Within 15 days after the Government's answer has been served upon 
the appellant, or within 20 days of the date upon which the Board enters 
a general denial on behalf of the Government, notification as to whether 
one or both of the parties desire an oral hearing on the appeal should 
be given to the Board. In the event either party requests an oral 
hearing, the Board will schedule the same as hereinafter provided. In 
the event both parties waive an oral hearing, the Board, unless it 
directs an oral hearing, will decide the appeal on the record before it, 
supplemented as it may permit or direct. A party failing to elect an 
oral hearing within the time limitations specified in this section may 
be deemed to have submitted its case on the record.



Sec. 4.110  Prehearing briefs.

    Based on an examination of the appeal file, the pleadings, and a 
determination of whether the arguments and authorities addressed to the 
issues are adequately set forth therein, the Board may, in its 
discretion, require the parties to submit prehearing briefs in any case 
in which a hearing has been elected pursuant to Sec. 4.109. In the 
absence of a Board requirement therefore, either party may, in its 
discretion, and upon appropriate and sufficient notice to the other 
party, furnish a prehearing brief to the Board. In any case where a 
prehearing brief is submitted, it shall be furnished so as to be 
received by the Board at least 15 days prior to the date set for 
hearing, and a copy shall be furnished simultaneously to the other 
party.



Sec. 4.111  Prehearing or presubmission conference.

    Whether the case is to be submitted without a hearing, or heard 
pursuant to Secs. 4.118 through 4.123, the Board may upon its own 
initiative or upon the application of either party, call upon the 
parties to appear before a member or hearing officer of the Board for a 
conference to consider:
    (a) The simplification or clarification of the issues;
    (b) The possibility of obtaining stipulations, admissions, 
agreements on documents, understandings on matters already of record, or 
similar agreements which will avoid unnecessary proof;
    (c) The limitation of the number of expert witnesses, or avoidance 
of similar cumulative evidence, if the case is to be heard;
    (d) The possibility of agreement disposing of all or any of the 
issues in dispute; and
    (e) Such other matters as may aid in the disposition of the appeal.

Any conference results that are not reflected in a transcript shall be 
reduced to writing by the Board member or the hearing officer. This 
writing shall thereafter constitute part of the record.



Sec. 4.112  Submission without a hearing.

    Either party may elect to waive a hearing and to submit his case 
upon the Board record, as settled pursuant to Sec. 4.114. Such waiver 
shall not affect the other party's rights under Sec. 4.109. In the event 
of such election (see the time limitations for election in Sec. 4.109), 
the submission may be supplemented by oral argument (transcribed if 
requested) and by briefs.



Sec. 4.113  Optional small claims (expedited) and accelerated procedures. (See Sec. 4.100(a)(2).)

    (a) The procedures set forth in this rule are available solely at 
the election of the appellant.
    (b) Elections to utilize small claims (expedited) and accelerated 
procedure. (1) In appeals where the amount in dispute is $10,000 or 
less, the appellant may elect

[[Page 60]]

to have the appeal processed under a SMALL CLAIMS (EXPEDITED) procedure 
requiring a decision of the appeal, whenever possible, within 120 days 
after the Board receives written notice of the appellant's election to 
utilize this procedure. The details of this procedure appear in 
paragraph (c) of this section. An appellant may elect the ACCELERATED 
procedure rather than the SMALL CLAIMS (EXPEDITED) procedure for any 
appeal eligible for the SMALL CLAIMS (EXPEDITED) procedure.
    (2) In appeals where the amount in dispute is $50,000 or less, the 
appellant may elect to have the appeal processed under an ACCELERATED 
procedure requiring decision of the appeal, whenever possible, within 
180 days after the Board receives written notice of the appellant's 
election to utilize this procedure. The details of this procedure appear 
in paragraph (d) of this section.
    (3) The appellant's election of either the SMALL CLAIMS (EXPEDITED) 
procedure or the ACCELERATED procedure may be made either in the notice 
of appeal or by other written notice at any time thereafter.
    (4) In deciding whether the SMALL CLAIMS (EXPEDITED) procedure or 
the ACCELERATED procedure is applicable to a given appeal the Board 
shall determine the amount in dispute by adding the amount claimed by 
the appellant against the respondent to the amount claimed by respondent 
against the appellant. If either party making a claim against the other 
party does not otherwise state in writing the amount of its claim, the 
amount claimed by such party shall be the maximum amount which such 
party represents in writing to the Board that it can reasonably expect 
to recover against the other.
    (c) The SMALL CLAIMS (EXPEDITED) procedure. (1) This procedure shall 
apply only to appeals where the amount in dispute is $10,000 or less as 
to which the appellant has elected the SMALL CLAIMS (EXPEDITED) 
procedure.
    (2) In cases proceeding under the SMALL CLAIMS (EXPEDITED) 
procedure, the following time periods shall apply (i) within 10 days 
from the respondent's first receipt from either the appellant or the 
Board of a copy of the appellant's notice of election of the SMALL 
CLAIMS (EXPEDITED) procedure, the respondent shall send the Board a copy 
of the contract, the contracting officer's final decision, and the 
appellant's claim letter or letters, if any; (ii) within 15 days after 
the Board has acknowledged receipt of the notice of election, either 
party desiring an oral hearing shall so inform the Board. If either 
party requests an oral hearing, the Board shall promptly schedule such a 
hearing for a mutually convenient time consistent with administrative 
due process and the 120-day limit for a decision, at a place determined 
under Sec. 4.118. If a hearing is not requested by either party within 
the time prescribed by this Rule, the appeal shall be deemed to have 
been submitted under Sec. 4.112 without a hearing.
    (3) In cases proceeding under the SMALL CLAIMS (EXPEDITED) 
procedure, pleadings, discovery, and other prehearing activity will be 
allowed only as consistent with the requirement to conduct the hearing 
on the date scheduled or, if no hearing is scheduled, to close the 
record on a date that will allow decision within the 120-day limit. The 
Board, in its discretion, may shorten time periods prescribed elsewhere 
in these Rules as necessary to enable the Board to decide the appeal 
within 120 days after the Board has received the appellant's notice of 
elections of the SMALL CLAIMS (EXPEDITED) procedure. In so doing the 
Board may reserve whatever time up to 30 days it considers necessary for 
preparation of the decision.
    (4) Written decision by the Board in cases processed under the SMALL 
CLAIMS (EXPEDITED) procedure will be short and contain only summary 
findings of fact and conclusions. Decisions will be rendered for the 
Board by a single Administrative Judge. If there has been a hearing, the 
Administrative Judge presiding at the hearing may, in his discretion, at 
the conclusion of the hearing and after entertaining such oral arguments 
as he deems appropriate, render on the record oral summary findings of 
fact, conclusions, and a decision of the Appeal. Whenever such an oral 
decision is rendered, the

[[Page 61]]

Board will subsequently furnish the parties a typed copy of such oral 
decision for the record and payment purposes and to establish the date 
of commencement of the period for filing a motion for reconsideration 
under Sec. 4.126.
    (5) Decisions of the Board under the SMALL CLAIMS (EXPEDITED) 
procedure will not be published, will have no value as precedents, and 
in the absence of fraud, cannot be appealed.
    (d) The ACCELERATED procedure. (1) This procedure shall apply only 
to appeals where the amount in dispute is $50,000 or less as to which 
the appellant has made the requisite election.
    (2) In cases proceeding under the ACCELERATED procedure, the parties 
are encouraged, to the extent possible consistent with adequate 
presentation of their factual and legal positions, to waive pleadings, 
discovery, and briefs. The Board, in its discretion, may shorten time 
periods prescribed elsewhere in these Rules as necessaray to enable the 
Board to decide the appeal within 180 days after the Board has received 
the appellant's notice of election of the ACCELERATED procedure, and may 
reserve 30 days for the preparation of the decision.
    (3) Written decisions by the Board in cases processed under the 
ACCELERATED procedure will normally be short and contain only summary 
findings of fact and conclusions. Decisions will be rendered for the 
Board by a single Administrative Judge with the concurrence of the 
Chairman or Vice Chairman or other designated Administrative Judge, or 
by a majority among these two and an additional designated member in 
case of disagreement. Alternatively, in cases where the amount in 
dispute is $10,000 or less as to which the ACCELERATED procedure has 
been elected and in which there has been a hearing, the single 
Administrative Judge presiding at the hearing may, with the concurrence 
of both parties, at the conclusion of the hearing and after entertaining 
such oral agruments as he deems appropriate, render on the record oral 
summary findings of fact, conclusions, and a decision of the appeal. 
Whenever such an oral decision is rendered, the Board will subsequently 
furnish the parties a typed copy of such oral decision for record and 
payment purposes and to establish the date of commencement of the period 
for filing a motion for reconsideration under Sec. 4.126.
    (e) Motions for reconsideration in cases arising under Sec. 4.113. 
Motions for reconsideration of cases decided aunder either the SMALL 
CLAIMS (EXPEDITED) procedure or the ACCELERATED procedure need not be 
decided within the time period prescribed by this Sec. 4.113 for the 
initial decision of the appeal, but all such motions shall be processed 
and decided rapidly so as to fulfill the intent of this rule.



Sec. 4.114  Settling of the record.

    (a) A case submitted on the record pursuant to Sec. 4.112 shall be 
ready for decision when the parties are so notified by the Board. A case 
which is heard shall be ready for decision upon receipt of transcript, 
or upon receipt of briefs when briefs are to be submitted. At any time 
prior to the date that a case is ready for decision, either party, upon 
notice to the other, may supplement the record with documents and 
exhibits deemed relevant and material by the Board. The Board upon its 
own initiative may call upon either party, with appropriate notice to 
the other, for evidence deemed by it to be relevant and material. The 
weight to be attached to any evidence of record will rest within the 
sound discretion of the Board. Either party at any stage of the 
proceeding, on notice to the other party, may object to the relevancy or 
materiality of documents in the record or offered into the record.
    (b) The Board record shall consist of the appeal file described in 
Sec. 4.104(b) and any additional material, pleadings, prehearing briefs, 
record of prehearing, or presubmission conferences, depositions, 
interrogatories, admissions, transcripts of hearing, hearing exhibits, 
and posthearing briefs, as may thereafter be developed pursuant to these 
rules. In deciding appeals the Board, in addition to considering the 
Board record, may take official notice of facts within general 
knowledge.
    (c) This record will at all times be available for inspection by the 
parties at an appropriate time and place. In

[[Page 62]]

the interest of convenience, prior arrangements for inspection of the 
file should be made with the Recorder of the Board. Copies of material 
in the record may be furnished to appellant as provided in part 2 of 
this subtitle.



Sec. 4.115  Discovery--depositions.

    (a) General policy and protective orders. The parties are encouraged 
to engage in voluntary discovery procedures. In connection with any 
deposition or other discovery procedure, the board may make any order 
which justice requires to protect a party or person from annoyance, 
embarrassment, oppression, or undue burden or expense, and those orders 
may include limitations on the scope, method, time and place for 
discovery, and provisions for protecting the secrecy of confidential 
information or documents.
    (b) When depositions permitted. After an appeal has been docketed, 
the parties may mutually agree to, or the Board may, upon application of 
either party and for good cause shown, order the taking of testimony of 
any person by deposition upon oral examination or written 
interrogatories before any officer authorized to administer oaths at the 
place of examination, for use as evidence or for purpose of discovery. 
The application for such an order shall specify whether the purpose of 
the depositon is discovery or for use as evidence.
    (c) Orders on depositions. The time, place, and manner of taking 
depositions shall be, as mutually agreed by the parties, or, failing 
such agreement, governed by order of the Board.
    (d) Use as evidence. No testimony taken by depositions shall be 
considered as part of the evidence in the hearing of an appeal unless 
and until such testimony is offered and received in evidence at such 
hearing. It will not ordinarily be received in evidence if the deponent 
is present and can testify personally at the hearing. In such instances, 
however, the depositions may be used to contradict or impeach the 
testimony of the witness given at the hearing. In cases submitted on the 
record, the Board may in its discretion receive depositions as evidence 
in supplementation of that record.
    (e) Expenses. Each party shall bear its own expenses associated with 
the taking of any deposition.



Sec. 4.116  Interrogatories to parties; inspection of documents; admission of facts.

    Under appropriate circumstances, but not as a matter of course, the 
Board will entertain applications for permission to serve written 
interrogatories upon the opposing party, applications for an order to 
produce and permit the inspection of designated documents, and 
applications for permission to serve upon the opposing party a request 
for the admission of specified facts. Such applications shall be 
reviewed and approved only to the extent and upon such terms as the 
Board in its discretion considers to be consistent with the objective of 
securing just and inexpensive determination of appeals without 
unnecessary delay, and essential to the proper pursuit of that objective 
in the particular case.



Sec. 4.117  Service of papers.

    A copy of all pleadings, briefs, motions, letters, or other papers 
filed with the Board, shall be served upon the other party at the time 
of filing. Service of papers may be made personally or by mailing in a 
sealed envelope addressed to the other party. Any paper filed with the 
Board shall show on its face, or in the letter transmitting the same, 
that a copy thereof has been served upon the other party. When the other 
party is represented by counsel, such service shall be made upon him, 
and service upon counsel shall be deemed to be service upon the party he 
represents.

                         Hearing Procedure Rules



Sec. 4.118  Hearings--where and when held.

    Hearings may be held in Arlington, Virginia, or upon timely request 
and for good cause shown, the Board may in its discretion set the 
hearing on an appeal at a location other than Arlington, Virginia. 
Hearins will be scheduled at the discretion of the Board with due 
consideration to the regular order of appeals and other pertinent 
factors. However, where it is apparent that no

[[Page 63]]

issue of fact is presented in an appeal proceeding, the Board may deny a 
request for hearing. On request or motion by either party and for good 
cause shown, the Board may in its discretion adjust the date of a 
hearing.



Sec. 4.119  Notice of hearings.

    The parties shall be given at least 15 days' notice of the time and 
place set for hearings. In scheduling hearings, the Board will give due 
regard to the desires of the parties, and to the requirement for just 
and prompt determination of appeals. Receipt of a notice of hearing 
shall be promptly acknowledged by the parties. A party failing to 
acknowledge a notice of hearing shall be deemed to have consented to the 
indicated time and place of hearing.



Sec. 4.120  Subpoenas. (See Sec. 4.100(a)(2).)

    (a) General. Upon written request of either party filed with the 
docket clerk or on his own initiative, the Administrative Judge to whom 
a case is assigned or who is otherwise designated by the Chairman may 
issue a subpoena requiring:
    (1) Testimony at a deposition-- the deposing of a witness, in the 
city or county where he resides or is employed or transacts his business 
in person, or at another location convenient for him that is 
specifically determined by the Board;
    (2) Testimony at a hearing-- the attendance of a witness for the 
purpose of taking testimony at a hearing; and
    (3) Production of books and papers-- in addition to paragraphs (a) 
(1) and (2) of this section, the production by the witness at the 
deposition or hearing of books and papers designated in the subpoena.
    (b) Voluntary cooperation. Each party is expected (1) to cooperate 
and make available witnesses and evidence under its control as requested 
by the other party, without issuance of a subpoena, and (2) to secure 
voluntary attendance of desired third-party books, papers, documents, or 
tangible things whenever possible.
    (c) Requests for subpoenas. (1) A request for a subpoena shall 
normally be filed at least:
    (i) 15 days before a scheduled deposition where the attendance of a 
witness at a deposition is sought;
    (ii) 30 days before a scheduled hearing where the attendance of a 
witness at a hearing is sought.

In its discretion the Board may honor requests for subpoenas not made 
within these time limitations.
    (2) A request for a subpoena shall state the reasonable scope and 
general relevance to the case of the testimony and of any books and 
papers sought.
    (d) Request to quash or modify. Upon written request by the person 
subpoenaed or by a party, made within 10 days after service but in any 
event not later than the time specified in the subpoena for compliance, 
the Board may (1) quash or modify the subpoena if it is unreasonable and 
oppressive or for other good cause shown, or (2) require the person in 
whose behalf the subpoena was issued to advance the reasonable cost of 
producing subpoenaed books and papers. Where circumstances require, the 
Board may act upon such a request at any time after a copy has been 
served upon the opposing party.
    (e) Forms--issuance. (1) Every subpoena shall state the name of the 
Board and the title of the appeal and shall command each person to whom 
it is directed to attend and give testimony, and if appropriate, to 
produce specified books and papers at a time and place therein 
specified. In issuing a subpoena to a requesting party, the 
Administrative Judge shall sign the subpoena and may in his discretion, 
enter the name of the witness and otherwise leave it blank. The party to 
whom the subpoena is issued shall complete the subpoena before service.
    (2) Where the witness is located in a foreign country, a letter 
rogatory or subpoena may be issued and served under the circumstances 
and in the manner provided in 28 U.S.C. 1781-1784.
    (f) Service. (1) The party requesting issuance of subpoena shall 
arrange for service.
    (2) A subpoena requiring the attendance of a witness at a deposition 
or hearing may be served at any place. A subpoena may be served by a 
U.S. marshal or deputy marshal, or by any other person who is not a 
party and not less than 18 years of age. Service of a

[[Page 64]]

subpoena upon a person named therein shall be made by personally 
delivering a copy to that person and tendering the fees for 1 day's 
attendance and the mileage provided by 28 U.S.C. 1821 or other 
applicable law.
    (3) The party at whose instance a subpoena is issued shall be 
responsible for the payment of fees and mileage of the witness and of 
the officer who serves the subpoena. The failure to make payment of such 
charges on demand may be deemed by the Board as a sufficient ground for 
striking the testimony of the witness and the evidence the witness has 
produced.
    (g) Contumacy or refusal to obey a subpoena. In a case of contumacy 
or refusal to obey a subpoena by a person who resides, is found, or 
transacts business within the jurisdiction of a U.S. District Court, the 
Board will apply to the Court through the Attorney General of the United 
States for an order requiring the person to appear before the Board or a 
member thereof to give testimony or produce evidence or both. Any 
failure of any such person to obey the order of the Court may be 
punished by the Court as a contempt thereof.



Sec. 4.121  Unexcused absence of a party.

    The unexcused absence of a party at the time and place set for 
hearing will not be occasion for delay. In the event of such absence, 
the hearing will proceed and the case will be regarded as submitted by 
the absent party as provided in Sec. 4.112. The Board shall advise the 
absent party of the content of the proceedings had and that he has 5 
days from the receipt of such notice within which to show cause why the 
appeal should not be decided on the record made.



Sec. 4.122  Nature of hearings.

    Hearings shall be as informal as may be reasonable and appropriate 
in the circumstances. Appellant and respondent may offer at a hearing on 
the merits of such relevant evidence as they deem appropriate and as 
would be admissible under the generally accepted rules of evidence 
applied in the courts of the United States in nonjury trials, subject, 
however, to the sound discretion of the presiding member or hearing 
officer in supervising the extent and manner of presentation of such 
evidence. In general, admissibility will hinge on relevancy and 
materiality. Letters or copies thereof, affidavits, or other evidence 
not ordinarily admissible under the generally accepted rules of 
evidence, may be admitted in the discretion of the presiding member or 
hearing officer. The weight to be attached to evidence presented in any 
particular form will be within the discretion of the Board, taking into 
consideration all the circumstances of the particular case. Stipulations 
of fact agreed upon by the parties may be regarded and used as evidence 
at the hearing. The parties may stipulate the testimony that would be 
given by a witness if the witness were present. The Board may in any 
case require evidence in addition to that offered by the parties.



Sec. 4.123  Examination of witnesses.

    Witnesses before the Board will be examined orally under oath or 
affirmation, unless the facts are stipulated, or the presiding Board 
member or hearing officer shall otherwise order.



Sec. 4.124  Submission of briefs.

    Posthearing briefs may be submitted upon such terms as may be agreed 
upon by the parties and the presiding Board member or hearing officer at 
the conclusion of the hearing.

                       posthearing procedure rules



Sec. 4.125  Decisions.

    Decisions of the Board will be made upon the record, as described in 
Sec. 4.114(b). Copies thereof will be forwarded simultaneously to both 
parties by certified mail.



Sec. 4.126  Motions for reconsideration.

    A motion for reconsideration, if filed by either party, shall set 
forth specifically the ground or grounds relied upon in support of the 
motion, and shall be filed within 30 days from the date of the receipt 
of a copy of the Board's decision by the party filing the motion. 
Reconsideration of a decision, which may include a hearing or rehearing, 
may be granted if, in the judgment of the Board, sufficient reason 
therefor appears.

[[Page 65]]



Sec. 4.127  Dismissals.

    (a) Dismissal without prejudice. In certain cases, appeals docketed 
before the Board are required to be placed in a suspense status and the 
Board is unable to proceed with the disposition thereof for reasons not 
within the control of the Board. Where the suspension has continued, or 
may continue, for an inordinate length of time, the board may, in its 
discretion, dismiss such an appeal from the docket without prejudice to 
its reinstatement when the cause of suspension has been removed. Unless 
either party or the Board acts within 3 years to reinstate any appeal 
dismissed without prejudice, the dismissal shall be deemed to have been 
made with prejudice.
    (b) Dismissal for failure to prosecute or defend. Whenever a record 
discloses the failure of either party to file documents required by 
these rules, respond to notices or correspondence from the Board, comply 
with orders of the Board, or otherwise indicates an intention not to 
continue the prosecution or defense of an appeal, the Board may issue an 
order requiring the offending party to show cause why the appeal should 
not be either dismissed or granted, as appropriate. If no cause is 
shown, the Board may take appropriate action.



Sec. 4.128  Remands from courts.

    Whenever any matter is remanded to the Board from any court for 
further proceedings, each of the parties, shall, within 20 days of such 
remand, submit a report to the Board, recommending procedures to be 
followed in order to comply with the court's order. The Board will 
review the reports and issue the appropriate special orders.

  Appendix I to Subpart C of Part 4--Suggested Form of Notice of Appeal

Interior Board of Contract Appeals, 801 North Quincy Street, Arlington, 
VA 22203
(Date)__________________________________________________________________
(Name of Contractor)____________________________________________________
(Address)_______________________________________________________________
Contract No.____________________________________________________________
(Invitation No.)________________________________________________________
Specifications No.______________________________________________________
(Name and Location of Project)__________________________________________
(Name of Bureau or Office)______________________________________________
    The undersigned contractor appeals to the Board of Contract Appeals 
from decision or findings of fact dated --------, by:
(Name of Contracting Officer)___________________________________________
    The decision or findings of fact is erroneous because: (State 
specific facts and circumstances and the contractual provisions 
involved.)
(Signature)_____________________________________________________________
(Title)_________________________________________________________________

[46 FR 57499, Nov. 24, 1981, as amended at 67 FR 4368, Jan. 30, 2002]



   Subpart D--Rules Applicable in Indian Affairs Hearings and Appeals

    Authority: Secs. 1, 2, 36 Stat. 855, as amended, 856, as amended, 
sec. 1, 38 Stat. 586, 42 Stat. 1185, as amended, secs. 1, 2, 56 Stat. 
1021, 1022; R.S. 463, 465; 5 U.S.C. 301; 25 U.S.C. secs. 2, 9, 372, 373, 
374, 373a, 373b, 410, 100 Stat, 61, as amended by 101 Stat. 886 and 101 
Stat. 1433, 25 U.S.C. 331 note.

    Cross Reference: See 25 CFR part 15 for rules setting forth the 
responsibilities and practices of the Bureau of Indian Affairs in the 
probate of Indian estates. See subpart A of this part for the authority, 
jurisdiction, and membership of the Board of Indian Appeals within the 
Office of Hearings and Appeals. For general rules applicable to 
proceeding before the Hearings Division, Board of Indian Appeals, and 
other Appeals Boards of the Office of Hearings and Appeals, see subpart 
B of this part.

 Determinations of Heirs and Approval of Wills, Except as to Members of 
    the Five Civilized Tribes and Osage Indians; Tribal Purchases of 
                    Interests Under Special Statutes

  Scope of Regulations; Definitions; General Authority of OHA Deciding 
                                Officials

    Source: 66 FR 67656, Dec. 31, 2001, unless otherwise noted.



Sec. 4.200  Scope of regulations.

    Included in Secs. 4.200 through 4.202 are general rules applicable 
to all proceedings in subpart D of this part. Included in Secs. 4.203 
through 4.282 and Secs. 4.310 through 4.323 are procedural rules 
applicable to the settlement of trust estates of deceased Indians who

[[Page 66]]

die possessed of trust property; however, these rules do not apply to 
the restricted property of deceased Indians of the Five Civilized 
Tribes, deceased Osage Indians, and members of any tribe organized under 
25 U.S.C. 476, to the extent that the constitution, by-laws or charter 
of each tribe may be inconsistent with this subpart. Included within 
Secs. 4.300 through 4.308 are supplemental procedural rules applicable 
to determinations as to tribal purchase of certain property interests of 
decedents under special laws applicable to particular tribes. Included 
within Secs. 4.330 through 4.340 are procedural rules applicable to 
appeals to the Board of Indian Appeals from administrative actions or 
decisions issued by the Bureau of Indian Affairs as set forth in 
Sec. 4.330. Except as limited by the provisions herein, the rules in 
subparts A and B of this part apply to these proceedings.



Sec. 4.201  Definitions.

    As used in this subpart:
    Agency means the agency office or any other designated office in BIA 
having jurisdiction over trust or restricted property and money. This 
term also means any office of a tribe which has contracted or compacted 
the BIA probate function under 25 U.S.C. 450f or 458cc.
    Attorney decision maker means an attorney with BIA who reviews a 
probate package, determines heirs, approves wills and beneficiaries of 
the will, determines creditors' claims, and issues a written decision to 
the extent authorized by 25 CFR part 15.
    Beneficiary means any individual who receives trust or restricted 
property or money in a decedent's will.
    BIA means the Bureau of Indian Affairs within the Department of the 
Interior.
    BIA deciding official means the official with the delegated 
authority to make a decision on a probate matter pursuant to 25 CFR part 
15, and may include a BIA regional director, agency superintendent, 
field representative, or attorney decision maker.
    Board means the Board of Indian Appeals in the Office of Hearings 
and Appeals, Office of the Secretary, authorized by the Secretary to 
hear, consider, and determine finally for the Department appeals taken 
by aggrieved parties from actions by OHA deciding officials on petitions 
for rehearing or reopening, and allowance of attorney fees, and from 
actions of BIA officials as provided in Sec. 4.1(b)(2).
    Child or children includes an adopted child or children.
    Commissioner includes the Deputy Commissioner of Indian Affairs and 
his or her authorized representatives.
    Day means a calendar day, unless otherwise stated.
    Decedent means a person who is deceased.
    Department means the Department of the Interior.
    Estate means the trust cash assets and restricted or trust property 
owned by the decedent at the time of his or her death.
    Heir means any individual who receives trust or restricted property 
or money from a decedent in an intestate proceeding.
    IIM account means funds held in an individual Indian monies account 
by OTFM or a tribe performing this function under a contract or compact.
    Intestate means the decedent died without a will.
    Minor means an individual who has not reached the age of majority as 
defined by the applicable tribal or state law.
    OHA deciding official means an employee of the Office of Hearings 
and Appeals with the authority to make a decision on a probate matter 
pursuant to this subpart. The OHA deciding official may be either an 
administrative law judge appointed pursuant to the Administrative 
Procedure Act, 5 U.S.C. 3105, or an Indian probate judge.
    OTFM means the Office of Trust Funds Management within the Office of 
the Special Trustee for American Indians, Department of the Interior, or 
its authorized representative.
    Party in interest means any presumptive or actual heir, any 
beneficiary under a will, any party asserting a claim against a deceased 
Indian's estate, and any Tribe having a statutory option to purchase 
interests of a decedent.
    Probate means the legal process by which applicable tribal law, 
state law,

[[Page 67]]

or federal law that affects the distribution of the decedent's estate is 
applied to:
    (1) Determine the heirs,
    (2) Approve wills and determine beneficiaries, and
    (3) Transfer any funds or property held in trust by the Secretary 
for a decedent, or any restricted property of the decedent, to the 
heirs, beneficiaries, or other persons or entities.
    Probate specialist means a BIA or tribal employee who is trained in 
Indian probate matters.
    Restricted property means real or personal property held by an 
Indian which he or she cannot alienate or encumber without the consent 
of the Secretary or his or her authorized representative. In this 
subpart, restricted property is treated as if it were trust property. 
Except with respect to Sec. 4.200, the term ``restricted property'' as 
used in this subpart does not include the restricted lands of the Five 
Civilized Tribes or Osage Tribe of Indians.
    Secretary means the Secretary of the Interior or his or her 
authorized representative.
    Solicitor means the Solicitor of the Department of the Interior or 
his or her authorized representative.
    Superintendent means the BIA Superintendent or other BIA officer 
having jurisdiction over an estate, including area field representatives 
or one holding equivalent authority.
    Testate means the decedent executed a will before his or her death.
    Trust property means real or personal property, or an interest 
therein, which the United States holds in trust for the benefit of an 
individual Indian.
    Will or last will and testament means a written testamentary 
document, including any properly executed written changes, called 
codicils, which was signed by the decedent and was attested by two 
disinterested adult witnesses, that states who will receive the 
decedent's trust or restricted property.



Sec. 4.202  General authority of OHA deciding officials.

    An OHA deciding official will, except as otherwise provided in 
Sec. 4.205(b) and 25 CFR 15.203 and 15.206, determine the heirs of any 
Indian who dies intestate possessed of trust property; approve or 
disapprove the will of a deceased Indian disposing of trust property; 
accept or reject any full or partial renunciation of interest in both 
testate and intestate proceedings; allow or disallow creditors' claims 
against the estate of a deceased Indian; and decree the distribution of 
trust property to heirs and devisees, including the partial distribution 
to known heirs or devisees where one or more potential heirs or devisees 
are missing but not presumed dead, after attributing to and setting 
aside for such missing person or persons the share or shares such person 
or persons would be entitled to if living. An OHA deciding official will 
determine the right of a tribe to take any inherited interest and the 
fair market value of the interest taken in appropriate cases as provided 
by statute. He or she will review each case de novo, hold hearings as 
necessary or appropriate, and issue decisions in matters appealed from 
decisions of BIA deciding officials. Administrative law judges will also 
hold hearings and issue recommended decisions in matters referred to 
them by the Board in the Board's consideration of appeals from 
administrative actions of BIA officials.

 Determination of Heirs; Approval of Wills; Settlement of Indian Trust 
                                 Estates

    Source: 66 FR 67656, Dec. 31, 2001, unless otherwise noted.



Sec. 4.203  Determination as to nonexistent persons and other irregularities of allotments.

    (a) An OHA deciding official will hear and determine whether trust 
patents covering allotments of land were issued to nonexistent persons, 
and whether more than one trust patent covering allotments of land had 
been issued to the same person under different names and numbers or 
through other errors in identification.
    (b) If an OHA deciding official determines under paragraph (a) of 
this section that a trust patent issued to an existing person and/or 
that separate persons received the allotments under consideration and 
any one of them is deceased, without having had his or her estate 
probated, the OHA deciding official must proceed as provided in 
Sec. 4.202.

[[Page 68]]

    (c) If an OHA deciding official determines under paragraph (a) of 
this section that a person did not exist or that more than one allotment 
was issued to the same person, the OHA deciding official must issue a 
decision to that effect, giving notice thereof to parties in interest as 
provided in Sec. 4.240(b).



Sec. 4.204  Presumption of death.

    (a) An OHA deciding official will receive evidence on and determine 
the issue of whether any person, by reason of unexplained absence, is to 
be presumed dead.
    (b) If an OHA deciding official determines that an Indian person 
possessed of trust property is to be presumed dead, the OHA deciding 
official must proceed as provided in Sec. 4.202.



Sec. 4.205  Escheat.

    An OHA deciding official will determine whether any Indian holder of 
trust property died intestate without heirs and--
    (a) With respect to trust property other than on the public domain, 
order the escheat of such property in accordance with 25 U.S.C. 373a.
    (b) With respect to trust property on the public domain, submit to 
the Board of Indian Appeals the records thereon, together with 
recommendations as to the disposition of said property under 25 U.S.C. 
373b.



Sec. 4.206  Determinations of nationality or citizenship and status affecting character of land titles.

    In cases where the right and duty of the Government to hold property 
in trust depends thereon, an OHA deciding official will determine the 
nationality or citizenship, or the Indian or non-Indian status, of heirs 
or devisees, or whether Indian heirs or devisees of U.S. citizenship are 
of a class as to whose property the Government's supervision and 
trusteeship have been terminated in current probate proceedings or in 
completed estates after reopening such estates under, but without regard 
to the 3-year limit set forth in Sec. 4.242.



Sec. 4.207  Compromise settlement.

    (a) If during the course of the probate of an estate it develops 
that an issue between contending parties is of such nature as to be 
substantial, and it further appears that such issue may be settled by 
agreement preferably in writing by the parties in interest to their 
advantage and to the advantage of the United States, such an agreement 
may be approved by the OHA deciding official upon findings that:
    (1) All parties to the compromise are fully advised as to all 
material facts;
    (2) All parties to the compromise are fully cognizant of the effect 
of the compromise upon their rights; and
    (3) It is in the best interest of the parties to settle rather than 
to continue litigation.
    (b) In considering the proposed settlement, the OHA deciding 
official may take and receive evidence as to the respective values of 
specific items of property. Superintendents and irrigation project 
engineers must supply all necessary information concerning any liability 
or lien for payment of irrigation construction and of irrigation 
operation and maintenance charges.
    (c) Upon an affirmative determination as to all three points 
specified, the OHA deciding official will issue such final order of 
distribution in the settlement of the estate as is necessary to approve 
the same and to accomplish the purpose and spirit of the settlement. 
Such order will be construed as any other order of distribution 
establishing title in heirs and devisees and will not be construed as a 
partition or sale transaction within the provisions of 25 CFR part 152. 
If land titles are to be transferred, the necessary deeds must be 
prepared and executed at the earliest possible date. Upon failure or 
refusal of any party in interest to execute and deliver any deed 
necessary to accomplish the settlement, the OHA deciding official will 
settle the issues and enter an order as if no agreement had been 
attempted.
    (d) OHA deciding officials are authorized to approve all deeds or 
conveyances necessary to accomplish a settlement under this section.



Sec. 4.208  Renunciation of interest.

    Any person 21 years or older, whether of Indian descent or not, may 
renounce intestate succession or devise of trust

[[Page 69]]

or restricted property, wholly or partially (including the retention of 
a life estate), by filing a signed and acknowledged declaration of such 
renunciation with the OHA deciding official prior to entry of the final 
order by the OHA deciding official. No interest in the property so 
renounced is considered to have vested in the heir or devisee and the 
renunciation is not considered a transfer by gift of the property 
renounced, but the property so renounced passes as if the person 
renouncing the interest has predeceased the decedent. A renunciation 
filed in accordance herewith will be considered accepted when 
implemented in an order by an OHA deciding official and will be 
irrevocable thereafter. All disclaimers or renunciations heretofore 
filed with and implemented in an order by an OHA deciding official are 
hereby ratified as valid and effective.

                   Commencement of Probate Proceedings

    Source: 66 FR 67656, Dec. 31, 2001, unless otherwise noted.



Sec. 4.210  Commencement of probate.

    The probate of a trust estate before an OHA deciding official will 
commence when the probate specialist or BIA deciding official files with 
the OHA deciding official all information shown in the records relative 
to the family of the deceased and his or her property. The information 
must include the complete probate package described in 25 CFR 15.104 and 
15.202 and any other relevant information. The agency or BIA deciding 
official must promptly transmit to the OHA deciding official any 
creditor's or other claims that are received after the case is 
transmitted to the OHA deciding official, for a determination of their 
timeliness, validity, priority, and allowance under Secs. 4.250 and 
4.251.



Sec. 4.211  Notice.

    (a) An OHA deciding official may receive and hear evidence at a 
hearing to determine the heirs of a deceased Indian or probate his or 
her will only after the OHA deciding official has caused notice of the 
time and place of the hearing to be posted at least 20 days prior to the 
hearing date in five or more conspicuous places in the vicinity of the 
designated place of hearing, and the OHA deciding official may cause 
postings in such other places and reservations as he or she deems 
appropriate. A certificate showing the date and place of posting must be 
signed by the person or official who performs the act.
    (b) The OHA deciding official must serve or cause to be served a 
copy of the notice on each party in interest known to the OHA deciding 
official and on each attesting witness if a will is offered:
    (1) By personal service in sufficient time in advance of the date of 
the hearing to enable the person served to attend the hearing; or
    (2) By mail, addressed to the person at his or her last known 
address, in sufficient time in advance of the date of the hearing to 
enable the addressee served to attend the hearing. The OHA deciding 
official must cause a certificate, as to the date and manner of such 
mailing, to be made on the record copy of the notice.
    (c) All parties in interest, known and unknown, including creditors, 
will be bound by the decision based on such hearing if they lived within 
the vicinity of any place of posting during the posting period, whether 
they had actual notice of the hearing or not. As to those not within the 
vicinity of the place of posting, a rebuttable presumption of actual 
notice will arise upon the mailing of such notice at a reasonable time 
prior to the hearing, unless the said notice is returned by the postal 
service to the office of the OHA deciding official unclaimed by the 
addressee.
    (d) Tribes to be charged with notice of death and probate. When a 
record reveals that a Tribe has a statutory option to purchase interests 
of a decedent, such Tribe must be notified of the pendency of a 
proceeding by the the OHA deciding official having probate jurisdiction 
in such proceeding, and the certificate of mailing of notice of probate 
hearing or of a final decision in probate to the Tribe at its record 
address will be conclusive evidence for all purposes that the Tribe had 
notice of

[[Page 70]]

decedent's death and notice of the pendency of the probate proceedings.



Sec. 4.212  Contents of notice.

    (a) In the notice of hearing, the OHA deciding official must specify 
that at the stated time and place the OHA deciding official will take 
testimony to determine the heirs of the deceased person (naming him or 
her) and, if a will is offered for probate, testimony as to the validity 
of the will describing it by date. The notice must name all known 
presumptive heirs of the decedent, and, if a will is offered for 
probate, the beneficiaries under such will and the attesting witnesses 
to the will. The notice must cite this subpart as the authority and 
jurisdiction for holding the hearing, and must inform all persons having 
an interest in the estate of the decedent, including persons having 
claims or accounts against the estate, to be present at the hearing or 
their rights may be lost by default.
    (b) The notice must state further that the hearing may be continued 
to another time and place. A continuance may be announced either at the 
original hearing by the OHA deciding official or by an appropriate 
notice posted at the announced place of hearing on or prior to the 
announced hearing date and hour.

            Depositions, Discovery, and Prehearing Conference

    Source: 66 FR 67656, Dec. 31, 2001, unless otherwise noted.



Sec. 4.220  Production of documents for inspection and copying.

    (a) At any stage of the proceeding prior to the conclusion of the 
hearing, a party in interest may make a written demand, a copy to be 
filed with the OHA deciding official, upon any other party to the 
proceeding or upon a custodian of records on Indians or their trust 
property, to produce for inspection and copying or photographing, any 
documents, papers, records, letters, photographs, or other tangible 
things not privileged, relevant to the issues which are in the other 
party's or custodian's possession, custody, or control. Upon failure of 
prompt compliance, the OHA deciding official may issue an appropriate 
order upon a petition filed by the requesting party. At any time prior 
to closing the record, the OHA deciding official upon his or her own 
motion, after notice to all parties, may issue an order to any party in 
interest or custodian of records for the production of material or 
information not privileged, and relevant to the issues.
    (b) Custodians of official records will furnish and reproduce 
documents, or permit their reproduction, in accordance with the rules 
governing the custody and control thereof.



Sec. 4.221  Depositions.

    (a) Stipulation. Depositions may be taken upon stipulation of the 
parties. Failing an agreement therefor, depositions may be ordered under 
paragraphs (b) and (c) of this section.
    (b) Application for taking deposition. When a party in interest 
files a written application, the OHA deciding official may at any time 
thereafter order the taking of the sworn testimony of any person by 
deposition upon oral examination for the purpose of discovery or for use 
as evidence at a hearing. The application must be in writing and must 
set forth:
    (1) The name and address of the proposed deponent;
    (2) The name and address of that person, qualified under paragraph 
(d) of this section to take depositions, before whom the proposed 
examination is to be made;
    (3) The proposed time and place of the examination, which must be at 
least 20 days after the date of the filing of the application; and
    (4) The reasons why such deposition should be taken.
    (c) Order for taking deposition. If after examination of the 
application the OHA deciding official determines that the deposition 
should be taken, he or she will order its taking. The order must be 
served upon all parties in interest and must state:
    (1) The name of the deponent;
    (2) The time and place of the examination which must not be less 
than 15 days after the date of the order except as stipulated otherwise; 
and
    (3) The name and address of the officer before whom the examination 
is to

[[Page 71]]

be made. The officer and the time and place need not be the same as 
those requested in the application.
    (d) Qualifications of officer. The deponent must appear before the 
OHA deciding official or before an officer authorized to administer 
oaths by the law of the United States or by the law of the place of the 
examination.
    (e) Procedure on examination. The deponent must be examined under 
oath or affirmation and must be subject to cross-examination. The 
testimony of the deponent must be recorded by the officer or someone in 
the officer's presence. An applicant who requests the taking of a 
person's deposition must make his or her own arrangements for payment of 
any costs incurred.
    (f) Submission to witness; changes; signing. When the testimony is 
fully transcribed, the deposition must be submitted to the deponent for 
examination and must be read to or by him or her, unless such 
examination and reading are waived by the deponent or by all other 
parties in interest. Any changes in form or substance which the deponent 
desires to make must be entered upon the deposition by the officer with 
a statement of the reasons given by the deponent for making them. The 
deposition must then be signed by the deponent, unless the parties in 
interest by stipulation waive the signing, or the witness is ill or 
cannot be found or refuses to sign. If the deposition is not signed by 
the deponent, the officer must sign it and state on the record the fact 
of the waiver, or of the illness or absence of the deponent or the fact 
of the refusal to sign together with the reason, if any, given therefor; 
the deposition may then be used as fully as though signed, unless the 
OHA deciding official holds that the reason given for refusal to sign 
requires rejection of the deposition in whole or in part.
    (g) Certificates by officer. The officer must certify on the 
deposition that the deponent was duly sworn by the officer and that the 
deposition is a true record of the deponent's testimony. The officer 
must then securely seal the deposition, together with two copies 
thereof, in an envelope and must personally deliver or mail the same by 
certified or registered mail to the OHA deciding official.
    (h) Use of depositions. A deposition ordered and taken in accord 
with the provisions of this section may be used in a hearing if the OHA 
deciding official finds that the witness is absent and that his or her 
presence cannot be readily obtained, that the evidence is otherwise 
admissible, and that circumstances exist that make it desirable in the 
interest of fairness to allow the deposition to be used. If a deposition 
has been taken, and the party in interest on whose application it was 
taken refuses to offer the deposition, or any part thereof, in evidence, 
any other party in interest or the OHA deciding official may introduce 
the deposition or any portion thereof on which he or she wishes to rely.



Sec. 4.222  Written interrogatories; admission of facts and documents.

    At any time prior to a hearing and in sufficient time to permit 
answers to be filed before the hearing, a party in interest may serve 
upon any other party in interest written interrogatories and requests 
for admission of facts and documents. A copy of such interrogatories and 
requests must be filed with the OHA deciding official. Such 
interrogatories and requests for admission must be drawn with the 
purpose of defining the issues in dispute between the parties and 
facilitating the presentation of evidence at the hearing. Answers must 
be served upon the party propounding the written interrogatories or 
requesting the admission of facts and documents within 30 days from the 
date of service of such interrogatories or requests, or within such 
other period of time as may be agreed upon by the parties or prescribed 
by the OHA deciding official. A copy of the answer must be filed with 
the OHA deciding official. Within 10 days after written interrogatories 
are served upon a party, that party may serve cross-interrogatories for 
answer by the witness to be interrogated.



Sec. 4.223  Objections to and limitations on production of documents, depositions, and interrogatories.

    The OHA deciding official, upon motion timely made by any party in 
interest, proper notice, and good cause shown, may direct that 
proceedings

[[Page 72]]

under Secs. 4.220, 4.221, and 4.222 may be conducted only under, and in 
accordance with, such limitation as he or she deems necessary and 
appropriate as to documents, time, place, and scope. The OHA deciding 
official may act on his or her own motion only if undue delay, dilatory 
tactics, and unreasonable demands are made so as to delay the orderly 
progress of the proceeding or cause unacceptable hardship upon a party 
or witness.



Sec. 4.224  Failure to comply with orders.

    In the event of the failure of a party to comply with a request for 
the production of a document under Sec. 4.220; or on the failure of a 
party to appear for examination under Sec. 4.221 or on the failure of a 
party to respond to interrogatories or requests for admissions under 
Sec. 4.222; or on the failure of a party to comply with an order of the 
OHA deciding official issued under Sec. 4.223 without, in any of such 
events, showing an excuse or explanation satisfactory to the OHA 
deciding official for such failure, the OHA deciding official may:
    (a) Decide the fact or issue relating to the material requested to 
be produced, or the subject matter of the probable testimony, in 
accordance with the claims of the other party in interest or in 
accordance with other evidence available to the OHA deciding official; 
or
    (b) Make such other ruling as the OHA deciding official determines 
just and proper.



Sec. 4.225  Prehearing conference.

    The OHA deciding official may, upon his or her own motion or upon 
the request of any party in interest, call upon the parties to appear 
for a conference to:
    (a) Simplify or clarify the issues;
    (b) Obtain stipulations, admissions, agreements on documents, 
understandings on matters already of record, or similar agreements which 
will avoid unnecessary proof;
    (c) Limit the number of expert or other witnesses in avoidance of 
excessively cumulative evidence;
    (d) Effect possible agreement disposing of all or any of the issues 
in dispute; and
    (e) Resolve such other matters as may simplify and shorten the 
hearing.

                                Hearings

    Source: 66 FR 67656, Dec. 31, 2001, unless otherwise noted.



Sec. 4.230  Authority and duties of the OHA deciding official.

    The authority of the OHA deciding official in all hearings in estate 
proceedings includes, but is not limited to authority:
    (a) To administer oaths and affirmations;
    (b) To issue subpoenas under the provisions of 25 U.S.C. 374 upon 
his or her own initiative or within his or her discretion upon the 
request of any party in interest, to any person whose testimony he or 
she believes to be material to a hearing. Upon the failure or refusal of 
any person upon whom a subpoena has been served to appear at a hearing 
or to testify, the OHA deciding official may file a petition in the 
appropriate U.S. District Court for the issuance of an order requiring 
the appearance and testimony of the witness:
    (c) To permit any party in interest to cross-examine any witness;
    (d) To appoint a guardian ad litem to represent any minor or 
incompetent party in interest at hearings;
    (e) To rule upon offers of proof and receive evidence;
    (f) To take and cause depositions to be taken and to determine their 
scope; and
    (g) To otherwise regulate the course of the hearing and the conduct 
of witnesses, parties in interest, and attorneys at law appearing 
therein.



Sec. 4.231  Hearings.

    (a) All testimony in Indian probate hearings must be under oath and 
must be taken in public except in those circumstances which in the 
opinion of the OHA deciding official justify all but parties in interest 
to be excluded from the hearing.
    (b) The proceedings of hearings must be recorded verbatim.
    (c) The record must include a showing of the names of all parties in 
interest and of attorneys who attended such hearing.

[[Page 73]]



Sec. 4.232  Evidence; form and admissibility.

    (a) Parties in interest may offer at a hearing such relevant 
evidence as they deem appropriate under the generally accepted rules of 
evidence of the State in which the evidence is taken, subject to the OHA 
deciding official's supervision as to the extent and manner of 
presentation of such evidence.
    (b) The OHA deciding official may admit letters or copies thereof, 
affidavits, or other evidence not ordinarily admissible under the 
generally accepted rules of evidence, the weight to be attached to 
evidence presented in any particular form being within the discretion of 
the OHA deciding official, taking into consideration all the 
circumstances of the particular case.
    (c) Stipulations of fact and stipulations of testimony that would be 
given by witnesses were such witnesses present, agreed upon by the 
parties in interest, may be used as evidence at the hearing.
    (d) The OHA deciding official may in any case require evidence in 
addition to that offered by the parties in interest.



Sec. 4.233  Proof of wills, codicils, and revocations.

    (a) Self-proved wills. A will executed as provided in Sec. 4.260 
may, at the time of its execution, be made self-proved, and testimony of 
the witnesses in the probate thereof may be made unnecessary by the 
affidavits of the testator and attesting witnesses, made before an 
officer authorized to administer oaths, such affidavits to be attached 
to such will and to be in form and contents substantially as follows:

State of ------------ County of ------------ ss. I, ------------, being 
first duly sworn, on oath, depose and say: That I am an ---- (enrolled 
or unenrolled) member of the ------------ Tribe of Indians in the State 
of ------------; that on the ---- day of ------, 19----, I requested --
---------- to prepare a will for me; that the attached will was prepared 
and I requested ------------ and ------------ to act as witnesses 
thereto; that I declared to said witnesses that said instrument was my 
last will and testament; that I signed said will in the presence of both 
witnesses and they signed the same as witnesses in my presence and in 
the presence of each other; that said will was read and explained to me 
(or read by me), after being prepared and before I signed it and it 
clearly and accurately expresses my wishes; and that I willingly made 
and executed said will as my free and voluntary act and deed for the 
purposes therein expressed.

                           Testator/Testatrix

We, -------------- and--------------, each being first duly sworn, on 
oath, depose and state: That on the ----day of ------, 19----, -------- 
a member of the -------- Tribe of Indians of the State of --------, 
published and declared the attached instrument to be his/her last will 
and testament, signed the same in the presence of both of us and 
requested both of us to sign the same as witnesses; that we, in 
compliance with his/her request, signed the same as witnesses in his/her 
presence and in the presence of each other; that said testator/testatrix 
was not acting under duress, menace, fraud, or undue influence of any 
person, so far as we could ascertain, and in our opinion was mentally 
capable of disposing of all his/her estate by will.
________________________________________________________________________
Witness

________________________________________________________________________
Witness

Subscribed and sworn to before me this------ day of------, 19----,by --
--------testator/testatrix, and by ----------and ----------; attesting 
witnesses.

________________________________________________________________________
________________________________________________________________________
(Title)
If uncontested, a self-proved will may be approved and distribution 
ordered thereunder with or without the testimony of any attesting 
witness.

    (b) Self-proved codicils and revocations. A codicil to, or a 
revocation of, a will may be made self-proved in the same manner as 
provided in paragraph (a) of this section with respect to a will.
    (c) Will contest. If the approval of a will, codicil thereto, or 
revocation thereof is contested, the attesting witnesses who are in the 
reasonable vicinity of the place of hearing and who are of sound mind 
must be produced and examined. If none of the attesting witnesses 
resides in the reasonable vicinity of the place of hearing at the time 
appointed for proving the will, the OHA deciding official may admit the 
testimony of other witnesses to prove the testamentary capacity of the 
testator and the execution of the will and, as evidence of the 
execution, the OHA deciding official may admit proof of the handwriting 
of the testator and of the

[[Page 74]]

attesting witnesses, or of any of them. The provisions of Sec. 4.232 are 
applicable with respect to remaining issues.



Sec. 4.234  Witnesses, interpreters, and fees.

    Parties in interest who desire a witness to testify or an 
interpreter to serve at a hearing must make their own financial and 
other arrangements therefor, and subpoenas will be issued where 
necessary and proper. The OHA deciding official may call witness and 
interpreters and order payment out of the estate assets of per diem, 
mileage, and subsistence at a rate not to exceed that allowed to 
witnesses called in the U.S. District Courts. In hardship situations, 
the OHA deciding official may order payment of per diem and mileage for 
indispensable witnesses and interpreters called for the parties. In the 
order for payment he or she must specify whether such costs are to be 
allocated and charged against the interest of the party calling the 
witness or against the estate generally. Costs of administration so 
allowed will have a priority for payment greater than that for any 
creditor claims allowed. Upon receipt of such order, the Superintendent 
must immediately initiate payment of such sums from the estate account, 
or if such funds are insufficient, then out of funds as they are 
received in such account prior to closure of the estate, with the 
proviso that such costs must be paid in full with a later allocation 
against the interest of a party, if the OHA deciding official has so 
ordered.



Sec. 4.235  Supplemental hearings.

    After the matter has been submitted but prior to the time the OHA 
deciding official has rendered his or her decision, the OHA deciding 
official may upon his or her own motion or upon motion of any party in 
interest schedule a supplemental hearing if he or she deems it 
necessary. The notice must set forth the purpose of the supplemental 
hearing and must be served upon all parties in interest in the manner 
provided in Sec. 4.211. Where the need for such supplemental hearing 
becomes apparent during any hearing, the OHA deciding official may 
announce the time and place for such supplemental hearing to all those 
present and no further notice need be given. In that event the records 
must clearly show who was present at the time of the announcement.



Sec. 4.236  Record.

    (a) After the completion of the hearing, the OHA deciding official 
will make up the official record containing:
    (1) A copy of the posted public notice of hearing showing the 
posting certifications;
    (2) A copy of each notice served on interested parties with proof of 
mailing;
    (3) The record of the evidence received at the hearing, including 
any transcript made of the testimony;
    (4) Claims filed against the estate;
    (5) Will and codicils, if any;
    (6) Inventories and valuations of the estate;
    (7) Pleadings and briefs filed;
    (8) Special or interim orders;
    (9) Data for heirship finding and family history;
    (10) The decision and the notices thereof; and
    (11) Any other material or documents deemed material by the OHA 
deciding official.
    (b) The OHA deciding official must lodge the original record with 
the designated Land Titles and Records Office in accordance with 25 CFR 
part 150. A duplicate copy must be lodged with the Superintendent 
originating the probate. A partial record may also be furnished to the 
Superintendents of other affected agencies. In those cases in which a 
hearing transcript has not been prepared, the verbatim recording of the 
hearing must be retained in the office of the OHA deciding official 
issuing the decision until the time allowed for rehearing or appeal has 
expired. In cases in which a transcript is not prepared, the original 
record returned to the Land Titles and Records Office must contain a 
statement indicating no transcript was prepared.

                                Decisions

    Source: 66 FR 67656, Dec. 31, 2001, unless otherwise noted.

[[Page 75]]



Sec. 4.240  Decision of the OHA deciding official and notice thereof.

    (a) The OHA deciding official must decide the issues of fact and law 
involved in the proceedings and must incorporate the following in his or 
her decision:
    (1) In all cases, the names, birth dates, relationships to the 
decedent, and shares of heirs with citations to the law of descent and 
distribution in accordance with which the decision is made; or the fact 
that the decedent died leaving no legal heirs.
    (2) In testate cases, (i) approval or disapproval of the will with 
construction of its provisions, (ii) the names and relationship to the 
testator of all beneficiaries and a description of the property which 
each is to receive;
    (3) Allowance or disallowance of claims against the estate;
    (4) Whether heirs or devisees are non-Indian, exclusively alien 
Indians, or Indians whose property is not subject to Federal 
supervision.
    (5) A determination of any rights of dower, curtesy or homestead 
which may constitute a burden upon the interest of the heirs.
    (b) When the OHA deciding official issues a decision, he or she must 
issue a notice thereof to all parties who have or claim any interest in 
the estate and must mail a copy of said notice, together with a copy of 
the decision to the Superintendent and to each party in interest 
simultaneously. The decision will not become final and no distribution 
may be made thereunder until the expiration of the 60 days allowed for 
the filing of a petition for rehearing by aggrieved parties as provided 
in Sec. 4.241.



Sec. 4.241  Rehearing.

    (a) Any person aggrieved by the decision of the OHA deciding 
official may, within 60 days after the date on which notice of the 
decision is mailed to the interested parties, file with the OHA deciding 
official a written petition for rehearing. Such petition must be under 
oath and must state specifically and concisely the grounds upon which it 
is based. If the petition is based on newly-discovered evidence, it must 
be accompanied by affidavits or declarations of witnesses stating fully 
what the new testimony is to be. It must also state justifiable reasons 
for the failure to discover and present that evidence, tendered as new, 
at the hearings held prior to the issuance of the decision. The OHA 
deciding official, upon receiving a petition for rehearing, must 
promptly forward a copy to the Superintendent. The Superintendent must 
not initiate payment of claims or distribute the estate while such 
petition is pending, unless otherwise directed by the OHA deciding 
official.
    (b) If proper grounds are not shown, or if the petition is not filed 
within the time prescribed in paragraph (a) of this section, the OHA 
deciding official will issue an order denying the petition and must set 
forth therein his or her reasons therefor. The OHA deciding official 
must furnish copies of such order to the petitioner, the Superintendent, 
and the parties in interest.
    (c) If the petition appears to show merit, the OHA deciding official 
must cause copies of the petition and supporting papers to be served on 
those persons whose interest in the estate might be adversely affected 
by the granting of the petition. The OHA deciding official must allow 
all persons served a reasonable, specified time in which to submit 
answers or legal briefs in opposition to the petition. The OHA deciding 
official will then reconsider, with or without hearing as he or she may 
determine, the issues raised in the petition; he or she may adhere to 
the former decision, modify or vacate it, or make such further order as 
is warranted.
    (d) Upon entry of a final order the OHA deciding official must lodge 
the complete record relating to the petition with the title plant 
designated under Sec. 4.236(b), and furnish a duplicate record thereof 
to the Superintendent.
    (e) Successive petitions for rehearing are not permitted, and except 
for the issuance of necessary orders nunc pro tunc to correct clerical 
errors in the decision, the jurisdiction of the OHA deciding official 
terminates upon the issuance of a decision finally disposing of a 
petition for rehearing. Nothing herein will be construed as a bar to the 
remand of a case by the Board for further hearing or rehearing after 
appeal.

[[Page 76]]

    (f) At the time the final decision is entered following the filing 
of a petition for rehearing, the OHA deciding official must direct a 
notice of such action with a copy of the decision to the Superintendent 
and to the parties in interest and must mail the same by regular mail to 
the said parties at their addresses of record.
    (g) No distribution may be made under such order for a period of 60 
days following the mailing of a notice of decision pending the filing of 
a notice of appeal by an aggrieved party as herein provided.



Sec. 4.242  Reopening.

    (a) Within a period of 3 years from the date of a final decision 
issued by an OHA deciding official or by the Board but not thereafter 
except as provided in Secs. 4.203 and 4.206, any person claiming an 
interest in the estate who had no actual notice of the original 
proceedings and who was not on the reservation or otherwise in the 
vicinity at any time while the public notices of the hearing were posted 
may file a petition in writing for reopening of the case. Any such 
petition must be addressed to the OHA deciding official and filed at his 
or her office. A copy of such petition must be furnished also by the 
petitioner to the Superintendent. All grounds for the reopening must be 
set forth fully. If based on alleged errors of fact, all such 
allegations must be under oath and supported by affidavits.
    (b) If the OHA deciding official finds that proper grounds are not 
shown, he or she will issue an order denying the petition and setting 
forth the reasons for such denial. Copies of the OHA deciding official's 
decision must be mailed to the petitioner, the Superintendent, and to 
those persons who share in the estate.
    (c) If the petition appears to show merit, the OHA deciding official 
must cause copies of the petition and all papers filed by the petitioner 
to be served on those persons whose interest in the estate might be 
adversely affected by the granting of the petition. Such persons may 
resist such petition by filing answers, cross-petitions, or briefs. Such 
filings must be made within such reasonable time periods as the OHA 
deciding official specifies. The OHA deciding official will then 
reconsider, with or without hearing as he or she may determine, prior 
actions taken in the case and may either adhere to, modify, or vacate 
the original decision. Copies of the OHA deciding official's decision 
must be mailed to the petitioner, to all persons who received copies of 
the petition, and to the Superintendent.
    (d) To prevent manifest error an OHA deciding official may reopen a 
case within a period of 3 years from the date of the final decision, 
after due notice on his or her own motion, or on petition of a BIA 
officer. Copies of the OHA deciding official's decision must be mailed 
to all parties in interest and to the Superintendent.
    (e) The OHA deciding official may suspend distribution of the estate 
or the income therefrom during the pendency of reopening proceedings by 
order directed to the Superintendent.
    (f) The OHA deciding official must lodge the record made in 
disposing of a reopening petition with the title plant designated under 
Sec. 4.236(b) and must furnish a duplicate record thereof to the 
Superintendent.
    (g) No distribution may be made under a decision issued pursuant to 
paragraph (b), (c), or (d) of this section for a period of 60 days 
following the mailing of the copy of the decision as therein provided, 
pending the filing of a notice of appeal by an aggrieved party.
    (h) If a petition for reopening is filed more than 3 years after the 
entry of a final decision in a probate, it will be allowed only upon a 
showing that a manifest injustice will occur; that a reasonable 
possibility exists for correction of the error; that the petitioner had 
no actual notice of the original proceedings; and that petitioner was 
not on the reservation or otherwise in the vicinity at any time while 
the public notices were posted. A denial of such petition may be made by 
the OHA deciding official on the basis of the petition and available BIA 
records. No such petition will be granted, however, unless the OHA 
deciding official has caused copies of the petition and all other papers 
filed by the petitioner to

[[Page 77]]

be served on those persons whose interest in the estate might be 
adversely affected by the granting of the petition, and after allowing 
such persons an opportunity to resist such petition by filing answers, 
cross petitions or briefs as provided in paragraph (c) of this section.

            Appeals From Decisions of BIA Deciding Officials



Sec. 4.243  Appeals from BIA.

    Any appeal filed pursuant to 25 CFR part 15, subpart E, will be 
referred to an OHA deciding official pursuant to Sec. 4.210. The OHA 
deciding official will review the merits of the case de novo and conduct 
a hearing as necessary or appropriate pursuant to the regulations in 
this subpart. The BIA deciding official must forward to the OHA deciding 
official all documents and other evidence upon which the BIA deciding 
official's decision was based.

                                 Claims

    Source: 66 FR 67656, Dec. 31, 2001, unless otherwise noted.



Sec. 4.250  Filing and proof of creditor claims; limitations.

    (a) All claims against the estate of a deceased Indian must be filed 
with the agency
    (i) Within 60 days from the date BIA receives a certified copy of 
the death certificate or other verification of the decedent's death 
under 25 CFR 15.101 or
    (ii) Within 20 days from the date the creditor is chargeable with 
notice of the decedent's death, whichever of these dates is later.
    (b) No claim will be paid from trust or restricted assets when the 
OHA deciding official is aware that the decedent's non-trust estate may 
be available to pay the claim.
    (c) All claims must be filed in triplicate, itemized in detail as to 
dates and amounts of charges for purchases or services and dates and 
amounts of payments on account. Such claims must show the names and 
addresses of all parties in addition to the decedent from whom payment 
might be sought. Each claim must be supplemented by an affidavit, in 
triplicate, of the claimant or someone in his or her behalf that the 
amount claimed is justly due from the decedent, that no payments have 
been made on the account which are not credited thereon as shown by the 
itemized statement, and that there are no offsets to the knowledge of 
the claimant.
    (d) Claims for care may not be allowed except upon clear and 
convincing evidence that the care was given on a promise of compensation 
and that compensation was expected.
    (e) A claim based on a written or oral contract, express or implied, 
where the claim for relief has existed for such a period as to be barred 
by the State laws at date of decedent's death, cannot be allowed.
    (f) Claims sounding in tort not reduced to judgment in a court of 
competent jurisdiction, and other unliquidated claims not properly 
within the jurisdiction of a probate forum, may be barred from 
consideration by an interim order from the OHA deciding official.
    (g) Claims of a State or any of its political subdivisions on 
account of social security or old-age assistance payments will not be 
allowed.



Sec. 4.251  Priority of claims.

    (a) Upon motion of the Superintendent or a party in interest, the 
OHA deciding official may authorize payment of the costs of 
administering the estate as they arise and prior to the allowance of any 
claims against the estate.
    (b) After the costs of administration, the OHA deciding official may 
authorize payment of priority claims as follows:
    (1) Claims for funeral expenses (including the cemetery marker);
    (2) Claims for medical expenses for the last illness;
    (3) Claims for nursing home or other care facility expenses;
    (4) Claims of an Indian tribe; and
    (5) Claims reduced to judgment by a court of competent jurisdiction.
    (c) After the priority claims, the OHA deciding official may 
authorize payment of all remaining claims, referred to as general 
claims.
    (d) The OHA deciding official has the discretion to decide that part 
or all of

[[Page 78]]

an otherwise valid claim is unreasonable, reduce the claim to a 
reasonable amount, or disallow the claim in its entirety.
    (1) If a claim is reduced, the OHA deciding official will order 
payment only of the reduced amount.
    (2) An OHA deciding official may reduce or disallow both priority 
claims and general claims.
    (e) If, as of the date of the hearing, there is not enough money in 
the IIM account to pay all claims, the OHA deciding official will order 
payment of allowed priority claims first, either in the order identified 
in paragraph (b) of this section or on a pro rata (reduced) basis.
    (f) If, as of the date of the hearing, less than $1,000 remains in 
the IIM account after payment of priority claims is ordered, the general 
claims may be ordered paid on a pro rata basis or disallowed in their 
entirety.
    (g) The unpaid balance of any claims will not be enforceable against 
the estate after the estate is closed.
    (h) Interest or penalties charged against either priority or general 
claims after the date of death will not be paid.



Sec. 4.252  Property subject to claims.

    Claims are payable from income from the lands remaining in trust. 
Further, except as prohibited by law, all trust moneys of the deceased 
on hand or accrued at time of death, including bonds, unpaid judgments, 
and accounts receivable, may be used for the payment of claims, whether 
the right, title, or interest that is taken by an heir, devisee, or 
legatee remains in or passes out of trust.

                                  Wills

    Source: 66 FR 67656, Dec. 31, 2001, unless otherwise noted.



Sec. 4.260  Making of a will; review as to form; revocation.

    (a) An Indian 18 years of age or over and of testamentary capacity, 
who has any right, title, or interest in trust property, may dispose of 
such property by a will executed in writing and attested by two 
disinterested adult witnesses.
    (b) When an Indian executes a will and submits the same to the 
Superintendent, the Superintendent must forward it to the Office of the 
Solicitor for examination as to adequacy of form, and for submission by 
the Office of the Solicitor to the Superintendent of any appropriate 
comments. The will, codicil, or any replacement or copy thereof, may be 
retained by the Superintendent at the request of the testator or 
testatrix for safekeeping. A will must be held in absolute confidence, 
and no person other than the testator may admit its existence or divulge 
its contents prior to the death of the testator.
    (c) The testator may, at any time during his or her lifetime, revoke 
his or her will by a subsequent will or other writing executed with the 
same formalities as are required in the case of the execution of a will, 
or by physically destroying the will with the intention of revoking it. 
No will that is subject to the regulations of this subpart will be 
deemed to be revoked by operation of the law of any State.



Sec. 4.261  Anti-lapse provisions.

    When an Indian testator devises or bequeaths trust property to any 
of his or her grandparents or to the lineal descendant of a grandparent, 
and the devisee or legatee dies before the testator leaving lineal 
descendants, such descendants will take the right, title, or interest so 
given by the will per stirpes. Relationship by adoption is equivalent to 
relationship by blood.



Sec. 4.262  Felonious taking of testator's life.

    No person who has been finally convicted of feloniously causing the 
death or taking the life of, or procuring another person to take the 
life of, the testator, may take directly or indirectly any devise or 
legacy under deceased's will. All right, title, and interest existing in 
such a situation will vest and be determined as if the person convicted 
never existed, notwithstanding Sec. 4.261.

                   Custody and Distribution of Estates

    Source: 66 FR 67656, Dec. 31, 2001, unless otherwise noted.

[[Page 79]]



Sec. 4.270  Custody and control of trust estates.

    The Superintendent may assume custody or control of all tangible 
trust personal property of a deceased Indian, and the Superintendent may 
take such action, including sale thereof, as in his or her judgment is 
necessary for the benefit of the estate, the heirs, legatees, and 
devisees, pending entry of the decision provided for in 25 CFR 15.311 or 
in Secs. 4.240, 4.241, or 4.312. All expenses, including expenses of 
roundup, branding, care, and feeding of livestock, are chargeable 
against the estate and may be paid from those funds of the deceased that 
are under the Department's control, or from the proceeds of a sale of 
the property or a part thereof. If an OHA deciding official or BIA 
deciding official has been assigned to adjudicate the estate, his or her 
approval is required prior to such payment.



Sec. 4.271  Omitted property.

    (a) When, subsequent to the issuance of a decision under Sec. 4.240 
or Sec. 4.312, it is found that trust property or interest therein 
belonging to a decedent has not been included in the inventory, the 
inventory can be modified to include such omitted property for 
distribution pursuant to the original decision. Such modification may be 
made either administratively by the Commissioner or by a modification 
order prepared by him or her for the approval and signature of the OHA 
deciding official. Copies of such modifications must be furnished to the 
Superintendent and to all those persons who share in the estate.
    (b) When the property to be included takes a different line of 
descent from that shown in the original decision, the Commissioner must 
notify the OHA deciding official who will proceed to hold a hearing if 
necessary and will issue a decision under Sec. 4.240. The record of any 
such proceeding must be lodged with the title plant designated under 
Sec. 4.236(b).



Sec. 4.272  Improperly included property.

    (a) When, subsequent to a decision under Sec. 4.240 or Sec. 4.312, 
it is found that property has been improperly included in the inventory 
of an estate, the inventory must be modified to eliminate such property. 
A petition for modification may be filed by the Superintendent of the 
Agency where the property is located, or by any party in interest.
    (b) The OHA deciding official will review the record of the title 
upon which the modification is to be based, and enter an appropriate 
decision. If the decision is entered without a hearing, the OHA deciding 
official must give notice of his or her action to all parties whose 
rights are adversely affected allowing them 60 days in which to show 
cause why the decision should not then become final.
    (c) Where appropriate the OHA deciding official may conduct a 
hearing at any stage of the modification proceeding. Any such hearing 
must be scheduled and conducted in accordance with the rules of this 
subpart. The OHA deciding official will enter a final decision based on 
his or her findings, modifying or refusing to modify the property 
inventory, and his or her decision will become final at the end of 60 
days from the date it is mailed unless a notice of appeal is filed by an 
aggrieved party within such period. Notice of entry of the decision must 
be given in accordance with Sec. 4.240(b).
    (d) A party aggrieved by the OHA deciding official's decision may 
appeal to the Board pursuant to the procedures in Secs. 4.310 through 
4.323.
    (e) The record of all proceedings must be lodged with the title 
plant designated under Sec. 4.236(b).



Sec. 4.273  Distribution of estates.

    (a) Seventy-five days after a final order has been issued, unless 
the Superintendent has received a copy of a petition for rehearing filed 
pursuant to the requirements of Sec. 4.241(a) or a copy of a notice of 
appeal filed pursuant to the requirements of Sec. 4.320(b), he or she 
must initiate payment of allowed claims, distribution of the estate, and 
all other actions required by the OHA deciding official's final order.
    (b) The Superintendent must not initiate the payment of claims or 
distribution of the estate during the pendency of proceedings under 
Sec. 4.241 or Sec. 4.242, unless the OHA deciding official orders 
otherwise in writing. The Board may, at any time, authorize the OHA

[[Page 80]]

deciding official to issue interim orders for payment of claims or for 
partial distribution during the pendency of proceedings on appeal.

                              Miscellaneous

    Source: 66 FR 67656, Dec. 31, 2001, unless otherwise noted.



Sec. 4.281  Claims for attorney fees.

    (a) Attorneys representing Indians in proceedings under these 
regulations may be allowed fees therefor by the OHA deciding official. 
At the discretion of the OHA deciding official, such fees may be 
chargeable against the interests of the party thus represented, or where 
appropriate, they may be taxed as a cost of administration. Petitions 
for allowance of fees must be filed prior to the close of the last 
hearing and must be supported by such proof as is required by the OHA 
deciding official. In determining attorney fees, consideration must be 
given to the fact that the property of the decedent is restricted or 
held in trust and that it is the duty of the Department to protect the 
rights of all parties in interest.
    (b) Nothing herein prevents an attorney from petitioning for 
additional fees to be considered at the disposition of a petition for 
rehearing and again after an appeal on the merits. An order allowing an 
attorney's fees is subject to a petition for rehearing and to an appeal.



Sec. 4.282  Guardians for incompetents.

    Minors and other legal incompetents who are parties in interest must 
be represented at all hearings by legally appointed guardians, or by 
guardians ad litem appointed by the OHA deciding official.

           Tribal Purchase of Interests Under Special Statutes

    Source: 66 FR 67656, Dec. 31, 2001, unless otherwise noted.



Sec. 4.300  Authority and scope.

    (a) The rules and procedures set forth in Secs. 4.300 through 4.308 
apply only to proceedings in Indian probate which relate to the tribal 
purchase of a decedent's interests in trust and restricted land as 
provided by:
    (1) The Act of December 31, 1970 (Pub. L. 91-627; 84 Stat. 1874; 25 
U.S.C. 607 (1976)), amending section 7 of the Act of August 9, 1946 (60 
Stat. 968), with respect to trust or restricted land within the Yakima 
Reservation or within the area ceded by the Treaty of June 9, 1855 (12 
Stat. 1951);
    (2) The Act of August 10, 1972 (Pub. L. 92-377; 86 Stat. 530), with 
respect to trust or restricted land within the Warm Springs Reservation 
or within the area ceded by the Treaty of June 25, 1855 (12 Stat. 37); 
and
    (3) The Act of September 29, 1972 (Pub. L. 92-443; 86 Stat. 744), 
with respect to trust or restricted land within the Nez Perce Indian 
Reservation or within the area ceded by the Treaty of June 11, 1855 (12 
Stat. 957).
    (b)(1) In the exercise of probate authority, an OHA deciding 
official will determine:
    (i) The entitlement of a tribe to purchase a decedent's interests in 
trust or restricted land under the statutes;
    (ii) The entitlement of a surviving spouse to reserve a life estate 
in one-half of the surviving spouse's interests which have been 
purchased by a tribe; and
    (iii) The fair market value of such interests, including the value 
of any life estate reserved by a surviving spouse.
    (2) In the determination under paragraph (b)(1) of this section of 
the entitlement of a tribe to purchase the interests of an heir or 
devisee, the issues of
    (i) Enrollment or refusal of the tribe to enroll a specific 
individual and
    (ii) Specification of blood quantum, where pertinent, will be 
determined by the official tribal roll which is binding upon the OHA 
deciding official. For good cause shown, the OHA deciding official may 
stay the probate proceeding to permit an aggrieved party to pursue an 
enrollment application, grievance, or appeal through the established 
procedures applicable to the tribe.



Sec. 4.301  Valuation report.

    (a) In all probates, at the earliest possible stage of the 
proceeding before issuance of a probate decision, the BIA

[[Page 81]]

must furnish a valuation of the decedent's interests when the record 
reveals to the Superintendent:
    (1) That the decedent owned interests in land located on one or more 
of those reservations designated in Sec. 4.300 and
    (2) That any one or more of the probable heirs or devisees, who may 
become a distributee of such interests upon completion of the probate 
proceeding, is not enrolled in or does not have the required blood 
quantum in the tribe of the reservation where the land is located to 
hold such interests against a claim thereto made by the tribe. If there 
is a surviving spouse whose interests may be subject to the tribal 
option, the valuation must include the value of a life estate based on 
the life of the surviving spouse in one half of such interests. The 
valuation must be made on the basis of the fair market value of the 
property, including fixed improvements, as of the date of decedent's 
death.
    (b) BIA must submit the valuation report in the probate package 
submitted to the OHA deciding official. Interested parties may examine 
and copy, at their expense, the valuation report at the office of the 
Superintendent or the OHA deciding official.



Sec. 4.302  Conclusion of probate and tribal exercise of statutory option.

    (a) Conclusion of probate; findings in the probate decision. When a 
decedent is shown to have owned land interests in any one or more of the 
reservations mentioned in the statutes enumerated in Sec. 4.300, the 
probate proceeding relative to the determination of heirs, approval or 
disapproval of a will, and the claims of creditors will first be 
concluded as final for the Department in accordance with Secs. 4.200 
through 4.282 and Secs. 4.310 through 4.323. This decision will be 
referred to herein as the ``probate decision.'' At the probate hearing a 
finding must be made on the record showing those interests in land, if 
any, which are subject to the tribal option. The finding must be reduced 
to writing in the probate decision setting forth the apparent rights of 
the tribe as against affected heirs or devisees and the right of a 
surviving spouse whose interests are subject to the tribal option to 
reserve a life estate in one-half of such interests. If the finding is 
that there are no interests subject to the tribal option, the decision 
must so state. A copy of the probate decision, to which must be attached 
a copy of the valuation report, must be distributed to all parties in 
interest in accordance with Secs. 4.201 and 4.240.
    (b) Tribal exercise of statutory option. A tribe may purchase all or 
a part of the available interests specified in the probate decision 
within 60 days from the date of the probate decision unless a petition 
for rehearing or a demand for hearing has been filed in accordance with 
Sec. 4.304 or 4.305. If a petition for rehearing or a demand for hearing 
has been filed, a tribe may purchase all or a part of the available 
interests specified in the probate decision within 20 days from the date 
of the decision on rehearing or hearing, whichever is applicable. A 
tribe may not, however, claim an interest less than the decedent's total 
interest in any one individual tract. The tribe must file a written 
notice of purchase with the Superintendent, together with the tribe's 
certification that copies thereof have been mailed on the same date to 
the OHA deciding official and to the affected heirs or devisees. Upon 
failure to timely file a notice of purchase, the right to distribution 
of all unclaimed interests will accrue to the heirs or devisees.



Sec. 4.303  Notice by surviving spouse to reserve a life estate.

    When the heir or devisee whose interests are subject to the tribal 
option is a surviving spouse, the spouse may reserve a life estate in 
one-half of such interests. The spouse must file a written notice to 
reserve with the Superintendent within 30 days after the tribe has 
exercised its option to purchase the interest in question, together with 
a certification that copies thereof have been mailed on the same date to 
the OHA deciding official and the tribe. Failure to timely file a notice 
to reserve a life estate will constitute a waiver thereof.



Sec. 4.304  Rehearing.

    Any party in interest aggrieved by the probate decision may, within 
60

[[Page 82]]

days from the date of the probate decision, file with the OHA deciding 
official a written petition for rehearing in accordance with Sec. 4.241.



Sec. 4.305  Hearing.

    (a) Demand for hearing. Any party in interest aggrieved by the 
exercise of the tribal option to purchase the interests in question or 
the valuation of the interests as set forth in the valuation report may, 
within 60 days from the date of the probate decision or 60 days from the 
date of the decision on rehearing, whichever is applicable, file with 
the OHA deciding official a written demand for hearing, together with a 
certification that copies thereof have been mailed on the same date to 
the Superintendent and to each party in interest; provided, however, 
that an aggrieved party will have at least 20 days from the date the 
tribe exercises its option to purchase available interests to file such 
a demand. The demand must state specifically and concisely the grounds 
upon which it is based.
    (b) Notice; burden of proof. The OHA deciding official will, upon 
receipt of a demand for hearing, set a time and place therefor and must 
mail notice thereof to all parties in interest not less than 30 days in 
advance; provided, however, that such date must be set after the 
expiration of the 60-day period fixed for the filing of the demand for 
hearing as provided in Sec. 4.305(a). At the hearing, each party 
challenging the tribe's claim to purchase the interests in question or 
the valuation of the interests as set forth in the valuation report will 
have the burden of proving his or her position.
    (c) Decision after hearing; appeal. Upon conclusion of the hearing, 
the OHA deciding official will issue a decision which determines all of 
the issues including, but not limited to, a judgment establishing the 
fair market value of the interests purchased by the tribe, including any 
adjustment thereof made necessary by the surviving spouse's decision to 
reserve a life estate in one-half of the interests. The decision must 
specify the right of appeal to the Board of Indian Appeals within 60 
days from the date of the decision in accordance with Secs. 4.310 
through 4.323. The OHA deciding official must lodge the complete record 
relating to the demand for hearing with the title plant as provided in 
Sec. 4.236(b), furnish a duplicate record thereof to the Superintendent, 
and mail a notice of such action together with a copy of the decision to 
each party in interest.



Sec. 4.306  Time for payment.

    A tribe must pay the full fair market value of the interests 
purchased, as set forth in the valuation report or as determined after 
hearing in accordance with Sec. 4.305, whichever is applicable, within 2 
years from the date of decedent's death or within 1 year from the date 
of notice of purchase, whichever comes later.



Sec. 4.307  Title.

    Upon payment by the tribe of the interests purchased, the 
Superintendent must issue a certificate to the OHA deciding official 
that this has been done and file therewith such documents in support 
thereof as the OHA deciding official may require. The OHA deciding 
official will then issue an order that the United States holds title to 
such interests in trust for the tribe, lodge the complete record, 
including the decision, with the title plant as provided in 
Sec. 4.236(b), furnish a duplicate record thereof to the Superintendent, 
and mail a notice of such action together with a copy of the decision to 
each party in interest.



Sec. 4.308  Disposition of income.

    During the pendency of the probate and up to the date of transfer of 
title to the United States in trust for the tribe in accordance with 
Sec. 4.307, all income received or accrued from the land interests 
purchased by the tribe will be credited to the estate.

    Cross Reference: See 25 CFR part 2 for procedures for appeals to 
Area Directors and to the Commissioner of the Bureau of Indian Affairs.

 General Rules Applicable to Proceedings on Appeal Before the Interior 
                         Board of Indian Appeals

    Source: 66 FR 67656, Dec. 31, 2001, unless otherwise noted.

[[Page 83]]



Sec. 4.310  Documents.

    (a) Filing. The effective date for filing a notice of appeal or 
other document with the Board during the course of an appeal is the date 
of mailing or the date of personal delivery, except that a motion for 
the Board to assume jurisdiction over an appeal under 25 CFR 2.20(e) 
will be effective the date it is received by the Board.
    (b) Service. Notices of appeal and pleadings must be served on all 
parties in interest in any proceeding before the Interior Board of 
Indian Appeals by the party filing the notice or pleading with the 
Board. Service must be accomplished upon personal delivery or mailing. 
Where a party is represented in an appeal by an attorney or other 
representative authorized under 43 CFR 1.3, service of any document on 
the attorney or representative is service on the party. Where a party is 
represented by more than one attorney, service on any one attorney is 
sufficient. The certificate of service on an attorney or representative 
must include the name of the party whom the attorney or representative 
represents and indicate that service was made on the attorney or 
representative.
    (c) Computation of time for filing and service. Except as otherwise 
provided by law, in computing any period of time prescribed for filing 
and serving a document, the day upon which the decision or document to 
be appealed or answered was served or the day of any other event after 
which a designated period of time begins to run is not to be included. 
The last day of the period so computed is to be included, unless it is a 
Saturday, Sunday, Federal legal holiday, or other nonbusiness day, in 
which event the period runs until the end of the next day which is not a 
Saturday, Sunday, Federal legal holiday, or other nonbusiness day. When 
the time prescribed or allowed is 7 days or less, intermediate 
Saturdays, Sundays, Federal legal holidays, and other nonbusiness days 
are excluded in the computation.
    (d) Extensions of time. (1) The time for filing or serving any 
document except a notice of appeal may be extended by the Board.
    (2) A request to the Board for an extension of time must be filed 
within the time originally allowed for filing.
    (3) For good cause the Board may grant an extension of time on its 
own initiative.
    (e) Retention of documents. All documents received in evidence at a 
hearing or submitted for the record in any proceeding before the Board 
will be retained with the official record of the proceeding. The Board, 
in its discretion, may permit the withdrawal of original documents while 
a case is pending or after a decision becomes final upon conditions as 
required by the Board.



Sec. 4.311  Briefs on appeal.

    (a) The appellant may file an opening brief within 30 days after 
receipt of the notice of docketing. Appellant must serve copies of the 
opening brief upon all interested parties or counsel and file a 
certificate with the Board showing service upon the named parties. 
Opposing parties or counsel will have 30 days from receipt of 
appellant's brief to file answer briefs, copies of which must be served 
upon the appellant or counsel and all other parties in interest. A 
certificate showing service of the answer brief upon all parties or 
counsel must be attached to the answer filed with the Board.
    (b) Appellant may reply to an answering brief within 15 days from 
its receipt. A certificate showing service of the reply brief upon all 
parties or counsel must be attached to the reply filed with the Board. 
Except by special permission of the Board, no other briefs will be 
allowed on appeal.
    (c) The BIA is considered an interested party in any proceeding 
before the Board. The Board may request that the BIA submit a brief in 
any case before the Board.
    (d) An original only of each document should be filed with the 
Board. Documents should not be bound along the side.
    (e) The Board may also specify a date on or before which a brief is 
due. Unless expedited briefing has been granted, such date may not be 
less than the appropriate period of time established in this section.

[[Page 84]]



Sec. 4.312  Decisions.

    Decisions of the Board will be made in writing and will set forth 
findings of fact and conclusions of law. The decision may adopt, modify, 
reverse or set aside any proposed finding, conclusion, or order of a BIA 
official or an OHA deciding official. Distribution of decisions must be 
made by the Board to all parties concerned. Unless otherwise stated in 
the decision, rulings by the Board are final for the Department and must 
be given immediate effect.



Sec. 4.313  Amicus Curiae; intervention; joinder motions.

    (a) Any interested person or Indian tribe desiring to intervene or 
to join other parties or to appear as amicus curiae or to obtain an 
order in an appeal before the Board must apply in writing to the Board 
stating the grounds for the action sought. Permission to intervene, to 
join parties, to appear, or for other relief, may be granted for 
purposes and subject to limitations established by the Board. This 
section will be liberally construed.
    (b) Motions to intervene, to appear as amicus curiae, to join 
additional parties, or to obtain an order in an appeal pending before 
the Board must be served in the same manner as appeal briefs.



Sec. 4.314  Exhaustion of administrative remedies.

    (a) No decision of an OHA deciding official or a BIA official, which 
at the time of its rendition is subject to appeal to the Board, will be 
considered final so as to constitute agency action subject to judicial 
review under 5 U.S.C. 704, unless made effective pending decision on 
appeal by order of the Board.
    (b) No further appeal will lie within the Department from a decision 
of the Board.
    (c) The filing of a petition for reconsideration is not required to 
exhaust administrative remedies.



Sec. 4.315  Reconsideration.

    (a) Reconsideration of a decision of the Board will be granted only 
in extraordinary circumstances. Any party to the decision may petition 
for reconsideration. The petition must be filed with the Board within 30 
days from the date of the decision and must contain a detailed statement 
of the reasons why reconsideration should be granted.
    (b) A party may file only one petition for reconsideration.
    (c) The filing of a petition will not stay the effect of any 
decision or order and will not affect the finality of any decision or 
order for purposes of judicial review, unless so ordered by the Board.



Sec. 4.316  Remands from courts.

    Whenever any matter is remanded from any federal court to the Board 
for further proceedings, the Board will either remand the matter to an 
OHA deciding official or to the BIA, or to the extent the court's 
directive and time limitations will permit, the parties will be allowed 
an opportunity to submit to the Board a report recommending procedures 
for it to follow to comply with the court's order. The Board will enter 
special orders governing matters on remand.



Sec. 4.317  Standards of conduct.

    (a) Inquiries about cases. All inquiries with respect to any matter 
pending before the Board must be made to the Chief Administrative Judge 
of the Board or the administrative judge assigned the matter.
    (b) Disqualification. An administrative judge may withdraw from a 
case in accordance with standards found in the recognized canons of 
judicial ethics if the judge deems such action appropriate. If, prior to 
a decision of the Board, a party files an affidavit of personal bias or 
disqualification with substantiating facts, and the administrative judge 
concerned does not withdraw, the Director of the Office of Hearings and 
Appeals will determine the matter of disqualification.



Sec. 4.318  Scope of review.

    An appeal will be limited to those issues which were before the OHA 
deciding official upon the petition for rehearing, reopening, or 
regarding tribal purchase of interests, or before the BIA official on 
review. However, except as specifically limited in this part or in title 
25 of the Code of Federal Regulations, the Board will not be limited in

[[Page 85]]

its scope of review and may exercise the inherent authority of the 
Secretary to correct a manifest injustice or error where appropriate.

        Appeals to the Board of Indian Appeals in Probate Matters

    Source: 66 FR 67656, Dec. 31, 2001, unless otherwise noted.



Sec. 4.320  Who may appeal.

    (a) A party in interest has a right to appeal to the Board from an 
order of an OHA deciding official on a petition for rehearing, a 
petition for reopening, or regarding tribal purchase of interests in a 
deceased Indian's trust estate.
    (b) Notice of appeal. Within 60 days from the date of the decision, 
an appellant must file a written notice of appeal signed by appellant, 
appellant's attorney, or other qualified representative as provided in 
43 CFR 1.3, with the Board of Indian Appeals, Office of Hearings and 
Appeals, U.S. Department of the Interior, 801 North Quincy Street, 
Arlington, Virginia 22203. A statement of the errors of fact and law 
upon which the appeal is based must be included in either the notice of 
appeal or in any brief filed. The notice of appeal must include the 
names and addresses of parties served. A notice of appeal not timely 
filed will be dismissed for lack of jurisdiction.
    (c) Service of copies of notice of appeal. The appellant must 
personally deliver or mail the original notice of appeal to the Board of 
Indian Appeals. A copy must be served upon the OHA deciding official 
whose decision is appealed as well as all interested parties. The notice 
of appeal filed with the Board must include a certification that service 
was made as required by this section.
    (d) Action by the OHA deciding official; record inspection. The OHA 
deciding official, upon receiving a copy of the notice of appeal, must 
notify the Superintendent concerned to return the duplicate record filed 
under Secs. 4.236(b) and 4.241(d), or under Sec. 4.242(f) of this part, 
to the Land Titles and Records Office designated under Sec. 4.236(b) of 
this part. The duplicate record must be conformed to the original by the 
Land Titles and Records Office and will thereafter be available for 
inspection either at the Land Titles and Records Office or at the office 
of the Superintendent. In those cases in which a transcript of the 
hearing was not prepared, the OHA deciding official will have a 
transcript prepared which must be forwarded to the Board within 30 days 
from receipt of a copy of the notice of appeal.

[66 FR 67656, Dec. 31, 2001, as amended at 67 FR 4368, Jan. 30, 2002]



Sec. 4.321  Notice of transmittal of record on appeal.

    The original record on appeal must be forwarded by the Land Titles 
and Records Office to the Board by certified mail. Any objection to the 
record as constituted must be filed with the Board within 15 days of 
receipt of the notice of docketing issued under Sec. 4.332 of this part.



Sec. 4.322  Docketing.

    The appeal will be docketed by the Board upon receipt of the 
administrative record from the Land Titles and Records Office. All 
interested parties as shown by the record on appeal must be notified of 
the docketing. The docketing notice must specify the time within which 
briefs may be filed and must cite the procedural regulations governing 
the appeal.



Sec. 4.323  Disposition of the record.

    Subsequent to a decision of the Board, other than remands, the 
record filed with the Board and all documents added during the appeal 
proceedings, including any transcripts prepared because of the appeal 
and the Board's decision, must be forwarded by the Board to the Land 
Titles and Records Office designated under Sec. 4.236(b) of this part. 
Upon receipt of the record by the Land Titles and Records Office, the 
duplicate record required by Sec. 4.320(c) of this part must be 
conformed to the original and forwarded to the Superintendent concerned.

[[Page 86]]

 Appeals to the Board of Indian Appeals from Administrative Actions of 
  Officials of the Bureau of Indian Affairs: Administrative Review in 
        Other Indian Matters Not Relating to Probate Proceedings

    Source: 54 FR 6487, Feb. 10, 1989, unless otherwise noted.



Sec. 4.330  Scope.

    (a) The definitions set forth in 25 CFR 2.2 apply also to these 
special rules. These regulations apply to the practice and procedure 
for: (1) Appeals to the Board of Indian Appeals from administrative 
actions or decisions of officials of the Bureau of Indian Affairs issued 
under regulations in 25 CFR chapter 1, and (2) administrative review by 
the Board of Indian Appeals of other matters pertaining to Indians which 
are referred to it for exercise of review authority of the Secretary or 
the Assistant Secretary--Indian Affairs.
    (b) Except as otherwise permitted by the Secretary or the Assistant 
Secretary--Indian Affairs by special delegation or request, the Board 
shall not adjudicate:
    (1) Tribal enrollment disputes;
    (2) Matters decided by the Bureau of Indian Affairs through exercise 
of its discretionary authority; or
    (3) Appeals from decisions pertaining to final recommendations or 
actions by officials of the Minerals Management Service, unless the 
decision is based on an interpretation of Federal Indian law (decisions 
not so based which arise from determinations of the Minerals Management 
Service, are appealable to the Interior Board of Land Appeals in 
accordance with 43 CFR 4.410).



Sec. 4.331  Who may appeal.

    Any interested party affected by a final administrative action or 
decision of an official of the Bureau of Indian Affairs issued under 
regulations in title 25 of the Code of Federal Regulations may appeal to 
the Board of Indian Appeals, except--
    (a) To the extent that decisions which are subject to appeal to a 
higher official within the Bureau of Indian Affairs must first be 
appealed to that official;
    (b) Where the decision has been approved in writing by the Secretary 
or Assistant Secretary--Indian Affairs prior to promulgation; or
    (c) Where otherwise provided by law or regulation.



Sec. 4.332  Appeal to the Board; how taken; mandatory time for filing; preparation assistance; requirement for bond.

    (a) A notice of appeal shall be in writing, signed by the appellant 
or by his attorney of record or other qualified representative as 
provided by 43 CFR 1.3, and filed with the Board of Indian Appeals, 
Office of Hearings and Appeals, U.S. Department of the Interior, 801 
North Quincy Street, Arlington, Virginia 22203, within 30 days after 
receipt by the appellant of the decision from which the appeal is taken. 
A copy of the notice of appeal shall simultaneously be filed with the 
Assistant Secretary--Indian Affairs. As required by Sec. 4.333 of this 
part, the notice of appeal sent to the Board shall certify that a copy 
has been sent to the Assistant Secretary--Indian Affairs. A notice of 
appeal not timely filed shall be dismissed for lack of jurisdiction. A 
notice of appeal shall include:
    (1) A full identification of the case;
    (2) A statement of the reasons for the appeal and of the relief 
sought; and
    (3) The names and addresses of all additional interested parties, 
Indian tribes, tribal corporations, or groups having rights or 
privileges which may be affected by a change in the decision, whether or 
not they participated as interested parties in the earlier proceedings.
    (b) In accordance with 25 CFR 2.20(c) a notice of appeal shall not 
be effective for 20 days from receipt by the Board, during which time 
the Assistant Secretary--Indian Affairs may decide to review the appeal. 
If the Assistant Secretary--Indian Affairs properly notifies the Board 
that he has decided to review the appeal, any documents concerning the 
case filed with the Board shall be transmitted to the Assistant 
Secretary--Indian Affairs.
    (c) When the appellant is an Indian or Indian tribe not represented 
by counsel, the official who issued the decision

[[Page 87]]

appealed shall, upon request of the appellant, render such assistance as 
is appropriate in the preparation of the appeal.
    (d) At any time during the pendency of an appeal, an appropriate 
bond may be required to protect the interest of any Indian, Indian 
tribe, or other parties involved.

[54 FR 6487, Feb. 10, 1989, as amended at 67 FR 4368, Jan. 30, 2002]



Sec. 4.333  Service of notice of appeal.

    (a) On or before the date of filing of the notice of appeal the 
appellant shall serve a copy of the notice upon each known interested 
party, upon the official of the Bureau of Indian Affairs from whose 
decision the appeal is taken, and upon the Assistant Secretary--Indian 
Affairs. The notice of appeal filed with the Board shall certify that 
service was made as required by this section and shall show the names 
and addresses of all parties served. If the appellant is an Indian or an 
Indian tribe not represented by counsel, the appellant may request the 
official of the Bureau whose decision is appealed to assist in service 
of copies of the notice of appeal and any supporting documents.
    (b) The notice of appeal will be considered to have been served upon 
the date of personal service or mailing.



Sec. 4.334  Extensions of time.

    Requests for extensions of time to file documents may be granted 
upon a showing of good cause, except for the time fixed for filing a 
notice of appeal which, as specified in Sec. 4.332 of this part, may not 
be extended.



Sec. 4.335  Preparation and transmittal of record by official of the Bureau of Indian Affairs.

    (a) Within 20 days after receipt of a notice of appeal, or upon 
notice from the Board, the official of the Bureau of Indian Affairs 
whose decision is appealed shall assemble and transmit the record to the 
Board. The record on appeal shall include, without limitation, copies of 
transcripts of testimony taken; all original documents, petitions, or 
applications by which the proceeding was initiated; all supplemental 
documents which set forth claims of interested parties; and all 
documents upon which all previous decisions were based.
    (b) The administrative record shall include a Table of Contents 
noting, at a minimum, inclusion of the following:
    (1) The decision appealed from;
    (2) The notice of appeal or copy thereof; and
    (3) Certification that the record contains all information and 
documents utilized by the deciding official in rendering the decision 
appealed.
    (c) If the deciding official receives notification that the 
Assistant Secretary--Indian Affairs has decided to review the appeal 
before the administrative record is transmitted to the Board, the 
administrative record shall be forwarded to the Assistant Secretary--
Indian Affairs rather than to the Board.



Sec. 4.336  Docketing.

    An appeal shall be assigned a docket number by the Board 20 days 
after receipt of the notice of appeal unless the Board has been properly 
notified that the Assistant Secretary--Indian Affairs has assumed 
jurisdiction over the appeal. A notice of docketing shall be sent to all 
interested parties as shown by the record on appeal upon receipt of the 
administrative record. Any objection to the record as constituted shall 
be filed with the Board within 15 days of receipt of the notice of 
docketing. The docketing notice shall specify the time within which 
briefs shall be filed, cite the procedural regulations governing the 
appeal and include a copy of the Table of Contents furnished by the 
deciding official.



Sec. 4.337  Action by the Board.

    (a) The Board may make a final decision, or where the record 
indicates a need for further inquiry to resolve a genuine issue of 
material fact, the Board may require a hearing. All hearings shall be 
conducted by an administrative law judge of the Office of Hearings and 
Appeals. The Board may, in its discretion, grant oral argument before 
the Board.
    (b) Where the Board finds that one or more issues involved in an 
appeal or a matter referred to it were decided by the Bureau of Indian 
Affairs based

[[Page 88]]

upon the exercise of discretionary authority committed to the Bureau, 
and the Board has not otherwise been permitted to adjudicate the 
issue(s) pursuant to Sec. 4.330(b) of this part, the Board shall dismiss 
the appeal as to the issue(s) or refer the issue(s) to the Assistant 
Secretary--Indian Affairs for further consideration.



Sec. 4.338  Submission by administrative law judge of proposed findings, conclusions and recommended decision.

    (a) When an evidentiary hearing pursuant to Sec. 4.337(a) of this 
part is concluded, the administrative law judge shall recommend findings 
of fact and conclusions of law, stating the reasons for such 
recommendations. A copy of the recommended decision shall be sent to 
each party to the proceeding, the Bureau official involved, and the 
Board. Simultaneously, the entire record of the proceedings, including 
the transcript of the hearing before the administrative law judge, shall 
be forwarded to the Board.
    (b) The administrative law judge shall advise the parties at the 
conclusion of the recommended decision of their right to file exceptions 
or other comments regarding the recommended decision with the Board in 
accordance with Sec. 4.339 of this part.



Sec. 4.339  Exceptions or comments regarding recommended decision by administrative law judge.

    Within 30 days after receipt of the recommended decision of the 
administrative law judge, any party may file exceptions to or other 
comments on the decision with the Board.



Sec. 4.340  Disposition of the record.

    Subsequent to a decision by the Board, the record filed with the 
Board and all documents added during the appeal proceedings, including 
the Board's decision, shall be forwarded to the official of the Bureau 
of Indian Affairs whose decision was appealed for proper disposition in 
accordance with rules and regulations concerning treatment of Federal 
records.

   White Earth Reservation Land Settlement Act of 1985; Authority of 
 Administrative Judges; Determinations of the Heirs of Persons Who Died 
                        Entitled to Compensation

    Source: 56 FR 61383, Dec. 3, 1991, unless otherwise noted.



Sec. 4.350  Authority and scope.

    (a) The rules and procedures set forth in Secs. 4.350 through 4.357 
apply only to the determination through intestate succession of the 
heirs of persons who died entitled to receive compensation under the 
White Earth Reservation Land Settlement Act of 1985, Public Law 99-264 
(100 Stat. 61), amended by Public Law 100-153 (101 Stat. 886) and Public 
Law 100-212 (101 Stat. 1433).
    (b) Whenever requested to do so by the Project Director, an 
administrative judge shall determine such heirs by applying inheritance 
laws in accordance with the White Earth Reservation Settlement Act of 
1985 as amended, notwithstanding the decedent may have died testate.
    (c) As used herein, the following terms shall have the following 
meanings:
    (1) The term Act means the White Earth Reservation Land Settlement 
Act of 1985 as amended.
    (2) The term Board means the Board of Indian Appeals in the Office 
of Hearings and Appeals, Office of the Secretary.
    (3) The term Project Director means the Superintendent of the 
Minnesota Agency, Bureau of Indian Affairs, or other Bureau of Indian 
Affairs official with delegated authority from the Minneapolis Area 
Director to serve as the federal officer in charge of the White Earth 
Reservation Land Settlement Project.
    (4) The term party (parties) in interest means the Project Director 
and any presumptive or actual heirs of the decedent, or of any issue of 
any subsequently deceased presumptive or actual heir of the decedent.
    (5) The term compensation means a monetary sum, as determined by the 
Project Director, pursuant to section 8(c) of the Act.
    (6) The term adminstrative judge means an administrative judge or an

[[Page 89]]

administrative law judge, attorney-advisor, or other appropriate 
official of the Office of Hearings and Appeals to whom the Director of 
the Office of Hearings and Appeals has redelegated his authority, as 
designee of the Secretary, for making heirship determinations as 
provided for in these regulations.
    (7) The term appellant means a party aggrieved by a final order or 
final order upon reconsideration issued by an administrative judge who 
files an appeal with the Board.

[56 FR 61383, Dec. 3, 1991; 56 FR 65782, Dec. 18, 1991, as amended at 64 
FR 13363, Mar. 18, 1999]



Sec. 4.351  Commencement of the determination process.

    (a) Unless an heirship determination which is recognized by the Act 
already exists, the Project Director shall commence the determination of 
the heirs of those persons who died entitled to receive compensation by 
filing with the administrative judge all data, identifying the purpose 
for which they are being submitted, shown in the records relative to the 
family of the decedent.
    (b) The data shall include but are not limited to:
    (1) A copy of the death certificate if one exists. If there is no 
death certificate, then another form of official written evidence of the 
death such as a burial or transportation of remains permit, coroner's 
report, or church registry of death. Secondary forms of evidence of 
death such as an affidavit from someone with personal knowledge 
concerning the fact of death or an obituary or death notice from a 
newspaper may be used only in the absence of any official proof or 
evidence of death.
    (2) Data for heirship finding and family history, certified by the 
Project Director. Such data shall contain:
    (i) The facts and alleged facts of the decedent's marriages, 
separations and divorces, with copies of necessary supporting documents;
    (ii) The names and last known addresses of probable heirs at law and 
other known parties in interest;
    (iii) Information on whether the relationships of the probable heirs 
at law to the decedent arose by marriage, blood, or adoption.
    (3) Known heirship determinations, including those recognized by the 
Act determining the heirs of relatives of the decedent, and including 
those rendered by courts from Minnesota or other states, by tribal 
courts, or by tribunals authorized by the laws of other countries.
    (4) A report of the compensation due the decedent, including 
interest calculated to the date of death of the decedent, and an outline 
of the derivation of such compensation, including its real property 
origins and the succession of the compensation to the deceased, citing 
all of the intervening heirs at law, their fractional shares, and the 
amount of compensation attributed to each of them.
    (5) A certification by the Project Director or his designee that the 
addresses provided for the parties in interest were furnished after 
having made a due and diligent search.

[56 FR 61383, Dec. 3, 1991; 56 FR 65782, Dec. 18, 1991]



Sec. 4.352  Determination of administrative judge and notice thereof.

    (a) Upon review of all data submitted by the Project Director, the 
administrative judge will determine whether or not there are any 
apparent issues of fact that need to be resolved.
    (b) If there are no issues of fact requiring determination, the 
administrative judge will enter a preliminary determination of heirs 
based upon inheritance laws in accordance with the Act. Such preliminary 
determination will be entered without a hearing, and, when possible and 
based upon the data furnished and/or information supplementary thereto, 
shall include the names, birth dates, relationships to the decedent, and 
shares of the heirs, or the fact that the decedent died without heirs.
    (1) Upon issuing a preliminary determination, the administrative 
judge shall issue a notice of such action and shall mail a copy of said 
notice, together with a copy of the preliminary determination, to each 
party in interest allowing forty (40) days in which to show cause in 
writing why the determination should not become final. The

[[Page 90]]

administrative judge shall cause a certificate to be made as to the date 
and manner of such mailing.
    (2) The Project Director shall also cause, within seven (7) days of 
receipt of such notice, the notice of the preliminary determination to 
be posted in the following sites:

The White Earth Band, Box 418, White Earth, Minnesota 56591
The Minnesota Chippewa Tribe, Box 217, Cass Lake, Minnesota 56633
Minnesota Agency, Bureau of Indian Affairs, Room 418, Federal Building, 
522 Minnesota Avenue, NW, Bemidji, Minnesota 56601-3062


and in such other sites as may be deemed appropriate by the Project 
Director. Such other sites may include, but not be limited to:

Elbow Lake Community Center, R.R. 2, Waubun, Minnesota 56589
Postmaster, Callaway, Minnesota 56521
Community Center, Route 2, Bagley, Minnesota 56621
Community Center, Star Route, Mahnomen, Minnesota 56557
Postmaster, Mahnomen, Minnesota 56557
Rice Lake Community Center, Route 2, Bagley, Minnesota 56621
Postmaster, Ogema, Minnesota 56569
Pine Point Community Center, Ponsford, Minnesota 56575
Postmaster, White Earth, Minnesota 56591
White Earth IHS, White Earth, Minnesota 56591
Postmaster, Ponsford, Minnesota 56575
American Indian Center, 1113 West Broadway, Minneapolis, Minnesota 55411
American Indian Center, 1530 East Franklin Avenue, Minneapolis, 
Minnesota 55404
American Indian Center, 341 University Avenue, St. Paul, Minnesota 55103
Little Earth of United Tribes Community Services, 2501 Cedar Avenue 
South, Minneapolis, Minnesota 55404
Naytahwaush Community Center, Naytahwaush, Minnesota 56566

    The Project Director shall provide a certificate showing when the 
notice of the preliminary determination was forwarded for posting, and 
to which locations. A posting certificate showing the date and place of 
posting shall be signed by the person or official who performs the act 
and returned to the Project Director. The Project Director shall file 
with the administrative judge the original posting certificates and the 
Project Director's certificate of mailing showing the posting locations 
and when the notice of the preliminary determination was forwarded for 
posting.
    (3) If no written request for hearing or written objection is 
received in the office of the administrative judge within the forty (40) 
days of issuance of the notice, the administrative judge shall issue a 
final order declaring the preliminary determination to be final thirty 
(30) days from the date on which the final order is mailed to each party 
in interest.
    (c) When the administrative judge determines either before or after 
issuance of a preliminary determination that there are issues which 
require resolution, or when a party objects to the preliminary 
determination and/or requests a hearing, the administrative judge may 
either resolve the issues informally or schedule and conduct a 
prehearing conference and/or a hearing. Any prehearing conference, 
hearing, or rehearing, conducted by the administrative judge shall be 
governed insofar as practicable by the regulations applicable to other 
hearings under this part and the general rules in subpart B of this 
part. After receipt of the testimony and/or evidence, if any, the 
administrative judge shall enter a final order determining the heirs of 
the decedent, which shall become final thirty (30) days from the date on 
which the final order is mailed to each party in interest.
    (d) The final order determining the heirs of the decedent shall 
contain, where applicable, the names, birth dates, relationships to the 
decedent, and shares of heirs, or the fact that the decedent died 
without heirs.

[56 FR 61383, Dec. 3, 1991; 56 FR 65782, Dec. 18, 1991; 57 FR 2319, Jan. 
21, 1992, as amended at 64 FR 13363, Mar. 18, 1999]



Sec. 4.353  Record.

    (a) The administrative judge shall lodge the original record with 
the Project Director.
    (b) The record shall contain, where applicable, the following 
materials:
    (1) A copy of the posted public notice of preliminary determination 
and/or hearing showing the posting certifications, the administrative 
judge's certificate of mailing, the posting certificates, and the 
Project Director's certificate of mailing.

[[Page 91]]

    (2) A copy of each notice served on parties in interest, with proof 
of mailing;
    (3) The record of evidence received, including any transcript made 
of testimony;
    (4) Data for heirship finding and family history, and data 
supplementary thereto;
    (5) The final order determining the heirs of the decedent and the 
administrative judge's notices thereof; and
    (6) Any other material or documents deemed relevant by the 
administrative judge.



Sec. 4.354  Reconsideration or rehearing.

    (a) Any party aggrieved by the final order of the administrative 
judge may, within thirty (30) days after the date of mailing such 
decision, file with the administrative judge a written petition for 
reconsideration and/or rehearing. Such petition must be under oath and 
must state specifically and concisely the grounds upon which it is 
based. If it is based upon newly discovered evidence, it shall be 
accompanied by affidavits of witnesses stating fully what the new 
evidence or testimony is to be. It shall also state justifiable reasons 
for the prior failure to discover and present the evidence.
    (b) If proper grounds are not shown, or if the petition is not filed 
within the time prescribed in paragraph (a) of this section, the 
administrative judge shall issue an order denying the petition and shall 
set forth therein the reasons therefor. The administrative judge shall 
serve copies of such order on all parties in interest.
    (c) If the petition appears to show merit, or if the administrative 
judge becomes aware of sufficient additional evidence to justify 
correction of error even without the filing of a petition, or upon 
remand from the Board following an appeal resulting in vacating the 
final order, the administrative judge shall cause copies of the 
petition, supporting papers, and other data, or in the event of no 
petition an order to show cause or decision of the Board vacating the 
final order in appropriate cases, to be served on all parties in 
interest. The parties in interest will be allowed a reasonable, 
specified time within which to submit answers or legal briefs in 
opposition to the petition or order to show cause or Board decision. The 
administrative judge shall then reconsider, with or without hearing, the 
issues of fact and shall issue a final order upon reconsideration, 
affirming, modifying, or vacating the original final order and making 
such further orders as are deemed warranted. The final order upon 
reconsideration shall be served on all parties in interest and shall 
become final thirty (30) days from the date on which it is mailed.
    (d) Successive petitions for reconsideration and/or rehearing shall 
not be permitted. Nothing herein shall be considered as a bar to the 
remand of a case by the Board for further reconsideration, hearing, or 
rehearing after appeal.



Sec. 4.355  Omitted compensation.

    When, subsequent to the issuance of a final order determining heirs 
under Sec. 4.352, it is found that certain additional compensation had 
been due the decedent and had not been included in the report of 
compensation, the report shall be modified administratively by the 
Project Director. Copies of such modification shall be furnished to all 
heirs as previously determined and to the appropriate administrative 
judge.



Sec. 4.356  Appeals.

    (a) A party aggrieved by a final order of an administrative judge 
under Sec. 4.352, or by a final order upon reconsideration of an 
administrative judge under Sec. 4.354, may appeal to the Board (address: 
Board of Indian Appeals, Office of Hearings and Appeals, 801 North 
Quincy Street, Arlington, Virginia 22203). A copy of the notice of 
appeal must also be sent to the Project Director and to the 
administrative judge whose decision is being appealed.
    (b) The notice of appeal must be filed with the Board no later than 
thirty (30) days from the date on which the final order of the 
administrative judge was mailed, or, if there has been a petition for 
reconsideration or rehearing filed, no later than thirty (30) days from 
the date on which the final order upon reconsideration of the 
administrative judge was mailed. A notice of appeal

[[Page 92]]

that is not timely filed will be dismissed.
    (c) The Project Director shall ensure that the record is 
expeditiously forwarded to the Board.
    (d) Within thirty (30) days after the notice of appeal is filed, the 
appellant shall file a statement of the reasons why the final order or 
final order upon reconsideration is in error. If the Board finds that 
the appellant has set forth sufficient reasons for questioning the final 
order or final order upon reconsideration, the Board will issue an order 
giving all parties in interest an opportunity to respond, following 
which a decision shall be issued. If the Board finds that the appellant 
has not set forth sufficient reasons for questioning the final order, 
the Board may issue a decision on the appeal without further briefing.
    (e) The Board may issue a decision affirming, modifying, or vacating 
the final order or final order upon reconsideration. A decision on 
appeal by the Board either affirming or modifying the final order or 
final order upon reconsideration shall be final for the Department of 
the Interior. In the event the final order or final order upon 
reconsideration is vacated, the proceeding shall be remanded to the 
appropriate administrative judge for reconsideration and/or rehearing.

[56 FR 61383, Dec. 3, 1991, as amended at 67 FR 4368, Jan. 30, 2002]



Sec. 4.357  Guardians for minors and incompetents.

    Persons less than 18 years of age and other legal incompetents who 
are parties in interest may be represented at all hearings by legally 
appointed guardians or by guardians ad litem appointed by the 
administrative judge.c



 Subpart E--Special Rules Applicable to Public Land Hearings and Appeals

    Authority: Sections 4.470 to 4.478 also issued under authority of 
sec. 2, 48 Stat. 1270; 43 U.S.C. 315a.

    Cross Reference: See subpart A for the authority, jurisdiction and 
membership of the Board of Land Appeals within the Office of Hearings 
and Appeals. For general rules applicable to proceedings before the 
Board of Land Appeals as well as the other Appeals Boards of the Office 
of Hearings and Appeals, see subpart B.

                           Appeals Procedures



appeals procedures; general--Table of Contents






Sec. 4.400  Definitions.

    As used in this subpart:
    (a) Secretary means the Secretary of the Interior or his authorized 
representatives.
    (b) Bureau means Bureau of Land Management.
    (c) Board means the Board of Land Appeals in the Office of Hearings 
and Appeals, Office of the Secretary. The terms office or officer as 
used in this subpart include Board where the context requires.
    (d) Administrative law judge means an administrative law judge in 
the Office of Hearings and Appeals, Office of the Secretary, appointed 
under section 3105 of title 5 of the United States Code.



Sec. 4.401  Documents.

    (a) Grace period for filing. Whenever a document is required under 
this subpart to be filed within a certain time and it is not received in 
the proper office during that time, the delay in filing will be waived 
if the document is filed not later than 10 days after it was required to 
be filed and it is determined that the document was transmitted or 
probably transmitted to the office in which the filing is required 
before the end of the period in which it was required to be filed. 
Determinations under this paragraph shall be made by the officer before 
whom is pending the appeal in connection with which the document is 
required to be filed.
    (b) Transferees and encumbrancers. Transferees and encumbrancers of 
land the title to which is claimed or is in the process of acquisition 
under any public land law shall, upon filing notice of the transfer or 
encumbrance in the proper land office, become entitled to receive and be 
given the same notice of any appeal, or other proceeding thereafter 
initiated affecting such interest which is required to be given to a 
party to the proceeding. Every such notice of a transfer or encumbrance 
will be

[[Page 93]]

noted upon the records of the land office. Thereafter such transferee or 
encumbrancer must be made a party to any proceedings thereafter 
initiated adverse to the entry.
    (c) Service of documents. (1) Wherever the regulations in this 
subpart require that a copy of a document be served upon a person, 
service may be made by delivering the copy personally to him or by 
sending the document by registered or certified mail, return receipt 
requested, to his address of record in the Bureau.
    (2) In any case service may be proved by an acknowledgment of 
service signed by the person to be served. Personal service may be 
proved by a written statement of the person who made such service. 
Service by registered or certified mail may be proved by a post-office 
return receipt showing that the document was delivered at the person's 
record address or showing that the document could not be delivered to 
such person at his record address because he had moved therefrom without 
leaving a forwarding address or because delivery was refused at that 
address or because no such address exists. Proof of service of a copy of 
a document should be filed in the same office in which the document is 
filed except that proof of service of a notice of appeal should be filed 
in the office of the officer to whom the appeal is made, if the proof of 
service is filed later than the notice of appeal.
    (3) A document will be considered to have been served at the time of 
personal service, of delivery of a registered or certified letter, or of 
the return by post office of an undelivered registered or certified 
letter.

[36 FR 7186, Apr. 15, 1971, as amended at 36 FR 15117, Aug. 13, 1971]



Sec. 4.402  Summary dismissal.

    An appeal to the Board will be subject to summary dismissal by the 
Board for any of the following causes:
    (a) If a statement of the reasons for the appeal is not included in 
the notice of appeal and is not filed within the time required;
    (b) If the notice of appeal is not served upon adverse parties 
within the time required; and
    (c) If the statement of reasons, if not contained in the notice of 
appeal, is not served upon adverse parties within the time required.
    (d) If the statement of standing required by Sec. 4.412(b) is not 
filed with the Board or is not served upon adverse parties within the 
time required.

[36 FR 7186, Apr. 15, 1971, as amended at 47 FR 26392, June 18, 1982]



Sec. 4.403  Finality of decision; reconsideration.

    A decision of the Board shall constitute final agency action and be 
effective upon the date of issuance, unless the decision itself provides 
othewise. The Board may reconsider a decision in extraordinary 
circumstances for sufficient reason. A petition for reconsideration 
shall be filed within 60 days after the date of a decision. The petition 
shall, at the time of filing, state with particularity the error claimed 
and include all arguments and supporting documents. The petition may 
include a request that the Board stay the effectiveness of the decision 
for which reconsideration is sought. No answer to a petition for 
reconsideration is required unless so ordered by the Board. The filing, 
pendency, or denial of a petition for reconsideration shall not operate 
to stay the effectiveness or affect the finality of the decision 
involved unless so ordered by the Board. A petition for reconsideration 
need not be filed to exhaust administrative remedies.

[52 FR 21308, June 5, 1987]

                  appeals to the board of land appeals



Sec. 4.410  Who may appeal.

    (a) Any party to a case who is adversely affected by a decision of 
an officer of the Bureau of Land Management or of an administrative law 
judge shall have a right to appeal to the Board, except--
    (1) As otherwise provided in Group 2400 of chapter II of this title,
    (2) To the extent that decisions of Bureau of Land Management 
officers must first be appealed to an administrative law judge under 
Sec. 4.470 and part 4100 of this title,
    (3) Where a decision has been approved by the Secretary, and

[[Page 94]]

    (4) As provided in paragraph (b) of this section.
    (b) For decisions rendered by Departmental officials relating to 
land selections under the Alaska Native Claims Settlement Act, as 
amended, any party who claims a property interest in land affected by 
the decision, an agency of the Federal Government or a regional 
corporation shall have a right to appeal to the Board.

[47 FR 26392, June 18, 1982]



Sec. 4.411  Appeal; how taken, mandatory time limit.

    (a) A person who wishes to appeal to the Board must file in the 
office of the officer who made the decision (not the Board) a notice 
that he wishes to appeal. A person served with the decision being 
appealed must transmit the notice of appeal in time for it to be filed 
in the office where it is required to be filed within 30 days after the 
date of service. If a decision is published in the Federal Register, a 
person not served with the decision must transmit a notice of appeal in 
time for it to be filed within 30 days after the date of publication.
    (b) The notice of appeal must give the serial number or other 
identification of the case and may include a statement of reasons for 
the appeal, a statement of standing if required by Sec. 4.412(b), and 
any arguments the appellant wishes to make.
    (c) No extension of time will be granted for filing the notice of 
appeal. If a notice of appeal is filed after the grace period provided 
in Sec. 4.401(a), the notice of appeal will not be considered and the 
case will be closed by the officer from whose decision the appeal is 
taken. If the notice of appeal is filed during the grace period provided 
in Sec. 4.401(a) and the delay in filing is not waived, as provided in 
that section, the notice of appeal will not be considered and the appeal 
will be dismissed by the Board.

(R.S. 2478, as amended, 43 U.S.C. 1201; sec. 25, Alaska Native Claims 
Settlement Act, as amended, 43 U.S.C. 1601-1628; and the Administrative 
Procedure Act, 5 U.S.C. 551, et seq.)

[36 FR 7186, Apr. 15, 1971, as amended at 36 FR 15117, Aug. 13, 1971; 49 
FR 6373, Feb. 21, 1984]



Sec. 4.412  Statement of reasons, statement of standing, written arguments, briefs.

    (a) If the notice of appeal did not include a statement of the 
reasons for the appeal, the appellant shall file such a statement with 
the Board (address: Board of Land Appeals, Office of Hearings and 
Appeals, 801 North Quincy Street, Arlington, VA 22203) within 30 days 
after the notice of appeal was filed. In any case, the Board will permit 
the appellant to file additional statements of reasons and written 
arguments or briefs within the 30-day period after the notice of appeal 
was filed.
    (b) Where the decision being appealed relates to land selections 
under the Alaska Native Claims Settlement Act, as amended, the appellant 
also shall file with the Board a statement of facts upon which the 
appellant relies for standing under Sec. 4.410(b) within 30 days after 
filing of the notice of appeal. The statement may be included with the 
notice of appeal filed pursuant to Sec. 4.411 or the statement of 
reasons filed pursuant to paragraph (a) of this section or may be filed 
as a separate document.
    (c) Failure to file the statement of reasons and statement of 
standing within the time required will subject the appeal to summary 
dismissal as provided in Sec. 4.402, unless the delay in filing is 
waived as provided in Sec. 4.401(a).

[47 FR 26392, June 18, 1982, as amended at 67 FR 4368, Jan. 30, 2002]



Sec. 4.413  Service of notice of appeal and of other documents.

    (a) The appellant shall serve a copy of the notice of appeal and of 
any statement of reasons, written arguments, or briefs on each adverse 
party named in the decision from which the appeal is taken and on the 
Office of the Solicitor as identified in paragraph (c) of this section. 
Service must be accomplished in the manner prescribed in Sec. 4.401(c) 
of this title not later than 15 days after filing the document.
    (b) Failure to serve within the time required will subject the 
appeal to summary dismissal as provided in Sec. 4.402 of this title.
    (c)(1)(i) If the appeal is taken from a decision of the Director, 
Minerals Management Service, the appellant will

[[Page 95]]

serve the Associate Solicitor, Division of Mineral Resources, Office of 
the Solicitor, U.S. Department of the Interior, Washington, D.C. 20240.
    (ii) If the appeal is taken from a decision of the Director, Bureau 
of Land Management, the appellant will serve:
    (A) The Associate Solicitor, Division of Land and Water Resources, 
Office of the Solicitor, U.S. Department of the Interior, Washington, 
D.C. 20240, if the decision concerns the use and disposition of public 
lands, including land selections under the Alaska Native Claims 
Settlement Act, as amended;
    (B) The Associate Solicitor, Division of Mineral Resources, Office 
of the Solicitor, U.S. Department of the Interior, Washington, D.C. 
20240, if the decision concerns the use and disposition of mineral 
resources.
    (c)(2) If the appeal is taken from a decision of other Bureau of 
Land Management (BLM) offices listed below (see Sec. 1821.2-1(d) of this 
title), the appellant shall serve the appropriate official of the Office 
of the Solicitor as identified:
    (i) BLM Alaska State Office, including all District and Area Offices 
within its area of jurisdiction:

Regional Solicitor, Alaska Region, U.S. Department of the Interior, 4230 
University Drive, Suite 300, Anchorage, AK 99508-4626;

    (ii) BLM Arizona State Office, including all District and Area 
Offices within its area of jurisdiction:

Field Solicitor, U.S. Department of the Interior, One Renaissance 
Square, Two North Central, Suite 1130, Phoenix, AZ 85004-2383;

    (iii) BLM California State Office, including all District and Area 
Offices within its area of jurisdiction:

Regional Solicitor, Pacific Southwest Region, U.S. Department of the 
Interior, 2800 Cottage Way, Room E-2753, Sacramento, CA 95825-1890;

    (iv) BLM Colorado State Office, including all District and Area 
Offices within its area of jurisdiction:

Regional Solicitor, Rocky Mountain Region, U.S. Department of the 
Interior, 755 Parfet Street, Suite 151, Lakewood, CO 80215;

    (v) BLM Eastern States Office, including all District and Area 
Offices within its area of jurisdiction:
    (A) The Associate Solicitor, Division of Land and Water Resources, 
Office of the Solicitor, U.S. Department of the Interior, Washington, 
D.C. 20240, if the decision concerns the use and disposition of public 
lands, including land selections under the Alaska Native Claims 
Settlement Act, as amended;
    (B) The Associate Solicitor, Division of Mineral Resources, Office 
of the Solicitor, U.S. Department of the Interior, Washington, D.C. 
20240, if the decision concerns the use and disposition of mineral 
resources.
    (vi) BLM Idaho State Office, including all District and Area Offices 
within its area of jurisdiction:

Field Solicitor, U.S. Department of the Interior, Federal Building & 
U.S. Courthouse, 550 West Fort Street, MSC 020, Boise, ID 83724;

    (vii) BLM Montana State Office, including all District and Area 
Offices within its area of jurisdiction:

Regular U.S. Mail: Field Solicitor, U.S. Department of the Interior, 
P.O. Box 31394, Billings, MT 59107-1394;
Other Delivery Services: Field Solicitor, U.S. Department of the 
Interior, 316 North 26th Street, Room 3004, Billings, MT 59101;

    (viii) BLM Nevada State Office, including all District and Area 
Offices within its area of jurisdiction:

Regional Solicitor, Pacific Southwest Region, U.S. Department of the 
Interior, 2800 Cottage Way, Room E-2753, Sacramento, CA 95825-1890;

    (ix) BLM New Mexico State Office, including all District and Area 
Offices within its area of jurisdiction:

Regular U.S. Mail: Field Solicitor, U.S. Department of the Interior, 
P.O. Box 1042, Santa Fe, NM 87504-1042;
Other Delivery Services: Field Solicitor, U.S. Department of the 
Interior, 150 Washington Avenue 207, Santa Fe, NM 87501;

    (x) BLM Oregon State Office, including all District and Area Offices 
within its area of jurisdiction:

Regional Solicitor, Pacific Northwest Region, U.S. Department of the 
Interior, Lloyd 500 Building, Suite 607, 500 N.E. Multnomah Street, 
Portland, OR 97232;

    (xi) BLM Utah State Office, including all District and Area Offices 
within its area of jurisdiction:

Field Solicitor, U.S. Department of the Interior, 6201 Federal Building, 
125 South State Street, Salt Lake City, UT 84138-1180;


[[Page 96]]


    (xii) BLM Wyoming State Office, including all District and Area 
Offices within its area of jurisdiction:

Regular U.S. Mail: Regional Solicitor, Rocky Mountain Region, U.S. 
Department of the Interior, P.O. Box 25007 (D-105), Denver Federal 
Center, Denver, CO 80225;
Other Delivery Services: Regional Solicitor, Rocky Mountain Region, U.S. 
Department of the Interior, 755 Parfet Street, Suite 151, Lakewood, CO 
80215;

    (3) If the appeal is taken from the decision of an administrative 
law judge, the appellant shall serve the attorney from the Office of the 
Solicitor who represented the Bureau of Land Management or the Minerals 
Management Service at the hearing or, in the absence of a hearing, who 
was served with a copy of the decision by the administrative law judge. 
If the hearing involved a mining claim on national forest land, the 
appellant shall serve the attorney from the Office of General Counsel, 
U.S. Department of Agriculture, who represented the U.S. Forest Service 
at the hearing or, in the absence of a hearing, who was served with a 
copy of the decision by the administrative law judge.
    (4) Parties shall serve the Office of the Solicitor as identified in 
this paragraph until such time that a particular attorney of the Office 
of the Solicitor files and serves a Notice of Appearance or Substitution 
of Counsel. Thereafter, parties shall serve the Office of the Solicitor 
as indicated by the Notice of Appearance or Substitution of Counsel.
    (d) Proof of such service as required by Sec. 4.401(c) must be filed 
with the Board (address: Board of Land Appeals, Office of Hearings and 
Appeals, 801 North Quincy Street, Arlington, VA 22203), within 15 days 
after service unless filed with the notice of appeal.

[53 FR 13267, Apr. 22, 1988, as amended at 60 FR 58242, Nov. 27, 1995; 
61 FR 40348, Aug. 2, 1996; 67 FR 4368, Jan. 30, 2002]



Sec. 4.414  Answers.

    If any party served with a notice of appeal wishes to participate in 
the proceedings on appeal, he must file an answer within 30 days after 
service on him of the notice of appeal or statement of reasons where 
such statement was not included in the notice of appeal. If additional 
reasons, written arguments, or briefs are filed by the appellant, the 
adverse party shall have 30 days after service thereof on him within 
which to answer them. The answer must state the reasons why the answerer 
thinks the appeal should not be sustained. Answers must be filed with 
the Board (address: Board of Land Appeals, Office of Hearings and 
Appeals, 801 North Quincy Street, Arlington, VA 22203) and must be 
served on the appellant, in the manner prescribed in Sec. 4.401(c), not 
later than 15 days thereafter. Proof of such service as required by 
Sec. 4.401(c), must be filed with the Board (see address above) within 
15 days after service. Failure to answer will not result in a default. 
If an answer is not filed and served within the time required, it may be 
disregarded in deciding the appeal, unless the delay in filing is waived 
as provided in Sec. 4.401(a).

[36 FR 7186, Apr. 15 1971, as amended at 67 FR 4368, Jan. 30, 2002]

                    actions by board of land appeals



Sec. 4.415  Request for hearings on appeals involving questions of fact.

    Either an appellant or an adverse party may, if he desires a hearing 
to present evidence on an issue of fact, request that the case be 
assigned to an administrative law judge for such a hearing. Such a 
request must be made in writing and filed with the Board within 30 days 
after answer is due and a copy of the request should be served on the 
opposing party in the case. The allowance of a request for hearing is 
within the discretion of the Board, and the Board may, on its own 
motion, refer any case to an administrative law judge for a hearing on 
an issue of fact. If a hearing is ordered, the Board will specify the 
issues upon which the hearing is to be held and the hearing will be held 
in accordance with Secs. 4.430 to 4.439, and the general rules in 
subpart B of this part.

                           Hearings Procedures



hearings procedures; general--Table of Contents






Sec. 4.420  Applicability of general rules.

    To the extent they are not inconsistent with these special rules, 
the general rules of the Office of Hearings

[[Page 97]]

and Appeals in subpart B of this part are also applicable to hearings, 
procedures.



Sec. 4.421  Definitions.

    As used in this subpart:
    (a) Secretary means the Secretary of the Interior or his authorized 
representatives.
    (b) Director means the Director of the Bureau of Land Management, 
the Associate Director or an Assistant Director.
    (c) Bureau means Bureau of Land Management.
    (d) Board means the Board of Land Appeals in the Office of Hearings 
and Appeals, Office of the Secretary. The terms ``office'' or 
``officer'' as used in this subpart include ``Board'' where the context 
requires.
    (e) Administrative law judge means an administrative law judge in 
the Office of Hearings and Appeals, Office of the Secretary, appointed 
under section 3105 of title 5 of the United States Code.
    (f) State Director means the supervising Bureau of Land Management 
officer for the State in which the particular range lies, or his 
authorized agent.
    (g) District manager means the supervising Bureau of Land Management 
officer of the grazing district in which the particular range lies, or 
his authorized agent.

[36 FR 7186, Apr. 15, 1971, as amended at 36 FR 15117, Aug. 13, 1971]



Sec. 4.422  Documents.

    (a) Grace period for filing. Whenever a document is required under 
this subpart to be filed within a certain time and it is not received in 
the proper office during that time, the delay in filing will be waived 
if the document is filed not later than 10 days after it was required to 
be filed and it is determined that the document was transmitted or 
probably transmitted to the office in which the filing is required 
before the end of the period in which it was required to be filed. 
Determinations under this paragraph shall be made by the officer before 
whom is pending the appeal or contest in connection with which the 
document is required to be filed. This paragraph does not apply to 
requests for postponement of hearings under Secs. 4.452-1 and 4.452-2.
    (b) Transferees and encumbrancers. Transferees and encumbrancers of 
land, the title to which is claimed or is in the process of acquisition 
under any public land law shall, upon filing notice of the transfer or 
encumbrance in the proper land office, become entitled to receive and be 
given the same notice of any contest, appeal, or other proceeding 
thereafter initiated affecting such interest which is required to be 
given to a party to the proceeding. Every such notice of a transfer or 
encumbrance will be noted upon the records of the land office. 
Thereafter such transferee or encumbrancer must be made a party to any 
proceedings thereafter initiated adverse to the entry.
    (c) Service of documents. (1) Wherever the regulations in this 
subpart require that a copy of a document be served upon a person, 
service may be made by delivering the copy personally to him or by 
sending the document by registered or certified mail, return receipt 
requested, to his address of record in the Bureau.
    (2) In any case service may be proved by an acknowledgement of 
service signed by the person to be served. Personal service may be 
proved by a written statement of the person who made such service. 
Service by registered or certified mail may be proved by a post-office 
return receipt showing that the document was delivered at the person's 
record address or showing that the document could not be delivered to 
such person at his record address because he had moved therefrom without 
leaving a forwarding address or because delivery was refused at that 
address or because no such address exists. Proof of service of a copy of 
a document should be filed in the same office in which the document is 
filed.
    (3) A document will be considered to have been served at the time of 
personal service, of delivery of a registered or certified letter, or of 
the return by the post office of an undelivered registered or certified 
letter.
    (d) Extensions of time. The Manager or the administrative law judge, 
as the case may be, may extend the time for

[[Page 98]]

filing or serving any document in a contest.

[36 FR 7186, Apr. 15, 1971, as amended at 36 FR 15117, Aug. 13, 1971]



Sec. 4.423  Subpoena power and witness provisions.

    The administrative law judge is authorized to issue subpoenas 
directing the attendance of witnesses at hearings to be held before him 
or at the taking of depositions to be held before himself or other 
officers, for the purpose of taking testimony but not for discovery. The 
issuance of subpoenas, service, attendance fees, and similar matters 
shall be governed by the Act of January 31, 1903 (43 U.S.C. 102-106), 
and 28 U.S.C. 1821.

             hearings on appeals involving questions of fact



Sec. 4.430  Prehearing conferences.

    (a) The administrative law judge may, in his discretion, on his own 
motion or motion of one of the parties or of the Bureau direct the 
parties or their representatives to appear at a specified time and place 
for a prehearing conference to consider: (1) The possibility of 
obtaining stipulations, admissions of facts and agreements to the 
introduction of documents, (2) the limitation of the number of expert 
witnesses, and (3) any other matters which may aid in the disposition of 
the proceedings.
    (b) The administrative law judge shall issue an order which recites 
the action taken at the conference and the agreements made as to any of 
the matters considered, and which limits the issues for hearing to those 
not disposed of by admissions or agreements. Such order shall control 
the subsequent course of the proceeding before the administrative law 
judge unless modified for good cause, by subsequent order.



Sec. 4.431  Fixing of place and date for hearing; notice.

    The administrative law judge shall fix a place and date for the 
hearing and notify all parties and the Bureau. All hearings held in 
connection with land selection appeals arising under the Alaska Native 
Claims Settlement Act, as amended, shall be conducted within the State 
of Alaska, unless the parties agree otherwise.

[47 FR 26392, June 18, 1982]



Sec. 4.432  Postponements.

    (a) Postponements of hearings will not be allowed upon the request 
of any party or the Bureau except upon a showing of good cause and 
proper diligence. A request for a postponement must be served upon all 
parties to the proceeding and filed in the office of the administrative 
law judge at least 10 days prior to the date of the hearing. In no case 
will a request for postponement served or filed less than 10 days in 
advance of the hearing or made at the hearing be granted unless the 
party requesting it demonstrates that an extreme emergency occurred 
which could not have been anticipated and which justifies beyond 
question the granting of a postponement. In any such emergency, if time 
does not permit the filing of such request prior to the hearing, it may 
be made orally at the hearing.
    (b) The request for a postponement must state in detail the reasons 
why a postponement is necessary. If a request is based upon the absence 
of witnesses, it must state what the substance of the testimony of the 
absent witnesses would be. No postponement will be granted if the 
adverse party or parties file with the examiner within 5 days after the 
service of the request a statement admitting that the witnesses on 
account of whose absence the postponement is desired would, if present, 
testify as stated in the request. If time does not permit the filing of 
such statement prior to the hearing, it may be made orally at the 
hearing.
    (c) Only one postponement will be allowed to a party on account of 
the absence of witnesses unless the party requesting a further 
postponement shall at the time apply for an order to take the testimony 
of the alleged absent witness by deposition.



Sec. 4.433  Authority of the administrative law judge.

    The administrative law judge is vested with general authority to 
conduct the hearing in an orderly and judicial manner, including 
authority to subpoena witnesses and to take and cause

[[Page 99]]

depositions to be taken for the purpose of taking testimony but not for 
discovery in accordance with the Act of January 31, 1903 (32 Stat. 790; 
43 U.S.C. 102 through 106), to administer oaths, to call and question 
witnesses, to make proposed findings of fact and to take such other 
actions in connection with the hearing as may be prescribed by the Board 
in referring the case for hearing. The issuance of subpoenas, the 
attendance of witnesses, and the taking of depositions shall be governed 
by Secs. 4.423 and 4.26 of the general rules of subpart B of this part.



Sec. 4.434  Conduct of hearing.

    So far as not inconsistent with the prehearing order, the examiner 
may seek to obtain stipulations as to material facts. Unless the 
administrative law judge directs otherwise, the appellant will present 
his evidence on the facts at issue following which the other parties and 
the Bureau of Land Management will present their evidence on such 
issues.



Sec. 4.435  Evidence.

    (a) All oral testimony shall be under oath and witnesses shall be 
subject to cross-examination. The administrative law judge may question 
any witnesses. Documentary evidence may be received if pertinent to any 
issue. The administrative law judge will summarily stop examination and 
exclude testimony which is obviously irrelevant and immaterial.
    (b) Objections to evidence will be ruled upon by the administrative 
law judge. Such rulings will be considered, but need not be separately 
ruled upon, by the Board in connection with its decision. Where a ruling 
of an administrative law judge sustains an objection to the admission of 
evidence, the party affected may insert in the record, as a tender of 
proof, a summary written statement of the substance of the excluded 
evidence and the objecting party may then make an offer of proof in 
rebuttal.



Sec. 4.436  Reporter's fees.

    Reporter's fees shall be borne by the Bureau.



Sec. 4.437  Copies of transcript.

    Each party shall pay for any copies of the transcript obtained by 
him. Unless a summary of the evidence is stipulated to, the Government 
will file the original copy of the transcript with the case record.



Sec. 4.438  Summary of evidence.

    The parties and the Bureau may, with the consent of the 
administrative law judge, agree that a summary of the evidence approved 
by the examiner may be filed in the case in lieu of a transcript. In 
such case the administrative law judge will prepare the summary or have 
it prepared and upon agreement of the parties make it a part of the case 
record.



Sec. 4.439  Action by administrative law judge.

    Upon completion of the hearing and the incorporation of the summary 
or transcript in the record, the administrative law judge will send the 
record and proposed findings of fact on the issues presented at the 
hearing to the Board. The proposed findings of fact will not be served 
upon the parties; however, the parties and the Bureau may, within 15 
days after the completion of the transcript or the summary of the 
evidence, file with the Board such briefs or statements as they may wish 
respecting the facts developed at the hearing.

                     contest and protest proceedings



Sec. 4.450  Private contests and protests.



Sec. 4.450-1  By whom private contest may be initiated.

    Any person who claims title to or an interest in land adverse to any 
other person claiming title to or an interest in such land or who seeks 
to acquire a preference right pursuant to the Act of May 14, 1880, as 
amended (43 U.S.C. 185), or the Act of March 3, 1891 (43 U.S.C. 329), 
may initiate proceedings to have the claim of title or interest adverse 
to his claim invalidated for any reason not shown by the records of the 
Bureau of Land Management. Such a proceeding will constitute a private 
contest and will be governed by the regulations herein.

[[Page 100]]



Sec. 4.450-2  Protests.

    Where the elements of a contest are not present, any objection 
raised by any person to any action proposed to be taken in any 
proceeding before the Bureau will be deemed to be a protest and such 
action thereon will be taken as is deemed to be appropriate in the 
circumstances.



Sec. 4.450-3  Initiation of contest.

    Any person desiring to initiate a private contest must file a 
complaint in the proper land office (see Sec. 1821.2-1 of chapter II of 
this title). The contestant must serve a copy of the complaint on the 
contestee not later than 30 days after filing the complaint and must 
file proof of such service, as required by Sec. 4.422(c), in the office 
where the complaint was filed within 30 days after service.



Sec. 4.450-4  Complaints.

    (a) Contents of complaint. The complaint shall contain the following 
information, under oath:
    (1) The name and address of each party interested;
    (2) A legal description of the land involved;
    (3) A reference, so far as known to the contestant, to any 
proceedings pending for the acquisition of title to, or an interest, in 
such land:
    (4) A statement in clear and concise language of the facts 
constituting the grounds of contest;
    (5) A statement of the law under which contestant claims or intends 
to acquire title to, or an interest in, the land and of the facts 
showing that he is qualified to do so;
    (6) A statement that the proceeding is not collusive or speculative 
but is insitituted and will be diligently pursued in good faith;
    (7) A request that the contestant be allowed to prove his 
allegations and that the adverse interest be invalidated;
    (8) The office in which the complaint is filed and the address to 
which papers shall be sent for service on the contestant; and
    (9) A notice that unless the contestee files an answer to the 
complaint in such office within 30 days after service of the notice, the 
allegations of the complaint will be taken as confessed.
    (b) Amendment of complaint. Except insofar as the manager, 
administrative law judge, Director, Board or Secretary may raise issues 
in connection with deciding a contest, issues not raised in a complaint 
may not be raised later by the contestant unless the administrative law 
judge permits the complaint to be amended after due notice to the other 
parties and an opportunity to object.
    (c) Corroboration required. All allegations of fact in the complaint 
which are not matters of official record or capable of being judicially 
noticed and which, if proved, would invalidate the adverse interest must 
be corroborated under oath by the statement of witnesses. Each such 
allegation of fact must be corroborated by the statement of at least one 
witness having personal knowledge of the alleged fact and such fact must 
be set forth in the statement. All statements by witnesses shall be 
attached to the complaint.
    (d) Filing fee. Each complaint must be accompanied by a filing fee 
of $10 and a deposit of $20 toward reporter's fees. Any complaint which 
is not accompanied by the required fee and deposit will not be accepted 
for filing.
    (e) Waiver of issues. Any issue not raised by a private contestant 
in accordance with the provisions of paragraph (b) of this section, 
which was known to him, or could have been known to him by the exercise 
of reasonable diligence, shall be deemed to have been waived by him, and 
he shall thereafter be forever barred from raising such issue.



Sec. 4.450-5  Service.

    The complaint must be served upon every contestee. If the contestee 
is of record in the land office, service may be made and proved as 
provided in Sec. 4.422 (c). If the person to be served is not of record 
in the land office, proof of service may be shown by a written statement 
of the person who made personal service, by post office return receipt 
showing personal delivery, or by an acknowledgment of service. In 
certain circumstances, service may be made by publication as provided in 
paragraph (b)(1) of this section. When

[[Page 101]]

the contest is against the heirs of a deceased entryman, the notice 
shall be served on each heir. If the person to be personally served is 
an infant or a person who has been legally adjudged of unsound mind, 
service of notice shall be made by delivering a copy of the notice to 
the legal guardian or committee, if there be one, of such infant or 
person of unsound mind; if there be none, then by delivering a copy of 
the notice to the person having the infant or person of unsound mind in 
charge.
    (a) Summary dismissal; waiver of defect in service. If a complaint 
when filed does not meet all the requirements of Sec. 4.450-4(a) and 
(c), or if the complaint is not served upon each contestee as required 
by this section, the complaint will be summarily dismissed by the 
manager and no answer need be filed. However, where prior to the summary 
dismissal of a complaint a contestee answers without questioning the 
service or proof of service of the complaint, any defect in service will 
be deemed waived as to such answering contestee.
    (b) Service by publication--(1) When service may be made by 
publication. When the contestant has made diligent search and inquiry to 
locate the contestee, and cannot locate him, the contestant may proceed 
with service by publication after first filing with the manager an 
affidavit which shall:
    (i) State that the contestee could not be located after diligent 
search and inquiry made within 15 days prior to the filing of the 
affidavit;
    (ii) Be corroborated by the affidavits of two persons who live in 
the vicinity of the land which state that they have no knowledge of the 
contestee's whereabouts or which give his last known address;
    (iii) State the last known address of the contestee; and
    (iv) State in detail the efforts and inquiries made to locate the 
party sought to be served.
    (2) Contents of published notice. The published notice must give the 
names of the parties to the contest, legal description of the land 
involved, the substance of the charges contained in the complaint, the 
office in which the contest is pending, and a statement that upon 
failure to file an answer in such office within 30 days after the 
completion of publication of such notice, the allegations of the 
complaint will be taken as confessed. The published notice shall also 
contain a statement of the dates of publication.
    (3) Publication, mailing and posting of notice. (i) Notice by 
publication shall be made by publishing notice at least once a week for 
5 successive weeks in some newspaper of general circulation in the 
county in which the land in contest lies.
    (ii) Within 15 days after the first publication of a notice, the 
contestant shall send a copy of the notice and the complaint by 
registered or certified mail, return receipt requested, to the contestee 
at his last known address and also to the contestee in care of the post 
office nearest the land. The return receipts shall be filed in the 
office in which the contest is pending.
    (iii) A copy of the notice as published shall be posted in the 
office where the contest is pending and also in a conspicuous place upon 
the land involved. Such postings shall be made within 15 days after the 
first publication of the notice.
    (c) Proof of service. (1) Proof of publication of the notice shall 
be made by filing in the office where the contest is pending a copy of 
the notice as published and the affidavit of the publisher or foreman of 
the newspaper publishing the same showing the publication of the notice 
in accordance with paragraph (b)(3) of this section.
    (2) Proof of posting of the notice shall be by affidavit of the 
person who posted the notice on the land and by the certificate of the 
manager or the Director of the Bureau of Land Management as to posting 
in his office.
    (3) Proof of the mailing of notice shall be by affidavit of the 
person who mailed the notice to which shall be attached the return 
receipt.



Sec. 4.450-6  Answer to complaint.

    Within 30 days after service of the complaint or after the last 
publication of the notice, the contestee must file in the office where 
the contest is pending an answer specifically meeting and responding to 
the allegations of the complaint, together with proof of service of a 
copy of the answer upon a contestant

[[Page 102]]

as provided in Sec. 4.450-5(b)(3). The answer shall contain or be 
accompanied by the address to which all notices or other papers shall be 
sent for service upon contestee.



Sec. 4.450-7  Action by manager.

    (a) If an answer is not filed as required, the allegations of the 
complaint will be taken as admitted by the contestee and the manager 
will decide the case without a hearing.
    (b) If an answer is filed and unless all parties waive a hearing, 
the manager will refer the case to an administrative law judge upon 
determining that the elements of a private contest appear to have been 
established.



Sec. 4.450-8  Amendment of answer.

    At the hearing, any allegation not denied by the answer will be 
considered admitted. The administrative law judge may permit the answer 
to be amended after due notice to other parties and an opportunity to 
object.



Sec. 4.451  Government contests.



Sec. 4.451-1  How initiated.

    The Government may initiate contests for any cause affecting the 
legality or validity of any entry or settlement or mining claim.



Sec. 4.451-2  Proceedings in Government contests.

    The proceedings in Government contests shall be governed by the 
rules relating to proceedings in private contests with the following 
exceptions:
    (a) No corroboration shall be required of a Government complaint and 
the complaint need not be under oath.
    (b) A Government contest complaint will not be insufficient and 
subject to dismissal for failure to name all parties interested, or for 
failure to serve every party who has been named.
    (c) No filing fee or deposit toward reporter's fee shall be required 
of the Government.
    (d) Any action required of the contestant may be taken by any 
authorized Government employee.
    (e) The statements required by Sec. 4.450-4(a) (5) and (6) need not 
be included in the complaint.
    (f) No posting of notice of publication on the land in issue shall 
be required of the Government.
    (g) Where service is by publication, the affidavits required by 
Sec. 4.450-5(b)(1) need not be filed. The contestant shall file with the 
manager a statement of diligent search which shall state that the 
contestee could not be located after diligent search and inquiry, the 
last known address of the contestee and the detail of efforts and 
inquiries made to locate the party sought to be served. The diligent 
search shall be concluded not more than 15 days prior to the filing of 
the statement.
    (h) In lieu of the requirements of Sec. 4.450-5(b)(3)(ii) the 
contestant shall, as part of the diligent search before the publication 
or within 15 days after the first publication send a copy of the 
complaint by certified mail, return receipt requested, to the contestee 
at the last address of record. The return receipts shall be filed in the 
office in which the contest is pending.
    (i) The affidavit required by Sec. 4.450-5(c)(3) need not be filed.
    (j) The provisions of paragraph (e) of Sec. 4.450-4(e) shall be 
inapplicable.



Sec. 4.452  Proceedings before the administrative law judge.



Sec. 4.452-1  Prehearing conferences.

    (a) The administrative law judge may in his discretion, on his own 
motion or on motion of one of the parties, or of the Bureau, direct the 
parties or their representatives to appear at a specified time and place 
for a prehearing conference to consider:
    (1) The simplification of the issues,
    (2) The necessity of amendments to the pleadings,
    (3) The possibility of obtaining stipulations, admissions of facts 
and agreements to the introduction of documents,
    (4) The limitation of the number of expert witnesses, and
    (5) Such other matters as may aid in the disposition of the 
proceedings.
    (b) The administrative law judge shall make an order which recites 
the action taken at the conference, the amendments allowed to the 
pleadings, and the agreements made as to any of the matters considered, 
and which limits the issues for hearing to those not

[[Page 103]]

disposed of by admission or agreements. Such order shall control the 
subsequent course of the proceedings before the administrative law judge 
unless modified for good cause, by subsequent order.



Sec. 4.452-2  Notice of hearing.

    The administrative law judge shall fix a place and date for the 
hearing and notify all parties and the Bureau at least 30 days in 
advance of the date set, unless the parties and the Bureau request or 
consent to an earlier date. The notice shall include (a) the time, 
place, and nature of the hearing, (b) the legal authority and 
jurisdiction under which the hearing is to be held, and (c) the matters 
of fact and law asserted. All hearings held in connection with land 
selection appeals arising under the Alaska Native Claims Settlement Act, 
as amended, shall be conducted within the state of Alaska, unless the 
parties agree otherwise.

[47 FR 26392, June 18, 1982]



Sec. 4.452-3  Postponements.

    (a) Postponements of hearings will not be allowed upon the request 
of any party or the Bureau except upon a showing of good cause and 
proper diligence. A request for a postponement must be served upon all 
parties to the proceeding and filed in the office of the administrative 
law judge at least 10 days prior to the date of the hearing. In no case 
will a request for postponement served or filed less than 10 days in 
advance of the hearing or made at the hearing be granted unless the 
party requesting it demonstrates that an extreme emergency occurred 
which could not have been anticipated and which justifies beyond 
question the granting of a postponement. In any such emergency, if time 
does not permit the filing of such request prior to the hearing, it may 
be made orally at the hearing.
    (b) The request for a postponement must state in detail the reasons 
why a postponement is necessary. If a request is based upon the absence 
of witnesses, it must state what the substance of the testimony of the 
absent witnesses would be. No postponement will be granted if the 
adverse party or parties file with the administrative law judge within 5 
days after the service of the request a statement admitting that the 
witnesses on account of whose absence the postponement is desired would, 
if present, testify as stated in the request. If time does not permit 
the filing of such statement prior to the hearing, it may be made orally 
at the hearing.
    (c) Only one postponement will be allowed to a party on account of 
the absence of witnesses unless the party requesting a further 
postponement shall at the time apply for an order to take the testimony 
of the alleged absent witness by deposition.



Sec. 4.452-4  Authority of administrative law judge.

    The administrative law judge is vested with general authority to 
conduct the hearing in an orderly and judicial manner, including 
authority to subpoena witnesses and to take and cause depositions to be 
taken for the purpose of tasking testimony but not for discovery in 
accordance with the act of January 31, 1903 (43 U.S.C. 102-106), to 
administer oaths, to call and question witnesses, and to make a 
decision. The issuance of subpoenas, the attendance of witnesses and the 
taking of depositions shall be governed by Secs. 4.423 and 4.26 of the 
general rules in subpart B of this part.



Sec. 4.452-5  Conduct of hearing.

    So far as not inconsistent with a prehearing order, the 
administrative law judge may seek to obtain stipulations as to material 
facts and the issues involved and may state any other issues on which he 
may wish to have evidence presented. He may exclude irrelevant issues. 
The contestant will then present his case following which the other 
parties (and in private contests the Bureau, if it intervenes) will 
present their cases.



Sec. 4.452-6  Evidence.

    (a) All oral testimony shall be under oath and witnesses shall be 
subject to cross-examination. The administrative law judge may question 
any witness. Documentary evidence may be received if pertinent to any 
issue. The administrative law judge will summarily stop examination and 
exclude testimony

[[Page 104]]

which is obviously irrelevant and immaterial.
    (b) Objections to evidence will be ruled upon by the administrative 
law judge. Such rulings will be considered, but need not be separately 
ruled upon, by the Board in connection with its decision. Where a ruling 
of an administrative law judge sustains an objection to the admission of 
evidence, the party affected may insert in the record, as a tender of 
proof, a summary written statement of the substance of the excluded 
evidence, and the objecting party may then make an offer of proof in 
rebuttal.



Sec. 4.452-7  Reporter's fees.

    (a) The Government agency initiating the proceedings will pay all 
reporting fees in hearings in Government contest proceedings, in 
hearings under the Surface Resources Act of 1955, as amended, in 
hearings under the Multiple Mineral Development Act of 1954, as amended, 
where the United States is a party, and in hearings under the Mining 
Claims Rights Restoration Act of 1955, regardless of which party is 
ultimately successful.
    (b) In the case of a private contest, each party will be required to 
pay the reporter's fees covering the party's direct evidence and cross-
examination of witnesses, except that if the ultimate decision is 
adverse to the contestant, he must in addition pay all the reporter's 
fees otherwise payable by the contestee.
    (c) Each party to a private contest shall be required by the 
administrative law judge to make reasonable deposits for reporter's fees 
from time to time in advance of taking testimony. Such deposits shall be 
sufficient to cover all reporter's fees for which the party may 
ultimately be liable under paragraph (b) of this section. Any part of a 
deposit not used will be returned to the depositor upon the final 
determination of the case except that deposits which are required to be 
made when a complaint is filed will not be returned if the party making 
the deposit does not appear at the hearing, but will be used to pay the 
reporter's fee. Reporter's fees will be at the rates established for the 
local courts, or, if the reporting is done pursuant to a contract, at 
rates established by the contract.



Sec. 4.452-8  Findings and conclusions; decision by administrative law judge; submission to Board for decision.

    (a) At the conclusion of the testimony the parties at the hearing 
shall be given a reasonable time by the administrative law judge, 
considering the number and complexity of the issues and the amount of 
testimony, to submit to the administrative law judge proposed findings 
of fact and conclusions of law and reasons in support thereof or to 
stipulate to a waiver of such findings and conclusions.
    (b) As promptly as possible after the time allowed for presenting 
proposed findings and conclusions, the administrative law judge shall 
make findings of fact and conclusions of law (unless waiver has been 
stipulated), giving the reasons therefor, upon all the material issues 
of fact, law, or discretion presented on the record. The administrative 
law judge may adopt the findings of fact and conclusions of law proposed 
by one or more of the parties if they are correct. He must rule upon 
each proposed finding and conclusion submitted by the parties and such 
ruling shall be shown in the record. The administrative law judge will 
render a written decision in the case which shall become a part of the 
record and shall include a statement of his findings and conclusions, as 
well as the reasons or basis therefor, and his rulings upon the findings 
and conclusions proposed by the parties if such rulings do not appear 
elsewhere in the record. A copy of the decision will be served upon all 
parties to the case.
    (c) The Board may require, in any designated case, that the 
administrative law judge make only a recommended decision and that the 
decision and the record be submitted to the Board for consideration. The 
recommended decision shall meet all the requirements for a decision set 
forth in paragraph (b) of this section. The Board shall then make the 
initial decision in the case. This decision shall include such 
additional findings and conclusions as do not appear in the recommended 
decision and the record shall include such rulings on proposed

[[Page 105]]

findings and conclusions submitted by the parties as have not been made 
by the administrative law judge.



Sec. 4.452-9  Appeal to Board.

    Any party, including the Government, adversely affected by the 
decision of the administrative law judge may appeal to the Board as 
provided in Sec. 4.410, and the general rules in Subpart B of this part. 
No further hearing will be allowed in connection with the appeal to the 
Board but the Board, after considering the evidence, may remand any case 
for further hearing if it considers such action necessary to develop the 
facts.

        Grazing Procedures (Inside and Outside Grazing Districts)

    Source: 44 FR 41790, July 18, 1979, unless otherwise noted.



Sec. 4.470  Appeal to administrative law judge; motion to dismiss.

    (a) Any applicant, permittee, lessee, or any other person whose 
interest is adversely affected by a final decision of the authorized 
officer may appeal to an administrative law judge by filing his appeal 
in the office of the authorized officer within 30 days after receipt of 
the decision. The appeal shall state the reasons, clearly and concisely, 
why the appellant thinks the final decision of the authorized officer is 
in error. All grounds of error not stated shall be considered as waived, 
and no such waived ground of error may be presented at the hearing 
unless ordered or permitted by the administrative law judge.
    (b) Any applicant, permittee, lessee, or any other person who, after 
proper notification, fails to appeal a final decision of the authorized 
officer within the period prescribed in the decision, shall be barred 
thereafter from challenging the matters adjudicated in that final 
decision.
    (c) When separate appeals are filed and the issue or issues involved 
are common to two or more appeals, they may be consolidated for purposes 
of hearing and decision.
    (d) The authorized officer shall promptly forward the appeal to the 
State Director. Within 30 days after his receipt of the appeal the State 
Director may file on behalf of the authorized officer a written motion, 
serving a copy thereof upon the appellant, requesting that the appeal be 
dismissed for the reason that it is frivolous, the appeal was filed 
late, the errors are not clearly and concisely stated, the issues are 
immaterial, the issue or issues were included in a prior final decision 
from which no timely appeal was made, or all issues involved therein 
have been previously adjudicated in an appeal involving the same 
preference, the same parties or their predecessors in interest. The 
appellant may file a written answer within 20 days after service of the 
motion upon him with the State Director. The appeal, motion, the proofs 
of service (see Sec. 4.401(c)), and the answers will be transmitted to 
the Hearings Division, Office of Hearings and Appeals, Salt Lake City, 
Utah. An administrative law judge, shall rule on the motion, and, if the 
motion is sustained, dismiss the appeal by written order.



Sec. 4.471  Time and place of hearing; notice; intervenors.

    At least 30 days before the date set by the administrative law judge 
the authorized officer will notify the appellant of the time and place 
of the hearing within or near the district. Any other person who in the 
opinion of the authorized officer may be directly affected by the 
decision on appeal will also be notified of the hearing; such person may 
himself appear at the hearing, or by attorney, and upon a proper showing 
of interest, may be recognized by the administrative law judge as an 
intervenor in the appeal.



Sec. 4.472  Authority of administrative law judge.

    (a) The administrative law judge is vested with the duty and general 
authority to conduct the hearing in an orderly, impartial, and judicial 
manner, including authority to subpoena witnesses, recognize 
intervenors, administer oaths and affirmations, call and question 
witnesses, regulate the course and order of the hearing, rule upon 
offers of proof and the relevancy of evidence, and to make findings of 
fact, conclusions of law, and a decision.

[[Page 106]]

The administrative law judge shall have authority to take or to cause 
depositions to be taken. Subpoenas, depositions, the attendance of 
witnesses, and witness and deposition fees shall be governed by 
Sec. 4.26 of the general rules in Subpart B of this part, to the extent 
such regulations are applicable.
    (b) The administrative law judge also may grant or order 
continuances, and set the times and places of further hearings. 
Continuances shall be granted in accordance with Sec. 4.452-3.



Sec. 4.473  Service.

    Service of notice or other documents required under this subpart 
shall be governed by Secs. 4.413 and 4.422. Proof of such service shall 
be filed in the same office where the notice or document was filed 
within 15 days after such service, unless filed with the notice or 
document.



Sec. 4.474  Conduct of hearing; reporter's fees; transcript.

    (a) The appellant, the State Director or his representative, and 
recognized intervenors will stipulate so far as possible all material 
facts and the issue or issues involved. The administrative law judge 
will state any other issues on which he may wish to have evidence 
presented. Issues which appear to the administrative law judge to be 
unnecessary to a proper disposition of the case will be excluded; but 
the party asserting such issue may state briefly for the record the 
substance of the proof which otherwise would have been offered in 
support of the issue. Issues not covered by the appellant's 
specifications of error may not be admitted except with the consent of 
the State Director or his representative, unless the administrative law 
judge rules that such issue is essential to the controversy and should 
be admitted. The parties will then be given an opportunity to submit 
offers of settlement and proposals of adjustment for the consideration 
of the administrative law judge and of the other parties.
    (b) Unless the administrative law judge orders otherwise, the State 
Director or his representative will then make the opening statement, 
setting forth the facts leading to the appeal. Upon the conclusion of 
the opening statement, the appellant shall present his case, consistent 
with his specifications of error. (In the case of a show cause, the 
State Director shall set forth the facts leading to the issuance of the 
show cause notice and shall present his case following the opening 
statement.) Following the appellant's presentation, or upon his failure 
to make such presentation, the administrative law judge, upon his own 
motion or upon motion of any of the parties, may order summary dismissal 
of the appeal with prejudice because of the inadequacy or insufficiency 
of the appellant's case, to be followed by a written order setting forth 
the reasons for the dismissal and taking such other action under this 
subpart as may be proper and warranted. An appeal may be had from such 
order as well as from any other final determination made by the 
administrative law judge.
    (c) In the absence or upon denial of such motion the State Director 
or his representative and recognized intervenors may present evidence if 
such a presentation appears to the administrative law judge to be 
necessary for a proper disposition of the matters in controversy, 
adhering as closely as possible to the issues raised by the appellant. 
All oral testimony shall be under oath or affirmation, and witnesses 
shall be subject to cross-examination by any party to the proceeding. 
The administrative law judge may question any witness whenever it 
appears necessary. Documentary evidence will be received by the 
administrative law judge and made a part of the record, if pertinent to 
any issue, or may be entered by stipulation. No exception need be stated 
or noted and every ruling of the administrative law judge will be 
subject to review on appeal. The party affected by an adverse ruling 
sustaining an objection to the admission of evidence, may insert in the 
record, as a tender of proof, a brief written statement of the substance 
of the excluded evidence; and the opposing party may then make an offer 
of proof in rebuttal. The administrative law judge shall summarily stop 
examination and exclude testimony on any

[[Page 107]]

issue which he determines has been adjudicated previously in an appeal 
involving the same preference and the same parties or their predecessors 
in interest, or which is obviously irrelevant and immaterial to the 
issues in the case. At the conclusion of the testimony the parties at 
the hearing shall be given a reasonable opportunity, considering the 
number and complexity of the issues and the amount of testimony, to 
submit to the administrative law judge proposed findings of fact and 
conclusions of law, and reasons in support thereof, or to stipulate to a 
waiver of such findings and conclusions.
    (d) The reporter's fees shall be borne by the Government. Each party 
shall pay for any copies of the transcript obtained by him. Unless the 
parties stipulate to a summary of the evidence, the Government will file 
the original copy of the transcript with the case record.



Sec. 4.475  Findings of fact and decision by administrative law judge: Notice; submission to Board of Land Appeals for decision.

    (a) As promptly as possible after the time allowed for presenting 
proposed findings and conclusions, the administrative law judge shall 
make findings of fact and conclusions of law unless waiver has been 
stipulated, and shall render a decision upon all material issues of fact 
and law presented on the record. In doing so he may adopt the findings 
of fact and conclusions of law proposed by one or more of the parties if 
they are correct. The reasons for the findings, conclusions, and 
decisions made shall be stated, and along with the findings, 
conclusions, and decision, shall become a part of the record in any 
further appeal. A copy of the decision shall be sent by certified mail 
to the appellant and all intervenors, or their attorneys of record.
    (b) The Board of Land Appeals may require, in any designated case, 
that the administrative law judge make only a recommended decision and 
that such decision and the record be submitted to the Board for 
consideration. The recommended decision shall meet all the requirements 
for a decision set forth in paragraph (a) of this section. The Board 
shall then make the decision in the case. This decision shall include 
such additional findings and conclusions as do not appear in the 
recommended decision and the record shall include such rulings on 
proposed findings and conclusions submitted by the parties as have not 
been made by the administrative law judge.



Sec. 4.476  Appeals to the Board of Land Appeals.

    Any party affected by the administrative law judge's decision, 
including the State Director, has the right to appeal to the Board of 
Land Appeals, in accordance with the procedures and rules set forth in 
this part 4.



Sec. 4.477  Effect of decision suspended during appeal.

    Notwithstanding the provisions of Sec. 4.21(a) of this part 
pertaining to the period during which a final decision will not be in 
effect, and consistent with the provisions of Sec. 4160.3 of this title, 
the authorized officer may provide in his decision that it shall be in 
full force and effect pending decision on an appeal therefrom. Any 
action taken by the authorized officer pursuant to a decision shall be 
subject to modification or revocation by the administrative law judge or 
the Board upon an appeal from the decision. In order to insure the 
exhaustion of administrative remedies before resort to court action, a 
decision which at the time of its rendition is subject to appeal to a 
superior authority in the Department shall not be considered final so as 
to be agency action subject to judicial review under 5 U.S.C. 704, 
unless it has been made effective pending a decision on appeal in the 
manner provided in this paragraph.

[44 FR 41790, July 18, 1979, as amended at 60 FR 9958, Feb. 22, 1995]



Sec. 4.478  Conditions of decision action.

    (a) Record as basis of decision; definition of record. No decision 
shall be rendered except on consideration of the whole record or such 
portions thereof as may be cited by any party or by the State Director 
and as supported by and in accordance with the reliable, probative, and 
substantial evidence. The transcript of testimony and exhibits, together 
with all papers and requests

[[Page 108]]

filed in the proceedings, shall constitute the exclusive record for 
decision.
    (b) Effect of substantial compliance. No adjudication of grazing 
preference will be set aside on appeal, if it appears that it is 
reasonable and that it represents a substantial compliance with the 
provisions of part 4100 of this title.



 Subpart F--Implementation of the Equal Access to Justice Act in Agency 
                               Proceedings

    Authority: Sec. 203(a)(1), Pub. L. 96-481, 94 Stat. 2325 (5 U.S.C. 
504(c)(1)).

    Source: 48 FR 17596, Apr. 25, 1983, unless otherwise noted.

                           General Provisions



Sec. 4.601  Purpose of these rules.

    These rules are adopted by the Department of the Interior pursuant 
to section 504 of title 5, United States Code, as amended by section 
203(a)(1) of the Equal Access to Justice Act, Pub. L. 96-481. Under the 
Act, an eligible party may receive an award for attorney fees and other 
expenses when it prevails over the Department in an adversary 
adjudication under 5 U.S.C. 554 before the Office of Hearings and 
Appeals, unless the Department's position as a party to the proceeding 
was substantially justified or special circumstances make an award 
unjust. The purpose of these rules is to establish procedures for the 
submission and consideration of applications for awards against the 
Department.



Sec. 4.602  Definitions.

    As used in this part:
    (a) The Act means section 504 of title 5, United States Code, as 
amended by section 203(a)(1) of the Equal Access to Justice Act, Pub. L. 
96-481.
    (b) Adversary adjudication means an adjudication under 5 U.S.C. 554 
in which the position of the United States is represented by counsel or 
otherwise, but excludes an adjudication for the purpose of establishing 
or fixing a rate or for the purpose of granting or renewing a license.
    (c) Adjudicative officer means the official who presided at the 
adversary adjudication.
    (d) Department refers to the Department of the Interior or the 
relevant department component which is a party to the adversary 
adjudication (e.g., Office of Surface Mining Reclamation and Enforcement 
or Bureau of Land Management).
    (e) Proceeding means an adversary adjudication as defined in 
Sec. 4.602(b).
    (f) Party includes a person or agency named or admitted as a party, 
or properly seeking and entitled as of right to be admitted as a party, 
in an agency proceeding, and a person or agency admitted by an agency as 
a party for limited purposes.



Sec. 4.603  Proceedings covered.

    (a) These rules apply to adversary adjudications required by statute 
to be conducted by the Secretary under 5 U.S.C. 554. Specifically, these 
rules apply to adjudications conducted by the Office of Hearings and 
Appeals under 5 U.S.C. 554 which are required by statute to be 
determined on the record after opportunity for an agency hearing. These 
rules do not apply where adjudications on the record are not required by 
statute even though hearings are conducted using procedures comparable 
to those set forth in 5 U.S.C. 554.
    (b) If a proceeding includes both matters covered by the Act and 
matters specifically excluded from coverage, any award made will include 
only fees and expenses related to covered matters.



Sec. 4.604  Applicability to Department of the Interior proceedings.

    The Act applies to any adversary adjudication pending before the 
Office of Hearings and Appeals of the Department of the Interior at any 
time between October 1, 1981, and September 30, 1984. This includes 
proceedings begun before October 1, 1981, if final Departmental action 
has not been taken before that date, and proceedings pending on 
September 30, 1984.



Sec. 4.605  Eligibility of applicants.

    (a) To be eligible for an award of attorney fees and other expenses 
under

[[Page 109]]

the Act, the applicant must be a party prevailing over the Department in 
the adversary adjudication for which it seeks an award. The applicant 
must show that it meets all pertinent conditions of eligibility set out 
in these regulations.
    (b) The types of eligible applicants are as follows:
    (1) An individual with a net worth of not more than $1 million;
    (2) The sole owner of an unincorporated business which has a net 
worth of not more than $5 million, and not more than 500 employees;
    (3) A charitable or other tax-exempt organization described in 
section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)) 
with not more than 500 employees;
    (4) A cooperative association as defined in section 15(a) of the 
Agricultural Marketing Act (12 U.S.C. 1141j(a)) with not more than 500 
employees; and
    (5) Any other partnership, corporation, association, or public or 
private organization with a net worth of not more than $5 million and 
not more than 500 employees. A unit of state or local government is not 
a public organization within the meaning of this provision.
    (c) For the purpose of eligibility, the net worth and number of 
employees of an applicant shall be determined as of the date the 
adversary adjudication was initiated.
    (d) An applicant who owns an unincorporated business will be 
considered as an ``individual'' rather than a ``sole owner of an 
unincorporated business'' if the issues on which the applicant prevails 
are related primarily to personal interests rather than to business 
interests.
    (e) The employees of an applicant include all persons who regularly 
perform services for remuneration for the applicant, under the 
applicant's direction and control. Part-time employees shall be 
included.
    (f) The net worth and the number of employees of the applicant and 
all of its affiliates shall be aggregated to determine eligibility. Any 
individual or group of individuals, corporation, or other entity that 
directly or indirectly controls or owns a majority of the voting shares 
of another business, or controls in any manner the election of a 
majority of that business' board of directors, trustees, or other 
persons exercising similar functions shall be considered an affiliate of 
that business for purposes of this part. In addition, the adjudicative 
officer may determine that financial relationships of the applicant 
other than those described in the paragraph constitute special 
circumstances that would make an award unjust.
    (g) An applicant is not eligible if it has participated in the 
proceeding solely on behalf of other persons or entities that are 
ineligible.



Sec. 4.606  Standards for awards.

    (a) A prevailing applicant may receive an award for fees and 
expenses incurred in connection with a proceeding unless (1) the 
position of the Department as a party to the proceeding was 
substantially justified, or (2) special circumstances make the award 
sought unjust. No presumption arises that the Department's position was 
not substantially justified simply because the Department did not 
prevail.
    (b) An award will be reduced or denied if the applicant has unduly 
or unreasonably protracted the proceeding.



Sec. 4.607  Allowable fees and expenses.

    (a) The following fees and other expenses are allowable under the 
Act:
    (1) Reasonable expenses of expert witnesses;
    (2) Reasonable cost of any study, analysis, engineering report, 
test, or project which is found necessary for the preparation of the 
party's case; and
    (3) Reasonable attorney or agent fees.
    (b) The amount of fees awarded will be based upon the prevailing 
market rates for the kind and quality of services furnished, except 
that--
    (1) Compensation for an expert witness will not exceed the highest 
rate at which the Department pays expert witnesses; and
    (2) Attorney or agent fees will not exceed $75 per hour.
    (c) In determining the reasonableness of the fee sought, the 
adjudicative officer shall consider the following:
    (1) The prevailing rate for similar services in the community in 
which the

[[Page 110]]

attorney, agent, or witness has performed the service;
    (2) The time actually spent in the representation of the applicant;
    (3) The difficulty or complexity of the issues in the proceeding;
    (4) Any necessary and reasonable expenses incurred; and
    (5) Such other factors as may bear on the value of the services 
performed.

                  Information Required From Applicants

    Note: Information Collection. The information collection requirement 
contained in Secs. 4.608 through 4.610, requiring an application for 
fees and expenses in an adversary adjudication under the Equal Access to 
Justice Act, has been approved by the Office of Management and Budget 
under the Paperwork Reduction Act, 44 U.S.C. 3507, and has been assigned 
clearance members 1084-0011. The information is required to seek an 
award of fees and expenses.



Sec. 4.608  Contents of application.

    (a) An application for an award of fees and expenses under the Act 
shall identify the applicant and the proceeding for which an award is 
sought. Two copies of the application shall be filed with the 
adjudicative officer. The application shall show that the applicant has 
prevailed and identify the position of the Department in the proceeding 
that the applicant alleges was not substantially justified.
    (b) The application shall include a statement that the applicant's 
net worth at the time the proceeding was initiated did not exceed $1 
million if the applicant is an individual (other than a sole owner of an 
unincorporated business seeking an award in that capacity) or $5 million 
in the case of all other applicants. An applicant may omit this 
statement if:
    (1) It attaches a copy of a ruling by the Internal Revenue Service 
that it qualifies as an organization described in section 501(c)(3) of 
the Internal Revenue Code of 1954 (26 U.S.C. 501(c)(3) and is exempt 
from taxation under section 501(a) of the Code or in the case of an 
organization not required to obtain a ruling from the Internal Revenue 
Service on its exempt status, a statement that describes the basis for 
the applicant's belief that it qualifies under section 501(c)(3) of the 
Code; or
    (2) It states that it is a cooperative association as defined in 
section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)).
    (c) If the applicant is a partnership, corporation, association, or 
public or private organization (including charitable or other tax exempt 
organizations or cooperative associations) or a sole owner of an 
unincorporated business, the application shall state that it did not 
have more than 500 employees at the time the proceeding was initiated, 
giving the number of its employees and describing briefly the type and 
purpose of its organization or business.
    (d) The application shall itemize the amount of fees and expenses 
for which an award is sought.
    (e) The application may include any other matters that the applicant 
believes should be considered in determining whether and in what amount 
an award should be made.
    (f) The application shall be signed by the applicant or an 
authorized officer of the applicant. The application shall contain or be 
accompanied by a written verification under oath or affirmation under 
penalty of perjury that the information provided in the application and 
all accompanying material is true and complete to the best of the 
signer's information and belief.



Sec. 4.609  Net worth exhibit.

    (a) Each application except a qualified tax-exempt organization or a 
qualified cooperative association must submit with its application a 
detailed exhibit showing its net worth at the time the proceeding was 
initiated. If any individual, corporation, or other entity directly or 
indirectly controls or owns a majority of the voting shares or other 
interest of the applicant, or if the applicant directly or indirectly 
owns or controls a majority of the voting shares or other interest of 
any corporation or other entity, the exhibit must include a showing of 
the net worth of all such affiliates or of the applicant including the 
affiliates. The exhibit may be in any form convenient to the applicant, 
provided that it makes full disclosure of the applicant's and all 
affiliates' assets and liabilities and is sufficient to determine 
whether the applicant qualifies under the standards

[[Page 111]]

of 5 U.S.C. 504(b)(1)(B)(i). The adjudicative officer may require an 
applicant to file additional information to determine the applicant's 
eligibility for an award.
    (b) The net worth exhibit shall describe any transfers of assets 
from, or obligations incurred by, the applicant or any affiliate, 
occurring in the one-year period to the date on which the proceeding was 
initiated, that reduced the net worth of the applicant and its 
affiliates below the applicable net worth ceiling. If there were no such 
transactions, the exhibit shall so state.
    (c) Ordinarily, the net worth exhibit shall be included in the 
public record of the proceeding. However, an applicant that objects to 
public disclosure of information in any portion of the exhibit and 
believes there are legal grounds for withholding it from disclosure may 
submit that portion of the exhibit directly to the adjudicative officer 
in a sealed envelope labeled ``Confidential Financial Information,'' 
accompanied by a motion to withhold the information from public 
disclosure. The motion shall describe the information sought to be 
withheld and explain, in detail, why it falls within one or more of the 
specific exemptions from mandatory disclosure under the Freedom of 
Information Act, 5 U.S.C. 552, and whether it is covered by the Trade 
Secrets Act, 18 U.S.C. 1905, or other applicable statutes; why public 
disclosure of the information would adversely affect the applicant; and 
why disclosure is not required in the public interest. The material in 
question shall also be served on counsel representing the agency against 
which the applicant seeks an award, but need not be served on any other 
party to the proceeding. If the adjudicative officer finds that the 
information should not be withheld from disclosure, it shall be placed 
in the public record of the proceeding. Otherwise, any request to 
inspect or copy the exhibit shall be disposed of in accordance with the 
Department's established procedures under the Freedom of Information 
Act, 43 CFR 2.11 et. seq.



Sec. 4.610  Documentation of fees and expenses.

    (a) The application shall be accompanied by full documentation of 
the fees and expenses, including the cost of any study, analysis, 
engineering report, test, or project, for which an award is sought.
    (b) The documentation shall include an affidavit from each 
professional firm or individual whose services are covered by the 
application, stating the actual time expended and the rate at which fees 
and other expenses were computed and/or charged and describing the 
specific services performed.
    (1) The affidavit shall itemize in detail the services performed by 
the date, number of hours per date, and the services performed during 
those hours. In order to establish the hourly rate, the affidavit shall 
state the hourly rate billed to and paid by the majority of clients 
during the relevant time periods.
    (2) If no hourly rate is paid by the majority of clients because, 
for instance, the attorney or agent represents most clients on a 
contingency basis, the attorney or agent shall provide affidavits from 
two attorneys or agents with similar experience, who perform similar 
work in the same or similar geographic location, stating the hourly rate 
which they bill and are paid by the majority of their clients during a 
comparable time period.
    (c) The documentation shall also include a description of any 
expenses for which reimbursement is sought and a statement of the 
amounts paid and payable by the applicant or by any other person or 
entity for the services provided.
    (d) The adjudicative officer may require the applicant to provide 
vouchers, receipts, or other substantiation for any expenses claimed.



Sec. 4.611  Time for submission of application.

    (a) An application must be filed no later than 30 days after final 
disposition of the proceeding. Action on an application for an award of 
fees or

[[Page 112]]

other expenses filed prior to final disposition of the proceeding shall 
be stayed pending such final disposition.
    (b) Final disposition means the later of (1) the date on which the 
final Department decision is issued; or (2) the date of the order which 
finally resolves the proceeding, such as an order approving settlement 
or voluntary dismissal.

                 Procedures for Considering Applications



Sec. 4.612  Filing and service of documents.

    Any application for an award and any other pleading or document 
related to an application shall be filed with the adjudicative officer 
and serve on all parties to the proceeding in the same manner as other 
pleadings in the proceeding, except as provided in Sec. 4.609(c) for 
confidential financial information.



Sec. 4.613  Answer to application.

    (a) Within 30 calendar days after service of an application, the 
Department shall file an answer. If the Department fails to answer or 
otherwise fails to contest or settle the application, the adjudicative 
officer may, upon a satisfactory showing of entitlement by the 
applicant, make an award for the applicant's fees and other expenses 
under 5 U.S.C. 504 in accordance with Sec. 4.616.
    (b) If the Department and the applicant believe that they can reach 
a settlement concerning the award, the Department and the applicant may 
jointly file a statement of their intent to negotiate. The filing of 
such a statement shall extend the time for filing an answer for an 
additional 30 days from the date of filing of the statement. Further 
extensions may be granted by the adjudicative officer upon the joint 
request of the Department and the applicant.
    (c) The answer shall explain in detail any objections to the award 
requested and identify the facts relied on to support the objection. If 
the answer is based on any alleged facts not already reflected in the 
record of the proceeding, the Department shall include with the answer 
either a supporting affidavit or a request for further proceedings.



Sec. 4.614  Settlement.

    An applicant and the Department may agree on a proposed settlement 
of an award before final action on the application, either in connection 
with a settlement of the underlying proceeding, or after the underlying 
proceeding has been concluded. If the applicant and the Department agree 
on a proposed settlement of an award before an applicant has been filed, 
the application shall be filed with the proposed settlement.



Sec. 4.615  Extensions of time and further proceedings.

    (a) The adjudicative officer may on motion and for good cause shown 
grant extensions of time other than for filing an application for fees 
and expenses after final disposition in the adversary adjudication.
    (b) Ordinarily, the determination of an award will be made on the 
basis of the written record of the underlying proceeding and the filings 
required or permitted by the foregoing sections of these rules. However, 
the adjudicative officer may, sua sponte, or on motion of any party to 
the proceedings require or permit further proceedings, such as informal 
conferences, oral argument, additional written submissions or an 
evidentiary hearing. Such further proceedings shall be held only when 
necessary for full and fair resolution of the issues arising from the 
application and shall be conducted as promptly as possible. A motion for 
further proceedings shall specifically identify the information sought 
on the disputed issues and shall explain why the further proceedings are 
necessary to resolve the issues.



Sec. 4.616  Decision on application.

    The adjudicative officer shall promptly issue a decision on the 
application which shall include proposed written findings and 
conclusions, and the reasons or basis therefore, on such of the 
following as are relevant to the decision:
    (a) The applicant's status as a prevailing party;

[[Page 113]]

    (b) The applicant's qualification as a ``party'' under 5 U.S.C. 
504(b)(1)(B);
    (c) Whether the Department's position as a party to the proceeding 
was substantially justified;
    (d) Whether special circumstances make an award unjust;
    (e) Whether the applicant during the course of the proceedings 
engaged in conduct that unduly and unreasonably protracted the final 
resolution of the matter in controversy; and
    (f) The amounts, if any, awarded for fees and other expenses, with 
reasons for any difference between the amount requested and the amount 
awarded. If neither the applicant nor the Department appeals within 30 
days from receipt of the adjudicative officer's decision, this decision 
will be the final Departmental decision.



Sec. 4.617  Appeals Board review.

    If review is sought by the applicant or the Department, the decision 
of the adjudicative officer will be reviewed by the appropriate appeals 
board in accordance with the Department's procedures for the type of 
underlying proceeding involved. The appeals board will then issue the 
final Departmental decision on the application.



Sec. 4.618  Judicial review.

    Judicial review of final Departmental decisions on awards may be 
sought as provided in 5 U.S.C. 504(c)(2).



Sec. 4.619  Payment of award.

    An applicant seeking payment of an award shall submit a copy of the 
final decision granting the award to the Assistant Secretary for Policy, 
Budget and Administration, U.S. Department of the Interior, Washington, 
DC 20240. A statement that review of the underlying decision is not 
being sought in the United States courts, or that the process for 
seeking review of the award has been completed, must also be included.



    Subpart G--Special Rules Applicable to Other Appeals and Hearings

    Authority: 5 U.S.C. 301.



Sec. 4.700  Who may appeal.

    Any party aggrieved by an adjudicatory action or decision of a 
Departmental official relating to rights or privileges based upon law in 
any case or proceeding in which Departmental regulations allow a right 
of appeal to the head of the Department from such action or decision, 
should direct his appeal to the Director, Office of Hearings and 
Appeals, if the case is not one which lies within the appellate review 
jurisdiction of an established Appeals Board and is not excepted from 
the review authority delegated to the Director. No appeal will lie when 
the action of the Departmental official was based solely upon 
administrative or discretionary authority of such official.

[36 FR 7186, Apr. 15, 1971; 36 FR 7588, Apr. 22, 1971]



Sec. 4.701  Notice of appeal.

    The appellant shall file a written notice of appeal, signed by him 
or by his attorney or other qualified representative, in the Office of 
the Director, within 30 days from the date of mailing of the decision 
from which the appeal is taken. The notice shall contain an 
identification of the action or decision appealed from and give a 
concise but complete statement of the facts relied upon and the relief 
sought. The appellant shall mail a copy of the notice of appeal, any 
accompanying statement of reasons therefor, and any written arguments or 
briefs, to each party to the proceedings or whose rights are involved in 
the case, and to the Departmental official whose action or decision is 
being appealed. The notice of appeal shall contain a certificate setting 
forth the names of the parties served, their addresses, and the dates of 
mailing.



Sec. 4.702  Transmittal of appeal file.

    Within 10 days after receipt of a copy of the notice of appeal, the 
Departmental official whose action or decision is being appealed shall 
transmit to the Office of the Director the entire official file in the 
matter, including all records, documents, transcripts of testimony, and 
other information compiled during the proceedings leading to the 
decision being appealed.

[[Page 114]]



Sec. 4.703  Pleadings.

    If the parties wish to file briefs, they must comply with the 
following requirements: Appellant shall have 30 days from the date of 
filing of his notice of appeal within which to file an opening brief, 
and the opposing parties shall have 30 days from the date of receipt of 
appellant's brief in which to file an answering brief. Additional or 
rebuttal briefs may be filed upon permission first obtained from the 
Director or the Ad Hoc Appeals Board appointed by him to consider and 
decide the particular appeal. Copies of all briefs shall be served upon 
all other parties or their attorneys of record or other qualified 
representatives, and a certificate to that effect shall be filed with 
said brief.

[36 FR 7186, Apr. 15, 1971; 36 FR 7588, Apr. 22, 1971]



Sec. 4.704  Decisions on appeals.

    The Director, or an Ad Hoc Appeals Board appointed by the Director 
to consider and decide the particular appeal, will review the record and 
take such action as the circumstances call for. The Director or the Ad 
Hoc Appeals Board may direct a hearing on the entire matter or specified 
portions thereof, may decide the appeal forthwith upon the record 
already made, or may make other disposition of the case. Upon request 
and for good cause shown, the Director or an Ad Hoc Appeals Board may 
grant an opportunity for oral argument. Any hearing on such appeals 
shall be conducted by the Ad Hoc Appeals Board or a member or members 
thereof, or by an administrative law judge of the Office of Hearings and 
Appeals and shall be governed insofar as practicable by the regulations 
applicable to other hearings under this part.

[36 FR 7186, Apr. 15, 1971, as amended at 39 FR 2366, Jan. 21, 1974]

Subpart H [Reserved]



Subpart I--Special Procedural Rules Applicable to Practice and Procedure
 
for Hearings, Decisions, and Administrative Review Under Part 17 of This 
     Title--Nondiscrimination in Federally Assisted Programs of the 
Department of the Interior--Effectuation of Title VI of the Civil Rights 
                               Act of 1964

    Authority: 43 CFR 17.8 and 5 U.S.C. 301.

    Source: 38 FR 21162, Aug. 6, 1973, unless otherwise noted.

    Cross Reference: See subpart A for the organization, authority and 
jurisdiction of the Office of Hearings and Appeals, including its 
Hearings Division. To the extent they are not inconsistent with these 
special rules, the general rules applicable to all types of proceedings 
before the Hearings Division and the several Appeals Boards of the 
Office of Hearings and Appeals, contained in subpart B of this part, are 
applicable also to proceedings under these regulations.

                                 General



Sec. 4.800  Scope and construction of rules.

    (a) The rules of procedure in this subpart I supplement part 17 of 
this title and are applicable to the practice and procedure for 
hearings, decisions, and administrative review conducted by the 
Department of the Interior, pursuant to title VI of the Civil Rights Act 
of 1964 (section 602, 42 U.S.C. 2000d-1) and part 17 of this title, 
concerning nondiscrimination in Federally-assisted programs in 
connection with which Federal financial assistance is extended under 
laws administered in whole or in part by the Department of the Interior.
    (b) These regulations shall be liberally construed to secure the 
just, prompt, and inexpensive determination of all proceedings 
consistent with adequate consideration of the issues involved and full 
protection of the rights of all interested parties including the 
Government.

[[Page 115]]



Sec. 4.801  Suspension of rules.

    Upon notice to all parties, the responsible Department official or 
the administrative law judge, with respect to matters pending before 
him, may modify or waive any rule in this part upon his determination 
that no party will be unduly prejudiced and the ends of justice will 
thereby be served.



Sec. 4.802  Definitions.

    (a) The definitions set forth in Sec. 17.12 of this title apply also 
to this subpart.
    (b) Director means the Director, Office for Equal Opportunity, 
Department of the Interior.
    (c) Administrative law judge means an administrative law judge 
designated by the Office of Hearings and Appeals, Office of the 
Secretary, in accordance with 5 U.S.C. 3105 and 3344.
    (d) Notice means a notice of hearing in a proceeding instituted 
under Part 17 of this title and these regulations.
    (e) Party means a recipient or applicant; the Director; and any 
person or organization participating in a proceeding pursuant to 
Sec. 4.808.



Sec. 4.803  Computation of time.

    Except as otherwise provided by law, in computing any period of time 
under these rules or in any order issued hereunder, the time begins with 
the day following the act or event, and includes the last day of the 
period, unless it is a Saturday, Sunday, or Federal legal holiday, or 
other nonbusiness day, in which event it includes the next following day 
which is not a Saturday, Sunday, Federal legal holiday, or other 
nonbusiness day. When the period of time prescribed or allowed is 7 days 
or less, intermediate Saturdays, Sundays, Federal legal holidays and 
other nonbusiness days shall be excluded in the computation.



Sec. 4.804  Extensions of time.

    A request for extension of time should be made to the designated 
administrative law judge or other appropriate Departmental official with 
respect to matters pending before him. Such request shall be served on 
all parties and set forth the reasons for the request. Extensions may be 
granted upon a showing of good cause by the applicant. Answers to such 
requests are permitted if made promptly.



Sec. 4.805  Reduction of time to file documents.

    For good cause, the responsible Departmental official or the 
administrative law judge, with respect to matters pending before him, 
may reduce any time limit prescribed by the rules in this part, except 
as provided by law or in part 17 of this title.

      Designation and Responsibilities of Administrative Law Judge



Sec. 4.806  Designation.

    Hearings shall be held before an administrative law judge designated 
by the Office of Hearings and Appeals.



Sec. 4.807  Authority and responsibilities.

    The administrative law judge shall have all powers necessary to 
preside over the parties and the proceedings, conduct the hearing, and 
make decisions in accordance with 5 U.S.C. 554 through 557. His powers 
shall include, but not be limited to, the power to:
    (a) Hold conferences to settle, simplify, or fix the issues in a 
proceeding, or to consider other matters that may aid in the expeditious 
disposition of the proceeding.
    (b) Require parties to state their position with respect to the 
various issues in the proceedings.
    (c) Establish rules for media coverage of the proceedings.
    (d) Rule on motions and other procedural items in matters before 
him.
    (e) Regulate the course of the hearing, the conduct of counsel, 
parties, witnesses, and other participants.
    (f) Administer oaths, call witnesses on his own motion, examine 
witnesses, and direct witnesses to testify.
    (g) Receive, rule on, exclude, or limit evidence.
    (h) Fix time limits for submission of written documents in matters 
before him.
    (i) Take any action authorized by these regulations, by 5 U.S.C. 
556, or by other pertinent law.

[[Page 116]]

                         Appearance and Practice



Sec. 4.808  Participation by a party.

    Subject to the provisions contained in part 1 of this subtitle, a 
party may appear in person, by representative, or by counsel, and 
participate fully in any proceeding held pursuant to part 17 of this 
title and these regulations. A State agency or any instrumentality 
thereof, a political subdivision of the State or instrumentality 
thereof, or a corporation may appear by any of its officers or employees 
duly authorized to appear on its behalf.



Sec. 4.809  Determination of parties.

    (a) The affected applicant or recipient to whom a notice of hearing 
or a notice of an opportunity for hearing has been mailed in accordance 
with part 17 of this title and Sec. 4.815, and the Director, are the 
initial parties to the proceeding.
    (b) Other persons or organizations shall have the right to 
participate as parties if the final decision could directly and 
adversely affect them or the class they represent, and if they may 
contribute materially to the disposition of the proceedings.
    (c) A person or organization wishing to participate as a party under 
this section shall submit a petition to the administrative law judge 
within 15 days after the notice has been served. The petition should be 
filed with the administrative law judge and served on the affected 
applicant or recipient, on the Director, and on any other person or 
organization who has been made a party at the time of filing. Such 
petition shall concisely state: (1) Petitioner's interest in the 
proceeding, (2) how his participation as a party will contribute 
materially to the disposition of the proceeding, (3) who will appear for 
petitioner, (4) the issues on which petitioner wishes to participate, 
and (5) whether petitioner intends to present witnesses.
    (d) The administrative law judge shall promptly ascertain whether 
there are objections to the petition. He shall then determine whether 
petitioners have the requisite interest to be a party in the 
proceedings, as defined in paragraphs (a) and (b) of this section, and 
shall permit or deny participation accordingly. Where petitions to 
participate as parties are made by individuals or groups with common 
interests, the administrative law judge may request all such petitioners 
to designate a single representative, or he may recognize one or more of 
such petitioners to represent all such petitioners. The administrative 
law judge shall give each such petitioner written notice of the decision 
on his petition. If the petition is denied, he shall briefly state the 
grounds for denial and shall then treat the petition as a request for 
participation as amicus curiae. The administrative law judge shall give 
written notice to each party of each petition granted.
    (e) Persons or organizations whose petition for party participation 
is denied may appeal the decision to the Director, Office of Hearings 
and Appeals, within 7 days of receipt of denial. The Director, Office of 
Hearings and Appeals, will make the final decision for the Department to 
grant or deny the petition.



Sec. 4.810  Complainants not parties.

    A person submitting a complaint pursuant to Sec. 17.6 of this title 
is not a party to the proceedings governed by part 17 of this title and 
these regulations, but may petition, after proceedings are initiated, to 
become an amicus curiae. In any event a complainant shall be advised of 
the time and place of the hearing.



Sec. 4.811  Determination and participation of amici.

    (a) Any interested person or organization wishing to participate as 
amicus curiae in the proceeding shall file a petition before the 
commencement of the hearing. Such petition shall concisely state the 
petitioner's interest in the hearing and who will represent petitioner.
    (b) The administrative law judge will grant the petition if he finds 
that the petitioner has an interest in the proceedings and may 
contribute materially to the disposition of the proceedings. The 
administrative law judge shall give the petitioner written notice of the 
decision on his petition.
    (c) An amicus curiae is not a party and may not introduce evidence 
at a hearing but may only participate as

[[Page 117]]

provided in paragraph (d) of this section.
    (d) An amicus curiae may submit a written statement of position to 
the administrative law judge at any time prior to the beginning of a 
hearing, and shall serve a copy on each party. He may also file a brief 
or written statement on each occasion a decision is to be made or a 
prior decision is subject to review. His brief or written statement 
shall be filed and served on each party within the time limits 
applicable to the party whose position he deems himself to support; or 
if he does not deem himself to support the position of any party, within 
the longest time limit applicable to any party at that particular stage 
of the proceedings.
    (e) When all parties have completed their initial examination of a 
witness, any amicus curiae may request the administrative law judge to 
propound specific questions to the witness. The administrative law 
judge, in his discretion, may grant any such request if he believes the 
proposed additional testimony may assist materially in elucidating 
factual matters at issue between the parties and will not expand the 
issues.

                      Form and Filing of Documents



Sec. 4.812  Form.

    Documents filed pursuant to a proceeding herein shall show the 
docket description and title of the proceeding, the party or amicus 
submitting the document, the dates signed, and the title, if any, and 
address of the signatory. The original will be signed in ink by the 
party representing the party or amicus. Copies need not be signed, but 
the name of the person signing the original shall be reproduced.



Sec. 4.813  Filing and service.

    (a) All documents submitted in a proceeding shall be served on all 
parties. The original and two copies of each document shall be submitted 
for filing. Filings shall be made with the administrative law judge or 
other appropriate Departmental official before whom the proceeding is 
pending. With respect to exhibits and transcripts of testimony, only 
originals need be filed.
    (b) Service upon a party or amicus shall be made by delivering one 
copy of each document requiring service in person or by certified mail, 
return receipt requested, properly addressed with postage prepaid, to 
the party or amicus or his attorney, or designated representative. 
Filing will be made in person or by certified mail, return receipt 
requested, to the administrative law judge or other appropriate 
Departmental official before whom the proceeding is pending.
    (c) The date of filing or of service shall be the day when the 
matter is deposited in the U.S. mail or is delivered in person.



Sec. 4.814  Certificate of service.

    The original of every document filed and required to be served upon 
parties shall be endorsed with a certificate of service signed by the 
party or amicus curiae making service or by his attorney or 
representative, stating that such service has been made, the date of 
service, and the manner of service.

                               Procedures



Sec. 4.815  How proceedings are commenced.

    Proceedings are commenced by the Director by mailing to an applicant 
or recipient a notice of alleged noncompliance with the Act and the 
regulations thereunder. The notice shall include either a notice of 
hearing fixing a date therefor or a notice of an opportunity for a 
hearing as provided in Sec. 17.8 of this title. The notice shall advise 
the applicant or recipient of the action proposed to be taken, the 
specific provisions of part 17 of this title under which the proposed 
action is to be taken, and the matters of fact or law asserted as the 
basis of the action.



Sec. 4.816  Notice of hearing and response thereto.

    A notice of hearing shall fix a date not less than 30 days from the 
date of service of the notice of a hearing on matters alleged in the 
notice. If the applicant recipient does not desire a hearing, he should 
so state in writing, in which case the applicant or recipient

[[Page 118]]

shall have the right to further participate in the proceeding. Failure 
to appear at the time set for a hearing, without good cause, shall be 
deemed a waiver of the right to a hearing under section 602 of the Act 
and the regulations thereunder and consent to the making of a decision 
on such information as is available which may be presented for the 
record.



Sec. 4.817  Notice of opportunity to request a hearing and response thereto.

    A notice of opportunity to request a hearing shall set a date not 
less than 20 days from service of said notice within which the applicant 
or recipient may file a request for a hearing, or may waive a hearing 
and submit written information and argument for the record, in which 
case, the applicant or recipient shall have the right to further 
participate in the proceeding. When the applicant or recipient elects to 
file a request for a hearing, a time shall be set for the hearing at a 
date not less than 20 days from the date applicant or recipient is 
notified of the date set for the hearing. Failure of the applicant or 
recipient to request a hearing or to appear at the date set shall be 
deemed a waiver of the right to a hearing, under section 602 of the Act 
and the regulations thereunder and consent to the making of a decision 
on such information as is available which may be presented for the 
record.



Sec. 4.818  Answer.

    In any case covered by Sec. 4.816 or Sec. 4.817, the applicant or 
recipient shall file an answer. Said answer shall admit or deny each 
allegation of the notice, unless the applicant or recipient is without 
knowledge, in which case the answer shall so state, and the statement 
will be considered a denial. Failure to file an answer shall be deemed 
an admission of all allegations of fact in the notice. Allegations of 
fact in the notice not denied or controverted by answer shall be deemed 
admitted. Matters alleged in the answer as affirmative defenses shall be 
separately stated and numbered. The answer under Sec. 4.816 shall be 
filed within 20 days from the date of service of the notice of hearing. 
The answer under Sec. 4.817 shall be filed within 20 days of service of 
the notice of opportunity to request a hearing.



Sec. 4.819  Amendment of notice or answer.

    The Director may amend the notice of hearing or opportunity for 
hearing once as a matter of course before an answer is filed, and each 
respondent may amend his answer once as a matter of course not later 
than 10 days before the date fixed for hearing but in no event later 
than 20 days from the date of service of his original answer. Other 
amendments of the notice or of the answer to the notice shall be made 
only by leave of the administrative law judge. An amended notice shall 
be answered within 10 days of its service, or within the time for filing 
an answer to the original notice, whichever period is longer.



Sec. 4.820  Consolidated or joint hearings.

    As provided in Sec. 17.8(e) of this title, the Secretary may provide 
for proceedings in the Department to be joined or consolidated for 
hearing with proceedings in other Federal departments or agencies, by 
agreement with such other departments or agencies. All parties to any 
proceedings consolidated subsequently to service of the notice of 
hearing or opportunity for hearing shall be promptly served with notice 
of such consolidation.



Sec. 4.821  Motions.

    Motions and petitions shall state the relief sought, the basis for 
relief and the authority relied upon. If made before or after the 
hearing itself, these matters shall be in writing. If made at the 
hearing, they may be stated orally; but the administrative law judge may 
require that they be reduced to writing and filed and served on all 
parties. Within 8 days after a written motion or petition is served, any 
party may file a response to a motion or petition. An immediate oral 
response may be made to an oral motion. Oral argument on motions will be 
at the discretion of the administrative law judge.



Sec. 4.822  Disposition of motions.

    The administrative law judge may not grant a written motion or 
petition

[[Page 119]]

prior to expiration of the time for filing responses thereto, but may 
overrule or deny such motion or petition without awaiting response: 
Provided, however, That prehearing conferences, hearings, and decisions 
need not be delayed pending disposition of motions or petitions. Oral 
motions and petitions may be ruled on immediately.



Sec. 4.823  Interlocutory appeals.

    Except as provided in Sec. 4.809(e), a ruling of the administrative 
law judge may not be appealed to the Director, Office of Hearings and 
Appeals, prior to consideration of the entire proceeding by the 
administrative law judge unless permission is first obtained from the 
Director, Office of Hearings and Appeals, and the administrative law 
judge has certified the interlocutory ruling on the record or abused his 
discretion in refusing a request to so certify. Permission will not be 
granted except upon a showing that the ruling complained of involves a 
controlling question of law and that an immediate appeal therefrom may 
materially advance the final decision. An interlocutory appeal shall not 
operate to suspend the hearing unless otherwise ordered by the Director, 
Office of Hearings and Appeals. If an appeal is allowed, any party may 
file a brief within such period as the Director, Office of Hearings and 
Appeals, directs. Upon affirmance, reversal, or modification of the 
administrative law judge's interlocutory ruling or order, by the 
Director, Office of Hearings and Appeals, the case will be remanded 
promptly to the administrative law judge for further proceedings.



Sec. 4.824  Exhibits.

    Proposed exhibits shall be exchanged at the prehearing conference, 
or otherwise prior to the hearing, if the administrative law judge so 
directs. Proposed exhibits not so exchanged in accordance with the 
administrative law judge's order may be denied admission as evidence. 
The authenticity of all exhibits submitted prior to the hearing, under 
direction of the administrative law judge, will be deemed admitted 
unless written objection thereto is filed and served on all parties, or 
unless good cause is shown for failure to file such written objection.



Sec. 4.825  Admissions as to facts and documents.

    Not later than 15 days prior to the date of the hearing any party 
may serve upon an opposing party a written request for the admission of 
the genuineness and authenticity of any relevant documents described in, 
and exhibited with, the request, or for the admission of the truth of 
any relevant matters of fact stated in the request. Each of the matters 
as to which an admission is requested shall be deemed admitted, unless 
within a period of 10 days, the party to whom the request is directed 
serves upon the requesting party a statement either (a) denying 
specifically the matters as to which an admission is requested, or (b) 
setting forth in detail the reasons why he cannot truthfully either 
admit or deny such matters.



Sec. 4.826  Discovery.

    (a) Methods. Parties may obtain discovery as provided in these rules 
by depositions, written interrogatories, production of documents, or 
other items; or by permission to enter property, for inspection and 
other purposes.
    (b) Scope. Parties may obtain discovery regarding any matter, not 
privileged, which is relevant to the subject matter involved in the 
hearing.
    (c) Protective orders. Upon motion by a party or by the person from 
whom discovery is sought, and for good cause shown, the administrative 
law judge may make any order which justice requires to limit or 
condition discovery in order to protect a party or person from 
annoyance, embarrassment, oppression, or undue burden or expense.
    (d) Sequence and timing. Methods of discovery may be used in any 
sequence. The fact that a party is conducting discovery shall not 
operate to delay any other party's discovery.
    (e) Time limit. Discovery by all parties will be completed within 
such time as the administrative law judge directs, from the date the 
notice of hearing is served on the applicant or recipient.

[[Page 120]]



Sec. 4.827  Depositions.

    (a) A party may take the testimony of any person, including a party, 
by deposition upon oral examination. This may be done by stipulation or 
by notice, as set forth in paragraph (b) of this section. On motion of 
any party or other person upon whom the notice is served, the 
administrative law judge may for cause shown enlarge or shorten the time 
for the deposition, change the place of the deposition, limit the scope 
of the deposition or quash the notice. Depositions of persons other than 
parties or their representatives shall be upon consent of the deponent.
    (b)(1) The party will give reasonable notice in writing to every 
other party of the time and place for taking depositions, the name and 
address of each person to be examined, if known, or a general 
description sufficient to identify him or the particular class or group 
to which he belongs.
    (2) The notice to a deponent may be accompanied by a request for the 
production of documents and tangible things at the taking of the 
deposition.
    (3) A party may name as the deponent a corporation, partnership, 
association, or governmental agency and may designate a particular 
person within the organization whose testimony is desired and the 
matters on which examination is requested. If no particular person is 
named, the organization shall designate one or more agents to testify on 
its behalf, and may set forth the matters on which each will testify. 
The persons so designated shall testify as to matters known or 
reasonably available to the organization.
    (c) Examination and cross-examination of witnesses may proceed as 
permitted at the hearing. The witness shall be placed under oath by a 
disinterested person qualified to administer oaths by the laws of the 
United States or of the place where the examination is held, and the 
testimony taken by such person shall be recorded verbatim.
    (d) During the taking of a deposition a party or deponent may 
request suspension of the deposition on grounds of bad faith in the 
conduct of the examination, annoyance, embarrassment, oppression of a 
deponent or party or improper questions propounded. The deposition will 
then be adjourned. However, the objecting party or deponent must 
immediately move the administrative law judge for a ruling on his 
objections to the deposition conduct or proceedings. The administrative 
law judge may then limit the scope or manner of the taking of the 
deposition.
    (e) The officer shall certify the deposition and promptly file it 
with the administrative law judge. Documents or true copies of documents 
and other items produced for inspection during the examination of the 
witness shall, upon the request of a party, be marked for identification 
and annexed to the deposition.
    (f) The party taking the deposition shall give prompt notice of its 
filing to all other parties.



Sec. 4.828  Use of depositions at hearing.

    (a) Any part or all of a deposition so far as admissible under 
Sec. 4.835 applied as though the witness were then present and 
testifying, may be used against any party who was present or represented 
at the taking of the deposition or who had reasonable notice thereof as 
follows:
    (1) Any deposition may be used for contradiction or impeachment of 
the deponent as a witness.
    (2) The deposition of a party, or of an agent designated to testify 
on behalf of a party, may be used by an adverse party for any purpose.
    (3) The deposition of any witness may be used for any purpose if the 
party offering the deposition has been unable to procure the attendance 
of the witness because he is dead; or if the witness is at a greater 
distance than 100 miles from the place of hearing, or is out of the 
United States, unless it appears that the absence of the witness was 
procured by the party offering the deposition; or if the witness is 
unable to attend or testify because of age, illness, infirmity, or 
imprisonment; or, upon application and notice, that such exceptional 
circumstances exist as to make it desirable, in the interest of justice 
and with due regard to the importance of presenting the testimony of 
witnesses orally in open hearing, to allow the deposition to be used.

[[Page 121]]

    (b) If only part of a deposition is offered in evidence, the 
remainder becomes subject to introduction by any party.
    (c) Objection may be made at the hearing to receiving in evidence 
any deposition or part thereof for any reason which would require the 
exclusion of the evidence if the witness were then present and 
testifying.



Sec. 4.829  Interrogatories to parties.

    (a) Any party may serve upon any other party written interrogatories 
after the notice of hearing has been filed. If the party served is a 
corporation, partnership, association, or governmental agency, an agent 
shall furnish such information as is available to the party.
    (b) Each interrogatory shall be answered separately and fully in 
writing under oath, unless it is objected to, in which event the 
objection shall be stated in lieu of an answer. The answers are to be 
signed by the person making them, and the objections signed by the 
attorney or other representative making them. Answers and objections 
shall be made within 30 days after the service of the interrogatories. 
The party submitting the interrogatories may move for an order under 
Sec. 4.831 with respect to any objection to or other failure to answer 
an interrogatory.
    (c) Interrogatories shall relate to any matter not privileged which 
is relevant to the subject matter of the hearing.



Sec. 4.830  Production of documents and things and entry upon land for inspection and other purposes.

    (a) After the notice of hearing has been filed, any party may serve 
on any other party a request to produce and/or permit the party, or 
someone acting on his behalf, to inspect and copy any designated 
documents, phonorecords, and other data compilations from which 
information can be obtained and which are in the possession, custody, or 
control of the party upon whom the request is served. If necessary, 
translation of data compilations shall be done by the party furnishing 
the information.
    (b) After the notice of hearing has been filed, any party may serve 
on any other party a request to permit entry upon designated property in 
the possession or control of the party upon whom the request is served 
for the purpose of inspection, measuring, surveying or photographing, 
testing, or sampling the property or any designated object.
    (c) Each request shall set forth with reasonable particularity the 
items to be inspected and shall specify a reasonable time, place, and 
manner of making the inspection and performing the related acts.
    (d) The party upon whom the request is served shall respond within 
15 days after the service of the request. The response shall state, with 
respect to each item, that inspection and related activities will be 
permitted as requested, unless there are objections in which case the 
reasons for each objection shall be stated. The party submitting the 
request may move for an order under Sec. 4.831 with respect to any 
objection to or other failure to respond.



Sec. 4.831  Sanctions.

    (a) A party, upon reasonable notice to other parties and all persons 
affected thereby, may move for an order as follows:
    (1) If a deponent fails to answer a question propounded or submitted 
under Sec. 4.827(c), or a corporation or other entity fails to make a 
designation under Sec. 4.827(b)(3), or a party fails to answer an 
interrogatory submitted under Sec. 4.829, or if a party, under 
Sec. 4.830 fails to respond that inspection will be permitted or fails 
to permit inspection, the discovering party may move for an order 
compelling an answer, a designation, or inspection.
    (2) An evasive or incomplete answer is to be treated as a failure to 
answer.
    (b) If a party or an agent designated to testify fails to obey an 
order to permit discovery, the administrative law judge may make such 
orders as are just, including:
    (1) That the matters regarding which the order was made or any other 
designated facts shall be established in accordance with the claim of 
the party obtaining the order;
    (2) Refusing to allow the disobedient party to support or oppose 
designated claims or defenses, or prohibiting him from introducing 
designated matters in evidence.

[[Page 122]]

    (c) If a party or an agent designated to testify fails after proper 
service (1) to appear for his deposition, (2) to serve answers or 
objections to interrogatories submitted under Sec. 4.829 or (3) to serve 
a written response to a request for inspection, submitted under 
Sec. 4.830, the administrative law judge on motion may make such orders 
as are just, including those authorized under paragraphs (b) (1) and (2) 
of this section.



Sec. 4.832  Consultation and advice.

    (a) The administrative law judge shall not consult any person, or 
party, on any fact in issue or on the merits of the matter before him 
unless upon notice and opportunity for all parties to participate.
    (b) No employee or agent of the Federal Government engaged in the 
investigation and prosecution of a proceeding governed by these rules 
shall participate or advise in the rendering of any recommended or final 
decision, except as witness or counsel in the proceeding.

[38 FR 21162, Aug. 6, 1973, as amended at 50 FR 43706, Oct. 29, 1985]

                               Prehearing



Sec. 4.833  Prehearing conferences.

    (a) Within 15 days after the answer has been filed, the 
administrative law judge will establish a prehearing conference date for 
all parties including persons or organizations whose petition requesting 
party status has not been ruled upon. Written notice of the prehearing 
conference shall be sent by the administrative law judge.
    (b) At the prehearing conference the following matters, among 
others, shall be considered: (1) Simplification and delineation of the 
issues to be heard; (2) stipulations; (3) limitation of number of 
witnesses; and exchange of witness lists; (4) procedure applicable to 
the proceeding; (5) offers of settlement; and (6) scheduling of the 
dates for exchange of exhibits. Additional prehearing conferences may be 
scheduled at the discretion of the administrative law judge, upon his 
own motion or the motion of a party.

                                 Hearing



Sec. 4.834  Purpose.

    (a) The hearing is directed primarily to receiving factual evidence 
and expert opinion testimony related to the issues in the proceeding. A 
hearing will be held only in cases where issues of fact must be resolved 
in order to determine whether the applicant or recipient has failed to 
comply with one or more applicable requirements of title VI of the Civil 
Rights Act of 1964 (sec. 602, 42 U.S.C. 2000d-1) and part 17 of this 
title. However, this shall not prevent the parties from entering into a 
stipulation of the facts.
    (b) If all facts are stipulated, the proceedings shall go to 
conclusion in accordance with part 17 of this title and the rules in 
this subpart.
    (c) In any case where it appears from the answer of the applicant or 
recipient to the notice of hearing or notice of opportunity to request a 
hearing, from his failure timely to answer, or from his admissions or 
stipulations in the record that there are no matters of material fact in 
dispute, the administrative law judge may enter an order so finding, 
vacating the hearing date if one has been set, and fixing the time for 
the submission of evidence by the Government for the record. Thereafter, 
the proceedings shall go to conclusion in accordance with part 17 of 
this title and the rules in this subpart. An appeal from such order may 
be allowed in accordance with the rules for interlocutory appeal in 
Sec. 4.823.



Sec. 4.835  Evidence.

    Formal rules of evidence will not apply to the proceeding. 
Irrelevant, immaterial, unreliable, and unduly repetitious evidence will 
be excluded from the record of a hearing. Hearsay evidence shall not be 
inadmissible as such.



Sec. 4.836  Official notice.

    Whenever a party offers a public document, or part thereof, in 
evidence, and such document, or part thereof, has been shown by the 
offeror to be reasonably available to the public, such document need not 
be produced or marked for identification, but may be offered for 
official notice as a public

[[Page 123]]

document item by specifying the document or relevant part thereof. 
Official notice may also be taken of other matters, at the discretion of 
the administrative law judge.



Sec. 4.837  Testimony.

    Testimony shall be given under oath by witnesses at the hearing. A 
witness shall be available for cross-examination, and, at the discretion 
of the administrative law judge, may be cross-examined without regard to 
the scope of direct examination as to any matter which is material to 
the proceeding.



Sec. 4.838  Objections.

    Objections to evidence shall be timely, and the party making them 
shall briefly state the ground relied upon.



Sec. 4.839  Exceptions.

    Exceptions to rulings of the administrative law judge are 
unnecessary. It is sufficient that a party, at the time the ruling of 
the administrative law judge is sought, makes known the action which he 
desires the administrative law judge to take, or his objection to an 
action taken, and his ground therefor.



Sec. 4.840  Offer of proof.

    An offer of proof made in connection with an objection taken to any 
ruling of the administrative law judge excluding proffered oral 
testimony shall consist of a statement of the substance of the evidence 
which counsel contends would be adduced by such testimony. If the 
excluded evidence consists of evidence in written form or consists of 
reference to documents, a copy of such evidence shall be marked for 
identification and shall accompany the record as the offer of proof.



Sec. 4.841  Official transcript.

    An official reporter will be designated for all hearings. The 
official transcripts of testimony and argument taken, together with any 
exhibits, briefs, or memoranda of law filed therewith, shall be filed 
with the administrative law judge. Transcripts may be obtained by the 
parties and the public from the official reporter at rates not to exceed 
the applicable rates fixed by the contract with the reporter. Upon 
notice to all parties, the administrative law judge may authorize such 
corrections to the transcript as are necessary to accurately reflect the 
testimony.

                         Posthearing Procedures



Sec. 4.842  Proposed findings of fact and conclusions of law.

    Within 30 days after the close of the hearing each party may file, 
or the administrative law judge may request, proposed findings of fact 
and conclusions of law together with supporting briefs. Such proposals 
and briefs shall be served on all parties and amici. Reply briefs may be 
submitted within 15 days after receipt of the initial proposals and 
briefs. Reply briefs should be filed and served on all parties and 
amici.



Sec. 4.843  Record for decision.

    The administrative law judge will make his decision upon the basis 
of the record before him. The transcript of testimony, exhibits, and all 
papers, documents, and requests filed in the proceedings, shall 
constitute the record for decision and may be inspected and copied.



Sec. 4.844  Notification of right to file exceptions.

    The provisions of Sec. 17.9 of this title govern the making of 
decisions by administrative law judges, the Director, Office of Hearings 
and Appeals, and the Secretary. An administrative law judge shall, in 
any initial decision made by him, specifically inform the applicant or 
recipient of his right under Sec. 17.9 of this title to file exceptions 
with the Director, Office of Hearings and Appeals. In instances in which 
the record is certified to the Director, Office of Hearings and Appeals, 
or he reviews the decision of an administrative law judge, he shall give 
the applicant or recipient a notice of certification or notice of review 
which specifically informs the applicant or recipient that, within a 
stated period, which shall not be less than 30 days after service of the 
notice, he may file briefs or other written statements of his 
contentions.

[[Page 124]]



Sec. 4.845  Final review by Secretary.

    Paragraph (f) of Sec. 17.9 of this title requires that any final 
decision of an administrative law judge or of the Director, Office of 
Hearings and Appeals, which provides for the suspension or termination 
of, or the refusal to grant or continue Federal financial assistance, or 
the imposition of any other sanction available under part 17 of this 
title or the Act, shall be transmitted to the Secretary. The applicant 
or recipient shall have 20 days following service upon him of such 
notice to submit to the Secretary exceptions to the decision and 
supporting briefs or memoranda suggesting remission or mitigation of the 
sanctions proposed. The Director shall have 10 days after the filing of 
the exceptions and briefs in which to reply.



 Subpart J--Special Rules Applicable to Appeals Concerning Federal Oil 
                  and Gas Royalties and Related Matters

    Authority: 5 U.S.C. 301 et seq.; 25 U.S.C. 396 et seq., 396a et 
seq., 2101 et seq.; 30 U.S.C. 181 et seq., 351 et seq., 1001 et seq., 
1701 et seq.; 31 U.S.C 9701; 43 U.S.C. 1301 et seq., 1331 et seq., and 
1801 et seq.

    Source: 64 FR 26259, May 13, 1999, unless otherwise noted.



Sec. 4.901  What is the purpose of this subpart?

    This subpart tells you how the time limits of 30 U.S.C. 1724(h) 
apply to appeals subject to this subpart.



Sec. 4.902  What appeals are subject to this subpart?

    (a) This subpart applies to appeals under 30 CFR part 290 in effect 
prior to May 13, 1999 and contained in the 30 CFR, parts 200 to 699, 
edition revised as of July 1, 1998, 30 CFR part 290 subpart B, and 43 
CFR part 4, subpart E, of Minerals Management Service (MMS) or delegated 
State orders or portions of orders concerning payment (or computation 
and payment) of royalties and other payments due, and delivery or taking 
of royalty in kind, under Federal oil and gas leases.
    (b) This subpart does not apply to appeals of orders, or portions of 
orders, that
    (1) Involve Indian leases or Federal leases for minerals other than 
oil and gas; or
    (2) Relate to Federal oil and gas leases but do not involve a 
monetary or nonmonetary obligation.



Sec. 4.903  What definitions apply to this subpart?

    For the purposes of this subpart only:
    Assessment means any fee or charge levied or imposed by the 
Secretary or a delegated State other than:
    (1) The principal amount of any royalty, minimum royalty, rental, 
bonus, net profit share or proceed of sale;
    (2) Any interest; or
    (3) Any civil or criminal penalty.
    Delegated State means a State to which MMS has delegated authority 
to perform royalty management functions under an agreement or agreements 
under 30 CFR part 227.
    Designee means the person designated by a lessee under 30 CFR 218.52 
to make all or part of the royalty or other payments due on a lease on 
the lessee's behalf.
    IBLA means the Interior Board of Land Appeals.
    Lease means any agreement authorizing exploration for or extraction 
of any mineral, regardless of whether the instrument is expressly 
denominated as a ``lease,'' including any:
    (1) Contract;
    (2) Net profit share arrangement; or
    (3) Joint venture.
    Lessee means any person to whom the United States issues a Federal 
oil and gas lease, or any person to whom all or part of the lessee's 
interest or operating rights in a Federal oil and gas lease has been 
assigned.
    Monetary obligation means a lessee's, designee's or payor's duty to 
pay, or to compute and pay, any obligation in any order, or the 
Secretary's duty to pay, refund, offset, or credit the amount of any 
obligation that is the subject of a decision by the MMS or a delegated 
State denying a lessee's, designee's, or payor's written request for the 
payment, refund, offset, or credit.

[[Page 125]]

To determine the amount of any monetary obligation, for purposes of the 
default rule of decision in Sec. 4.906 and 30 U.S.C. 1724(h):
    (1) If an order asserts a monetary obligation arising from one issue 
or type of underpayment that covers multiple leases or production 
months, the total obligation for all leases or production months 
involved constitutes a single monetary obligation;
    (2) If an order asserts monetary obligations arising from different 
issues or types of underpayments for one or more leases, the obligations 
arising from each separate issue, subject to paragraph (1) of this 
definition, constitute separate monetary obligations; and
    (3) If an order asserts a monetary obligation with a stated amount 
of additional royalties due, plus an order to perform a restructured 
accounting arising from the same issue or cause as the specifically 
stated underpayment, the stated amount of royalties due plus the 
estimated amount due under the restructured accounting, subject to 
paragraphs (1) and (2) of this definition, together constitutes a single 
monetary obligation.
    Nonmonetary obligation means any duty of a lessee or its designee to 
deliver oil or gas in kind, or any duty of the Secretary to take oil or 
gas royalty in kind.
    Notice of Order means the notice that MMS or a delegated State 
issues to a lessee that informs the lessee that MMS or the delegated 
State has issued an order to the lessee's designee.
    Obligation means:
    (1) A lessee's, designee's or payor's duty to:
    (i) Deliver oil or gas royalty in kind; or
    (ii) Make a lease-related payment, including royalty, minimum 
royalty, rental, bonus, net profit share, proceeds of sale, interest, 
penalty, civil penalty, or assessment; and
    (2) The Secretary's duty to:
    (i) Take oil or gas royalty in kind; or
    (ii) Make a lease-related payment, refund, offset, or credit, 
including royalty, minimum royalty, rental, bonus, net profit share, 
proceeds of sale, or interest.
    Order means any document or portion of a document issued by the MMS 
Director, MMS RMP, or a delegated State, that contains mandatory or 
ordering language regarding any monetary or nonmonetary obligation under 
any Federal oil and gas lease or leases.
    (1) Order includes but is not limited to the following:
    (i) An order to pay;
    (ii) A MMS or delegated State decision to deny a lessee's, 
designee's, or payor's written request that asserts an obligation due 
the lessee, designee or payor.
    (2) Order does not include:
    (i) A non-binding request, information, or guidance, such as:
    (A) Advice or guidance on how to report or pay, including valuation 
determination, unless it contains mandatory or ordering language; and
    (B) A policy determination;
    (ii) A subpoena;
    (iii) An order to pay that MMS issues to a refiner or other person 
involved in disposition of royalty taken in kind; or
    (iv) a Notice of Noncompliance or a Notice of Civil Penalty issued 
under 30 U.S.C. 1719 and 30 CFR part 241, or a decision of an 
administrative law judge or of the IBLA following a hearing on the 
record on a Notice of Noncompliance or Notice of Civil Penalty.
    Party means MMS, any person who files a Notice of Appeal under 30 
CFR part 290 in effect prior to May 13, 1999 and contained in the 30 
CFR, parts 200 to 699, edition revised as of July 1, 1998, 30 CFR part 
290 subpart B, or 43 CFR part 4, subpart E, and any person who files a 
Notice of Joinder in an appeal under 30 CFR part 290, subpart B.
    Payor means any person responsible for reporting and paying 
royalties for Federal oil and gas leases for production before September 
1, 1996.



Sec. 4.904  When does my appeal commence and end?

    For purposes of the period in which the Department must issue a 
final decision in your appeal under Sec. 4.906:
    (a) If you filed your Notice of Appeal and initial Statement of 
Reasons with MMS before August 13, 1996, your appeal commenced on August 
13, 1996;
    (b) If you filed your Notice of Appeal or initial Statement of 
Reasons with

[[Page 126]]

MMS after August 13, 1996, under 30 CFR part 290, in effect prior to May 
13, 1999 and contained in the 30 CFR, parts 200 to 699, edition, revised 
as of July 1, 1998, your appeal commenced on the date MMS received your 
Notice of Appeal, or if later, the date MMS received your initial 
Statement of Reasons;
    (c) If you filed your Notice of Appeal under 30 CFR part 290, 
subpart B, your appeal commenced on the date MMS received your Notice of 
Appeal.
    (d) Your appeal ends on the same day of the month of the 33rd 
calendar month after your appeal commenced under paragraph (a), (b), or 
(c) of this section, plus the number of days of any applicable time 
extensions under Sec. 4.909 or 30 CFR 290.109. If the 33rd calendar 
month after your appeal commenced does not have the same day of the 
month as the day of the month your appeal commenced, then the initial 
33-month period ends on the last day of the 33rd calendar month.



Sec. 4.905  What if a due date falls on a day the Department or relevant office is not open for business?

    If a due date under this subpart falls on a day the relevant office 
is not open for business (such as a weekend, Federal holiday, or 
shutdown), the due date is the next day the relevant office is open for 
business.



Sec. 4.906  What if the Department does not issue a decision by the date my appeal ends?

    (a) If the IBLA or an Assistant Secretary (or the Secretary or the 
Director of OHA) does not issue a final decision by the date an appeal 
ends under Sec. 4.904(d), then under 30 U.S.C. 1724(h)(2), the Secretary 
will be deemed to have decided the appeal:
    (1) In favor of the appellant for any nonmonetary obligation at 
issue in the appeal, or any monetary obligation at issue in the appeal 
with a principal amount of less than $10,000;
    (2) In favor of the Secretary for any monetary obligation at issue 
in the appeal with a principal amount of $10,000 or more.
    (b)(1) If your appeal ends before the MMS Director issues a decision 
in your appeal, then the provisions of paragraph (a) of this section 
apply to the monetary and nonmonetary obligations in the order that you 
contested in your appeal to the Director.
    (2) If the MMS Director issues a decision in your appeal before your 
appeal ends, and if you appealed the Director's decision to IBLA under 
43 CFR part 4, subpart E, then the provisions of paragraph (a) of this 
section apply to the monetary and nonmonetary obligations in the 
Director's decision that you contested in your appeal to IBLA.
    (3) If the MMS Director issues a decision in your appeal, and if you 
did not appeal the Director's decision to IBLA within the time required 
under 30 CFR part 290 in effect prior to May 13, 1999 and contained in 
the 30 CFR, parts 200 to 699, edition revised as of July 1, 1998 (for 
appeals filed before May 13, 1999 or 30 CFR part 290 subpart B (for 
appeals filed on or after May 13, 1999 and 43 CFR part 4, subpart E, 
then the MMS Director's decision is the final decision of the Department 
and 30 U.S.C. 1724(h)(2) has no application.
    (c) If the IBLA issues a decision before the date your appeal ends, 
that decision is the final decision of the Department and 30 U.S.C. 
1724(h)(2) has no application. A petition for reconsideration does not 
extend or renew the 33-month period.
    (d) If any part of the principal amount of any monetary obligation 
is not specifically stated in an order or MMS Director's decision and 
must be computed to comply with the order or MMS Director's decision, 
then the principal amount referred to in paragraph (a) of this section 
means the principal amount MMS estimates you would be required to pay as 
a result of the computation required under the order, plus any amount 
due stated in the order.



Sec. 4.907  What if an IBLA decision requires MMS or a delegated State to recalculate royalties or other payments?

    (a) An IBLA decision modifying an order or an MMS Director's 
decision and requiring MMS or a delegated State to recalculate royalties 
or other payments is a final decision in the administrative proceeding 
for purposes of 30 U.S.C. 1724(h).

[[Page 127]]

    (b) MMS or the delegated State must provide to IBLA and all parties 
any recalculation IBLA requires under paragraph (a) of this section 
within 60 days of receiving IBLA's decision.
    (c) There is no further appeal within the Department from MMS's or 
the State's recalculation under paragraph (b) of this section.
    (d) The IBLA decision issued under paragraph (a) of this section 
together with recalculation under paragraph (b) of this section are the 
final action of the Department that is judicially reviewable under 5 
U.S.C. 704.



Sec. 4.908  What is the administrative record for my appeal if it is deemed decided?

    If your appeal is deemed decided under Sec. 4.906, the record for 
your appeal consists of:
    (a) The record established in an appeal before the MMS Director;
    (b) Any additional correspondence or submissions to the MMS 
Director;
    (c) The MMS Director's decision in an appeal;
    (d) Any pleadings or submissions to the IBLA; and
    (e) Any IBLA orders and decisions.



Sec. 4.909  How do I request an extension of time?

    (a) If you are a party to an appeal subject to this subpart before 
the IBLA, and you need additional time after an appeal commences for any 
purpose, you may obtain an extension of time under this section.
    (b) You must submit a written request for an extension of time 
before the required filing date.
    (1) You must submit your request to the IBLA at Interior Board of 
Land Appeals, 801 North Quincy Street, Arlington, Virginia 22203, using 
the U.S. Postal Service, a private delivery or courier service, hand 
delivery or telefax to (703) 235-8349;
    (2) If you file a document by telefax, you must send an additional 
copy of your document to the IBLA using the U.S. Postal Service, a 
private delivery or courier service or hand delivery so that it is 
received within 5 business days of your telefax transmission.
    (c) If you are an appellant, in addition to meeting the requirements 
of paragraph (b) of this section, you must agree in writing in your 
request to extend the period in which the Department must issue a final 
decision in your appeal under Sec. 4.906 by the amount of time for which 
you are requesting an extension.
    (d) If you are any other party, the IBLA may require you to submit a 
written agreement signed by the appellant to extend the period in which 
the Department must issue a final decision in the appeal under 
Sec. 4.906 by the amount of time for which you are requesting an 
extension.
    (e) The IBLA has the discretion to decline any request for an 
extension of time.
    (f) You must serve your request on all parties to the appeal.

[64 FR 26259, May 13, 1999, as amended at 67 FR 4368, Jan. 30, 2002]

Subpart K [Reserved]



Subpart L--Special Rules Applicable to Surface Coal Mining Hearings and 
                                 Appeals

    Authority: 30 U.S.C. 1256, 1260, 1261, 1264, 1268, 1271, 1272, 1275, 
1293; 5 U.S.C. 301.

    Source: 43 FR 34386, Aug. 3, 1978, unless otherwise noted.

                           General Provisions



Sec. 4.1100  Definitions.

    As used in the regulations in this subpart, the term--
    (a) Act means the Surface Mining Control and Reclamation Act of 
1977, 91 Stat. 445 et seq., 30 U.S.C. 1201 et seq..
    (b) Administrative law judge means an administrative law judge in 
the Hearings Division of the Office of Hearings and Appeals appointed 
under 5 U.S.C. 3105 (1970).
    (c) Board means the Board of Land Appeals in the Office of Hearings 
and Appeals.
    (d) OHA means the Office of Hearings and Appeals, Department of the 
Interior.

[[Page 128]]

    (e) OSM and OSMRE mean the Office of Surface Mining Reclamation and 
Enforcement, Department of the Interior.

[43 FR 34386, Aug. 3, 1978, as amended at 49 FR 7565, Mar. 1, 1984; 59 
FR 1488, Jan. 11, 1994; 67 FR 61509, Oct. 1, 2002]



Sec. 4.1101  Jurisdiction of the Board.

    (a) The jurisdiction of the Board, as set forth in Sec. 4.1(b)(3), 
and subject to Secs. 4.21(d) and 4.5, includes the authority to exercise 
the final decisionmaking power of the Secretary under the act pertaining 
to--
    (1) Applications for review of decisions by OSM regarding 
determinations concerning permits for surface coal mining operations 
pursuant to section 514 of the act;
    (2) Petitions for review of proposed assessments of civil penalties 
issued by OSM pursuant to section 518 of the act;
    (3) Applications for review of notices of violation and orders of 
cessation or modifications, vacations, or terminations thereof, issued 
pursuant to section 521(a)(2) or section 521(a)(3) of the act;
    (4) Proceedings for suspension or revocation of permits pursuant to 
section 521(a)(4) of the act;
    (5) Applications for review of alleged discriminatory acts filed 
pursuant to section 703 of the act;
    (6) Applications for temporary relief;
    (7) Petitions for award of costs and expenses under section 525(e) 
of the act;
    (8) Preliminary findings concerning a demonstrated pattern of 
willful violations under section 510(c) of the act;
    (9) Suspension or rescission of improvidently-issued permits;
    (10) Challenges to ownership or control listings or findings;
    (11) Determinations under 30 CFR part 761;
    (12) Appeals from orders or decisions of administrative law judges; 
and
    (13) All other appeals and review procedures under the act which are 
permitted by these regulations.
    (b) In performing its functions under paragraph (a) of this section, 
the Board is authorized to--
    (1) Order hearings; and
    (2) Issue orders to secure the just and prompt determination of all 
proceedings.

[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 61509, Oct. 1, 2002]



Sec. 4.1102  Construction.

    These rules shall be construed to achieve the just, timely, and 
inexpensive determination of all proceedings consistent with adequate 
consideration of the issues involved.



Sec. 4.1103  Eligibility to practice.

    (a) An administrative law judge or the Board may determine the 
eligibility of persons to practice before OHA in any proceeding under 
the act pursuant to 43 CFR part 1.
    (b) If an administrative law judge or the Board determines that any 
person is not qualified to practice before OHA, the administrative law 
judge or the Board shall disqualify the person and report the 
disqualification to the Director of OHA.
    (c) Upon receipt of a report under paragraph (b) of this section, 
the Director of OHA may request the Solicitor to initiate a disciplinary 
proceeding under 43 CFR 1.6.



Sec. 4.1104  General rules relating to procedure and practice.

    Proceedings in OHA under the act are subject to the general rules 
relating to procedures and practice in subpart B of this part.



Sec. 4.1105  Parties.

    (a) All persons indicated in the act as parties to administrative 
review proceedings under the act shall be considered statutory parties. 
Such statutory parties include--
    (1) In a civil penalty proceeding under Sec. 4.1150, OSM, as 
represented by the Office of the Solicitor, Department of the Interior, 
and any person against whom a proposed assessment is made who files a 
petition;
    (2) In a review proceeding under Secs. 4.1160 through 4.1171, 4.1180 
through 4.1187, 4.1300 through 4.1309, 4.1350 through 4.1356, 4.1360 
through 4.1369, 4.1370 through 4.1377, 4.1380 through 4.1387 or 4.1390 
through 4.1394 of this part, OSM, as represented by the Office

[[Page 129]]

of the Solicitor, Department of the Interior, and--
    (i) If an applicant, operator, or permittee files an application or 
request for review, the applicant, operator, or permittee; and
    (ii) If any other person having an interest which is or may be 
adversely affected files an application or request for review, the 
applicant, operator, or permittee and the person filing such application 
or request;
    (3) In a proceeding to suspend or revoke a permit under Sec. 4.1190 
et seq. OSM, as represented by the Office of the Solicitor, Department 
of the Interior, and the permittee who is ordered to show cause why the 
permit should not be suspended or revoked; and
    (4) In a discriminatory discharge proceeding under Sec. 4.1200 et 
seq. OSM, as represented by the Office of the Solicitor, Department of 
the Interior, any employee or any authorized representative of employees 
who files an application for review, and the alleged discriminating 
party, except where the applicant files a request for the scheduling of 
a hearing under Sec. 4.1201(c) only such applicant and the alleged 
discriminating party.
    (5) In an appeal to the Board in accordance with 43 CFR 4.1280 
through 4.1286 from a determination of the Director of OSM or his or her 
designee under 30 CFR 842.15(d) or a determination of an authorized 
representative under 30 CFR 843.12(i), the permittee of the operation 
that is the subject of the determination and any person whose interests 
may be adversely affected by the outcome on appeal and who participated 
before OSM. A person who wishes his or her identity kept confidential 
under 30 CFR 842.12(b) is responsible for maintaining that 
confidentiality when serving documents in accordance with Sec. 4.1109.
    (b) Any other person claiming a right to participate as a party may 
seek leave to intervene in a proceeding by filing a petition to do so 
pursuant to Sec. 4.1110.
    (c) If any person has a right to participate as a full party in a 
proceeding under the act and fails to exercise that right by 
participating in each stage of the proceeding, that person may become a 
participant with the rights of a party by order of an administrative law 
judge or the Board.

[43 FR 34386, Aug. 3, 1978, as amended at 56 FR 2142, Jan. 22, 1991; 59 
FR 1488, Jan. 11, 1994; 59 FR 54362, Oct. 28, 1994]



Sec. 4.1106  Hearing sites.

    Unless the act requires otherwise, hearings shall be held in a 
location established by the administrative law judge; however, the 
administrative law judge shall give due regard to the convenience of the 
parties or their representatives and witnessess.



Sec. 4.1107  Filing of documents.

    (a) Any initial pleadings in a proceeding to be conducted or being 
conducted by an administrative law judge under these rules shall be 
filed, by hand or by mail, with the Hearings Division, Office of 
Hearings and Appeals, Department of the Interior, 801 North Quincy 
Street, Arlington, Va. 22203.
    (b) Where a proceeding has been assigned to an administrative law 
judge, the parties will be notified by the Chief Administrative Law 
Judge of the name and address of the administrative law judge assigned 
to the case and thereafter all further documents shall be filed with the 
Administrative Law Judge, Office of Hearings and Appeals, at the address 
designated in the notice.
    (c) Any notice of appeal, petition for review or other documents in 
a proceeding to be conducted or being conducted by the Board shall be 
filed, by hand or by mail, with the Board of Land Appeals, Office of 
Hearings and Appeals, 801 North Quincy Street, Arlington, Va. 22203.
    (d) Any person filing initial pleadings with the Hearings Division 
or a notice of appeal with the Board shall furnish an original and one 
copy. Any person filing other documents with OHA shall furnish only an 
original.
    (e) Any person who has initiated a proceeding under these rules 
before the Hearings Division or filed a notice of appeal with the Board 
shall file proof of service with the same in the form of a return 
receipt where service is by registered or certified mail, or an 
acknowledgement by the party served or a verified return where service 
is made personally. A certificate of service

[[Page 130]]

shall accompany all other documents filed by a party in any proceeding.
    (f) The effective filing date for documents initiating proceedings 
before the Hearings Division, OHA, Arlington, VA, shall be the date of 
receipt in that office, if filed by hand, or the date such document is 
postmarked, if filed by mail.
    (g) The effective filing date for a notice of appeal or a petition 
for discretionary review filed with the Board shall be the date of 
mailing or the date of personal delivery, except the effective filing 
date for a notice of appeal from a decision in an expedited review of a 
cessation order proceeding or from a decision in a suspension or 
revocation proceeding shall be the date of receipt of the document by 
the Board. The burden of establishing the date of mailing shall be on 
the person filing the document.
    (h) The effective filing date for all other documents filed with an 
administrative law judge or with the Board shall be the date of mailing 
or personal delivery. The burden of establishing the date of mailing 
shall be on the person filing the document.

[43 FR 34386, Aug. 3, 1978, as amended at 45 FR 50753, July 31, 1980; 46 
FR 6942, Jan. 22, 1981; 49 FR 7565, Mar. 1, 1984; 67 FR 4368, Jan. 30, 
2002]



Sec. 4.1108  Form of documents.

    (a) Any document filed with OHA in any proceeding brought under the 
act shall be captioned with--
    (1) The names of the parties;
    (2) The name of the mine to which the document relates; and
    (3) If review is being sought under section 525 of the act, 
identification by number of any notice or order sought to be reviewed.
    (b) After a docket number has been assigned to the proceeding by 
OHA, the caption shall contain such docket number.
    (c) The caption may include other information appropriate for 
identification of the proceeding, including the permit number or OSM 
identification number.
    (d) Each document shall contain a title that identifies the contents 
of the document following the caption.
    (e) The original of any document filed with OHA shall be signed by 
the person submitting the document or by that person's attorney.
    (f) The address and telephone number of the person filing the 
document or that person's attorney shall appear beneath the signature.



Sec. 4.1109  Service.

    (a)(1) Any party initiating a proceeding in OHA under the Act shall, 
on the date of filing, simultaneously serve copies of the initiating 
documents on the officer in the Office of the Solicitor, U.S. Department 
of the Interior, representing OSMRE in the state in which the mining 
operation at issue is located, and on any other statutory parties 
specified under Sec. 4.1105 of this part.
    (2) The jurisdictions, addresses, and telephone numbers of the 
applicable officers of the Office of the Solicitor to be served under 
paragraph (a)(1) of this section are:
    (i) For mining operations in Alabama, Arkansas, Georgia, Illinois, 
Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, North 
Carolina, Oklahoma, Tennessee, Texas, and Virginia: Field Solicitor, 
U.S. Department of the Interior, 530 S. Gay Street, Room 308, Knoxville, 
Tennessee 37902; Telephone: (865) 545-4294; FAX: (865) 545-4314.
    (ii) For mining operations in Maryland, Massachusetts, Michigan, 
Ohio, Pennsylvania, Rhode Island, and West Virginia: Field Solicitor, 
U.S. Department of the Interior, Three Parkway Center, Suite 385, 
Pittsburgh, Pennsylvania 15220; Telephone: (412) 937-4000; FAX: (412) 
937-4003.
    (iii) For mining operations in Alaska, Colorado, Idaho, Montana, 
North Dakota, Oregon, South Dakota, Utah, Washington, and Wyoming, 
including mining operations located on Indian lands within those states: 
Regional Solicitor, Rocky Mountain Region, U.S. Department of the 
Interior, 755 Parfet Street, Suite 151, Lakewood, CO 80215; Telephone: 
(303) 231-5353; FAX: (303) 231-5363 or 231-5360.
    (iv) For mining operations in Arizona, California, and New Mexico, 
including mining operations located on Indian lands within those states 
except

[[Page 131]]

for the challenge of permitting decisions affecting mining operations 
located on Indian lands in those states: Regional Solicitor, Southwest 
Region, U.S. Department of the Interior, 505 Marquette Avenue, NW., 
Suite 1800, Albuquerque, NM 87102; Telephone: (505) 248-5600; FAX: (505) 
248-5623.
    (v) For the challenge of permitting decisions affecting mining 
operations located on Indian lands within Arizona, California, and New 
Mexico: Regional Solicitor, Rocky Mountain Region, U.S. Department of 
the Interior, 755 Parfet Street, Suite 151, Lakewood, CO 80215; 
Telephone: (303) 231-5353; FAX: (303) 231-5363 or 231-5360.
    (3) Any party or other person who subsequently files any other 
document with OHA in the proceeding shall simultaneously serve copies of 
that document on all other parties and persons participating in the 
proceeding.
    (b) Copies of documents by which any proceeding is initiated shall 
be served on all statutory parties personally or by registered or 
certified mail, return receipt requested. All subsequent documents shall 
be served personally or by first class mail.
    (c) Service of copies of all documents is complete at the time of 
personal service or, if service is made by mail, upon receipt.
    (d) Whenever an attorney has entered an appearance for a party in a 
proceeding before an administrative law judge or the Board, service 
thereafter shall be made upon the attorney.

[43 FR 34386, Aug. 3, 1978, as amended at 45 FR 50753, July 31, 1980; 52 
FR 39526, Oct. 22, 1987; 56 FR 2142, Jan. 22, 1991; 56 FR 5061, Feb. 7, 
1991; 59 FR 1488, Jan. 11, 1994; 59 FR 42774, Aug. 19, 1994; 60 FR 
58243, Nov. 27, 1995; 61 FR 40348, Aug. 2, 1996; 67 FR 61510, Oct. 1, 
2002]



Sec. 4.1110  Intervention.

    (a) Any person, including a State, or OSM may petition for leave to 
intervene at any stage of a proceeding in OHA under the act.
    (b) A petitioner for leave to intervene shall incorporate in the 
petition a statement setting forth the interest of the petitioner and, 
where required, a showing of why his interest is or may be adversely 
affected.
    (c) The administrative law judge or the Board shall grant 
intervention where the petitioner--
    (1) Had a statutory right to initiate the proceeding in which he 
wishes to intervene; or
    (2) Has an interest which is or may be adversely affected by the 
outcome of the proceeding.
    (d) If neither paragraph (c)(1) nor (c)(2) of this section apply, 
the administrative law judge or the Board shall consider the following 
in determining whether intervention is appropriate--
    (1) The nature of the issues;
    (2) The adequacy of representation of petitioner's interest which is 
provided by the existing parties to the proceeding;
    (3) The ability of the petitioner to present relevant evidence and 
argument; and
    (4) The effect of intervention on the agency's implementation of its 
statutory mandate.
    (e) Any person, including a State, or OSM granted leave to intervene 
in a proceeding may participate in such proceeding as a full party or, 
if desired, in a capacity less than that of a full party. If an 
intervenor wishes to participate in a limited capacity, the extent and 
the terms of the participation shall be in the discretion of the 
administrative law judge or the Board.



Sec. 4.1111  Voluntary dismissal.

    Any party who initiated a proceeding before OHA may seek to withdraw 
by moving to dismiss at any stage of a proceeding and the administrative 
law judge or the Board may grant such a motion.



Sec. 4.1112  Motions.

    (a) Except for oral motions made in proceedings on the record, or 
where the administrative law judge otherwise directs, each motion shall-
-
    (1) Be in writing; and
    (2) Contain a concise statement of supporting grounds.
    (b) Unless the administrative law judge or the Board orders 
otherwise, any party to a proceeding in which a motion is filed under 
paragraph (a) of this section shall have 15 days from service of the 
motion to file a statement in response.

[[Page 132]]

    (c) Failure to make a timely motion or to file a statement in 
response may be construed as a waiver of objection.
    (d) An administrative law judge or the Board shall rule on all 
motions as expeditiously as possible.



Sec. 4.1113  Consolidation of proceedings.

    When proceedings involving a common question of law or fact are 
pending before an administrative law judge or the Board, such 
proceedings are subject to consolidation pursuant to a motion by a party 
or at the initiative of an administrative law judge or the Board.



Sec. 4.1114  Advancement of proceedings.

    (a) Except in expedited review proceedings under Sec. 4.1180, or in 
temporary relief proceedings under Sec. 4.1266, at any time after 
commencement of a proceeding, any party may move to advance the 
scheduling of a proceeding.
    (b) Except as otherwise directed by the administrative law judge or 
the Board, any party filing a motion under this section shall--
    (1) Make the motion in writing;
    (2) Describe the exigent circumstances justifying advancement;
    (3) Describe the irreparable harm that would result if the motion is 
not granted; and
    (4) Incorporate in the motion affidavits to support any 
representations of fact.
    (c) Service of a motion under this section shall be accomplished by 
personal delivery or by telephonic or telegraphic communication followed 
by mail. Service is complete upon mailing.
    (d) Unless otherwise directed by the administrative law judge or the 
Board, all parties to the proceeding in which the motion is filed shall 
have 10 days from the date of service of the motion to file a statement 
in response to the motion.
    (e) Following the timely receipt by the administrative law judge of 
statements in response to the motion, the administrative law judge may 
schedule a hearing regarding the motion. If the motion is granted, the 
administrative law judge may advance pleading schedules, prehearing 
conferences, and the hearing, as deemed appropriate: Provided, A hearing 
on the merits shall not be scheduled with less than 5 working days 
notice to the parties, unless all parties consent to an earlier hearing.
    (f) If the motion is granted, the Board may, if it deems such action 
to be appropriate, advance the appeal on its calendar and order such 
other advancement as may be appropriate, including an abbreviated 
schedule for briefing or oral argument.



Sec. 4.1115  Waiver of right to hearing.

    Any person entitled to a hearing before an administrative law judge 
under the act may waive such right in writing. Where parties are 
directed by any rule in these regulations to file a responsive pleading 
on or before a specified time, any party who fails to file such 
responsive pleading by the time specified, may be deemed to have waived 
his right to a hearing. Unless all parties to a proceeding who are 
entitled to a hearing waive, or are deemed to have waived such right, a 
hearing will be held.



Sec. 4.1116  Status of notices of violation and orders of cessation pending review by the Office of Hearings and Appeals.

    Except where temporary relief is granted pursuant to section 525(c) 
or section 526(c) of the act, notices of violation and orders of 
cessation issued under the act shall remain in effect during the 
pendency of review before an administrative law judge or the Board.

                          Evidentiary Hearings



Sec. 4.1120  Presiding officers.

    An adminstrative law judge in the Office of Hearings and Appeals 
shall preside over any hearing required by the act to be conducted 
pursuant to 5 U.S.C. 554 (1970).



Sec. 4.1121  Powers of administrative law judges.

    (a) Under the regulations of this part, an administrative law judge 
may--
    (1) Administer oaths and affirmations;
    (2) Issue subpoenas;
    (3) Issue appropriate orders relating to discovery;

[[Page 133]]

    (4) Rule on procedural requests or similar matters;
    (5) Hold conferences for settlement or simplification of the issues;
    (6) Regulate the course of the hearing;
    (7) Rule on offers of proof and receive relevant evidence;
    (8) Take other actions authorized by this part, by 5 U.S.C. 556 
(1970), or by the act; and
    (9) Make or recommend decisions in accordance with 5 U.S.C. 557 
(1970).
    (b) An administrative law judge may order a prehearing conference--
    (1) To simplify and clarify issues;
    (2) To receive stipulations and admissions;
    (3) To explore the possibility of agreement disposing of any or all 
of the issues in dispute; and
    (4) For such other purposes as may be appropriate.
    (c) Except as otherwise provided in these regulations, the 
jurisdiction of an administrative law judge shall terminate upon--
    (1) The filing of a notice of appeal from an initial decision or 
other order dispositive of the proceeding;
    (2) The issuance of an order of the Board granting a petition for 
review; or
    (3) The expiration of the time period within which a petition for 
review or an appeal to the Board may be filed.



Sec. 4.1122  Conduct of administrative law judges.

    Administrative law judges shall adhere to the ``Code of Judicial 
Conduct.''



Sec. 4.1123  Notice of hearing.

    (a) An administrative law judge shall give notice to the parties of 
the time, place and nature of any hearing.
    (b) Except for expedited review proceedings and temporary relief 
proceedings where time is of the essence, notice given under this 
section shall be in writing.
    (c) In an expedited proceeding when there is only opportunity to 
give oral notice, the administrative law judge shall enter that fact 
contemporaneously on the record by a signed and dated memorandum 
describing the notice given.



Sec. 4.1124  Certification of interlocutory ruling.

    Upon motion or upon the initiative of an administrative law judge, 
the judge may certify to the Board a ruling which does not finally 
dispose of the case if the ruling presents a controling question of law 
and an immediate appeal would materially advance ultimate disposition by 
the judge.



Sec. 4.1125  Summary decision.

    (a) At any time after a proceeding has begun, a party may move for 
summary decision of the whole or part of a case.
    (b) The moving party under this section shall verify any allegations 
of fact with supporting affidavits, unless the moving party is relying 
upon depositions, answers to interrogatories, admissions, or documents 
produced upon request to verify such allegations.
    (c) An administrative law judge may grant a motion under this 
section if the record, including the pleadings, depositions, answers to 
interrogatories, admissions, and affidavits, shows that--
    (1) There is no disputed issue as to any material fact; and
    (2) The moving party is entitled to summary decision as a matter of 
law.
    (d) If a motion for summary decision is not granted for the entire 
case or for all the relief requested and an evidentiary hearing is 
necessary, the administrative law judge shall, if practicable, and upon 
examination of all relevant documents and evidence before him, ascertain 
what material facts are actually and in good faith controverted. He 
shall thereupon, issue an order specifying the facts that appear without 
substantial controversy and direct such further proceedings as deemed 
appropriate.



Sec. 4.1126  Proposed findings of fact and conclusions of law.

    The administrative law judge shall allow the parties to a proceeding 
an opportunity to submit proposed findings of fact and conclusions of 
law together with a supporting brief at a time designated by the 
administrative law judge.

[[Page 134]]



Sec. 4.1127  Initial orders and decisions.

    An initial order or decision disposing of a case shall incorporate--
    (a) Findings of fact and conclusions of law and the basis and 
reasons therefore on all the material issues of fact, law, and 
discretion presented on the record; and
    (b) An order granting or denying relief.



Sec. 4.1128  Effect of initial order or decision.

    An initial order or decision shall become final if that order or 
decision is not timely appealed to the Board under Sec. 4.1270 or 
Sec. 4.1271.



Sec. 4.1129  Certification of record.

    Except in expedited review proceedings under Sec. 4.1180, within 5 
days after an initial decision has been rendered, the administrative law 
judge shall certify the official record of the proceedings, including 
all exhibits, and transmit the official record for filing in the 
Hearings Division, Office of Hearings and Appeals, Arlington, Va.

                                Discovery



Sec. 4.1130  Discovery methods.

    Parties may obtain discovery by one or more of the following 
methods--
    (a) Depositions upon oral examination or upon written 
interrogatories;
    (b) Written interrogatories;
    (c) Production of documents or things or permission to enter upon 
land or other property, for inspection and other purposes; and
    (d) Requests for admission.



Sec. 4.1131  Time for discovery.

    Following the initiation of a proceeding, the parties may initiate 
discovery at any time as long as it does not interfere with the conduct 
of the hearing.



Sec. 4.1132  Scope of discovery.

    (a) Unless otherwise limited by order of the administrative law 
judge in accordance with these rules, the parties may obtain discovery 
regarding any matter, not privileged, which is relevant to the subject 
matter involved in the proceeding, including the existence, description, 
nature, custody, condition, and location of any books, documents, or 
other tangible things and the identity and location of persons having 
knowledge of any discoverable matter.
    (b) It is not ground for objection that information sought will not 
be admissible at the hearing if the information sought appears 
reasonably calculated to lead to the discovery of admissible evidence.
    (c) A party may obtain discovery of documents and tangible things 
otherwise discoverable under paragraph (a) of this section and prepared 
in anticipation of or for the hearing by or for another party's 
representative (including his attorney, consultant, surety, indemnitor, 
insurer, or agent) only upon a showing that the party seeking discovery 
has substantial need of the materials in the preparation of his case and 
that he is unable without undue hardship to obtain the substantial 
equivalent of the materials by other means. In ordering discovery of 
such materials when the required showing has been made, the 
administrative law judge shall protect against disclosure of the mental 
impressions, conclusions, opinions, or legal theories of an attorney or 
other representative of a party concerning the proceeding.
    (d) Upon motion by a party or the person from whom discovery is 
sought, and for good cause shown, the administrative law judge may make 
any order which justice requires to protect a party or person from 
annoyance, embarrassment, oppression, or undue burden or expense, 
including one or more of the following--
    (1) The discovery not be had;
    (2) The discovery may be had only on specified terms and conditions, 
including a designation of the time or place;
    (3) The discovery may be had only by a method of discovery other 
than that selected by the party seeking discovery;
    (4) Certain matters not relevant may not be inquired into, or that 
the scope of discovery be limited to certain matters;
    (5) Discovery be conducted with no one present except persons 
designated by the administrative law judge; or
    (6) A trade secret or other confidential research, development or 
commercial information may not be disclosed

[[Page 135]]

or be disclosed only in a designated way.



Sec. 4.1133  Sequence and timing of discovery.

    Unless the administrative law judge upon motion, for the convenience 
of parties and witnesses and in the interests of justice, orders 
otherwise, methods of discovery may be used in any sequence and the fact 
that a party is conducting discovery, whether by deposition or 
otherwise, shall not operate to delay any other party's discovery.



Sec. 4.1134  Supplementation of responses.

    A party who has responded to a request for discovery with a response 
that was complete when made is under no duty to supplement his response 
to include information thereafter acquired, except as follows--
    (a) A party is under a duty to supplement timely his response with 
respect to any question directly addressed to--
    (1) The identity and location of persons having knowledge of 
discoverable matters; and
    (2) The identity of each person expected to be called as an expert 
witness at the hearing, the subject matter on which he is expected to 
testify and the substance of his testimony.
    (b) A party is under a duty to amend timely a prior response if he 
later obtains information upon the basis of which--
    (1) He knows the response was incorrect when made; or
    (2) He knows that the response though correct when made is no longer 
true and the circumstances are such that a failure to amend the response 
is in substance a knowing concealment.
    (c) A duty to supplement responses may be imposed by order of the 
administrative law judge or agreement of the parties.



Sec. 4.1135  Motion to compel discovery.

    (a) If a deponent fails to answer a question propounded, or a party 
upon whom a request is made pursuant to Sec. 4.1140, or a party upon 
whom answers to interrogatories are served fails to adequately respond 
or objects to the request, or any part thereof, or fails to permit 
inspection as requested, the discovering party may move the 
administrative law judge for an order compelling a response or 
inspection in accordance with the request.
    (b) The motion shall set forth--
    (1) The nature of the questions or request;
    (2) The response or objection of the party upon whom the request was 
served; and
    (3) Arguments in support of the motion.
    (c) For purposes of this section, an evasive answer or incomplete 
answer or response shall be treated as a failure to answer or respond.
    (d) In ruling on a motion made pursuant to this section, the 
administrative law judge may make such a protective order as he is 
authorized to make on a motion made pursuant to Sec. 4.1132(d).



Sec. 4.1136  Failure to comply with orders compelling discovery.

    If a party or an officer, director, or other agent of a party fails 
to obey an order to provide or permit discovery, the administrative law 
judge before whom the action is pending may make such orders in regard 
to the failure as are just, including but not limited to the following--
    (a) An order that the matters sought to be discovered or any other 
designated facts shall be taken to be established for the purposes of 
the action in accordance with the claim of the party obtaining the 
order;
    (b) An order refusing to allow the disobedient party to support or 
oppose designated claims or defenses, or prohibiting him from 
introducing designated matters into evidence; or
    (c) An order striking out pleadings or parts thereof, or staying 
further proceedings until the order is obeyed, or dismissing the action 
or proceeding or any part thereof, or rendering a judgment by default 
against the disobedient party.



Sec. 4.1137  Depositions upon oral examination or upon written questions.

    (a) Any party desiring to take the testimony of any other party or 
other person by deposition upon oral examination or written questions 
shall, without leave of the administrative law judge, give reasonable 
notice in writing to every other party, to the

[[Page 136]]

person to be examined and to the administrative law judge of--
    (1) The proposed time and place of taking the deposition;
    (2) The name and address of each person to be examined, if known, or 
if the name is not known, a general description sufficient to identify 
him or the particular group or class to which he belongs;
    (3) The matter upon which each person will be examined; and
    (4) The name or descriptive title and address of the officer before 
whom the deposition is to be taken.
    (b) A deposition may be taken before any officer authorized to 
administer oaths by the laws of the United States or of the place where 
the examination is held.
    (c) The actual taking of the deposition shall proceed as follows--
    (1) The deposition shall be on the record;
    (2) The officer before whom the deposition is to be taken shall put 
the witness on oath or affirmation;
    (3) Examination and cross-examination shall proceed as at a hearing;
    (4) All objections made at the time of the examination shall be 
noted by the officer upon the deposition;
    (5) The officer shall not rule on objections to the evidence, but 
evidence objected to shall be taken subject to the objections.
    (d) When the testimony is fully transcribed, the deposition shall be 
submitted to the deponent for examination and signature, unless 
examination and signature is waived by the deponent. The officer shall 
certify the deposition or, if the deposition is not signed by the 
deponent, shall certify the reasons for the failure to sign.
    (e) Where the deposition is to be taken upon written questions, the 
party taking the deposition shall serve a copy of the questions, showing 
each question separately and consecutively numbered, on every other 
party with a notice stating the name and address of the person who is to 
answer them, and the name, description, title, and address of the 
officer before whom they are to be taken. Within 30 days after service, 
any other party may serve cross-questions. The questions, cross-
questions, and answers shall be recorded and signed, and the deposition 
certified, as in the case of a deposition on oral examination.
    (f) A deposition will not become a part of the record in the hearing 
unless received in evidence. If only part of a deposition is offered in 
evidence by a party, any other party may introduce any other parts.
    (g) A deponent whose deposition is taken and the officer taking a 
deposition shall be entitled to the same fees as are paid for like 
services in the district courts of the United States, to be paid by the 
party at whose instance the deposition is taken.
    (h) The deponent may be accompanied, represented, and advised by 
legal counsel.



Sec. 4.1138  Use of depositions.

    At the hearing, any part or all of a deposition, so far as 
admissible, may be used against any party who was present or represented 
at the taking of the deposition, or who had reasonable notice thereof, 
in accordance with any of the following provisions--
    (a) Any deposition may be used by any party for the purpose of 
contradicting or impeaching the testimony of a deponent as a witness;
    (b) The deposition of a party or of anyone who at the time of taking 
the deposition was an officer, director, or managing agent or a person 
designated to testify on behalf of a public or private corporation, 
partnership, or association or governmental agency which is a party may 
be used by an adverse party for any purpose; or
    (c) The deposition of a witness, whether or not a party, may be used 
by a party for any purpose if the administrative law judge finds that--
    (1) The witness is dead;
    (2) The witness is at a distance greater than 100 miles from the 
place of hearing, or is outside the United States, unless it appears 
that the absence of the witness was procured by the party offering the 
deposition;
    (3) The witness is unable to attend or testify because of age, 
illness, infirmity, or imprisonment;
    (4) The party offering the deposition has been unable to procure the 
attendance of the witness by subpoena; or

[[Page 137]]

    (5) Such exceptional circumstances exist as to make it desirable, in 
the interest of justice and with due regard to the importance of 
presenting the testimony of witnesses orally at the hearing, to allow 
the deposition to be used.



Sec. 4.1139  Written interrogatories to parties.

    (a) Any party may serve upon any other party written interrogatories 
to be answered in writing by the party served, or if the party served is 
a public or private corporation or a partnership or association or 
governmental agency, by any officer or agent, who shall furnish such 
information as is available to the party. A copy of the interrogatories, 
answers, and all related pleadings shall be served on the administrative 
law judge and upon all parties to the proceeding.
    (b) Each interrogatory shall be answered separately and fully in 
writing under oath or affirmation, unless it is objected to, in which 
event the reasons for objection shall be stated in lieu of an answer. 
The answer and objections shall be signed by the person making them. The 
party upon whom the interrogatories were served shall serve a copy of 
the answers and objections upon all partes to the proceeding within 30 
days after service of the interrogatories, or within such shorter or 
longer period as the administrative law judge may allow.
    (c) Interrogatories may relate to any matters which can be inquired 
into under Sec. 4.1132. An interrogatory otherwise proper is not 
necessarily objectionable merely because an answer to the interrogatory 
involves an opinion or contention that relates to fact or the 
application of law to fact, but the administrative law judge may order 
that such an interrogatory need not be answered until after designated 
discovery has been completed or until a prehearing conference or other 
later time.



Sec. 4.1140  Production of documents and things and entry upon land for inspection and other purposes.

    (a) Any party may serve on any other party a request to--
    (1) Produce and permit the party making the request, or a person 
acting on his behalf, to inspect and copy any designated documents, or 
to inspect and copy, test, or sample any tangible things within the 
scope of Sec. 4.1132 and which are in the possession, custody, or 
control of the party upon whom the request is served; or
    (2) Permit entry upon designated land or other property in the 
possession or control of the party upon whom the request is served for 
the purpose of inspection and measuring, surveying, photographing, 
testing, or sampling the property (including the air, water, and soil) 
or any designated object or operation thereon, within the scope of 
Sec. 4.1132.
    (b) The request may be served on any party without leave of the 
administrative law judge.
    (c) The request shall--
    (1) Set forth the items to be inspected either by individual item or 
by category;
    (2) Describe each item or category with reasonable particularity; 
and
    (3) Specify a reasonable time, place, and manner of making the 
inspection and performing the related acts.
    (d) The party upon whom the request is served shall serve on the 
party submitting the request a written response within 30 days after 
service of the request.
    (e) The response shall state, with respect to each item or category-
-
    (1) That inspection and related activities will be permitted as 
requested; or
    (2) That objection is made in whole or in part, in which case the 
reasons for objection shall be stated.



Sec. 4.1141  Admissions.

    (a) A party may serve upon any other party a written request for the 
admission, for purposes of the pending action only, of the genuineness 
and authenticity of any relevant document described in or attached to 
the request, or for the admission of the truth of any specified relevant 
matter of fact.
    (b) Each matter of which an admission is requested is admitted 
unless, within 30 days after service of the request or such shorter or 
longer time as the administrative law judge may allow, the party to whom 
the request is

[[Page 138]]

directed serves on the requesting party--
    (1) A sworn statement denying specifically the relevant matters of 
which an admission is requested;
    (2) A sworn statement setting forth in detail the reasons why he can 
neither truthfully admit nor deny them; or
    (3) Written objections on the ground that some or all of the matters 
involved are privileged or irrelevant or that the request is otherwise 
improper in whole or in part.
    (c) An answering party may not give lack of information or knowledge 
as a reason for failure to admit or deny unless he states that he has 
made reasonable inquiry and that the information known or readily 
obtainable by him is insufficient to enable him to admit or deny.
    (d) The party who has requested the admissions may move to determine 
the sufficiency of the answers or objections. Unless the administrative 
law judge determines that an objection is justified, he shall order that 
an answer be served. If the administrative law judge determines that an 
answer does not comply with the requirements of this section, he may 
order either that the matter is admitted or that an amended answer be 
served. The administrative law judge may, in lieu of these orders, 
determine that final disposition of the request be made at a prehearing 
conference or at a designated time prior to hearing.
    (e) Any matter admitted under this section is conclusively 
established unless the administrative law judge on motion permits 
withdrawal or amendment of the admission.
    (f) Any admission made by a party under this section is for the 
purpose of the pending action only and is not an admission by him for 
any other purpose nor may it be used against him in any other 
proceeding.

     Petitions for Review of Proposed Assessments of Civil Penalties



Sec. 4.1150  Who may file.

    Any person charged with a civil penalty may file a petition for 
review of a proposed assessment of that penalty with the Hearings 
Division, OHA, 801 North Quincy Street, Arlington, Va. 22203.

[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 4368, Jan. 30, 2002]



Sec. 4.1151  Time for filing.

    (a) A petition for review of a proposed assessment of a civil 
penalty must be filed within 30 days of receipt of the proposed 
assessment; or
    (b) If a timely request for a conference has been made pursuant to 
30 CFR 723.18 or 845.18, a petition for review must be filed within 30 
days from service of notice by the conference officer that the 
conference is deemed completed.
    (c) No extension of time will be granted for filing a petition for 
review of a proposed assessment of a civil penalty as required by 
paragraph (a) or (b) of this section. If a petition for review is not 
filed within the time period provided in paragraph (a) or (b) of this 
section, the appropriateness of the amount of the penalty, and the fact 
of the violation if there is no proceeding pending under section 525 of 
the Act to review the notice of violation or cessation order involved, 
shall be deemed admitted, the petition shall be dismissed, and the civil 
penalty assessed shall become a final order of the Secretary.

[43 FR 34386, Aug. 3, 1978, as amended at 51 FR 16321, May 2, 1986; 59 
FR 1488, Jan. 11, 1994]



Sec. 4.1152  Contents of petition; payment required.

    (a) The petition shall include--
    (1) A short and plain statement indicating the reasons why either 
the amount of the penalty or the fact of the violation is being 
contested;
    (2) If the amount of penalty is being contested based upon a 
misapplication of the civil penalty formula, a statement indicating how 
the civil penalty formula contained in 30 CFR part 723 or 845 was 
misapplied, along with a proposed civil penalty utilizing the civil 
penalty formula;
    (3) Identification by number of all violations being contested;
    (4) The identifying number of the cashier's check, certified check, 
bank draft, personal check, or bank money order accompanying the 
petition; and

[[Page 139]]

    (5) A request for a hearing site.
    (b) The petition shall be accompanied by--
    (1) Full payment of the proposed assessment in the form of a 
cashier's check, certified check, bank draft, personal check or bank 
money order made payable to--Assessment Office, OSM--to be placed in an 
escrow account pending final determination of the assessment; and
    (2) On the face of the payment an identification by number of the 
violations for which payment is being tendered.
    (c) As required by section 518(c) of the act, failure to make timely 
payment of the proposed assessment in full shall result in a waiver of 
all legal rights to contest the violation or the amount of the penalty.
    (d) No extension of time will be granted for full payment of the 
proposed assessment. If payment is not made within the time period 
provided in Sec. 4.1151 (a) or (b), the appropriateness of the amount of 
the penalty, and the fact of the violation if there is no proceeding 
pending under section 525 of the Act of review the notice of violation 
or cessation order involved, shall be deemed admitted, the petition 
shall be dismissed, and the civil penalty assessed shall become a final 
order of the Secretary.

[43 FR 34386, Aug. 3, 1978, as amended at 51 FR 16321, May 2, 1986; 59 
FR 1488, Jan. 11, 1994]



Sec. 4.1153  Answer.

    OSM shall have 30 days from receipt of a copy of the petition within 
which to file an answer to the petition with the Hearings Division, OHA.



Sec. 4.1154  Review of waiver determination.

    (a) Within 10 days of the filing of a petition under this part, 
petitioner may move the administrative law judge to review the granting 
or denial of a waiver of the civil penalty formula pursuant to 30 CFR 
723.16 or 845.16.
    (b) The motion shall contain a statement indicating all alleged 
facts relevant to the granting or denial of the waiver;
    (c) Review shall be limited to the written determination of the 
Director of OSM granting or denying the waiver, the motion and responses 
to the motion. The standard of review shall be abuse of discretion.
    (d) If the administrative law judge finds that the Director of OSM 
abused his discretion in granting or denying the waiver, the 
administrative law judge shall hold the hearing on the petition for 
review of the proposed assessment required by section 518(b) of the act 
and make a determination pursuant to Sec. 4.1157.

[43 FR 34386, Aug. 3, 1978, as amended at 59 FR 1488, Jan. 11, 1994]



Sec. 4.1155  Burdens of proof in civil penalty proceedings.

    In civil penalty proceedings, OSM shall have the burden of going 
forward to establish a prima facie case as to the fact of the violation 
and the amount of the civil penalty and the ultimate burden of 
persuasion as to the amount of the civil penalty. The person who 
petitioned for review shall have the ultimate burden of persuasion as to 
the fact of the violation.

[53 FR 47694, Nov. 25, 1988]



Sec. 4.1156  Summary disposition.

    (a) In a civil penalty proceeding where the person against whom the 
proposed civil penalty is assessed fails to comply on time with any 
prehearing order of an administrative law judge, the administrative law 
judge shall issue an order to show cause why--
    (1) That person should not be deemed to have waived his right to a 
hearing; and
    (2) The proceedings should not be dismissed and referred to the 
assessment officer.
    (b) If the order to show cause is not satisfied as required, the 
administrative law judge shall order the proceedings summarily dismissed 
and shall refer the case to the assessment officer who shall enter the 
assessment as the final order of the Department.
    (c) Where the person against whom the proposed civil penalty is 
assessed fails to appear at a hearing, that person will be deemed to 
have waived his right to a hearing and the administration law judge may 
assume for purposes of the assessment--

[[Page 140]]

    (1) That each violation listed in the notice of violation or order 
occurred; and
    (2) The truth of any facts alleged in such notice or order.
    (d) In order to issue an initial decision assessing the appropriate 
penalty when the person against whom the proposed civil penalty is 
assessed fails to appear at the hearing, an administrative law judge 
shall either conduct an ex parte hearing or require OSM to furnish 
proposed findings of fact and conclusions of law.
    (e) Nothing in this section shall be construed to deprive the person 
against whom the penalty is assessed of his opportunity to have OSM 
prove the violations charged in open hearing with confrontation and 
cross-examination of witnesses, except where that person fails to comply 
with a prehearing order or fails to appear at the scheduled hearing.



Sec. 4.1157  Determination by administrative law judge.

    (a) The administrative law judge shall incorporate in his decision 
concerning the civil penalty, findings of fact on each of the four 
criteria set forth in 30 CFR 723.13 or 845.13, and conclusions of law.
    (b) If the administrative law judge finds that--
    (1) A violation occurred or that the fact of violation is 
uncontested, he shall establish the amount of the penalty, but in so 
doing, he shall adhere to the point system and conversion table 
contained in 30 CFR 723.13 and 723.14 or 845.13 and 845.14, except that 
the administrative law judge may waive the use of such point system 
where he determines that a waiver would further abatement of violations 
of the Act. However, the administrative law judge shall not waive the 
use of the point system and reduce the proposed assessment on the basis 
of an argument that a reduction in the proposed assessment could be used 
to abate other violations of the Act; or
    (2) No violation occurred, he shall issue an order that the proposed 
assessment be returned to the petitioner.
    (c) If the administrative law judge makes a finding that no 
violation occurred or if the administrative law judge reduces the amount 
of the civil penalty below that of the proposed assessment and a timely 
petition for review of his decision is not filed with the Board or the 
Board refuses to grant such a petition, the Department of the Interior 
shall have 30 days from the expiration of the date for filing a petition 
with the Board if no petition is filed, or 30 days from the date the 
Board refuses to grant such a petition, within which to remit the 
appropriate amount to the person who made the payment, with interest at 
the rate of 6 percent, or at the prevailing Department of the Treasury 
rate, whichever is greater.
    (d) If the administrative law judge increases the amount of the 
civil penalty above that of the proposed assessment, the administrative 
law judge shall order payment of the appropriate amount within 30 days 
of receipt of the decision.

[43 FR 34386, Aug. 3, 1978, as amended at 59 FR 1488, Jan. 11, 1994]



Sec. 4.1158  Appeals.

    Any party may petition the Board to review the decision of an 
administrative law judge concerning an assessment according to the 
procedures set forth in Sec. 4.1270.

   Review of Section 521 Notices of Violation and Orders of Cessation



Sec. 4.1160  Scope.

    These regulations govern applications for review of--
    (a) Notices of violation or the modification, vacation, or 
termination of a notice of violation under section 521(a)(3) of the Act; 
and
    (b) Orders of cessation which are not subject to expedited review 
under Sec. 4.1180 or the modification, vacation, or termination of such 
an order of cessation under section 521(a)(2) or section 521(a)(3).



Sec. 4.1161  Who may file.

    A permittee issued a notice or order by the Secretary pursuant to 
the provisions of section 521(a)(2) or section 521(a)(3) of the Act or 
any person having an interest which is or may be adversely affected by a 
notice or order subject to review under Sec. 4.1160 may file an 
application for review with the

[[Page 141]]

Hearings Division, OHA, 801 North Quincy Street, Arlington, Va. 22203.

[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 4368, Jan. 30, 2002]



Sec. 4.1162  Time for filing.

    (a) Any person filing an application for review under Sec. 4.1160 et 
seq. shall file that application within 30 days of the receipt of a 
notice or order or within 30 days of receipt of notice of modification, 
vacation, or termination of such a notice or order. Any person not 
served with a copy of the document shall file the application for review 
within 40 days of the date of issuance of the document.
    (b) No extension of time will be granted for filing an application 
for review as provided by paragraph (a) of this section. If an 
application for review is not filed within the time period provided in 
paragraph (a) of this section, the application shall be dismissed.

[51 FR 16321, May 2, 1986]



Sec. 4.1163  Effect of failure to file.

    Failure to file an application for review of a notice of violation 
or order of cessation shall not preclude challenging the fact of 
violation during a civil penalty proceeding.



Sec. 4.1164  Contents of application.

    Any person filing an application for review shall incorporate in 
that application regarding each claim for relief--
    (a) A statement of facts entitling that person to administrative 
relief;
    (b) A request for specific relief;
    (c) A copy of any notice or order sought to be reviewed;
    (d) A statement as to whether the person requests or waives the 
opportunity for an evidentiary hearing; and
    (e) Any other relevant information.



Sec. 4.1165  Answer.

    (a) Where an application for review is filed by a permittee, OSM as 
well as any other person granted leave to intervene pursuant to 
Sec. 4.1110 shall file an answer within 20 days of service of a copy of 
such application.
    (b) Where an application for review is filed by a person other than 
a permittee, the following shall file an answer within 20 days of 
service of a copy of such application--
    (1) OSM;
    (2) The permittee; or
    (3) Any other person granted leave to intervene pursuant to 
Sec. 4.1110.



Sec. 4.1166  Contents of answer.

    An answer to an application for review shall incorporate--
    (a) A statement specifically admitting or denying the alleged facts 
stated by the applicant;
    (b) A statement of any other relevant facts;
    (c) A statement whether an evidentiary hearing is requested or 
waived; and
    (d) Any other relevant information.



Sec. 4.1167  Notice of hearing.

    Pursuant to section 525(a)(2) of the act, the applicant and other 
interested persons shall be given written notice of the time and place 
of the hearing at least 5 working days prior thereto.



Sec. 4.1168  Amendments to pleadings.

    (a) An application for review may be amended once as a matter of 
right prior to the filing of an answer and thereafter by leave of the 
administrative law judge upon proper motion.
    (b) Upon receipt of an initial or amended application for review or 
subsequent to granting leave to amend, the administrative law judge 
shall issue an order setting a time for filing an amended answer if the 
judge determines that such an answer is appropriate.



Sec. 4.1169  Failure to state a claim.

    Upon proper motion or after the issuance of an order to show cause 
by the administrative law judge, an administrative law judge may dismiss 
at any time an application for review which fails to state a claim upon 
which administrative relief may be granted.



Sec. 4.1170  Related notices or orders.

    (a) An applicant for review shall file a copy of any subsequent 
notice or order which modifies, vacates, or terminates the notice or 
order sought to be reviewed within 10 days of receipt.

[[Page 142]]

    (b) An applicant for review of a notice shall file a copy of an 
order of cessation for failure timely to abate the violation which is 
the subject of the notice under review within 10 days of receipt of such 
order.
    (c) If an applicant for review desires to challenge any subsequent 
notice or order, the applicant must file a separate application for 
review.
    (d) Applications for review of related notices or orders are subject 
to consolidation.



Sec. 4.1171  Burden of proof in review of section 521 notices or orders.

    (a) In review of section 521 notices of violation or orders of 
cessation or the modification, vacation, or termination thereof, 
including expedited review under Sec. 4.1180, OSM shall have the burden 
of going forward to establish a prima facie case as to the validity of 
the notice, order, or modification, vacation, or termination thereof.
    (b) The ultimate burden of persuasion shall rest with the applicant 
for review.

 Expedited Review of Section 521(a)(2) or 521(a)(3) Orders of Cessation



Sec. 4.1180  Purpose.

    The purpose of Secs. 4.1180--4.1187 is to govern applications filed 
under section 525(b) of the act for expedited review of orders of 
cessation for which temporary relief has not been granted under section 
525(c) or section 526(c) of the act. If a person is qualified to receive 
a 30-day decision under these regulations, he may waive that right and 
file an application under Sec. 4.1164, and the procedures in Sec. 4.1160 
et seq. shall apply. If there is a waiver as set forth in Sec. 4.1186, 
the final administrative decision shall be issued within 120 days of the 
filing of the application.



Sec. 4.1181  Who may file.

    (a) An application for review of an order of cessation may be filed 
under this section, whenever temporary relief has not been granted under 
section 525(c) or section 526(c) of the act, by--
    (1) A permittee who has been issued an order of cessation under 
section 521(a)(2) or section 521(a)(3) of the act; or
    (2) Any person having an interest which is or may be adversely 
affected by the issuance of an order of cessation under section 
521(a)(2) or section 521(a)(3) of the act.
    (b) A permittee or any person having an interest which is or may be 
adversely affected by a section 521(a)(2) or section 521(a)(3) order of 
cessation waives his right to expedited review upon being granted 
temporary relief pursuant to section 525(c) or section 526(c) of the 
act.



Sec. 4.1182  Where to file.

    The application shall be filed in the Hearings Division, 801 North 
Quincy Street, OHA, Arlington, Va. 22203.

[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 4368, Jan. 30, 2002]



Sec. 4.1183  Time for filing.

    (a) Any person intending to file an application for expedited review 
under section 525(b) of the act shall notify the field solicitor, 
Department of the Interior, for the region in which the mine site is 
located, within 15 days of receipt of the order. Any person not served 
with a copy of the order shall file notice of intention to file an 
application for review within 20 days of the date of issuance of the 
order.
    (b) Any person filing an application for review under Sec. 4.1184 
shall file the application within 30 days of receipt of the order. Any 
person not served with a copy of the order shall file an application for 
review within 40 days of the date of issuance of the order.



Sec. 4.1184  Contents of application.

    (a) Any person filing an application for expedited review under 
section 525(b) of the act shall incorporate in that application 
regarding each claim for relief--
    (1) A statement of facts entitling that person to administrative 
relief;
    (2) A request for specific relief;
    (3) A specific statement which delineates each issue to be addressed 
by the applicant during the expedited proceeding;
    (4) A copy of the order sought to be reviewed;
    (5) A list identifying each of applicant's witnesses by name, 
address, and place of employment, including expert

[[Page 143]]

witnesses and the area of expertise to which they will address 
themselves at the hearing, and a detailed summary of their testimony;
    (6) Copies of all exhibits and other documentary evidence that the 
applicant intends to introduce as evidence at the hearing and 
descriptions of all physical exhibits and evidence which is not capable 
of being copied or attached; and
    (7) Any other relevant information.
    (b) If any applicant fails to comply with all the requirements of 
Sec. 4.1184(a), the administrative law judge may find that the applicant 
has waived the 30-day decision requirement or the administrative law 
judge shall order that the application be perfected and the application 
shall not be considered filed for purposes of the 30-day decision until 
perfected. Failure to timely comply with the administrative law judge's 
order shall constitute a waiver of the 30-day decision.



Sec. 4.1185  Computation of time for decision.

    In computing the 30-day time period for administrative decision, 
intermediate Saturdays, Sundays, Federal legal holidays, and other 
nonbusiness days shall be excluded in the computation.



Sec. 4.1186  Waiver of the 30-day decision requirement.

    (a) Any person qualified to receive a 30-day decision may waive that 
right--
    (1) By filing an application pursuant to Sec. 4.1160-71;
    (2) By failing to comply with all the requirements of 
Sec. 4.1184(a); or
    (3) In accordance with Sec. 4.1187(j).
    (b) Any person qualified to receive a 30-day decision shall waive 
that right--
    (1) By obtaining temporary relief pursuant to section 525(c) or 
section 526(c) of the act;
    (2) By failing to perfect an application pursuant to Sec. 4.1184(b); 
or
    (3) In accordance with Sec. 4.1187(i).



Sec. 4.1187  Procedure if 30-day decision requirement is not waived.

    If the applicant does not waive the 30-day decision requirement of 
section 525(b) of the act, the following special rules shall apply--
    (a) The applicant shall serve all known parties with a copy of the 
application simultaneously with the filing of the application with OHA. 
If service is accomplished by mail, the applicant shall inform all known 
parties by telephone at the time of mailing that an application is being 
filed and shall inform the administrative law judge by telephone that 
such notice has been given. However, no ex parte communication as to the 
merits of the proceeding may be conducted with the administrative law 
judge.
    (b) Any party desiring to file a response to the application for 
review shall file a written response within 5 working days of service of 
the application.
    (c) If the applicant has requested a hearing, the administrative law 
judge shall act immediately upon receipt of the application to notify 
the parties of the time and place of the hearing at least 5 working days 
prior to the hearing date.
    (d) The administrative law judge may require the parties to submit 
proposed findings of fact and conclusions of law at the hearing which 
may be orally supplemented on the record at the hearing or, where 
proposed findings of fact and conclusions of law have not been submitted 
at the hearing, they may be orally presented for the record at the 
hearing.
    (e) The administrative law judge shall make an initial decision. He 
shall either rule from the bench on the application, orally stating the 
reasons for his decision or he shall issue a written decision. If the 
administrative law judge makes an oral ruling, his approval of the 
record of the hearing shall constitute his written decision. The 
decision of the administrative law judge must be issued within 15 days 
of the filing of the perfected application under Sec. 4.1184.
    (f) If any party desires to appeal to the Board, such party shall--
    (1) If the administrative law judge makes an oral ruling, make an 
oral statement, within a time period as directed by the administrative 
law judge, that the decision is being appealed and request that the 
administrative law judge certify the record to the Board; or

[[Page 144]]

    (2) If the administrative law judge issues a written decision after 
the close of the hearing, file a notice of appeal with the 
administrative law judge and with the Board within 2 working days of 
receipt of the administrative law judge's decision.
    (g) If the decision of the administrative law judge is appealed, the 
Board shall act immediately to issue an expedited briefing schedule, and 
the Board shall act expeditiously to review the record and issue its 
decision. The decision of the Board must be issued within 30 days of the 
date the perfected application is filed with OHA pursuant to 
Sec. 4.1184.
    (h) If all parties waive the opportunity for a hearing and the 
administrative law judge determines that a hearing is not necessary, but 
the applicant does not waive the 30-day decision requirement, the 
administrative law judge shall issue an initial decision on the 
application within 15 days of receipt of the application. The decision 
shall contain findings of fact and an order disposing of the 
application. The decision shall be served upon all the parties and the 
parties shall have 2 working days from receipt of such decision within 
which to appeal to the Board. The Board shall issue its decision within 
30 days of the date the perfected application is filed with OHA pursuant 
to Sec. 4.1184.
    (i) If at any time after the initiation of this expedited procedure, 
the applicant requests a delay or acts in a manner so as to frustrate 
the expeditious nature of this proceeding or fails to comply with any 
requirement of Sec. 4.1187(a), such action shall constitute a waiver of 
the 30-day requirement of section 525(b) of the act.
    (j) If the applicant seeks to offer witnesses, exhibits, or 
testimony at the hearing in addition to those identified, submitted, 
described, or summarized in the application for expedited review 
perfected in accordance with the requirements of Sec. 4.1184, upon 
objection by an opposing party to such offer, the administrative law 
judge may allow such objecting party additional time in order to prepare 
for cross-examination of unidentified witnesses or to identify and 
prepare rebuttal evidence or otherwise uncover any additional prejudice 
which may result to such party. The administrative law judge may rule 
that the running of the 30-day time for decision is stayed for the 
period of any additional time allowed pursuant to this subsection or may 
determine that the applicant has waived his right to the 30-day 
decision.

   Proceedings for Suspension or Revocation of Permits Under Section 
                          521(a)(4) of the Act



Sec. 4.1190  Initiation of proceedings.

    (a) A proceeding on a show cause order issued by the Director of OSM 
pursuant to section 521(a)(4) of the Act shall be initiated by the 
Director of OSM filing a copy of such an order with the Hearings 
Division, OHA, 801 N. Quincy Street, Suite 300, Arlington, VA 22203, 
promptly after the order is issued to the permittee.
    (b) A show cause order filed with OHA shall set forth--
    (1) A list of the unwarranted or willful violations which contribute 
to a pattern of violations;
    (2) A copy of each order or notice which contains one or more of the 
violations listed as contributing to a pattern of violations;
    (3) The basis for determining the existence of a pattern or 
violations; and
    (4) Recommendations whether the permit should be suspended or 
revoked, including the length and terms of a suspension.

[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 4368, Jan. 30, 2002; 67 
FR 61510, Oct. 1, 2002]



Sec. 4.1191  Answer.

    The permittee shall have 30 days from receipt of the order within 
which to file an answer with the Hearings Division, OHA, Arlington, Va.



Sec. 4.1192  Contents of answer.

    The permittee's answer to a show cause order shall contain a 
statement setting forth--
    (a) The reasons in detail why a pattern of violations does not exist 
or has not existed, including all reasons for contesting--
    (1) The fact of any of the violations alleged by OSM as constituting 
a pattern of violations;

[[Page 145]]

    (2) The willfulness of such violations; or
    (3) Whether such violations were caused by the unwarranted failure 
of the permittee;
    (b) All mitigating factors the permittee believes exist in 
determining the terms of the revocation or the length and terms of the 
suspension;
    (c) Any other alleged relevant facts; and
    (d) Whether a hearing on the show cause order is desired.

[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 61510, Oct. 1, 2002]



Sec. 4.1193  Notice of hearing.

    If a hearing on the show cause order is requested, or if no hearing 
is requested but the administrative law judge determines that a hearing 
is necessary, the administrative law judge shall give thirty days 
written notice of the date, time, and place of the hearing to the 
Director, the permittee, the State regulatory authority, if any, and any 
intervenor.

[67 FR 61510, Oct. 1, 2002]



Sec. 4.1194  Burden of proof in suspension or revocation proceedings.

    In proceedings to suspend or revoke a permit, OSM shall have the 
burden of going forward to establish a prima facie case for suspension 
or revocation of the permit. The ultimate burden of persuasion that the 
permit should not be suspended or revoked shall rest with the permittee.

[43 FR 34386, Aug. 3, 1978. Redesignated at 67 FR 61510, Oct. 1, 2002]



Sec. 4.1195  Determination by the administrative law judge.

    (a) Upon a determination by the administrative law judge that a 
pattern of violations exists or has existed, the administrative law 
judge shall order the permit either suspended or revoked. In making such 
a determination, the administrative law judge need not find that all the 
violations listed in the show cause order occurred, but only that 
sufficient violations occurred to establish a pattern.
    (b) If the permit is suspended, the minimum suspension period shall 
be 3 working days unless the administrative law judge finds that 
imposition of the minimum suspension period would result in manifest 
injustice and would not further the purposes of the act. Also, the 
administrative law judge may impose preconditions to be satisfied prior 
to the suspension being lifted.
    (c) The decision of the administrative law judge shall be issued 
within 20 days following the date the hearing record is closed by the 
administrative law judge or within 20 days of receipt of the answer, if 
no hearing is requested by any party and the administrative law judge 
determines that no hearing is necessary.
    (d) At any stage of a suspension or revocation proceeding being 
conducted by an administrative law judge, the parties may enter into a 
settlement, subject to the approval of the administrative law judge.

[43 FR 34386, Aug. 3, 1978. Redesignated and amended at 67 FR 61510, 
Oct. 1, 2002]



Sec. 4.1196  Summary disposition.

    (a) In a proceeding under this section where the permittee fails to 
appear at a hearing, the permittee shall be deemed to have waived his 
right to a hearing and the administrative law judge may assume for 
purposes of the proceeding that--
    (1) Each violation listed in the order occurred;
    (2) Such violations were caused by the permittee's unwarranted 
failure or were willfully caused; and
    (3) A pattern of violations exists.
    (b) In order to issue an initial decision concerning suspension or 
revocation of the permit when the permittee fails to appear at the 
hearing, the administrative law judge shall either conduct an ex parte 
hearing or require OSM to furnish proposed findings of fact and 
conclusions of law.

[43 FR 34386, Aug. 3, 1978. Redesignated at 67 FR 61510, Oct. 1, 2002]



Sec. 4.1197  Appeals.

    Any party desiring to appeal the decision of the administrative law 
judge shall have 5 days from receipt of the administrative law judge's 
decision within which to file a notice of appeal with the Board. The 
Board shall act immediately to issue an expedited

[[Page 146]]

briefing schedule. The decision of the Board shall be issued within 60 
days of the date the hearing record is closed by the administrative law 
judge or, if no hearing is held, within 60 days of the date the answer 
is filed.

[43 FR 34386, Aug. 3, 1978. Redesignated at 67 FR 61510, Oct. 1, 2002]

Applications for Review of Alleged Discriminatory Acts Under Section 703 
                               of the Act



Sec. 4.1200  Filing of the application for review with the Office of Hearings and Appeals.

    (a) Pursuant to 30 CFR 865.13, within 7 days of receipt of an 
application for review of alleged discriminatory acts, OSM shall file a 
copy of the application in the Hearings Division, OHA, 801 N. Quincy 
Street, Suite 300, Arlington, VA 22203. OSM shall also file in the 
Hearings Division, OHA, Arlington, VA, a copy of any answer submitted in 
response to the application for review.
    (b) The application for review, as filed in the Hearings Division, 
OHA, shall be held in suspense until one of the following takes place--
    (1) A request for temporary relief is filed pursuant to Sec. 4.1203;
    (2) A request is made by OSM for the scheduling of a hearing 
pursuant to 30 CFR 865.14(a);
    (3) A request is made by the applicant for the scheduling of a 
hearing pursuant to 30 CFR 865.14(a);
    (4) A request is made by the applicant for the scheduling of a 
hearing pursuant to 30 CFR 865.14(b);
    (5) A request is made by OSM that OHA close the case because OSM, 
the applicant, and the alleged discriminating person have entered into 
an agreement in resolution of the discrimina- tory acts and there has 
been compliance with such agreement.

[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 4368, Jan. 30, 2002; 67 
FR 61510, Oct. 1, 2002]



Sec. 4.1201  Request for scheduling of a hearing.

    (a) If OSM determines that a violation of section 703(a) of the act 
has probably occurred and was not resolved at the informal conference, 
it shall file with the Hearings Division, OHA, a request on behalf of 
the applicant that a hearing be scheduled. The request shall be filed 
within 10 days of the completion of the informal conference, or where no 
conference is held, within 10 days following the scheduled conference. 
Where OSM makes such a request, it shall represent the applicant in the 
administrative proceedings, unless the applicant desires to be 
represented by private counsel.
    (b) If OSM declines to request that a hearing be scheduled and to 
represent the applicant, it shall within 10 days of the completion of 
the informal conference, or where no conference is held, within 10 days 
following the scheduled conference, notify the applicant of his right to 
request the scheduling of a hearing on his own behalf. An applicant 
shall file a request for the scheduling of a hearing in the Hearings 
Division, OHA, within 30 days of service of such notice from OSM.
    (c) If no request for the scheduling of a hearing has been made 
pursuant to paragraph (a) or (b) of this section and 60 days have 
elapsed from the filing of the application for review with OSM, the 
applicant may file on his own behalf a request for the scheduling of a 
hearing with the main office of OHA. Where such a request is made, the 
applicant shall proceed on his own behalf, but OSM may intervene 
pursuant to Sec. 4.1110.



Sec. 4.1202  Response to request for the scheduling of a hearing.

    (a) Any person served with a copy of the request for the scheduling 
of a hearing shall file a response with the Hearings Division, OHA, 
Arlington, Va., within 20 days of service of such request.
    (b) If the alleged discriminating person has not filed an answer to 
the application, such person shall include with the response to the 
request for the scheduling of a hearing, a statement specifically 
admitting or denying the alleged facts set forth in the application.



Sec. 4.1203  Application for temporary relief from alleged discriminatory acts.

    (a) On or after 10 days from the filing of an application for review 
under this

[[Page 147]]

part, any party may file an application for temporary relief from 
alleged discriminatory acts.
    (b) The application shall be filed in the Hearings Division, OHA, 
Arlington, Va.
    (c) The application shall include--
    (1) A detailed written statement setting forth the reasons why 
relief should be granted;
    (2) A showing that the complaint of discrimination was not 
frivolously brought;
    (3) A description of any exigent circumstances justifying temporary 
relief; and
    (4) A statement of the specific relief requested.
    (d) All parties to the proceeding to which the application relates 
shall have 5 days from receipt of the application to file a written 
response.
    (e) The administrative law judge may convene a hearing on any issue 
raised by the application if he deems it appropriate.
    (f) The administrative law judge shall expeditiously issue an order 
or decision granting or denying such relief.
    (g) If all parties consent, before or after the commencement of any 
hearing on the application for temporary relief, the administrative law 
judge may order the hearing on the application for review of alleged 
discrimina- tory acts to be advanced and consolidated with the hearing 
on the application for temporary relief.



Sec. 4.1204  Determination by administrative law judge.

    Upon a finding of a violation of section 703 of the act or 30 CFR 
865.11, the administrative law judge shall order the appropriate 
affirmative relief, including but not limited to--
    (a) The rehiring or reinstatement of the applicant to his former 
position with full rights and privileges, full backpay, and any special 
damages sustained as a result of the discrimination; and
    (b) All other relief which the administrative law judge deems 
apropriate to abate the violation or to prevent recurrence of 
discrimination.

[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 61510, Oct. 1, 2002]



Sec. 4.1205  Appeals.

    Any party aggrieved by a decision of an administrative law judge 
concerning an application for review of alleged discriminatory acts may 
appeal to the Board under procedures set forth in Sec. 4.1271 et seq.

                    Applications for Temporary Relief



Sec. 4.1260  Scope.

    These regulations contain the procedures for seeking temporary 
relief in section 525 review proceedings under the act. The special 
procedures for seeking temporary relief from an order of cessation are 
set forth in Sec. 4.1266. Procedures for seeking temporary relief from 
alleged discrimina- tory acts are covered in Sec. 4.1203.



Sec. 4.1261  When to file.

    An application for temporary relief may be filed by any party to a 
proceeding at any time prior to decision by an administrative law judge.



Sec. 4.1262  Where to file.

    The application shall be filed with the administrative law judge to 
whom the case has been assigned. If no assignment has been made, the 
application shall be filed in the Hearings Division, OHA, 801 North 
Quincy Street, Arlington, Va. 22203.

[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 4368, Jan. 30, 2002]



Sec. 4.1263  Contents of application.

    The application shall include--
    (a) A detailed written statement setting forth the reasons why 
relief should be granted;
    (b) A showing that there is a substantial likelihood that the 
findings and decision of the administrative law judge in the matters to 
which the application relates will be favorable to the applicant;
    (c) A statement that the relief sought will not adversely affect the 
health or safety of the public or cause significant, imminent 
environmental harm to land, air, or water resources;
    (d) If the application relates to an order of cessation issued 
pursuant to section 521(a)(2) or section 521(a)(3) of

[[Page 148]]

the act, a statement of whether the requirement of section 525(c) of the 
act for decision on the application within 5 days is waived; and
    (e) A statement of the specific relief requested.



Sec. 4.1264  Response to application.

    (a) Except as provided in Sec. 4.1266(b), all parties to the 
proceeding to which the application relates shall have 5 days from the 
date of receipt of the application to file a written response.
    (b) Except as provided in Sec. 4.1266(b), the administrative law 
judge may hold a hearing on any issue raised by the application if he 
deems it appropriate.



Sec. 4.1265  Determination on application concerning a notice of violation issued pursuant to section 521(a)(3) of the act.

    Where an application has been filed requesting temporary relief from 
a notice of violation issued under section 521(a)(3) of the act, the 
administrative law judge shall expeditiously issue an order or decision 
granting or denying such relief.



Sec. 4.1266  Determination on application concerning an order of cessation.

    (a) If the 5-day requirement of section 525(c) of the act is waived, 
the administrative law judge shall expeditiously conduct a hearing and 
render a decision on the application.
    (b) If there is no waiver of the 5-day requirement of section 525(c) 
of the act, the following special rules shall apply--
    (1) The 5-day time for decision shall not begin to run until the 
application is filed pursuant to Sec. 4.1262 or a copy of the 
application is received by the field solicitor for the region in which 
the mine site subject to the order is located, whichever occurs at a 
later date (see Sec. 4.1109 for addresses);
    (2) The application shall include an affidavit stating that 
telephone notice has been given to the field office of OSM serving the 
state in which the minesite subject to the order is located. The 
telephone notice shall identify the mine, the mine operator, the date 
and number of the order from which relief is requested, the name of the 
OSM inspector involved, and the name and telephone number of the 
applicant. OSM's field offices and their numbers follow:

Albuquerque Field Office (serving Arizona, California, and New Mexico) 
    (505) 248-5070.
Big Stone Gap Field Office (serving Virginia) (276) 523-4303.
Birmingham Field Office (serving Alabama and Mississippi) (205) 290-7282 
    (ext. 16).
Casper Field Office (serving Idaho, Montana, North Dakota, South Dakota, 
    and Wyoming) (307) 261-6550.
Charleston Field Office (serving West Virginia) (304) 347-7158.
Columbus Team Office (serving Maryland, Michigan, and Ohio) (412) 937-
    2153.
Harrisburg Field Office (serving Massachusetts, Pennsylvania, and Rhode 
    Island) (717) 782-4036.
Knoxville Field Office (serving Georgia, Tennessee, and North Carolina) 
    (865) 545-4103 (ext. 186).
Lexington Field Office (serving Kentucky) (859) 260-8402.
Mid-Continent Regional Coordinating Center (serving Iowa, Kansas, and 
    Missouri) (618) 463-6460.
Olympia Office (serving Washington) (360) 753-9538.
Tulsa Field Office (serving Arkansas, Louisiana, Oklahoma, and Texas) 
    (918) 581-6431 (ext. 23).
Western Regional Coordinating Center (serving Alaska, Colorado, Oregon, 
    and Utah) (303) 844-1400 (ext. 1424).
    (3) Prior to or at the hearing, the applicant shall file with OHA an 
affidavit stating the date upon which the copy of the application was 
delivered to the office of the field solicitor or the applicant may make 
an oral statement at the hearing setting forth that information. For 
purposes of the affidavit or statement the applicant may rely upon 
telephone confirmation by the office of the field solicitor that the 
application was received.
    (4) In addition to the service requirements of Sec. 4.1266(b) (1) 
and (2), the applicant shall serve any other parties with a copy of the 
application simultaneously with the filing of the application. If 
service is accomplished by mail, the applicant shall inform such other 
parties by telephone at the time of mailing that an application is being

[[Page 149]]

filed, the contents of the application, and with whom the application 
was filed.
    (5) The field solicitor and all other parties may indicate their 
objection to the application by communicating such objection to the 
administrative law judge and the applicant by telephone. However, no ex 
parte communication as to the merits of the proceeding may be conducted 
with the administrative law judge. The field solicitor and all other 
parties shall simultaneously reduce their objections to writing. The 
written objections must be immediately filed with the administrative law 
judge and immediately served upon the applicant.
    (6) Upon receipt of communication that there is an objection to the 
request, the administrative law judge shall immediately order a 
location, time, and date for the hearing by communicating such 
information to the field solicitor, all other parties, and the applicant 
by telephone. The administrative law judge shall reduce such 
communications to writing in the form of a memorandum to the file.
    (7) If a hearing is held--
    (i) The administrative law judge may require the parties to submit 
proposed findings of fact and conclusions of law at the hearing which 
may be orally supplemented on the record at the hearing or where written 
proposed findings of fact and conclusions of law have not been submitted 
at the hearing, they may be orally presented for the record at the 
hearing.
    (ii) The administrative law judge shall either rule from the bench 
on the application, orally stating the reasons for his decision or he 
shall within 24 hours of completion of the hearing issue a written 
decision. If the administrative law judge makes an oral ruling, his 
approval of the record of the hearing shall constitute his written 
decision.
    (8) The order or decision of the administrative law judge shall be 
issued within 5 working days of the receipt of the application for 
temporary relief.
    (9) If at any time after the initiation of this expedited procedure, 
the applicant requests a delay or acts in a manner so as to frustrate 
the expeditious nature of this proceeding or fails to supply the 
information required by Sec. 4.1263 such action shall constitute a 
waiver of the 5-day requirement of section 525(c) of the act.

[43 FR 34386, Aug. 3, 1978, as amended at 49 FR 7565, Mar. 1, 1984; 59 
FR 1489, Jan. 11, 1994; 67 FR 61510, Oct. 1, 2002]



Sec. 4.1267  Appeals.

    (a) Any party desiring to appeal a decision of an administrative law 
judge granting temporary relief may appeal to the Board.
    (b) Any party desiring to appeal a decision of an administrative law 
judge denying temporary relief may appeal to the Board or, in the 
alternative, may seek judicial review pursuant to section 526(a) of the 
act.
    (c) The Board shall issue an expedited briefing schedule and shall 
issue a decision on the appeal expeditiously.

[43 FR 34386, Aug. 3, 1978, as amended at 45 FR 50753, July 31, 1980]

  Appeals to the Board From Decisions or Orders of Administrative Law 
                                 Judges



Sec. 4.1270  Petition for discretionary review of a proposed civil penalty.

    (a) Any party may petition the Board to review an order or decision 
by an administrative law judge disposing of a civil penalty proceeding 
under Sec. 4.1150.
    (b) A petition under this section shall be filed on or before 30 
days from the date of receipt of the order or decision sought to be 
reviewed and the time for filing may not be extended.
    (c) A petitioner under this section shall list the alleged errors of 
the administrative law judge and shall attach a copy of the order or 
decision sought to be reviewed.
    (d) Any party may file with the Board a response to the petition for 
review within 10 days of receipt of a copy of such petition.
    (e) Not later than 30 days from the filing of a petition under this 
section, the Board shall grant or deny the petition in whole or in part.
    (f) If the petition is granted, the rules in Secs. 4.1273 through 
4.1277 are applicable and the Board shall use the point system and 
conversion table contained in 30 CFR part 723 or 845 in recalculating 
assessments; however, the Board shall

[[Page 150]]

have the same authority to waive the civil penalty formula as that 
granted to administrative law judges in Sec. 4.1157(b)(1). If the 
petition is denied, the decision of the administrative law judge shall 
be final for the Department, subject to Sec. 4.5.

[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 61511, Oct. 1, 2002]



Sec. 4.1271  Notice of appeal.

    (a) Any aggrieved party may file a notice of appeal from an order or 
decision of an administrative law judge disposing of a proceeding under 
Secs. 4.1160 through 4.1171, 4.1200 through 4.1205, 4.1260 through 
4.1267, 4.1290 through 4.1296, and 4.1350 through 4.1356.
    (b) Except in an expedited review proceeding under Sec. 4.1180, or 
in a suspension or revocation proceeding under Sec. 4.1190, a notice of 
appeal shall be filed with the Board on or before 30 days from the date 
of receipt of the order or decision sought to be reviewed and the time 
for filing may not be extended.

[43 FR 34386, Aug. 3, 1978, as amended at 59 FR 1489, Jan. 11, 1994]



Sec. 4.1272  Interlocutory appeals.

    (a) If a party has sought certification under Sec. 4.1124, that 
party may petition the Board for permission to appeal from an 
interlocutory ruling by an administrative law judge.
    (b) A petition under this section shall be in writing and not exceed 
10 pages in length.
    (c) If the correctness of the ruling sought to be reviewed involves 
a controlling issue of law the resolution of which will materially 
advance final disposition of the case, the Board may grant the petition.
    (d) Upon granting a petition under this section, the Board may 
dispense with briefing or issue a briefing schedule.
    (e) Unless the Board or the administrative law judge orders 
otherwise, an interlocutory appeal shall not operate as a stay of 
further proceedings before the judge.
    (f) In deciding an interlocutory appeal, the Board shall confine 
itself to the issue presented on appeal.
    (g) The Board shall promptly decide appeals under this section.
    (h) Upon affirmance, reversal or modification of the administrative 
law judge's interlocutory ruling or order, the jurisdiction of the Board 
shall terminate, and the case shall be remanded promptly to the 
administrative law judge for further proceedings.



Sec. 4.1273  Briefs.

    (a) Unless the Board orders otherwise, an appellant's brief is due 
on or before 30 days from the date of receipt of notice by the appellant 
that the Board has agreed to exercise discretionary review authority 
pursuant to Sec. 4.1270 or a notice of appeal is filed.
    (b) If any appellant fails to file a timely brief, an appeal under 
this part may be subject to summary dismissal.
    (c) An appellant shall state specifically the rulings to which there 
is an objection, the reasons for such objections, and the relief 
requested. The failure to specify a ruling as objectionable may be 
deemed by the Board as a waiver of objection.
    (d) Unless the Board orders otherwise, within 20 days after service 
of appellant's brief, any other party to the proceeding may file a 
brief.
    (e) If any argument is based upon the evidence of record and there 
is a failure to include specific record citations, when available, the 
Board need not consider the arguments.
    (f) Further briefing may take place by permission of the Board.
    (g) Unless the Board provides otherwise, appellant's brief shall not 
exceed 50 typed pages and an appellee's brief shall not exceed 25 typed 
pages.



Sec. 4.1274  Remand.

    The Board may remand cases if further proceedings are required.



Sec. 4.1275  Final decisions.

    The Board may adopt, affirm, modify, set aside, or reverse any 
finding of fact, conclusion of law, or order of the administrative law 
judge.



Sec. 4.1276  Reconsideration.

    (a) A party may move for reconsideration under Sec. 4.21(d); 
however, the motion shall be filed with the Board within 30 days of the 
date of the decision.
    (b) The filing of a petition for reconsideration shall not stay the 
effect of

[[Page 151]]

any decision or order and shall not affect the finality of any decision 
or order for purposes of judicial review.

[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 61511, Oct. 1, 2002]

   Appeals to the Board From Decisions of the Office of Surface Mining



Sec. 4.1280  Scope.

    This section is applicable to appeals from decisions of the Director 
of OSM concerning small operator exemptions under 30 CFR 710.12(h) and 
to other appeals which are not required by the Act to be determined by 
formal adjudication under the procedures set forth in 5 U.S.C. 554.



Sec. 4.1281  Who may appeal.

    Any person who is or may be adversely affected by a written decision 
of the Director of OSM or his delegate may appeal to the Board where the 
decision specifically grants such right of appeal.



Sec. 4.1282  Appeals; how taken.

    (a) A person appealing under this section shall file a written 
notice of appeal with the office of the OSM official whose decision is 
being appealed and at the same time shall send a copy of the notice to 
the Board of Land Appeals, 801 North Quincy Street, Arlington, Va. 
22203.
    (b) The notice of appeal shall be filed within 20 days from the date 
of receipt of the decision. If the person appealing has not been served 
with a copy of the decision, such appeal must be filed within 30 days of 
the date of the decision.
    (c) The notice of appeal shall indicate that an appeal is intended 
and must identify the decision being appealed. The notice should include 
the serial number or other identification of the case and the date of 
the decision. The notice of appeal may include a statement of reasons 
for the appeal and any arguments the appellant desires to make.
    (d) If the notice of appeal did not include a statement of reasons 
for the appeal, such a statement shall be filed with the Board within 20 
days after the notice of appeal was filed. In any case, the appellant 
shall be permitted to file with the Board additional statements of 
reasons and written arguments or briefs within the 20-day period after 
filing the notice of appeal.

[43 FR 34386, Aug. 3, 1978, as amended at 49 FR 7565, Mar. 1, 1984; 67 
FR 4368, Jan. 30, 2002]



Sec. 4.1283  Service.

    (a) The appellant shall serve personally or by certified mail, 
return receipt requested, a copy of the notice of appeal and a copy of 
any statement of reasons, written arguments, or other documents on each 
party within 15 days after filing the document. Proof of service shall 
be filed with the Board within 15 days after service.
    (b) Failure to serve may subject the appeal to summary dismissal 
pursuant to Sec. 4.1285.



Sec. 4.1284  Answer.

    (a) Any party served with a notice of appeal who wishes to 
participate in the proceedings on appeal shall file an answer with the 
Board within 20 days after service of the notice of appeal or statement 
of reasons where such statement was not included in the notice of 
appeal.
    (b) If additional reasons, written arguments or other documents are 
filed by the appellant, a party shall have 20 days after service thereof 
within which to answer. The answer shall state the reasons the party 
opposes or supports the appeal.



Sec. 4.1285  Summary dismissal.

    An appeal shall be subject to summary dismissal, in the discretion 
of the Board, for failure to file or serve, upon all persons required to 
be served, a notice of appeal or a statement of reasons for appeal.



Sec. 4.1286  Request for hearings.

    (a) Any party may request the Board to order a hearing before an 
administrative law judge in order to present evidence on an issue of 
fact. Such a request shall be made in writing and filed with the Board 
within 20 days after the answer is due. Copies of the request shall be 
served in accordance with Sec. 4.1283.
    (b) The allowance of a request for a hearing is within the 
discretion of the

[[Page 152]]

Board, and the Board may, on its own motion, refer any case to an 
administrative law judge for a hearing on an issue of fact. If a hearing 
is ordered, the Board shall specify the issues upon which the hearing is 
to be held.

 Petitions for Award of Costs and Expenses Under Section 525(e) of the 
                                   Act



Sec. 4.1290  Who may file.

    (a) Any person may file a petition for award of costs and expenses 
including attorneys' fees reasonably incurred as a result of that 
person's participation in any administrative proceeding under the Act 
which results in--
    (1) A final order being issued by an administrative law judge; or
    (2) A final order being issued by the Board.
    (b) [Reserved]



Sec. 4.1291  Where to file; time for filing.

    The petition for an award of costs and expenses including attorneys' 
fees must be filed with the administrative law judge who issued the 
final order, or if the final order was issued by the Board, with the 
Board, within 45 days of receipt of such order. Failure to make a timely 
filing of the petition may constitute a waiver of the right to such an 
award.



Sec. 4.1292  Contents of petition.

    (a) A petition filed under this section shall include the name of 
the person from whom costs and expenses are sought and the following 
shall be submitted in support of the petition--
    (1) An affidavit setting forth in detail all costs and expenses 
including attorneys' fees reasonably incurred for, or in connection 
with, the person's participation in the proceeding;
    (2) Receipts or other evidence of such costs and expenses; and
    (3) Where attorneys' fees are claimed, evidence concerning the hours 
expended on the case, the customary commercial rate of payment for such 
services in the area, and the experience, reputation and ability of the 
individual or individuals performing the services.
    (b) [Reserved]



Sec. 4.1293  Answer.

    Any person served with a copy of the petition shall have 30 days 
from service of the petition within which to file an answer to such 
petition.



Sec. 4.1294  Who may receive an award.

    Appropriate costs and expenses including attorneys' fees may be 
awarded--
    (a) To any person from the permittee, if--
    (1) The person initiates or participates in any administrative 
proceeding reviewing enforcement actions upon a finding that a violation 
of the Act, regulations, or permit has occurred, or that an imminent 
hazard existed, and the administrative law judge or Board determines 
that the person made a substantial contribution to the full and fair 
determination of the issues, except that a contribution of a person who 
did not initiate a proceeding must be separate and distinct from the 
contribution made by a person initiating the proceeding; or
    (2) The person initiates an application for review of alleged 
discrimina- tory acts, pursuant to 30 CFR part 830, upon a finding of 
discriminatory discharge or other acts of discrimination.
    (b) From OSM to any person, other than a permittee or his 
representative, who initiates or participates in any proceeding under 
the Act, and who prevails in whole or in part, achieving at least some 
degree of success on the merits, upon a finding that such person made a 
substantial contribution to a full and fair determination of the issues.
    (c) To a permittee from OSM when the permittee demonstrates that OSM 
issued an order of cessation, a notice of violation or an order to show 
cause why a permit should not be suspended or revoked, in bad faith and 
for the purpose of harassing or embarrassing the permittee; or
    (d) To a permittee from any person where the permittee demonstrates 
that the person initiated a proceeding under section 525 of the Act or 
participated in such a proceeding in bad faith for the purpose of 
harassing or embarrassing the permittee.

[[Page 153]]

    (e) To OSM where it demonstrates that any person applied for review 
pursuant to section 525 of the Act or that any party participated in 
such a proceeding in bad faith and for the purpose of harassing or 
embarrassing the Government.

[43 FR 34386, Aug. 3, 1978, as amended at 50 FR 47224, Nov. 15, 1985]



Sec. 4.1295  Awards.

    An award under these sections may include--
    (a) All costs and expenses, including attorneys' fees and expert 
witness fees, reasonably incurred as a result of initiation and/or 
participation in a proceeding under the Act; and
    (b) All costs and expenses, including attorneys' fees and expert 
witness fees, reasonably incurred in seeking the award in OHA.



Sec. 4.1296  Appeals.

    Any person aggrieved by a decision concerning the award of costs and 
expenses in an administrative proceeding under this Act may appeal such 
award to the Board under procedures set forth in Sec. 4.1271 et seq., 
unless the Board has made the initial decision concerning such an award.

 Petitions for Review of Proposed Individual Civil Penalty Assessments 
                     Under Section 518(f) of the Act

    Source: 53 FR 8754, Mar. 17, 1988, unless otherwise noted.



Sec. 4.1300  Scope.

    These regulations govern administrative review of proposed 
individual civil penalty assessments under section 518(f) of the Act 
against a director, officer, or agent of a corporation.



Sec. 4.1301  Who may file.

    Any individual served a notice of proposed individual civil penalty 
assessment may file a petition for review with the Hearings Division, 
Office of Hearings and Appeals, U.S. Department of the Interior, 801 
North Quincy Street, Arlington, VA 22203. Phone: 703-235-3800.

[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 4368, Jan. 30, 2002]



Sec. 4.1302  Time for filing.

    (a) A petition for review of a notice of proposed individual civil 
penalty assessment must be filed within 30 days of its service on the 
individual.
    (b) No extension of time will be granted for filing a petition for 
review of a notice of proposed individual civil penalty assessment. 
Failure to file a petition for review within the time period provided in 
paragraph (a) shall be deemed an admission of liability by the 
individual, whereupon the notice of proposed assessment shall become a 
final order of the Secretary and any tardy petition shall be dismissed.



Sec. 4.1303  Contents and service of petition.

    (a) An individual filing a petition for review of a notice of 
proposed individual civil penalty assessment shall provide--
    (1) A concise statement of the facts entitling the individual to 
relief;
    (2) A copy of the notice of proposed assessment;
    (3) A copy of the notice(s) of violation, order(s) or final 
decision(s) the corporate permittee is charged with failing or refusing 
to comply with that have been served on the individual by OSM; and
    (4) A statement whether the individual requests or waives the 
opportunity for an evidentiary hearing.
    (b) Copies of the petition shall be served in accordance with 
Sec. 4.1109 (a) and (b) of this part.

[53 FR 8754, Mar. 17, 1988; 53 FR 10036, Mar. 28, 1988]



Sec. 4.1304  Answer, motion, or statement of OSM.

    Within 30 days from receipt of a copy of a petition, OSM shall file 
with the Hearings Division an answer or motion, or a statement that it 
will not file an answer or motion, in response to the petition.

[[Page 154]]



Sec. 4.1305  Amendment of petition.

    (a) An individual filing a petition may amend it once as a matter of 
right before receipt by the individual of an answer, motion, or 
statement of OSM made in accordance with Sec. 4.1304 of this part. 
Thereafter, a motion for leave to amend the petition shall be filed with 
the administrative law judge.
    (b) OSM shall have 30 days from receipt of a petition amended as a 
matter of right to file an answer, motion, or statement in accordance 
with Sec. 4.1304 of this part. If the administrative law judge grants a 
motion to amend a petition, the time for OSM to file an answer, motion, 
or statement shall be set forth in the order granting the motion to 
amend.



Sec. 4.1306  Notice of hearing.

    The administrative law judge shall give notice of the time and place 
of the hearing to all interested parties. The hearing shall be of record 
and governed by 5 U.S.C. 554.



Sec. 4.1307  Elements; burdens of proof.

    (a) OSM shall have the burden of going forward with evidence to 
establish a prima facie case that:
    (1) A corporate permittee either violated a condition of a permit or 
failed or refused to comply with an order issued under section 521 of 
the Act or an order incorporated in a final decision by the Secretary 
under the Act (except an order incorporated in a decision issued under 
sections 518(b) or 703 of the Act or implementing regulations), unless 
the fact of violation or failure or refusal to comply with an order has 
been upheld in a final decision in a proceeding under Sec. 4.1150 
through 4.1158, Sec. 4.1160 through 4.1171, or Sec. 4.1180 through 
4.1187, and Sec. 4.1270 or Sec. 4.1271 of this part, and the individual 
is one against whom the doctrine of collateral estoppel may be applied 
to preclude relitigation of fact issues;
    (2) The individual, at the time of the violation, failure or 
refusal, was a director, officer, or agent of the corporation; and
    (3) The individual willfully and knowingly authorized, ordered, or 
carried out the corporate permittee's violation or failure or refusal to 
comply.
    (b) The individual shall have the ultimate burden of persuasion by a 
preponderance of the evidence as to the elements set forth in paragraph 
(a)(1) of this section and as to whether he was a director or officer of 
the corporation at the time of the violation or refusal.
    (c) OSM shall have the ultimate burden of persuasion by a 
preponderance of the evidence as to whether the individual was an agent 
of the corporation, as to paragraph (a)(3) of this section, and as to 
the amount of the individual civil penalty.



Sec. 4.1308  Decision by administrative law judge.

    (a) The administrative law judge shall issue a written decision 
containing findings of fact and conclusions of law on each of the 
elements set forth in Sec. 4.1307 of this part.
    (b) If the administrative law judge concludes that the individual is 
liable for an individual civil penalty, he shall order that it be paid 
in accordance with 30 CFR 724.18 or 846.18, absent the filing of a 
petition for discretionary review in accordance with Sec. 4.1309 of this 
part.



Sec. 4.1309  Petition for discretionary review.

    (a) Any party may petition the Board to review an order or decision 
by an administrative law judge disposing of an individual civil penalty 
proceeding under Sec. 4.1308 of this part.
    (b) A petition under this section shall be filed on or before 30 
days from the date of receipt of the order or decision sought to be 
reviewed, and the time for filing shall not be extended.
    (c) A petitioner under this section shall list the alleged errors of 
the administrative law judge and shall attach a copy of the order or 
decision sought to be reviewed.
    (d) Any party may file with the Board a response to the petition for 
review within 10 days of receipt of a copy of such petition.
    (e) Not later than 30 days from the filing of a petition for review 
under this section, the Board shall grant or deny the petition in whole 
or in part.
    (f) If the petition for review is granted the rules in Secs. 4.1273-
4.1276 of this part are applicable. If the petition is

[[Page 155]]

denied, the decision of the administrative law judge is final for the 
Department, subject to Sec. 4.5 of this part.
    (g) Payment of a penalty is due in accordance with 30 CFR 724.18 or 
846.18.

 Request for Hearing on a Preliminary Finding Concerning a Demonstrated 
Pattern of Willful Violations Under Section 510(c) of the Act, 30 U.S.C. 
  1260(c) (Federal Program; Federal Lands Program; Federal Program for 
                              Indian Lands)

    Source: 52 FR 39526, Oct. 22, 1987, unless otherwise noted.



Sec. 4.1350  Scope.

    These rules set forth the procedures for obtaining review of a 
preliminary finding by OSM under section 510(c) of the Act and 30 CFR 
774.11(c) of an applicant's or operator's permanent permit 
ineligibility.

[67 FR 61511, Oct. 1, 2002]



Sec. 4.1351  Preliminary finding by OSM.

    (a) If OSM determines that an applicant or operator controls or has 
controlled surface coal mining and reclamation operations with a 
demonstrated pattern of willful violations and the violations are of 
such nature and duration with such resulting irreparable damage to the 
environment as to indicate an intent not to comply with the Act, its 
implementing regulations, the regulatory program, or the permit, OSM 
must serve a preliminary finding of permanent permit ineligibility on 
the applicant or operator.
    (b) OSM must serve the preliminary finding by certified mail, or by 
overnight delivery service if the applicant or operator has agreed to 
bear the expense for this service. The preliminary finding must 
specifically state the violations upon which it is based.

[67 FR 61511, Oct. 1, 2002]



Sec. 4.1352  Who may file; where to file; when to file.

    (a) The applicant or operator may file a request for hearing on 
OSM's preliminary finding of permanent permit ineligibility.
    (b) The request for hearing must be filed with the Hearings 
Division, Office of Hearings and Appeals, U.S. Department of the 
Interior, 801 N. Quincy Street, Suite 300, Arlington, Virginia 22203 
(telephone 703-235-3800), within 30 days of receipt of the preliminary 
finding by the applicant or operator.
    (c) Failure to file a timely request constitutes a waiver of the 
opportunity for a hearing before OSM makes its final finding concerning 
permanent permit ineligibility. Any untimely request will be denied.

[67 FR 61511, Oct. 1, 2002]



Sec. 4.1353  Contents of request.

    The request for hearing shall include--
    (a) A clear statement of the facts entitling the one requesting the 
hearing to administrative relief;
    (b) An explanation of the alleged errors in OSM's preliminary 
finding; and
    (c) Any other relevant information.



Sec. 4.1354  Determination by the administrative law judge.

    The administrative law judge shall promptly set a time and place for 
and give notice of the hearing to the applicant or operator and shall 
issue a decision within 60 days of the filing of a request for hearing. 
The hearing shall be of record and governed by 5 U.S.C. 554.



Sec. 4.1355  Burden of proof.

    OSM shall have the burden of going forward to establish a prima 
facie case and the ultimate burden of persuasion as to the existence of 
a demonstrated pattern of willful violations of such nature and duration 
with such resulting irreparable damage to the environment as to indicate 
an intent not to comply with the Act, its implementing regulations, the 
regulatory program, or the permit.

[67 FR 61511, Oct. 1, 2002]



Sec. 4.1356  Appeals.

    (a) Any party aggrieved by the decision of the administrative law 
judge may appeal to the Board under procedures set forth in Sec. 4.1271 
et seq. of this subpart, except that the notice of appeal must be filed 
within 20 days of receipt of the administrative law judge's decision.

[[Page 156]]

    (b) The Board shall order an expedited briefing schedule and shall 
issue a decision within 45 days of the filing of the appeal.

 Request for Review of Approval or Disapproval of Applications for New 
Permits, Permit Revisions, Permit Renewals, the Transfer, Assignment or 
  Sale of Rights Granted Under Permit (Federal Program; Federal Lands 
  Program; Federal Program for Indian Lands) and for Coal Exploration 
                        Permits (Federal Program)

    Source: 56 FR 2143, Jan. 22, 1991, unless otherwise noted.



Sec. 4.1360  Scope.

    These rules set forth the exclusive procedures for administrative 
review of decisions by OSMRE concerning--
    (a) Applications for new permits, including applications under 30 
CFR part 785, and the terms and conditions imposed or not imposed in 
permits by those decisions. They do not apply to decisions on 
applications to mine on Federal lands in states where the terms of a 
cooperative agreement provide for the applicability of alternative 
administrative procedures (see 30 CFR 775.11(c)), but they do apply to 
OSMRE decisions on applications for Federal lands in states with 
cooperative agreements where OSMRE as well as the state issue Federal 
lands permits;
    (b) Applications for permit revisions, permit renewals, and the 
transfer, assignment, or sale of rights granted under permit;
    (c) Permit revisions ordered by OSMRE;
    (d) Applications for coal exploration permits; and
    (e) Ineligibility for a permit under section 510(c) of the Act and 
30 CFR 773.12.

[56 FR 2143, Jan. 22, 1991; 56 FR 5061, Feb. 7, 1991, as amended at 67 
FR 61511, Oct. 1, 2002]



Sec. 4.1361  Who may file.

    The applicant, permittee, or any person having an interest which is 
or may be adversely affected by a decision of OSMRE set forth in 
Sec. 4.1360 may file a request for review of that decision.



Sec. 4.1362  Where to file; when to file.

    (a) The request for review shall be filed with the Hearings 
Division, Office of Hearings and Appeals, U.S. Department of the 
Interior, 801 North Quincy Street, Arlington, Virginia 22203 (phone 703-
235-3800), within 30 days after the applicant or permittee is notified 
by OSMRE of the written decision by certified mail or by overnight 
delivery service if the applicant or permittee has agreed to bear the 
expense for this service.
    (b) Failure to file a request for review within the time specified 
in paragraph (a) of this section shall constitute a waiver of a hearing 
and the request shall be dismissed.

[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 4368, Jan. 30, 2002]



Sec. 4.1363  Contents of request; amendment of request; responses.

    (a) The request for review shall include--
    (1) A clear statment of the facts entitling the one requesting 
review to administrative relief;
    (2) An explanation of each specific alleged error in OSMRE's 
decision, including reference to the statutory and regulatory provisions 
allegedly violated;
    (3) A request for specific relief;
    (4) A statement whether the person requests or waives the 
opportunity for an evidentiary hearing; and
    (5) Any other relevant information.
    (b) All interested parties shall file an answer or motion in 
response to a request for review, or a statement that no answer or 
motion will be filed, within 15 days of receipt of the request 
specifically admitting or denying facts or alleged errors stated in the 
request and setting forth any other matters to be considered on review.
    (c) A request for review may be amended once as a matter of right 
prior to filing of an answer or motion or statement filed in accordance 
with paragraph (b) of this section. Thereafter, a motion for leave to 
amend the request shall be filed with the Administrative Law Judge. An 
Administrative Law Judge may not grant a motion for leave to amend 
unless all parties agree

[[Page 157]]

to an extension of the date of commencement of the hearing under 
Sec. 4.1364. A request for review may not be amended after a hearing 
commences.
    (d) An interested party shall have 10 days from filing of a request 
for review that is amended as a matter of right or the time remaining 
for response to the original request, whichever is longer, to file an 
answer, motion, or statement in accordance with paragraph (b) of this 
section. If the Administrative Law Judge grants a motion to amend a 
request for review, the time for an interested party to file an answer, 
motion, or statement shall be set forth in the order granting it.
    (e) Failure of any party to comply with the requirements of 
paragraph (a) or (b) of this section may be regarded by an 
Administrative Law Judge as a waiver by that party of the right to 
commencement of a hearing within 30 days of the filing of a request for 
review if the Administrative Law Judge concludes that the failure was 
substantial and that another party was prejudiced as a result.

[56 FR 2143, Jan. 22, 1991; 56 FR 5061, Feb. 7, 1991]



Sec. 4.1364  Time for hearing; notice of hearing; extension of time for hearing.

    Unless all parties agree in writing to an extension or waiver, the 
Administrative Law Judge shall commence a hearing within 30 days of the 
date of the filing of the request for review or amended request for 
review and shall simultaneously notify the applicant or permittee and 
all interested parties of the time and place of such hearing before the 
hearing commences. The hearing shall be of record and governed by 5 
U.S.C. 554. An agreement to waive the time limit for commencement of a 
hearing may specify the length of the extension agreed to.



Sec. 4.1365  Status of decision pending administrative review.

    The filing of a request for review shall not stay the effectiveness 
of the OSMRE decision pending completion of administrative review.



Sec. 4.1366  Burdens of proof.

    (a) In a proceeding to review a decision on an application for a new 
permit--
    (1) If the permit applicant is seeking review, OSMRE shall have the 
burden of going forward to establish a prima facie case as to failure to 
comply with the applicable requirements of the Act or the regulations or 
as to the appropriateness of the permit terms and conditions, and the 
permit applicant shall have the ultimate burden of persuasion as to 
entitlement to the permit or as to the inappropriateness of the permit 
terms and conditions.
    (2) If any other person is seeking review, that person shall have 
the burden of going forward to establish a prima facie case and the 
ultimate burden of persuasion that the permit application fails in some 
manner to comply with the applicable requirements of the Act or the 
regulations, or that OSMRE should have imposed certain terms and 
conditions that were not imposed.
    (b) In a proceeding to review a permit revision ordered by OSMRE, 
OSMRE shall have the burden of going forward to establish a prima facie 
case that the permit should be revised and the permittee shall have the 
ultimate burden of persuasion.
    (c) In a proceeding to review the approval or disapproval of an 
application for a permit renewal, those parties opposing renewal shall 
have the burden of going forward to establish a prima facie case and the 
ultimate burden of persuasion that the renewal application should be 
disapproved.
    (d) In a proceeding to review the approval or disapproval of an 
application for a permit revision or an application for the transfer, 
assignment, or sale of rights granted under a permit--
    (1) If the applicant is seeking review, OSMRE shall have the burden 
of going forward to establish a prima facie case as to failure to comply 
with applicable requirements of the Act or the regulations, and the 
applicant requesting review shall have the ultimate burden of persuasion 
as to entitlement to approval of the application; and
    (2) If any other person is seeking review, that person shall have 
the burden of going forward to establish a prima facie case and the 
ultimate burden of

[[Page 158]]

persuasion that the application fails in some manner to comply with the 
applicable requirements of the Act and the regulations.
    (e) In a proceeding to review a decision on an application for a 
coal exploration permit--
    (1) If the coal exploration permit applicant is seeking review, 
OSMRE shall have the burden of going forward to establish a prima facie 
case as to failure to comply with the applicable requirements of the Act 
or the regulations, and the permit applicant shall have the ultimate 
burden of persuasion as to entitlement to the approval.
    (2) If any other person is seeking review, that person shall have 
the burden of going forward to establish a prima facie case and the 
ultimate burden of persuasion that the application fails in some manner 
to comply with the applicable requirements of the Act or the 
regulations.



Sec. 4.1367  Request for temporary relief.

    (a) Where review is requested pursuant to Sec. 4.1362, any party may 
file a request for temporary relief at any time prior to a decision by 
an Administrative Law Judge, so long as the relief sought is not the 
issuance of a permit where a permit application has been disapproved in 
whole or in part.
    (b) The request shall be filed with the Administrative Law Judge to 
whom the case has been assigned. If no assignment has been made, the 
application shall be filed in the Hearings Division, Office of Hearings 
and Appeals, U.S. Department of the Interior, 801 North Quincy Street, 
Arlington, Virginia 22203 (phone 703-235-3800).
    (c) The application shall include--
    (1) A detailed written statement setting forth the reasons why 
relief should be granted;
    (2) A statement of the specific relief requested;
    (3) A showing that there is a substantial likelihood that the person 
seeking relief will prevail on the merits of the final determination of 
the proceeding; and
    (4) A showing that the relief sought will not adversely affect the 
public health or safety or cause significant, imminent environmental 
harm to land, air, or water resources.
    (d) The Administrative Law Judge may hold a hearing on any issue 
raised by the application.
    (e) The Administrative Law Judge shall issue expeditiously an order 
or decision granting or denying such temporary relief. Temporary relief 
may be granted only if--
    (1) All parties to the proceeding have been notified and given an 
opportunity to be heard on a request for temporary relief;
    (2) The person requesting such relief shows a substantial likelihood 
of prevailing on the merits of the final determination of the 
proceeding; and
    (3) Such relief will not adversely affect the public health or 
safety or cause significant, imminent environmental harm to land, air, 
or water resources.
    (f) Appeals of temporary relief decisions.
    (1) Any party desiring to appeal the decision of the Administrative 
Law Judge granting or denying temporary relief may appeal to the Board, 
or, in the alternative, may seek judicial review pursuant to section 
526(a), 30 U.S.C. 1276(a), of the Act.
    (2) The Board shall issue an expedited briefing schedule and shall 
issue a decision on the appeal expeditiously.

[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 4368, Jan. 30, 2002]



Sec. 4.1368  Determination by the Administrative Law Judge.

    Unless all parties agree in writing to an extension or waiver, the 
Administrative Law Judge shall issue a written decision in accordance 
with Sec. 4.1127 within 30 days of the date the hearing record is closed 
by the Administrative Law Judge. An agreement to waive the time limit 
for issuing a decision may specify the length of the extension agreed 
to.



Sec. 4.1369  Petition for discretionary review; judicial review.

    (a) Any party aggrieved by a decision of an Administrative Law Judge 
may file a petition for discretionary review with the Board within 30 
days of receipt of the decision or, in the alternative, may seek 
judicial review in accordance with 30 U.S.C. 1276(a)(2) (1982). A copy 
of the petition shall be served

[[Page 159]]

simultaneously on the Administrative Law Judge who issued the decision, 
who shall forthwith forward the record to the Board, and on all other 
parties to the proceeding.
    (b) The petition shall set forth specifically the alleged errors in 
the decision, with supporting argument, and shall attach a copy of the 
decision.
    (c) Any party may file a response to a petition for discretionary 
review within 20 days of receipt of the petition.
    (d) The Board shall issue a decision denying the petition or 
granting the petition and deciding the merits within 60 days of the 
deadline for filing responses.

Review of OSM Decisions Proposing To Suspend or Rescind or Suspending or 
                 Rescinding Improvidently Issued Permits

    Source: 59 FR 54326, Oct. 28, 1994, unless otherwise noted.



Sec. 4.1370  Scope.

    Sections 4.1370 through 4.1377 govern the procedures for review of a 
written notice of proposed suspension or rescission of an improvidently 
issued permit issued by OSM under 30 CFR 773.22 and of a written notice 
of suspension or rescission of an improvidently issued permit issued by 
OSM under 30 CFR 773.23.

[67 FR 61511, Oct. 1, 2002]



Sec. 4.1371  Who may file, where to file, when to file.

    (a) A permittee that is served with a notice of proposed suspension 
or rescission under 30 CFR 773.22 or a notice of suspension or 
rescission under 30 CFR 773.23 may file a request for review with the 
Hearings Division, Office of Hearings and Appeals, U.S. Department of 
the Interior, 801 N. Quincy Street, Suite 300, Arlington, Virginia 22203 
(telephone 703-235-3800) within 30 days of service of the notice.
    (b) Failure to file a request for review within 30 days of service 
of the notice shall constitute a waiver of review of the notice. An 
untimely request for review shall be dismissed.
    (c) Where appropriate under the Administrative Dispute Resolution 
Act, 5 U.S.C. Secs. 571-583, the Hearings Division may use a dispute 
resolution proceeding, if the parties agree to such proceeding, before 
the procedures set forth in Secs. 4.1373 through 4.1377.

[59 FR 54326, Oct. 28, 1994, as amended at 67 FR 4368, Jan. 30, 2002; 67 
FR 61511, Oct. 1, 2002]



Sec. 4.1372  Contents of request for review, response to request, amendment of request.

    (a) The request for review shall include:
    (1) A copy of the notice of proposed suspension or rescission or the 
notice of suspension or rescission;
    (2) Documentary proof, or, where appropriate, offers of proof, 
concerning the matters in 30 CFR 773.21(a) and (b) or 30 CFR 773.14(c) 
for a notice of proposed suspension or rescission, or 30 CFR 
773.23(a)(1) through (a)(6) for a notice of suspension or rescission, 
showing that the person requesting review is entitled to administrative 
relief;
    (3) A statement whether the person requesting review wishes an 
evidentiary hearing or waives the opportunity for such a hearing;
    (4) A request for specific relief; and
    (5) Any other relevant information.
    (b) Within 20 days of service of the request for review by the 
permittee in accordance with 43 CFR 4.1109, OSM and all interested 
parties shall file an answer to the request for review or a motion in 
response to the request or a statement that no answer or motion will be 
filed. OSM or any interested party may request an evidentiary hearing 
even if the person requesting review has waived the opportunity for such 
a hearing.
    (c) The permittee may amend the request for review once as a matter 
of right before a response in accordance with paragraph (b) of this 
section is required to be filed. After the period for filing such a 
response, the permittee may file a motion for leave to amend the request 
for review with the administrative law judge. If the administrative law 
judge grants a motion for leave to amend, he shall provide OSM and any 
other party that filed a response in accordance with paragraph

[[Page 160]]

(b) not less than 10 days to file an amended response.

[59 FR 54326, Oct. 28, 1994, as amended at 67 FR 61511, Oct. 1, 2002]



Sec. 4.1373  Hearing.

    (a) If a hearing is requested, the administrative law judge shall 
convene the hearing within 90 days of receipt of the responses under 
Sec. 4.1372(b). The 90-day deadline for convening the hearing may be 
waived for a definite time by the written agreement of all parties, 
filed with the administrative law judge, or may be extended by the 
administrative law judge, in response to a motion setting forth good 
cause to do so, if no other party is prejudiced by the extension.
    (b) The administrative law judge shall give notice of the hearing at 
least 10 days in advance of the date of the hearing.

[59 FR 54362, Oct. 28, 1994; 59 FR 56573, Nov. 14, 1994]



Sec. 4.1374  Burdens of proof.

    (a) OSM shall have the burden of going forward to present a prima 
facie case of the validity of the notice of proposed suspension or 
rescission or the notice of suspension or rescission.
    (b) The permittee shall have the ultimate burden of persuasion by a 
preponderance of the evidence that the notice is invalid.

[59 FR 54326, Oct. 28, 1994, as amended at 67 FR 61512, Oct. 1, 2002]



Sec. 4.1375  Time for initial decision.

    The administrative law judge shall issue an initial decision within 
30 days of the date the record of the hearing is closed, or, if no 
hearing is held, within 30 days of the deadline for filing responses 
under Sec. 4.1372(b).



Sec. 4.1376  Petition for temporary relief from notice of proposed suspension or rescission or notice of suspension or rescission; appeals from decisions 
          granting or denying temporary relief.

    (a) Any party may file a petition for temporary relief from the 
notice of proposed suspension or rescission or the notice of suspension 
or rescission in conjunction with the filing of the request for review 
or at any time before an initial decision is issued by the 
administrative law judge.
    (b) The petition for temporary relief shall be filed with the 
administrative law judge to whom the request for review has been 
assigned. If none has been assigned, the petition shall be filed with 
the Hearings Division, Office of Hearings and Appeals, U.S. Department 
of the Interior, 801 North Quincy Street, Arlington, Virginia 22203 
(Telephone 703-235-3800).
    (c) The petition for temporary relief shall include:
    (1) A statement of the specific relief requested;
    (2) A detailed statement of why temporary relief should be granted, 
including--
    (i) A showing that there is a substantial likelihood that petitioner 
will prevail on the merits, and
    (ii) A showing that the relief sought will not adversely affect the 
public health or safety or cause significant, imminent environmental 
harm to land, air or water resources;
    (3) A statement whether the petitioner requests an evidentiary 
hearing.
    (d) Any party may file a response to the petition no later than 5 
days after it was served and may request a hearing even if the 
petitioner has not done so.
    (e) The administrative law judge may hold a hearing on any issue 
raised by the petition within 10 days of the filing of responses to the 
petition, and shall do so if a hearing is requested by any party.
    (f) The administrative law judge shall issue an order or decision 
granting or denying the petition for temporary relief within 5 days of 
the date of a hearing on the petition or, if no hearing is held, of 
service of the responses to the petition on all parties.
    (g) The administrative law judge may only grant temporary relief if:
    (1) All parties to the proceeding have been notified of the petition 
and have had an opportunity to respond and a hearing has been held if 
requested;
    (2) The petitioner has demonstrated a substantial likelihood of 
prevailing on the merits; and
    (3) Temporary relief will not adversely affect public health or 
safety or

[[Page 161]]

cause significant, imminent harm to land, air or water resources.
    (h) Any party may file an appeal of an order or decision granting or 
denying temporary relief with the Board within 30 days of receipt of the 
order or decision or, in the alternative, may seek judicial review 
within 30 days in accordance with section 526(a) of the Act, 30 U.S.C. 
1276(a). If an appeal is filed with the Board, the Board shall issue an 
expedited briefing schedule and shall decide the appeal expeditiously.

[59 FR 54326, Oct. 28, 1994, as amended at 67 FR 4368, Jan. 30, 2002; 67 
FR 61512, Oct. 1, 2002]



Sec. 4.1377  Petition for discretionary review of initial decision.

    (a) Any party may file a petition for discretionary review of an 
initial decision of an administrative law judge issued under Sec. 4.1375 
with the Board within 30 days of receipt of the decision. An untimely 
petition shall be dismissed.
    (b) The petition for discretionary review shall set forth 
specifically the alleged errors in the initial decision, with supporting 
argument, and shall attach a copy of the decision.
    (c) Any party may file a response to the petition for discretionary 
review within 30 days of its service.
    (d) The Board shall issue a decision denying the petition or 
granting the petition and deciding the merits within 60 days of the 
deadline for filing responses.

    Review of Office of Surface Mining Written Decisions Concerning 
                     Ownership or Control Challenges

    Source: 59 FR 54363, Oct. 28, 1994, unless otherwise noted.



Sec. 4.1380  Scope.

    Sections 4.1380 through 4.1387 govern the procedures for review of a 
written decision issued by OSM under 30 CFR 773.28 on a challenge to a 
listing or finding of ownership or control.

[67 FR 61512, Oct. 1, 2002]



Sec. 4.1381  Who may file; when to file; where to file.

    (a) Any person who receives a written decision issued by OSM under 
30 CFR 773.28 on a challenge to an ownership or control listing or 
finding may file a request for review with the Hearings Division, Office 
of Hearings and Appeals, U.S. Department of the Interior, 801 N. Quincy 
Street, Suite 300, Arlington, Virginia 22203 (telephone 703-235-3800) 
within 30 days of service of the decision.
    (b) Failure to file a request for review within 30 days of service 
of the decision constitutes a waiver of review of the decision. An 
untimely request for review shall be dismissed.
    (c) Where appropriate under the Administrative Dispute Resolution 
Act, 5 U.S.C. Secs. 571-583, the Hearings Division may use a dispute 
resolution proceeding, if the parties agree to such proceeding, before 
the procedures set forth in Secs. 4.1383 through 4.1387.

[59 FR 54363, Oct. 28, 1994, as amended at 67 FR 4368, Jan. 30, 2002]



Sec. 4.1382  Contents of request for review; response to request; amendment of request.

    (a) The request for review shall include:
    (1) A copy of the decision of OSM;
    (2) A statement of the alleged errors in the decision and the facts 
that entitle the person requesting review to administrative relief;
    (3) A statement whether the person requesting review wishes an 
evidentiary hearing or waives the opportunity for such a hearing;
    (4) A request for specific relief; and
    (5) Any other relevant information.
    (b) Within 20 days of service of the request for review in 
accordance with 43 CFR 4.1109, OSM and all interested parties shall file 
an answer to the request for review or a motion in response to the 
request or a statement that no answer or motion will be filed. OSM or 
any interested party may request an evidentiary hearing even if the 
person requesting review has waived the opportunity for a hearing.
    (c) The person filing the request for review may amend it once as a 
matter of right before the response in accordance with paragraph (b) of 
this section

[[Page 162]]

is required to be filed. After the period for filing such a response, 
the person may file a motion for leave to amend the request with the 
administrative law judge. If the administrative law judge grants a 
motion for leave to amend, he shall provide OSM and any other party that 
filed a response in accordance with paragraph (b) not less than 10 days 
to file an amended response.



Sec. 4.1383  Hearing.

    (a) If a hearing is requested, the administrative law judge shall 
convene the hearing within 90 days of receipt of responses under 
Sec. 4.1382(b). The 90-day deadline for convening the hearing may be 
waived for a definite time by the written agreement of all parties, 
filed with the administrative law judge, or may be extended by the 
administrative law judge, in response to a motion setting forth good 
cause to do so, if no other party is prejudiced by the extension.
    (b) The administrative law judge shall give notice of the hearing at 
least 10 days in advance of the date of the hearing.



Sec. 4.1384  Burdens of proof.

    (a) OSM shall have the burden of going forward to present a prima 
facie case of the validity of the decision.
    (b) The person filing the request for review shall have the ultimate 
burden of persuasion by a preponderance of the evidence that the 
decision is in error.



Sec. 4.1385  Time for initial decision.

    The administrative law judge shall issue an initial decision within 
30 days of the date the record of the hearing is closed, or, if no 
hearing is held, within 30 days of the deadline for filing responses 
under Sec. 4.1382(b).



Sec. 4.1386  Petition for temporary relief from decision; appeals from decisions granting or denying temporary relief.

    (a) Any party may file a petition for temporary relief from the 
decision of OSM in conjunction with the filing of the request for review 
or at any time before an initial decision is issued by the 
administrative law judge.
    (b) The petition for temporary relief shall be filed with the 
administrative law judge to whom the request for review has been 
assigned. If none has been assigned, the petition shall be filed with 
the Hearings Division, Office of Hearings and Appeals, U.S. Department 
of the Interior, 801 North Quincy Street, Arlington, Virginia 22203 
(Telephone 703-235-3800).
    (c) The petition for temporary relief shall include:
    (1) A statement of the specific relief requested:
    (2) A detailed statement of why temporary relief should be granted, 
including:
    (i) A showing that there is a substantial likelihood that petitioner 
will prevail on the merits, and
    (ii) A showing that granting the relief requested will not adversely 
affect the public health or safety or cause significant, imminent 
environmental harm to land, air or water resources;
    (3) A statement whether the petitioner requests an evidentiary 
hearing.
    (d) Any party may file a response to the petition no later than 5 
days after it was served and may request a hearing even if the 
petitioner has not done so.
    (e) The administrative law judge may hold a hearing on any issue 
raised by the petition within 10 days of the filing of responses to the 
petition, and shall do so if a hearing is requested by any party.
    (f) The administrative law judge shall issue an order or decision 
granting or denying the petition for temporary relief within 5 days of 
the date of a hearing on the petition or, if no hearing is held, of 
service of the responses to the petition on all parties.
    (g) The administrative law judge may only grant temporary relief if:
    (1) All parties to the proceeding have been notified of the petition 
and have had an opportunity to respond and a hearing has been held if 
requested;
    (2) The petitioner has demonstrated a substantial likelihood of 
prevailing on the merits; and
    (3) Temporary relief will not adversely affect public health or 
safety or cause significant, imminent environmental harm to land, air or 
water resources.

[[Page 163]]

    (h) Any party may file an appeal of an order or decision granting or 
denying temporary relief with the Board within 30 days of receipt of the 
order or decision or, in the alternative, may seek judicial review 
within 30 days in accordance with section 526(a) of the Act, 30 U.S.C. 
1276(a). If an appeal is filed with the Board, the Board shall issue an 
expedited briefing schedule and shall decide the appeal expeditiously.

[59 FR 54363, Oct. 28, 1994, as amended at 67 FR 4368, Jan. 30, 2002]



Sec. 4.1387  Petition for discretionary review of initial decisions.

    (a) Any party may file a petition for discretionary review of an 
initial decision of an administrative law judge issued under Sec. 4.1385 
with the Board within 30 days of receipt of the decision. An untimely 
petition shall be dismissed.
    (b) The petition for discretionary review shall set forth 
specifically the alleged errors in the initial decision, with supporting 
argument, and shall attach a copy of the decision.
    (c) Any party may file a response to the petition for discretionary 
review within 30 days of its service.
    (d) The Board shall issue a decision denying the petition or 
granting the petition and deciding the merits within 60 days of the 
deadline for filing responses.

Request for Review of OSM Determinations of Issues Under 30 CFR Part 761 
  (Federal Program; Federal Lands Program; Federal Program for Indian 
                                 Lands)

    Source: 52 FR 39530, Oct. 22, 1987, unless otherwise noted.



Sec. 4.1390  Scope.

    Sections 4.1391 through 4.1394 set forth the procedures for 
obtaining review of an OSM determination under 30 CFR 761.16 that a 
person does or does not have valid existing rights.

[67 FR 61512, Oct. 1, 2002]



Sec. 4.1391  Who may file; where to file; when to file; filing of administrative record.

    (a) The person who requested a determination under 30 CFR 761.16 or 
any person with an interest that is or may be adversely affected by a 
determination that a person does or does not have valid existing rights 
may file a request for review of the determination with the office of 
the OSM official whose determination is being reviewed and at the same 
time shall send a copy of the request to the Interior Board of Land 
Appeals, U.S. Department of the Interior, 801 N. Quincy Street, Suite 
300, Arlington, VA 22203 (telephone 703-235-3750). OSM shall file the 
complete administrative record of the determination under review with 
the Board as soon as practicable.
    (b) OSM must provide notice of the valid existing rights 
determination to the person who requested that determination by 
certified mail, or by overnight delivery service if the person has 
agreed to bear the expense of this service.
    (1) When the determination is made independently of a decision on an 
application for a permit or for a permit boundary revision, a request 
for review shall be filed within 30 days of receipt of the determination 
by a person who has received a copy of it by certified mail or overnight 
delivery service. The request for review shall be filed within 30 days 
of the date of publication of the determination in a newspaper of 
general circulation or in the Federal Register, whichever is later, by 
any person who has not received a copy of it by certified mail or 
overnight delivery service.
    (2) When the determination is made in conjunction with a decision on 
an application for a permit or for a permit boundary revision, the 
request for review must be filed in accordance with Sec. 4.1362.
    (c) Failure to file a request for review within the time specified 
in paragraph (b) of this section shall constitute a waiver of the right 
to review and the request shall be dismissed.

[56 FR 2145, Jan. 22, 1991, as amended at 67 FR 4368, Jan. 30, 2002; 67 
FR 61512, Oct. 1, 2002]

[[Page 164]]



Sec. 4.1392  Contents of request; amendment of request; responses.

    (a) The request for review shall include--
    (1) A clear statement of the reasons for appeal;
    (2) A request for specific relief;
    (3) A copy of the decision appealed from; and
    (4) Any other relevant information.
    (b) All interested parties shall file an answer or motion in 
response to a request for review or a statement that no answer or motion 
will be filed within 15 days of receipt specifically admitting or 
denying facts or alleged errors stated in the request and setting forth 
any other matters to be considered on review.
    (c) A request for review may be amended once as a matter of right 
prior to receipt of an answer or motion or statement filed in accordance 
with paragraph (b) of this section. Thereafter, a motion for leave to 
amend the request shall be filed with the Board.
    (d) An interested party shall have 10 days from receipt of a request 
for review that is amended as a matter of right or the time remaining 
for response to the original request to file an answer, motion, or 
statement in accordance with paragraph (b) of this section, whichever is 
longer. If the Board grants a motion to amend a request for review, the 
time for an interested party to file an answer, motion, or statement 
shall be set forth in the order granting the motion.



Sec. 4.1393  Status of decision pending administrative review.

    43 CFR 4.21(a) applies to determinations of the Office of Surface 
Mining under 30 U.S.C. 1272(e).



Sec. 4.1394  Burden of proof.

    (a) If the person who requested the determination is seeking review, 
OSM shall have the burden of going forward to establish a prima facie 
case and the person who requested the determination shall have the 
ultimate burden of persuasion.
    (b) If any other person is seeking review, that person shall have 
the burden of going forward to establish a prima facie case and the 
ultimate burden of persuasion that the person who requested the 
determination does or does not have valid existing rights.

[67 FR 61512, Oct. 1, 2002]



 Subpart M--Special Procedural Rules Applicable to Appeals of Decisions 
                      Made Under OMB Circular A-76

    Authority: 5 U.S.C. 301.

    Source: 45 FR 75213, Nov. 14, 1980. Redesignated at 52 FR 39525, 
Oct. 22, 1987.



Sec. 4.1600  Purpose and nature of the appeal process.

    (a) This appeals procedure embodies an informal administrative 
review of agency decisions made under OMB Circular A-76, and is intended 
to assure that such decisions are fair, equitable, and in compliance 
with the provisions of the Circular. This procedure provides affected 
parties an opportunity to request that such decisions be objectively 
reviewed by a party independent of the A-76 decision process.
    (b) This appeals procedure is administrative rather than judicial in 
nature, and does not provide for a judicial review or for further levels 
of appeal. The decisions of the appeals official are final.
    (c) This procedure is intended to protect the rights of all affected 
parties and, therefore, neither the procedure nor agency determinations 
may be subject to negotiation, arbitration, or agreements with any one 
of the parties.



Sec. 4.1601  Basis for appeal.

    (a) An appeal may be based only on a specific alleged material 
deviation (or deviations) by the agency from the provisions of OMB 
Circular A-76 or Supplement No. 1 thereto, the ``Cost Comparison 
Handbook.'' Appeals may not be based on other factors, such as the 
economic impact of the agency's decision on a community, or other 
socioeconomic issues.
    (b) This appeals procedure shall be used only to resolve questions 
of the determination between contract and in-house performance of a 
commercial or industrial type requirement, and shall not apply to 
questions concerning

[[Page 165]]

award to one contractor in preference to another.



Sec. 4.1602  Who may appeal under this procedure.

    An appeal may be filed by any affected party, viz, employees of the 
Federal activity under review, authorized employee representative 
organizations, contractors, and potential contractors.



Sec. 4.1603  Appeal period.

    An appeal may be submitted at any time within 45 calendar days after 
announcement of an agency decision regarding the method of performance 
of a commercial or industrial type requirement.



Sec. 4.1604  Method of filing an appeal.

    An appeal must be in writing, and must be submitted to: Director, 
Office of Hearings and Appeals, U.S. Department of the Interior, 801 
North Quincy Street, Arlington, Virginia 22203.

[45 FR 75213, Nov. 14, 1980. Redesignated at 52 FR 39525, Oct. 22, 1987. 
And amended at 67 FR 4368, Jan. 30, 2002]



Sec. 4.1605  Action by the Office of Hearings and Appeals.

    (a) Upon receipt of an appeal, the Director, Office of Hearings and 
Appeals shall designate an appeals official, who shall process the 
appeal.
    (b) The appeals official shall promptly docket the appeal and send 
copies of the docketing notice to the appellant, the director or other 
appropriate official of the bureau or office involved, and the Solicitor 
of the Department.



Sec. 4.1606  Department representation.

    (a) Upon receipt of the docketing notice, the Solicitor shall 
appoint counsel to represent the Department in the appeal action, and so 
notify the appellant and the appeals official.
    (b) Within seven calendar days of his designation the Department 
Counsel shall assemble and transmit to the appeals official a file 
containing the appealed agency decision and all documents relevant 
thereto, including the detailed analysis upon which the agency decision 
was based. At the same time, the Department Counsel shall send to the 
appellant a copy of the transmittal document, containing a table of 
contents of the file.



Sec. 4.1607  Processing the appeal.

    (a) The appeals official shall arrange such conferences with the 
concerned parties as are necessary, including (if requested by the 
appellant) an oral presentation.
    (b) The appeals official may require either party to submit any 
additional documents, oral or written testimony, or other items of 
evidence which he considers necessary for a complete review of the 
agency decision.
    (c) All documentary evidence submitted by one party to the appeal 
action shall be made available to the other party (or parties), except 
that availability of proprietary information may be restricted by the 
party holding the proprietary interest in such information.



Sec. 4.1608  Oral presentations.

    (a) Upon request of the appellant, an opportunity for an oral 
presentation to the appeals official shall be granted. The purpose of an 
oral presentation shall be to permit the appellant to discuss or explain 
factual evidence supporting his allegations, and/or to obtain oral 
explanations of pertinent evidence. The time and place of each oral 
presentation shall be determined by the appeals official, after 
consultation with the appropriate parties.
    (b) The appellant may, but is not required to, be represented by 
legal counsel at an oral presentation.
    (c) The Department Counsel and the bureau/office involved shall be 
invited to attend any oral presentation. The appeals official may 
require the attendance and participation of an official or employee of 
the Department, whether or not requested by the appellant, if, in the 
appeals official's judgment, such official or employee may possess 
knowledge or information pertinent to the agency decision being 
appealed, and if this knowledge or information is unobtainable 
elsewhere.
    (d) An oral presentation shall not constitute a judicial proceeding, 
and no such judicial proceeding or hearing shall be provided for in this 
appeals process. There shall be no requirement

[[Page 166]]

for legal briefs, sworn statements, interrogation under oath, official 
transcripts of testimony, etc., unless the appeals official determines 
such are necessary for effective disposition of the appeal.



Sec. 4.1609  Multiple appeals.

    If two or more appellants submit appeals of the same agency 
decision, which are based on the same or similar allegations, the 
appeals official may, at his discretion, consider all such appeals 
concurrently and issue a single written decision resolving all of the 
several appeals.



Sec. 4.1610  Decision of the appeals official.

    (a) Within 30 calendar days after receipt of an appeal by the Office 
of Hearings and Appeals, the appeals official shall issue a written 
decision, either affirming or denying the appeal. This decision shall be 
final, with no judicial review or further avenue of appeal.
    (b) If the appeals official affirms the appeal, his decision 
regarding further action by the agency shall be binding upon the agency.
    (c) If it proves impracticable to issue a decision within the 
prescribed 30 calendar days, the appeals official may extend this 
period, notifying all concerned parties of the anticipated decision 
date.



PART 5--MAKING PICTURES, TELEVISION PRODUCTIONS OR SOUND TRACKS ON CERTAIN AREAS UNDER THE JURISDICTION OF THE DEPARTMENT OF THE INTERIOR--Table of Contents




Sec.
5.1  Areas administered by U.S. Fish and Wildlife Service or National 
          Park Service.
5.2  Areas administered by the Bureau of Indian Affairs.

    Authority: R.S. 463, sec. 3, 39 Stat. 535, as amended, sec. 10, 45 
Stat. 1224, as amended; 5 U.S.C. 301, 25 U.S.C. 2, 16 U.S.C. 715i.



Sec. 5.1  Areas administered by U.S. Fish and Wildlife Service or National Park Service.

    (a) Permit required. No picture may be filmed, and no television 
production or sound track made on any area administered by the U.S. Fish 
and Wildlife Service or the National Park Service, of the Department of 
the Interior, by any person other than amateur or bona fide newsreel and 
news television photographers and soundmen, unless written permission 
has been obtained from the Service having jurisdiction over the area. 
Applications for permission should be submitted to the local official 
having administrative responsibility for the area involved.
    (b) Fees; bonds. (1) No fees will be charged for the making of 
motion pictures, television productions or sound tracks on areas 
administered by the U.S. Fish and Wildlife Service or the National Park 
Service. The regular general admission and other fees currently in 
effect in any area under the jurisdiction of the National Park Service 
are not affected by this paragraph.
    (2) A bond shall be furnished, or deposit made in cash or by 
certified check, in an amount to be set by the official in charge of the 
area to insure full compliance with all of the conditions prescribed in 
paragraph (d)(3) of this section.
    (c) Approval of application. Permission to make a motion picture, 
television production or sound track on areas administered by the U.S. 
Fish and Wildlife Service or the National Park Service will be granted 
by the head of the Service or his authorized representative in his 
discretion and on acceptance by the applicant of the conditions set 
forth in paragraph (d)(3) of this section.
    (d) Form of application. The following form is prescribed for an 
application for permission to make a motion picture, television 
production, or sound track on areas administered by the U.S. Fish and 
Wildlife Service or the National Park Service:
                                                   Date ----------------
To the head of the______________________________________________________
Service, Department of the Interior_____________________________________
                                                                  (Area)

[[Page 167]]

(1) Permission is requested to make, in the area mentioned above, a_____
    (2) The scope of the filming (or production or recording) and the 
manner and extent thereof will be as follows
Weather conditions permitting, work will commence on approximately -----
----- and will be completed on approximately____________________________
________________________________________________________________________
________________________________________________________________________
    (An additional sheet should be used if necessary.)
    (3) The undersigned accepts and will comply with the following 
conditions:
    (i) Utmost care will be exercised to see that no natural features 
are injured, and after completion of the work the area will, as required 
by the official in charge, either be cleaned up and restored to its 
prior condition or left, after clean-up, in a condition satisfactory to 
the official in charge.
    (ii) Credit will be given to the Department of the Interior and the 
Service involved through the use of an appropriate title or 
announcement, unless there is issued by the official in charge of the 
area a written statement that no such courtesy credit is desired.
    (iii) Pictures will be taken of wildlife only when such wildlife 
will be shown in its natural state or under approved management 
conditions if such wildlife is confined.
    (iv) [Reserved]
    (v) Any special instructions received from the official in charge of 
the area will be complied with.
    (vi) Any additional information relating to the privilege applied 
for by this application will be furnished upon request of the official 
in charge.
          ______________________________________________________________
                                                         (Applicant)    
                                           For--------------------------
                                                           (Company)    
Bond Requirement $______________________________________________________
       Approved:________________________________________________________
                                                            (Date)      
          ______________________________________________________________
                                                             (Title)    

[22 FR 1987, Mar. 26, 1957, as amended at 36 FR 2972, Feb. 13, 1971]



Sec. 5.2  Areas administered by the Bureau of Indian Affairs.

    (a) Individual Indians. Anyone who desires to go on the land of an 
Indian to make pictures, television productions or sound tracks is 
expected to observe the ordinary courtesy of first obtaining permission 
from the Indian and of observing any conditions attached to such 
permission.
    (b) Indian groups and communities. Anyone who desires to take 
pictures, including motion pictures, or to make a television production 
or a sound track of Indian communities, churches, kivas, plazas, or 
ceremonies performed in such places, must obtain prior permission from 
the proper officials of the place or community. Limitations which such 
officials may impose must be scrupulously observed.
    (c) Use of Indian lands. If the filming of pictures or the making of 
television productions or sound tracks requires the actual use of Indian 
lands, a lease or permit must be obtained pursuant to 25 CFR part 131.
    (d) Employment of Indians. Any motion picture or television producer 
who obtains a lease or permit for the use of Indian land pursuant to 25 
CFR part 131 shall be expected to pay a fair and reasonable wage to any 
Indians employed in connection with the production activities.

[22 FR 1987, Mar. 26, 1957]



PART 6--PATENT REGULATIONS--Table of Contents




                   Subpart A--Inventions by Employees

Sec.
6.1  Definitions.
6.2  Report of invention.
6.3  Action by supervisory officials.
6.4  Action by Solicitor.
6.5  Rights in inventions.
6.6  Appeals by employees.
6.7  Domestic patent protection.
6.8  Foreign filing.
6.9  Publication and public use of invention before patent application 
          is filed.
6.10  Publicity concerning the invention after patent application is 
          filed.
6.11  Condition of employment.

                           Subpart B--Licenses

6.51  Purpose.
6.52  Patents.
6.53  Unpatented inventions.
6.54  Use or manufacture by or for the Government.
6.55  Terms of licenses or sublicenses.
6.56  Issuance of licenses.
6.57  Evaluation Committee.

    Authority: 5 U.S.C. 301; sec. 2, Reorganization Plan No. 3 of 1950, 
15 FR 3174; E.O. 10096, 15 FR 389; and E.O. 10930, 26 FR 2583.

    Source: 29 FR 260, Jan. 10, 1964; 29 FR 6498, May 19, 1964, unless 
otherwise noted.

[[Page 168]]



                   Subpart A--Inventions by Employees



Sec. 6.1  Definitions.

    As used in this subpart:
    (a) The term Department means the Department of the Interior.
    (b) The term Secretary means the Secretary of the Interior.
    (c) The term Solicitor means the Solicitor of the Department of the 
Interior, or anyone authorized to act for him.
    (d) The term Commissioner means the Commissioner of Patents, or any 
Assistant Commissioner who may act for the Commissioner of Patents.
    (e) The term invention means any new and useful art, process, 
method, machine, manufacture, or composition of matter, or any new and 
useful improvement thereof, or any new variety of plant, or any new, 
original and ornamental design for an article of manufacture, which is 
or may be patentable under the laws of the United States.
    (f) The term employee as used in this part includes a part time 
consultant, a part time employee or a special employee (as defined in 18 
U.S.C. 202) of the Department insofar as inventions made during periods 
of official duty are concerned, except when special circumstances in a 
specific case require an exemption in order to meet the needs of the 
Department, each such exemption to be subject to the approval of the 
Commissioner.
    (g) The term governmental purpose means the right of the Government 
of the United States (including any agency thereof, state, or domestic 
municipal government) to practice and have practiced (made or have made, 
used or have used, sold or have sold) throughout the world by or on 
behalf of the Government of the United States.
    (h) The making of the invention means the conception or first actual 
reduction to practice of such invention.



Sec. 6.2  Report of invention.

    (a) Every invention made by an employee of the Department shall be 
reported by such employee through his supervisor and the head of the 
bureau or office to the Solicitor, unless the invention obviously is 
unpatentable. If the invention is the result of group work, the report 
shall be made by the supervisor and shall be signed by all employees 
participating in the making of the invention. The original and two 
copies of the invention report shall be furnished to the Solicitor. The 
Solicitor may prescribe the form of the report.
    (b) The report shall be made as promptly as possible, taking into 
consideration such factors as possible publication or public use, 
reduction to practice, and the necessity for protecting any rights of 
the Government in the invention. Although it is not necessary to 
withhold the report until the process or device is completely reduced to 
practice, reduction to practice assists in the preparation of a patent 
application and, if diligently pursued, protects the interests of the 
Government and of the inventor. If an invention is reduced to practice 
after the invention report is filed, the Solicitor must be notified 
forthwith.
    (c) For the protection of the rights of the Government and of the 
inventor, invention reports and memoranda or correspondence concerning 
them are to be considered as confidential documents.
    (d) An invention report shall include the following:
    (1) A brief but pertinently descriptive title of the invention;
    (2) The full name, residence, office address, bureau or office and 
division, position or title, and official working place of the inventor 
or inventors;
    (3) A statement of the evidence that is available as to the making 
of the invention, including information relative to conception, 
disclosures to others, and reduction to practice. Examples of such 
information are references to signed, witnessed and dated laboratory 
notebooks, or other authenticated records pertaining to the conception 
of the invention, operational data sheets, analysis and operation 
evaluation reports pertaining to a reduction to practice, and visitor 
log books, letters and other documents pertaining to disclosures to 
others. These need not be submitted with the report, only the 
identifying data is required, e.g., volume and page number in a 
laboratory notebook;

[[Page 169]]

    (4) Information concerning any past or prospective publication, oral 
presentation or public use of the invention;
    (5) The problem which led to the making of the invention;
    (6) The objects, advantages, and uses of the invention;
    (7) A detailed description of the invention;
    (8) Experimental data;
    (9) The prior art known to the inventor(s) and the manner in which 
the invention distinguishes thereover;
    (10) A statement that the employee:
    (i) Is willing to and does hereby assign to the Government:
    (a) The entire rights (foreign and domestic) in the invention;
    (b) The domestic rights only, but grants to the Government an option 
to file for patent protection in any foreign country, said option to 
expire as to any country when it is decided not to file thereon in the 
United States, or within six months after such filing;
    (ii) Requests, pursuant to Sec. 6.2(e), a determination of the 
respective rights of the Government and of the inventor.
    (e) If the inventor believes that he is not required by the 
regulations in this subpart to assign to the Government the entire 
domestic right, title, and interest in and to the invention, and if he 
is unwilling to make such an assignment to the Government, he shall, in 
his invention report, request that the Solicitor determine the 
respective rights of the Government and of the inventor in the 
invention, and he shall include in his invention report information on 
the following points, in addition to the data called for in paragraph 
(d) of this section:
    (1) The circumstances under which the invention was made (conceived, 
actually reduced to practice or constructed and tested);
    (2) The employee's official duties, as given on his job sheet or 
otherwise assigned, at the time of the making of the invention;
    (3) The extent to which the invention was made during the inventor's 
official working hours, the extent use was made of government 
facilities, equipment, funds, material or information, and the time or 
services of other government employees on official duty;
    (4) Whether the employee wishes a patent application to be 
prosecuted under the Act of March 3, 1883, as amended (35 U.S.C. 266), 
if it should be determined that he is not required to assign all 
domestic rights to the invention to the Government; and
    (5) Whether the employee would be willing, upon request, to 
voluntarily assign foreign rights in the invention to the Government if 
it should be determined that an assignment of the domestic rights to the 
Government is not required.



Sec. 6.3  Action by supervisory officials.

    (a) The preparation of an invention report and other official 
correspondence on patent matters is one of the regular duties of an 
employee who has made an invention and the supervisor of such employee 
shall see that he is allowed sufficient time from his other duties to 
prepare such documents. The supervisor shall ascertain that the 
invention report and other papers are prepared in conformity with the 
regulations of this part; and, before transmitting the invention report 
to the head of the bureau or office, shall check its accuracy and 
completeness, especially with respect to the circumstances in which the 
invention was developed, and shall add whatever comments he may deem to 
be necessary or desirable. The supervisor shall add to the file whatever 
information he may have concerning the governmental and commercial value 
of the invention.
    (b) The head of the bureau or office shall make certain that the 
invention report is as complete as circumstances permit. He shall report 
whatever information may be available in his agency concerning the 
governmental and commercial value of the invention, and the foreign 
countries in which it is likely that the invention would be most useful 
and would have the greatest commercial value.
    (c) If the employee inventor requests that the Solicitor determine 
his rights in the invention, the head of the bureau or office shall 
state his conclusions with respect to such rights.
    (d) The head of the bureau or office shall indicate whether, in his 
judgment, the invention is liable to be used in the public interest, and 
he shall set

[[Page 170]]

out the facts supporting his conclusion whenever the employee's 
invention report does not contain sufficient information on this point.



Sec. 6.4  Action by Solicitor.

    (a) If an employee inventor requests pursuant to Sec. 6.2(e), that 
such determination be made, the Solicitor shall determine the respective 
rights of the employee and of the Government in and to the invention. 
His determination shall be subject to review by the Commissioner in 
proper cases under Executive Orders 10096 and 10930 and the rules and 
regulations issued by the Commissioner with the approval of the 
President.
    (b) If the Government is entitled to obtain the entire domestic 
right, title and interest in and to an invention made by an employee of 
the Department, the Solicitor, subject to review by the Commissioner in 
proper cases, may take such action respecting the invention as he deems 
necessary or advisable to protect the interests of the United States.



Sec. 6.5  Rights in inventions.

    (a) The rules prescribed in this section shall be applied in 
determining the respective rights of the Government and of an employee 
of the Department in and to any invention made by the employee.
    (b)(1) Except as indicated in the succeeding paragraphs, (b) (1) 
through (4), of this section, the Government shall obtain the entire 
domestic right, title, and interest in and to any invention made by an 
employee of the Department
    (i) During working hours, or
    (ii) With a contribution by the Government of facilities, equipment, 
materials, funds, or information, or of time or services of other 
government employees on official duty, or
    (iii) Which bears a direct relation to or is made in consequence of 
the official duties of the inventor.
    (2) In any case where the contribution of the Government, as 
measured by any one or more of the criteria set forth in paragraph 
(b)(1) of this section, to the invention is insufficient equitably to 
justify a requirement of assignment to the Government of the entire 
domestic right, title, and interest in and to such invention, or in any 
case where the Government has insufficient interest in an invention to 
obtain the entire domestic right, title, and interest therein (although 
the Government could obtain same under paragraph (b)(1) of this 
section), the Solicitor, subject to the approval of the Commissioner, 
shall leave title to such invention in the employee, subject, however, 
to the reservation to the Government of a nonexclusive, irrevocable, 
royalty-free license in the invention with power to grant sublicenses 
for all governmental purposes, such reservation, in the terms thereof, 
to appear, where practicable, in any patent, domestic or foreign, which 
may issue on such invention.
    (3) In applying the provisions of paragraphs (b) (1) and (2) of this 
section to the facts and circumstances relating to the making of any 
particular invention, it shall be presumed that any invention made by an 
employee who is employed or assigned (i) to invent or improve or perfect 
any art, machine, manufacture, or composition of matter, or (ii) to 
conduct or perform research, development work, or both, or (iii) to 
supervise, direct, coordinate, or review Government financed or 
conducted research, development work, or both, or (iv) to act in a 
liaison capacity among governmental or nongovernmental agencies or 
individuals engaged in such work, falls within the provisions of 
paragraph (b)(1) of this section, and it shall be presumed that any 
invention made by any other employee falls within the provisions of 
paragraph (b)(2) of this section. Either presumption may be rebutted by 
a showing of the facts and circumstances in the case and shall not 
preclude a determination that these facts and circumstances justify 
leaving the entire right, title and interest in and to the invention in 
the government employee, subject to law.
    (4) In any case wherein the Government neither (i) obtains the 
entire domestic right, title, and interest in and to an invention 
pursuant to the provisions of paragraph (b)(1) of this section, nor (ii) 
reserves a nonexclusive, irrevocable, royalty-free license in the 
invention, with power to grant sublicenses for all governmental 
purposes,

[[Page 171]]

pursuant to the provisions of paragraph (b)(2) of this section, the 
Solicitor, subject to the approval of the Commissioner, shall leave the 
entire right, title, and interest in and to the invention in the 
employee, subject to law.
    (c) In the event that the Solicitor determines, pursuant to 
paragraph (b) (2) or (4) of this section, that title to an invention 
will be left with an employee, the Solicitor shall notify the employee 
of this determination and promptly prepare, and preserve in appropriate 
files, accessible to the Commissioner, a written signed, and dated 
statement concerning the invention including the following:
    (1) A description of the invention in sufficient detail to identify 
the invention and show the relationship to the employee's duties and 
work assignment;
    (2) The name of the employee and his employment status, including a 
detailed statement of his official duties and responsibilities at the 
time the invention was made; and
    (3) A statement of the Solicitor's determination and reasons 
therefor. The Solicitor shall, subject to considerations of national 
security, or public health, safety, or welfare, submit to the 
Commissioner a copy of this written statement. This submittal in a case 
falling within the provisions of paragraph (b) (2) of this section shall 
be made after the expiration of the period prescribed in Sec. 6.6 for 
the taking of an appeal, or it may be made prior to the expiration of 
such period if the employees acquiesces in the Solicitor's 
determination. The Commissioner thereupon shall review the determination 
of the Solicitor and the Commissioner's decision respecting the matter 
shall be final, subject to the right of the employee or the Solicitor to 
submit to the Commissioner within 30 days (or such longer period as the 
Commissioner may, for good cause, shown in writing, fix in any case) 
after receiving notice of such decision, a petition for the 
reconsideration of the decision. A copy of such petition must also be 
filed by the inventor with the Solicitor within the prescribed period.



Sec. 6.6  Appeals by employees.

    (a) Any employee who is aggrieved by a determination of the 
Solicitor pursuant to Sec. 6.5(b) (1) or (2) may obtain a review of the 
determination by filing, within 30 days (or such longer period as the 
Commissioner may for good cause shown in writing, fix in any case) after 
receiving notice of such determination, two copies of an appeal with the 
Commissioner. The Commissioner then shall forward one copy of the appeal 
to the Solicitor.
    (b) On receipt of a copy of an appeal filed pursuant to paragraph 
(a) of this section, the Solicitor shall, subject to considerations of 
national security, or public health, safety, or welfare, promptly 
furnish both the Commissioner and the inventor with a copy of a report 
containing the following information about the invention involved in the 
appeal:
    (1) A copy of a statement containing the information specified in 
Sec. 6.5(c), and
    (2) A detailed statement of the points of dispute or controversy, 
together with copies of any statements or written arguments that may 
have been filed, and of any other relevant evidence that the Solicitor 
considered in making his determination of Government interest. Within 25 
days (or such longer period as the Commissioner may, for good cause 
shown, fix in any case) after the transmission of a copy of the 
Solicitor's report to the employee, the employee may file a reply 
thereto with the Commissioner and file one copy thereof with the 
Solicitor.
    (c) After the time for the employee's reply to the Solicitor's 
report has expired and if the employee has so requested in his appeal, a 
date will be set for the hearing of oral arguments by the employee (or 
by an attorney whom he designates by written power of attorney filed 
before, or at the hearing) and the Solicitor. Unless it shall be 
otherwise ordered before the hearing begins, oral arguments will be 
limited to thirty minutes for each side. The employee need not retain an 
attorney or request an oral hearing to secure full consideration of the 
facts and his arguments. He may expedite such consideration by notifying 
the Commissioner when he does not intend to file a reply to the 
Solicitor's report.

[[Page 172]]

    (d) After a hearing on the appeal, if a hearing was requested, or 
after expiration of the period for the inventor's reply to the 
Solicitor's report, if no hearing is set, the Commissioner shall issue a 
decision on the matter, which decision shall be final after the period 
for asking reconsideration expires or on the date that a decision on a 
petition for reconsideration is finally disposed of. Any request for 
reconsideration or modification of the decision must be filed within 30 
days from the date of the original decision (or within such an extension 
thereof as may be set by the Commissioner before the original period 
expires). The Com- missioner's decision shall be made after 
consideration of the statements of fact in the employee's appeal, the 
Solicitor's report, and the employee's reply, but the Commissioner, at 
his discretion and with due respect to the rights and convenience of the 
inventor and the Solicitor, may call for further statements on specific 
questions of fact or may request additional evidence in the form of 
affidavits or depositions on specific facts in dispute.



Sec. 6.7  Domestic patent protection.

    (a) The Solicitor, upon determining that an invention coming within 
the scope of Sec. 6.5(b) (1) or (2) has been made, shall thereupon 
determine whether patent protection will be sought in the United States 
by the Department for such invention. A controversy over the respective 
rights of the Government and of the inventor in any case shall not delay 
the taking of the actions provided for in this section. In cases coming 
within the scope of Sec. 6.5(b)(2), action by the Department looking 
toward such patent protection shall be contingent upon the consent of 
the inventor.
    (b) Where there is a dispute as to whether paragraph (b) (1) or (2) 
of Sec. 6.5 applies in determining the respective rights of the 
Government and of an employee in and to any invention, the Solicitor 
will determine whether patent protection will be sought in the United 
States pending the Commissioner's decision on the dispute, and, if he 
determines that an application for patent should be filed, he will take 
such rights as are specified in Sec. 6.5(b)(2), but this shall be 
without prejudice to acquiring the rights specified in Sec. 6.5(b)(1) 
should the Commissioner so decide.
    (c) Where the Solicitor has determined to leave title to an 
invention with an employee under Sec. 6.5(b)(2), the Solicitor will, 
upon the filing of an application for patent and pending review of the 
determination by the Commissioner, take the rights specified in that 
paragraph, without prejudice to the subsequent acquisition by the 
Government of the rights specified in Sec. 6.5(b)(1) should the 
Commissioner so decide.
    (d) In the event that the Solicitor determines that an application 
for patent will not be filed on an invention made under the 
circumstances specified in Sec. 6.5(b)(1) giving the United States the 
right to title thereto, the Solicitor shall subject to considerations of 
national security, or public health, safety, or welfare, report to the 
Commissioner promptly upon making such determination, the following 
information concerning the invention:
    (1) Description of the invention in sufficient detail to permit a 
satisfactory review;
    (2) Name of the inventor and his employment status;
    (3) Statement of the Solicitor's determination and reasons therefor.

The Commissioner, may, if he determines that the interest of the 
Government so requires and subject to considerations of national 
security, or public health safety, or welfare, bring the invention to 
the attention of any Government agency to whose activities the invention 
may be pertinent, or cause the invention to be fully disclosed by 
publication thereof.



Sec. 6.8  Foreign filing.

    (a) By Government. (1) In every case where the employee has 
indicated pursuant to Sec. 6.2(d)(10), his willingness to assign the 
domestic patent rights in the invention to the Government, or where it 
has been determined pursuant to Sec. 6.5 that the Government shall 
obtain the entire domestic patent rights, the Government shall reserve 
an option to acquire assignment of all foreign rights including the 
rights to file foreign patent applications or otherwise to seek 
protection abroad on the invention.

[[Page 173]]

    (2) The Government's option shall lapse as regards any foreign 
country:
    (i) When the Solicitor determines after consultation with the agency 
most directly concerned, not to cause an application to be filed in said 
foreign country or otherwise to seek protection of the invention, as by 
publication;
    (ii) When the Solicitor fails to take action to seek protection of 
the invention in said foreign country (a) within six months of the 
filing of an application for a United States patent on the invention, or 
(b) within six months of declassification of an invention previously 
under a security classification, whichever is later.
    (b) By Employee. (1) No Department employee shall file or cause to 
be filed an application for patent in any foreign country on any 
invention in which the Government has acquired the entire (foreign and 
domestic) patent rights, or holds an unexpired option to acquire the 
patent rights in said foreign country, or take any steps which would 
preclude the filing of an application by or on behalf of the Government.
    (2) An employee may file in any foreign country where the Government 
has not exercised its option acquired pursuant to Sec. 6.2(d)(10), to do 
so, or determines not to do so.
    (3) The determination or failure to act as set forth in 
Sec. 6.8(a)(2) shall constitute a decision by the Government to leave 
the foreign patent rights to the invention in the employee, subject to a 
nonexclusive, irrevocable, royalty-free license to the Government in any 
patent which may issue thereon in any foreign country, including the 
power to issue sublicenses for governmental purposes or in furtherance 
of the foreign policies of the Government or both.



Sec. 6.9  Publication and public use of invention before patent application is filed.

    (a) Publication or public use of an invention constitutes a 
statutory bar to the granting of a patent for the invention unless a 
patent application is filed within one year of the date of such 
publication or public use. In order to preserve rights in unpatented 
inventions, it shall be the duty of the inventor, or of his supervisor 
if the inventor is not available to make such report, to report 
forthwith to the Solicitor any publication or use (other than 
experimental) of an invention, irrespective of whether an invention 
report has previously been filed. If an invention report has not been 
filed, such a report, including information concerning the public use or 
publication, shall be filed at once. If an invention is disclosed to any 
person who is not employed by the Department or working in cooperation 
with the Department upon that invention, a record shall be kept of the 
date and extent of the disclosure, the name and address of the person to 
whom the disclosure was made, and the purpose of the disclosure.
    (b) No description, specification, plan, or drawing of any 
unpatented invention upon which a patent application is likely to be 
filed shall be published, nor shall any written description, 
specification, plan, or drawing of such invention be furnished to anyone 
other than an employee of the Department or a person working in 
cooperation with the Department upon that invention, unless the 
Solicitor is of the opinion that the interests of the Government will 
not be prejudiced by such action. If any publication disclosing the 
invention, not previously approved by the Solicitor, comes to the 
attention of the inventor or his supervisor, it shall be the duty of 
such person to report such publication to the Solicitor.



Sec. 6.10  Publicity concerning the invention after patent application is filed.

    In order that the public may obtain the greatest possible benefit 
from inventions in which the Secretary has transferable interests, 
inventions assigned to the Secretary upon which patent applications have 
been filed shall be publicized as widely as possible, within limitations 
of authority, by the Department, by the originating agency, by the 
division in which the inventor is employed, and by the inventor himself 
in his contacts with industries in which the invention is or may be 
useful. Regular organs of publication shall be utilized to the greatest 
extent possible. In addition, it shall be the duty of the Solicitor, 
upon being

[[Page 174]]

advised of the issuance of any patent assigned to the Secretary, to take 
steps towards listing the patent as available for licensing, where 
feasible.



Sec. 6.11  Condition of employment.

    (a) The regulations in this subpart shall be a condition of 
employment of all employees of the Department and shall be effective as 
to all their inventions. These regulations shall be effective without 
regard to any existing or future contracts to the contrary entered into 
by any employee of the Department with any person other than the 
Government.
    (b) If a patent application is filed upon an invention which has 
been made by an employee of the Department under circumstances that 
entitle the Government to the entire domestic right, title and interest 
in and to the invention, but which has not been reported to the 
Solicitor pursuant to the regulations in this subpart, title to such 
invention shall immediately vest in the Government, as represented by 
the Secretary, and the contract of employment shall be considered an 
assignment of such rights.



                           Subpart B--Licenses



Sec. 6.51  Purpose.

    It is the purpose of the regulations in this subpart to secure for 
the people of the United States the full benefits of Government research 
and investigation in the Department of the Interior (a) by providing a 
simple procedure under which the public may obtain licenses to use 
patents and inventions in which the Secretary of the Interior has 
transferable interests and which are available for licensing; and (b) by 
providing adequate protection for the inventions until such time as they 
may be made available for licensing without undue risk of losing patent 
protection to which the public is entitled.

[31 FR 10796, Aug. 13, 1966]



Sec. 6.52  Patents.

    Patents in which the Secretary of the interior has transferable 
interests, and under which he may issue licenses or sublicenses, are 
classified as follows:
    (a) Class A. Patents, other than those referred to in paragraph (c) 
of this section, which are owned by the United States, as represented by 
the Secretary of the Interior, free from restrictions on licensing 
except such as are inherent in Government ownership;
    (b) Class B. Patents in which the interest of the United States, as 
represented by the Secretary of the Interior, is less than full 
ownership, or is subject to some express restriction upon licensing or 
sublicensing (including patents upon which the Secretary of the Interior 
holds a license, patents assigned to the Secretary of the Interior as 
trustee for the people of the United States, and patents assigned to the 
Secretary of the Interior upon such terms as to effect a dedication to 
the public);
    (c) Class C. Patents and patent rights acquired by the Secretary of 
the Interior pursuant to the Act of April 5, 1944 (58 Stat. 190; 30 
U.S.C. 321--325), and any amendments thereof.

[29 FR 260, Jan. 10, 1964, as amended at 31 FR 10796, Aug. 13, 1966]



Sec. 6.53  Unpatented inventions.

    The Secretary of the Interior may also have transferable interests 
in inventions which are not yet patented. In order to protect the patent 
rights of the Department, for the eventual benefit of the public, a 
license may be granted with respect to such an invention only if (a) a 
patent application has been filed thereon; (b) the invention has been 
assigned to the United States, as represented by the Secretary of the 
Interior, and the assignment has been recorded in the Patent Office; and 
(c) the Solicitor of the Department is of the opinion that the issuance 
of a license will not prejudice the interests of the Government in the 
invention. Such licenses shall be upon the same terms as licenses 
relating to patents of the same class, as described in Sec. 6.52.



Sec. 6.54  Use or manufacture by or for the Government.

    A license is not required with respect to the manufacture or use of 
any invention assigned or required to be assigned without restrictions 
or qualifications to the United States when such manufacture or use is 
by or for

[[Page 175]]

the Government for governmental purposes. A license or sublicense may be 
required, however, for such manufacture or use in the case of Class B 
patents or patent rights when the terms under which the Secretary of the 
Interior acquires interests therein necessitate the issuance of a 
license or sublicense in such circumstances.

[31 FR 10796, Aug. 13, 1966]



Sec. 6.55  Terms of licenses or sublicenses.

    (a) No license or sublicense shall be granted under any patent in 
which the Secretary of the Interior has transferable interests, except 
as set forth under these regulations, the terms and conditions of which 
shall be expressly stated in such license and sublicense. The terms of 
licenses and sublicenses issued under this subpart shall not be 
unreasonably restrictive.
    (b) To the extent that they do not conflict with any restrictions to 
which the licensing or sublicensing of Class B patents and unpatented 
inventions may be subject, all licenses and sublicenses relating to 
Class A and Class B patents and unpatented inventions shall be subject 
to the following terms and provisions, and to such other terms and 
conditions as the Solicitor may prescribe:
    (1) The acceptance of a license or sublicense shall not be construed 
as a waiver of the right to contest the validity of the patent. A 
license or sublicense shall be revocable only upon a finding by the 
Solicitor of the Department that the terms of the license or sublicense 
have been violated and that the revocation of the license or sublicense 
is in the public interest. Such finding shall be made only after 
reasonable notice and an opportunity to be heard.
    (2) Licenses and sublicenses shall be nontransferable. Upon a 
satisfactory showing that the Government or public will be benefited 
thereby, they may be granted to properly qualified applicants royalty-
free. If no such showing is made, they shall be granted only upon a 
reasonable royalty or other consideration, the amount or character of 
which is to be determined by the Solicitor. A cross-licensing agreement 
may be considered adequate consideration.
    (3) Licensees and sublicensees may be required to submit annual or 
more frequent technical or statistical reports concerning practical 
experience acquired through the exercise of the license or sublicense, 
the extent of the production under the license or sublicense, and other 
related subjects.
    (4) A licensee or sublicensee manufacturing a patented article 
pursuant to a license or sublicense shall give notice to the public that 
the article is patented by affixing thereon the word ``patent'', 
together with the number of the patent, or when, from the character of 
the article, this cannot be done, by fixing to it, or to the package in 
which it is enclosed, a label containing such notice.
    (c) Licenses and sublicenses relating to Class C patents and patent 
rights shall be granted upon such terms and conditions as may be 
prescribed pursuant to sections 3 and 5 of the Act of April 5 1944, and 
any amendments thereof.

[29 FR 260, Jan. 10, 1964, as amended at 31 FR 10796, Aug. 13, 1966]



Sec. 6.56  Issuance of licenses.

    (a) Any person desiring a license relating to an invention upon 
which the Secretary of the Interior holds a patent or patent rights may 
file with the Solicitor of the Department of the Interior an application 
for a license, stating:
    (1) The name, address, and citizenship of the applicant;
    (2) The nature of his business;
    (3) The patent or invention upon which he desires a license;
    (4) The purpose for which he desires a license;
    (5) His experience in the field of the desired license;
    (6) Any patents, licenses, or other patent rights which he may have 
in the field of the desired license; and
    (7) The benefits, if any, which the applicant expects the public to 
derive from his proposed use of the invention
    (b) It shall be the duty of the Solicitor, after consultation with 
the bureau most directly interested in the patent or invention involved 
in an application for a license, and with the Evaluation Committee if 
royalties are to be charged, to determine whether

[[Page 176]]

the license shall be granted. If he determines that a license is to be 
granted, he shall execute on behalf of the Secretary, an appropriate 
license.



Sec. 6.57  Evaluation Committee.

    At the request of the Solicitor, an Evaluation Committee will be 
appointed by the Secretary to recommend royalty rates with respect to 
any patents or inventions for which royalties may be charged.



PART 7--PROTECTION OF ARCHAEOLOGICAL RESOURCES--Table of Contents




                     Subpart A--Uniform Regulations

Sec.
7.1  Purpose.
7.2  Authority.
7.3  Definitions.
7.4  Prohibited acts and criminal penalties.
7.5  Permit requirements and exceptions.
7.6  Application for permits and information collection.
7.7  Notification to Indian tribes of possible harm to, or destruction 
          of, sites on public lands having religious or cultural 
          importance.
7.8  Issuance of permits.
7.9  Terms and conditions of permits.
7.10  Suspension and revocation of permits.
7.11  Appeals relating to permits.
7.12  Relationship to section 106 of the National Historic Preservation 
          Act.
7.13  Custody of archaeological resources.
7.14  Determination of archaeological or commercial value and cost of 
          restoration and repair.
7.15  Assessment of civil penalties.
7.16  Civil penalty amounts.
7.17  Other penalties and rewards.
7.18  Confidentiality of archaeological resource information.
7.19  Report.
7.20  Public awareness programs.
7.21  Surveys and schedules.

     Subpart B--Department of the Interior Supplemental Regulations

7.31  Scope and authority.
7.32  Supplemental definitions.
7.33  Determination of loss or absence of archaeological interest.
7.34  Procedural information for securing permits.
7.35  Permitting procedures for Indian lands.
7.36  Permit reviews and disputes.
7.37  Civil penalty hearings procedures.

    Authority: Pub. L. 96-95, 93 Stat. 721, as amended; 102 Stat. 2983 
(16 U.S.C. 470aa-mm) (Sec. 10(a). Related authority: Pub. L. 59-209, 34 
Stat. 225 (16 U.S.C. 432,433); Pub. L. 86-523; 74 Stat. 220, 221 (16 
U.S.C. 469), as amended; 88 Stat. 174 (1974); Pub. L. 89-665, 80 Stat. 
915 (16 U.S.C. 470a-t), as amended, 84 Stat. 204 (1970), 87 Stat. 139 
(1973), 90 Stat. 1320 (1976), 92 Stat. 3467 (1978), 94 Stat. 2987 
(1980); Pub. L. 95-341, 92 Stat. 469 (42 U.S.C. 1996).



                     Subpart A--Uniform Regulations

    Source: 49 FR 1027, Jan. 6, 1984, unless otherwise noted.



Sec. 7.1  Purpose.

    (a) The regulations in this part implement provisions of the 
Archaeological Resources Protection Act of 1979, as amended (16 U.S.C. 
470aa-mm) by establishing the uniform definitions, standards, and 
procedures to be followed by all Federal land managers in providing 
protection for archaeological resources, located on public lands and 
Indian lands of the United States. These regulations enable Federal land 
managers to protect archaeological resources, taking into consideration 
provisions of the American Indian Religious Freedom Act (92 Stat. 469; 
42 U.S.C. 1996), through permits authorizing excavation and/or removal 
of archaeological resources, through civil penalties for unauthorized 
excavation and/or removal, through provisions for the preservation of 
archaeological resource collections and data, and through provisions for 
ensuring confidentiality of information about archaeological resources 
when disclosure would threaten the archaeological resources.
    (b) The regulations in this part do not impose any new restrictions 
on activities permitted under other laws, authorities, and regulations 
relating to mining, mineral leasing, reclamation, and other multiple 
uses of the public lands.

[49 FR 1027, Jan. 6, 1984, as amended at 60 FR 5260, Jan. 26, 1995]



Sec. 7.2  Authority.

    (a) The regulations in this part are promulgated pursuant to section 
10(a) of the Archaeological Resources Protection Act of 1979 (16 U.S.C. 
470ii), which requires that the Secretaries of the Interior, Agriculture 
and Defense and the Chairman of the Board of the

[[Page 177]]

Tennessee Valley Authority jointly develop uniform rules and regulations 
for carrying out the purposes of the Act.
    (b) In addition to the regulations in this part, section 10(b) of 
the Act (16 U.S.C. 470ii) provides that each Federal land manager shall 
promulgate such rules and regulations, consistent with the uniform rules 
and regulations in this part, as may be necessary for carrying out the 
purposes of the Act.



Sec. 7.3  Definitions.

    As used for purposes of this part:
    (a) Archaeological resource means any material remains of human life 
or activities which are at least 100 years of age, and which are of 
archaeological interest.
    (1) Of archaeological interest means capable of providing scientific 
or humanistic understandings of past human behavior, cultural 
adaptation, and related topics through the application of scientific or 
scholarly techniques such as controlled observation, contextual 
measurement, controlled collection, analysis, interpretation and 
explanation.
    (2) Material remains means physical evidence of human habitation, 
occupation, use, or activity, including the site, location, or context 
in which such evidence is situated.
    (3) The followiing classes of material remains (and illustrative 
examples), if they are at least 100 years of age, are of archaeological 
interest and shall be considered archaeological resources unless 
determined otherwise pursuant to paragraph (a)(4) or (a)(5) of this 
section:
    (i) Surface or subsurface structures, shelters, facilities, or 
features (including, but not limited to, domestic structures, storage 
structures, cooking structures, ceremonial structures, artificial 
mounds, earthworks, fortifications, canals, reservoirs, horticultural/
agricultural gardens or fields, bedrock mortars or grinding surfaces, 
rock alignments, cairns, trails, borrow pits, cooking pits, refuse pits, 
burial pits or graves, hearths, kilns, post molds, wall trenches, 
middens);
    (ii) Surface or subsurface artifact concentrations or scatters;
    (iii) Whole or fragmentary tools, implements, containers, weapons 
and weapon projectiles, clothing, and ornaments (including, but not 
limited to, pottery and other ceramics, cordage, basketry and other 
weaving, bottles and other glassware, bone, ivory, shell, metal, wood, 
hide, feathers, pigments, and flaked, ground, or pecked stone);
    (iv) By-products, waste products, or debris resulting from 
manufacture or use of human-made or natural materials;
    (v) Organic waste (including, but not limited to, vegetal and animal 
remains, coprolites);
    (vi) Human remains (including, but not limited to, bone, teeth, 
mummified flesh, burials, cremations);
    (vii) Rock carvings, rock paintings, intaglios and other works of 
artistic or symbolic representation;
    (viii) Rockshelters and caves or portions thereof containing any of 
the above material remains;
    (ix) All portions of shipwrecks (including, but not limited to, 
armaments, apparel, tackle, cargo);
    (x) Any portion or piece of any of the foregoing.
    (4) The following material remains shall not be considered of 
archaeological interest, and shall not be considered to be 
archaeological resources for purposes of the Act and this part, unless 
found in a direct physical relationship with archaeological resources as 
defined in this section:
    (i) Paleontological remains;
    (ii) Coins, bullets, and unworked minerals and rocks.
    (5) The Federal land manager may determine that certain material 
remains, in specified areas under the Federal land manager's 
jurisdiction, and under specified circumstances, are not or are no 
longer of archaeological interest and are not to be considered 
archaeological resources under this part. Any determination made 
pursuant to this subparagraph shall be documented. Such determination 
shall in no way affect the Federal land manager's obligations under 
other applicable laws or regulations.
    (6) For the disposition following lawful removal or excavations of 
Native American human remains and ``cultural items'', as defined by the 
Native American Graves Protection and Repatriation Act (NAGPRA; Pub. L. 
101-601;

[[Page 178]]

104 Stat. 3050; 25 U.S.C. 3001-13), the Federal land manager is referred 
to NAGPRA and its implementing regulations.
    (b) Arrowhead means any projectile point which appears to have been 
designed for use with an arrow.
    (c) Federal land manager means:
    (1) With respect to any public lands, the secretary of the 
department, or the head of any other agency or instrumentality of the 
United States, having primary management authority over such lands, 
including persons to whom such management authority has been officially 
delegated;
    (2) In the case of Indian lands, or any public lands with respect to 
which no department, agency or instrumentality has primary management 
authority, such term means the Secretary of the Interior;
    (3) The Secretary of the Interior, when the head of any other agency 
or instrumentality has, pursuant to section 3(2) of the Act and with the 
consent of the Secretary of the Interior, delegated to the Secretary of 
the Interior the responsibilities (in whole or in part) in this part.
    (d) Public lands means:
    (1) Lands which are owned and administered by the United States as 
part of the national park system, the national wildlife refuge system, 
or the national forest system; and
    (2) All other lands the fee title to which is held by the United 
States, except lands on the Outer Continental Shelf, lands under the 
jurisdiction of the Smithsonian Institution, and Indian lands.
    (e) Indian lands means lands of Indian tribes, or Indian 
individuals, which are either held in trust by the United States or 
subject to a restriction against alienation imposed by the United 
States, except for subsurface interests not owned or controlled by an 
Indian tribe or Indian individual.
    (f) Indian tribe as defined in the Act means any Indian tribe, band, 
nation, or other organized group or community, including any Alaska 
village or regional or village corporation as defined in, or established 
pursuant to, the Alaska Native Claims Settlement Act (85 Stat. 688). In 
order to clarify this statutory definition for purposes of this part, 
``Indian tribe'' means:
    (1) Any tribal entity which is included in the annual list of 
recognized tribes published in the Federal Register by the Secretary of 
the Interior pursuant to 25 CFR part 54;
    (2) Any other tribal entity acknowledged by the Secretary of the 
Interior pursuant to 25 CFR part 54 since the most recent publication of 
the annual list; and
    (3) Any Alaska Native village or regional or village corporation as 
defined in or established pursuant to the Alaska Native Claims 
Settlement Act (85 Stat. 688), and any Alaska Native village or tribe 
which is recognized by the Secretary of the Interior as eligible for 
services provided by the Bureau of Indian Affairs.
    (g) Person means an individual, corporation, partnership, trust, 
institution, association, or any other private entity, or any officer, 
employee, agent, department, or instrumentality of the United States, or 
of any Indian tribe, or of any State or political subdivision thereof.
    (h) State means any of the fifty states, the District of Columbia, 
Puerto Rico, Guam, and the Virgin Islands.
    (i) Act means the Archaeological Resources Protection Act of 1979 
(16 U.S.C. 470aa-mm).

[49 FR 1027, Jan. 6, 1984; 49 FR 5923, Feb. 16, 1984, as amended at 60 
FR 5260, Jan. 26, 1995]



Sec. 7.4  Prohibited acts and criminal penalties.

    (a) Under section 6(a) of the Act, no person may excavate, remove, 
damage, or otherwise alter or deface, or attempt to excavate, remove, 
damage, or otherwise alter or deface any archaeological resource located 
on public lands or Indian lands unless such activity is pursuant to a 
permit issued under Sec. 7.8 or exempted by Sec. 7.5(b) of this part.
    (b) No person may sell, purchase, exchange, transport, or receive 
any archaeological resource, if such resource was excavated or removed 
in violation of:
    (1) The prohibitions contained in paragraph (a) of this section; or
    (2) Any provision, rule, regulation, ordinance, or permit in effect 
under any other provision of Federal law.

[[Page 179]]

    (c) Under section (d) of the Act, any person who knowingly violates 
or counsels, procures, solicits, or employs any other person to violate 
any prohibition contained in section 6 (a), (b), or (c) of the Act will, 
upon conviction, be fined not more than $10,000.00 or imprisoned not 
more than one year, or both: provided, however, that if the commercial 
or archaeological value of the archaeological resources involved and the 
cost of restoration and repair of such resources exceeds the sum of 
$500.00, such person will be fined not more than $20,000.00 or 
imprisoned not more than two years, or both. In the case of a second or 
subsequent such violation upon conviction such person will be fined not 
more than $100,000.00, or imprisoned not more than five years, or both.

[49 FR 1027, Jan. 6, 1984, as amended at 60 FR 5260, Jan. 26, 1995]



Sec. 7.5  Permit requirements and exceptions.

    (a) Any person proposing to excavate and/or remove archaeological 
resources from public lands or Indian lands, and to carry out activities 
associated with such excavation and/or removal, shall apply to the 
Federal land manager for a permit for the proposed work, and shall not 
begin the proposed work until a permit has been issued. The Federal land 
manager may issue a permit to any qualified person, subject to 
appropriate terms and conditions, provided that the person applying for 
a permit meets conditions in Sec. 7.8(a) of this part.
    (b) Exceptions:
    (1) No permit shall be required under this part for any person 
conducting activities on the public lands under other permits, leases, 
licenses, or entitlements for use, when those activities are exclusively 
for purposes other than the excavation and/or removal of archaeological 
resources, even though those activities might incidentally result in the 
disturbance of archaeological resources. General earth-moving excavation 
conducted under a permit or other authorization shall not be construed 
to mean excavation and/or removal as used in this part. This exception 
does not, however, affect the Federal land manager's responsibility to 
comply with other authorities which protect archaeological resources 
prior to approving permits, leases, licenses, or entitlements for use; 
any excavation and/or removal of archaeological resources required for 
compliance with those authorities shall be conducted in accordance with 
the permit requirements of this part.
    (2) No permit shall be required under this part for any person 
collecting for private purposes any rock, coin, bullet, or mineral which 
is not an archaeological resource as defined in this part, provided that 
such collecting does not result in disturbance of any archaelogical 
resource.
    (3) No permit shall be required under this part or under section 3 
of the Act of June 8, 1906 (16 U.S.C. 432), for the excavation or 
removal by any Indian tribe or member thereof of any archaeological 
resource located on Indian lands of such Indian tribe, except that in 
the absence of tribal law regulating the excavation or removal or 
archaeological resources on Indian lands, an individual tribal member 
shall be required to obtain a permit under this part;
    (4) No permit shall be required under this part for any person to 
carry out any archaeological activity authorized by a permit issued 
under section 3 of the Act of June 8, 1906 (16 U.S.C. 432), before the 
enactment of the Archaeological Resources Protection Act of 1979. Such 
permit shall remain in effect according to its terms and conditions 
until expiration.
    (5) No permit shall be required under section 3 of the Act of June 
8, 1906 (16 U.S.C. 432) for any archaeological work for which a permit 
is issued under this part.
    (c) Persons carrying out official agency duties under the Federal 
land manager's direction, associated with the management of 
archaeological resources, need not follow the permit application 
procedures of Sec. 7.6. However, the Federal land manager shall insure 
that provisions of Secs. 7.8 and 7.9 have been met by other documented 
means, and that any official duties which might result in harm to or 
destruction of any Indian tribal religious or cultural site, as 
determined by the Federal land manager, have been the subject of 
consideration under Sec. 7.7.

[[Page 180]]

    (d) Upon the written request of the Governor of any State, on behalf 
of the State or its educational institutions, the Federal land manager 
shall issue a permit, subject to the provisions of Secs. 7.5(b)(5), 7.7, 
7.8(a) (3), (4), (5), (6), and (7), 7.9, 7.10, 7.12, and 7.13(a) to such 
Governor or to such designee as the Governor deems qualified to carry 
out the intent of the Act, for purposes of conducting archaeological 
research, excavating and/or removing archaeological resources, and 
safeguarding and preserving any materials and data collected in a 
university, museum, or other scientific or educational institution 
approved by the Federal land manager.
    (e) Under other statutory, regulatory, or administrative authorities 
governing the use of public lands and Indian lands, authorizations may 
be required for activities which do not require a permit under this 
part. Any person wishing to conduct on public lands or Indian lands any 
activities related to but believed to fall outside the scope of this 
part should consult with the Federal land manager, for the purpose of 
determining whether any authorization is required, prior to beginning 
such activities.



Sec. 7.6  Application for permits and information collection.

    (a) Any person may apply to the appropriate Federal land manager for 
a permit to excavate and/or remove archaeological resources from public 
lands or Indian lands and to carry out activities associated with such 
excavation and/or removal.
    (b) Each application for a permit shall include:
    (1) The nature and extent of the work proposed, including how and 
why it is proposed to be conducted, proposed time of performance, 
locational maps, and proposed outlet for public written dissemination of 
the results.
    (2) The name and address of the individual(s) proposed to be 
responsible for conducting the work, institutional affiliation, if any, 
and evidence of education, training, and experience in accord with the 
minimal qualifications listed in Sec. 7.8(a).
    (3) The name and address of the individual(s), if different from the 
individual(s) named in paragraph (b)(2) of this section, proposed to be 
responsible for carrying out the terms and conditions of the permit.
    (4) Evidence of the applicant's ability to initiate, conduct, and 
complete the proposed work, including evidence of logistical support and 
laboratory facilities.
    (5) Where the application is for the excavation and/or removal of 
archaeological resources on public lands, the names of the university, 
museum, or other scientific or educational institution in which the 
applicant proposes to store all collections, and copies of records, 
data, photographs, and other documents derived from the proposed work. 
Applicants shall submit written certification, signed by an authorized 
official of the institution, of willingness to assume curatorial 
responsibility for the collections, records, data, photographs and other 
documents and to safeguard and preserve these materials as property of 
the United States.
    (6) Where the application is for the excavation and/or removal of 
archaeological resources on Indian lands, the name of the university, 
museum, or other scientific or educational institution in which the 
applicant proposes to store copies of records, data, photographs, and 
other documents derived from the proposed work, and all collections in 
the event the Indian owners do not wish to take custody or otherwise 
dispose of the archaeological resources. Applicants shall submit written 
certification, signed by an authorized official of the institution, or 
willingness to assume curatorial responsibility for the collections, if 
applicable, and/or the records, data, photographs, and other documents 
derived from the proposed work.
    (c) The Federal land manager may require additional information, 
pertinent to land management responsibilities, to be included in the 
application for permit and shall so inform the applicant.
    (d) Paperwork Reduction Act. The information collection requirement 
contained in Sec. 7.6 of these regulations has been approved by the 
Office of Management and Budget under 44 U.S.C. 3501 et seq. and 
assigned clearance number

[[Page 181]]

1024-0037. The purpose of the information collection is to meet 
statutory and administrative requirements in the public interest. The 
information will be used to assist Federal land managers in determining 
that applicants for permits are qualified, that the work proposed would 
further archaeological knowledge, that archaeological resources and 
associated records and data will be properly preserved, and that the 
permitted activity would not conflict with the management of the public 
lands involved. Response to the information requirement is necessary in 
order for an applicant to obtain a benefit.



Sec. 7.7  Notification to Indian tribes of possible harm to, or destruction of, sites on public lands having religious or cultural importance.

    (a) If the issuance of a permit under this part may result in harm 
to, or destruction of, any Indian tribal religious or cultural site on 
public lands, as determined by the Federal land manager, at least 30 
days before issuing such a permit the Federal land manager shall notify 
any Indian tribe which may consider the site as having religious or 
cultural importance. Such notice shall not be deemed a disclosure to the 
public for purposes of section 9 of the Act.
    (1) Notice by the Federal land manager to any Indian tribe shall be 
sent to the chief executive officer or other designated official of the 
tribe. Indian tribes are encouraged to designate a tribal official to be 
the focal point for any notification and discussion between the tribe 
and the Federal land manager.
    (2) The Federal land manager may provide notice to any other Native 
American group that is known by the Federal land manager to consider 
sites potentially affected as being of religious or cultural importance.
    (3) Upon request during the 30-day period, the Federal land manager 
may meet with official representatives of any Indian tribe or group to 
discuss their interests, including ways to avoid or mitigate potential 
harm or destruction such as excluding sites from the permit area. Any 
mitigation measures which are adopted shall be incorporated into the 
terms and conditions of the permit under Sec. 7.9.
    (4) When the Federal land manager detemines that a permit applied 
for under this part must be issued immediately because of an imminent 
threat of loss or destruction of an archaeological resource, the Federal 
land manager shall so notify the appropriate tribe.
    (b)(1) In order to identify sites of religious or cultural 
importance, the Federal land manager shall seek to identify all Indian 
tribes having aboriginal or historic ties to the lands under the Federal 
land manager's jurisdiction and seek to determine, from the chief 
executive officer or other designated official of any such tribe, the 
location and nature of specific sites of religious or cultural 
importance so that such information may be on file for land management 
purposes. Information on sites eligible for or included in the National 
Register of Historic Places may be withheld from public disclosure 
pursuant to section 304 of the Act of October 15, 1966, as amended (16 
U.S.C. 470w-3).
    (2) If the Federal land manager becomes aware of a Native American 
group that is not an Indian tribe as defined in this part but has 
aboriginal or historic ties to public lands under the Federal land 
manager's jurisdiction, the Federal land manager may seek to communicate 
with official representatives of that group to obtain information on 
sites they may consider to be of religious or cultural importance.
    (3) The Federal land manager may enter into agreement with any 
Indian tribe or other Native American group for determining locations 
for which such tribe or group wishes to receive notice under this 
section.
    (4) The Federal land manager should also seek to determine, in 
consultation with official representatives of Indian tribes or other 
Native American groups, what circumstances should be the subject of 
special notification to the tribe or group after a permit has been 
issued. Circumstances calling for notification might include the 
discovery of human remains. When circumstances for special notification 
have been determined by the Federal land manager, the Federal land 
manager will include a requirement in the

[[Page 182]]

terms and conditions of permits, under Sec. 7.9(c), for permittees to 
notify the Federal land manger immediately upon the occurrence of such 
circumstances. Following the permittee's notification, the Federal land 
manager will notify and consult with the tribe or group as appropriate. 
In cases involving Native American human remains and other ``cultural 
items'', as defined by NAGPRA, the Federal land manager is referred to 
NAGPRA and its implementing regulations.

[49 FR 1027, Jan. 6, 1984, as amended at 60 FR 5260, 5261, Jan. 26, 
1995]



Sec. 7.8  Issuance of permits.

    (a) The Federal land manager may issue a permit, for a specified 
period of time appropriate to the work to be conducted, upon determining 
that:
    (1) The applicant is appropriately qualified, as evidenced by 
training, education, and/or experience, and possesses demonstrable 
competence in archaeological theory and methods, and in collecting, 
handling, analyzing, evaluating, and reporting archaeological data, 
relative to the type and scope of the work proposed, and also meets the 
following minimum qualifications:
    (i) A graduate degree in anthropology or archaeology, or equivalent 
training and experience;
    (ii) The demonstrated ability to plan, equip, staff, organize, and 
supervise activity of the type and scope proposed;
    (iii) The demonstrated ability to carry research to completion, as 
evidenced by timely completion of theses, research reports, or similar 
documents;
    (iv) Completion of at least 16 months of professional experience 
and/or specialized training in archaeological field, laboratory, or 
library research, administration, or management, including at least 4 
months experience and/or specialized training in the kind of activity 
the individual proposes to conduct under authority of a permit; and
    (v) Applicants proposing to engage in historical archaeology should 
have had at least one year of experience in research concerning 
archaeological resources of the historic period. Applicants proposing to 
engage in prehistoric archaeology should have had at least one year of 
experience in research concerning archaeological resources of the 
prehistoric period.
    (2) The proposed work is to be undertaken for the purpose of 
furthering archaeological knowledge in the public interest, which may 
include but need not be limited to, scientific or scholarly research, 
and preservation of archaeological data;
    (3) The proposed work, including time, scope, location, and purpose, 
is not inconsistent with any management plan or established policy, 
objectives, or requirements applicable to the management of the public 
lands concerned;
    (4) Where the proposed work consists of archaelogical survey and/or 
data recovery undertaken in accordance with other approved uses of the 
public lands or Indian lands, and the proposed work has been agreed to 
in writing by the Federal land manager pursuant to section 106 of the 
National Historic Preservation Act (16 U.S.C. 470f), paragraphs (a)(2) 
and (a)(3) shall be deemed satisfied by the prior approval.
    (5) Written consent has been obtained, for work proposed on Indian 
lands, from the Indian landowner and the Indian tribe having 
jurisdiction over such lands;
    (6) Evidence is submitted to the Federal land manager that any 
university, museum, or other scientific or educational institution 
proposed in the application as the repository possesses adequate 
curatorial capability for safeguarding and preserving the archaeological 
resources and all associated records; and
    (7) The applicant has certified that, not later than 90 days after 
the date the final report is submitted to the Federal land manager, the 
following will be delivered to the appropriate official of the approved 
university, museum, or other scientific or educational institution, 
which shall be named in the permit:
    (i) All artifacts, samples, collections, and copies of records, 
data, photographs, and other documents resulting from work conducted 
under the requested permit where the permit is for the excavation and/or 
removal of archaeological resources from public lands.

[[Page 183]]

    (ii) All artifacts, samples and collections resulting from work 
under the requested permit for which the custody or disposition is not 
undertaken by the Indian owners, and copies of records, data, 
photographs, and other documents resulting from work conducted under the 
requested permit, where the permit is for the excavation and/or removal 
of archaeological resources from Indian lands.
    (b) When the area of the proposed work would cross jurisdictional 
boundaries, so that permit applications must be submitted to more than 
one Federal land manager, the Federal land managers shall coordinate the 
review and evaluation of applications and the issuance of permits.

[49 FR 1027, Jan. 6, 1984; 49 FR 5923, Feb. 16, 1984]



Sec. 7.9  Terms and conditions of permits.

    (a) In all permits issued, the Federal land manager shall specify:
    (1) The nature and extent of work allowed and required under the 
permit, including the time, duration, scope, location, and purpose of 
the work;
    (2) The name of the individual(s) responsible for conducting the 
work and, if different, the name of the individual(s) responsible for 
carrying out the terms and conditions of the permit;
    (3) The name of any university, museum, or other scientific or 
educational insitutions in which any collected materials and data shall 
be deposited; and
    (4) Reporting requirements.
    (b) The Federal land manager may specify such terms and conditions 
as deemed necessary, consistent with this part, to protect public safety 
and other values and/or resources, to secure work areas, to safeguard 
other legitimate land uses, and to limit activities incidental to work 
authorized under a permit.
    (c) The Federal land manager shall include in permits issued for 
archaeological work on Indian lands such terms and conditions as may be 
requested by the Indian landowner and the Indian tribe having 
jurisdiction over the lands, and for archaeological work on public lands 
shall include such terms and conditions as may have been developed 
pursuant to Sec. 7.7.
    (d) Initiation of work or other activities under the authority of a 
permit signifies the permittee's acceptance of the terms and conditions 
of the permit.
    (e) The permittee shall not be released from requirements of a 
permit until all outstanding obligations have been satisfied, whether or 
not the term of the permit has expired.
    (f) The permittee may request that the Federal land manager extend 
or modify a permit.
    (g) The permittee's performance under any permit issued for a period 
greater than 1 year shall be subject to review by the Federal land 
manager, at least annually.



Sec. 7.10  Suspension and revocation of permits.

    (a) Suspension or revocation for cause. (1) The Federal land manager 
may suspend a permit issued pursuant to this part upon determining that 
the permittee has failed to meet any of the terms and conditions of the 
permit or has violated any prohibition of the Act or Sec. 7.4. The 
Federal land manager shall provide written notice to the permittee of 
the suspension, the cause thereof, and the requirements which must be 
met before the suspension will be removed.
    (2) The Federal land manager may revoke a permit upon assessment of 
a civil penalty under Sec. 7.15 upon the permittee's conviction under 
section 6 of the Act, or upon determining that the permittee has failed 
after notice under this section to correct the situation which led to 
suspension of the permit.
    (b) Suspension or revocation for management purposes. The Federal 
land manager may suspend or revoke a permit, without liability to the 
United States, its agents, or employees, when continuation of work under 
the permit would be in conflict with management requirements not in 
effect when the permit was issued. The Federal land manager shall 
provide written notice to the permittee stating the nature of and basis 
for the suspension or revocation.

[49 FR 1027, Jan. 6, 1984; 49 FR 5923, Feb. 16, 1984]

[[Page 184]]



Sec. 7.11  Appeals relating to permits.

    Any affected person may appeal permit issuance, denial of permit 
issuance, suspension, revocation, and terms and conditions of a permit 
through existing administrative appeal procedures, or through procedures 
which may be established by the Federal land manager pursuant to section 
10(b) of the Act and this part.



Sec. 7.12  Relationship to section 106 of the National Historic Preservation Act.

    Issuance of a permit in accordance with the Act and this part does 
not constitute an undertaking requiring compliance with section 106 of 
the Act of October 15, 1966 (16 U.S.C. 470f). However, the mere issuance 
of such a permit does not excuse the Federal land manager from 
compliance with section 106 where otherwise required.



Sec. 7.13  Custody of archaeological resources.

    (a) Archaeological resources excavated or removed from the public 
lands remain the property of the United States.
    (b) Archaeological resources excavated or removed from Indian lands 
remain the property of the Indian or Indian tribe having rights of 
ownership over such resources.
    (c) The Secretary of the Interior may promulgate regulations 
providing for the exchange of archaeological resources among suitable 
universities, museums, or other scientific or educational institutions, 
for the ultimate disposition of archaeological resources, and for 
standards by which archaeological resources shall be preserved and 
maintained, when such resources have been excavated or removed from 
public lands and Indian lands.
    (d) In the absence of regulations referenced in paragraph (c) of 
this section, the Federal land manager may provide for the exchange of 
archaeological resources among suitable universities, museums, or other 
scientific or educational institutions, when such resources have been 
excavated or removed from public lands under the authority of a permit 
issued by the Federal land manager.
    (e) Notwithstanding the provisions of paragraphs (a) through (d) of 
this section, the Federal land manager will follow the procedures 
required by NAGPRA and its implementing regulations for determining the 
disposition of Native American human remains and other ``cultural 
items'', as defined by NAGPRA, that have been excavated, removed, or 
discovered on public lands.

[49 FR 1027, Jan. 6, 1984, as amended at 60 FR 5260, 5261, Jan. 26, 
1995]



Sec. 7.14  Determination of archaeological or commercial value and cost of restoration and repair.

    (a) Archaeological value. For purposes of this part, the 
archaeological value of any archaeological resource involved in a 
violation of the prohibitions in Sec. 7.4 of this part or conditions of 
a permit issued pursuant to this part shall be the value of the 
information associated with the archaeological resource. This value 
shall be appraised in terms of the costs of the retrieval of the 
scientific information which would have been obtainable prior to the 
violation. These costs may include, but need not be limited to, the cost 
of preparing a research design, conducting field work, carrying out 
laboratory analysis, and preparing reports as would be necessary to 
realize the information potential.
    (b) Commercial value. For purposes of this part, the commercial 
value of any archaeological resource involved in a violation of the 
prohibitions in Sec. 7.4 of this part or conditions of a permit issued 
pursuant to this part shall be its fair market value. Where the 
violation has resulted in damage to the archaeological resource, the 
fair market value should be determined using the condition of the 
archaeological resource prior to the violation, to the extent that its 
prior condition can be ascertained.
    (c) Cost of restoration and repair. For purposes of this part, the 
cost of restoration and repair of archaeological resources damaged as a 
result of a violation of prohibitions or conditions pursuant to this 
part, shall be the sum of the costs already incurred for emergency 
restoration or repair work, plus those costs projected to be necessary 
to complete restoration and repair, which

[[Page 185]]

may include, but need not be limited to, the costs of the following:
    (1) Reconstruction of the archaeological resource;
    (2) Stabilization of the archaeological resource;
    (3) Ground contour reconstruction and surface stabilization;
    (4) Research necessary to carry out reconstruction or stabilization;
    (5) Physical barriers or other protective devices, necessitated by 
the disturbance of the archaeological resource, to protect it from 
further disturbance;
    (6) Examination and analysis of the archaeological resource 
including recording remaining archaeological information, where 
necessitated by disturbance, in order to salvage remaining values which 
cannot be otherwise conserved;
    (7) Reinterment of human remains in accordance with religious custom 
and State, local, or tribal law, where appropriate, as determined by the 
Federal land manager.
    (8) Preparation of reports relating to any of the above activities.



Sec. 7.15  Assessment of civil penalties.

    (a) The Federal land manager may assess a civil penalty against any 
person who has violated any prohibition contained in Sec. 7.4 or who has 
violated any term or condition included in a permit issued in accordance 
with the Act and this part.
    (b) Notice of violation. The Federal land manager shall serve a 
notice of violation upon any person believed to be subject to a civil 
penalty, either in person or by registered or certified mail (return 
receipt requested). The Federal land manager shall include in the 
notice:
    (1) A concise statement of the facts believed to show a violation;
    (2) A specific reference to the provision(s) of this part or to a 
permit issued pursuant to this part allegedly violated;
    (3) The amount of penalty proposed to be assessed, including any 
initial proposal to mitigate or remit where appropriate, or a statement 
that notice of a proposed penalty amount will be served after the 
damages associated with the alleged violation have been ascertained;
    (4) Notification of the right to file a petition for relief pursuant 
to paragraph (d) of this section, or to await the Federal land manager's 
notice of assessment, and to request a hearing in accordance with 
paragraph (g) of this section. The notice shall also inform the person 
of the right to seek judicial review of any final administrative 
decision assessing a civil penalty.
    (c) The person served with a notice of violation shall have 45 
calendar days from the date of its service (or the date of service of a 
proposed penalty amount, if later) in which to respond. During this time 
the person may:
    (1) Seek informal discussions with the Federal land manager;
    (2) File a petition for relief in accordance with paragraph (d) of 
this section;
    (3) Take no action and await the Federal land manager's notice of 
assessment;
    (4) Accept in writing or by payment the proposed penalty, or any 
mitigation or remission offered in the notice. Acceptance of the 
proposed penalty or mitigation or remission shall be deemed a waiver of 
the notice of assessment and of the right to request a hearing under 
paragraph (g) of this section.
    (d) Petition for relief. The person served with a notice of 
violation may request that no penalty be assessed or that the amount be 
reduced, by filing a petition for relief with the Federal land manager 
within 45 calendar days of the date of service of the notice of 
violation (or of a proposed penalty amount, if later). The petition 
shall be in writing and signed by the person served with the notice of 
violation. If the person is a corporation, the petition must be signed 
by an officer authorized to sign such documents. The petition shall set 
forth in full the legal or factual basis for the requested relief.
    (e) Assessment of penalty. (1) The Federal land manager shall assess 
a civil penalty upon expiration of the period for filing a petition for 
relief, upon completion of review of any petition filed, or upon 
completion of informal discussions, whichever is later.
    (2) The Federal land manager shall take into consideration all 
available

[[Page 186]]

information, including information provided pursuant to paragraphs (c) 
and (d) of this section or furnished upon further request by the Federal 
land manager.
    (3) If the facts warrant a conclusion that no violation has 
occurred, the Federal land manager shall so notify the person served 
with a notice of violation, and no penalty shall be assessed.
    (4) Where the facts warrant a conclusion that a violation has 
occurred, the Federal land manager shall determine a penalty amount in 
accordance with Sec. 7.16.
    (f) Notice of assessment. The Federal land manager shall notify the 
person served with a notice of violation of the penalty amount assessed 
by serving a written notice of assessment, either in person or by 
registered or certified mail (return receipt requested). The Federal 
land manager shall include in the notice of assessment:
    (1) The facts and conclusions from which it was determined that a 
violation did occur;
    (2) The basis in Sec. 7.16 for determining the penalty amount 
assessed and/or any offer to mitigate or remit the penalty; and
    (3) Notification of the right to request a hearing, including the 
procedures to be followed, and to seek judicial review of any final 
administrative decision assessing a civil penalty.
    (g) Hearings. (1) Except where the right to request a hearing is 
deemed to have been waived as provided in paragraph (c)(4) of this 
section, the person served with a notice of assessment may file a 
written request for a hearing with the adjudicatory body specified in 
the notice. The person shall enclose with the request for hearing a copy 
of the notice of assessment, and shall deliver the request as specified 
in the notice of assessment, personally or by registered or certified 
mail (return receipt requested).
    (2) Failure to deliver a written request for a hearing within 45 
days of the date of service of the notice of assessment shall be deemed 
a waiver of the right to a hearing.
    (3) Any hearing conducted pursuant to this section shall be held in 
accordance with 5 U.S.C. 554. In any such hearing, the amount of civil 
penalty assessed shall be determined in accordance with this part, and 
shall not be limited by the amount assessed by the Federal land manager 
under paragraph (f) of this section or any offer of mitigation or 
remission made by the Federal land manager.
    (h) Final administrative decision. (1) Where the person served with 
a notice of violation has accepted the penalty pursuant to paragraph 
(c)(4) of this section, the notice of violation shall constitute the 
final administrative decision;
    (2) Where the person served with a notice of assessment has not 
filed a timely request for a hearing pursuant to paragraph (g)(1) of 
this section, the notice of assessment shall constitute the final 
administrative decision;
    (3) Where the person served with a notice of assessment has filed a 
timely request for a hearing pursuant to paragraph (g)(1) of this 
section, the decision resulting from the hearing or any applicable 
administrative appeal therefrom shall constitute the final 
administrative decision.
    (i) Payment of penalty. (1) The person assessed a civil penalty 
shall have 45 calendar days from the date of issuance of the final 
administrative decision in which to make full payment of the penalty 
assessed, unless a timely request for appeal has been filed with a U.S. 
District Court as provided in section 7(b)(1) of the Act.
    (2) Upon failure to pay the penalty, the Federal land manager may 
request the Attorney General to institute a civil action to collect the 
penalty in a U.S. District Court for any district in which the person 
assessed a civil penalty is found, resides, or transacts business. Where 
the Federal land manager is not represented by the Attorney General, a 
civil action may be initiated directly by the Federal land manager.
    (j) Other remedies not waived. Assessment of a penalty under this 
section shall not be deemed a waiver of the right to pursue other 
available legal or administrative remedies.



Sec. 7.16  Civil penalty amounts.

    (a) Maximum amount of penalty. (1) Where the person being assessed a 
civil

[[Page 187]]

penalty has not committed any previous violation of any prohibition in 
Sec. 7.4 or of any term or condition included in a permit issued 
pursuant to this part, the maximum amount of the penalty shall be the 
full cost of restoration and repair of archaeological resources damaged 
plus the archaeological or commercial value of archaeological resources 
destroyed or not recovered.
    (2) Where the person being assessed a civil penalty has committed 
any previous violation of any prohibition in Sec. 7.4 or of any term or 
condition included in a permit issued pursuant to this part, the maximum 
amount of the penalty shall be double the cost of restoration and repair 
plus double the archaeological or commercial value of archaeological 
resources destroyed or not recovered.
    (3) Violations limited to the removal of arrowheads located on the 
surface of the ground shall not be subject to the penalties prescribed 
in this section.
    (b) Determination of penalty amount, mitigation, and remission. The 
Federal land manager may assess a penalty amount less than the maximum 
amount of penalty and may offer to mitigate or remit the penalty.
    (1) Determination of the penalty amount and/or a proposal to 
mitigate or remit the penalty may be based upon any of the following 
factors:
    (i) Agreement by the person being assessed a civil penalty to return 
to the Federal land manager archaeological resources removed from public 
lands or Indian lands;
    (ii) Agreement by the person being assessed a civil penalty to 
assist the Federal land manager in activity to preserve, restore, or 
otherwise contribute to the protection and study of archaeological 
resources on public lands or Indian lands;
    (iii) Agreement by the person being assessed a civil penalty to 
provide information which will assist in the detection, prevention, or 
prosecution of violations of the Act or this part;
    (iv) Demonstration of hardship or inability to pay, provided that 
this factor shall only be considered when the person being assessed a 
civil penalty has not been found to have previously violated the 
regulations in this part;
    (v) Determination that the person being assessed a civil penalty did 
not willfully commit the violation;
    (vi) Determination that the proposed penalty would constitute 
excessive punishment under the circumstances;
    (vii) Determination of other mitigating circumstances appropriate to 
consideration in reaching a fair and expeditious assessment.
    (2) When the penalty is for a violation on Indian lands, the Federal 
land manager shall consult with and consider the interests of the Indian 
landowner and the Indian tribe having jurisdiction over the Indian lands 
prior to proposing to mitigate or remit the penalty.
    (3) When the penalty is for a violation which may have had an effect 
on a known Indian tribal religious or cultural site on public lands, the 
Federal land manager should consult with and consider the interests of 
the affected tribe(s) prior to proposing to mitigate or remit the 
penalty.

[49 FR 1027, Jan. 6, 1984, as amended at 52 FR 47721, Dec. 16, 1987]



Sec. 7.17  Other penalties and rewards.

    (a) Section 6 of the Act contains criminal prohibitions and 
provisions for criminal penalties. Section 8(b) of the Act provides that 
archaeological resources, vehicles, or equipment involved in a violation 
may be subject to forfeiture.
    (b) Section 8(a) of the Act provides for rewards to be made to 
persons who furnish information which leads to conviction for a criminal 
violation or to assessment of a civil penalty. The Federal land manager 
may certify to the Secretary of the Treasury that a person is eligible 
to receive payment. Officers and employees of Federal, State, or local 
government who furnish information or render service in the performance 
of their official duties, and persons who have provided information 
under Sec. 7.16(b)(1)(iii) shall not be certified eligible to receive 
payment of rewards.
    (c) In cases involving Indian lands, all civil penalty monies and 
any item forfeited under the provisions of this section shall be 
transferred to the appropriate Indian or Indian tribe.

[[Page 188]]



Sec. 7.18  Confidentiality of archaeological resource information.

    (a) The Federal land manager shall not make available to the public, 
under subchapter II of chapter 5 of title 5 of the United States Code or 
any other provision of law, information concerning the nature and 
location of any archaeological resource, with the following exceptions:
    (1) The Federal land manager may make information available, 
provided that the disclosure will further the purposes of the Act and 
this part, or the Act of June 27, 1960, as amended (16 U.S.C. 469 
through 469c), without risking harm to the archaeological resource or to 
the site in which it is located.
    (2) The Federal land manager shall make information available, when 
the Governor of any State has submitted to the Federal land manager a 
written request for information, concerning the archaeological resources 
within the requesting Governor's State, provided that the request 
includes:
    (i) The specific archaeological resource or area about which 
information is sought;
    (ii) The purpose for which the information is sought; and
    (iii) The Governor's written commitment to adequately protect the 
confidentiality of the information.
    (b) [Reserved]

[49 FR 1027, Jan. 6, 1984; 49 FR 5923, Feb. 16, 1984]



Sec. 7.19  Report.

    (a) Each Federal land manager, when requested by the Secretary of 
the Interior, will submit such information as is necessary to enable the 
Secretary to comply with section 13 of the Act and comprehensively 
report on activities carried out under provisions of the Act.
    (b) The Secretary of the Interior will include in the annual 
comprehensive report, submitted to the Committee on Interior and Insular 
Affairs of the United States House of Representatives and to the 
Committee on Energy and Natural Resources of the United States Senate 
under section 13 of the Act, information on public awareness programs 
submitted by each Federal land manager under Sec. 7.20(b). Such 
submittal will fulfill the Federal land manager's responsibility under 
section 10(c) of the Act to report on public awareness programs.
    (c) The comprehensive report by the Secretary of the Interior also 
will include information on the activities carried out under section 14 
of the Act. Each Federal land manager, when requested by the Secretary, 
will submit any available information on surveys and schedules and 
suspected violations in order to enable the Secretary to summarize in 
the comprehensive report actions taken pursuant to section 14 of the 
Act.

[60 FR 5260, 5261, Jan. 26, 1995]



Sec. 7.20  Public awareness programs.

    (a) Each Federal land manager will establish a program to increase 
public awareness of the need to protect important archaeological 
resources located on public and Indian lands. Educational activities 
required by section 10(c) of the Act should be incorporated into other 
current agency public education and interpretation programs where 
appropriate.
    (b) Each Federal land manager annually will submit to the Secretary 
of the Interior the relevant information on public awareness activities 
required by section 10(c) of the Act for inclusion in the comprehensive 
report on activities required by section 13 of the Act.

[60 FR 5260, 5261, Jan. 26, 1995]



Sec. 7.21  Surveys and schedules.

    (a) The Secretaries of the Interior, Agriculture, and Defense and 
the Chairman of the Board of the Tennessee Valley Authority will develop 
plans for surveying lands under each agency's control to determine the 
nature and extent of archaeological resources pursuant to section 14(a) 
of the Act. Such activities should be consistent with Federal agency 
planning policies and other historic preservation program 
responsibilities required by 16 U.S.C. 470 et seq. Survey plans prepared 
under this section will be designed to comply with the purpose of the 
Act regarding the protection of archaeological resources.
    (b) The Secretaries of the Interior, Agriculture, and Defense and 
the

[[Page 189]]

Chairman of the Tennessee Valley Authority will prepare schedules for 
surveying lands under each agency's control that are likely to contain 
the most scientifically valuable archaeological resources pursuant to 
section 14(b) of the Act. Such schedules will be developed based on 
objectives and information identified in survey plans described in 
paragraph (a) of this section and implemented systematically to cover 
areas where the most scientifically valuable archaeological resources 
are likely to exist.
    (c) Guidance for the activities undertaken as part of paragraphs (a) 
through (b) of this section is provided by the Secretary of the 
Interior's Standards and Guidelines for Archeology and Historic 
Preservation.
    (d) Other Federal land managing agencies are encouraged to develop 
plans for surveying lands under their jurisdictions and prepare 
schedules for surveying to improve protection and management of 
archaeological resources.
    (e) The Secretaries of the Interior, Agriculture, and Defense and 
the Chairman of the Tennessee Valley Authority will develop a system for 
documenting and reporting suspected violations of the various provisions 
of the Act. This system will reference a set of procedures for use by 
officers, employees, or agents of Federal agencies to assist them in 
recognizing violations, documenting relevant evidence, and reporting 
assembled information to the appropriate authorities. Methods employed 
to document and report such violations should be compatible with 
existing agency reporting systems for documenting violations of other 
appropriate Federal statutes and regulations. Summary information to be 
included in the Secretary's comprehensive report will be based upon the 
system developed by each Federal land manager for documenting suspected 
violations.

[60 FR 5260, 5261, Jan. 26, 1995]



     Subpart B--Department of the Interior Supplemental Regulations

    Source: 52 FR 9168, Mar. 23, 1987, unless otherwise noted.



Sec. 7.31  Scope and authority.

    The regulations in this subpart are promulgated pursuant to section 
10(b) of the Archaeological Resources Protection Act of 1979 (16 U.S.C. 
470ii), which requires agencies to develop rules and regulations for 
carrying out the purposes of the Act, consistent with the uniform 
regulations issued pursuant to section 10(a) of the Act (subpart A of 
this part).



Sec. 7.32  Supplemental definitions.

    For purposes of this subpart, the following definitions will be 
used:
    (a) Site of religious or cultural importance means, for purposes of 
Sec. 7.7 of this part, a location which has traditionally been 
considered important by an Indian tribe because of a religious event 
which happened there; because it contains specific natural products 
which are of religious or cultural importance; because it is believed to 
the be dwelling place of, the embodiment of, or a place conducive to 
communication with spiritual beings; because it contains elements of 
life-cycle rituals, such as burials and associated materials; or because 
it has other specific and continuing significance in Indian religion or 
culture.
    (b) Allotted lands means lands granted to Indian individuals by the 
United States and held in trust for those individuals by the United 
States.



Sec. 7.33  Determination of loss or absence of archaeological interest.

    (a) Under certain circumstances, a Federal land manager may 
determine, pursuant to Sec. 7.3(a)(5) of this part, that certain 
material remains are not or are no longer of archaeological interest, 
and therefore are not to be considered archaeological resources under 
this part.
    (b) The Federal land manager may make such a determination if he/she 
finds that the material remains are not capable of providing scientific 
or humanistic understandings of past human behavior, cultural 
adaptation, and related topics.
    (c) Prior to making a determination that material remains are not or 
are no longer archaeological resources, the Federal land manager shall 
ensure that

[[Page 190]]

the following procedures are completed:
    (1) A professional archaeological evaluation of material remains and 
similar materials within the area under consideration shall be 
completed, consistent with the Secretary of the Interior's Standards and 
Guidelines for Archeology and Historic Preservation (48 FR 44716, Sept. 
29, 1983) and with 36 CFR parts 60, 63, and 65.
    (2) The principal bureau archaeologist or, in the absence of a 
principal bureau archaeologist, the Department Consulting Archeologist, 
shall establish whether the material remains under consideration 
contribute to scientific or humanistic understandings of past human 
behavior, cultural adaptation and related topics. The principal bureau 
archaeologist or the Department Consulting Archeologist, as appropriate, 
shall make a recommendation to the Federal land manager concerning these 
material remains.
    (d) The Federal land manager shall make the determination based upon 
the facts established by and the recommendation of the principal bureau 
archaeologist or the Departmental Consulting Archeologist, as 
appropriate, and shall fully document the basis therefor, including 
consultation with Indian tribes for determinations regarding sites of 
religious or cultural importance.
    (e) The Federal land manager shall make public notice of the 
determination and its limitations, including any permitting requirements 
for activities associated with the materials determined not to be 
archaeological resources for purposes of this part.
    (f) Any interested individual may request in writing that the 
Departmental Consulting Archeologist review any final determination by 
the Federal land manager that certain remains, are not, or are no 
longer, archaeological resources. Two (2) copies of the request should 
be sent to the Departmental Consulting Archeologist, National Park 
Service, P.O. Box 37127, Washington, DC 20013-7127, and should document 
why the requestor disagrees with the determination of the Federal land 
manager. The Departmental Consulting Archeologist shall review the 
request, and, if appropriate, shall review the Federal land manager's 
determination and its supporting documentation. Based on this review, 
the Departmental Consulting Archeologist shall prepare a final 
professional recommendation, and shall transmit the recommendation and 
the basis therefor to the head of the bureau for further consideration 
within 60 days of the receipt of the request.
    (g) Any determination made pursuant to this section shall in no way 
affect the Federal land manager's obligations under other applicable 
laws or regulations.



Sec. 7.34  Procedural information for securing permits.

    Information about procedures to secure a permit to excavate or 
remove archaeological resources from public lands or Indian lands can be 
obtained from the appropriate Indian tribal authorities, the Federal 
land manager of the bureau that administers the specific area of the 
public lands or Indian lands for which a permit is desired, or from the 
state, regional, or national office of that bureau.



Sec. 7.35  Permitting procedures for Indian lands.

    (a) If the lands involved in a permit application are Indian lands, 
the consent of the appropriate Indian tribal authority or individual 
Indian landowner is required by the Act and these regulations.
    (b) When Indian tribal lands are involved in an application for a 
permit or a request for extension or modification of a permit, the 
consent of the Indian tribal government must be obtained. For Indian 
allotted lands outside reservation boundaries, consent from only the 
individual landowner is needed. When multiple-owner allotted lands are 
involved, consent by more than 50 percent of the ownership interest is 
sufficient. For Indian allotted lands within reservation boundaries, 
consent must be obtained from the Indian tribal government and the 
individual landowner(s).
    (c) The applicant should consult with the Bureau of Indian Affairs 
concerning procedures for obtaining consent from the appropriate Indian 
tribal

[[Page 191]]

authorities and submit the permit application to the area office of the 
Bureau of Indian Affairs that is responsible for the administration of 
the lands in question. The Bureau of Indian Affairs shall insure that 
consultation with the appropriate Indian tribal authority or individual 
Indian landowner regarding terms and conditions of the permit occurs 
prior to detailed evaluation of the application. Permits shall include 
terms and conditions requested by the Indian tribe or Indian landowner 
pursuant to Sec. 7.9 of this part.
    (d) The issuance of a permit under this part does not remove the 
requirement for any other permit required by Indian tribal law.



Sec. 7.36  Permit reviews and disputes.

    (a) Any affected person disputing the decision of a Federal land 
manager with respect to the issuance or denial of a permit, the 
inclusion of specific terms and conditions in a permit, or the 
modification, suspension, or revocation of a permit may request the 
Federal land manager to review the disputed decision and may request a 
conference to discuss the decision and its basis.
    (b) The disputant, if unsatisfied with the outcome of the review or 
conference, may request that the decision be reviewed by the head of the 
bureau involved.
    (c) Any disputant unsatisified with the higher level review, and 
desiring to appeal the decision, pursuant to Sec. 7.11 of this part, 
should consult with the appropriate Federal land manager regarding the 
existence of published bureau appeal procedures. In the absence of 
published bureau appeal procedures, the review by the head of the bureau 
involved will constitute the final decision.
    (d) Any affected person may request a review by the Departmental 
Consulting Archeologist of any professional issues involved in a bureau 
permitting decision, such as professional qualifications, research 
design, or other professional archaeological matters. The Departmental 
Consulting Archeologist shall make a final professional recommendation 
to the head of the bureau involved. The head of the bureau involved will 
consider the recommendation, but may reject it, in whole or in part, for 
good cause. This request should be in writing, and should state the 
reasons for the request. See Sec. 7.33(f) for the address of the 
Departmental Consulting Archeologist.



Sec. 7.37  Civil penalty hearings procedures.

    (a) Requests for hearings. Any person wishing to request a hearing 
on a notice of assessment of civil penalty, pursuant to Sec. 7.15(g) of 
this part, may file a written, dated request for a hearing with the 
Hearing Division, Office of Hearings and Appeals, U.S. Department of the 
Interior, 801 North Quincy Street, Arlington, Virginia 22203-1923. The 
respondent shall enclose a copy of the notice of violation and the 
notice of assessment. The request shall state the relief sought, the 
basis for challenging the facts used as the basis for charging the 
violation and fixing the assessment, and respondent's preference as to 
the place and date for a hearing. A copy of the request shall be served 
upon the Solicitor of the Department of the Interior personally or by 
registered or certified mail (return receipt requested), at the address 
specified in the notice of assessment. Hearings shall be conducted in 
accordance with 43 CFR part 4, subparts A and B.
    (b) Waiver of right to a hearing. Failure to file a written request 
for a hearing within 45 days of the date of service of a notice of 
assessment shall be deemed a waiver of the right to a hearing.
    (c) Commencement of hearing procedures. Upon receipt of a request 
for a hearing, the Hearing Division shall assign an administrative law 
judge to the case. Notice of assignment shall be given promptly to the 
parties, and thereafter, all pleadings, papers, and other documents in 
the proceeding shall be filed directly with the administrative law 
judge, with copies served on the opposing party.
    (d) Appearance and practice. (1) Subject to the provisions of 43 CFR 
1.3, the respondent may appear in person, by representative, or by 
counsel, and may participate fully in those proceedings. If respondent 
fails to appear and the administrative law judge determines such failure 
is without good cause, the

[[Page 192]]

administrative law judge may, in his/her discretion, determine that such 
failure shall constitute a waiver of the right to a hearing and consent 
to the making of a decision on the record made at the hearing.
    (2) Departmental counsel, designated by the Solicitor of the 
Department, shall represent the Federal land manager in the proceedings. 
Upon notice to the Federal land manager of the assignment of an 
administrative law judge to the case, said counsel shall enter his/her 
appearance on behalf of the Federal land manager and shall file all 
petitions and correspondence exchanges by the Federal land manager and 
the respondent pursuant to Sec. 7.15 of this part which shall become 
part of the hearing record. Thereafter, service upon the Federal land 
manager shall be made to his/her counsel.
    (e) Hearing administration. (1) The administrative law judge shall 
have all powers accorded by law and necessary to preside over the 
parties and the proceedings and to make decisions in accordance with 5 
U.S.C. 554-557.
    (2) The transcript of testimony, the exhibits, and all papers, 
documents and requests filed in the proceedings, shall constitute the 
record for decision. The administrative law judge shall render a written 
decision upon the record, which shall set forth his/her findings of fact 
and conclusions of law, and the reasons and basis therefor, and an 
assessment of a penalty, if any.
    (3) Unless a notice of appeal is filed in accordance with paragraph 
(f) of this section, the administrative law judge's decision shall 
constitute the final administrative determination of the Secretary in 
the matter and shall become effective 30 calendar days from the date of 
this decision.
    (4) In any such hearing, the amount of civil penalty assessed shall 
be determined in accordance with this part, and shall not be limited by 
the amount assessed by the Federal land manager under Sec. 7.15 of this 
part or any offer of mitigation or remission made by the Federal land 
manager.
    (f) Appeal. (1) Either the respondent or the Federal land manager 
may appeal the decision of an administrative law judge by the filing of 
a ``Notice of Appeal'' with the Director, Office of Hearings and 
Appeals, U.S. Department of the Interior, 801 North Quincy Street, 
Arlington, Virginia 22203-1923, within 30 calendar days of the date of 
the administrative law judge's decision. Such notice shall be 
accompanied by proof of service on the administrative law judge and the 
opposing party.
    (2) Upon receipt of such a notice, the Director, Office of Hearings 
and Appeals, shall appoint an ad hoc appeals board to hear and decide an 
appeal. To the extent they are not inconsistent herewith, the provision 
of the Department of Hearings and Appeals Procedures in 43 CFR part 4, 
subparts A, B, and G shall apply to appeal proceedings under this 
subpart. The decision of the board on the appeal shall be in writing and 
shall become effective as the final administrative determination of the 
Secretary in the proceeding on the date it is rendered, unless otherwise 
specified therein.
    (g) Report service. Copies of decisions in civil penalty proceedings 
instituted under the Act may be obtained by letter of request addressed 
to the Director, Office of Hearings and Appeals, U.S. Department of the 
Interior, 801 North Quincy Street, Arlington, Virginia 22203-1923. Fees 
for this service shall be as established by the Director of that Office.

[52 FR 9168, Mar. 23, 1987, as amended at 67 FR 4368, Jan. 30, 2002]



PART 8--JOINT POLICIES OF THE DEPARTMENTS OF THE INTERIOR AND OF THE ARMY RELATIVE TO RESERVOIR PROJECT LANDS--Table of Contents




Sec.
8.0  Acquisition of lands for reservoir projects.
8.1  Lands for reservoir construction and operation.
8.2  Additional lands for correlative purposes.
8.3  Easements.
8.4  Blocking out.
8.5  Mineral rights.
8.6  Buildings.

    Authority: Sec. 7, 32 Stat. 389, sec. 14, 53 Stat. 1197; 43 U.S.C. 
421, 389.

    Source: 31 FR 9108, July 2, 1966, unless otherwise noted.

[[Page 193]]



Sec. 8.0  Acquisition of lands for reservoir projects.

    In so far as permitted by law, it is the policy of the Departments 
of the Interior and of the Army to acquire, as a part of reservoir 
project construction, adequate interest in lands necessary for the 
realization of optimum values for all purposes including additional land 
areas to assure full realization of optimum present and future outdoor 
recreational and fish and wildlife potentials of each reservoir.



Sec. 8.1  Lands for reservoir construction and operation.

    The fee title will be acquired to the following:
    (a) Lands necessary for permanent structures.
    (b) Lands below the maximum flowage line of the reservoir including 
lands below a selected freeboard where necessary to safeguard against 
the effects of saturation, wave action, and bank erosion and the permit 
induced surcharge operation.
    (c) Lands needed to provide for public access to the maximum flowage 
line as described in paragraph (b) of this section, or for operation and 
maintenance of the project.



Sec. 8.2  Additional lands for correlative purposes.

    The fee title will be acquired for the following:
    (a) Such lands as are needed to meet present and future requirements 
for fish and wildlife as determined pursuant to the Fish and Wildlife 
Coordination Act.
    (b) Such lands as are needed to meet present and future public 
requirements for outdoor recreation, as may be authorized by Congress.



Sec. 8.3  Easements.

    Easements in lieu of fee title may be taken only for lands that meet 
all of the following conditions:
    (a) Lands lying above the storage pool.
    (b) Lands in remote portions of the project area.
    (c) Lands determined to be of no substantial value for protection or 
enhancement of fish and wildlife resources, or for public outdoor 
recreation.
    (d) It is to the financial advantage of the Government to take 
easements in lieu of fee title.



Sec. 8.4  Blocking out.

    Blocking out will be accomplished in accordance with sound real 
estate practices, for example, on minor sectional subdivision lines; and 
normally land will not be acquired to avoid severance damage if the 
owner will waive such damage.



Sec. 8.5  Mineral rights.

    Mineral, oil and gas rights will not be acquired except where the 
development thereof would interfere with project purposes, but mineral 
rights not acquired will be subordinated to the Government's right to 
regulate their development in a manner that will not interfere with the 
primary purposes of the project, including public access.



Sec. 8.6  Buildings.

    Buildings for human occupancy as well as other structures which 
would interfere with the operation of the project for any project 
purpose will be prohibited on reservoir project lands.



PART 9--INTERGOVERNMENTAL REVIEW OF DEPARTMENT OF THE INTERIOR PROGRAMS AND ACTIVITIES--Table of Contents




Sec.
9.1  What is the purpose of these regulations?
9.2  What definitions apply to these regulations?
9.3  What programs and activities of the Department are subject to these 
          regulations?
9.4  [Reserved]
9.5  What is the Secretary's obligation with respect to Federal 
          interagency coordination?
9.6  What procedures apply to the selection of programs and activities 
          under these regulations?
9.7  How does the Secretary communicate with state and local officials 
          concerning the Department's programs and activities?
9.8  How does the Secretary provide states an opportunity to comment on 
          proposed federal financial assistance and direct federal 
          development?

[[Page 194]]

9.9  How does the Secretary receive and respond to comments?
9.10  How does the Secretary make efforts to accommodate 
          intergovernmental concerns?
9.11  What are the Secretary's obligations in interstate situations?
9.12  How may a state simplify, consolidate, or substitute federally 
          required state plans?
9.13  May the Secretary waive any provision of these regulations?

    Authority: E.O. 12372, July 14, 1982 (47 FR 30959), as amended April 
8, 1983 (48 FR 15887); and sec. 401 of the Intergovernmental Cooperation 
Act of 1968 as amended (31 U.S.C. 6506).

    Source: 48 FR 29232, June 24, 1983, unless otherwise noted.



Sec. 9.1  What is the purpose of these regulations?

    (a) The regulations in this part implement Executive Order 12372, 
``Intergovernmental Review of Federal Programs,'' issued July 14, 1982 
and amended on April 8, 1983. These regulations also implement 
applicable provisions of section 401 of the Intergovernmental 
Cooperation Act of 1968.
    (b) These regulations are intended to foster an intergovernmental 
partnership and a strengthened Federalism by relying on state processes 
and on state, areawide, regional and local coordination for review of 
proposed federal financial assistance and direct federal development.
    (c) These regulations are intended to aid the internal management of 
the Department, and are not intended to create any right or benefit 
enforceable at law by a party against the Department or its officers.



Sec. 9.2  What definitions apply to these regulations?

    Department means the U.S. Department of the Interior.
    Order means Executive Order 12372, issued July 14, 1982, and amended 
April 8, 1983 and titled ``Intergovernmental Review of Federal 
Programs.''
    Secretary means the Secretary of the U.S. Department of the Interior 
or an official or employee of the Department acting for the Secretary 
under a delegation of authority.
    State means any of the 50 states, the District of Columbia, the 
Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana 
Islands, Guam, American Samoa, the U.S. Virgin Islands, or the Trust 
Territory of the Pacific Islands.



Sec. 9.3  What programs and activities of the Department are subject to these regulations?

    (a) The Secretary publishes in the Federal Register a list of the 
Department's programs and activities that are subject to these 
regulations and a list of programs and activities that have existing 
consultation processes.
    (b) With respect to programs and activities that a state chooses to 
cover, and that have existing consultation processes, the state must 
agree to adopt those existing processes.



Sec. 9.4  [Reserved]



Sec. 9.5  What is the Secretary's obligation with respect to Federal interagency coordination?

    The Secretary, to the extent practicable, consults with and seeks 
advice from all other substantially affected federal departments and 
agencies in an effort to assure full coordination between such agencies 
and the Department regarding programs and activities covered under these 
regulations.



Sec. 9.6  What procedures apply to the selection of programs and activities under these regulations?

    (a) A state may select any program or activity published in the 
Federal Register in accordance with Sec. 9.3 of this part for 
intergovernmental review under these regulations. Each state, before 
selecting programs and activities, shall consult with local elected 
officials.
    (b) Each state that adopts a process shall notify the Secretary of 
the Department's programs and activities selected for that process.
    (c) A state may notify the Secretary of changes in its selections at 
any time. For each change, the state shall submit to the Secretary an 
assurance that the state has consulted with local elected officials 
regarding the change. The Department may establish deadlines by which 
states are required to inform the Secretary of changes in their program 
selections.

[[Page 195]]

    (d) The Secretary uses a state's process as soon as feasible, 
depending on individual programs and activities, after the Secretary is 
notified of its selections.



Sec. 9.7  How does the Secretary communicate with state and local officials concerning the Department's programs and activities?

    (a) For those programs and activities covered by a state process 
under Sec. 9.6, the Secretary, to the extent permitted by law:
    (1) Uses the state process to determine views of state and local 
elected officials; and,
    (2) Communicates with state and local elected officials, through the 
state process, as early in a program planning cycle as in reasonably 
feasible to explain specific plans and actions.
    (b) The Secretary provides notice to directly affected state, 
areawide, regional, and local entities in a state of proposed federal 
financial assistance or direct federal development if:
    (1) The state has not adopted a process under the Order; or
    (2) The assistance or development involves a program or activity not 
selected for the state process.

This notice may be made by publication in the Federal Register or other 
appropriate means, which the Department in its discretion deems 
appropriate.



Sec. 9.8  How does the Secretary provide states an opportunity to comment on proposed federal financial assistance and direct federal development?

    (a) Except in unusual circumstances, the Secretary gives state 
processes or directly affected state, areawide, regional and local 
officials and entities:
    (1) At least 30 days from the date established by the Secretary to 
comment on proposed federal financial assistance in the form of 
noncompeting continuation awards; and
    (2) At least 60 days from the date established by the Secretary to 
comment on proposed direct federal development or federal financial 
assistance other than noncompeting continuation awards.
    (b) This section also applies to comments in cases in which the 
review, coordination, and communication with the Department have been 
delegated.



Sec. 9.9  How does the Secretary receive and respond to comments?

    (a) The Secretary follows the procedures in Sec. 9.10 if:
    (1) A state office or official is designated to act as a single 
point of contact between a state process and all federal agencies, and
    (2) That office or official transmits a state process recommendation 
for a program selected under Sec. 9.6.
    (b)(1) The single point of contact is not obligated to transmit 
comments from state, areawide, regional or local officials and entities 
where there is no state process recommendation.
    (2) If a state process recommendation is transmitted by a single 
point of contact, all comments from state, areawide, regional, and local 
officials and entities that differ from it must also be transmitted.
    (c) If a state has not established a process, or is unable to submit 
a state process recommendation, state, areawide, regional and local 
officials and entities may submit comments either to the applicant or to 
the Department.
    (d) If a program or activity is not selected for a state process, 
state, areawide, regional and local officials and entities may submit 
comments either to the applicant or to the Department. In addition, if a 
state process recommendation for a nonselected program or activity is 
transmitted to the Department by a single point of contact, the 
Secretary follows the procedures of Sec. 9.10 of this part.
    (e) The Secretary considers comments which do not constitute a state 
process recommendation submitted under these regulations and for which 
the Secretary is not required to apply the procedures of Sec. 9.10 of 
this part, when such comments are provided by a single point of contact, 
by the applicant, or directly to the Department by a commenting party.

[[Page 196]]



Sec. 9.10  How does the Secretary make efforts to accommodate intergovernmental concerns?

    (a) If a state process provides a state process recommendation to 
the Department through its single point of contact, the Secretary 
either:
    (1) Accepts the recommendation;
    (2) Reaches a mutually agreeable solution with the state process; or
    (3) Provides the single point of contact with such written 
explanation of the decision, as the Secretary in his or her discretion 
deems appropriate. The Secretary may also supplement the written 
explanation by providing the explanation to the single point of contact 
by telephone, other telecommunication, or other means.
    (b) In any explanation under paragraph (a)(3) of the section, the 
Secretary informs the single point of contact that:
    (1) The Department will not implement its decision for at least ten 
days after the single point of contact receives the explanation; or
    (2) The Secretary has reviewed the decision and determined that, 
because of unusual circumstances, the waiting period of at least ten 
days is not feasible.
    (c) For purposes of computing the waiting period under paragraph 
(b)(1) of this section, a single point of contact is presumed to have 
received written notification 5 days after the date of mailing of such 
notification.



Sec. 9.11  What are the Secretary's obligations in interstate situations?

    (a) The Secretary is responsible for:
    (1) Identifying proposed federal financial assistance and direct 
Federal development that have an impact on interstate areas;
    (2) Notifying appropriate officials and entities in states which 
have adopted a process and which select the Department's program or 
activitiy;
    (3) Making efforts to identify and notify the affected state, 
areawide, regional, and local officials and entities in those states 
that have not adopted a process under the Order or do not select the 
Department's program or activity;
    (4) Responding pursuant to Sec. 9.10 of this part if the Secretary 
receives a recommendation from a designated areawide agency transmitted 
by a single point of contact, in cases in which the review, 
coordination, and communication with the Department have been delegated.
    (b) The Secretary uses the procedures in Sec. 9.10 if a state 
process provides a state process recommendation to the Department 
through a single point of contact.



Sec. 9.12  How may a state simplify, consolidate, or substitute federally required state plans?

    (a) As used in this section:
    (1) Simplify means that a state may develop its own format, choose 
its own submission date, and select the planning period for a state 
plan.
    (2) Consolidate means that a state may meet statutory and regulatory 
requirements by combining two or more plans into one document and that 
the state can select the format, submission date, and planning period 
for the consolidated plan.
    (3) Substitute means that a state may use a plan or other document 
that it has developed for its own purposes to meet Federal requirements.
    (b) If not inconsistent with law, a state may decide to try to 
simplify, consolidate, or substitute Federally required state plans 
without prior approval by the Secretary.
    (c) The Secretary reviews each state plan that a state has 
simplified, consolidated, or substituted and accepts the plan only if 
its contents meet Federal requirements.



Sec. 9.13  May the Secretary waive any provision of these regulations?

    In an emergency, the Secretary may waive any provision of these 
regulations.



PART 10--NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION REGULATIONS--Table of Contents




                         Subpart A--Introduction

Sec.
10.1  Purpose and applicability.

[[Page 197]]

10.2  Definitions

 Subpart B--Human Remains, Funerary Objects, Sacred Objects, or Objects 
           of Cultural Patrimony  From Federal or Tribal Lands

10.3  Intentional archaeological excavations.
10.4  Inadvertent discoveries.
10.5  Consultation.
10.6  Custody.
10.7  Disposition of unclaimed human remains, funerary objects, sacred 
          objects, or objects of cultural patrimony. [Reserved]

 Subpart C--Human Remains, Funerary Objects, Sacred Objects, or Objects 
        of Cultural Patrimony in Museums and Federal Collections

10.8  Summaries.
10.9  Inventories.
10.10  Repatriation.
10.11  Disposition of culturally unidentifiable human remains. 
          [Reserved]
10.12  Civil penalties.
10.13  Future applicability. [Reserved]

                           Subpart D--General

10.14  Lineal descent and cultural affiliation.
10.15  Limitations and remedies.
10.16  Review committee.
10.17  Dispute resolution.

Appendix A to Part 10--Sample Summary.
Appendix B to Part 10--Sample Notice of Inventory Completion.

    Authority: 25 U.S.C. 3001 et seq.

    Source: 60 FR 62158, Dec. 4, 1995, unless otherwise noted.



                         Subpart A--Introduction



Sec. 10.1  Purpose and applicability.

    (a) Purpose. These regulations carry out provisions of the Native 
American Graves Protection and Repatriation Act of 1990 (Pub.L. 101-601; 
25 U.S.C. 3001-3013;104 Stat. 3048-3058). These regulations develop a 
systematic process for determining the rights of lineal descendants and 
Indian tribes and Native Hawaiian organizations to certain Native 
American human remains, funerary objects, sacred objects, or objects of 
cultural patrimony with which they are affiliated.
    (b) Applicability. (1) These regulations pertain to the 
identification and appropriate disposition of human remains, funerary 
objects, sacred objects, or objects of cultural patrimony that are:
    (i) In Federal possession or control; or
    (ii) In the possession or control of any institution or State or 
local government receiving Federal funds; or
    (iii) Excavated intentionally or discovered inadvertently on Federal 
or tribal lands.
    (2) These regulations apply to human remains, funerary objects, 
sacred objects, or objects of cultural patrimony which are indigenous to 
Alaska, Hawaii, and the continental United States, but not to 
territories of the United States.
    (3) Throughout these regulations are decision points which determine 
their applicability in particular circumstances, e.g., a decision as to 
whether a museum ``controls'' human remains and cultural objects within 
the meaning of the regulations, or, a decision as to whether an object 
is a ``human remain,'' ``funerary object,'' ``sacred object,'' or 
``object of cultural patrimony'' within the meaning of the regulations. 
Any final determination making the Act or these regulations inapplicable 
is subject to review pursuant to section 15 of the Act.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41293, Aug. 1, 1997]



Sec. 10.2  Definitions.

    In addition to the term Act, which means the Native American Graves 
Protection and Repatriation Act as described above, definitions used in 
these regulations are grouped in seven classes: Parties required to 
comply with these regulations; Parties with standing to make claims 
under these regulations; Parties responsible for implementing these 
regulations; Objects covered by these regulations; Cultural affiliation; 
Types of land covered by these regulations; and Procedures required by 
these regulations.
    (a) Who must comply with these regulations? (1) Federal agency means 
any department, agency, or instrumentality of the United States. Such 
term does not include the Smithsonian Institution as specified in 
section 2 (4) of the Act.
    (2) Federal agency official means any individual authorized by 
delegation of

[[Page 198]]

authority within a Federal agency to perform the duties relating to 
these regulations.
    (3) Museum means any institution or State or local government agency 
(including any institution of higher learning) that has possession of, 
or control over, human remains, funerary objects, sacred objects, or 
objects of cultural patrimony and receives Federal funds.
    (i) The term ``possession'' means having physical custody of human 
remains, funerary objects, sacred objects, or objects of cultural 
patrimony with a sufficient legal interest to lawfully treat the objects 
as part of its collection for purposes of these regulations. Generally, 
a museum or Federal agency would not be considered to have possession of 
human remains, funerary objects, sacred objects, or objects of cultural 
patrimony on loan from another individual, museum, or Federal agency.
    (ii) The term ``control'' means having a legal interest in human 
remains, funerary objects, sacred objects, or objects of cultural 
patrimony sufficient to lawfully permit the museum or Federal agency to 
treat the objects as part of its collection for purposes of these 
regulations whether or not the human remains, funerary objects, sacred 
objects or objects of cultural patrimony are in the physical custody of 
the museum or Federal agency. Generally, a museum or Federal agency that 
has loaned human remains, funerary objects, sacred objects, or objects 
of cultural patrimony to another individual, museum, or Federal agency 
is considered to retain control of those human remains, funerary 
objects, sacred objects, or objects of cultural patrimony for purposes 
of these regulations.
    (iii) The phrase ``receives Federal funds'' means the receipt of 
funds by a museum after November 16, 1990, from a Federal agency through 
any grant, loan, contract (other than a procurement contract), or other 
arrangement by which a Federal agency makes or made available to a 
museum aid in the form of funds. Federal funds provided for any purpose 
that are received by a larger entity of which the museum is a part are 
considered Federal funds for the purposes of these regulations. For 
example, if a museum is a part of a State or local government or a 
private university and the State or local government or private 
university receives Federal funds for any purpose, the museum is 
considered to receive Federal funds for the purpose of these 
regulations.
    (4) Museum official means the individual within a museum designated 
as being responsible for matters relating to these regulations.
    (5) Person means an individual, partnership, corporation, trust, 
institution, association, or any other private entity, or, any official, 
employee, agent, department, or instrumentality of the United States, or 
of any Indian tribe or Native Hawaiian organization, or of any State or 
political subdivision thereof that discovers or discovered human 
remains, funerary objects, sacred objects or objects of cultural 
patrimony on Federal or tribal lands after November 16, 1990.
    (b) Who has standing to make a claim under these regulations? (1) 
Lineal descendant means an individual tracing his or her ancestry 
directly and without interruption by means of the traditional kinship 
system of the appropriate Indian tribe or Native Hawaiian organization 
or by the common law system of descendance to a known Native American 
individual whose remains, funerary objects, or sacred objects are being 
claimed under these regulations.
    (2) Indian tribe means any tribe, band, nation, or other organized 
Indian group or community of Indians, including any Alaska Native 
village or corporation as defined in or established by the Alaska Native 
Claims Settlement Act (43 U.S.C. 1601 et seq.), which is recognized as 
eligible for the special programs and services provided by the United 
States to Indians because of their status as Indians. The Secretary will 
distribute a list of Indian tribes for the purposes of carrying out this 
statute through the Departmental Consulting Archeologist.
    (3)(i) Native Hawaiian organization means any organization that:
    (A) Serves and represents the interests of Native Hawaiians;
    (B) Has as a primary and stated purpose the provision of services to 
Native Hawaiians; and

[[Page 199]]

    (C) Has expertise in Native Hawaiian affairs.
    (ii) The term Native Hawaiian means any individual who is a 
descendant of the aboriginal people who, prior to 1778, occupied and 
exercised sovereignty in the area that now constitutes the State of 
Hawaii. Such organizations must include the Office of Hawaiian Affairs 
and Hui Malama I Na Kupuna 'O Hawai'i Nei.
    (4) Indian tribe official means the principal leader of an Indian 
tribe or Native Hawaiian organization or the individual officially 
designated by the governing body of an Indian tribe or Native Hawaiian 
organization or as otherwise provided by tribal code, policy, or 
established procedure as responsible for matters relating to these 
regulations.
    (c) Who is responsible for carrying out these regulations? (1) 
Secretary means the Secretary of the Interior.
    (2) Review Committee means the advisory committee established 
pursuant to section 8 of the Act.
    (3) Departmental Consulting Archeologist means the official of the 
Department of the Interior designated by the Secretary as responsible 
for the administration of matters relating to these regulations. 
Communications to the Departmental Consulting Archeologist should be 
addressed to:
Departmental Consulting Archeologist
National Park Service,
PO Box 37127
Washington, DC 20013-7127.
    (d) What objects are covered by these regulations? The Act covers 
four types of Native American objects. The term Native American means 
of, or relating to, a tribe, people, or culture indigenous to the United 
States, including Alaska and Hawaii.
    (1) Human remains means the physical remains of the body of a person 
of Native American ancestry. The term does not include remains or 
portions of remains that may reasonably be determined to have been 
freely given or naturally shed by the individual from whose body they 
were obtained, such as hair made into ropes or nets. For the purposes of 
determining cultural affiliation, human remains incorporated into a 
funerary object, sacred object, or object of cultural patrimony, as 
defined below, must be considered as part of that item.
    (2) Funerary objects means items that, as part of the death rite or 
ceremony of a culture, are reasonably believed to have been placed 
intentionally at the time of death or later with or near individual 
human remains. Funerary objects must be identified by a preponderance of 
the evidence as having been removed from a specific burial site of an 
individual affiliated with a particular Indian tribe or Native Hawaiian 
organization or as being related to specific individuals or families or 
to known human remains. The term burial site means any natural or 
prepared physical location, whether originally below, on, or above the 
surface of the earth, into which, as part of the death rite or ceremony 
of a culture, individual human remains were deposited, and includes rock 
cairns or pyres which do not fall within the ordinary definition of 
gravesite. For purposes of completing the summary requirements in 
Sec. 10.8 and the inventory requirements of Sec. 10.9:
    (i) Associated funerary objects means those funerary objects for 
which the human remains with which they were placed intentionally are 
also in the possession or control of a museum or Federal agency. 
Associated funerary objects also means those funerary objects that were 
made exclusively for burial purposes or to contain human remains.
    (ii) Unassociated funerary objects means those funerary objects for 
which the human remains with which they were placed intentionally are 
not in the possession or control of a museum or Federal agency. Objects 
that were displayed with individual human remains as part of a death 
rite or ceremony of a culture and subsequently returned or distributed 
according to traditional custom to living descendants or other 
individuals are not considered unassociated funerary objects.
    (3) Sacred objects means items that are specific ceremonial objects 
needed by traditional Native American religious leaders for the practice 
of traditional Native American religions by their present-day adherents. 
While many items, from ancient pottery sherds to arrowheads, might be 
imbued

[[Page 200]]

with sacredness in the eyes of an individual, these regulations are 
specifically limited to objects that were devoted to a traditional 
Native American religious ceremony or ritual and which have religious 
significance or function in the continued observance or renewal of such 
ceremony. The term traditional religious leader means a person who is 
recognized by members of an Indian tribe or Native Hawaiian organization 
as:
    (i) Being responsible for performing cultural duties relating to the 
ceremonial or religious traditions of that Indian tribe or Native 
Hawaiian organization, or
    (ii) Exercising a leadership role in an Indian tribe or Native 
Hawaiian organization based on the tribe or organization's cultural, 
ceremonial, or religious practices.
    (4) Objects of cultural patrimony means items having ongoing 
historical, traditional, or cultural importance central to the Indian 
tribe or Native Hawaiian organization itself, rather than property owned 
by an individual tribal or organization member. These objects are of 
such central importance that they may not be alienated, appropriated, or 
conveyed by any individual tribal or organization member. Such objects 
must have been considered inalienable by the culturally affiliated 
Indian tribe or Native Hawaiian organization at the time the object was 
separated from the group. Objects of cultural patrimony include items 
such as Zuni War Gods, the Confederacy Wampum Belts of the Iroquois, and 
other objects of similar character and significance to the Indian tribe 
or Native Hawaiian organization as a whole.
    (e) What is cultural affiliation? Cultural affiliation means that 
there is a relationship of shared group identity which can reasonably be 
traced historically or prehistorically between members of a present-day 
Indian tribe or Native Hawaiian organization and an identifiable earlier 
group. Cultural affiliation is established when the preponderance of the 
evidence -- based on geographical, kinship, biological, archeological, 
linguistic, folklore, oral tradition, historical evidence, or other 
information or expert opinion -- reasonably leads to such a conclusion.
    (f) What types of lands do the excavation and discovery provisions 
of these regulations apply to? (1) Federal lands means any land other 
than tribal lands that are controlled or owned by the United States 
Government, including lands selected by but not yet conveyed to Alaska 
Native Corporations and groups organized pursuant to the Alaska Native 
Claims Settlement Act (43 U.S.C. 1601 et seq.). United States 
``control,'' as used in this definition, refers to those lands not owned 
by the United States but in which the United States has a legal interest 
sufficient to permit it to apply these regulations without abrogating 
the otherwise existing legal rights of a person.
    (2) Tribal lands means all lands which:
    (i) Are within the exterior boundaries of any Indian reservation 
including, but not limited to, allotments held in trust or subject to a 
restriction on alienation by the United States; or
    (ii) Comprise dependent Indian communities as recognized pursuant to 
18 U.S.C. 1151; or
    (iii) Are administered for the benefit of Native Hawaiians pursuant 
to the Hawaiian Homes Commission Act of 1920 and section 4 of the 
Hawaiian Statehood Admission Act (Pub.L. 86-3; 73 Stat. 6).
    (iv) Actions authorized or required under these regulations will not 
apply to tribal lands to the extent that any action would result in a 
taking of property without compensation within the meaning of the Fifth 
Amendment of the United States Constitution.
    (g) What procedures are required by these regulations? (1) Summary 
means the written description of collections that may contain 
unassociated funerary objects, sacred objects, and objects of cultural 
patrimony required by Sec. 10.8 of these regulations.
    (2) Inventory means the item-by-item description of human remains 
and associated funerary objects.
    (3) Intentional excavation means the planned archeological removal 
of human remains, funerary objects, sacred objects, or objects of 
cultural patrimony found under or on the surface of Federal or tribal 
lands pursuant to section 3 (c) of the Act.
    (4) Inadvertent discovery means the unanticipated encounter or 
detection

[[Page 201]]

of human remains, funerary objects, sacred objects, or objects of 
cultural patrimony found under or on the surface of Federal or tribal 
lands pursuant to section 3 (d) of the Act.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41293, Aug. 1, 1997]



 Subpart B--Human Remains, Funerary Objects, Sacred Objects, or Objects 
           of Cultural Patrimony From Federal or Tribal Lands



Sec. 10.3  Intentional archaeological excavations.

    (a) General. This section carries out section 3 (c) of the Act 
regarding the custody of human remains, funerary objects, sacred 
objects, or objects of cultural patrimony that are excavated 
intentionally from Federal or tribal lands after November 16, 1990.
    (b) Specific Requirements. These regulations permit the intentional 
excavation of human remains, funerary objects, sacred objects, or 
objects of cultural patrimony from Federal or tribal lands only if:
    (1) The objects are excavated or removed following the requirements 
of the Archaeological Resources Protection Act (ARPA) (16 U.S.C. 470aa 
et seq.) and its implementing regulations. Regarding private lands 
within the exterior boundaries of any Indian reservation, the Bureau of 
Indian Affairs (BIA) will serve as the issuing agency for any permits 
required under the Act. For BIA procedures for obtaining such permits, 
see 25 CFR part 262 or contact the Deputy Commissioner of Indian 
Affairs, Department of the Interior, Washington, DC 20240. Regarding 
lands administered for the benefit of Native Hawaiians pursuant to the 
Hawaiian Homes Commission Act, 1920, and section 4 of Pub. L. 86-3, the 
Department of Hawaiian Home Lands will serve as the issuing agency for 
any permits required under the Act, with the Hawaii State Historic 
Preservation Division of the Department of Land and Natural Resources 
acting in an advisory capacity for such issuance. Procedures and 
requirements for issuing permits will be consistent with those required 
by the ARPA and its implementing regulations;
    (2) The objects are excavated after consultation with or, in the 
case of tribal lands, consent of, the appropriate Indian tribe or Native 
Hawaiian organization pursuant to Sec. 10.5;
    (3) The disposition of the objects is consistent with their custody 
as described in Sec. 10.6; and
    (4) Proof of the consultation or consent is shown to the Federal 
agency official or other agency official responsible for the issuance of 
the required permit.
    (c) Procedures. (1) The Federal agency official must take reasonable 
steps to determine whether a planned activity may result in the 
excavation of human remains, funerary objects, sacred objects, or 
objects of cultural patrimony from Federal lands. Prior to issuing any 
approvals or permits for activities, the Federal agency official must 
notify in writing the Indian tribes or Native Hawaiian organizations 
that are likely to be culturally affiliated with any human remains, 
funerary objects, sacred objects, or objects of cultural patrimony that 
may be excavated. The Federal agency official must also notify any 
present-day Indian tribe which aboriginally occupied the area of the 
planned activity and any other Indian tribes or Native Hawaiian 
organizations that the Federal agency official reasonably believes are 
likely to have a cultural relationship to the human remains, funerary 
objects, sacred objects, or objects of cultural patrimony that are 
expected to be found. The notice must be in writing and describe the 
planned activity, its general location, the basis upon which it was 
determined that human remains, funerary objects, sacred objects, or 
objects of cultural patrimony may be excavated, and, the basis for 
determining likely custody pursuant to Sec. 10.6. The notice must also 
propose a time and place for meetings or consultations to further 
consider the activity, the Federal agency's proposed treatment of any 
human remains, funerary objects, sacred objects, or objects of cultural 
patrimony that may be excavated, and the proposed disposition of any 
excavated human remains, funerary objects, sacred objects,

[[Page 202]]

or objects of cultural patrimony. Written notification should be 
followed up by telephone contact if there is no response in 15 days. 
Consultation must be conducted pursuant to Sec. 10.5.
    (2) Following consultation, the Federal agency official must 
complete a written plan of action (described in Sec. 10.5(e)) and 
execute the actions called for in it.
    (3) If the planned activity is also subject to review under section 
106 of the National Historic Preservation Act (16 U.S.C. 470 et seq.), 
the Federal agency official should coordinate consultation and any 
subsequent agreement for compliance conducted under that Act with the 
requirements of Sec. 10.3 (c)(2) and Sec. 10.5. Compliance with these 
regulations does not relieve Federal agency officials of requirements to 
comply with section 106 of the National Historic Preservation Act (16 
U.S.C. 470 et seq.).
    (4) If an Indian tribe or Native Hawaiian organization receives 
notice of a planned activity or otherwise becomes aware of a planned 
activity that may result in the excavation of human remains, funerary 
objects, sacred objects, or objects of cultural patrimony on tribal 
lands, the Indian tribe or Native Hawaiian organization may take 
appropriate steps to:
    (i) Ensure that the human remains, funerary objects, sacred objects, 
or objects of cultural patrimony are excavated or removed following 
Sec. 10.3 (b), and
    (ii) Make certain that the disposition of any human remains, 
funerary objects, sacred objects, or objects of cultural patrimony 
excavated intentionally or discovered inadvertently as a result of the 
planned activity are carried out following Sec. 10.6.



Sec. 10.4  Inadvertent discoveries.

    (a) General. This section carries out section 3 (d) of the Act 
regarding the custody of human remains, funerary objects, sacred 
objects, or objects of cultural patrimony that are discovered 
inadvertently on Federal or tribal lands after November 16, 1990.
    (b) Discovery. Any person who knows or has reason to know that he or 
she has discovered inadvertently human remains, funerary objects, sacred 
objects, or objects of cultural patrimony on Federal or tribal lands 
after November 16, 1990, must provide immediate telephone notification 
of the inadvertent discovery, with written confirmation, to the 
responsible Federal agency official with respect to Federal lands, and, 
with respect to tribal lands, to the responsible Indian tribe official. 
The requirements of these regulations regarding inadvertent discoveries 
apply whether or not an inadvertent discovery is duly reported. If 
written confirmation is provided by certified mail, the return receipt 
constitutes evidence of the receipt of the written notification by the 
Federal agency official or Indian tribe official.
    (c) Ceasing activity. If the inadvertent discovery occurred in 
connection with an on-going activity on Federal or tribal lands, the 
person, in addition to providing the notice described above, must stop 
the activity in the area of the inadvertent discovery and make a 
reasonable effort to protect the human remains, funerary objects, sacred 
objects, or objects of cultural patrimony discovered inadvertently.
    (d) Federal lands. (1) As soon as possible, but no later than three 
(3) working days after receipt of the written confirmation of 
notification with respect to Federal lands described in Sec. 10.4 (b), 
the responsible Federal agency official must:
    (i) Certify receipt of the notification;
    (ii) Take immediate steps, if necessary, to further secure and 
protect inadvertently discovered human remains, funerary objects, sacred 
objects, or objects of cultural patrimony, including, as appropriate, 
stabilization or covering;
    (iii) Notify by telephone, with written confirmation, the Indian 
tribes or Native Hawaiian organizations likely to be culturally 
affiliated with the inadvertently discovered human remains, funerary 
objects, sacred objects, or objects of cultural patrimony, the Indian 
tribe or Native Hawaiian organization which aboriginally occupied the 
area, and any other Indian tribe or Native Hawaiian organization that is 
reasonably known to have a cultural relationship to the human remains, 
funerary objects, sacred objects, or objects of cultural patrimony. This 
notification

[[Page 203]]

must include pertinent information as to kinds of human remains, 
funerary objects, sacred objects, or objects of cultural patrimony 
discovered inadvertently, their condition, and the circumstances of 
their inadvertent discovery;
    (iv) Initiate consultation on the inadvertent discovery pursuant to 
Sec. 10.5;
    (v) If the human remains, funerary objects, sacred objects, or 
objects of cultural patrimony must be excavated or removed, follow the 
requirements and procedures in Sec. 10.3 (b) of these regulations; and
    (vi) Ensure that disposition of all inadvertently discovered human 
remains, funerary objects, sacred objects, or objects of cultural 
patrimony is carried out following Sec. 10.6.
    (2) Resumption of activity. The activity that resulted in the 
inadvertent discovery may resume thirty (30) days after certification by 
the notified Federal agency of receipt of the written confirmation of 
notification of inadvertent discovery if the resumption of the activity 
is otherwise lawful. The activity may also resume, if otherwise lawful, 
at any time that a written, binding agreement is executed between the 
Federal agency and the affiliated Indian tribes or Native Hawaiian 
organizations that adopt a recovery plan for the excavation or removal 
of the human remains, funerary objects, sacred objects, or objects of 
cultural patrimony following Sec. 10.3 (b)(1) of these regulations. The 
disposition of all human remains, funerary objects, sacred objects, or 
objects of cultural patrimony must be carried out following Sec. 10.6.
    (e) Tribal lands. (1) As soon as possible, but no later than three 
(3) working days after receipt of the written confirmation of 
notification with respect to Tribal lands described in Sec. 10.4 (b), 
the responsible Indian tribe official may:
    (i) Certify receipt of the notification;
    (ii) Take immediate steps, if necessary, to further secure and 
protect inadvertently discovered human remains, funerary objects, sacred 
objects, or objects of cultural patrimony, including, as appropriate, 
stabilization or covering;
    (iii) If the human remains, funerary objects, sacred objects, or 
objects of cultural patrimony must be excavated or removed, follow the 
requirements and procedures in Sec. 10.3 (b) of these regulations; and
    (iv) Ensure that disposition of all inadvertently discovered human 
remains, funerary objects, sacred objects, or objects of cultural 
patrimony is carried out following Sec. 10.6.
    (2) Resumption of Activity. The activity that resulted in the 
inadvertent discovery may resume if otherwise lawful after thirty (30) 
days of the certification of the receipt of notification by the Indian 
tribe or Native Hawaiian organization.
    (f) Federal agency officials. Federal agency officials should 
coordinate their responsibilities under this section with their 
emergency discovery responsibilities under section 106 of the National 
Historical Preservation Act (16 U.S.C. 470 (f) et seq.), 36 CFR 800.11 
or section 3 (a) of the Archeological and Historic Preservation Act (16 
U.S.C. 469 (a-c)). Compliance with these regulations does not relieve 
Federal agency officials of the requirement to comply with section 106 
of the National Historical Preservation Act (16 U.S.C. 470 (f) et seq.), 
36 CFR 800.11 or section 3 (a) of the Archeological and Historic 
Preservation Act (16 U.S.C. 469 (a-c)).
    (g) Notification requirement in authorizations. All Federal 
authorizations to carry out land use activities on Federal lands or 
tribal lands, including all leases and permits, must include a 
requirement for the holder of the authorization to notify the 
appropriate Federal or tribal official immediately upon the discovery of 
human remains, funerary objects, sacred objects, or objects of cultural 
patrimony pursuant to Sec. 10.4 (b) of these regulations.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41293, Aug. 1, 1997]



Sec. 10.5  Consultation.

    Consultation as part of the intentional excavation or inadvertent 
discovery of human remains, funerary objects, sacred objects, or objects 
of cultural patrimony on Federal lands must be conducted in accordance 
with the following requirements.

[[Page 204]]

    (a) Consulting parties. Federal agency officials must consult with 
known lineal descendants and Indian tribe officials:
    (1) From Indian tribes on whose aboriginal lands the planned 
activity will occur or where the inadvertent discovery has been made; 
and
    (2) From Indian tribes and Native Hawaiian organizations that are, 
or are likely to be, culturally affiliated with the human remains, 
funerary objects, sacred objects, or objects of cultural patrimony; and
    (3) From Indian tribes and Native Hawaiian organizations that have a 
demonstrated cultural relationship with the human remains, funerary 
objects, sacred objects, or objects of cultural patrimony.
    (b) Initiation of consultation. (1) Upon receiving notice of, or 
otherwise becoming aware of, an inadvertent discovery or planned 
activity that has resulted or may result in the intentional excavation 
or inadvertent discovery of human remains, funerary objects, sacred 
objects, or objects of cultural patrimony on Federal lands, the 
responsible Federal agency official must, as part of the procedures 
described in Sec. Sec. 10.3 and 10.4, take appropriate steps to identify 
the lineal descendant, Indian tribe, or Native Hawaiian organization 
entitled to custody of the human remains, funerary objects, sacred 
objects, or objects of cultural patrimony pursuant to Sec. 10.6 and 
Sec. 10.14. The Federal agency official shall notify in writing:
    (i) Any known lineal descendants of the individual whose remains, 
funerary objects, sacred objects, or objects of cultural patrimony have 
been or are likely to be excavated intentionally or discovered 
inadvertently; and
    (ii) The Indian tribes or Native Hawaiian organizations that are 
likely to be culturally affiliated with the human remains, funerary 
objects, sacred objects, or objects of cultural patrimony that have been 
or are likely to be excavated intentionally or discovered inadvertently; 
and
    (iii) The Indian tribes which aboriginally occupied the area in 
which the human remains, funerary objects, sacred objects, or objects of 
cultural patrimony have been or are likely to be excavated intentionally 
or discovered inadvertently; and
    (iv) The Indian tribes or Native Hawaiian organizations that have a 
demonstrated cultural relationship with the human remains, funerary 
objects, sacred objects, or objects of cultural patrimony that have been 
or are likely to be excavated intentionally or discovered inadvertently.
    (2) The notice must propose a time and place for meetings or 
consultation to further consider the intentional excavation or 
inadvertent discovery, the Federal agency's proposed treatment of the 
human remains, funerary objects, sacred objects, or objects of cultural 
patrimony that may be excavated, and the proposed disposition of any 
intentionally excavated or inadvertently discovered human remains, 
funerary objects, sacred objects, or objects of cultural patrimony.
    (3) The consultation must seek to identify traditional religious 
leaders who should also be consulted and seek to identify, where 
applicable, lineal descendants and Indian tribes or Native Hawaiian 
organizations affiliated with the human remains, funerary objects, 
sacred objects, or objects of cultural patrimony.
    (c) Provision of information. During the consultation process, as 
appropriate, the Federal agency official must provide the following 
information in writing to the lineal descendants and the officials of 
Indian tribes or Native Hawaiian organizations that are or are likely to 
be affiliated with the human remains, funerary objects, sacred objects, 
or objects of cultural patrimony excavated intentionally or discovered 
inadvertently on Federal lands:
    (1) A list of all lineal descendants and Indian tribes or Native 
Hawaiian organizations that are being, or have been, consulted regarding 
the particular human remains, funerary objects, sacred objects, or 
objects of cultural patrimony;
    (2) An indication that additional documentation used to identify 
affiliation will be supplied upon request.
    (d) Requests for information. During the consultation process, 
Federal agency officials must request, as appropriate, the following 
information from

[[Page 205]]

Indian tribes or Native Hawaiian organizations that are, or are likely 
to be, affiliated pursuant to Sec. 10.6 (a) with intentionally excavated 
or inadvertently discovered human remains, funerary objects, sacred 
objects, or objects of cultural patrimony:
    (1) Name and address of the Indian tribe official to act as 
representative in consultations related to particular human remains, 
funerary objects, sacred objects, or objects of cultural patrimony;
    (2) Names and appropriate methods to contact lineal descendants who 
should be contacted to participate in the consultation process;
    (3) Recommendations on how the consultation process should be 
conducted; and
    (4) Kinds of cultural items that the Indian tribe or Native Hawaiian 
organization considers likely to be unassociated funerary objects, 
sacred objects, or objects of cultural patrimony.
    (e) Written plan of action. Following consultation, the Federal 
agency official must prepare, approve, and sign a written plan of 
action. A copy of this plan of action must be provided to the lineal 
descendants, Indian tribes and Native Hawaiian organizations involved. 
Lineal descendants and Indian tribe official(s) may sign the written 
plan of action as appropriate. At a minimum, the plan of action must 
comply with Sec. 10.3 (b)(1) and document the following:
    (1) The kinds of objects to be considered as cultural items as 
defined in Sec. 10.2 (b);
    (2) The specific information used to determine custody pursuant to 
Sec. 10.6;
    (3) The planned treatment, care, and handling of human remains, 
funerary objects, sacred objects, or objects of cultural patrimony 
recovered;
    (4) The planned archeological recording of the human remains, 
funerary objects, sacred objects, or objects of cultural patrimony 
recovered;
    (5) The kinds of analysis planned for each kind of object;
    (6) Any steps to be followed to contact Indian tribe officials at 
the time of intentional excavation or inadvertent discovery of specific 
human remains, funerary objects, sacred objects, or objects of cultural 
patrimony;
    (7) The kind of traditional treatment, if any, to be afforded the 
human remains, funerary objects, sacred objects, or objects of cultural 
patrimony by members of the Indian tribe or Native Hawaiian 
organization;
    (8) The nature of reports to be prepared; and
    (9) The planned disposition of human remains, funerary objects, 
sacred objects, or objects of cultural patrimony following Sec. 10.6.
    (f) Comprehensive agreements. Whenever possible, Federal Agencies 
should enter into comprehensive agreements with Indian tribes or Native 
Hawaiian organizations that are affiliated with human remains, funerary 
objects, sacred objects, or objects of cultural patrimony and have 
claimed, or are likely to claim, those human remains, funerary objects, 
sacred objects, or objects of cultural patrimony excavated intentionally 
or discovered inadvertently on Federal lands. These agreements should 
address all Federal agency land management activities that could result 
in the intentional excavation or inadvertent discovery of human remains, 
funerary objects, sacred objects, or objects of cultural patrimony. 
Consultation should lead to the establishment of a process for 
effectively carrying out the requirements of these regulations regarding 
standard consultation procedures, the determination of custody 
consistent with procedures in this section and Sec. 10.6, and the 
treatment and disposition of human remains, funerary objects, sacred 
objects, or objects of cultural patrimony. The signed agreements, or the 
correspondence related to the effort to reach agreements, must 
constitute proof of consultation as required by these regulations.
    (g) Traditional religious leaders. The Federal agency official must 
be cognizant that Indian tribe officials may need to confer with 
traditional religious leaders prior to making recommendations. Indian 
tribe officials are under no obligation to reveal the identity of 
traditional religious leaders.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41293, Aug. 1, 1997]

[[Page 206]]



Sec. 10.6  Custody.

    (a) Priority of custody. This section carries out section 3 (a) of 
the Act, subject to the limitations of Sec. 10.15, regarding the custody 
of human remains, funerary objects, sacred objects, or objects of 
cultural patrimony excavated intentionally or discovered inadvertently 
in Federal or tribal lands after November 16, 1990. For the purposes of 
this section, custody means ownership or control of human remains, 
funerary objects, sacred objects, or objects of cultural patrimony 
excavated intentionally or discovered inadvertently in Federal or tribal 
lands after November 16, 1990. Custody of these human remains, funerary 
objects, sacred objects, or objects of cultural patrimony is, with 
priority given in the order listed:
    (1) In the case of human remains and associated funerary objects, in 
the lineal descendant of the deceased individual as determined pursuant 
to Sec. 10.14 (b);
    (2) In cases where a lineal descendant cannot be ascertained or no 
claim is made, and with respect to unassociated funerary objects, sacred 
objects, and objects of cultural patrimony:
    (i) In the Indian tribe on whose tribal land the human remains, 
funerary objects, sacred objects, or objects of cultural patrimony were 
excavated intentionally or discovered inadvertently;
    (ii) In the Indian tribe or Native Hawaiian organization that has 
the closest cultural affiliation with the human remains, funerary 
objects, sacred objects, or objects of cultural patrimony as determined 
pursuant to Sec. 10.14 (c); or
    (iii) In circumstances in which the cultural affiliation of the 
human remains, funerary objects, sacred objects, or objects of cultural 
patrimony cannot be ascertained and the objects were excavated 
intentionally or discovered inadvertently on Federal land that is 
recognized by a final judgment of the Indian Claims Commission or the 
United States Court of Claims as the aboriginal land of an Indian tribe:
    (A) In the Indian tribe aboriginally occupying the Federal land on 
which the human remains, funerary objects, sacred objects, or objects of 
cultural patrimony were excavated intentionally or discovered 
inadvertently, or
    (B) If it can be shown by a preponderance of the evidence that a 
different Indian tribe or Native Hawaiian organization has a stronger 
cultural relationship with the human remains, funerary objects, sacred 
objects, or objects of cultural patrimony, in the Indian tribe or Native 
Hawaiian organization that has the strongest demonstrated relationship 
with the objects.
    (b) Custody of human remains, funerary objects, sacred objects, or 
objects of cultural patrimony and other provisions of the Act apply to 
all intentional excavations and inadvertent discoveries made after 
November 16, 1990, including those made before the effective date of 
these regulations.
    (c) Final notice, claims and disposition with respect to Federal 
lands. Upon determination of the lineal descendant, Indian tribe, or 
Native Hawaiian organization that under these regulations appears to be 
entitled to custody of particular human remains, funerary objects, 
sacred objects, or objects of cultural patrimony excavated intentionally 
or discovered inadvertently on Federal lands, the responsible Federal 
agency official must, subject to the notice required herein and the 
limitations of Sec. 10.15, transfer custody of the objects to the lineal 
descendant, Indian tribe, or Native Hawaiian organization following 
appropriate procedures, which must respect traditional customs and 
practices of the affiliated Indian tribes or Native Hawaiian 
organizations in each instance. Prior to any such disposition by a 
Federal agency official, the Federal agency official must publish 
general notices of the proposed disposition in a newspaper of general 
circulation in the area in which the human remains, funerary objects, 
sacred objects, or objects of cultural patrimony were excavated 
intentionally or discovered inadvertently and, if applicable, in a 
newspaper of general circulation in the area(s) in which affiliated 
Indian tribes or Native Hawaiian organizations members now reside. The 
notice must provide information as to the nature and affiliation of the 
human remains, funerary objects, sacred objects, or objects of cultural 
patrimony and solicit further claims to custody. The notice must be

[[Page 207]]

published at least two (2) times at least a week apart, and the transfer 
must not take place until at least thirty (30) days after the 
publication of the second notice to allow time for any additional 
claimants to come forward. If additional claimants do come forward and 
the Federal agency official cannot clearly determine which claimant is 
entitled to custody, the Federal agency must not transfer custody of the 
objects until such time as the proper recipient is determined pursuant 
to these regulations. The Federal agency official must send a copy of 
the notice and information on when and in what newspaper(s) the notice 
was published to the Departmental Consulting Archeologist.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41293, Aug. 1, 1997]



Sec. 10.7  Disposition of unclaimed human remains, funerary objects, sacred objects, or objects of cultural patrimony. [Reserved]



 Subpart C--Human Remains, Funerary Objects, Sacred Objects, or Objects 
        of Cultural Patrimony in Museums and Federal Collections



Sec. 10.8  Summaries.

    (a) General. This section carries out section 6 of the Act. Under 
section 6 of the Act, each museum or Federal agency that has possession 
or control over collections which may contain unassociated funerary 
objects, sacred objects, or objects of cultural patrimony must complete 
a summary of these collections based upon available information held by 
the museum or Federal agency. The purpose of the summary is to provide 
information about the collections to lineal descendants and culturally 
affiliated Indian tribes or Native Hawaiian organizations that may wish 
to request repatriation of such objects. The summary serves in lieu of 
an object-by-object inventory of these collections, although, if an 
inventory is available, it may be substituted. Federal agencies are 
responsible for ensuring that these requirements are met for all 
collections from their lands or generated by their actions whether the 
collections are held by the Federal agency or by a non-Federal 
institution.
    (b) Contents of summaries. For each collection or portion of a 
collection, the summary must include: an estimate of the number of 
objects in the collection or portion of the collection; a description of 
the kinds of objects included; reference to the means, date(s), and 
location(s) in which the collection or portion of the collection was 
acquired, where readily ascertainable; and information relevant to 
identifying lineal descendants, if available, and cultural affiliation.
    (c) Completion. Summaries must be completed not later than November 
16, 1993.
    (d) Consultation. (1) Consulting parties. Museum and Federal agency 
officials must consult with Indian tribe officials and traditional 
religious leaders:
    (i) From whose tribal lands unassociated funerary objects, sacred 
objects, or objects of cultural patrimony originated;
    (ii) That are, or are likely to be, culturally affiliated with 
unassociated funerary objects, sacred objects, or objects of cultural 
patrimony; and
    (iii) From whose aboriginal lands unassociated funerary objects, 
sacred objects, or objects of cultural patrimony originated.
    (2) Initiation of consultation. Museum and Federal agency officials 
must begin summary consultation no later than the completion of the 
summary process. Consultation may be initiated with a letter, but should 
be followed up by telephone or face-to-face dialogue with the 
appropriate Indian tribe official.
    (3) Provision of information. During summary consultation, museum 
and Federal agency officials must provide copies of the summary to 
lineal descendants, when known, and to officials and traditional 
religious leaders representing Indian tribes or Native Hawaiian 
organizations that are, or are likely to be, culturally affiliated with 
the cultural items. A copy of the summary must also be provided to the 
Departmental Consulting Archeologist. Upon request by lineal descendants 
or

[[Page 208]]

Indian tribe officials, museum and Federal agency officials must provide 
lineal descendants, Indian tribe officials and traditional religious 
leaders with access to records, catalogues, relevant studies, or other 
pertinent data for the limited purposes of determining the geographic 
origin, cultural affiliation, and basic facts surrounding acquisition 
and accession of objects covered by the summary. Access to this 
information may be requested at any time and must be provided in a 
reasonable manner to be agreed upon by all parties. The Review committee 
also must be provided access to such materials.
    (4) Requests for information. During the summary consultation, 
museum and Federal agency officials must request, as appropriate, the 
following information from Indian tribes and Native Hawaiian 
organizations that are, or are likely to be, culturally affiliated with 
their collections:
    (i) Name and address of the Indian tribe official to act as 
representative in consultations related to particular objects;
    (ii) Recommendations on how the consultation process should be 
conducted, including:
    (A) Names and appropriate methods to contact any lineal descendants, 
if known, of individuals whose unassociated funerary objects or sacred 
objects are included in the summary;
    (B) Names and appropriate methods to contact any traditional 
religious leaders that the Indian tribe or Native Hawaiian organization 
thinks should be consulted regarding the collections; and
    (iii) Kinds of cultural items that the Indian tribe or Native 
Hawaiian organization considers to be funerary objects, sacred objects, 
or objects of cultural patrimony.
    (e) Museum and Federal agency officials must document the following 
information regarding unassociated funerary objects, sacred objects, and 
objects of cultural patrimony in their collections and must use this 
documentation in determining the individuals, Indian tribes, and Native 
Hawaiian organizations with which they are affiliated:
    (1) Accession and catalogue entries;
    (2) Information related to the acquisition of unassociated funerary 
object, sacred object, or object of cultural patrimony, including:
    (i) The name of the person or organization from whom the object was 
obtained, if known;
    (ii) The date of acquisition;
    (iii) The place each object was acquired, i.e., name or number of 
site, county, State, and Federal agency administrative unit, if 
applicable; and
    (iv) The means of acquisition, i.e., gift, purchase, or excavation;
    (3) A description of each unassociated funerary object, sacred 
object, or object of cultural patrimony, including dimensions, 
materials, and photographic documentation, if appropriate, and the 
antiquity of such objects, if known;
    (4) A summary of the evidence used to determine the cultural 
affiliation of the unassociated funerary objects, sacred objects, or 
objects of cultural patrimony pursuant to Sec. 10.14 of these 
regulations.
    (f) Notification. Repatriation of unassociated funerary objects, 
sacred objects, or objects of cultural patrimony to lineal descendants, 
culturally affiliated Indian tribes, or Native Hawaiian organizations as 
determined pursuant to Sec. 10.10 (a), must not proceed prior to 
submission of a notice of intent to repatriate to the Departmental 
Consulting Archeologist, and publication of the notice of intent to 
repatriate in the Federal Register. The notice of intent to repatriate 
must describe the unassociated funerary objects, sacred objects, or 
objects of cultural patrimony being claimed in sufficient detail so as 
to enable other individuals, Indian tribes or Native Hawaiian 
organizations to determine their interest in the claimed objects. It 
must include information that identifies each claimed unassociated 
funerary object, sacred object, or object of cultural patrimony and the 
circumstances surrounding its acquisition, and describes the objects 
that are clearly identifiable as to cultural affiliation. It must also 
describe the objects that are not clearly identifiable as being 
culturally affiliated with a particular Indian tribe or Native Hawaiian 
organization, but

[[Page 209]]

which, given the totality of circumstances surrounding acquisition of 
the objects, are likely to be culturally affiliated with a particular 
Indian tribe or Native Hawaiian organization. The Departmental 
Consulting Archeologist must publish the notice of intent to repatriate 
in the Federal Register. Repatriation may not occur until at least 
thirty (30) days after publication of the notice of intent to repatriate 
in the Federal Register.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41293, Aug. 1, 1997]



Sec. 10.9  Inventories.

    (a) General. This section carries out section 5 of the Act. Under 
section 5 of the Act, each museum or Federal agency that has possession 
or control over holdings or collections of human remains and associated 
funerary objects must compile an inventory of such objects, and, to the 
fullest extent possible based on information possessed by the museum or 
Federal agency, must identify the geographical and cultural affiliation 
of each item. The purpose of the inventory is to facilitate repatriation 
by providing clear descriptions of human remains and associated funerary 
objects and establishing the cultural affiliation between these objects 
and present-day Indian tribes and Native Hawaiian organizations. Museums 
and Federal agencies are encouraged to produce inventories first on 
those portions of their collections for which information is readily 
available or about which Indian tribes or Native Hawaiian organizations 
have expressed special interest. Early focus on these parts of 
collections will result in determinations that may serve as models for 
other inventories. Federal agencies must ensure that these requirements 
are met for all collections from their lands or generated by their 
actions whether the collections are held by the Federal agency or by a 
non-Federal institution.
    (b) Consultation--(1) Consulting parties. Museum and Federal agency 
officials must consult with:
    (i) Lineal descendants of individuals whose remains and associated 
funerary objects are likely to be subject to the inventory provisions of 
these regulations; and
    (ii) Indian tribe officials and traditional religious leaders:
    (A) From whose tribal lands the human remains and associated 
funerary objects originated;
    (B) That are, or are likely to be, culturally affiliated with human 
remains and associated funerary objects; and
    (C) From whose aboriginal lands the human remains and associated 
funerary objects originated.
    (2) Initiation of consultation. Museum and Federal agency officials 
must begin inventory consultation as early as possible, no later in the 
inventory process than the time at which investigation into the cultural 
affiliation of human remains and associated funerary objects is being 
conducted. Consultation may be initiated with a letter, but should be 
followed up by telephone or face-to-face dialogue.
    (3) Provision of information. During inventory consultation, museums 
and Federal agency officials must provide the following information in 
writing to lineal descendants, when known, and to officials and 
traditional religious leaders representing Indian tribes or Native 
Hawaiian organizations that are, or are likely to be, culturally 
affiliated with the human remains and associated funerary objects.
    (i) A list of all Indian tribes and Native Hawaiian organizations 
that are, or have been, consulted regarding the particular human remains 
and associated funerary objects;
    (ii) A general description of the conduct of the inventory;
    (iii) The projected time frame for conducting the inventory; and
    (iv) An indication that additional documentation used to identify 
cultural affiliation will be supplied upon request.
    (4) Requests for information. During the inventory consultation, 
museum and Federal agency officials must request, as appropriate, the 
following information from Indian tribes and Native Hawaiian 
organizations that are, or are likely to be, culturally affiliated with 
their collections:
    (i) Name and address of the Indian tribe official to act as 
representative in consultations related to particular human remains and 
associated funerary objects;

[[Page 210]]

    (ii) Recommendations on how the consultation process should be 
conducted, including:
    (A) Names and appropriate methods to contact any lineal descendants 
of individuals whose remains and associated funerary objects are or are 
likely to be included in the inventory; and
    (B) Names and appropriate methods to contact traditional religious 
leaders who should be consulted regarding the human remains and 
associated funerary objects.
    (iii) Kinds of objects that the Indian tribe or Native Hawaiian 
organization reasonably believes to have been made exclusively for 
burial purposes or to contain human remains of their ancestors.
    (c) Required information. The following documentation must be 
included, if available, for all inventories completed by museum or 
Federal agency officials:
    (1) Accession and catalogue entries, including the accession/
catalogue entries of human remains with which funerary objects were 
associated;
    (2) Information related to the acquisition of each object, 
including:
    (i) The name of the person or organization from whom the object was 
obtained, if known;
    (ii) The date of acquisition,
    (iii) The place each object was acquired, i.e., name or number of 
site, county, State, and Federal agency administrative unit, if 
applicable; and
    (iv) The means of acquisition, i.e., gift, purchase, or excavation;
    (3) A description of each set of human remains or associated 
funerary object, including dimensions, materials, and, if appropriate, 
photographic documentation, and the antiquity of such human remains or 
associated funerary objects, if known;
    (4) A summary of the evidence, including the results of 
consultation, used to determine the cultural affiliation of the human 
remains and associated funerary objects pursuant to Sec. 10.14 of these 
regulations.
    (d) Documents. Two separate documents comprise the inventory:
    (1) A listing of all human remains and associated funerary objects 
that are identified as being culturally affiliated with one or more 
present-day Indian tribes or Native Hawaiian organizations. The list 
must indicate for each item or set of items whether cultural affiliation 
is clearly determined or likely based upon the preponderance of the 
evidence; and
    (2) A listing of all culturally unidentifiable human remains and 
associated funerary objects for which no culturally affiliated present-
day Indian tribe or Native Hawaiian organization can be determined.
    (e) Notification. (1) If the inventory results in the identification 
or likely identification of the cultural affiliation of any particular 
human remains or associated funerary objects with one or more Indian 
tribes or Native Hawaiian organizations, the museum or Federal agency, 
not later than six (6) months after completion of the inventory, must 
send such Indian tribes or Native Hawaiian organizations the inventory 
of culturally affiliated human remains and associated funerary objects, 
including all information required under Sec. 10.9 (c), and a notice of 
inventory completion that summarizes the results of the inventory.
    (2) The notice of inventory completion must summarize the contents 
of the inventory in sufficient detail so as to enable the recipients to 
determine their interest in claiming the inventoried items. It must 
identify each particular set of human remains or each associated 
funerary object and the circumstances surrounding its acquisition, 
describe the human remains or associated funerary objects that are 
clearly identifiable as to cultural affiliation, and describe the human 
remains and associated funerary objects that are not clearly 
identifiable as being culturally affiliated with an Indian tribe or 
Native Hawaiian organization, but which, given the totality of 
circumstances surrounding acquisition of the human remains or associated 
objects, are identified as likely to be culturally affiliated with a 
particular Indian tribe or Native Hawaiian organization.
    (3) If the inventory results in a determination that the human 
remains are of an identifiable individual, the museum or Federal agency 
official must convey this information to the lineal descendant of the 
deceased individual,

[[Page 211]]

if known, and to the Indian tribe or Native Hawaiian organization of 
which the deceased individual was culturally affiliated.
    (4) The notice of inventory completion and a copy of the inventory 
must also be sent to the Departmental Consulting Archeologist. These 
submissions should be sent in both printed hard copy and electronic 
formats. Information on the proper format for electronic submission and 
suggested alternatives for museums and Federal agencies unable to meet 
these requirements are available from the Departmental Consulting 
Archeologist.
    (5) Upon request by an Indian tribe or Native Hawaiian organization 
that has received or should have received a notice of inventory 
completion and a copy of the inventory as described above, a museum or 
Federal agency must supply additional available documentation to 
supplement the information provided with the notice. For these purposes, 
the term documentation means a summary of existing museum or Federal 
agency records including inventories or catalogues, relevant studies, or 
other pertinent data for the limited purpose of determining the 
geographical origin, cultural affiliation, and basic facts surrounding 
the acquisition and accession of human remains and associated funerary 
objects.
    (6) If the museum or Federal agency official determines that the 
museum or Federal agency has possession of or control over human remains 
that cannot be identified as affiliated with a particular individual, 
Indian tribes or Native Hawaiian organizations, the museum or Federal 
agency must provide the Department Consulting Archeologist notice of 
this result and a copy of the list of culturally unidentifiable human 
remains and associated funerary objects. The Departmental Consulting 
Archeologist must make this information available to members of the 
Review Committee. Section 10.11 of these regulations will set forth 
procedures for disposition of culturally unidentifiable human remains of 
Native American origin. Museums or Federal agencies must retain 
possession of such human remains pending promulgation of Sec. 10.11 
unless legally required to do otherwise, or recommended to do otherwise 
by the Secretary. Recommendations regarding the disposition of 
culturally unidentifiable human remains may be requested prior to final 
promulgation of Sec. 10.11.
    (7) The Departmental Consulting Archeologist must publish notices of 
inventory completion received from museums and Federal agencies in the 
Federal Register.
    (f) Completion. Inventories must be completed not later than 
November 16, 1995. Any museum that has made a good faith effort to 
complete its inventory, but which will be unable to complete the process 
by this deadline, may request an extension of the time requirements from 
the Secretary. An indication of good faith efforts must include, but not 
necessarily be limited to, the initiation of active consultation and 
documentation regarding the collections and the development of a written 
plan to carry out the inventory process. Minimum components of an 
inventory plan are: a definition of the steps required; the position 
titles of the persons responsible for each step; a schedule for carrying 
out the plan; and a proposal to obtain the requisite funding.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41293, Aug. 1, 1997]



Sec. 10.10  Repatriation.

    (a) Unassociated funerary objects, sacred objects, and objects of 
cultural patrimony--(1) Criteria. Upon the request of a lineal 
descendant, Indian tribe, or Native Hawaiian organization, a museum or 
Federal agency must expeditiously repatriate unassociated funerary 
objects, sacred objects, or objects of cultural patrimony if all the 
following criteria are met:
    (i) The object meets the definitions established in Sec. 10.2 
(d)(2)(ii), (d)(3), or (d)(4); and
    (ii) The cultural affiliation of the object is established:
    (A) Through the summary, consultation, and notification procedures 
in Sec. 10.14 of these regulations; or
    (B) By presentation of a preponderance of the evidence by a 
requesting Indian tribe or Native Hawaiian organization pursuant to 
section 7(c) of the Act; and

[[Page 212]]

    (iii) The known lineal descendant or culturally affiliated Indian 
tribe or Native Hawaiian organization presents evidence which, if 
standing alone before the introduction of evidence to the contrary, 
would support a finding that the museum or Federal agency does not have 
a right of possession to the objects as defined in Sec. 10.10 (a)(2); 
and
    (iv) The agency or museum is unable to present evidence to the 
contrary proving that it does have a right of possession as defined 
below; and
    (v) None of the specific exceptions listed in Sec. 10.10 (c) apply.
    (2) Right of possession. For purposes of this section, ``right of 
possession'' means possession obtained with the voluntary consent of an 
individual or group that had authority of alienation. The original 
acquisition of a Native American unassociated funerary object, sacred 
object, or object of cultural patrimony from an Indian tribe or Native 
Hawaiian organization with the voluntary consent of an individual or 
group with authority to alienate such object is deemed to give right of 
possession to that object.
    (3) Notification. Repatriation must take place within ninety (90) 
days of receipt of a written request for repatriation that satisfies the 
requirements of paragraph (a)(1) of this section from a lineal 
descendent or culturally affiliated Indian tribe or Native Hawaiian 
organization, provided that the repatriation may not occur until at 
least thirty (30) days after publication of the notice of intent to 
repatriate in the Federal Register as described in Sec. 10.8.
    (b) Human remains and associated funerary objects--(1) Criteria. 
Upon the request of a lineal descendant, Indian tribe, or Native 
Hawaiian organization, a museum and Federal agency must expeditiously 
repatriate human remains and associated funerary objects if all of the 
following criteria are met:
    (i) The human remains or associated funerary object meets the 
definitions established in Sec. 10.2 (d)(1) or (d)(2)(i); and
    (ii) The affiliation of the deceased individual to known lineal 
descendant, present day Indian tribe, or Native Hawaiian organization:
    (A) Has been reasonably traced through the procedures outlined in 
Sec. 10.9 and Sec. 10.14 of these regulations; or
    (B) Has been shown by a preponderance of the evidence presented by a 
requesting Indian tribe or Native Hawaiian organization pursuant to 
section 7(c) of the Act; and
    (iii) None of the specific exceptions listed in Sec. 10.10 (c) 
apply.
    (2) Notification. Repatriation must take place within ninety (90) 
days of receipt of a written request for repatriation that satisfies the 
requirements of Sec. 10.10 (b)(1) from the culturally affiliated Indian 
tribe or Native Hawaiian organization, provided that the repatriation 
may not occur until at least thirty (30) days after publication of the 
notice of inventory completion in the Federal Register as described in 
Sec. 10.9.
    (c) Exceptions. These requirements for repatriation do not apply to:
    (1) Circumstances where human remains, funerary objects, sacred 
objects, or objects of cultural patrimony are indispensable to the 
completion of a specific scientific study, the outcome of which is of 
major benefit to the United States. Human remains, funerary objects, 
sacred objects, or objects of cultural patrimony in such circumstances 
must be returned no later than ninety (90) days after completion of the 
study; or
    (2) Circumstances where there are multiple requests for repatriation 
of human remains, funerary objects, sacred objects, or objects of 
cultural patrimony and the museum or Federal agency, after complying 
with these regulations, cannot determine by a preponderance of the 
evidence which requesting party is the most appropriate claimant. In 
such circumstances, the museum or Federal agency may retain the human 
remains, funerary objects, sacred objects, or objects of cultural 
patrimony until such time as the requesting parties mutually agree upon 
the appropriate recipient or the dispute is otherwise resolved pursuant 
to these regulations or as ordered by a court of competent jurisdiction; 
or
    (3) Circumstances where a court of competent jurisdiction has 
determined that the repatriation of the human remains, funerary objects, 
sacred objects,

[[Page 213]]

or objects of cultural patrimony in the possession or control of a 
museum would result in a taking of property without just compensation 
within the meaning of the Fifth Amendment of the United States 
Constitution, in which event the custody of the objects must be as 
provided under otherwise applicable law. Nothing in these regulations 
must prevent a museum or Federal agency, where otherwise so authorized, 
or a lineal descendant, Indian tribe, or Native Hawaiian organization, 
from expressly relinquishing title to, right of possession of, or 
control over any human remains, funerary objects, sacred objects, or 
objects of cultural patrimony.
    (4) Circumstances where the repatriation is not consistent with 
other repatriation limitations identified in Sec. 10.15 of these 
regulations.
    (d) Place and manner of repatriation. The repatriation of human 
remains, funerary objects, sacred objects, or objects of cultural 
patrimony must be accomplished by the museum or Federal agency in 
consultation with the requesting lineal descendants, or culturally 
affiliated Indian tribe or Native Hawaiian organization, as appropriate, 
to determine the place and manner of the repatriation.
    (e) The museum official or Federal agency official must inform the 
recipients of repatriations of any presently known treatment of the 
human remains, funerary objects, sacred objects, or objects of cultural 
patrimony with pesticides, preservatives, or other substances that 
represent a potential hazard to the objects or to persons handling the 
objects.
    (f) Record of repatriation. (1) Museums and Federal agencies must 
adopt internal procedures adequate to permanently document the content 
and recipients of all repatriations.
    (2) The museum official or Federal agency official, at the request 
of the Indian tribe official, may take such steps as are considered 
necessary pursuant to otherwise applicable law, to ensure that 
information of a particularly sensitive nature is not made available to 
the general public.
    (g) Culturally unidentifiable human remains. If the cultural 
affiliation of human remains cannot be established pursuant to these 
regulations, the human remains must be considered culturally 
unidentifiable. Museum and Federal agency officials must report the 
inventory information regarding such human remains in their holdings to 
the Departmental Consulting Archeologist who will transmit this 
information to the Review Committee. The Review Committee is responsible 
for compiling an inventory of culturally unidentifiable human remains in 
the possession or control of each museum and Federal agency, and, for 
recommending to the Secretary specific actions for disposition of such 
human remains.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41294, Aug. 1, 1997]



Sec. 10.11  Disposition of culturally unidentifiable human remains. [Reserved]



Sec. 10.12  Civil penalties.

    (a) The Secretary's authority to assess civil penalties. The 
Secretary is authorized by section 9 of the Act to assess civil 
penalties on any museum that fails to comply with the requirements of 
the Act. As used in this section, ``failure to comply with requirements 
of the Act'' also means failure to comply with applicable portions of 
the regulations set forth in this part. As used in this section ``you'' 
refers to the museum or the museum official designated responsible for 
matters related to implementation of the Act.
    (b) Definition of ``failure to comply''. (1) Your museum has failed 
to comply with the requirements of the Act if it:
    (i) After November 16, 1990, sells or otherwise transfers human 
remains, funerary objects, sacred objects, or objects of cultural 
patrimony in violation of the Act, including, but not limited to, an 
unlawful sale or transfer to any individual or institution that is not 
required to comply with the Act; or
    (ii) After November 16, 1993, has not completed summaries as 
required by the Act; or
    (iii) After November 16, 1995, or the date specified in an extension 
issued by the Secretary, whichever is later, has not completed 
inventories as required by the Act; or
    (iv) After May 16, 1996, or six months after completion of an 
inventory under

[[Page 214]]

an extension issued by the Secretary, whichever is later, has not 
notified culturally affiliated Indian tribes and Native Hawaiian 
organizations; or
    (v) Refuses to repatriate human remains, funerary object, sacred 
object, or object of cultural patrimony to a lineal descendant or 
culturally affiliated Indian tribe or Native Hawaiian organization 
pursuant to the requirements of the Act; or
    (vi) Repatriates human remains, funerary object, sacred object, or 
object of cultural patrimony before publishing a notice in the Federal 
Register as required by the Act.
    (2) Each violation will constitute a separate offense.
    (c) How to notify the Secretary of a failure to comply. (1) Any 
person may bring an allegation of failure to comply to the attention of 
the Secretary.
    (2) The Secretary may take the following steps upon receiving such 
an allegation:
    (i) Review the alleged failure to comply;
    (ii) Identify the specific provisions of the Act which allegedly 
have not been complied with;
    (iii) Determine if the institution of a civil penalty action is in 
the public interest in the circumstances; and
    (iv) If appropriate, estimate the proposed penalty.
    (d) How the Secretary determines the penalty amount. (1) The penalty 
amount will be .25% of your museum's annual budget, or $5000, whichever 
is less, and, such additional sum as the Secretary may determine is 
appropriate after taking into account:
    (i) The archeological, historical, or commercial value of the human 
remains, funerary object, sacred object, or object of cultural patrimony 
involved including, but not limited to, consideration of their 
importance to performing traditional practices; and
    (ii) The damages suffered, both economic and non-economic, by the 
aggrieved party or parties including, but not limited to, the costs of 
attorney and expert witness fees, investigations, and administrative 
expenses related to efforts to compel compliance with the Act; and
    (iii) The number of violations that have occurred.
    (2) An additional penalty of $100 per day after the date the final 
administrative decision takes effect if your museum continues to violate 
the Act.
    (3) The Secretary may reduce the penalty amount if there is:
    (i) A determination that you did not willfully fail to comply; or
    (ii) An agreement by you to mitigate the violation, including, but 
not limited to, payment of restitution to the aggrieved party or 
parties; or
    (iii) A demonstration of hardship or inability to pay, provided that 
this factor will only apply when you have not been previously found to 
have failed to comply with the regulations in this part; or
    (iv) A determination that the proposed penalty would constitute 
excessive punishment under the circumstances.
    (e) How the Secretary notifies you of a failure to comply. (1) If 
the allegations are verified, the Secretary serves you with a notice of 
failure to comply either by personal delivery or by registered or 
certified mail (return receipt requested). The notice includes:
    (i) A concise statement of the facts believed to show a failure to 
comply;
    (ii) A specific reference to the provisions of the Act and/or the 
regulations in this part that you have allegedly not complied with;
    (iii) The amount of the proposed penalty, including any initial 
proposal to mitigate or remit where appropriate, or a statement that the 
Secretary will serve notice of a proposed penalty amount after 
ascertaining the damages associated with the alleged failure to comply; 
and
    (iv) Notification of the right to file a petition for relief as 
provided in this section below, or to await the Secretary's notice of 
assessment and to request a hearing. The notice will also inform you of 
your right to seek judicial review of any final administrative decision 
assessing a civil penalty.
    (2) The Secretary also sends a copy of the notice of failure to 
comply to:
    (i) Any lineal descendant of a known Native American individual 
whose human remains or cultural items are in question; and
    (ii) Any Indian tribes or Native Hawaiian organizations that are, or 
are

[[Page 215]]

likely to be, culturally affiliated with the human remains or cultural 
items in question.
    (f) Actions you may take upon receipt of a notice. If you are served 
with a notice of failure to comply, you may: (1) Seek informal 
discussions with the Secretary;
    (2) File a petition for relief. You may file a petition for relief 
with the Secretary within 45 calendar days of receiving the notice of 
failure to comply (or of a proposed penalty amount, if later). Your 
petition for relief may request the Secretary to assess no penalty or to 
reduce the amount. Your petition must be in writing and signed by an 
official authorized to sign such documents. Your petition must set forth 
in full the legal or factual basis for the requested relief.
    (3) Take no action and await the Secretary's notice of assessment; 
or
    (4) Accept in writing or by payment the proposed penalty, or any 
mitigation or remission offered in the notice. If you accept the 
proposed penalty or mitigation or remission, you waive the notice of 
assessment and the right to request a hearing.
    (g) How the Secretary assesses the penalty. (1) The Secretary 
assesses the civil penalty when the period for filing a petition for 
relief expires, or upon completing the review of any petition filed, or 
upon completing informal discussions, whichever is later.
    (2) The Secretary considers all available information, including 
information provided during the process of assessing civil penalties or 
furnished upon further request by the Secretary.
    (3) If the facts warrant a conclusion that you have not failed to 
comply, the Secretary notifies you that you will have no penalty 
assessed.
    (4) If the facts warrant a conclusion that you have failed to 
comply, the Secretary may determine a penalty according to the standards 
in paragraph (d) of this section.
    (5) The Secretary notifies you of the penalty amount assessed by 
serving a written notice of assessment, either in person or by 
registered or certified mail (return receipt requested). The notice of 
assessment includes:
    (i) The facts and conclusions from which the Secretary determined 
that you have failed to comply;
    (ii) The basis for determining the penalty amount assessed and/or 
any offer to mitigate or remit the penalty; and
    (iii) Notification of the right to request a hearing, including the 
procedures to follow, and to seek judicial review of any final 
administrative decision assessing a civil penalty.
    (h) How you request a hearing. (1) You may file a written, dated 
request for a hearing on a notice of assessment with the Hearings 
Division, Office of Hearings and Appeals, U.S. Department of the 
Interior, 801 North Quincy Street, Arlington, Virginia 22203-1923. You 
must enclose a copy of the notice of failure to comply and a copy of the 
notice of assessment. Your request must state the relief sought, the 
basis for challenging the facts used as the basis for determining the 
failure to comply and fixing the assessment, and your preference as to 
the place and date for a hearing. You must serve a copy of the request 
upon the Solicitor of the Department of the Interior personally or by 
registered or certified mail (return receipt requested) at the address 
specified in the notice of assessment. Hearings will take place 
following procedures set forth in 43 CFR part 4, subparts A and B.
    (2) Your failure to file a written request for a hearing within 45 
days of the date of service of a notice of assessment waives your right 
to a hearing.
    (i) Hearing appearance and practice. (1) Upon receiving a request 
for a hearing, the Hearings Division assigns an administrative law judge 
to the case, gives notice of assignment promptly to the parties, and 
files all pleadings, papers, and other documents in the proceeding 
directly with the administrative law judge, with copies served on the 
opposing party.
    (2) Subject to the provisions of 43 CFR 1.3, you may appear by 
representative, or by counsel, and may participate fully in those 
proceedings. If you fail to appear and the administrative law judge 
determines this failure is without good cause, the administrative law 
judge may, in his/her discretion, determine that this failure waives 
your

[[Page 216]]

right to a hearing and consent to the making of a decision on the 
record.
    (3) Departmental counsel, designated by the Solicitor of the 
Department, represents the Secretary in the proceedings. Upon notice to 
the Secretary of the assignment of an administrative law judge to the 
case, this counsel must enter his/her appearance on behalf of the 
Secretary and files all petitions and correspondence exchanges by the 
Secretary and the respondent which become part of the hearing record. 
Thereafter, you must serve all documents for the Secretary to his/her 
counsel.
    (4) Hearing administration. (i) The administrative law judge has all 
powers accorded by law and necessary to preside over the parties and the 
proceedings and to make decisions under 5 U.S.C. 554-557.
    (ii) The transcript of testimony, the exhibits, and all papers, 
documents and requests filed in the proceedings constitute the record 
for decision. The administrative law judge renders a written decision 
upon the record, which sets forth his/her findings of fact and 
conclusions of law, and the reasons and basis for them, and an 
assessment of a penalty, if any.
    (iii) Unless you file a notice of appeal described in the 
regulations in this part, the administrative law judge's decision 
constitutes the final administrative determination of the Secretary in 
the matter and takes effect 30 calendar days from this decision.
    (iv) In this hearing, the amount of civil penalty assessed will be 
determined in accordance with paragraph (d) of this section, and will 
not be limited by the amount assessed by the Secretary or any offer of 
mitigation or remission made by the Secretary.
    (j) How you appeal a decision. (1) Either you or the Secretary may 
appeal the decision of an administrative law judge by filing a ``Notice 
of Appeal'' with the Director, Office of Hearings and Appeals, U.S. 
Department of Interior, 801 North Quincy Street, Arlington, Virginia 
22203-1923, within 30 calendar days of the date of the administrative 
law judge's decision. This notice must be accompanied by proof of 
service on the administrative law judge and the opposing party.
    (2) Upon receiving this notice, the Director, Office of Hearings and 
Appeals, appoints an ad hoc appeals board to hear and decide an appeal. 
To the extent they are not inconsistent with the regulations in this 
part the provision of the Department of Hearings and Appeals Procedures 
in 43 CFR part 4, subparts A, B, and G apply to such appeal proceedings. 
The appeal board's decision on the appeal must be in writing and takes 
effect as the final administrative determination of the Secretary on the 
date it is rendered, unless otherwise specified in the decision.
    (3) You may obtain copies of decisions in civil penalty proceedings 
instituted under the Act by sending a request to the Director, Office of 
Hearings and Appeals, U.S. Department of the Interior, 801 North Quincy 
Street, Arlington, Virginia 22203-1923. Fees for this service are 
established by the Director of that Office.
    (k) The final administrative decision. (1) When you have been served 
with a notice of a failure to comply and have accepted the penalty as 
provided in the regulations in this part, the notice constitutes the 
final administrative decision;
    (2) When you have been served with a notice of assessment and have 
not filed a timely request for a hearing as provided in the regulations 
in this part, the notice of assessment constitutes the final 
administrative decision.
    (3) When you have been served with a notice of assessment and have 
filed a timely request for a hearing as provided in these regulations in 
this part, the decision resulting from the hearing or any applicable 
administrative appeal from it constitutes the final administrative 
decision.
    (l) How you pay the penalty. (1) If you are assessed a civil 
penalty, you have 45 calendar days from the date of issuance of the 
final administrative decision to make full payment of the penalty 
assessed to the Secretary, unless you have filed a timely request for 
appeal with a court of competent jurisdiction.
    (2) If you fail to pay the penalty, the Secretary may request the 
Attorney General to institute a civil action to collect the penalty in 
the U.S. District Court for the district in which your

[[Page 217]]

museum is located. Where the Secretary is not represented by the 
Attorney General, the Secretary may start civil action directly. In 
these actions, the validity and amount of the penalty will not be 
subject to review by the court.
    (3) Assessing a penalty under this section is not a waiver by the 
Secretary of the right to pursue other available legal or administrative 
remedies.

[62 FR 1821, Jan. 13, 1997, as amended at 67 FR 4368, Jan. 30, 2002]



Sec. 10.13  Future applicability. [Reserved]



                           Subpart D--General



Sec. 10.14  Lineal descent and cultural affiliation.

    (a) General. This section identifies procedures for determining 
lineal descent and cultural affiliation between present-day individuals 
and Indian tribes or Native Hawaiian organizations and human remains, 
funerary objects, sacred objects, or objects of cultural patrimony in 
museum or Federal agency collections or excavated intentionally or 
discovered inadvertently from Federal lands. They may also be used by 
Indian tribes and Native Hawaiian organizations with respect to tribal 
lands.
    (b) Criteria for determining lineal descent. A lineal descendant is 
an individual tracing his or her ancestry directly and without 
interruption by means of the traditional kinship system of the 
appropriate Indian tribe or Native Hawaiian organization or by the 
common law system of descendence to a known Native American individual 
whose remains, funerary objects, or sacred objects are being requested 
under these regulations. This standard requires that the earlier person 
be identified as an individual whose descendants can be traced.
    (c) Criteria for determining cultural affiliation. Cultural 
affiliation means a relationship of shared group identity that may be 
reasonably traced historically or prehistorically between a present-day 
Indian tribe or Native Hawaiian organization and an identifiable earlier 
group. All of the following requirements must be met to determine 
cultural affiliation between a present-day Indian tribe or Native 
Hawaiian organization and the human remains, funerary objects, sacred 
objects, or objects of cultural patrimony of an earlier group:
    (1) Existence of an identifiable present-day Indian tribe or Native 
Hawaiian organization with standing under these regulations and the Act; 
and
    (2) Evidence of the existence of an identifiable earlier group. 
Support for this requirement may include, but is not necessarily limited 
to evidence sufficient to:
    (i) Establish the identity and cultural characteristics of the 
earlier group,
    (ii) Document distinct patterns of material culture manufacture and 
distribution methods for the earlier group, or
    (iii) Establish the existence of the earlier group as a biologically 
distinct population; and
    (3) Evidence of the existence of a shared group identity that can be 
reasonably traced between the present-day Indian tribe or Native 
Hawaiian organization and the earlier group. Evidence to support this 
requirement must establish that a present-day Indian tribe or Native 
Hawaiian organization has been identified from prehistoric or historic 
times to the present as descending from the earlier group.
    (d) A finding of cultural affiliation should be based upon an 
overall evaluation of the totality of the circumstances and evidence 
pertaining to the connection between the claimant and the material being 
claimed and should not be precluded solely because of some gaps in the 
record.
    (e) Evidence. Evidence of a kin or cultural affiliation between a 
present-day individual, Indian tribe, or Native Hawaiian organization 
and human remains, funerary objects, sacred objects, or objects of 
cultural patrimony must be established by using the following types of 
evidence: Geographical, kinship, biological, archeological, 
anthropological, linguistic, folklore, oral tradition, historical, or 
other relevant information or expert opinion.

[[Page 218]]

    (f) Standard of proof. Lineal descent of a present-day individual 
from an earlier individual and cultural affiliation of a present-day 
Indian tribe or Native Hawaiian organization to human remains, funerary 
objects, sacred objects, or objects of cultural patrimony must be 
established by a preponderance of the evidence. Claimants do not have to 
establish cultural affiliation with scientific certainty.



Sec. 10.15  Limitations and remedies.

    (a) Failure to claim prior to repatriation. (1) Any person who fails 
to make a timely claim prior to the repatriation or disposition of human 
remains, funerary objects, sacred objects, or objects of cultural 
patrimony is deemed to have irrevocably waived any right to claim such 
items pursuant to these regulations or the Act. For these purposes, a 
``timely claim'' means the filing of a written claim with a responsible 
museum or Federal agency official prior to the time the particular human 
remains, funerary objects, sacred objects, or objects of cultural 
patrimony at issue are duly repatriated or disposed of to a claimant by 
a museum or Federal agency pursuant to these regulations.
    (2) If there is more than one (1) claimant, the human remains, 
funerary object, sacred object, or objects of cultural patrimony may be 
held by the responsible museum or Federal agency or person in possession 
thereof pending resolution of the claim. Any person who is in custody of 
such human remains, funerary objects, sacred objects, or objects of 
cultural patrimony and does not claim entitlement to them must place the 
objects in the possession of the responsible museum or Federal agency 
for retention until the question of custody is resolved.
    (b) Failure to claim where no repatriation or disposition has 
occurred. [Reserved]
    (c) Exhaustion of remedies. No person is considered to have 
exhausted his or her administrative remedies with respect to the 
repatriation or disposition of human remains, funerary objects, sacred 
objects, or objects of cultural patrimony subject to subpart B of these 
regulations, or, with respect to Federal lands, subpart C of these 
regulations, until such time as the person has filed a written claim for 
repatriation or disposition of the objects with the responsible museum 
or Federal agency and the claim has been duly denied following these 
regulations.
    (d) Savings provisions. Nothing in these regulations can be 
construed to:
    (1) Limit the authority of any museum or Federal agency to:
    (i) Return or repatriate human remains, funerary objects, sacred 
objects, or objects of cultural patrimony to Indian tribes, Native 
Hawaiian organizations, or individuals; and
    (ii) Enter into any other agreement with the consent of the 
culturally affiliated Indian tribe or Native Hawaiian organization as to 
the disposition of, or control over, human remains, funerary objects, 
sacred objects, or objects of cultural patrimony.
    (2) Delay actions on repatriation requests that were pending on 
November 16, 1990;
    (3) Deny or otherwise affect access to court;
    (4) Limit any procedural or substantive right which may otherwise be 
secured to individuals or Indian tribes or Native Hawaiian 
organizations; or
    (5) Limit the application of any State or Federal law pertaining to 
theft of stolen property.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41294, Aug. 1, 1997]



Sec. 10.16  Review committee.

    (a) General. The Review Committee will advise Congress and the 
Secretary on matters relating to these regulations and the Act, 
including, but not limited to, monitoring the performance of museums and 
Federal agencies in carrying out their responsibilities, facilitating 
and making recommendations on the resolution of disputes as described 
further in Sec. 10.17, and compiling a record of culturally 
unidentifiable human remains that are in the possession or control of 
museums and Federal agencies and recommending actions for their 
disposition.
    (b) Recommendations. Any recommendation, finding, report, or other 
action of the Review Committee is advisory only and not binding on any 
person. Any records and findings made by

[[Page 219]]

the Review Committee may be admissible as evidence in actions brought by 
persons alleging a violation of the Act.



Sec. 10.17  Dispute resolution.

    (a) Formal and informal resolutions. Any person who wishes to 
contest actions taken by museums, Federal agencies, Indian tribes, or 
Native Hawaiian organizations with respect to the repatriation and 
disposition of human remains, funerary objects, sacred objects, or 
objects of cultural patrimony is encouraged to do so through informal 
negotiations to achieve a fair resolution of the matter. The Review 
Committee may aid in this regard as described below. In addition, the 
United States District Courts have jurisdiction over any action brought 
that alleges a violation of the Act.
    (b) Review Committee Role. The Review Committee may facilitate the 
informal resolution of disputes relating to these regulations among 
interested parties that are not resolved by good faith negotiations. 
Review Committee actions may include convening meetings between parties 
to disputes, making advisory findings as to contested facts, and making 
recommendations to the disputing parties or to the Secretary as to the 
proper resolution of disputes consistent with these regulations and the 
Act.

                  Appendix A to Part 10--Sample Summary

    The following is a generic sample and should be used as a guideline 
for preparation of summaries tailoring the information to the specific 
circumstances of each case.
    Before November 17, 1993
    Chairman or Other Authorized Official
    Indian tribe or Native Hawaiian organization
    Street
    State
    Dear Sir/Madame Chair:
    I write to inform you of collections held by our museum which may 
contain unassociated funerary objects, sacred objects, or objects of 
cultural patrimony that are, or are likely to be, culturally affiliated 
with your Indian tribe or Native Hawaiian organization. This 
notification is required by section 6 of the Native American Graves 
Protection and Repatriation Act.
    Our ethnographic collection includes approximately 200 items 
specifically identified as being manufactured or used by members of your 
Indian tribe or Native Hawaiian organization. These items represent 
various categories of material culture, including sea and land hunting, 
fishing, tools, household equipment, clothing, travel and 
transportation, personal adornment, smoking, toys, and figurines. The 
collection includes thirteen objects identified in our records as 
``medicine bags.''
    Approximately half of these items were collected by John Doe during 
his expedition to your reservation in 1903 and accessioned by the museum 
that same year (see Major Museum Publication, no. 65 (1965).
    Another 50 of these items were collected by Jane Roe during her 
expeditions to your reservation between 1950-1960 and accessioned by the 
museum in 1970 (see Major Museum: no. 75 (1975). Accession information 
indicates that several of these items were collected from members of the 
Able and Baker families.
    For the remaining approximately 50 items, which were obtained from 
various collectors between 1930 and 1980, additional collection 
information is not readily available.
    In addition to the above mentioned items, the museum has 
approximately 50 ethnographic items obtained from the estate of a 
private collector and identified as being collected from the ``northwest 
portion of the State.''
    Our archeological collection includes approximately 1,500 items 
recovered from ten archeological sites on your reservation and another 
5,000 items from fifteen sites within the area recognized by the Indian 
Claims Commission as being part of your Indian tribe's aboriginal 
territory.
    Please feel free to contact Fred Poe at (012) 345-6789 regarding the 
identification and potential repatriation of unassociated funerary 
objects, sacred objects, or objects of cultural patrimony in this 
collection that are, or are likely to be, culturally affiliated with 
your Indian tribe or Native Hawaiian organization. You are invited to 
review our records, catalogues, relevant studies or other pertinent data 
for the purpose of determining the geographic origin, cultural 
affiliation, and basic facts surrounding acquisition and accession of 
these items. We look forward to working together with you.
    Sincerely,
    Museum Official
    Major Museum

      Appendix B to Part 10--Sample Notice of Inventory Completion

    The following is an example of a Notice of Inventory Completion 
published in the Federal Register.
    National Park Service
    Notice of Inventory Completion for Native American Human Remains and 
Associated

[[Page 220]]

Funerary Objects from Hancock County, ME, in the Control of the National 
Park Service.
    AGENCY: National Park Service, Interior.
    ACTION: Notice.
    Notice is hereby given following provisions of the Native American 
Graves Protection and Repatriation Act, 25 U.S.C. 3003(d), of completion 
of the inventory of human remains and associated funerary objects from a 
site in Hancock County, ME, that are presently in the control of the 
National Park Service.
    A detailed inventory and assessment of these human remains has been 
made by National Park Service curatorial staff, contracted specialists 
in physical anthropology and prehistoric archeology, and representatives 
of the Penobscot Nation, Aroostook Band of Micmac, Houlton Band of 
Maliseet, and the Passamaquoddy Nation, identified collectively 
hereafter as the Wabanaki Tribes of Maine.
    The partial remains of at least seven individuals (including five 
adults, one subadult, and one child) were recovered in 1977 from a 
single grave at the Fernald Point Site (ME Site 43-24), a prehistoric 
shell midden on Mount Desert Island, within the boundary of Acadia 
National Park. A bone harpoon head, a modified beaver tooth, and several 
animal and fish bone fragments were found associated with the eight 
individuals. Radiocarbon assays indicate the burial site dates between 
1035-1155 AD. The human remains and associated funerary objects have 
been catalogued as ACAD-5747, 5749, 5750, 5751, 5752, 5783, 5784. The 
partial remains of an eighth individual (an elderly male) was also 
recovered in 1977 from a second grave at the Fernald Point Site. No 
associated funerary objects were recovered with this individual. 
Radiocarbon assays indicate the second burial site dates between 480-680 
AD. The human remains have been catalogued as ACAD-5748. The human 
remains and associated funerary objects of all nine individuals are 
currently in the possession of the University of Maine, Orono, ME.
    Inventory of the human remains and associated funerary objects and 
review of the accompanying documentation indicates that no known 
individuals were identifiable. A representative of the Wabanaki Tribes 
of Maine has identified the Acadia National Park area as a historic 
gathering place for his people and stated his belief that there exists a 
relationship of shared group identity between these individuals and the 
Wabanaki Tribes of Maine. The Prehistoric Subcommittee of the Maine 
State Historic Preservation Office's Archaeological Advisory Committee 
has found it reasonable to trace a shared group identity from the Late 
Prehistoric Period (1000-1500 AD) inhabitants of Maine as an undivided 
whole to the four modern Indian tribes known collectively as the 
Wabanaki Tribes of Maine on the basis of geographic proximity; survivals 
of stone, ceramic and perishable material culture skills; and probable 
linguistic continuity across the Late Prehistoric/Contact Period 
boundary. In a 1979 article, Dr. David Sanger, the archeologist who 
conducted the 1977 excavations at the Fernald Point Site and uncovered 
the abovementioned burials, recognizes a relationship between Maine 
sites dating to the Ceramic Period (2,000 B.P.-1600 A.D.) and present-
day Algonkian speakers generally known as Abenakis, including the 
Micmac, Maliseet, Passamaquoddy, Penboscot, Kennebec, and Pennacook 
groups.
    Based on the above mentioned information, officials of the National 
Park Service have determined that, pursuant to 25 U.S.C. 3001 (2), there 
is a relationship of shared group identity which can be reasonably 
traced between these human remains and associated funerary objects and 
the Wabanaki Tribes of Maine.
    This notice has been sent to officials of the Wabanaki Tribes of 
Maine. Representatives of any other Indian tribe which believes itself 
to be culturally affiliated with these human remains and associated 
funerary objects should contact Len Bobinchock, Acting Superintendent, 
Acadia National Park, P.O. Box 177, Bar Harbor, ME 04609, telephone: 
(207) 288-0374, before August 31, 1994. Repatriation of these human 
remains and associated funerary objects to the Wabanaki Tribes of Maine 
may begin after that date if no additional claimants come forward.
    Dated: July 21, 1994

Francis P. McManamon,
Departmental Consulting Archeologist,
Chief, Archeological Assistance Division.

[Published: August 1, 1994]



PART 11--NATURAL RESOURCE DAMAGE ASSESSMENTS--Table of Contents




                         Subpart A--Introduction

Sec.
11.10  Scope and applicability.
11.11  Purpose.
11.12  Biennial review of regulations.
11.13  Overview.
11.14  Definitions.
11.15  What damages may a trustee recover?
11.16  [Reserved]
11.17  Compliance with applicable laws and standards.
11.18  Incorporation by reference.
11.19  [Reserved]

                     Subpart B--Preassessment Phase

11.20  Notification and detection.
11.21  Emergency restorations.
11.22  Sampling of potentially injured natural resources.

[[Page 221]]

11.23  Preassessment screen--general.
11.24  Preassessment screen--information on the site.
11.25  Preassessment screen--preliminary identification of resources 
          potentially at risk.

                    Subpart C--Assessment Plan Phase

11.30  What does the authorized official do if an assessment is 
          warranted?
11.31  What does the Assessment Plan include?
11.32  How does the authorized official develop the Assessment Plan?
11.33  What types of assessment procedures are available?
11.34  When may the authorized official use a type A procedure?
11.35  How does the authorized official decide whether to use type A or 
          type B procedures?
11.36  May the authorized official use both type A and type B procedures 
          for the same release?
11.37  Must the authorized official confirm exposure before implementing 
          the Assessment Plan?
11.38  Assessment Plan--preliminary estimate of damages.

                      Subpart D--Type A Procedures

11.40  What are type A procedures?
11.41  What data must the authorized official supply?
11.42  How does the authorized official apply the NRDAM/CME or NRDAM/
          GLE?
11.43  Can interested parties review the results of the preliminary 
          application?
11.44  What does the authorized official do after the close of the 
          comment period?

                      Subpart E--Type B Procedures

11.60  Type B assessments--general.
11.61  Injury determination phase--general.
11.62  Injury determination phase--injury definition.
11.63  Injury determination phase--pathway determination.
11.64  Injury determination phase--testing and sampling methods.
11.70  Quantification phase--general.
11.71  Quantification phase--service reduction quantification.
11.72  Quantification phase--baseline services determination.
11.73  Quantification phase--resource recoverability analysis.
11.80  Damage determination phase--general.
11.81  Damage determination phase--restoration and compensation 
          determination plan.
11.82  Damage determination phase--alternatives for restoration, 
          rehabilitation, replacement, and/or acquisition of equlvalent 
          resources.
11.83  Damage determination phase--use value methodologies.
11.84  Damage determination phase--implementation guidance.

                    Subpart F--Post-Assessment Phase

11.90  What documentation must the authorized official prepare after 
          completing the assessment?
11.91  How does the authorized official seek recovery of the assessed 
          damages from the potentially responsible party?
11.92  Post-assessment phase--restoration account.
11.93  Post-assessment phase--restoration plan.

Appendix I to Part 11--Methods for Estimating the Areas of Ground Water 
          and Surface Water Exposure During the Preassessment Screen
Appendix II to Part 11--Format for Data Inputs and Modifications to the 
          NRDAM/CME
Appendix III to Part 11--Format for Data Inputs and Modifications to the 
          NRDAM/GLE

    Authority: 42 U.S.C. 9651(c), as amended.

    Source: 51 FR 27725, Aug. 1, 1986, unless otherwise noted.



                         Subpart A--Introduction



Sec. 11.10  Scope and applicability.

    The Comprehensive Environmental Response, Compensation, and 
Liability Act of 1980 (CERCLA), as amended, 42 U.S.C. 9601 et seq., and 
the Clean Water Act (CWA), 33 U.S.C. 1251-1376, provide that natural 
resource trustees may assess damages to natural resources resulting from 
a discharge of oil or a release of a hazardous substance covered under 
CERCLA or the CWA and may seek to recover those damages. This part 
supplements the procedures established under the National Oil and 
Hazardous Substances Pollution Contingency Plan (NCP), 40 CFR part 300, 
for the identification, investigation, study, and response to a 
discharge of oil or release of a hazardous substance, and it provides a 
procedure by which a natural resource trustee can determine compensation 
for injuries to natural resources that have not been nor are expected to 
be addressed by response actions conducted pursuant to the NCP. The 
assessment procedures set forth in this part are not mandatory.

[[Page 222]]

However, they must be used by Federal or State natural resource trustees 
in order to obtain the rebuttable presumption contained in section 
107(f)(2)(C) of CERCLA. This part applies to assessments initiated after 
the effective date of this final rule.

[53 FR 5171, Feb. 22, 1988]



Sec. 11.11  Purpose.

    The purpose of this part is to provide standardized and cost-
effective procedures for assessing natural resource damages. The results 
of an assessment performed by a Federal or State natural resource 
trustee according to these procedures shall be accorded the evidentiary 
status of a rebuttable presumption as provided in section 107(f)(2)(C) 
of CERCLA.

[53 FR 5171, Feb. 22, 1988]



Sec. 11.12  Biennial review of regulations.

    The regulations and procedures included within this part shall be 
reviewed and revised as appropriate 2 years from the effective date of 
these rules and every second anniversary thereafter.



Sec. 11.13  Overview.

    (a) Purpose. The process established by this part uses a planned and 
phased approach to the assessment of natural resource damages. This 
approach is designed to ensure that all procedures used in an 
assessment, performed pursuant to this part, are appropriate, necessary, 
and sufficient to assess damages for injuries to natural resources.
    (b) Preassessment phase. Subpart B of this part, the preassessment 
phase, provides for notification, coordination, and emergency 
activities, if necessary, and includes the preassessment screen. The 
preassessment screen is meant to be a rapid review of readily available 
information that allows the authorized official to make an early 
decision on whether a natural resource damage assessment can and should 
be performed.
    (c) Assessment Plan phase. If the authorized official decides to 
perform an assessment, an Assessment Plan, as described in subpart C of 
this part, is prepared. The Assessment Plan ensures that the assessment 
is performed in a planned and systematic manner and that the 
methodologies chosen demonstrate reasonable cost.
    (d) Type A assessments. The simplified assessments provided for in 
section 301(c)(2)(A) of CERCLA are performed using the standard 
procedures specified in subpart D of this part.
    (e) Type B assessments. Subpart E of this part covers the 
assessments provided for in section 301(c)(2)(B) of CERCLA. The process 
for implementing type B assessments has been divided into the following 
three phases.
    (1) Injury Determination phase. The purpose of this phase is to 
establish that one or more natural resources have been injured as a 
result of the discharge of oil or release of a hazardous substance. The 
sections of subpart E comprising the Injury Determination phase include 
definitions of injury, guidance on determining pathways, and testing and 
sampling methods. These methods are to be used to determine both the 
pathways through which resources have been exposed to oil or a hazardous 
substance and the nature of the injury.
    (2) Quantification phase. The purpose of this phase is to establish 
the extent of the injury to the resource in terms of the loss of 
services that the injured resource would have provided had the discharge 
or release not occurred. The sections of subpart E comprising the 
Quantification phase include methods for establishing baseline 
conditions, estimating recovery periods, and measuring the degree of 
service reduction stemming from an injury to a natural resource.
    (3) Damage Determination phase. The purpose of this phase is to 
establish the appropriate compensation expressed as a dollar amount for 
the injuries established in the Injury Determination phase and measured 
in the Quantification phase. The sections of subpart E of this part 
comprising the Damage Determination phase include guidance on acceptable 
cost estimating and valuation methodologies for determining compensation 
based on the costs of restoration, rehabilitation, replacement, and/or 
acquisition of equivalent resources, plus, at the discretion of the 
authorized official, compensable value, as defined in Sec. 11.83(c) of 
this part.

[[Page 223]]

    (f) Post-assessment phase. Subpart F of this part includes 
requirements to be met after the assessment is complete. The Report of 
Assessment contains the results of the assessment, and documents that 
the assessment has been carried out according to this rule. Other post-
assessment requirements delineate the manner in which the demand for a 
sum certain shall be presented to a responsible party and the steps to 
be taken when sums are awarded as damages.

[51 FR 27725, Aug. 1, 1986, as amended at 59 FR 14281, Mar. 25, 1994]



Sec. 11.14  Definitions.

    Terms not defined in this section have the meaning given by CERCLA 
or the CWA. As used in this part, the phrase:
    (a) Acquisition of the equivalent or replacement means the 
substitution for an injured resource with a resource that provides the 
same or substantially similar services, when such substitutions are in 
addition to any substitutions made or anticipated as part of response 
actions and when such substitutions exceed the level of response actions 
determined appropriate to the site pursuant to the NCP.
    (b) Air or air resources means those naturally occurring 
constituents of the atmosphere, including those gases essential for 
human, plant, and animal life.
    (c) Assessment area means the area or areas within which natural 
resources have been affected directly or indirectly by the discharge of 
oil or release of a hazardous substance and that serves as the 
geographic basis for the injury assessment.
    (d) Authorized official means the Federal or State official to whom 
is delegated the authority to act on behalf of the Federal or State 
agency designated as trustee, or an official designated by an Indian 
tribe, pursuant to section 126(d) of CERCLA, to perform a natural 
resource damage assessment. As used in this part, authorized official is 
equivalent to the phrase ``authorized official or lead authorized 
official,'' as appropriate.
    (e) Baseline means the condition or conditions that would have 
existed at the assessment area had the discharge of oil or release of 
the hazardous substance under investigation not occurred.
    (f) Biological resources means those natural resources referred to 
in section 101(16) of CERCLA as fish and wildlife and other biota. Fish 
and wildlife include marine and freshwater aquatic and terrestrial 
species; game, nongame, and commercial species; and threatened, 
endangered, and State sensitive species. Other biota encompass 
shellfish, terrestrial and aquatic plants, and other living organisms 
not otherwise listed in this definition.
    (g) CERCLA means the Comprehensive Environmental Response, 
Compensation, and Liability Act of 1980, 42 U.S.C. 9601 et seq., as 
amended.
    (h) Committed use means either: a current public use; or a planned 
public use of a natural resource for which there is a documented legal, 
administrative, budgetary, or financial commitment established before 
the discharge of oil or release of a hazardous substance is detected.
    (i) Control area or control resource means an area or resource 
unaffected by the discharge of oil or release of the hazardous substance 
under investigation. A control area or resource is selected for its 
comparability to the assessment area or resource and may be used for 
establishing the baseline condition and for comparison to injured 
resources.
    (j) Cost-effective or cost-effectiveness means that when two or more 
activities provide the same or a similar level of benefits, the least 
costly activity providing that level of benefits will be selected.
    (k) CWA means the Clean Water Act, as amended, 33 U.S.C. 1251 et 
seq., also referred to as the Federal Water Pollution Control Act.
    (l) Damages means the amount of money sought by the natural resource 
trustee as compensation for injury, destruction, or loss of natural 
resources as set forth in section 107(a) or 111(b) of CERCLA.
    (m) Destruction means the total and irreversible loss of a natural 
resource.
    (n) Discharge means a discharge of oil as defined in section 
311(a)(2) of the CWA, as amended, and includes, but is not limited to, 
any spilling, leaking,

[[Page 224]]

pumping, pouring, emitting, emptying, or dumping of oil.
    (o) Drinking water supply means any raw or finished water source 
that is or may be used by a public water system, as defined in the SDWA, 
or as drinking water by one or more individuals.
    (p) EPA means the U.S. Environmental Protection Agency.
    (q) Exposed to or exposure of means that all or part of a natural 
resource is, or has been, in physical contact with oil or a hazardous 
substance, or with media containing oil or a hazardous substance.
    (r) Fund means the Hazardous Substance Superfund established by 
section 517 of the Superfund Amendments and Reauthorization Act of 1986.
    (s) Geologic resources means those elements of the Earth's crust 
such as soils, sediments, rocks, and minerals, including petroleum and 
natural gas, that are not included in the definitions of ground and 
surface water resources.
    (t) Ground water resources means water in a saturated zone or 
stratum beneath the surface of land or water and the rocks or sediments 
through which ground water moves. It includes ground water resources 
that meet the definition of drinking water supplies.
    (u) Hazardous substance means a hazardous substance as defined in 
section 101(14) of CERCLA.
    (v) Injury means a measurable adverse change, either long- or short-
term, in the chemical or physical quality or the viability of a natural 
resource resulting either directly or indirectly from exposure to a 
discharge of oil or release of a hazardous substance, or exposure to a 
product of reactions resulting from the discharge of oil or release of a 
hazardous substance. As used in this part, injury encompasses the 
phrases ``injury,'' ``destruction,'' and ``loss.'' Injury definitions 
applicable to specific resources are provided in Sec. 11.62 of this 
part.
    (w) Lead authorized official means a Federal or State official 
authorized to act on behalf of all affected Federal or State agencies 
acting as trustees where there are multiple agencies, or an official 
designated by multiple tribes where there are multiple tribes, affected 
because of coexisting or contiguous natural resources or concurrent 
jurisdiction.
    (x) Loss means a measurable adverse reduction of a chemical or 
physical quality or viability of a natural resource.
    (y) Natural Contingency Plan or NCP means the National Oil and 
Hazardous Substances Contingency Plan and revisions promulgated by EPA, 
pursuant to section 105 of CERCLA and codified in 40 CFR part 300.
    (z) Natural resources or resources means land, fish, wildlife, 
biota, air, water, ground water, drinking water supplies, and other such 
resources belonging to, managed by, held in trust by, appertaining to, 
or otherwise controlled by the United States (including the resources of 
the fishery conservation zone established by the Magnuson Fishery 
Conservation and Management Act of 1976), any State or local government, 
any foreign government, any Indian tribe, or, if such resources are 
subject to a trust restriction on alienation, any member of an Indian 
tribe. These natural resources have been categorized into the following 
five groups: Surface water resources, ground water resources, air 
resources, geologic resources, and biological resources.
    (aa) Natural resource damage assessment or assessment means the 
process of collecting, compiling, and analyzing information, statistics, 
or data through prescribed methodologies to determine damages for 
injuries to natural resources as set forth in this part.
    (bb) Oil means oil as defined in section 311(a)(1) of the CWA, as 
amended, of any kind or in any form, including, but not limited to, 
petroleum, fuel oil, sludge, oil refuse, and oil mixed with wastes other 
than dredged spoil.
    (cc) On-Scene Coordinator or OSC means the On-Scene Coordinator as 
defined in the NCP.
    (dd) Pathway means the route or medium through which oil or a 
hazardous substance is or was transported from the source of the 
discharge or release to the injured resource.
    (ee) Reasonable cost means the amount that may be recovered for the 
cost of performing a damage assessment. Costs are reasonable when: the 
Injury Determination, Quantification, and Damage Determination phases

[[Page 225]]

have a well-defined relationship to one another and are coordinated; the 
anticipated increment of extra benefits in terms of the precision or 
accuracy of estimates obtained by using a more costly injury, 
quantification, or damage determination methodology are greater than the 
anticipated increment of extra costs of that methodology; and the 
anticipated cost of the assessment is expected to be less than the 
anticipated damage amount determined in the Injury, Quantification, and 
Damage Determination phases.
    (ff) Rebuttable presumption means the procedural device provided by 
section 107(f)(2)(C) of CERCLA describing the evidentiary weight that 
must be given to any determination or assessment of damages in any 
administrative or judicial proceeding under CERCLA or section 311 of the 
CWA made by a Federal or State natural resource trustee in accordance 
with the rule provided in this part.
    (gg) Recovery period means either the longest length of time 
required to return the services of the injured resource to their 
baseline condition, or a lesser period of time selected by the 
authorized official and documented in the Assessment Plan.
    (hh) Release means a release of a hazardous substance as defined in 
section 101(22) of CERCLA.
    (ii) Replacement or acquisition of the equivalent means the 
substitution for an injured resource with a resource that provides the 
same or substantially similar services, when such substitutions are in 
addition to any substitutions made or anticipated as part of response 
actions and when such substitutions exceed the level of response actions 
determined appropriate to the site pursuant to the NCP.
    (jj) Response means remove, removal, remedy, or remedial actions as 
those phrases are defined in sections 101(23) and 101(24) of CERCLA.
    (kk) Responsible party or parties and potentially responsible party 
or parties means a person or persons described in or potentially 
described in one or more of the categories set forth in section 107(a) 
of CERCLA.
    (ll) Restoration or rehabilitation means actions undertaken to 
return an injured resource to its baseline condition, as measured in 
terms of the injured resource's physical, chemical, or biological 
properties or the services it previously provided, when such actions are 
in addition to response actions completed or anticipated, and when such 
actions exceed the level of response actions determined appropriate to 
the site pursuant to the NCP.
    (mm) SDWA means the Safe Drinking Water Act, 42 U.S.C. 300f-300j-10.
    (nn) Services means the physical and biological functions performed 
by the resource including the human uses of those functions. These 
services are the result of the physical, chemical, or biological quality 
of the resource.
    (oo) Site means an area or location, for purposes of response 
actions under the NCP, at which oil or hazardous substances have been 
stored, treated, discharged, released, disposed, placed, or otherwise 
came to be located.
    (pp) Surface water resources means the waters of the United States, 
including the sediments suspended in water or lying on the bank, bed, or 
shoreline and sediments in or transported through coastal and marine 
areas. This term does not include ground water or water or sediments in 
ponds, lakes, or reserviors designed for waste treatment under the 
Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. 6901-
6987 or the CWA, and applicable regulations.
    (qq) Technical feasibility or technically feasible means that the 
technology and management skills necessary to implement an Assessment 
Plan or Restoration and Compensation Determination Plan are well known 
and that each element of the plan has a reasonable chance of successful 
completion in an acceptable period of time.
    (rr) Trustee or natural resource trustee means any Federal natural 
resources management agency designated in the NCP and any State agency 
designated by the Governor of each State, pursuant to section 
107(f)(2)(B) of CERCLA, that may prosecute claims for damages under 
section 107(f) or 111(b) of CERCLA; or an Indian tribe, that may 
commence an action under section 126(d) of CERCLA.
    (ss) Type A assessment means standard procedures for simplified 
assessments requiring minimal field observation to

[[Page 226]]

determine damages as specified in section 301(c)(2)(A) of CERCLA.
    (tt) Type B assessment means alternative methodologies for 
conducting assessments in individual cases to determine the type and 
extent of short- and long-term injury and damages, as specified in 
section 301(c)(2)(B) of CERCLA.
    (uu) Indian tribe means any Indian tribe, band, nation, or other 
organized group or community, including any Alaska Native village but 
not including any Alaska Native regional or village corporation, which 
is recognized as eligible for the special programs and services provided 
by the United States to Indians because of their status as Indians.

[51 FR 27725, Aug. 1, 1986, as amended at 53 FR 5171, Feb. 22, 1988; 59 
FR 14281, Mar. 25, 1994]



Sec. 11.15  What damages may a trustee recover?

    (a) In an action filed pursuant to section 107(f) or 126(d) of 
CERCLA, or sections 311(f) (4) and (5) of the CWA, a natural resource 
trustee who has performed an assessment in accordance with this rule may 
recover:
    (1) Damages as determined in accordance with this part and 
calculated based on injuries occurring from the onset of the release 
through the recovery period, less any mitigation of those injuries by 
response actions taken or anticipated, plus any increase in injuries 
that are reasonably unavoidable as a result of response actions taken or 
anticipated;
    (2) The costs of emergency restoration efforts under Sec. 11.21 of 
this part;
    (3) The reasonable and necessary costs of the assessment, to 
include:
    (i) The cost of performing the preassessment and Assessment Plan 
phases and the methodologies provided in subpart D or E of this part; 
and
    (ii) Administrative costs and expenses necessary for, and incidental 
to, the assessment, assessment planning, and restoration, 
rehabilitation, replacement, and/or acquisition of equivalent resources 
planning, and any restoration, rehabilitation, replacement, and/or 
acquisition of equivalent resources undertaken; and
    (4) Interest on the amounts recoverable as set forth in section 
107(a) of CERCLA. The rate of interest on the outstanding amount of the 
claim shall be the same rate as is specified for interest on investments 
of the Hazardous Substance Superfund established under subchapter A of 
chapter 98 of the Internal Revenue Code of 1954. Such interest shall 
accrue from the later of: The date payment of a specified amount is 
demanded in writing, or the date of the expenditure concerned;
    (b) The determination of the damage amount shall consider any 
applicable limitations provided for in section 107(c) of CERCLA.
    (c) Where an assessment determines that there is, in fact, no 
injury, as defined in Sec. 11.62 of this part, the natural resource 
trustee may not recover assessment costs.
    (d) There shall be no double recovery under this rule for damages or 
for assessment costs, that is, damages or assessment costs may only be 
recovered once, for the same discharge or release and natural resource, 
as set forth in section 107(f)(1) of CERCLA.
    (e) Actions for damages and assessment costs shall comply with the 
statute of limitations set forth in section 113(g), or, where 
applicable, section 126(d) of CERCLA.

[51 FR 27725, Aug. 1, 1986, as amended at 52 FR 9095, Mar. 20, 1987; 53 
FR 5172, Feb. 22, 1988; 59 FR 14281, Mar. 25, 1994; 61 FR 20609, May 7, 
1996]



Sec. 11.16  [Reserved]



Sec. 11.17  Compliance with applicable laws and standards.

    (a) Worker health and safety. All worker health and safety 
considerations specified in the NCP shall be observed, except that 
requirements applying to response actions shall be taken to apply to the 
assessment process.
    (b) Resource protection. Before taking any actions under this part, 
particularly before taking samples or making determinations of 
restoration or replacement, compliance is required with any applicable 
statutory consultation or review requirements, such as the Endangered 
Species Act; the Migratory

[[Page 227]]

Bird Treaty Act; the Marine Protection, Research, and Sanctuaries Act; 
and the Marine Mammal Protection Act, that may govern the taking of 
samples or in other ways restrict alternative management actions.

[51 FR 27725, Aug. 1, 1986, as amended at 53 FR 5172, Feb. 22, 1988]



Sec. 11.18  Incorporation by reference.

    (a) The following publications or portions of publications are 
incorporated by reference:
    (1) Part II only (Fish-Kill Counting Guidelines) of ``Monetary 
Values of Freshwater Fish and Fish-Kill Guidelines,'' American Fisheries 
Society Special Publication Number 13, 1982; available for purchase from 
the American Fisheries Society, 5410 Grosvenor Lane, Bethesda, MD 20814, 
ph: (301) 897-8616. Reference is made to this publication in 
Secs. 11.62(f)(4)(i)(B) and 11.71(l)(5)(iii)(A) of this part.
    (2) Appendix 1 (Travel Cost Method), Appendix 2 (Contingent 
Valuation (Survey) Methods), and Appendix 3 (Unit Day Value Method) only 
of Section VIII of ``National Economic Development (NED) Benefit 
Evaluation Procedures'' (Procedures), which is Chapter II of Economic 
and Environmental Principles and Guidelines for Water and Related Land 
Resources Implementation Studies, U.S. Department of the Interior, Water 
Resources Council, Washington, DC, 1984, DOI/WRC/-84/01; available for 
purchase from the National Technical Information Service (NTIS), 5285 
Port Royal Road, Springfield, VA 22161; PB No. 84-199-405; ph: (703) 
487-4650. Reference is made to this publication in Sec. 11.83(a)(3) of 
this part.
    (3) ``Uniform Appraisal Standards for Federal Land Acquisition'' 
(Uniform Appraisal Standards), Interagency Land Acquisition Conference, 
Washington, DC, 1973; available for purchase from the Superintendent of 
Documents, U.S. Government Printing Office, Washington, DC 20402; Stock 
Number 052-059-00002-0; ph: (202) 783-3238. Reference is made to this 
publication in Sec. 11.83(c)(2)(i) of this part.
    (4) The CERCLA Type A Natural Resource Damage Assessment Model for 
Coastal and Marine Environments Technical Documentation, Volumes I-VI, 
dated April 1996, including Revision I dated October 1997, and Revision 
II dated December 1999, prepared for the U.S. Department of the Interior 
by Applied Science Associates, Inc., A.T. Kearney, Inc., and Hagler 
Bailly Consulting, Inc. (NRDAM/CME technical document). Interested 
parties may obtain a copy of this document from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161; PB96-
501788; ph: (703) 487-4650. Sections 11.34 (a), (b), and (e), 11.35(a), 
11.36(b), 11.40(a), and 11.42(a), and Appendix II refer to this 
document.
    (5) The CERCLA Type A Natural Resource Damage Assessment Model for 
Great Lakes Environments Technical Documentation, Volumes I-IV, dated 
April 1996, including Revision I dated October 1997, and Revision II 
dated December 1999, prepared for the U.S. Department of the Interior by 
Applied Science Associates, Inc., and Hagler Bailly Consulting, Inc. 
(NRDAM/GLE technical document). Interested parties may obtain a copy of 
this document from the National Technical Information Service, 5285 Port 
Royal Road, Springfield, VA 22161; PB96-501770; ph: (703) 487-4650. 
Sections 11.34 (a), (b), and (e), 11.35(a), 11.36(b), 11.40(a), and 
11.42(a), and Appendix III refer to this document.
    (b) The publications or portions of publications listed in paragraph 
(a) of this section are available for inspection at the Office of the 
Federal Register, 800 North Capitol Street, NW., Washington, DC 20408. 
These incorporations by reference were approved by the Director of the 
Federal Register in accordance with 5 U.S.C. 552(a). These materials are 
incorporated as they exist on the date of the approval and a notice of 
any change in these materials will be published in the Federal Register.

[51 FR 27725, Aug. 1, 1986, as amended at 53 FR 9772, Mar. 25, 1988; 61 
FR 20609, May 7, 1996; 62 FR 60459, Nov. 10, 1997; 65 FR 6014, Feb. 8, 
2000]



Sec. 11.19  [Reserved]



                     Subpart B--Preassessment Phase



Sec. 11.20  Notification and detection.

    (a) Notification. (1) Section 104(b)(2) of CERCLA requires prompt 
notification

[[Page 228]]

of Federal and State natural resource trustees of potential damages to 
natural resources under investigation and requires coordination of the 
assessments, investigations, and planning under section 104 of CERCLA 
with such trustees.
    (2) The NCP provides for the OSC or lead agency to notify the 
natural resource trustee when natural resources have been or are likely 
to be injured by a discharge of oil or a release of a hazardous 
substance being investigated under the NCP.
    (3) Natural resource trustees, upon such notification described in 
paragraphs (a) (1) and (2) of this section, shall take such actions, as 
may be consistent with the NCP.
    (b) Previously unreported discharges or releases. If a natural 
resource trustee identifies or is informed of apparent injuries to 
natural resources that appear to be a result of a previously 
unidentified or unreported discharge of oil or release of a hazardous 
substance, he should first make reasonable efforts to determine whether 
a discharge or release has taken place. In the case of a discharge or 
release not yet reported or being investigated under the NCP, the 
natural resource trustee shall report that discharge or release to the 
appropriate authority as designated in the NCP.
    (c) Identification of co-trustees. The natural resource trustee 
should assist the OSC or lead agency, as needed, in identifying other 
natural resource trustees whose resources may be affected as a result of 
shared responsibility for the resources and who should be notified.

[53 FR 5172, Feb. 22, 1988]



Sec. 11.21  Emergency restorations.

    (a) Reporting requirements and definition. (1) In the event of a 
natural resource emergency, the natural resource trustee shall contact 
the National Response Center (800/424-8802) to report the actual or 
threatened discharge or release and to request that an immediate 
response action be taken.
    (2) An emergency is any situation related to a discharge or release 
requiring immediate action to avoid an irreversible loss of natural 
resources or to prevent or reduce any continuing danger to natural 
resources, or a situation in which there is a similar need for emergency 
action.
    (b) Emergency actions. If no immediate response actions are taken at 
the site of the discharge or release by the EPA or the U.S. Coast Guard 
within the time that the natural resource trustee determines is 
reasonably necessary, or if such actions are insufficient, the natural 
resource trustee should exercise any existing authority he may have to 
take on-site response actions. The natural resource trustee shall 
determine whether the potentially responsible party, if his identity is 
known, is taking or will take any response action. If no on-site 
response actions are taken, the natural resource trustee may undertake 
limited off-site restoration action consistent with its existing 
authority to the extent necessary to prevent or reduce the immediate 
migration of the oil or hazardous substance onto or into the resource 
for which the Federal or State agency or Indian tribe may assert 
trusteeship.
    (c) Limitations on emergency actions. The natural resource trustee 
may undertake only those actions necessary to abate the emergency 
situation, consistent with its existing authority. The normal procedures 
provided in this part must be followed before any additional restoration 
actions other than those necessary to abate the emergency situation are 
undertaken. The burden of proving that emergency restoration was 
required and that restoration costs were reasonable and necessary based 
on information available at the time rests with the natural resource 
trustee.

[51 FR 27725, Aug. 1, 1986, as amended at 53 FR 5173, Feb. 22, 1988]



Sec. 11.22  Sampling of potentially injured natural resources.

    (a) General limitations. Until the authorized official has made the 
determination required in Sec. 11.23 of this part to proceed with an 
assessment, field sampling of natural resources should be limited to the 
conditions identified in this section. All sampling and field work shall 
be subject to the provisions of Sec. 11.17 of this part concerning 
safety and applicability of resource protection statutes.

[[Page 229]]

    (b) Early sampling and data collection. Field samples may be 
collected or site visits may be made before completing the preassessment 
screen to preserve data and materials that are likely to be lost if not 
collected at that time and that will be necessary to the natural 
resource damage assessment. Field sampling and data collection at this 
stage should be coordinated with the lead agency under the NCP to 
minimize duplication of sampling and data collection efforts. Such field 
sampling and data collection should be limited to:
    (1) Samples necessary to preserve perishable materials considered 
likely to have been affected by, and contain evidence of, the oil or 
hazardous substance. These samples generally will be biological 
materials that are either dead or visibly injured and that evidence 
suggests have been injured by oil or a hazardous substance;
    (2) Samples of other ephemeral conditions or material, such as 
surface water or soil containing or likely to contain oil or a hazardous 
substance, where those samples may be necessary for identification and 
for measurement of concentrations, and where necessary samples may be 
lost because of factors such as dilution, movement, decomposition, or 
leaching if not taken immediately; and
    (3) Counts of dead or visibly injured organisms, which may not be 
possible to take if delayed because of factors such as decomposition, 
scavengers, or water movement. Such counts shall be subject to the 
provisions of Sec. 11.71(l)(5)(iii) of this part.



Sec. 11.23  Preassessment screen--general.

    (a) Requirement. Before beginning any assessment efforts under this 
part, except as provided for under the emergency restoration provisions 
of Sec. 11.21 of this part, the authorized official shall complete a 
preassessment screen and make a determination as to whether an 
assessment under this part shall be carried out.
    (b) Purpose. The purpose of the preassessment screen is to provide a 
rapid review of readily available information that focuses on resources 
for which the Federal or State agency or Indian tribe may assert 
trusteeship under section 107(f) or section 126(d) of CERCLA. This 
review should ensure that there is a reasonable probability of making a 
successful claim before monies and efforts are expended in carrying out 
an assessment.
    (c) Determination. When the authorized official has decided to 
proceed with an assessment under this part, the authorized official 
shall document the decision in terms of the criteria provided in 
paragraph (e) of this section in a Preassessment Screen Determination. 
This Preassessment Screen Determination shall be included in the Report 
of Assessment described in Sec. 11.90 of this part.
    (d) Content. The preassessment screen shall be conducted in 
accordance with the guidance provided in this section and in Sec. 11.24-
-Preassessment screen--information on the site and Sec. 11.25--
Preassessment screen--preliminary identification of resources 
potentially at risk, of this part.
    (e) Criteria. Based on information gathered pursuant to the 
preassessment screen and on information gathered pursuant to the NCP, 
the authorized official shall make a preliminary determination that all 
of the following criteria are met before proceeding with an assessment:
    (1) A discharge of oil or a release of a hazardous substance has 
occurred;
    (2) Natural resources for which the Federal or State agency or 
Indian tribe may assert trusteeship under CERCLA have been or are likely 
to have been adversely affected by the discharge or release;
    (3) The quantity and concentration of the discharged oil or released 
hazardous substance is sufficient to potentially cause injury, as that 
term is used in this part, to those natural resources;
    (4) Data sufficient to pursue an assessment are readily available or 
likely to be obtained at reasonable cost; and
    (5) Response actions, if any, carried out or planned do not or will 
not sufficiently remedy the injury to natural resources without further 
action.
    (f) Coordination. (1) In a situation where response activity is 
planned or underway at a particular site, assessment activity shall be 
coordinated with the lead agency consistent with the NCP.

[[Page 230]]

    (2) Whenever, as part of a response action under the NCP, a 
preliminary assessment or an OSC Report is to be, or has been, prepared 
for the site, the authorized official should consult with the lead 
agency under the NCP, as necessary, and to the extent possible use 
information or materials gathered for the preliminary assessment or OSC 
Report, unless doing so would unnecessarily delay the preassessment 
screen.
    (3) Where a preliminary assessment or an OSC Report does not exist 
or does not contain the information described in this section, that 
additional information may be gathered.
    (4) If the natural resource trustee already has a process similar to 
the preassessment screen, and the requirements of the preassessment 
screen can be satisfied by that process, the processes may be combined 
to avoid duplication.
    (g) Preassessment phase costs. (1) The following categories of 
reasonable and necessary costs may be incurred in the preassessment 
phase of the damage assessment:
    (i) Release detection and identification costs;
    (ii) Trustee identification and notification costs;
    (iii) Potentially injured resource identification costs;
    (iv) Initial sampling, data collection, and evaluation costs;
    (v) Site characterization and preassessment screen costs; and
    (vi) Any other preassessment costs for activities authorized by 
Secs. 11.20 through 11.25 of this part.
    (2) The reasonable and necessary costs for these categories shall be 
limited to those costs incurred by the authorized official for, and 
specifically allocable to, site-specific efforts taken during the 
preassessment phase for assessment of damages to natural resources for 
which the agency or Indian tribe is acting as trustee. Such costs shall 
be supported by appropriate records and documentation and shall not 
reflect regular activities performed by the agency or Indian tribe in 
management of the natural resource. Activities undertaken as part of the 
preassessment phase shall be taken in a manner that is cost-effective, 
as that phrase is used in this part.

[51 FR 27725, Aug. 1, 1986, as amended at 53 FR 5173, Feb. 22, 1988]



Sec. 11.24  Preassessment screen--information on the site.

    (a) Information on the site and on the discharge or release. The 
authorized official shall obtain and review readily available 
information concerning:
    (1) The time, quantity, duration, and frequency of the discharge or 
release;
    (2) The name of the hazardous substance, as provided for in Table 
302.4--List of Hazardous Substances and Reportable Quantities, 40 CFR 
302.4;
    (3) The history of the current and past use of the site identified 
as the source of the discharge of oil or release of a hazardous 
substance;
    (4) Relevant operations occurring at or near the site;
    (5) Additional oil or hazardous substances potentially discharged or 
released from the site; and
    (6) Potentially responsible parties.
    (b) Damages excluded from liability under CERCLA. (1) The authorized 
official shall determine whether the damages:
    (i) Resulting from the discharge or release were specifically 
identified as an irreversible and irretrievable commitment of natural 
resources in an environmental impact statement or other comparable 
environmental analysis, that the decision to grant the permit or license 
authorizes such commitment of natural resources, and that the facility 
or project was otherwise operating within the terms of its permit or 
license, so long as, in the case of damages to an Indian tribe occurring 
pursuant to a Federal permit or license, the issuance of that permit or 
license was not inconsistent with the fiduciary duty of the United 
States with respect to such Indian tribe; or
    (ii) And the release of a hazardous substance from which such 
damages resulted have occurred wholly before enactment of CERCLA; or
    (iii) Resulted from the application of a pesticide product 
registered under the Federal Insecticide, Fungicide, and Rodenticide 
Act, 7 U.S.C. 135-135k; or

[[Page 231]]

    (iv) Resulted from any other federally permitted release, as defined 
in section 101(10) of CERCLA; or
    (v) Resulting from the release or threatened release of recycled oil 
from a service station dealer described in section 107(a)(3) or (4) of 
CERCLA if such recycled oil is not mixed with any other hazardous 
substance and is stored, treated, transported or otherwise managed in 
compliance with regulations or standards promulgated pursuant to section 
3014 of the Solid Waste Disposal Act and other applicable authorities.
    (2) An assessment under this part shall not be continued for 
potential injuries meeting one or more of the criteria described in 
paragraph (b)(1) of this section, which are exceptions to liability 
provided in sections 107(f), (i), and (j) and 114(c) of CERCLA.
    (c) Damages excluded from liability under the CWA. (1) The 
authorized official shall determine whether the discharge meets one or 
more of the exclusions provided in section 311 (a)(2) or (b)(3) of the 
CWA.
    (2) An assessment under this part shall not be continued for 
potential injuries from discharges meeting one or more of the CWA 
exclusions provided for in paragraph (c)(1) of this section.

[51 FR 27725, Aug. 1, 1986, as amended at 52 FR 9095, Mar. 20, 1987; 53 
FR 5173, Feb. 22, 1988]



Sec. 11.25  Preassessment screen--preliminary identification of resources potentially at risk.

    (a) Preliminary identification of pathways. (1) The authorized 
official shall make a preliminary identification of potential exposure 
pathways to facilitate identification of resources at risk.
    (2) Factors to be considered in this determination should include, 
as appropriate, the circumstances of the discharge or release, the 
characteristics of the terrain or body of water involved, weather 
conditions, and the known physical, chemical, and toxicological 
properties of the oil or hazardous substance.
    (3) Pathways to be considered shall include, as appropriate, direct 
contact, surface water, ground water, air, food chains, and particulate 
movement.
    (b) Exposed areas. An estimate of areas where exposure or effects 
may have occurred or are likely to occur shall be made. This estimate 
shall identify:
    (1) Areas where it has been or can be observed that the oil or 
hazardous substance has spread;
    (2) Areas to which the oil or hazardous substance has likely spread 
through pathways; and
    (3) Areas of indirect effect, where no oil or hazardous substance 
has spread, but where biological populations may have been affected as a 
result of animals moving into or through the site.
    (c) Exposed water estimates. The area of ground water or surface 
water that may be or has been exposed may be estimated by using the 
methods described in appendix I of this part.
    (d) Estimates of concentrations. An estimate of the concentrations 
of oil or a hazardous substance in those areas of potential exposure 
shall be developed.
    (e) Potentially affected resources. (1) Based upon the estimate of 
the areas of potential exposure, and the estimate of concentrations in 
those areas, the authorized official shall identify natural resources 
for which he may assert trusteeship that are potentially affected by the 
discharge or release. This preliminary identification should be used to 
direct further investigations, but it is not intended to preclude 
consideration of other resources later found to be affected.
    (2) A preliminary estimate, based on information readily available 
from resource managers, of the services of the resources identified as 
potentially affected shall be made. This estimate will be used in 
determining which resources to consider if further assessment efforts 
are justified.



                    Subpart C--Assessment Plan Phase



Sec. 11.30  What does the authorized official do if an assessment is warranted?

    (a) If the authorized official determines during the Preassessment 
Phase that an assessment is warranted, the authorized official must 
develop a plan for the assessment of natural resource damages.

[[Page 232]]

    (b) Purpose. The purpose of the Assessment Plan is to ensure that 
the assessment is performed in a planned and systematic manner and that 
methodologies selected from subpart D for a type A assessment or from 
subpart E for a type B assessment, including the Injury Determination, 
Quantification, and Damage Determination phases, can be conducted at a 
reasonable cost, as that phrase is used in this part.
    (c) Assessment Plan phase costs. (1) The following categories of 
reasonable and necessary costs may be incurred in the Assessment Plan 
phase of the damage assessment:
    (i) Methodology identification and screening costs;
    (ii) Potentially responsible party notification costs;
    (iii) Public participation costs;
    (iv) Exposure confirmation analysis costs;
    (v) Preliminary estimate of damages costs; and
    (vi) Any other Assessment Plan costs for activities authorized by 
Secs. 11.30 through 11.38.
    (2) The reasonable and necessary costs for these categories shall be 
limited to those costs incurred or anticipated by the authorized 
official for, and specifically allocable to, site specific efforts taken 
in the development of an Assessment Plan for a resource for which the 
agency or Indian tribe is acting as trustee. Such costs shall be 
supported by appropriate records and documentation, and shall not 
reflect regular activities performed by the agency or tribe in 
management of the natural resource. Activities undertaken as part of the 
Assessment Plan phase shall be taken in a manner that is cost-effective, 
as that phrase is used in this part.

[51 FR 27725, Aug. 1, 1986, as amended at 53 FR 5174, Feb. 22, 1988; 59 
FR 14281, Mar. 25, 1994; 61 FR 20609, May 7, 1996]



Sec. 11.31  What does the Assessment Plan include?

    (a) General content and level of detail. (1) The Assessment Plan 
must identify and document the use of all of the type A and/or type B 
procedures that will be performed.
    (2) The Assessment Plan shall be of sufficient detail to serve as a 
means of evaluating whether the approach used for assessing the damage 
is likely to be cost-effective and meets the definition of reasonable 
cost, as those terms are used in this part. The Assessment Plan shall 
include descriptions of the natural resources and the geographical areas 
involved. The Assessment Plan shall also include a statement of the 
authority for asserting trusteeship, or co-trusteeship, for those 
natural resources considered within the Assessment Plan. The authorized 
official's statement of the authority for asserting trusteeship shall 
not have the force and effect of a rebuttable presumption under 
Sec. 11.91(c) of this part. In addition, for type B assessments, the 
Assessment Plan shall include the sampling locations within those 
geographical areas, sample and survey design, numbers and types of 
samples to be collected, analyses to be performed, preliminary 
determination of the recovery period, and other such information 
required to perform the selected methodologies.
    (3) The Assessment Plan shall contain information sufficient to 
demonstrate that the damage assessment has been coordinated to the 
extent possible with any remedial investigation feasibility study or 
other investigation performed pursuant to the NCP.
    (4) The Assessment Plan shall contain procedures and schedules for 
sharing data, split samples, and results of analyses, when requested, 
with any identified potentially responsible parties and other natural 
resource trustees.
    (b) Identification of types of assessment procedures. The Assessment 
Plan must identify whether the authorized official plans to use a type A 
procedure, type B procedures, or a combination. Sections 11.34 through 
11.36 contain standards for deciding which types of procedures to use. 
The Assessment Plan must include a detailed discussion of how these 
standards are met.
    (c) Specific requirements for type B procedures. If the authorized 
official plans to use type B procedures, the Assessment Plan must also 
include the following:
    (1) The results of the confirmation of exposure performed under 
Sec. 11.37;
    (2) A Quality Assurance Plan that satisfies the requirements listed 
in the

[[Page 233]]

NCP and applicable EPA guidance for quality control and quality 
assurance plans;
    (3) The objectives, as required in Sec. 11.64(a)(2) of this part, of 
any testing and sampling for injury or pathway determination; and
    (4) The Restoration and Compensation Determination Plan developed in 
accordance with the guidance in Sec. 11.81 of this part. If existing 
data are not sufficient to develop the Restoration and Compensation 
Determination Plan as part of the Assessment Plan, the Restoration and 
Compensation Determination Plan may be developed later, at any time 
before the completion of the Injury Determination or Quantification 
phases. If the Restoration and Compensation Determination Plan is 
published separately, the public review and comment will be conducted 
pursuant to Sec. 11.81(d) of this part.
    (d) Specific requirements for type A procedures. If the authorized 
official plans to use a type A procedure, the Assessment Plan must also 
contain the information described in subpart D.

[51 FR 27725, Aug. 1, 1986, as amended at 52 FR 9095, Mar. 20, 1987; 53 
FR 5174, Feb. 22, 1988; 59 FR 14281, Mar. 25, 1994; 61 FR 20609, May 7, 
1996]



Sec. 11.32  How does the authorized official develop the Assessment Plan?

    (a) Pre-development requirements. The authorized official shall 
fulfill the following requirements before developing an Assessment Plan.
    (1) Coordination. (i) If the authorized official's responsibility is 
shared with other natural resource trustees as a result of coexisting or 
contiguous natural resources or concurrent jurisdiction, the authorized 
official shall ensure that all other known affected natural resource 
trustees are notified that an Assessment Plan is being developed. This 
notification shall include the results of the Preassessment Screen 
Determination.
    (ii) Authorized officials from different agencies or Indian tribes 
are encouraged to cooperate and coordinate any assessments that involve 
coexisting or contiguous natural resources or concurrent jurisdiction. 
They may arrange to divide responsibility for implementing the 
assessment in any manner that is agreed to by all of the affected 
natural resource trustees with the following conditions:
    (A) A lead authorized official shall be designated to administer the 
assessment. The lead authorized official shall act as coordinator and 
contact regarding all aspects of the assessment and shall act as final 
arbitrator of disputes if consensus among the authorized officials 
cannot be reached regarding the development, implementation, or any 
other aspect of the Assessment Plan. The lead authorized official shall 
be designated by mutual agreement of all the natural resource trustees. 
If consensus cannot be reached as to the designation of the lead 
authorized official, the lead authorized official shall be designated in 
accordance with paragraphs (a)(1)(ii) (B), (C), or (D) of this section:
    (B) When the natural resources being assessed are located on lands 
or waters subject to the administrative jurisdiction of a Federal 
agency, a designated official of the Federal agency shall act as the 
lead authorized official.
    (C) When the natural resources being assessed, pursuant to section 
126(d) of CERCLA, are located on lands or waters of an Indian tribe, an 
official designated by the Indian tribe shall act as the lead authorized 
official.
    (D) For all other natural resources for which the State may assert 
trusteeship, a designated official of the State agency shall act as the 
lead authorized official.
    (iii) If there is a reasonable basis for dividing the assessment, 
the natural resource trustee may act independently and pursue separate 
assessments, actions, or claims so long as the claims do not overlap. In 
these instances, the natural resource trustees shall coordinate their 
efforts, particularly those concerning the sharing of data and the 
development of the Assessment Plans.
    (2) Identification and involvement of the potentially responsible 
party. (i) If the lead agency under the NCP for response actions at the 
site has not identified potentially responsible parties, the authorized 
official shall make reasonable efforts to identify any potentially 
responsible parties.
    (ii) In the event the number of potentially responsible parties is 
large or if

[[Page 234]]

some of the potentially responsible parties cannot be located, the 
authorized official may proceed against any one or more of the parties 
identified. The authorized official should use reasonable efforts to 
proceed against most known potentially responsible parties or at least 
against all those potentially responsible parties responsible for 
significant portions of the potential injury.
    (iii)(A) The authorized official shall send a Notice of Intent to 
Perform an Assessment to all identified potentially responsible parties. 
The Notice shall invite the participation of the potentially responsible 
party, or, if several parties are involved and if agreed to by the lead 
authorized official, a representative or representatives designated by 
the parties, in the development of the type and scope of the assessment 
and in the performance of the assessment. The Notice shall briefly 
describe, to the extent known, the site, vessel, or facility involved, 
the discharge of oil or release of hazardous substance of concern to the 
authorized official, and the resources potentially at risk. The Notice 
shall also contain a statement of authority for asserting trusteeship, 
or co-trusteeship, over those natural resources identified as 
potentially at risk.
    (B) The authorized official shall allow at least 30 calendar days, 
with reasonable extensions granted as appropriate, for the potentially 
responsible party or parties notified to respond to the Notice before 
proceeding with the development of the Assessment Plan or any other 
assessment actions.
    (b) Plan approval. The authorized official shall have final approval 
as to the appropriate methodologies to include in the Assessment Plan 
and any modifications to the Assessment Plan.
    (c) Public involvement in the Assessment Plan. (1) The authorized 
official must make the Assessment Plan available for review by any 
identified potentially responsible parties, other natural resource 
trustees, other affected Federal or State agencies or Indian tribes, and 
any other interested member of the public for a period of at least 30 
calendar days, with reasonable extensions granted as appropriate. The 
authorized official may not perform any type B procedures described in 
the Assessment Plan until after this review period.
    (2) Any comments concerning the Assessment Plan received from 
identified potentially responsible parties, other natural resource 
trustees, other affected Federal or State agencies or Indian tribes, and 
any other interested members of the public, together with responses to 
those comments, shall be included as part of the Report of Assessment, 
described in Sec. 11.90 of this part.
    (d) Plan implementation. At the option of the authorized official 
and if agreed to by any potentially responsible party, or parties acting 
jointly, the potentially responsible party or any other party under the 
direction, guidance, and monitoring of the authorized official may 
implement all or any part of the Assessment Plan finally approved by the 
authorized official. Any decision by the authorized official to allow or 
not allow implementation by the potentially responsible party shall be 
documented in the Assessment Plan.
    (e) Plan modification. (1) The Assessment Plan may be modified at 
any stage of the assessment as new information becomes available.
    (2)(i) Any modification to the Assessment Plan that in the judgment 
of the authorized official is significant shall be made available for 
review by any identified potentially responsible party, any other 
affected natural resource trustees, other affected Federal or State 
agencies or Indian tribes, and any other interested members of the 
public for a period of at least 30 calendar days, with reasonable 
extensions granted as appropriate, before tasks called for in the 
modified plan are begun.
    (ii) Any modification to the Assessment Plan that in the judgment of 
the authorized official is not significant shall be made available for 
review by any identified potentially responsible party, any other 
affected natural resource trustees, other affected Federal or State 
agencies or Indian tribes, and any other interested members of the 
public, but the implementation of such modification need not be delayed 
as a result of such review.

[[Page 235]]

    (f) Plan review. (1) After the Injury Determination phase is 
completed and before the Quantification phase is begun, the authorized 
official shall review the decisions incorporated in the Assessment Plan.
    (2) The purpose of this review is to ensure that the selection of 
methodologies for the Quantification and Damage Determination phases is 
consistent with the results of the Injury Determination phase, and that 
the use of such methodologies remains consistent with the requirements 
of reasonable cost, as that term is used in this part.
    (3) Paragraphs (f)(1) and (f)(2) of this section do not apply to the 
use of a type A procedure.

[51 FR 27725, Aug. 1, 1986, as amended at 53 FR 5174, Feb. 22, 1988; 59 
FR 14282, Mar. 25, 1994; 61 FR 20609, May 7, 1996]



Sec. 11.33  What types of assessment procedures are available?

    There are two types of assessment procedures:
    (a) Type A procedures are simplified procedures that require minimal 
field observation. Subpart D describes the type A procedures. There are 
two type A procedures: a procedure for coastal or marine environments, 
which incorporates the Natural Resource Damage Assessment Model for 
Coastal and Marine Environments, Version 2.51 (NRDAM/CME); and a 
procedure for Great Lakes environments, which incorporates the Natural 
Resource Damage Assessment Model for Great Lakes Environments, Version 
1.51 (NRDAM/GLE).
    (b) Type B procedures require more extensive field observation than 
the type A procedures. Subpart E describes the type B procedures.

[61 FR 20610, May 7, 1996, as amended at 62 FR 60459, Nov. 10, 1997; 65 
FR 6014, Feb. 8, 2000]



Sec. 11.34  When may the authorized official use a type A procedure?

    The authorized official may use a type A procedure only if:
    (a) The released substance entered an area covered by the NRDAM/CME 
or NRDAM/GLE. Section 3.4, Volume III of the NRDAM/CME technical 
document (incorporated by reference, see Sec. 11.18) identifies the 
areas that the NRDAM/CME covers. Section 6.2, Volume III of the NRDAM/
GLE technical document (incorporated by reference, see Sec. 11.18) 
describes the areas that the NRDAM/GLE covers;
    (b) The NRDAM/CME or NRDAM/GLE cover the released substance. Table 
7.1, Volume I of the NRDAM/CME technical document lists the substances 
that the NRDAM/CME covers. Table 7.1, Volume I of the NRDAM/GLE 
technical document lists the substances that the NRDAM/GLE covers;
    (c) The released substance entered water at or near the surface;
    (d) At the time of the release, winds did not vary spatially over 
the area affected by the release in a way that would significantly 
affect the level or extent of injuries;
    (e) The authorized official is not aware of any reliable evidence 
that, for species that are likely to represent a significant portion of 
the claim, the species biomass is significantly lower than the species 
biomass assigned by the NRDAM/CME or the NRDAM/GLE Tables IV.2.1 through 
IV.2.115 and IV.5.1 through IV.5.77, Volume III of the NRDAM/CME 
technical document list the species biomasses in the NRDAM/CME. Tables 
III.3.17 through III.3.27 and III.3.40 through III.3.50, Volume III of 
the NRDAM/GLE technical document list the species biomasses in the 
NRDAM/GLE ; and
    (f) Subsurface currents either: are not expected to significantly 
affect the level or extent of injuries; or are reasonably uniform with 
depth over the water column in the area affected by the release.

[61 FR 20610, May 7, 1996]



Sec. 11.35  How does the authorized official decide whether to use type A or type B procedures?

    (a) If the authorized official determines under Sec. 11.34 that a 
type A procedure is available, the authorized official must then decide 
whether to use that procedure or use type B procedures. The authorized 
official must make this decision by weighing the difficulty of 
collecting site-specific data against the suitability of the averaged 
data and simplifying assumptions in the type A procedure for the release 
being assessed. The authorized official

[[Page 236]]

may use type B procedures if they can be performed at a reasonable cost 
and if the increase in accuracy provided by those procedures outweighs 
the increase in assessment costs. Section 1, Volume I of the NRDAM/CME 
technical document (incorporated by reference, see Sec. 11.18) lists the 
simplifying assumptions made in the NRDAM/CME. Volumes III through IV of 
the NRDAM/CME technical document list the data in the NRDAM/CME. Section 
1, Volume I of the NRDAM/GLE technical document (incorporated by 
reference, see Sec. 11.18) lists the simplifying assumptions made in the 
NRDAM/GLE. Volume III of the NRDAM/GLE technical document lists the data 
in the NRDAM/GLE.
    (b) The authorized official must use type B procedures rather than a 
type A procedure whenever a potentially responsible party:
    (1) Submits a written request for use of type B procedures along 
with documentation of the reasons supporting the request; and
    (2) Advances all reasonable costs of using type B procedures within 
a time frame acceptable to the authorized official.
    (c) If there is no available type A procedure, the authorized 
official must use type B procedures to calculate all damages.
    (d) Except as provided in paragraph (b) of this section, the 
authorized official may change the type of procedure used in light of 
comments received on the Assessment Plan. [See Sec. 11.32(e)(2) to 
determine if the authorized official must provide for additional public 
review.] However, if the authorized official decides to use type B 
procedures in lieu of a type A procedure, and cannot confirm exposure 
under Sec. 11.37, the authorized official may not then use a type A 
procedure.

[61 FR 20610, May 7, 1996]



Sec. 11.36  May the authorized official use both type A and type B procedures for the same release?

    (a) The authorized official may use both a type A procedure and type 
B procedures for the same release if:
    (1) The type B procedures are cost-effective and can be performed at 
a reasonable cost;
    (2) There is no double recovery; and
    (3) The type B procedures are used only to determine damages for 
injuries or compensable values that do not fall into the categories 
addressed by the type A procedure. [Sections 11.14(v) and 11.62 define 
``injury.'' Section 11.83(c)(1) defines ``compensable value.'']
    (b) The type A procedures address the following categories of injury 
and compensable value:
    (1) Direct mortality of species covered by the NRDAM/CME or NRDAM/
GLE resulting from short-term exposure to the released substance. Volume 
IV of the NRDAM/CME technical document (incorporated by reference, see 
Sec. 11.18) lists the species that the NRDAM/CME covers. Section 3, 
Volume III of the NRDAM/GLE technical document (incorporated by 
reference, see Sec. 11.18) lists the species that the NRDAM/GLE covers;
    (2) Direct loss of production of species covered by the NRDAM/CME or 
NRDAM/GLE resulting from short-term exposure to the released substance;
    (3) Indirect mortality of species covered by the NRDAM/CME or NRDAM/
GLE resulting from disruption of the food web by direct mortality or 
direct loss of production;
    (4) Indirect loss of production of species covered by the NRDAM/CME 
or NRDAM/GLE resulting from disruption of the food web by direct 
mortality or direct loss of production;
    (5) Lost assimilative capacity of water column and sediments;
    (6) Lost economic rent for lost commercial harvests resulting from 
any closures specified by the authorized official and/or from population 
losses;
    (7) Lost recreational harvests resulting from any closures specified 
by the authorized official and/or from population losses;
    (8) For the type A procedure for coastal and marine environments, 
lost wildlife viewing, resulting from population losses, by residents of 
the States bordering the provinces in which the population losses 
occurred. [A province is one of the geographic areas delineated in Table 
6.1, Volume I of the NRDAM/CME technical document.] For the type A 
procedure for Great Lakes

[[Page 237]]

environments, lost wildlife viewing, resulting from population losses, 
by residents of local areas bordering the provinces in which the 
population losses occurred. [A province is one of the geographic areas 
delineated in Table 8.1, Volume I of the NRDAM/GLE technical document.];
    (9) Lost beach visitation due to closure; and
    (10) For the type A procedure for Great Lakes environments, lost 
boating due to closure.
    (c) If the authorized official uses both type A and type B 
procedures, he or she must explain in the Assessment Plan how he or she 
intends to prevent double recovery.
    (d) When the authorized official uses type B procedures for injuries 
not addressed in a type A procedure, he or she must follow all of 
subpart E (which contains standards for determining and quantifying 
injury as well as determining damages), Sec. 11.31(c) (which addresses 
content of the Assessment Plan), and Sec. 11.37 (which addresses 
confirmation of exposure). When the authorized official uses type B 
procedures for compensable values that are not included in a type A 
procedure but that result from injuries that are addressed in the type A 
procedure, he or she need not follow all of subpart E, Sec. 11.31(c), 
and Sec. 11.37. Instead, the authorized official may rely on the injury 
predictions of the type A procedure and simply use the valuation 
methodologies authorized by Sec. 11.83(c) to calculate compensable 
value. When using valuation methodologies, the authorized official must 
comply with Sec. 11.84.

[61 FR 20610, May 7, 1996]



Sec. 11.37  Must the authorized official confirm exposure before implementing the Assessment Plan?

    (a) Before including any type B methodologies in the Assessment 
Plan, the authorized official must confirm that at least one of the 
natural resources identified as potentially injured in the preassessment 
screen has in fact been exposed to the released substance.
    (b) Procedures. (1) Whenever possible, exposure shall be confirmed 
by using existing data, such as those collected for response actions by 
the OSC, or other available studies or surveys of the assessment area.
    (2) Where sampling has been done before the completion of the 
preassessment screen, chemical analyses of such samples may be performed 
to confirm that exposure has occurred. Such analyses shall be limited to 
the number and type required for confirmation of exposure.
    (3) Where existing data are unavailable or insufficient to confirm 
exposure, one or more of the analytical methodologies provided in the 
Injury Determination phase may be used. The collection and analysis of 
new data shall be limited to that necessary to confirm exposure and 
shall not include testing for baseline levels or for injury, as those 
phrases are used in this part.

[51 FR 27725, Aug. 1, 1986. Redesignated and amended at 61 FR 20610, 
20611, May 7, 1996]



Sec. 11.38  Assessment Plan--preliminary estimate of damages.

    (a) Requirement. When performing a type B assessment pursuant to the 
requirements of subpart E of this part, the authorized official shall 
develop a preliminary estimate of: the anticipated costs of restoration, 
rehabilitation, replacement, and/or acquisition of equivalent resources 
for the injured natural resources; and the compensable value, as defined 
in Sec. 11.83(c) of this part, of the injured natural resources, if the 
authorized official intends to include compensable value in the damage 
claim. This preliminary estimate is referred to as the preliminary 
estimate of damages. The authorized official shall use the guidance 
provided in this section, to the extent possible, to develop the 
preliminary estimate of damages.
    (b) Purpose. The purpose of the preliminary estimate of damages is 
for reference in the scoping of the Assessment Plan to ensure that the 
choice of the scientific, cost estimating, and valuation methodologies 
expected to be used in the damage assessment fulfills the requirements 
of reasonable cost, as that term is used in this part. The authorized 
official will also use the preliminary estimate of damages in the

[[Page 238]]

review of the Assessment Plan, as required in Sec. 11.32(f) of this 
part, to ensure the requirements of reasonable cost are still met.
    (c) Steps. The preliminary estimate of damages should include 
consideration of the ability of the resources to recover naturally and, 
if relevant, the compensable value through the recovery period with and 
without possible alternative actions. The authorized official shall 
consider the following factors, to the extent possible, in making the 
preliminary estimate of damages:
    (1) The preliminary estimate of costs of restoration, 
rehabilitation, replacement, and/or acquisition of equivalent resources 
should include consideration of a range of possible alternative actions 
that would accomplish the restoration, rehabilitation, replacement, and/
or acquisition of the equivalent of the injured natural resources.
    (i) The preliminary estimate of costs should take into account the 
effects, or anticipated effects, of any response actions.
    (ii) The preliminary estimate of costs should represent the expected 
present value of anticipated costs, expressed in constant dollars, and 
should include direct and indirect costs, and include the timing of 
those costs. The provisions detailed in Secs. 11.80-11.84 of this part 
are the basis for the development of the estimate.
    (iii) The discount rate to be used in developing the preliminary 
estimate of costs shall be that determined in accordance with the 
guidance in Sec. 11.84(e) of this part.
    (2) The preliminary estimate of compensable value should be 
consistent with the range of possible alternatives for restoration, 
rehabilitation, replacement, and/or acquisition of equivalent resources 
being considered.
    (i) The preliminary estimate of compensable value should represent 
the expected present value of the anticipated compensable value, 
expressed in constant dollars, accrued through the period for the 
restoration, rehabilitation, replacement, and/or acquisition of 
equivalent resources to baseline conditions, i.e., between the 
occurrence of the discharge or release and the completion of the 
restoration, rehabilitation, replacement, and/or acquisition of the 
equivalent of the injured resources and their services. The estimate 
should use the same base year as the preliminary estimate of costs of 
restoration, rehabilitation, replacement, and/or acquisition of 
equivalent resources. The provisions detailed in Secs. 11.80-11.84 of 
this part are the basis for the development of this estimate.
    (ii) The preliminary estimate of compensable value should take into 
account the effects, or anticipated effects, of any response actions.
    (iii) The discount rate to be used in developing the preliminary 
estimate of compensable value shall be that determined in accordance 
with the guidance in Sec. 11.84(e) of this part.
    (d) Content and timing. (1) In making the preliminary estimate of 
damages, the authorized official should rely upon existing data and 
studies. The authorized official should not undertake significant new 
data collection or perform significant modeling efforts at this stage of 
the assessment planning phase.
    (2) Where possible, the authorized official should make the 
preliminary estimate of damages before the completion of the Assessment 
Plan as provided for in Sec. 11.31 of this part. If there is not 
sufficient existing data to make the preliminary estimate of damages at 
the same time as the assessment planning phase, this analysis may be 
completed later, at the end of the Injury Determination phase of the 
assessment, at the time of the Assessment Plan review.
    (3) The authorized official is not required to disclose the 
preliminary estimate before the conclusion of the assessment. At the 
conclusion of the assessment, the preliminary estimate of damages, along 
with its assumptions and methodology, shall be included in the Report of 
the Assessment as provided for in Sec. 11.91 of this part.
    (e) Review. The authorized official shall review, and revise as 
appropriate, the preliminary estimate of damages at the end of the 
Injury Determination and Quantification phases. If there is

[[Page 239]]

any significant modification of the preliminary estimate of damages, the 
authorized official shall document it in the Report of the Assessment.

[59 FR 14282, Mar. 25, 1994. Redesignated at 61 FR 20610, May 7, 1996]



                      Subpart D--Type A Procedures



Sec. 11.40  What are type A procedures?

    (a) A type A procedure is a standardized methodology for performing 
Injury Determination, Quantification, and Damage Determination that 
requires minimal field observation. There are two type A procedures: the 
type A procedure for coastal and marine environments; and the type A 
procedure for Great Lakes environments. The type A procedure for coastal 
and marine environments incorporates a computer model called the Natural 
Resource Damage Assessment Model for Coastal and Marine Environments 
Version 2.51 (NRDAM/CME). The NRDAM/CME technical document (incorporated 
by reference, see Sec. 11.18) includes and explains the NRDAM/CME. The 
type A procedure for Great Lakes environments incorporates a computer 
model called the Natural Resource Damage Assessment Model for Great 
Lakes Environments Version 1.51 (NRDAM/GLE). The NRDAM/GLE technical 
document (incorporated by reference, see Sec. 11.18) includes and 
explains the NRDAM/GLE. The authorized official must follow Secs. 11.41 
through 11.44 when using the type A procedures.
    (b) The reasonable and necessary costs incurred in conducting 
assessments under this subpart shall be limited to those costs incurred 
or anticipated by the authorized official for, and specifically 
allocable to, incident-specific efforts taken in the assessment of 
damages for natural resources for which the agency or Indian tribe is 
acting as trustee. Such costs shall be supported by appropriate records 
and documentation, and shall not reflect regular activities performed by 
the agency or the Indian tribe in management of the natural resource. 
Activities undertaken as part of the damage assessment shall be taken in 
a manner that is cost-effective, as that phrase is used in this part.

[52 FR 9096, Mar. 20, 1987, as amended at 53 FR 5175, Feb. 22, 1988; 61 
FR 20611, May 7, 1996; 62 FR 60459, Nov. 10, 1997; 65 FR 6014, Feb. 8, 
2000]



Sec. 11.41  What data must the authorized official supply?

    (a) The NRDAM/CME and the NRDAM/GLE require several data inputs to 
operate. The authorized official must develop the following data inputs:
    (1) The identity of the released substance;
    (2) The mass or volume of the identified substance that was 
released;
    (3) The duration of the release;
    (4) The time of the release;
    (5) The location of the release;
    (6) The wind conditions;
    (7) The extent of response actions;
    (8) The extent of any closures;
    (9) The implicit price deflator; and
    (10) For the NRDAM/CME, the condition of the currents and tides.
    (b) The authorized official must change the data in the NRDAM/CME 
and the NRDAM/GLE for the following parameters if he or she is aware of 
more accurate data:
    (1) Air temperature;
    (2) Water temperature at the surface;
    (3) Total suspended sediment concentration;
    (4) Mean settling velocity of suspended solids; and
    (5) Habitat type.
    (c)(1) If the release occurred in Alaska and the authorized official 
is not aware of any reliable evidence that ice was absent from the site 
of the release, then he or she must turn on the ice modeling function. 
Otherwise, the authorized official must leave the ice modeling function 
off.
    (2) If the release occurred in the Great Lakes and the authorized 
official is aware of reliable evidence that ice was absent from the site 
of the release, then he or she must turn off the ice modeling function.
    (d) The authorized official must develop the data inputs and 
modifications and include them in the Assessment Plan in the format 
specified in Appendix II (for the NRDAM/CME) or Appendix III (for the 
NRDAM/GLE).

[61 FR 20611, May 7, 1996]

[[Page 240]]



Sec. 11.42  How does the authorized official apply the NRDAM/CME or NRDAM/GLE?

    (a) The authorized official must perform a preliminary application 
of the NRDAM/CME or NRDAM/GLE with the data inputs and modifications 
developed under Sec. ;11.41. Volume II of the NRDAM/CME technical 
document (incorporated by reference, see Sec. ;11.18) describes how to 
apply the NRDAM/CME. Volume II of the NRDAM/GLE technical document 
(incorporated by reference, see Sec. 11.18) describes how to apply the 
NRDAM/GLE. For cases involving releases of two or more substances or a 
release of a mixture of substances, the authorized official may only 
apply the NRDAM/CME or NRDAM/GLE once using only one of the substances.
    (b) If the preliminary application of the NRDAM/CME or NRDAM/GLE 
indicates damages in excess of $100,000, then the authorized official 
must decide whether to:
    (1) Limit the portion of his or her claim calculated with the type A 
procedure to $100,000; or
    (2) Compute all damages using type B procedures.

[61 FR 20611, May 7, 1996]



Sec. 11.43  Can interested parties review the results of the preliminary application?

    After completing the preliminary application of the NRDAM/CME or 
NRDAM/GLE, if the authorized official decides to continue with the type 
A procedure, he or she must issue an Assessment Plan for public comment 
as described in Sec. 11.32. The Assessment Plan must include the 
information described in Sec. 11.31, the data inputs and modifications 
developed under Sec. 11.41, and a summary of the results of the 
preliminary application. The Assessment Plan must also identify a 
contact from whom a complete copy of the printout of the preliminary 
application can be obtained.

[61 FR 20612, May 7, 1996]



Sec. 11.44  What does the authorized official do after the close of the comment period?

    (a) The authorized official must carefully review all comments 
received on the Assessment Plan, provide substantive responses to all 
comments, and modify the Plan as appropriate. [See Sec. 11.32(e)(2) to 
determine if the authorized official must provide for additional public 
review.]
    (b) If, after reviewing the public comments, the authorized official 
decides to continue with the type A procedure, he or she must then 
perform a final application of the NRDAM/CME or NRDAM/GLE, using final 
data inputs and modifications based on Sec. 11.41 and any reliable 
information received during the public review and comment period.
    (c) After completing the final application of the NRDAM/CME or 
NRDAM/GLE, the authorized official must prepare a Report of Assessment. 
The Report of Assessment must include the printed output from the final 
application as well as the Preassessment Screen Determination and the 
Assessment Plan.
    (d) If the authorized official is aware of reliable evidence that a 
private party has recovered damages for commercial harvests lost as a 
result of the release, the authorized official must eliminate from the 
claim any damages for such lost harvests that are included in the lost 
economic rent calculated by the NRDAM/CME or NRDAM/GLE.
    (e) If the authorized official is aware of reliable evidence that 
the NRDAM/CME or NRDAM/GLE application covers resources beyond his or 
her trustee jurisdiction, the authorized official must either:
    (1) Have the other authorized official(s) who do have trustee 
jurisdiction over those resources join in the type A assessment; or
    (2) Eliminate any damages for those resources from the claim for 
damages.
    (f) If the final application of the NRDAM/CME or NRDAM/GLE, adjusted 
as needed under paragraphs (d) and (e), calculates damages in excess of 
$100,000, then the authorized official must limit the portion of his or 
her

[[Page 241]]

claim calculated with the type A procedure to $100,000.
    (g) After preparing the Report of Assessment, the authorized 
official must follow the steps described in subpart F.

[61 FR 20612, May 7, 1996]



                      Subpart E--Type B Procedures



Sec. 11.60  Type B assessments--general.

    (a) Purpose. The purpose of the type B assessment is to provide 
alternative methodologies for conducting natural resource damage 
assessments in individual cases.
    (b) Steps in the type B assessment. The type B assessment consists 
of three phases: Sec. 11.61--Injury Determination; Sec. 11.70--
Quantification; and Sec. 11.80--Damage Determination, of this part.
    (c) Completion of type B assessment. After completion of the type B 
assessment, a Report of Assessment, as described in Sec. 11.90 of this 
part, shall be prepared. The Report of Assessment shall include the 
determinations made in each phase.
    (d) Type B assessment costs. (1) The following categories of 
reasonable and necessary costs may be incurred in the assessment phase 
of the damage assessment:
    (i) Sampling, testing, and evaluation costs for injury and pathway 
determination;
    (ii) Quantification costs (including baseline service determination 
and resource recoverability analysis);
    (iii) Restoration and Compensation Determination Plan development 
costs including:
    (A) Development of alternatives;
    (B) Evaluation of alternatives;
    (C) Potentially responsible party, agency, and public reviews;
    (D) Other such costs for activities authorized by Sec. 11.81 of this 
part;
    (iv) Cost estimating and valuation methodology calculation costs; 
and
    (v) Any other assessment costs authorized by Secs. 11.60-11.84 of 
this part.
    (2) The reasonable and necessary costs for these categories shall be 
limited to those costs incurred or anticipated by the authorized 
official for, and specifically allocable to, site-specific efforts taken 
in the assessment of damages for a natural resource for which the agency 
or Indian tribe is acting as trustee. Such costs shall be supported by 
appropriate records and documentation, and shall not reflect regular 
activities performed by the agency or the Indian tribe in management of 
the natural resource. Activities undertaken as part of the damage 
assessment phase shall be taken in a manner that is cost-effective, as 
that phrase is used in this part.

[51 FR 27725, Aug. 1, 1986, as amended at 53 FR 5175, Feb. 22, 1988; 59 
FR 14283, Mar. 25, 1994]



Sec. 11.61  Injury determination phase--general.

    (a) Requirement. (1) The authorized official shall, in accordance 
with the procedures provided in the Injury Determination phase of this 
part, determine: whether an injury to one or more of the natural 
resources has occurred; and that the injury resulted from the discharge 
of oil or release of a hazardous substance based upon the exposure 
pathway and the nature of the injury.
    (2) The Injury Determination phase consists of Sec. 11.61--general; 
Sec. 11.62--injury definition; Sec. 11.63--pathway determination; and 
Sec. 11.64--testing and sampling methods, of this part.
    (b) Purpose. The purpose of the Injury Determination phase is to 
ensure that only assessments involving well documented injuries 
resulting from the discharge of oil or release of a hazardous substance 
proceed through the type B assessment.
    (c) Injury Determination phase steps. (1) The authorized official 
shall determine whether the potentially injured resource constitutes a 
surface water, ground water, air, geologic, or biological resource as 
defined in Sec. 11.14 of this part. The authorized official shall then 
proceed in accordance with the guidance provided in the injury 
definition section, Sec. 11.62 of this part, to determine if the 
resource is injured.
    (2) The authorized official shall follow the guidance provided in 
the testing and sampling methods section, Sec. 11.64 of this part, in 
selecting the methodology for determining injury. The authorized 
official shall select from available testing and sampling procedures one 
or more procedures that meet the requirements of the selected 
methodologies.

[[Page 242]]

    (3) The authorized official shall follow the guidance provided in 
the pathway section, Sec. 11.63 of this part, to determine the route 
through which the oil or hazardous substance is or was transported from 
the source of the discharge or release to the injured resource.
    (4) If more than one resource, as defined in Sec. 11.14(z) of this 
part, has potentially been injured, an injury determination for each 
resource shall be made in accordance with the guidance provided in each 
section of the Injury Determination phase.
    (d) Selection of methodologies. (1) One of the methodologies 
provided in Sec. 11.64 of this part for the potentially injured 
resource, or one that meets the acceptance criteria provided for that 
resource, shall be used to establish injury.
    (2) Selection of the methodologies for the Injury Determination 
phase shall be based upon cost-effectiveness as that phrase is used in 
this part.
    (e) Completion of Injury Determination phase. (1) Upon completion of 
the Injury Determination phase, the Assessment Plan shall be reviewed in 
accordance with the requirements of Sec. 11.32(f) of this part.
    (2) When the authorized official has determined that one or more of 
the natural resources has been injured as a result of the discharge or 
release, the authorized official may proceed to the Quantification and 
the Damage Determination phases.
    (3) When the authorized official has determined that an injury has 
not occurred to at least one of the natural resources or that an injury 
has occurred but that the injury cannot be linked to the discharge or 
release, the authorized official shall not pursue further assessment 
under this part.



Sec. 11.62  Injury determination phase--injury definition.

    (a) The authorized official shall determine that an injury has 
occurred to natural resources based upon the definitions provided in 
this section for surface water, ground water, air, geologic, and 
biological resources. The authorized official shall test for injury 
using the methodologies and guidance provided in Sec. 11.64 of this 
part. The test results of the methodologies must meet the acceptance 
criteria provided in this section to make a determination of injury.
    (b) Surface water resources. (1) An injury to a surface water 
resource has resulted from the discharge of oil or release of a 
hazardous substance if one or more of the following changes in the 
physical or chemical quality of the resource is measured:
    (i) Concentrations and duration of substances in excess of drinking 
water standards as established by sections 1411-1416 of SDWA, or by 
other Federal or State laws or regulations that establish such standards 
for drinking water, in surface water that was potable before the 
discharge or release;
    (ii) Concentrations and duration of substances in excess of water 
quality criteria established by section 1401(1)(D) of SDWA, or by other 
Federal or State laws or regulations that establish such criteria for 
public water supplies, in surface water that before the discharge or 
release met the criteria and is a committed use, as the phrase is used 
in this part, as a public water supply;
    (iii) Concentrations and duration of substances in excess of 
applicable water quality criteria established by section 304(a)(1) of 
the CWA, or by other Federal or State laws or regulations that establish 
such criteria, in surface water that before the discharge or release met 
the criteria and is a committed use, as that phrase is used in this 
part, as a habitat for aquatic life, water supply, or recreation. The 
most stringent criterion shall apply when surface water is used for more 
than one of these purposes;
    (iv) Concentrations of substances on bed, bank, or shoreline 
sediments sufficient to cause the sediment to exhibit characteristics 
identified under or listed pursuant to section 3001 of the Solid Waste 
Disposal Act, 42 U.S.C. 6921; or
    (v) Concentrations and duration of substances sufficient to have 
caused injury as defined in paragraphs (c), (d), (e), or (f) of this 
section to ground water, air, geologic, or biological resources, when 
exposed to surface water, suspended sediments, or bed, bank, or 
shoreline sediments.

[[Page 243]]

    (2)(i) The acceptance criterion for injury to the surface water 
resource is the measurement of concentrations of oil or a hazardous 
substance in two samples from the resource. The samples must be one of 
the following types, except as specified in paragraph (b)(3) of this 
section:
    (A) Two water samples from different locations, separated by a 
straight-line distance of not less than 100 feet; or
    (B) Two bed, bank, or shoreline sediment samples from different 
locations separated by a straight-line distance of not less than 100 
feet; or
    (C) One water sample and one bed, bank, or shoreline sediment 
sample; or
    (D) Two water samples from the same location collected at different 
times.
    (ii) In those instances when injury is determined and no oil or 
hazardous substances are detected in samples from the surface water 
resource, it must be demonstrated that the substance causing injury 
occurs or has occurred in the surface water resource as a result of 
physical, chemical, or biological reactions initiated by the discharge 
of oil or release of a hazardous substance.
    (3) If the maximum straight-line distance of the surface water 
resource is less than 100 feet, then the samples required in paragraph 
(b)(2)(i) (A) and (B) of this section should be separated by one-half 
the maximum straight-line distance of the surface water resource.
    (c) Ground water resources. (1) An injury to the ground water 
resource has resulted from the discharge of oil or release of a 
hazardous substance if one or more of the following changes in the 
physical or chemical quality of the resource is measured:
    (i) Concentrations of substances in excess of drinking water 
standards, established by sections 1411-1416 of the SDWA, or by other 
Federal or State laws or regulations that establish such standards for 
drinking water, in ground water that was potable before the discharge or 
release;
    (ii) Concentrations of substances in excess of water quality 
criteria, established by section 1401(1)(d) of the SDWA, or by other 
Federal or State laws or regulations that establish such criteria for 
public water supplies, in ground water that before the discharge or 
release met the criteria and is a committed use, as the phrase is used 
in this part, as a public water supply;
    (iii) Concentrations of substances in excess of applicable water 
quality criteria, established by section 304(a)(1) of the CWA, or by 
other Federal or State laws or regulations that establish such criteria 
for domestic water supplies, in ground water that before the discharge 
or release met the criteria and is a committed use as that phrase is 
used in this part, as a domestic water supply; or
    (iv) Concentrations of substances sufficient to have caused injury 
as defined in paragraphs (b), (d), (e), or (f) of this section to 
surface water, air, geologic, or biological resources, when exposed to 
ground water.
    (2) The acceptance criterion for injury to ground water resources is 
the measurement of concentrations of oil or hazardous substance in two 
ground water samples. The water samples must be from the same 
geohydrologic unit and must be obtained from one of the following pairs 
of sources, except as specified in paragraph (c)(3) of this section:
    (i) Two properly constructed wells separated by a straight-line 
distance of not less than 100 feet; or
    (ii) A properly constructed well and a natural spring or seep 
separated by a straight-line distance of not less than 100 feet; or
    (iii) Two natural springs or seeps separated by a straight-line 
distance of not less than 100 feet.
    (3) If the maximum straight-line distance of the ground water 
resource is less than 100 feet, the samples required in paragraph (c)(2) 
of this section should be separated by one-half of the maximum straight-
line distance of the ground water resource.
    (4) In those instances when injury is determined and no oil or 
hazardous substance is detected in samples from the ground water 
resource, it must be demonstrated that the substance causing injury 
occurs or has occurred in the ground water resource as a result of 
physical, chemical, or biological reactions initiated by the discharge 
of oil or release of hazardous substances.

[[Page 244]]

    (d) Air resources. An injury to the air resource has resulted from 
the discharge of oil or release of a hazardous substance if one or more 
of the following changes in the physical or chemical quality of the 
resource is measured:
    (1) Concentrations of emissions in excess of standards for hazardous 
air pollutants established by section 112 of the Clean Air Act, 42 
U.S.C. 7412, or by other Federal or State air standards established for 
the protection of public welfare or natural resources; or
    (2) Concentrations and duration of emissions sufficient to have 
caused injury as defined in paragraphs (b), (c), (e), or (f) of this 
section to surface water, ground water, geologic, or biological 
resources when exposed to the emissions.
    (e) Geologic resources. An injury to the geologic resource has 
resulted from the discharge of oil or release of a hazardous substance 
if one or more of the following changes in the physical or chemical 
quality of the resource is measured:
    (1) Concentrations of substances sufficient for the materials in the 
geologic resource to exhibit characteristics identified under or listed 
pursuant to section 3001 of the Solid Waste Disposal Act, 42 U.S.C. 
6921;
    (2) Concentrations of substances sufficient to raise the negative 
logarithm of the hydrogen ion concentration of the soil (pH) to above 
8.5 (above 7.5 in humid areas) or to reduce it below 4.0;
    (3) Concentrations of substances sufficient to yield a salt 
saturation value greater than 2 millimhos per centimeter in the soil or 
a sodium adsorption ratio of more than 0.176;
    (4) Concentrations of substances sufficient to decrease the water 
holding capacity such that plant, microbial, or invertebrate populations 
are affected;
    (5) Concentrations of substances sufficient to impede soil microbial 
respiration to an extent that plant and microbial growth have been 
inhibited;
    (6) Concentrations in the soil of substances sufficient to inhibit 
carbon mineralization resulting from a reduction in soil microbial 
populations;
    (7) Concentrations of substances sufficient to restrict the ability 
to access, develop, or use mineral resources within or beneath the 
geologic resource exposed to the oil or hazardous substance;
    (8) Concentrations of substances sufficient to have caused injury to 
ground water, as defined in paragraph (c) of this section, from physical 
or chemical changes in gases or water from the unsaturated zone;
    (9) Concentrations in the soil of substances sufficient to cause a 
toxic response to soil invertebrates;
    (10) Concentrations in the soil of substances sufficient to cause a 
phytotoxic response such as retardation of plant growth; or
    (11) Concentrations of substances sufficient to have caused injury 
as defined in paragraphs (b), (c), (d), or (f), of this section to 
surface water, ground water, air, or biological resources when exposed 
to the substances.
    (f) Biological resources. (1) An injury to a biological resource has 
resulted from the discharge of oil or release of a hazardous substance 
if concentration of the substance is sufficient to:
    (i) Cause the biological resource or its offspring to have undergone 
at least one of the following adverse changes in viability: death, 
disease, behavioral abnormalities, cancer, genetic mutations, 
physiological malfunctions (including malfunctions in reproduction), or 
physical deformations; or
    (ii) Exceed action or tolerance levels established under section 402 
of the Food, Drug and Cosmetic Act, 21 U.S.C. 342, in edible portions of 
organisms; or
    (iii) Exceed levels for which an appropriate State health agency has 
issued directives to limit or ban consumption of such organism.
    (2) The method for determining injury to a biological resource, as 
defined in paragraph (f)(1)(i) of this section, shall be chosen based 
upon the capability of the method to demonstrate a measurable biological 
response. An injury can be demonstrated if the authorized official 
determines that the biological response under consideration can satisfy 
all of the following acceptance criteria:
    (i) The biological response is often the result of exposure to oil 
or hazardous substances. This criterion excludes biological responses 
that are

[[Page 245]]

caused predominately by other environmental factors such as disturbance, 
nutrition, trauma, or weather. The biological response must be a 
commonly documented response resulting from exposure to oil or hazardous 
substances.
    (ii) Exposure to oil or hazardous substances is known to cause this 
biological response in free-ranging organisms. This criterion identifies 
biological responses that have been documented to occur in a natural 
ecosystem as a result of exposure to oil or hazardous substances. The 
documentation must include the correlation of the degree of the 
biological response to the observed exposure concentration of oil or 
hazardous substances.
    (iii) Exposure to oil or hazardous substances is known to cause this 
biological response in controlled experiments. This criterion provides a 
quantitative confirmation of a biological response occurring under 
environmentally realistic exposure levels that may be linked to oil or 
hazardous substance exposure that has been observed in a natural 
ecosystem. Biological responses that have been documented only in 
controlled experimental conditions are insufficient to establish 
correlation with exposure occurring in a natural ecosystem.
    (iv) The biological response measurement is practical to perform and 
produces scientifically valid results. The biological response 
measurement must be sufficiently routine such that it is practical to 
perform the biological response measurement and to obtain scientifically 
valid results. To meet this criterion, the biological response 
measurement must be adequately documented in scientific literature, must 
produce reproducible and verifiable results, and must have well defined 
and accepted statistical criteria for interpreting as well as rejecting 
results.
    (3) Unless otherwise provided for in this section, the injury 
determination must be based upon the establishment of a statistically 
significant difference in the biological response between samples from 
populations in the assessment area and in the control area. The 
determination as to what constitutes a statistically significant 
difference must be consistent with the quality assurance provisions of 
the Assessment Plan. The selection of the control area shall be 
consistent with the guidance provided in Sec. 11.72 of this part.
    (4) The biological responses listed in this paragraph have been 
evaluated and found to satisfy the acceptance criteria provided in 
paragraph (f)(2) of this section. The authorized official may, when 
appropriate, select from this list to determine injury to fish and 
wildlife resources or may designate another response as the determiner 
of injury provided that the designated response can satisfy the 
acceptance criteria provided in paragraph (f)(2) of this section. The 
biological responses are listed by the categories of injury for which 
they may be applied.
    (i) Category of injury--death. Five biological responses for 
determining when death is a result of exposure to the discharge of oil 
or release of a hazardous substance have met the acceptance criteria.
    (A) Brain cholinesterase (ChE) enzyme activity. Injury has occurred 
when brain ChE activity in a sample from the population has been 
inhibited by at least 50 percent compared to the mean for normal brain 
ChE activity of the wildlife species. These enzymes are in the nervous 
system of vertebrate organisms and the rate of ChE activity is 
associated with the regulation of nerve impulse transmission. This 
biological response may be used to confirm injury when anti-ChE 
substances, such as organophosphorus and carbamate pesticides, are 
suspected to have resulted in death to bird and mammal species.
    (B) Fish kill investigations. Injury has occurred when a significant 
increase in the frequency or numbers of dead or dying fish can be 
measured in accordance with the procedures for counting dead or dying 
fish contained in Part II (Fish-Kill Counting Guidelines) of ``Monetary 
Values of Freshwater Fish and Fish-Kill Counting Guidelines,'' American 
Fisheries Society Special Publication Number 13, 1982 (incorporated by 
reference, see Sec. 11.18).
    (C) Wildlife kill investigations. Injury has occurred when a 
significant increase in the frequency or number of dead or dying birds 
or mammal species

[[Page 246]]

can be measured in a population sample from the assessment area as 
compared to a population sample from a control area. Wildlife kill 
investigations may be used when acute mortality has occurred to multiple 
wildlife species, or when detectable quantities of oil or hazardous 
substances have adherred to, bound to, or otherwise covered surface 
tissue, or had been ingested or inhaled by dead or dying bird or mammal 
species.
    (D) In situ bioassay. Injury has occurred when a statistically 
significant difference can be measured in the total mortality and/or 
mortality rates between population samples exposed in situ to a 
discharge of oil or a release of hazardous substance and those in a 
control site. In situ caged or confined bioassay may be used to confirm 
injury when oil or hazardous substances are suspected to have caused 
death to fish species.
    (E) Laboratory toxicity testing. Injury has occurred when a 
statistically significant difference can be measured in the total 
mortality and/or mortality rates between population samples of the test 
organisms placed in exposure chambers containing concentrations of oil 
or hazardous substances and those in a control chamber. Published 
standardized laboratory fish toxicity testing methodologies for acute 
flow-through, acute static, partial-chronic (early life stage), and 
chronic (life cycle) toxicity tests may be used to confirm injury. The 
oil or hazardous substance used in the test must be the exact substance 
or a substance that is reasonably comparable to that suspected to have 
caused death to the natural population of fish.
    (ii) Category of injury--disease. One biological response for 
determining when disease is a result of exposure to the discharge of oil 
or release of a hazardous substance has met the acceptance criteria.
    (A) Fin erosion. Injury has occurred when a statistically 
significant difference can be measured in the frequency of occurrence of 
fin erosion (also referred to as fin rot) in a population sample from 
the assessment area as compared to a sample from the control area. Fin 
erosion shall be confirmed by appropriate histological procedures. Fin 
erosion may be used when oil or hazardous substances are suspected to 
have caused the disease.
    (iii) Category of injury--behavioral abnormalities. Two biological 
responses for determining when behavioral abnormalities are a result of 
the exposure to the discharge of oil or release of a hazardous substance 
have met the acceptance criteria.
    (A) Clinical behavioral signs of toxicity. Injury has occurred when 
a statistically significant difference can be measured in the frequency 
of occurrence of clinical behavioral signs of toxicity in a population 
sample from the assessment area as compared to a sample from the control 
area. Clinical behavioral signs of toxicity are characteristic 
behavioral symptoms expressed by an organism in reponse to exposure to 
an oil or hazardous substance. The clinical behavioral signs of toxicity 
used shall be those that have been documented in published literature.
    (B) Avoidance. Injury has occurred when a statistically significant 
difference can be measured in the frequency of avoidance behavior in 
population samples of fish placed in testing chambers with equal access 
to water containing oil or a hazardous substance and the control water. 
The oil or hazardous substance used in the test must be the exact 
substance or a substance that is reasonably comparable to that suspected 
to have caused avoidance to the natural populations of fish. This 
biological response may be used to confirm injury when oil or hazardous 
substances are suspected to have resulted in avoidance behavior in fish 
species.
    (iv) Category of injury--cancer. One biological response for 
determining when cancer is a result of exposure to the discharge of oil 
or release of a hazardous substance has met the acceptance criteria.
    (A) Fish neoplasm. Injury has occurred when a statistically 
significant difference can be measured in the frequency of occurrence of 
the fish neoplasia when comparing population samples from the assessment 
area and a control area. Neoplasms are characterized by relatively 
autonomous growth of abnormal cells that by proliferation infiltrate, 
press upon, or invade

[[Page 247]]

healthy tissue thereby causing destruction of cells, interference with 
physiological functions, or death of the organism. The following type of 
fish neoplasia may be used to determine injury: liver neoplasia and skin 
neoplasia. The neoplasms shall be confirmed by histological procedures 
and such confirmation procedures may also include special staining 
techniques for specific tissue components, ultra-structural examination 
using electron microscopy to identify cell origin, and to rule out or 
confirm viral, protozoan, or other causal agents. Fish neoplasm may be 
used to determine injury when oil or hazardous substances are suspected 
to have been the causal agent.
    (v) Category of injury--physiological malfunctions. Five biological 
responses for determining when physiological malfunctions are a result 
of exposure to the discharge of oil or release of a hazardous substance 
have met the acceptance criteria.
    (A) Eggshell thinning. Injury has occurred when eggshell thicknesses 
for samples for a population of a given species at the assessment area 
are thinner than those for samples from a population at a control area, 
or are at least 15 percent thinner than eggshells collected before 1946 
from the same geographic area and stored in a museum. This biological 
response is a measure of avian eggshell thickness resulting from the 
adult bird having assimilated the oil or hazardous substance. This 
biological response may be used when the organochlorine pesticide DDT or 
its metabolites are suspected to have caused such physiological 
malfunction injury.
    (B) Reduced avian reproduction. Injury has occurred when a 
statistically significant difference can be measured in the mean number 
of young fledged per active nest when comparing samples from populations 
in the assessment area and a control area. The fledging success (the 
number of healthy young leaving the nest) shall be used as the 
measurement of injury. Factors that may contribute to this measurement 
include egg fertility, hatching success, and survival of young. This 
biological response may be used when oil or hazardous substances are 
suspected to have reduced the nesting success of avian species.
    (C) Cholinesterase (ChE) enzyme inhibition. Injury has occurred when 
brain ChE activity in a sample from the population at the assessment 
area shows a statistically significant inhibition when compared to the 
mean activity level in samples from populations in a control area. These 
enzymes are in the nervous systems of vertebrate organisms and the rate 
of ChE activity is associated with the regulation of nerve impulse 
transmission. This biological response may be used as a demonstration of 
physiological malfunction injury to birds, mammals, and reptiles when 
anti-ChE substances, such as organophosphorus and carbamate pesticides, 
have been discharged or released.
    (D) Delta-aminolevulinic acid dehydratase (ALAD) inhibition. Injury 
has occurred when the activity level of whole blood ALAD in a sample 
from the population of a given species at an assessment area is 
significantly less than mean values for a population at a control area, 
and ALAD depression of at least 50 percent can be measured. The ALAD 
enzyme is associated with the formation of hemoglobin in blood and in 
chemical detoxification processes in the liver. This biological response 
is a measure of the rate of ALAD activity. This biological response may 
be used to determine injury to bird and mammal species that have been 
exposed to lead.
    (E) Reduced fish reproduction. Injury has occurred when a 
statistically significant difference in reproduction success between the 
control organisms and the test organisms can be measured based on the 
use of published standardized laboratory toxicity testing methodologies. 
This biological response may be used when the oil or hazardous substance 
is suspected to have caused a reduction in the reproductive success of 
fish species. Laboratory partial-chronic and laboratory chronic toxicity 
tests may be used. The oil or hazardous substance used in the test must 
be the exact substance or a substance that is reasonably comparable to 
that suspected to have caused reduced reproductive success in the 
natural population of fish.

[[Page 248]]

    (vi) Category of injury--physical deformation. Four biological 
responses for determining when physical deformations are a result of 
exposure to the discharge of oil or release of a hazardous substance 
have met the injury acceptance criteria.
    (A) Overt external malformations. Injury has occurred when a 
statistically significant difference can be measured in the frequency of 
overt external malformation, such as small or missing eyes, when 
comparing samples from populations of wildlife species from the 
assessment area and a control area. This biological response may be used 
as a demonstration of injury when such physical deformations are 
observed in wildlife species exposed to oil or hazardous substances.
    (B) Skeletal deformities. Injury has occurred when a statistically 
signficant difference can be measured in the frequency of skeletal 
deformities, such as defects in growth of bones, when comparing samples 
from populations of wildlife species from the assessment area and a 
control area. This biological response may be used as a demonstration of 
injury when such physical deformations are observed in wildlife species 
exposed to oil or hazardous substances.
    (C) Internal whole organ and soft tissue malformation. Injury has 
occurred when a statistically signficant difference can be measured in 
the frequency of malformations to brain, heart, liver, kidney, and other 
organs, as well as soft tissues of the gastrointestinal tract and 
vascular system, when comparing samples from populations of wildlife 
species in the assessment area and a control area. This biological 
response may be used as a demonstration of injury when such physical 
deformations are observed in wildlife species exposed to oil or 
hazardous substances.
    (D) Histopathological lesions. Injury has occurred when a 
statistically signficant difference can be measured in the frequency of 
tissue or cellular lesions when comparing samples from populations of 
wildlife species from the assessment area and a control area. This 
biological response may be used as a demonstration of injury when such 
physical deformations are observed in wildlife species exposed to oil or 
hazardous substances.



Sec. 11.63  Injury determination phase--pathway determination.

    (a) General. (1) To determine the exposure pathways of the oil or 
hazardous substance, the following shall be considered:
    (i) The chemical and physical characteristics of the discharged oil 
or released hazardous substance when transported by natural processes or 
while present in natural media;
    (ii) The rate or mechanism of transport by natural processes of the 
discharged oil or released hazardous substance; and
    (iii) Combinations of pathways that, when viewed together, may 
transport the discharged oil or released hazardous substance to the 
resource.
    (2) The pathway may be determined by either demonstrating the 
presence of the oil or hazardous substance in sufficient concentrations 
in the pathway resource or by using a model that demonstrates that the 
conditions existed in the route and in the oil or hazardous substance 
such that the route served as the pathway.
    (3) To the extent that the information needed to make this 
determination is not available, tests shall be conducted and necessary 
data shall be collected to meet the requirements of this section. 
Methods that may be used to conduct these additional tests and collect 
new information are described in Sec. 11.64 of this part.
    (b) Surface water pathway. (1) When the surface water resource is 
suspected as the pathway or a component of the pathway, the authorized 
official shall determine, using guidance provided in this paragraph, 
whether the surface water resource, either solely or in combination with 
other media, served as the exposure pathway for injury to the resource.
    (2)(i) Using available information and such additional tests as 
necessary, it should be determined whether the surface water resource 
downstream or downcurrent of the source of discharge or release has been 
exposed to the oil or hazardous substance.
    (ii) When the source of discharge or release is on an open water 
body, such

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as a marsh, pond, lake, reservoir, bay, estuary, gulf,or sound, it 
should be determined, using available information and such additional 
tests as necessary, whether the surface water resource in the vicinity 
of the source of discharge or release has been exposed to the oil or 
hazardous substance.
    (3)(i) If a surface water resource is or likely has been exposed, 
the areal extent of the exposed surface water resource should be 
estimated, including delineation of:
    (A) Channels and reaches:
    (B) Seasonal boundaries of open water bodies; and
    (C) Depth of exposed bed, bank, or shoreline sediments.
    (ii) As appropriate to the exposed resource, the following should be 
determined:
    (A) Hydraulic parameters and streamflow characteristics of channels 
and reaches;
    (B) Bed sediment and suspended sediment characteristics, including 
grain size, grain mineralogy, and chemistry of grain surfaces;
    (C) Volume, inflow-outflow rates, degree of stratification, 
bathymetry, and bottom sediment characteristics of surface water bodies;
    (D) Suspended sediment concentrations and loads and bed forms and 
loads of streams and tidally affected waters; and
    (E) Tidal flux, current direction, and current rate in coastal and 
marine waters.
    (4)(i) Using available information and data from additional tests as 
necessary, the mobility of the oil or hazardous substance in the exposed 
surface water resource should be estimated. This estimate should 
consider such physical and chemical characteristics of the oil or 
hazardous substance as aqueous solubility, aqueous miscibility, density, 
volatility, potential for chemical degradation, chemical precipitation, 
biological degradation, biological uptake, and adsorption.
    (ii) Previous studies of the characteristics discussed in paragraph 
(b)(4)(i) of this section should be relied upon if hydraulic, physical, 
and chemical conditions in the exposed surface water resource are 
similar to experimental conditions of the previous studies. In the 
absence of this information, those field and laboratory studies 
necessary to estimate the mobility of the oil or hazardous substance in 
surface water flow may be performed.
    (5)(i) The rate of transport of the oil or hazardous substance in 
surface water should be estimated using available information and with 
consideration of the hydraulic properties of the exposed resource and 
the physical and chemical characteristics of the oil or hazardous 
substance.
    (ii) Transport rates may be estimated using:
    (A) The results of previous time-of-travel and dispersion studies 
made in the exposed surface water resource before the discharge or 
release;
    (B) The results of previous studies, conducted with the same or 
similar chemical substances to those discharged or released under 
experimental conditions similar to the hydraulic, chemical, and 
biological conditions in the exposed surface water resource;
    (C) The results of field measurements of time-of-travel and 
dispersion made in the exposed or comparable surface water resource, 
using natural or artificial substances with transport characteristics 
that reasonably approximate those of the oil or hazardous substance; and
    (D) The results of simulation studies using the results of 
appropriate time-of-travel and dispersion studies in the exposed or 
comparable surface water resource.
    (c) Ground water pathway. (1) When ground water resources are 
suspected as the pathway or a component of the pathway, the authorized 
official shall determine, using guidance provided in this paragraph, 
whether ground water resources, either solely or in combination with 
other media, served as the exposure pathway for injury to the resource.
    (2) Using available information and such additional tests as 
necessary, it should be determined whether the unsaturated zone, the 
ground water, or the geologic materials beneath or downgradient of the 
source of discharge or release have been exposed to the oil or hazardous 
substance.

[[Page 250]]

    (3) If a ground water resource is or likely has been exposed, 
available information and such additional tests should be used as 
necessary to determine the characteristics of the unsaturated zone, as 
well as any aquifers and confining units containing the exposed ground 
water, in the vicinity of the source of discharge or release. The 
characteristics of concern include:
    (i) Local geographical extent of aquifers and confining units;
    (ii) Seasonal depth to saturated zone beneath the site;
    (iii) Direction of ground water flow in aquifers;
    (iv) Local variation in direction of ground water flow resulting 
from seasonal or pumpage effects;
    (v) Elevation of top and bottom of aquifer and confining units;
    (vi) Lithology, mineralogy, and porosity of rocks or sediments 
comprising the unsaturated zone, aquifers, and confining units;
    (vii) Transmissivity and hydraulic conductivity of aquifers and 
confining units; and
    (viii) Nature and amount of hydraulic connection between ground 
water and local surface water resources.
    (4)(i) Using available information and such additional tests as 
necessary, the mobility of the oil or hazardous substance within the 
unsaturated zone and in the exposed ground water resources should be 
estimated. This estimate should consider local recharge rates and such 
physical and chemical characteristics of the oil or hazardous substance 
as aqueous solubility, aqueous miscibility, density, volatility, 
potential for chemical degradation, chemical precipitation, biological 
degradation, biological uptake, and adsorption onto solid phases in the 
unsaturated zone, aquifers, and confining units.
    (ii) Previous studies of the characteristics discussed in paragraph 
(c)(4)(i) of this section should be relied upon if geohydrologic, 
physical, and chemical conditions in the exposed ground water resource 
are similar to experimental conditions of the previous studies. In the 
absence of this information, field and laboratory studies may be 
performed as necessary to estimate the mobility of the oil or hazardous 
substance within the unsaturated zone and in ground water flows.
    (5)(i) The rate of transport of the oil or hazardous substance in 
ground water should be estimated using available information and with 
consideration of the site hydrology, geohydrologic properties of the 
exposed resource, and the physical and chemical characteristics of the 
oil or hazardous substance.
    (ii) Transport rates may be estimated using:
    (A) Results of previous studies conducted with the same or similar 
chemical substance, under experimental geohydrological, physical, and 
chemical conditions similar to the ground water resource exposed to the 
oil or hazardous substance;
    (B) Results of field measurements that allow computation of arrival 
times of the discharged or released substance at downgradient wells, so 
that an empirical transport rate may be derived; or
    (C) Results of simulation studies, including analog or numerical 
modeling of the ground water system.
    (d) Air pathway. (1) When air resources are suspected as the pathway 
or a component of the pathway, the authorized official shall determine, 
using guidance provided in this paragraph, whether the air resources 
either solely or in combination with other media, served as the exposure 
pathway for injury to the resource.
    (2) Using available information, air modeling, and additional field 
sampling and analysis, it should be determined whether air resources 
have been exposed to the discharge of oil or release of a hazardous 
substance.
    (3)(i) If an air resource is or has likely been exposed, available 
information and such additional tests as necessary should be used to 
estimate the areal extent of exposure and the duration and frequency of 
exposure of such areas to emissions from the discharge of oil or release 
of a hazardous substance.
    (ii) The areal extent of exposure is defined as the geographical 
surface area or space where emissions from the source of discharge or 
release are found or otherwise determined to be present for such 
duration and frequency as to

[[Page 251]]

potentially result in injury to resources present within the area or 
space.
    (4) Previous studies of the characteristics discussed in paragraph 
(d)(3)(i) of this section should be relied upon if the conditions in the 
exposed air resource are similar to experimental conditions of the 
previous studies. In the absence of this information, air sampling and 
analysis methods identified in Sec. 11.64(d) of this part, air modeling 
methods, or a combination of these methods may be used in identifying 
the air exposure pathway and in estimating the areal extent of exposure 
and duration and frequency of exposure.
    (5) For estimating the areal extent, duration, and frequency of 
exposure from the discharge or release, the following factors shall be 
considered as may be appropriate for each emissions event:
    (i) The manner and nature in which the discharge or release occurs, 
including the duration of the emissions, amount of the discharge or 
release, and emergency or other time critical factors;
    (ii) The configuration of the emitting source, including sources 
such as ponds, lagoons, pools, puddles, land and water surface spills, 
and venting from containers and vessels;
    (iii) Physical and chemcial properties of substances discharged or 
released, including volatility, toxicity, solubility, and physical 
state;
    (iv) The deposition from the air and re-emission to the air of 
gaseous and particulate emissions that provide periodic transport of the 
emissions; and
    (v) Air transport and dispersion factors, including wind speed and 
direction, and atmospheric stability and temperature.
    (e) Geologic pathway. (1) When geologic resources are suspected as 
the pathway or a component of the pathway, the authorized official shall 
determine, using guidance provided in this paragraph, whether geologic 
resources, either solely or in combination with other media, served as 
the exposure pathway for injury to the resource.
    (2)(i) Using available information and the methods listed in 
Sec. 11.64(e) of this part, it should be determined whether any element 
of the geologic resource has been exposed to the oil or hazardous 
substance. If a geologic resource is or has likely been exposed, the 
areal extent of the exposed geologic resource, including the lateral and 
vertical extent of the dispersion, should be estimated.
    (ii) To determine whether the unsaturated zone served as a pathway, 
the guidance provided in paragraph (c) of this section should be 
followed.
    (f) Biological pathway. (1) When biological resources are suspected 
as the pathway or a component of the pathway, the authorized official 
shall determine, using the guidance provided in this paragraph, whether 
biological resources, either solely or in combination with other media, 
served as the exposure pathway for injury to the resource.
    (2) Biological pathways that resulted from either direct or indirect 
exposure to the oil or hazardous substance, or from exposure to products 
of chemical or biological reactions initiated by the discharge or 
release shall be identified. Direct exposure can result from direct 
physical contact with the discharged oil or released hazardous 
substance. Indirect exposure can result from food chain processes.
    (3) If the oil or hazardous substance adhered to, bound to, or 
otherwise covered surface tissue, or was ingested, or inhaled but not 
assimilated, the area of dispersion may be determined based upon 
chemical analysis of the appropriate tissues or organs (such as leaves, 
lungs, stomach, intestine, or their contents) that were directly exposed 
to the oil or hazardous substance.
    (4) If the oil or hazardous substance was assimilated, the areal 
dispersion may be determined based upon one or more of the following 
alternative procedures:
    (i) If direct exposure to the biological resource has occurred, 
chemical analysis of the organisms that have been exposed may be 
performed.
    (ii) If indirect exposure to the biological resource has occurred, 
either chemical analysis of free-ranging biological resources using one 
or more indicator species as appropriate, or laboratory analysis of one 
or more in situ

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placed indicator species as appropriate may be performed.
    (A) Indicator species, as used in this section, means a species of 
organism selected consistent with the following factors to represent a 
trophic level of a food chain:
    (1) General availability of resident organisms in the assessment 
area;
    (2) Potential for exposure to the oil or hazardous substance through 
ingestion, assimilation, or inhalation;
    (3) Occurrence of the substance in a chemical form that can be 
assimilated by the organism;
    (4) Capacity of the organism to assimilate, bioconcentrate, 
bioaccumulate, and/or biomagnify the substance;
    (5) Capacity of the organism to metabolize the substance to a form 
that cannot be detected through available chemical analytical 
procedures; and
    (6) Extent to which the organism is representative of the food chain 
of concern.
    (B) Collection of the indicator species should be limited to the 
number necessary to define the areal dispersion and to provide 
sufficient sample volume for chemical analysis.
    (C) When in situ procedures are used, indicator species that behave 
comparably to organisms existing under free-ranging conditions shall be 
collected. The indicator species used in this procedure shall be 
obtained either from a control area selected consistent with provisions 
of Sec. 11.72 of this part or obtained from a suitable supply of wild-
strain organisms reared in a laboratory setting. Appropriate chemical 
analysis shall be performed on a representative subsample of the 
indicator species before in situ placement.
    (iii) In situ placement procedures shall be used where the 
collection of samples would be inconsistent with the provisions of 
Sec. 11.17(b) of this part.
    (5) Sampling sites and the number of replicate samples to be 
collected at the sampling sites shall be consistent with the quality 
assurance provisions of the Assessment Plan.
    (6) Chemical analysis of biological resource samples collected for 
the purpose of this section shall be conducted in accordance with the 
quality assurance provisions of the Assessment Plan.



Sec. 11.64  Injury determination phase--testing and sampling methods.

    (a) General. (1) The guidance provided in this section shall be 
followed for selecting methodologies for the Injury Determination phase.
    (2) Before selecting methodologies, the objectives to be achieved by 
testing and sampling shall be defined. These objectives shall be listed 
in the Assessment Plan. In developing these objectives, the availability 
of information from response actions relating to the discharge or 
release, the resource exposed, the characteristics of the oil or 
hazardous substance, potential physical, chemical, or biological 
reactions initiated by the discharge or release, the potential injury, 
the pathway of exposure, and the potential for injury resulting from 
that pathway should be considered.
    (3) When selecting testing and sampling methods, only those 
methodologies shall be selected:
    (i) For which performance under conditions similar to those 
anticipated at the assessment area has been demonstrated;
    (ii) That ensure testing and sampling performance will be cost-
effective;
    (iii) That will produce data that were previously unavailable and 
that are needed to make the determinations; and
    (iv) That will provide data consistent with the data requirements of 
the Quantification phase.
    (4) Specific factors that should be considered when selecting 
testing and sampling methodologies to meet the requirements in paragraph 
(a)(3) of this section include:
    (i) Physical state of the discharged or released substance;
    (ii) The duration, frequency, season, and time of the discharge or 
release;
    (iii) The range of concentrations of chemical compounds to be 
analyzed in different media;
    (iv) Detection limits, accuracy, precision, interferences, and time 
required to perform alternative methods;
    (v) Potential safety hazards to obtain and test samples;
    (vi) Costs of alternative methods; and
    (vii) Specific guidance provided in paragraphs (b), (c), (d), (e), 
and (f) of this section.

[[Page 253]]

    (b) Surface water resources. (1) Testing and sampling for injury to 
surface water resources shall be performed using methodologies described 
in the Assessment Plan.
    (2) Chemical analyses performed to meet the requirements of the 
Injury Determination phase for surface water resources shall be 
conducted in accordance with methods that are generally accepted or have 
been scientifically verified and documented.
    (3) The term ``water sample'' shall denote a volume of water 
collected and preserved to represent the bulk water and any dissolved or 
suspended materials or microorganisms occurring in the surface water 
resource.
    (4) Sampling of water and sediments from surface water resources 
shall be conducted according to generally accepted methods.
    (5) Measurement of the hydrologic properties of the resource shall 
be conducted according to generally accepted methods.
    (6)(i) Interpretation of surface-water flow or estimation of 
transport of oil or hazardous substance in surface water through the use 
of models shall be based on hydrologic literature and current practice.
    (ii) The applicability of models used during the assessment should 
be demonstrated, including citation or description of the following:
    (A) Physical, chemical, and biological processes simulated by the 
model;
    (B) Mathematical or statistical methods used in the model; and
    (C) Model computer code (if any), test cases proving the code works, 
and any alteration of previously documented code made to adapt the model 
to the assessment area.
    (iii) The validity of models used during the assessment should be 
established, including a description of the following:
    (A) Hydraulic geometry, physiographic features, and flow 
characteristics of modeled reaches or areas;
    (B) Sources of hydrological, chemical, biological, and 
meteorological data used in the model;
    (C) Lists or maps of data used to describe initial conditions;
    (D) Time increments or time periods modeled;
    (E) Comparison of predicted fluxes of water and solutes with 
measured fluxes;
    (F) Calibration-verification procedures and results; and
    (G) Types and results of sensitivity analyses made.
    (c) Ground water resources. (1) Testing and sampling for injury to 
ground water resources shall be performed using methodologies described 
in the Assessment Plan.
    (2) Chemical analyses performed to meet the requirements of the 
Injury Determination phase for ground water resources shall be conducted 
in accordance with methods that are generally accepted or have been 
scientifically verified and documented.
    (3)(i) The term ``water sample'' shall denote a volume of water 
collected and preserved to represent the bulk water and any dissolved or 
suspended materials or microorganisms occurring in the ground water 
resource.
    (ii) The source of ground water samples may be from natural springs, 
in seeps, or from wells constructed according to generally accepted 
methods.
    (4) Sampling of ground water or of geologic materials through which 
the ground water migrates shall be conducted according to generally 
accepted methods.
    (5) Measurement of the geohydrologic properties of the resource 
shall be conducted according to generally accepted practice.
    (6) Description of lithologies, minerals, cements, or other 
sedimentary characteristics of the ground water resource should follow 
generally accepted methods.
    (7) Interpretation of the geohydrological setting, including 
identifying geologic layers comprising aquifers and any confining units, 
shall be based on geohydrologic and geologic literature and generally 
accepted practice.
    (8)(i) Interpretation of ground-water flow systems or estimation of 
transport of oil or hazardous substances in ground water through the use 
of models shall be based on geohydrologic literature and current 
practice.

[[Page 254]]

    (ii) The applicability of models used during the assessment should 
be demonstrated, including citation or description of the following.
    (A) Physical, chemical, and biological processes simulated by the 
model;
    (B) Mathematical or statistical methods used in the model; and
    (C) Model computer code (if any), test cases proving the code works, 
and any alteration of previously documented code made to adapt the model 
to the assessment area.
    (iii) The validity of models used during the assessment should be 
established, including a description of the following:
    (A) Model boundary conditions and stresses simulated;
    (B) How the model approximates the geohydrological framework of the 
assessment area;
    (C) Grid size and geometry;
    (D) Sources of geohydrological, chemical, and biological data used 
in the model;
    (E) Lists or maps of data used to describe initial conditions;
    (F) Time increments or time periods modeled;
    (G) Comparison of predicted fluxes of water and solutes with 
measured fluxes;
    (H) Calibration-verification procedures and results; and
    (I) Type and results of sensitivity analyses made.
    (d) Air resources. (1) Testing and sampling for injury to air 
resources shall be performed using methodologies that meet the selection 
and documentation requirements in this paragraph. Methods identified in 
this section and methods meeting the selection requirements identified 
in this section shall be used to detect, identify, and determine the 
presence and source of emissions of oil or a hazardous substance, and 
the duration, frequency, period of exposure (day, night, seasonal, 
etc.), and levels of exposure.
    (2) The sampling and analysis methods identified in this paragraph 
are the primary methods to be used for determining injury to the air 
resource. Air modeling methods may be used for injury determination only 
when air sampling and analysis methods are not available or the 
discharge or release occurred with no opportunity to monitor or sample 
the emissions.
    (3)(i) Methods developed, evaluated, approved, and published by the 
U.S. Environmental Protection Agency may be used for sampling and 
analysis to determine injury to the air resource.
    (ii) Methods selected for air sampling and analysis may include 
those methods that have been formally reviewed, evaluated, and published 
by the following government and professional organizations: the National 
Institute for Occupational Safety and Health, the American Society for 
Testing and Materials, and the American Public Health Association.
    (iii) Methods selected for air sampling and analysis shall be 
methods that are documented for each of the following:
    (A) The range of field conditions for which the methods are 
applicable;
    (B) Quality assurance and quality control requirements necessary to 
achieve the data quality the methods are capable of producing;
    (C) Operational costs of conducting the methods; and
    (D) Time required to conduct the methods.
    (iv) The determination of concentrations in excess of emission 
standards for hazardous air pollutants established under section 112 of 
the Clean Air Act, 42 U.S.C. 7412, shall be conducted in accordance with 
the primary methods or alternative methods as required in ``National 
Emission Standards for Hazardous Air Pollutants: Source Test and 
Analytical Methods,'' 40 CFR 61.14, and as may be applicable to the 
determination of injury to air resources.
    (4) In selecting methods for testing and sampling for injury to air 
resources, the following performance factors of the sampling and 
analysis methods and the influencing characteristics of the assessment 
area and the general vicinity shall be considered:
    (i) Method detection limits, accuracy, precision, specificity, 
interferences, and analysis of time and cost;
    (ii) Sampling area locations and frequency, duration of sampling, 
and chemical stability of emissions; and
    (iii) Meteorological parameters that influence the transport of 
emissions

[[Page 255]]

and the spatial and temporal variation in concentration.
    (e) Geologic resources. (1) Testing and sampling for injury to 
geologic resources shall be performed using methodologies described in 
this paragraph.
    (2) Testing pH level in soils shall be performed using standard pH 
measurement techniques, taking into account the nature and type of 
organic and inorganic constituents that contribute to soil acidity; the 
soil/solution ratio; salt or electrolytic content; the carbon dioxide 
content; and errors associated with equipment standardization and liquid 
junction potentials.
    (3) Salinity shall be tested by measuring the electrical 
conductivity of the saturation extraction of the soil.
    (4) Soil microbial respiration shall be tested by measuring uptake 
of oxygen or release of carbon dioxide by bacterial, fungal, algal, and 
protozoan cells in the soil. These tests may be made in the laboratory 
or in situ.
    (5) Microbial populations shall be tested using microscopic 
counting, soil fumigation, glucose response, or adenylate enegry charge.
    (6) Phytotoxicity shall be tested by conducting tests of seed 
germination, seedling growth, root elongation, plant uptake, or soil-
core microcosms.
    (7) Injury to mineral resources shall be determined by describing 
restrictions on access, development, or use of the resource as a result 
of the oil or hazardous substance. Any appropriate health and safety 
considerations that led to the restrictions should be documented.
    (f) Biological resources. (1) Testing and sampling for injury to 
biological resources shall be performed using methodologies provided for 
in this paragraph.
    (2)(i) Testing may be performed for biological responses that have 
satisfied the acceptance criteria of Sec. 11.62(f)(2) of this part.
    (ii) Testing methodologies that have been documented and are 
applicable to the biological response being tested may be used.
    (3) Injury to biological resources, as such injury is defined in 
Sec. 11.62(f)(1)(ii) of this part, may be determined by using methods 
acceptable to or used by the Food and Drug Administration or the 
appropriate State health agency in determining the levels defined in 
that paragraph.



Sec. 11.70  Quantification phase--general.

    (a) Requirement. (1) Upon completing the Injury Determination phase, 
the authorized official shall quantify for each resource determined to 
be injured and for which damages will be sought, the effect of the 
discharge or release in terms of the reduction from the baseline 
condition in the quantity and quality of services, as the phrase is used 
in this part, provided by the injured resource using the guidance 
provided in the Quantification phase of this part.
    (2) The Quantification phase consists of Sec. 11.70--general; 
Sec. 11.71--service reduction quantification; Sec. 11.72--baseline 
services determination; and Sec. 11.73--resource recoverability 
analysis, of this part.
    (b) Purpose. The purpose of the Quantification phase is to quantify 
the effects of the discharge or release on the injured natural resources 
for use in determining the appropriate amount of compensation.
    (c) Steps in the Quantification phase. In the Quantification phase, 
the extent of the injury shall be measured, the baseline condition of 
the injured resource shall be estimated, the baseline services shall be 
identified, the recoverability of the injured resource shall be 
determined, and the reduction in services that resulted from the 
discharge or release shall be estimated.
    (d) Completion of Quantification phase. Upon completing the 
Quantification phase, the authorized official shall make a determination 
as to the reduction in services that resulted from the discharge or 
release. This Quantification Determination shall be used in the Damage 
Determination phase and shall be maintained as part of the Report of 
Assessment described in Sec. 11.90 of this part.



Sec. 11.71  Quantification phase--service reduction quantification.

    (a) Requirements. (1) The authorized official shall quantify the 
effects of a discharge of oil or release of a hazardous substance by 
determining the

[[Page 256]]

extent to which natural resource services have been reduced as a result 
of the injuries determined in the Injury Determination phase of the 
assessment.
    (2) This determination of the reduction in services will be used in 
the Damage Determination phase of the assessment.
    (3) Quantification will be done only for resources for which damages 
will be sought.
    (b) Steps. Except as provided in Sec. 11.71(f) of this part, the 
following steps are necessary to quantify the effects:
    (1) Measure the extent to which the injury demonstrated in the 
Injury Determination phase has occurred in the assessment area;
    (2) Measure the extent to which the injured resource differs from 
baseline conditions, as described in Sec. 11.72 of this part, to 
determine the change attributable to the discharge or release;
    (3) Determine the services normally produced by the injured 
resource, which are considered the baseline services or the without-a-
discharge-or-release condition as described in Sec. 11.72 of this part;
    (4) Identify interdependent services to avoid double counting in the 
Damage Determination phase and to discover significant secondary 
services that may have been disrupted by the injury; and
    (5) Measure the disruption of services resulting from the discharge 
or release, which is considered the change in services or the with-a-
discharge-or-release condition.
    (c) Contents of the quantification. The following factors should be 
included in the quantification of the effects of the discharge or 
release on the injured resource:
    (1) Total area, volume, or numbers affected of the resource in 
question;
    (2) Degree to which the resource is affected, including 
consideration of subunits or subareas of the resource, as appropriate;
    (3) Ability of the resource to recover, expressed as the time 
required for restoration of baseline services as described in Sec. 11.73 
of this part;
    (4) Proportion of the available resource affected in the area;
    (5) Services normally provided by the resource that have been 
reduced as a result of the discharge or release; and
    (6) Factors identified in the specific guidance in paragraphs (h), 
(i), (j), (k), and (l) of this section dealing with the different kinds 
of natural resources.
    (d) Selection of resources, services, and methodologies. Specific 
resources or services to quantify and the methodology for doing so 
should be selected based upon the following factors:
    (1) Degree to which a particular resource or service is affected by 
the discharge or release;
    (2) Degree to which a given resource or service can be used to 
represent a broad range of related resources or services;
    (3) Consistency of the measurement with the requirements of the 
economic methodology to be used;
    (4) Technical feasibility, as that phrase is used in this part, of 
quantifying changes in a given resource or service at reasonable cost; 
and
    (5) Preliminary estimates of services at the assessment area and 
control area based on resource inventory techniques.
    (e) Services. In quantifying changes in natural resource services, 
the functions provided in the cases of both with- and without-a-
discharge-or-release shall be compared. For the purposes of this part, 
services include provision of habitat, food and other needs of 
biological resources, recreation, other products or services used by 
humans, flood control, ground water recharge, waste assimilation, and 
other such functions that may be provided by natural resources.
    (f) Direct quantification of services. The effects of a discharge or 
release on a resource may be quantified by directly measuring changes in 
services provided by vhe resource, instead of quantifying the changes in 
the resource itself, when it is determined that all of the following 
conditions are met:
    (1) The change in the services from baseline can be demonstrated to 
have resulted from the injury to the natural resource;
    (2) The extent of change in the services resulting from the injury 
can be measured without also calculating the extent of change in the 
resource; and

[[Page 257]]

    (3) The services to be measured are anticipated to provide a better 
indication of damages caused by the injury than would direct 
quantification of the injury itself.
    (g) Statutory exclusions. In quantifying the effects of the injury, 
the following statutory exclusions shall be considered, as provided in 
sections 107 (f), (i), and (j) and 114(c) of CERCLA, that exclude 
compensation for damages to natural resources that were a result of:
    (1) An irreversible and irretrievable commitment of natural 
resources identified in an environmental impact statement or other 
comparable environmental analysis, and the decision to grant the permit 
or license authorizes such a commitment, and the facility was otherwise 
operating within the terms of its permit or license, so long as, in the 
case of damages to an Indian tribe occurring pursuant to a Federal 
permit or license, the issuance of that license or permit was not 
inconsistent with the fiduciary duty of the United States with respect 
to such Indian tribe; or
    (2) The damages and the release of a hazardous substance from which 
such damages resulted have occurred wholly before the enactment of 
CERCLA; or
    (3) The application of a pesticide product registered under the 
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. 135-135k; 
or
    (4) Any other federally permitted release, as defined in secton 
101(10) of CERCLA; or
    (5) Resulting from the release or threatened release of recycled oil 
from a service station dealer as described in section 107(a) (3) or (4) 
of CERCLA if such recycled oil is not mixed with any other hazardous 
substance and is stored, treated, transported or otherwise managed in 
compliance with regulations or standards promulgated pursuant to section 
3014 of the Solid Waste Disposal Act and other applicable authorities.
    (h) Surface water resources. (1) The area where the injured surface 
water resource differs from baseline shall be determined by determining 
the areal extent of oil or hazardous substances in the water or on the 
sediments.
    (2)(i) Areal variation in concentrations of the discharged or 
released substances dissolved in or floating on water, adhering to 
suspended sediments, or adhering to bed, bank, or shoreline sediments 
from exposed areas should be determined in sufficient detail to 
approximately map the boundary separating areas with concentrations 
above baseline from areas with concentrations equal to or less than 
baseline.
    (ii) The size, shape, and location of the plume may be estimated 
using time of travel and dispersion data obtained under Sec. 11.63 of 
this part, since plumes of dissolved or floating substances may be 
rapidly transported and dispersed in surface water.
    (3) Water and sediment samples may be collected and chemically 
analyzed and stage, water discharge, or tidal flux measurements made, as 
appropriate, to collect new data required by this section.
    (4)(i) Within the area determined in paragraph (h)(2) of this 
section to be above baseline, the services provided by the surface water 
or sediments that are affected should be determined. This determination 
may include computation of volumes of water or sediments affected, total 
areas of water or sediment affected, volume of water used from the 
affected surface water resource, or other appropriate measures.
    (ii) The services should be determined with consideration of 
potential effects on downstream or downcurrent resources during the 
recovery period, as determined in Sec. 11.73 of this part, resulting 
from transport of dissolved substances and of substances adhering to 
sediments.
    (i) Ground water resources. (1) The area where the injured ground 
water resource differs from baseline should be determined by determining 
the areal extent of oil or hazardous substances in water or geologic 
materials in the unsaturated zone and identified geohydrological units, 
which are aquifers or confining layers, within the assessment area.
    (2)(i) The lateral and vertical extent of discharged or released 
substances in the unsaturated zone, if it is known to be exposed, should 
be determined.

[[Page 258]]

    (ii) The lateral and vertical extent of plumes within geohydrologic 
units known to be exposed should be determined. Concentrations of 
substances within and adjacent to each plume should be determined in 
sufficient detail to approximately locate the boundary separating areas 
with concentrations above baseline from areas with concentrations equal 
to or less than baseline.
    (3) Water or geologic materials may be sampled and chemically 
analyzed, or surface-geophysical techniques may be used for collecting 
new data required by this section. General verification of the plume 
boundaries by chemical analysis of selected water samples should be done 
if boundary locations are initially determined by surface-geophysical 
measurements.
    (4)(i) Within the area determined in paragraph (i)(2)(ii) of this 
section to be above baseline, the services provided by the ground water 
that is affected should be determined. This determination may include 
computation of the volume of water affected, volume of affected ground 
water pumped from wells, volume of affected ground water discharged to 
streams or lakes, or other appropriate measures.
    (ii) The services should be determined with consideration of 
potential enlargement of the plume during the recovery period, as 
determined in Sec. 11.73 of this part, resulting from ground water 
transport of the substances.
    (iii) The effects on the ground water resource during the recovery 
period resulting from potential remobilization of discharged or released 
substances that may be adhering, coating, or otherwise bonding to 
geologic materials should be considered.
    (j) Air resources. The area where the injured air resource differs 
from baseline should be determined by determining the geographical area 
affected, the degree of impairment of services, and the period of time 
impairment occurred.
    (k) Geologic resources. The area where the injured geologic resource 
differs from baseline should be determined by determining:
    (1) The surface area of soil with reduced ability to sustain the 
growth of vegetation from the baseline level;
    (2) The surface area or volume of soil with reduced suitability as 
habitat for biota from the baseline level;
    (3) The volume of geologic resources that may act as a source of 
toxic leachate;
    (4) The tonnage of mineral resources whose access, development, or 
use is restricted as a result of the discharge or release.
    (l) Biological resources. (1) The extent to which the injured 
biological resource differs from baseline should be determined by 
analysis of the population or the habitat or ecosystem levels. Although 
it may be necessary to measure populations to determine changes in the 
habitats or ecosystems, and vice versa, the final result should be 
expressed as either a population change or a habitat or ecosystem change 
in order to prevent double counting in the economic analysis. This 
separation may be ignored only for resources that do not interact 
significantly and where it can be demonstrated that double counting is 
being avoided.
    (2) Analysis of population changes or habitat or ecosystem changes 
should be based upon species, habitats, or ecosystems that have been 
selected from one or more of the following categories:
    (i) Species or habitats that can represent broad components of the 
ecosystem, either as representatives of a particular ecological type, of 
a particular food chain, or of a particular service;
    (ii) Species, habitats, or ecosystems that are especially sensitive 
to the oil or hazardous substance and the recovery of which will provide 
a useful indicator of successful restoration; or
    (iii) Species, habitats, or ecosystems that provide especially 
significant services.
    (3) Analysis of populations, habitats, or ecosystems shall be 
limited to those populations, habitats, or ecosystems for which injury 
has been determined in the Injury Determination phase or those that can 
be linked directly through services to resources for which injury has 
been so determined. Documentation of the service link to the injured 
resource must be provided in the latter case.

[[Page 259]]

    (4) Population, habitat, or ecosystem measurement methods that 
provide data that can be interpreted in terms of services must be 
selected. To meet this requirement, a method should:
    (i) Provide numerical data that will allow comparison between the 
assessment area data and the control area or baseline data;
    (ii) Provide data that will be useful in planning efforts for 
restoration, rehabilitation, replacement, and/or acquisition of 
equivalent resources, and in later measuring the success of those 
efforts, and, where relevant, will allow calculation of compensable 
value; and
    (iii) Allow correction, as applicable, for factors such as dispersal 
of organisms in or out of the assessment area, differential 
susceptibility of different age classes of organisms to the analysis 
methods and other potential systematic biases in the data collection.
    (5) When estimating population differences of animals, standard and 
widely accepted techniques, such as census, mark-recapture, density, and 
index methods, and other estimation techniques appropriate to the 
species and habitat shall be used. Frequencies of injury observed in the 
population shall be measured as applicable.
    (i) In general, methods used for estimates of wildlife populations 
should follow standard and widely accepted techniques such as those 
recommendations provided in the ``Wildlife Management Techniques 
Manual'' (4th edition, Wildlife Society, 1980, available from the 
Wildlife Society, 5410 Grosvenor Lane, Bethesda, MD 20814), including 
references cited and recommended in that manual. The specific technique 
used need not be cited in that manual, but should meet its 
recommendations for producing reliable estimates or indices.
    (ii) Measurement of age structures, life table statistics, or age 
structure models generally will not provide satisfactory measurement of 
changes due to a discharge of oil or release of a hazardous substance 
unless there is clear evidence that the oil or hazardous substance has 
differentially affected different age classes and there are reliable 
baseline age structure data available for the population being assessed.
    (iii) Mortality from single incidents may be used to estimate 
changes in populations only when there are available baseline population 
data for the area, so that the proportion lost can be estimated, and 
when corrections can be made for potential sampling biases, such as 
natural mortality and factors influencing distribution of carcasses and 
ability of investigators to find them. Specific techniques for measuring 
mortality include the following:
    (A) Fish mortality in freshwater areas may be estimated from counts 
of carcasses, using methods and guidelines for estimating numbers of 
fish killed contained in Part II (Fish-Kill Counting Guidelines) of the 
``Monetary Values of Freshwater Fish and Fish-Kill Counting Guidlines,'' 
American Fisheries Society Special Publication Number 13, 1982 
(incorporation by reference, see Sec. 11.18), including use of 
appropriate random sampling methods and tagged carcasses as identified 
and discussed in Part II of that publication.
    (B) The authorized official may adapt the techniques discussed in 
paragraph (l) (5) (iii) (A) of this section for counting dead aquatic 
birds or for counting marine or estuarine fish or birds. Such adaptation 
will require the documentation of the methods used to avoid sampling 
biases.
    (C) Fish mortality may also be estimated by use of an in situ 
bioassay technique that is similar to that identified in 
Sec. 11.62(f)(4)(i)(C) of this part, if the oil or hazardous substance 
is still present at levels that resulted in injury and if appropriate 
instream controls can be maintained at control areas.
    (6) Plant populations may be measured using standard techniques, 
such as population density, species composition, diversity, dispersion, 
and cover,
    (7) Forest and range resources may be estimated by standard forestry 
and range management evaluation techniques.
    (8) Habitat quality may be measured using techniques such as the 
Habitat Evaluation Procedures (HEP) developed and used by the U.S. Fish 
and Wildlife Service.

[51 FR 27725, Aug. 1, 1986, as amended at 53 FR 5175, Feb. 22, 1988; 59 
FR 14283, Mar. 25, 1994]

[[Page 260]]



Sec. 11.72  Quantification phase--baseline services determination.

    (a) Requirements. The authorized official shall determine the 
physical, chemical, and biological baseline conditions and the 
associated baseline services for injured resources at the assessment 
area to compare that baseline with conditions found in Sec. 11.71 of 
this part.
    (b) General guidelines. Baseline data shall be selected according to 
the following general guidelines:
    (1) Baseline data should reflect conditions that would have been 
expected at the assessment area had the discharge of oil or release of 
hazardous substances not occurred, taking into account both natural 
processes and those that are the result of human activities.
    (2) Baseline data should include the normal range of physical, 
chemical, or biological conditions for the assessment area or injured 
resource, as appropriate for use in the analysis in Sec. 11.71 of this 
part, with statistical descriptions of that variability. Causes of 
extreme or unusual value in baseline data should be identified and 
described.
    (3) Baseline data should be as accurate, precise, complete, and 
representative of the resource as the data used or obtained in 
Sec. 11.71 of this part. Data used for both the baseline and services 
reduction determinations must be collected by comparable methods. When 
the same method is not used, comparability of the data collection 
methods must be demonstrated.
    (4) Baseline data collection shall be restricted to those data 
necessary for conducting the assessment at a reasonable cost. In 
particular, data collected should focus on parameters that are directly 
related to the injuries quantified in Sec. 11.71 of this part and to 
data appropriate and necessary for the Damage Determination phase.
    (5) The authorized official may use or authorize for use baseline 
data that are not expected to represent fully the baseline conditions, 
subject to the following requirements:
    (i) The authorized official shall document how the requirements of 
this paragraph are met:
    (ii) These substitute baseline data shall not cause the difference 
between baseline and the conditions in the assessment area to exceed the 
difference that would be expected if the baseline were completely 
measured; and
    (iii) The authorized official has determined that it is either not 
technically feasible or not cost-effective, as those phrases are used in 
this part, to measure the baseline conditions fully and that these 
baseline data are as close to the actual baseline conditions as can be 
obtained subject to these limitations.
    (c) Historical data. If available and applicable, historical data 
for the assessment area or injured resource should be used to establish 
the baseline. If a significant length of time has elapsed since the 
discharge or release first occurred, adjustments should be made to 
historical data to account for changes that have occurred as a result of 
causes other than the discharge or release. In addition to specialized 
sources identified in paragraphs (g) through (k) of this section, one or 
more of the following general sources of historical baseline data may be 
used:
    (1) Environmental Impact Statements or Environmental Assessments 
previously prepared for purposes of the National Environmental Policy 
Act (NEPA), 42 U.S.C. 4321-4361, similar documents prepared under other 
Federal and State laws, and background studies done for any of these 
documents;
    (2) Standard scientific and management literature sources 
appropriate to the resource;
    (3) Computerized data bases for the resource in question;
    (4) Public or private landholders in the assessment area or in 
neighboring areas;
    (5) Studies conducted or sponsored by natural resource trustees for 
the resource in question;
    (6) Federally sponsored research identified by the National 
Technical Information Service;
    (7) Studies carried out by educational institutions; and
    (8) Other similar sources of data.
    (d) Control areas. Where historical data are not available for the 
assessment area or injured resource, or do not meet the requirements of 
this section, baseline data should be collected from control areas. 
Historical data for

[[Page 261]]

a control area should be used if available and if they meet the 
guidelines of this section. Otherwise, the baseline shall be defined by 
field data from the control area. Control areas shall be selected 
according to the following guidelines, and both field and historical 
data for those areas should also conform to these guidelines:
    (1) One or more control areas shall be selected based upon their 
similarity to the assessment area and lack of exposure to the discharge 
or release;
    (2) Where the discharge or release occurs in a medium flowing in a 
single direction, such as a river or stream, at least one control area 
upstream or upcurrent of the assessment area shall be included, unless 
local conditions indicate such an area is inapplicable as a control 
area;
    (3) The comparability of each control area to the assessment area 
shall be demonstrated, to the extent technically feasible, as that 
phrase is used in this part;
    (4) Data shall be collected from the control area over a period 
sufficient to estimate normal variability in the characteristics being 
measured and should represent at least one full cycle normally expected 
in that resource;
    (5) Methods used to collect data at the control area shall be 
comparable to those used at the assessment area, and shall be subject to 
the quality assurance provisions of the Assessment Plan;
    (6) Data collected at the control area should be compared to values 
reported in the scientific or management literature for similar 
resources to demonstrate that the data represent a normal range of 
conditions; and
    (7) A control area may be used for determining the baseline for more 
than one kind of resource, if sampling and data collection for each 
resource do not interfere with sampling and data collection for the 
other resources.
    (e) Baseline services. The baseline services associated with the 
physical, chemical, or biological baseline data shall be determined.
    (f) Other requirements. The methodologies in paragraphs (g) through 
(k) of this section shall be used for determining baseline conditions 
for specific resources in addition to following the general guidelines 
identified in paragraphs (a) through (e) of this section. If a 
particular resource is not being assessed for the purpose of the Damage 
Determination phase, and data on that resource are not needed for the 
assessment of other resources, baseline data for the resource shall not 
be collected.
    (g) Surface water resources. (1) This paragraph provides additional 
guidance on determining baseline services for surface water resources. 
The general guidance provided in paragraphs (a) through (f) of this 
section should be followed before beginning any work described in this 
paragraph.
    (2) Applicable and available historical data shall be gathered to 
determine baseline conditions for the surface water resource at the 
assessment area. If deemed inadequate for determining baseline 
conditions, such data shall be used to the extent technically feasible, 
as that phrase is used in this part, in designating the control areas 
described in paragraph (g)(3) of this section for the surface water 
resource determined to be injured.
    (3) Control areas shall be selected for the surface water resource 
subject to the general criteria in paragraph (d) of this section and 
additional criteria as follows:
    (i) For each injured stream or river reach, a control area shall be 
designated consisting of a stream or river reach of similar size, that 
is as near to the assessment area as practical and, if practical, that 
is upstream or upcurrent from the injured resource, such that the 
channel characteristics, sediment characteristics, and streamflow 
characteristics are similar to the injured resource and the water and 
sediments of the control area, because of location, have not been 
exposed to the discharge or release.
    (ii) For each injured standing water body, such as a marsh, pond, 
lake, bay, or estuary, a control area shall be designated consisting of 
a standing water body of similar size that is as near to the assessment 
area as practical, such that the sediment characteristics and inflow-
outflow characteristics of the control area are similar to the injured 
resource and the water and sediments of the control area, because of 
location,

[[Page 262]]

have not been exposed to the discharge or release.
    (4)(i) Within the control area locations shall be designated for 
obtaining samples of water and sediments.
    (ii) The water discharge, stage, or tidal flux shall be measured and 
representative water and sediments collected as follows:
    (A) Measure stage, water discharge, and tidal flux as appropriate at 
the same time that water and sediment samples are collected; and
    (B) Obtain comparable samples and measurements at both the control 
and assessment areas under similar hydraulic conditions.
    (iii) Measurement and samples shall be obtained as described in this 
paragraph in numbers sufficient to determine:
    (A) The approximate range of concentration of the substances in 
water and sediments;
    (B) The variability of concentration of the substances in water and 
sediments during different conditions of stage, water discharge, or 
tidal flux; and
    (C) The variability of physical and chemical conditions during 
different conditions of stage, water discharge, or tidal flux relating 
to the transport or storage of the substances in water and sediments.
    (5) Samples should be analyzed from the control area to determine 
the physical properties of the water and sediments, suspended sediment 
concentrations in the water, and concentrations of oil or hazardous 
substances in water or in the sediments. Additional chemical, physical, 
or biological tests may be made, if necessary, to obtain otherwise 
unavailable data for the characteristics of the resource and comparison 
with the injured resource at the assessment area.
    (6) In order to establish that differences between surface water 
conditions of the control and assessment areas are statistically 
significant, the median and interquartile range of the available data or 
the test results should be compared using the Mann-Whitney and ranked 
squares tests, respectively.
    (7) Additional tests may be made of samples from the control area, 
if necessary, to provide otherwise unavailable information about 
physical, chemical, or biochemical processes occurring in the water or 
sediments relating to the ability of the injured surface water resource 
to recover naturally.
    (h) Ground water resources. (1) This paragraph provides additional 
guidance on determining baseline services for ground water resources. 
The general guidance provided in paragraphs (a) through (f) of this 
section should be followed before beginning any work described in this 
paragraph.
    (2) Applicable and available historical data shall be gathered to 
determine baseline conditions for the ground water resource at the 
assessment area. If deemed inadequate for determining baseline 
conditions, such data shall be used to the extent technically feasible, 
as that phrase is used in this part, in designating the control areas 
described in paragraph (h)(3) of this section for the ground water 
resource determined to be injured.
    (3) A control area shall be designated subject to the general 
criteria in paragraph (d) of this section and as near to the assessment 
area as practical, such that, within the control area, geological 
materials, geohydrological units, and hydrologic conditions are similar 
to the assessment area, and ground water resources are not exposed to 
substances from the discharge or release.
    (4) Within the control area, wells shall be identified or drilled, 
designated as control wells, to obtain representative ground water 
samples for analysis. The location, depth, and number of control wells 
and the number of ground water samples collected should be sufficient to 
estimate the vertical and lateral variation in concentration of the 
substances in both the unsaturated zone and in ground water from 
geohydrologic units similar to units tested in the assessment area.
    (i) Representative water samples from each control well shall be 
collected and analyzed. The analyses should determine the physical and 
chemical properties of the ground water relating to the occurrence of 
oil or hazardous substances.
    (ii) If the oil or hazardous substances are commonly more 
concentrated on geologic materials than in ground

[[Page 263]]

water, representative samples of geologic materials from aquifers and 
the unsaturated zone as appropriate should be obtained and chemically 
analyzed. The location, depth, and number of these samples should be 
sufficient to determine the vertical and lateral variation in 
concentration of the oil or hazardous substances absorbing or otherwise 
coating geologic materials in the control area. These samples may also 
be analyzed to determine porosity, mineralogy, and lithology of geologic 
materials if these tests will provide otherwise unavailable information 
on storage or mobility of the oil or hazardous substances in the ground 
water resource.
    (5) In order to establish that differences between ground water 
conditions of the control and assessment areas are statistically 
significant, the median and interquartile range of available data or the 
test results from similar geohydrologic units should be compared using 
the Mann-Whitney and ranked squares test, respectively.
    (6) Additional tests may be made of samples from the control area, 
if necessary, to provide otherwise unavailable information about 
chemical, geochemical, or biological processes occurring in the ground 
relating to the ability of the injured ground water resource to recover 
naturally.
    (i) Air resources. (1) This paragraph provides additional guidance 
on determining baseline services for air resources. The general guidance 
provided in paragraphs (a) through (f) of this section should be 
followed before beginning any work described in this paragraph.
    (2) Applicable and available historical data shall be gathered on 
ambient air quality and source emissions to determine baseline 
conditions for the air resource. These historical data may be used to 
determine baseline conditions if the data satisfy the general guidelines 
in paragraph (d) of this section and if all the following criteria are 
met:
    (i) The methodology used to obtain these historical data would 
detect the oil or hazardous substance at levels appropriate for 
comparison to the concentrations measured in Sec. 11.71 of this part;
    (ii) The effect of known or likely emission sources near the 
assessment area other than the source of the discharge or release can be 
identified or accounted for in the historical data; and
    (iii) The historical data show that normal concentrations of the oil 
or hazardous substance are sufficiently predictable that changes as a 
result of the discharge or release are likely to be detectable.
    (3) If historical data appropriate to determine baseline conditions 
at the assessment area are lacking, one or more control areas, as 
needed, shall be designated subject to the general criteria of paragraph 
(d) of this section and the following additional factors, which shall 
also be considered in establishing a monitoring schedule;
    (i) Applicable and available historical data shall be used to the 
extent technically feasible, as that phrase is used in this part, in 
designating control areas or, lacking historical data, the factors in 
paragraph (i)(3)(iii) of this section shall be considered;
    (ii) Control areas shall be spatially representative of the range of 
air quality and meteorological conditions likely to have occurred at the 
assessment area during the discharge or release into the atmosphere; and
    (iii) The following additional factors shall be considered:
    (A) The nature of the discharge or release and of potential 
alternative sources of the oil or hazardous substance, including such 
factors as existing sources, new sources, intermittent sources, mobile 
sources, exceptional events, trends, cycles, and the nature of the 
material discharged or released;
    (B) Environmental conditions affecting transport, such as wind speed 
and direction, atmospheric stability, temperature, humidity, solar 
radiation intensity, and cloud cover; and
    (C) Other factors, such as timing of the discharge or release, use 
patterns of the affected area, and the nature of the injury resulting 
from the discharge or release.
    (4)(i) The preferred measurement method is to measure air 
concentrations of the oil or hazardous substance directly using the same 
methodology employed in Sec. 11.71 of this part.

[[Page 264]]

    (ii) Nonspecific or chemical compound class methodologies may be 
used to determine baseline generically only in situations where it can 
be demonstrated that measuring indicator substances will adequately 
represent air concentrations of other components in a complex mixture.
    (j) Geologic resources. (1) This paragraph provides additional 
guidance on determining baseline services for geologic resources. The 
general guidance provided in paragraphs (a) through (f) of this section 
should be followed before beginning any work described in this 
paragraph.
    (2) Applicable and available historical data shall be gathered to 
determine baseline conditions for the geologic resource at the 
assessment area. If deemed inadequate for determining baseline 
conditions, such data shall be used to the extent technically feasible, 
as that phrase is used in this part, in designating the control areas 
described in paragraph (j)(3) of this section for the geologic resource 
determined to be injured.
    (3) Control areas shall be selected for geologic resources subject 
to the general criteria in paragraph (d) of this section and additional 
criteria as follows:
    (i) Similarity of exposed soil or geologic material in the 
assessment area with the geologic resource in the control area should be 
the primary factor in selecting the control area. Other factors, 
including climate, depth of ground water, vegetation type and area 
covered, land slope and land area, and hydraulic gradients and spatial 
relation to source should be comparable to the assessment area.
    (ii) The control area shall be selected such that the geologic 
resource in the control area is not exposed to the discharge or release.
    (4)(i) A sufficient number of samples from unbiased, randomly 
selected locations in the control area shall be obtained in order to 
characterize the areal variability of the parameters measured. Each 
sample should be analyzed to determine the physical and chemical 
properties of the geologic materials relating to the occurrence of the 
oil or hazardous substance. Additional chemical, physical, or biological 
tests may be made, if necessary, to obtain otherwise unavailable data 
for the characterization and comparison with the injured resource at the 
assessment area.
    (ii) The mean and standard deviation of each parameter measured 
shall be used as the basis of comparison between the assessment and 
control areas.
    (k) Biological resources. (1) This paragraph provides additional 
guidance on determining baseline services for biological resources. The 
general guidance provided in paragraphs (a) through (f) of this section 
should be followed before beginning any work described in this 
paragraph.
    (2) Applicable and available historical data shall be gathered to 
determine baseline conditions for the biological resource at the 
assessment area and should include both population and habitat data if 
available. These data may be derived from the data sources identified in 
paragraph (c) of this section, as well as from the following:
    (i) Aerial photographs or maps showing distribution and extent of 
habitat types or other biological resources before the discharge or 
release;
    (ii) Biological specimens in systematic museum or herbarium 
collections and associated records, including labels and collectors' 
field notes; and
    (iii) Photographs showing the nature of the habitat before the 
discharge or release when the location and date are well documented.
    (3)(i) Control areas shall be selected for biological resources 
subject to the general criteria in paragraph (d) of this section and 
additional criteria as follows:
    (A) The control area shall be comparable to the habitat or ecosystem 
at the assessment area in terms of distribution, type, species 
composition, plant cover, vegetative types, quantity, and relationship 
to other habitats;
    (B) Physical characteristics of the control and assessment areas 
shall be similar; and
    (C) If more than one habitat or ecosystem type is to be assessed, 
comparable control areas should be established for each, or a control 
area should be selected containing those

[[Page 265]]

habitat types in a comparable distribution.
    (ii) To the extent they are available, historical data should be 
gathered and used for the control area. Lacking adequate historical data 
for both the control and assessment areas, the control areas shall be 
used for the following purposes, as appropriate to the quantification:
    (A) To measure baseline biota population levels or habitat or 
ecosystem quality, as discussed in Sec. 11.71(l) of this part; and
    (B) To measure the natural frequency, if any, of the injury being 
assessed in unaffected populations or to demonstrate the lack of that 
injury in unaffected populations if these have not been done for 
purposes of the Injury Determination, and if needed for purposes of the 
Quantification.
    (4) In addition, a control area should be used to collect control 
specimens, as needed, for the Injury Determination procedures.
    (5) The identity of species for which Damage Determinations will be 
made or that play an important role in the assessment shall be confirmed 
except in the case where collecting the specimens of a species is likely 
to compromise the restoration of the species. One or more of the 
following methods shall be used:
    (i) Specimens of the species shall be provided to an independent 
taxonomist or systematic biologist, who has access to a major systematic 
biology collection for that taxon, and who shall provide written 
confirmation of their identity to the species level;
    (ii) A reference collection of specimens of the species, prepared 
and preserved in a way standard for systematic collections for that 
taxon, shall be maintained at least through final resolution of the 
damage action at which time it should be transferred to a major 
systematic biology collection; or
    (iii) In the case of a species where collecting specimens is likely 
to compromise the recovery or restoration of that species population, 
the authorized official shall determine and use an alternative method 
for confirming species identity that will be consistent with established 
management goals for that species.

[51 FR 27725, Aug. 1, 1986, as amended at 53 FR 5175, Feb. 22, 1988; 59 
FR 14283, Mar. 25, 1994]



Sec. 11.73  Quantification phase--resource recoverability analysis.

    (a) Requirement. The time needed for the injured resources to 
recover to the state that the authorized official determines services 
are restored, rehabilitated, replaced, and/or the equivalent have been 
acquired to baseline levels shall be estimated. The time estimated for 
recovery or any lesser period of time as determined in the Assessment 
Plan must be used as the recovery period for purposes of Sec. 11.38 and 
the Damage Determination phase, Secs. 11.80 through 11.84.
    (1) In all cases, the amount of time needed for recovery if no 
restoration, rehabilitation, replacement, and/or acquisition of 
equivalent resources efforts are undertaken beyond response actions 
performed or anticipated shall be estimated. This time period shall be 
used as the ``No Action-Natural Recovery'' period for purposes of 
Sec. 11.82 and Sec. 11.84(g)(2)(ii) of this part.
    (2) The estimated time for recovery shall be included in possible 
alternatives for restoration, rehabilitation, replacement, and/or 
acquisition of equivalent resources, as developed in Sec. 11.82 of this 
part, and the data and process by which these recovery times were 
estimated shall be documented.
    (b) Restoration not feasible. If the authorized official determines 
that restoration will not be technically feasible, as that phrase is 
used in this part, the reasoning and data on which this decision is 
based shall be documented as part of the justification for any 
replacement alternatives that may be considered or proposed.
    (c) Estimating recovery time. (1) The time estimates required in 
paragraph (a) of this section shall be based on the best available 
information and where appropriate may be based on cost-effective models. 
Information gathered may come from one or more of the following sources, 
as applicable:
    (i) Published studies on the same or similar resources;

[[Page 266]]

    (ii) Other data sources identified in Sec. 11.72 of this part;
    (iii) Experience of managers or resource specialists with the 
injured resource;
    (iv) Experience of managers or resource specialists who have dealt 
with restoration for similar discharges or releases elsewhere; and
    (v) Field and laboratory data from assessment and control areas as 
necessary.
    (2) The following factors should be considered when estimating 
recovery times:
    (i) Ecological succession patterns in the area;
    (ii) Growth or reproductive patterns, life cycles, and ecological 
requirements of biological species involved, including their reaction or 
tolerance to the oil or hazardous substance involved;
    (iii) Bioaccumulation and extent of oil or hazardous substances in 
the food chain;
    (iv) Chemical, physical, and biological removal rates of the oil or 
hazardous substance from the media involved, especially as related to 
the local conditions, as well as the nature of any potential degradation 
or decomposition products from the process including:
    (A) Dispersion, dilution, and volatilization rates in air, 
sediments, water, or geologic materials;
    (B) Transport rates in air, soil, water, and sediments;
    (C) Biological degradation, depuration, or decomposition rates and 
residence times in living materials;
    (D) Soil or sediment properties and adsorption-desorption rates 
between soil or sediment components and water or air;
    (E) Soil surface runoff, leaching, and weathering processes; and
    (F) Local weather or climatological conditions that may affect 
recovery rates.

[51 FR 27725, Aug. 1, 1986, as amended at 59 FR 14283, Mar. 25, 1994; 61 
FR 20612, May 7, 1996]



Sec. 11.80  Damage determination phase--general.

    (a) Requirement. (1) The authorized official shall make his damage 
determination by estimating the monetary damages resulting from the 
discharge of oil or release of a hazardous substance based upon the 
information provided in the Quantification phase and the guidance 
provided in this Damage Determination phase.
    (2) The Damage Determination phase consists of Sec. 11.80--general; 
Sec. 11.81--Restoration and Compensation Determination Plan; Sec. 11.82-
-alternatives for restoration, rehabilitation, replacement, and/or 
acquisition of equivalent resources; Sec. 11.83--cost estimating and 
valuation methodologies; and Sec. 11.84--implementation guidance, of 
this part.
    (b) Purpose. The purpose of the Damage Determination phase is to 
establish the amount of money to be sought in compensation for injuries 
to natural resources resulting from a discharge of oil or release of a 
hazardous substance. The measure of damages is the cost of restoration, 
rehabilitation, replacement, and/or acquisition of the equivalent of the 
injured natural resources and the services those resources provide. 
Damages may also include, at the discretion of the authorized official, 
the compensable value of all or a portion of the services lost to the 
public for the time period from the discharge or release until the 
attainment of the restoration, rehabilitation, replacement, and/or 
acquisition of equivalent of the resources and their services to 
baseline.
    (c) Steps in the Damage Determination phase. The authorized official 
shall develop a Restoration and Compensation Determination Plan, 
described in Sec. 11.81 of this part. To prepare this Restoration and 
Compensation Determination Plan, the authorized official shall develop a 
reasonable number of possible alternatives for restoration, 
rehabilitation, replacement, and/or acquisition of equivalent resources 
and select, pursuant to the guidance of Sec. 11.82 of this part, the 
most appropriate of those alternatives; and identify the cost estimating 
and valuation methodologies, described in Sec. 11.83 of this part, that 
will be used to calculate damages. The guidance provided in Sec. 11.84 
of this part shall be followed in implementing the cost estimating and 
valuation methodologies. After public review of the Restoration and 
Compensation Determination Plan, the authorized official

[[Page 267]]

shall implement the Restoration and Compensation Determination Plan.
    (d) Completion of the Damage Determination phase. Upon completion of 
the Damage Determination phase, the type B assessment is completed. The 
results of the Damage Determination phase shall be documented in the 
Report of Assessment described in Sec. 11.90 of this part.

[59 FR 14283, Mar. 25, 1994]



Sec. 11.81  Damage determination phase--restoration and compensation determination plan.

    (a) Requirement. (1) The authorized official shall develop a 
Restoration and Compensation Determination Plan that will list a 
reasonable number of possible alternatives for restoration, 
rehabilitation, replacement, and/or acquisition of equivalent resources 
and the related services lost to the public associated with each; select 
one of the alternatives and the actions required to implement that 
alternative; give the rationale for selecting that alternative; and 
identify the methodologies that will be used to determine the costs of 
the selected alternative and, at the discretion of the authorized 
official, the compensable value of the services lost to the public 
associated with the selected alternative.
    (2) The Restoration and Compensation Determination Plan shall be of 
sufficient detail to evaluate the possible alternatives for the purpose 
of selecting the appropriate alternative to use in determining the cost 
of restoration, rehabilitation, replacement, and/or acquisition of 
equivalent resources for the injured natural resources and the services 
those resources provided, and, where relevant, the compensable value of 
the services lost to the public through the completion of the 
restoration, rehabilitation, replacement, and/or acquisition of 
equivalent resources and their services to the baseline.
    (b) The authorized official shall use the guidance in Secs. 11.82, 
11.83, and 11.84 of this part to develop the Restoration and 
Compensation Determination Plan.
    (c) The authorized official shall list the methodologies he expects 
to use to determine the costs of all actions considered within the 
selected alternative and, where relevant, the compensable value of the 
lost services through the recovery period associated with the selected 
alternative. The methodologies to use in determining costs and 
compensable value are described in Sec. 11.83 of this part.
    (d)(1) The Restoration and Compensation Determination Plan shall be 
part of the Assessment Plan developed in subpart B of this part. If 
existing data are not sufficient to develop the Restoration and 
Compensation Determination Plan at the time that the overall Assessment 
Plan is made available for public review and comment, the Restoration 
and Compensation Determination Plan may be developed later, after the 
completion of the Injury Determination or Quantification phases.
    (2) If the Restoration and Compensation Determination Plan is 
prepared later than the Assessment Plan, it shall be made available 
separately for public review by any identified potentially responsible 
party, other natural resource trustees, other affected Federal or State 
agencies or Indian tribes, and any other interested members of the 
public for a period of no less than 30 calendar days. Reasonable 
extensions may be granted as appropriate.
    (3) Comments received from any identified potentially responsible 
party, other natural resource trustees, other affected Federal or State 
agencies or Indian tribes, or any other interested members of the 
public, together with responses to those comments, shall be included as 
part of the Report of Assessment, described in Sec. 11.90 of this part.
    (4) Appropriate public review of the plan must be completed before 
the authorized official performs the methodologies listed in the 
Restoration and Compensation Determination Plan.
    (e) The Restoration and Compensation Determination Plan may be 
expanded to incorporate requirements from procedures required under 
other portions of CERCLA or the CWA or from other Federal, State, or 
tribal laws applicable to restoration, rehabilitation, replacement, and/
or acquisition of the equivalent of the injured resources or may be 
combined with other plans for related purposes, so long as

[[Page 268]]

the requirements of this section are fulfilled.

[59 FR 14283, Mar. 25, 1994]



Sec. 11.82  Damage determination phase--alternatives for restoration, rehabilitation, replacement, and/or acquisition of equivalent resources.

    (a) Requirement. The authorized official shall develop a reasonable 
number of possible alternatives for the restoration, rehabilitation, 
replacement, and/or acquisition of the equivalent of the injured natural 
resources and the services those resources provide. For each possible 
alternative developed, the authorized official will identify an action, 
or set of actions, to be taken singly or in combination by the trustee 
agency to achieve the restoration, rehabilitation, replacement, and/or 
acquisition of equivalent natural resources and the services those 
resources provide to the baseline. The authorized official shall then 
select from among the possible alternatives the alternative that he 
determines to be the most appropriate based on the guidance provided in 
this section.
    (b) Steps. (1) The authorized official shall develop a reasonable 
number of possible alternatives that would restore, rehabilitate, 
replace, and/or acquire the equivalent of the injured resources. Each of 
the possible alternatives may, at the discretion of the authorized 
official, consist of actions, singly or in combination, that would 
achieve those purposes.
    (i) Restoration or rehabilitation actions are those actions 
undertaken to return injured resources to their baseline condition, as 
measured in terms of the physical, chemical, or biological properties 
that the injured resources would have exhibited or the services that 
would have been provided by those resources had the discharge of oil or 
release of the hazardous substance under investigation not occurred. 
Such actions would be in addition to response actions completed or 
anticipated pursuant to the National Contingency Plan (NCP).
    (ii) Replacement or acquisition of the equivalent means the 
substitution for injured resources with resources that provide the same 
or substantially similar services, when such substitutions are in 
addition to any substitutions made or anticipated as part of response 
actions and when such substitutions exceed the level of response actions 
determined appropriate to the site pursuant to the NCP.
    (iii) Possible alternatives are limited to those actions that 
restore, rehabilitate, replace, and/or acquire the equivalent of the 
injured resources and services to no more than their baseline, that is, 
the condition without a discharge or release as determined in Sec. 11.72 
of this part.
    (2) Services provided by the resources. (i) In developing each of 
the possible alternatives, the authorized official shall list the 
proposed actions that would restore, rehabilitate, replace, and/or 
acquire the equivalent of the services provided by the injured natural 
resources that have been lost, and the period of time over which these 
services would continue to be lost.
    (ii) The authorized official shall identify services previously 
provided by the resources in their baseline condition in accordance with 
Sec. 11.72 of this part and compare those services with services now 
provided by the injured resources, that is, the with-a-discharge-or-
release condition. All estimates of the with-a-discharge-or-release 
condition shall incorporate consideration of the ability of the 
resources to recover as determined in Sec. 11.73 of this part.
    (c) Range of possible alternatives. (1) The possible alternatives 
considered by the authorized official that return the injured resources 
and their lost services to baseline level could range from: Intensive 
action on the part of the authorized official to return the various 
resources and services provided by those resources to baseline 
conditions as quickly as possible; to natural recovery with minimal 
management actions. Possible alternatives within this range could 
reflect varying rates of recovery, combination of management actions, 
and needs for resource replacements or acquisitions.
    (2) An alternative considering natural recovery with minimal 
management actions, based upon the ``No Action-Natural Recovery'' 
determination made in Sec. 11.73(a)(1) of this part, shall be one of the 
possible alternatives considered.

[[Page 269]]

    (d) Factors to consider when selecting the alternative to pursue. 
When selecting the alternative to pursue, the authorized official shall 
evaluate each of the possible alternatives based on all relevant 
considerations, including the following factors:
    (1) Technical feasibility, as that term is used in this part.
    (2) The relationship of the expected costs of the proposed actions 
to the expected benefits from the restoration, rehabilitation, 
replacement, and/or acquisition of equivalent resources.
    (3) Cost-effectiveness, as that term is used in this part.
    (4) The results of any actual or planned response actions.
    (5) Potential for additional injury resulting from the proposed 
actions, including long-term and indirect impacts, to the injured 
resources or other resources.
    (6) The natural recovery period determined in Sec. 11.73(a)(1) of 
this part.
    (7) Ability of the resources to recover with or without alternative 
actions.
    (8) Potential effects of the action on human health and safety.
    (9) Consistency with relevant Federal, State, and tribal policies.
    (10) Compliance with applicable Federal, State, and tribal laws.
    (e) A Federal authorized official shall not select an alternative 
that requires acquisition of land for Federal management unless the 
Federal authorized official determines that restoration, rehabilitation, 
and/or other replacement of the injured resources is not possible.

[59 FR 14284, Mar. 25, 1994]]



Sec. 11.83  Damage determination phase--use value methodologies.

    (a) General. (1) This section contains guidance and methodologies 
for determining: The costs of the selected alternative for restoration, 
rehabilitation, replacement, and/or acquisition of equivalent resources; 
and the compensable value of the services lost to the public through the 
completion of the restoration, rehabilitation, replacement, and/or 
acquisition of the equivalent of the injured resources and their 
services to baseline.
    (2)(i) The authorized official shall select among the cost 
estimating and valuation methodologies set forth in this section, or 
methodologies that meet the acceptance criterion of either paragraph 
(b)(3) or (c)(3) of this section.
    (ii) The authorized official shall define the objectives to be 
achieved by the application of the methodologies.
    (iii) The authorized official shall follow the guidance provided in 
this section for choosing among the methodologies that will be used in 
the Damage Determination phase.
    (iv) The authorized official shall describe his selection of 
methodologies and objectives in the Restoration and Compensation 
Determination Plan.
    (3) The authorized official shall determine that the following 
criteria have been met when choosing among the cost estimating and 
valuation methodologies. The authorized official shall document this 
determination in the Report of the Assessment. Only those methodologies 
shall be chosen:
    (i) That are feasible and reliable for a particular incident and 
type of damage to be measured.
    (ii) That can be performed at a reasonable cost, as that term is 
used in this part.
    (iii) That avoid double counting or that allow any double counting 
to be estimated and eliminated in the final damage calculation.
    (iv) That are cost-effective, as that term is used in this part.
    (b) Costs of restoration, rehabilitation, replacement, and/or 
acquisition of equivalent resources. (1) Costs for restoration, 
rehabilitation, replacement, and/or acquisition of equivalent resources 
are the amount of money determined by the authorized official as 
necessary to complete all actions identified in the selected alternative 
for restoration, rehabilitation, replacement, and/or acquisition of 
equivalent resources, as selected in the Restoration and Compensation 
Determination Plan of Sec. 11.81 of this part. Such costs shall include 
direct and indirect costs, consistent with the provisions of this 
section.
    (i) Direct costs are those that are identified by the authorized 
official as attributed to the selected alternative. Direct costs are 
those charged directly to the conduct of the selected alternative 
including, but not limited to, the compensation of employees for the

[[Page 270]]

time and effort devoted to the completion of the selected alternative; 
cost of materials acquired, consumed, or expended specifically for the 
purpose of the action; equipment and other capital expenditures; and 
other items of expense identified by the authorized official that are 
expected to be incurred in the performance of the selected alternative.
    (ii) Indirect costs are costs of activities or items that support 
the selected alternative, but that cannot practically be directly 
accounted for as costs of the selected alternative. The simplest example 
of indirect costs is traditional overhead, e.g., a portion of the lease 
costs of the buildings that contain the offices of trustee employees 
involved in work on the selected alternative may, under some 
circumstances, be considered as an indirect cost. In referring to costs 
that cannot practically be directly accounted for, this subpart means to 
include costs that are not readily assignable to the selected 
alternative without a level of effort disproportionate to the results 
achieved.
    (iii) An indirect cost rate for overhead costs may, at the 
discretion of the authorized official, be applied instead of calculating 
indirect costs where the benefits derived from the estimation of 
indirect costs do not outweigh the costs of the indirect cost 
estimation. When an indirect cost rate is used, the authorized official 
shall document the assumptions from which that rate has been derived.
    (2) Cost estimating methodologies. The authorized official may 
choose among the cost estimating methodologies listed in this section or 
may choose other methodologies that meet the acceptance criterion in 
paragraph (b)(3) of this section. Nothing in this section precludes the 
use of a combination of cost estimating methodologies so long as the 
authorized official does not double count or uses techniques that allow 
any double counting to be estimated and eliminated in the final damage 
calculation.
    (i) Comparison methodology. This methodology may be used for unique 
or difficult design and estimating conditions. This methodology requires 
the construction of a simple design for which an estimate can be found 
and applied to the unique or difficult design.
    (ii) Unit methodology. This methodology derives an estimate based on 
the cost per unit of a particular item. Many other names exist for 
describing the same basic approach, such as order of magnitude, lump 
sum, module estimating, flat rates, and involve various refinements. 
Data used by this methodology may be collected from technical literature 
or previous cost expenditures.
    (iii) Probability methodologies. Under these methodologies, the cost 
estimate represents an ``average'' value. These methodologies require 
information which is called certain, or deterministic, to derive the 
expected value of the cost estimate. Expected value estimates and range 
estimates represent two types of probability methodologies that may be 
used.
    (iv) Factor methodology. This methodology derives a cost estimate by 
summing the product of several items or activities. Other terms such as 
ratio and percentage methodologies describe the same basic approach.
    (v) Standard time data methodology. This methodology provides for a 
cost estimate for labor. Standard time data are a catalogue of standard 
tasks typically undertaken in performing a given type of work.
    (vi) Cost- and time-estimating relationships (CERs and TERs). CERs 
and TERs are statistical regression models that mathematically describe 
the cost of an item or activity as a function of one or more independent 
variables. The regression models provide statistical relationships 
between cost or time and physical or performance characteristics of past 
designs.
    (3) Other cost estimating methodologies. Other cost estimating 
methodologies that are based upon standard and accepted cost estimating 
practices and are cost-effective are acceptable methodologies to 
determine the costs of restoration, rehabilitation, replacement, and/or 
acquisition of equivalent resources under this part.
    (c) Compensable value. (1) Compensable value is the amount of money 
required to compensate the public for the loss in services provided by 
the injured

[[Page 271]]

resources between the time of the discharge or release and the time the 
resources and the services those resources provided are fully returned 
to their baseline conditions. The compensable value includes the value 
of lost public use of the services provided by the injured resources, 
plus lost nonuse values such as existence and bequest values. 
Compensable value is measured by changes in consumer surplus, economic 
rent, and any fees or other payments collectable by a Federal or State 
agency or an Indian tribe for a private party's use of the natural 
resources; and any economic rent accruing to a private party because the 
Federal or State agency or Indian tribe does not charge a fee or price 
for the use of the resources.
    (i) Use value is the value of the resources to the public 
attributable to the direct use of the services provided by the natural 
resources.
    (ii) Nonuse value is the difference between compensable value and 
use value, as those terms are used in this section.
    (iii) Estimation of option and existence values shall be used only 
if the authorized official determines that no use values can be 
determined.
    (2) Valuation methodologies. The authorized official may choose 
among the valuation methodologies listed in this section to estimate 
willingness to pay (WTP) or may choose other methodologies provided that 
the methodology can satisfy the acceptance criterion in paragraph (c)(3) 
of this section. Nothing in this section precludes the use of a 
combination of valuation methodologies so long as the authorized 
official does not double count or uses techniques that allow any double 
counting to be estimated and eliminated in the final damage calculation.
    (i) Market price methodology. This methodology may be used if the 
natural resources are traded in the market. In using this methodology, 
the authorized official should make a determination as to whether the 
market for the resources is reasonably competitive. If the authorized 
official determines that the market for the resources, or the services 
provided by the resources, is reasonably competitive, the diminution in 
the market price of the injured resources, or the lost services, may be 
used to determine the compensable value of the injured resources.
    (ii) Appraisal methodology. Where sufficient information exists, the 
appraisal methodology may be used. In using this methodology, 
compensable value should be measured, to the extent possible, in 
accordance with the applicable sections of the ``Uniform Appraisal 
Standards for Federal Land Acquisition'' (Uniform Appraisal Standards), 
Interagency Land Acquisition Conference, Washington, DC, 1973 
(incorporated by reference, see Sec. 11.18). The measure of compensable 
value under this appraisal methodology will be the difference between 
the with- and without-injury appraisal value determined by the 
comparable sales approach as described in the Uniform Appraisal 
Standards.
    (iii) Factor income methodology. If the injured resources are inputs 
to a production process, which has as an output a product with a well-
defined market price, the factor income methodology may be used. This 
methodology may be used to determine the economic rent associated with 
the use of resources in the production process. This methodology is 
sometimes referred to as the ``reverse value added'' methodology. The 
factor income methodology may be used to measure the in-place value of 
the resources.
    (iv) Travel cost methodology. The travel cost methodology may be 
used to determine a value for the use of a specific area. An 
individual's incremental travel costs to an area are used as a proxy for 
the price of the services of that area. Compensable value of the area to 
the traveler is the difference between the value of the area with and 
without a discharge or release. When regional travel cost models exist, 
they may be used if appropriate.
    (v) Hedonic pricing methodology. The hedonic pricing methodology may 
be used to determine the value of nonmarketed resources by an analysis 
of private market choices. The demand for nonmarketed natural resources 
is thereby estimated indirectly by an analysis of commodities that are 
traded in a market.

[[Page 272]]

    (vi) Unit value methodology. Unit values are preassigned dollar 
values for various types of nonmarketed recreational or other 
experiences by the public. Where feasible, unit values in the region of 
the affected resources and unit values that closely resemble the 
recreational or other experience lost with the affected resources may be 
used.
    (vii) Contingent valuation methodology.(A) The contingent valuation 
methodology includes all techniques that set up hypothetical markets to 
elicit an individual's economic valuation of a natural resource. This 
methodology can determine use values and explicitly determine option and 
existence values. This methodology may be used to determine lost use 
values of injured natural resources.
    (B) The use of the contingent valuation methodology to explicitly 
estimate option and existence values should be used only if the 
authorized official determines that no use values can be determined.
    (3) Other valuation methodologies. Other valuation methodologies 
that measure compensable value in accordance with the public's WTP, in a 
cost-effective manner, are acceptable methodologies to determine 
compensable value under this part.

[51 FR 27725, Aug. 1, 1986, as amended at 53 FR 5175, Feb. 22, 1988; 59 
FR 14285, Mar. 25, 1994]



Sec. 11.84  Damage determination phase--implementation guidance.

    (a) Requirement. The authorized official should use the cost 
estimating and valuation methodologies in Sec. 11.83 of this part 
following the appropriate guidance in this section.
    (b) Determining uses. (1) Before estimating damages for compensable 
value under Sec. 11.83 of this part, the authorized official should 
determine the uses made of the resource services identified in the 
Quantification phase.
    (2) Only committed uses, as that phrase is used in this part, of the 
resource or services over the recovery period will be used to measure 
the change from the baseline resulting from injury to a resource. The 
baseline uses must be reasonably probable, not just in the realm of 
possibility. Purely speculative uses of the injured resource are 
precluded from consideration in the estimation of damages.
    (3)(i) When resources or resource services have mutually exclusive 
uses, the highest-and-best use of the injured resource or services, as 
determined by the authorized official, shall be used as the basis of the 
analyses required in this part. This determination of the highest-and-
best use must be consistent with the requirements of paragraph (b)(2) of 
this section.
    (ii) If the uses of the resource or service are not necessarily 
mutually exclusive, the sum of damages should be determined from 
individual services. However, the sum of the projected damages from 
individual services shall consider congestion or crowding out effects, 
if any, from the resulting projected total use of those services.
    (c) Double counting. (1) Double counting of damages should be 
avoided. Double counting means that a benefit or cost has been counted 
more than once in the damage assessment.
    (2) Natural resource damages are the residual to be determined by 
incorporating the effects, or anticipated effects, of any response 
actions. To avoid one aspect of double counting, the effects of response 
actions shall be factored into the analysis of damages. If response 
actions will not be completed until after the assessment has been 
initiated, the anticipated effects of such actions should be included in 
the assessment.
    (d) Uncertainty. (1) When there are significant uncertainties 
concerning the assumptions made in all phases of the assessment process, 
reasonable alternative assumptions should be examined. In such cases, 
uncertainty should be handled explicitly in the analysis and documented. 
The uncertainty should be incorporated in the estimates of benefits and 
costs.
    (2) To incorporate this uncertainty, the authorized official should 
derive a range of probability estimates for the important assumptions 
used to determine damages. In these instances, the damage estimate will 
be the net expected present value of the costs of restoration, 
rehabilitation, replacement,

[[Page 273]]

and/or acquisition of equivalent resources and, if relevant, compensable 
value.
    (e) Discounting. (1) Where possible, damages should be estimated in 
the form of an expected present value dollar amount. In order to perform 
this calculation, a discount rate must be selected.
    (2) The discount rate to be used is that specified in ``Office of 
Management and Budget (OMB) Circular A-94 Revised'' (dated March 27, 
1972, available from the Executive Office of the President, 
Publications, 726 Jackson Place, NW., Washington, DC 20503; ph: (202) 
395-7372).
    (f) Substitutability. In calculating compensable value, the 
authorized official should incorporate estimates of the ability of the 
public to substitute resource services or uses for those of the injured 
resources. This substitutability should be estimated only if the 
potential benefits from an increase in accuracy are greater than the 
potential costs.
    (g) Compensable value during the restoration, rehabilitation, 
replacement, and/or acquisition of equivalent resources. (1) In 
determining the amount of damages, the authorized official has the 
discretion to compute compensable value for the period of time required 
to achieve the restoration, rehabilitation, replacement, and/or 
acquisition of equivalent resources.
    (2) When calculating compensable value during the period of time 
required to achieve restoration, rehabilitation, replacement, and/or 
acquisition of equivalent resources, the authorized official should 
follow the procedures described below. The procedures need not be 
followed in sequence.
    (i) The ability of the injured resources to recover over the 
recovery period should be estimated. This estimate includes estimates of 
natural recovery rates as well as recovery rates that reflect management 
actions or resource acquisitions to achieve restoration, rehabilitation, 
replacement, and/or acquisition of equivalent resources.
    (ii) A recovery rate should be selected for this analysis that is 
based upon cost-effective management actions or resource acquisitions, 
including a ``No Action-Natural Recovery'' alternative. After the 
recovery rate is estimated, compensable value should be estimated.
    (iii) The rate at which the uses of the injured resources and their 
services will be restored through the restoration or replacement of the 
services should be estimated. This rate may be discontinuous, that is, 
no uses are restored until all, or some threshold level, of the services 
are restored, or continuous, that is, restoration or replacement of uses 
will be a function of the level and rate of restoration or replacement 
of the services. Where practicable, the supply of and demand for the 
restored services should be analyzed, rather than assuming that the 
services will be utilized at their full capacity at each period of time 
in the analysis. Compensable value should be discounted using the rate 
described in paragraph (e)(2) of this section. This estimate is the 
expected present value of uses obtained through restoration, 
rehabilitation, replacement, and/or acquisition of equivalent resources.
    (iv) The uses of the resource that would have occurred in the 
absence of the discharge or release should be estimated. This estimate 
should be done in accordance with the procedures in Sec. 11.72 of this 
part. These uses should be estimated over the same time period using the 
same discount rate as that specified in paragraph (e)(2) of this 
section. This amount is the expected present value of uses forgone.
    (v) Subtraction of the present value of uses obtained through 
restoration or replacement from the expected present value of uses 
forgone gives the amount of compensation that may be included, if 
positive, in a measure of damages.
    (h) Scope of the analysis. (1) The authorized official must 
determine the scope of the analysis in order to estimate compensable 
value.
    (2) In assessments where the scope of analysis is Federal, only the 
compensable value to the Nation as a whole should be counted.
    (3) In assessments where the scope of analysis is at the State 
level, only the compensable value to the State should be counted.
    (4) In assessments where the scope of analysis is at the tribal 
level, only the

[[Page 274]]

compensable value to the tribe should be counted.

[51 FR 27725, Aug. 1, 1986, as amended at 53 FR 5176, Feb. 22, 1988; 59 
FR 14286, Mar. 25, 1994]



                    Subpart F--Post-Assessment Phase



Sec. 11.90  What documentation must the authorized official prepare after completing the assessment?

    (a) At the conclusion of an assessment, the authorized official must 
prepare a Report of Assessment that consists of the Preassessment Screen 
Determination, the Assessment Plan, and the information specified in 
paragraphs (b) and (c) of this section as applicable.
    (b) When the authorized official has used a type A procedure, the 
Report of Assessment must include the information specified in subpart 
D.
    (c) When the authorized official has used type B procedures, the 
Report of Assessment must include all documentation supporting the 
determinations required in the Injury Determination phase, the 
Quantification phase, and the Damage Determination phase, and 
specifically including the test results of any and all methodologies 
performed in these phases. The preliminary estimate of damages shall be 
included in the Report of Assessment. The Restoration and Compensation 
Determination Plan, along with comments received during the public 
review of that Plan and responses to those comments, shall also be 
included in the Report of Assessment.

[51 FR 27725, Aug. 1, 1986, as amended at 59 FR 14287, Mar. 25, 1994; 61 
FR 20612, May 7, 1996]



Sec. 11.91  How does the authorized official seek recovery of the assessed damages from the potentially responsible party?

    (a) At the conclusion of the assessment, the authorized official 
must present to the potentially responsible party a demand in writing 
for the damages determined in accordance with this part and the 
reasonable cost of the assessment. [See Sec. 11.92(b) to determine how 
the authorized official must adjust damages if he or she plans to place 
recovered funds in a non-interest-bearing account.] The authorized 
official must deliver the demand in a manner that establishes the date 
of receipt. The demand shall adequately identify the Federal or State 
agency or Indian tribe asserting the claim, the general location and 
description of the injured resource, the type of discharge or release 
determined to have resulted in the injuries, and the damages sought from 
that party.
    (b) Report of assessment. The demand letter shall include the Report 
of Assessment as an attachment.
    (c) Rebuttable presumption. When performed by a Federal or State 
official in accordance with this part, the natural resource damage 
assessment and the resulting Damage Determination supported by a 
complete administrative record of the assessment including the Report of 
Assessment as described in Sec. 11.90 of this part shall have the force 
and effect of a rebuttable presumption on behalf of any Federal or State 
claimant in any judicial or adjudicatory administrative proceeding under 
CERCLA, or section 311 of the CWA.
    (d) Potentially responsible party response. The authorized official 
should allow at least 60 days from receipt of the demand by the 
potentially responsible party, with reasonable extensions granted as 
appropriate, for the potentially responsible party to acknowledge and 
respond to the demand, prior to filing suit. In cases governed by 
section 113(g) of CERCLA, the authorized official may include a notice 
of intent to file suit and must allow at least 60 days from receipt of 
the demand by the potentially responsible party, with reasonable 
extensions granted as appropriate, for the potentially responsible party 
to acknowledge and respond to the demand, prior to filing suit.
    (e) Statute of limitations. For the purposes of section 113(g) of 
CERCLA, the date on which regulations are promulgated under section 
301(c) of CERCLA is the date on which the later of the revisions to the 
type A rule and the type B rule, pursuant to State of Colorado v. United 
States Department of the Interior, 880 F.2d 481 (D.C. Cir. 1989), and 
State of Ohio v. United States Department of the Interior, 880 F.2d 432 
(D.C. Cir. 1989), is

[[Page 275]]

published as a final rule in the Federal Register.

[53 FR 5176, Feb. 22, 1988, as amended at 59 FR 14287, Mar. 25, 1994; 61 
FR 20612, May 7, 1996]



Sec. 11.92  Post-assessment phase--restoration account.

    (a) Disposition of recoveries. (1) All sums (damage claim and 
assessment costs) recovered pursuant to section 107(f) of CERCLA or 
sections 311(f)(4) and (5) of the CWA by the Federal government acting 
as trustee shall be retained by the trustee, without further 
appropriation, in a separate account in the U.S. Treasury.
    (2) All sums (damage claim and assessment costs) recovered pursuant 
to section 107(f) of CERCLA, or sections 311(f)(4) and (5) of the CWA by 
a State government acting as trustee shall either:
    (i) Be placed in a separate account in the State treasury; or
    (ii) Be placed by the responsible party or parties in an interest 
bearing account payable in trust to the State agency acting as trustee.
    (3) All sums (damage claim and assessment costs) recovered pursuant 
to section 107(f) of CERCLA or sections 311(f)(4) and (5) of the CWA by 
an Indian tribe shall either:
    (i) Be placed in an account in the tribal treasury; or
    (ii) Be placed by the responsible party or parties in an interest 
bearing account payable in trust to the Indian tribe.
    (b) Adjustments. (1) In establishing the account pursuant to 
paragraph (a) of this section, the calculation of the expected present 
value of the damage amount should be adjusted, as appropriate, whenever 
monies are to be placed in a non-interest bearing account. This 
adjustment should correct for the anticipated effects of inflation over 
the time estimated to complete expenditures for the restoration, 
rehabilitation, replacement, and/or acquisition of equivalent resources.
    (2) In order to make the adjustment in paragraph (b)(1) of this 
section, the authorized official should adjust the damage amount by the 
rate payable on notes or bonds issued by the United States Treasury with 
a maturity date that approximates the length of time estimated to 
complete expenditures for the restoration, rehabilitation, replacement, 
and/or acquisition of equivalent resources.
    (c) Payments from the account. Monies that constitute the damage 
claim amount shall be paid out of the account established pursuant to 
paragraph (a) of this section only for those actions described in the 
Restoration Plan required by Sec. 11.93 of this part.

[53 FR 5176, Feb. 22, 1988, as amended at 59 FR 14287, Mar. 25, 1994]



Sec. 11.93  Post-assessment phase--restoration plan.

    (a) Upon determination of the amount of the award of a natural 
resource damage claim as authorized by section 107(a)(4)(C) of CERCLA, 
or sections 311(f)(4) and 311(f)(5) of the CWA, the authorized official 
shall prepare a Restoration Plan as provided in section 111(i) of 
CERCLA. The plan shall be based upon the Restoration and Compensation 
Determination Plan described in Secs. 11.81 of this part. The Plan shall 
describe how the monies will be used to address natural resources, 
specifically what restoration, rehabilitation, replacement, or 
acquisition of the equivalent resources will occur. When damages for 
compensable value have been awarded, the Plan shall also describe how 
monies will be used to address the services that are lost to the public 
until restoration, rehabilitation, replacement, and/or acquisition of 
equivalent resources is completed. The Restoration Plan shall be 
prepared in accordance with the guidance set forth in Sec. 11.81 of this 
part.
    (b) No restoration activities shall be conducted by Federal agencies 
that would incur ongoing expenses in excess of those that would have 
been incurred under baseline conditions and that cannot be funded by the 
amount included in the separate account established pursuant to 
Sec. 11.92(a) of this part unless such additional monies are 
appropriated through the normal appropriations process.
    (c) Modifications may be made to the Restoration Plan as become 
necessary as the restoration proceeds. Significant modifications shall 
be made available for review by any responsible party,

[[Page 276]]

any affected natural resource trustees, other affected Federal or State 
agencies or Indian tribes, and any other interested members of the 
public for a period of at least 30 days, with reasonable extensions 
granted as appropriate, before tasks called for in the modified plan are 
begun.
    (d) If the measure of damages was determined in accordance with 
subpart D, the restoration plan may describe actions to be taken that 
are to be financed from more than one damage award, so long as the 
actions are intended to address the same or similar resource injuries as 
those identified in each of the subpart D assessment procedures that 
were the basis of the awards.

[51 FR 27725, Aug. 1, 1986, as amended at 52 FR 9100, Mar. 20, 1987; 53 
FR 5176, Feb. 22, 1988; 59 FR 14287, Mar. 25, 1994]

Appendix I to Part 11--Methods for Estimating the Areas of Ground Water 
       and Surface Water Exposure During the Preassessment Screen

    This appendix provides methods for estimating, as required in 
Sec. 11.25 of this part, the areas where exposure of ground water or 
surface water resources may have occurred or are likely to occur. These 
methods may be used in the absence of more complete information on the 
ground water or surface water resources.

                              Ground Water

    The longitudinal path length (LPL) factors in table 1 are to be 
applied in estimating the area potentially exposed downgradient of the 
known limit of exposure or of the boundary of the site. Estimates of 
lateral path width (LPW) are to be used when the LPW exceeds the width 
of the plume as determined from available data, or when the width of the 
plume at the boundary of the site is estimated as less than the LPW. In 
the absence of data to the contrary, the largest values of LPL and LPW 
consistent with the geohydrologic data available shall be used to make 
the estimates required in the preassessment screen. An example 
computation using the LPL and LPW factors follows table 1.

            Table 1--Factors for Estimation of Areas Potentially Exposed Via the Ground Water Pathway
----------------------------------------------------------------------------------------------------------------
                                                Hydraulic
                               Hyd. conductiv-  gradient   Time since       Longitudinal
         Aquifer type            ity/porosity   estimate     release         path length  Lateral path width (in
                               factor (miles/    (feet/     began (in         (in feet)            feet)
                                    year)         mile)      years)
----------------------------------------------------------------------------------------------------------------
Sand.........................              50  x.........  x.........   =   ............  LPW=0.2LPL
Sand+silt....................             0.5  x.........  x.........   =   ............  LPW=0.3LPL
Gravel.......................            6000  x.........  x.........   =   ............  LPW=0.2LPL
Sandstone....................            0.01  x.........  x.........   =   ............  LPW=0.4LPL
Shale........................        3x10-\6\  x.........  x.........   =   ............  LPW=0.8LPL
Karst Limestone or Dolomite..              10  x.........  x.........   =   ............  LPW=0.2LPL
Limestone or Dolomite........            0.01  x.........  x.........   =   ............  LPW=0.4LPL
Fractured Crystalline Rocks..             0.3  x.........  x.........   =   ............  LPW=0.3LPL
Dense Crystalline Rocks......          1x10-5  x.........  x.........   =   ............  LPW=0.8LPL
----------------------------------------------------------------------------------------------------------------

 Example of Computation for Estimating the Area Potentially Exposed via 
                          Ground Water Pathway

    A release of hazardous substances occurs from a facility located in 
a glacial valley. Available data indicate the release may have occurred 
intermittently over a period of almost 1 year, although only one well 
about 300 feet downgradient of the facility boundary had detectable 
quantities of contaminants. The contaminated well is screened in the 
water table aquifer composed of gravelly sands. The facility boundary 
nearest the contaminated well is almost 3,000 feet in length, but a 
review of available data determined the release is probably localized 
along a 500-foot section of the boundary where a stream leaves the 
facility. Available water table data indicate hydraulic gradients in the 
valley range from 0.005 feet/mile up to 0.25 feet/mile near pumping 
wells. No pumping wells are known to be located near the release, and a 
mean hydraulic gradient of 0.1 feet/mile is estimated in the vicinity of 
the release site.

[[Page 277]]

Using the gravel factor from table 1, the LPL and LPW are estimated:

6000x0.1x1=600 feet  (LPL)
      and
600x0.2=120 feet  (LPW).

Since the estimated LPW (120 feet) is less than the plume width (500 
feet) determined from other available data, the greater number is used 
to compute the area potentially exposed:
    (1) 600 feetx500 feet=300,000 square feet (about 6.9 acres). The 
available information allows an initial determination of area 
potentially exposed via the ground water pathway to be estimated:
    (2) 300 feetx500 feet=150,000 square feet (about 3.5 acres).
    The total area potentially exposed is the sum of (1) and (2):

6.9+3.5=10.4 acres.

                              Surface Water

    The area of surface water resources potentially exposed should be 
estimated by applying the principles included in the examples provided 
below.

    Example 1: A release occurs and most of the oil or hazardous 
substance enters a creek, stream, or river instantaneously or over a 
short time interval (pulse input is assumed). The maximum concentration 
at any downstream location, past the initial mixing distance, is 
estimated by:

Cp=25(Wi)/(T0.7 Q)


where Cp is the peak concentration, in milligrams/liter (mg/
L),

Wi is the total reported (or estimated) weight of the 
          undiluted substance released, in pounds,
Q is the discharge of the creek, stream, or river, in cubic feet/second, 
          and
T is the time, in hours, when the peak concentration is estimated to 
          reach a downstream location L, in miles from the entry point.

    The time T may be estimated from:

T=1.5(L)/Vs

where T and L are defined as above and

Vs is the mean stream velocity, in feet per second.

The mean stream velocity may be estimated from available discharge 
measurements or from estimates of slope of the water surface S (foot 
drop per foot distance downstream) and estimates of discharge Q (defined 
above) using the following equations:

for pool and riffle reaches 
          Vs=0.38(Q0.40)(S0.20), or
for channel-controlled reaches 
          Vs=2.69(Q0.26)(S0.28).

Estimates of S may be made from the slope of the channel, if necessary.
    As the peak concentrations become attenuated by downstream 
transport, the plume containing the released substance becomes 
elongated. The time the plume might take to pass a particular point 
downstream may be estimated using the following equation:

Tp=9.25x106 Wi/(QCp)

where

Tp is the time estimate, in hours, and Wi, 
Cp, and Q are defined above.

    Example 2: A release occurs and most of the oil or hazardous 
substance enters a creek, stream, or river very slowly or over a long 
time period (sustained input assumed). The maximum concentration at any 
downstream location, past the initial mixing distance, is estimated by:

Cp=C(q)/(Q+


where Cp and Q are defined above,

C is the average concentration of the released substance during the 
          period of release, in mg/L, and
q is the discharge rate of the release into the streamflow, in cubic 
          feet/second.

For the above computations, the initial mixing distance may be estimated 
by:

Lm=(1.7x10-5)Vs B2/
          (D1.5 S0.5)

where

Lm is the initial mixing distance, in miles,
Vs is defined above,
B is the average stream surface width, in ft,
D is the mean depth of the stream, in ft, and
S is the estimated water-surface slope, in ft/ft.
    Example 3: A release occurs and the oil or hazardous substance 
enters a pond, lake, reservoir, or coastal body of water. The 
concentration of soluble released substance in the surface water body 
may be estimated by:

Cp=CVc/(Vw+Vc)


where

Cp and C are defined above,
Vc is the estimated total volume of substance released, in 
          volumetric units, and
Vw is the estimated volume of the surface water body, in the 
          same volumetric units used for Vc.

[51 FR 27725, Aug. 1, 1986, as amended at 52 FR 9100, Mar. 20, 1987]

Appendix II to Part 11--Format for Data Inputs and Modifications to the 
                                NRDAM/CME

    This appendix specifies the format for data inputs and modifications 
to the NRDAM/CME under Sec. 11.41. Consult the back of this appendix for 
definitions.

[[Page 278]]

                    Starting Point for the NRDAM/CME

    The NRDAM/CME begins its calculations at the point that the released 
substance entered water in an area represented by its geographic 
database. Any water within the geographic boundaries of the NRDAM/CME is 
a ``coastal or marine environment.'' The authorized official must 
determine all data inputs and modifications as of the time and location 
that the released substance entered a coastal or marine environment. In 
the case of a release that began in water in an area within the 
boundaries of the NRDAM/CME, this point will be the same as the point of 
the release. However, for releases that begin on land or that begin 
outside the boundaries of the NRDAM/CME, this point will not be the 
point of the release but rather the point at which the released 
substance migrates into a coastal or marine environment.

                          Required Data Inputs

    Documentation of the source of the data inputs; and

                          Identity of Substance

    For release of single substance:
    Name of the substance that entered a coastal or marine environment 
as it appears in Table 7.1, Volume I of the NRDAM/CME technical document 
(incorporated by reference, see Sec. 11.18).
    For releases of two or more substances or a release of a mixture of 
two or more substances:
    Name of only one of the substances that entered a coastal or marine 
environment as it appears in Table 7.1, Volume I of the NRDAM/CME 
technical document.

                             Mass or Volume

    For release of single substance:
    Mass or volume of identified substance that entered a coastal or 
marine environment stated in tonnes, barrels, gallons, liters, pounds, 
or kilograms.
    For releases of two or more substances or a release of a mixture of 
two or more substances:
    Mass or volume of the one identified substance (rather than total 
mass) that entered a coastal or marine environment stated in tonnes, 
barrels, gallons, liters, pounds, or kilograms.

                                Duration

    Length of time over which the identified substance entered a coastal 
or marine environment stated in hours.

                                  Time

    Year, month, day, and hour when the identified substance first 
entered a coastal or marine environment.

                                Location

    Latitude and longitude, stated in degrees and decimal minutes, where 
the identified substance entered a coastal or marine environment.

                                  Winds

    At least one set of data on prevailing wind conditions for each day 
of the 30-day period beginning 24 hours before the identified substance 
entered a coastal or marine environment. Each set must include:
    Wind velocity stated in knots or meters per second; and
    Corresponding wind direction stated in the degree angle of the 
wind's origin.

[One possible source of information is the National Climatic Data 
Center, Asheville, NC (703) 271-4800.]

                            Response Actions

    If removed from water surface:
    A rectangular geographic area encompassing the surface water area 
over which the released substance was likely to have spread, stated in 
terms of the northern- and southern-most latitude, and the eastern- and 
western-most longitude;
    One or more time frames for removal stated in terms of the number of 
days and hours after the identified substance entered a coastal or 
marine environment that removal began and ended; and
    For each time frame, volume of the identified substance removed from 
the water surface (not the total volume of contaminated water or 
sediments removed) stated in barrels, gallons, or cubic meters.
    If removed from shoreline:
    A rectangular geographic area encompassing the shoreline area over 
which the released substance was likely to have spread, stated in terms 
of the northern- and southern-most latitude, and the eastern- and 
western-most longitude;
    One or more time frames for removal stated in terms of the number of 
days and hours after the identified substance entered a coastal or 
marine environment that removal began and ended; and
    For each time frame, volume of the identified substance removed (not 
the total volume of contaminated water or sediments removed) stated in 
barrels, gallons, or cubic meters.

                                Closures

    Documentation that the closure was ordered by an appropriate agency 
as a result of the release;
    Province(s) in which closure occurred; and
    For beaches:
    Whether the beach was Federal or State (including municipal or 
county);

[[Page 279]]

    Number of days of closure stated by calendar month; and
    Length of shoreline closed, stated in kilometers, for each month in 
which closure occurred.
    For fisheries and shellfish harvest areas:
    Whether area closed was seaward open water, landward open water, or 
structured;
    Number of days of closure; and
    Area closed stated in square kilometers.
    For furbearer hunting or trapping areas and waterfowl hunting areas:
    Number of days of closure; and
    Area closed stated in square kilometers.

                         Implicit Price Deflator

    Quarterly implicit price deflator for the Gross National Product 
(base year 1992) for the quarter in which the identified substance 
entered a coastal or marine environment. [See the Survey of Current 
Business, published by the U.S. Department of Commerce/Bureau of 
Economic Analysis, 1441 L Street, NW, Washington, D.C., 20230, (202) 
606-9900.]

                                Currents

    For a rectangular geographic area encompassing the area affected by 
the release stated in terms of the northern- and southern-most latitude, 
and the eastern- and western-most longitude:
    At least one set of data concerning background (mean) current 
consisting of--
    An east-west (U) velocity stated in centimeters per second or knots;
    A north-south (V) velocity stated in centimeters per second or 
knots; and
    Latitude and longitude of the origin of the U and V velocity 
components.
    At least one set of data concerning tidal current at time of flood 
stage (i.e., rising tide) consisting of--
    An east-west (U) velocity stated in centimeters per second or knots;
    A north-south (V) velocity stated in centimeters per second or 
knots; and
    Latitude and longitude of the origin of the U and V velocity 
components.

[Possible sources of information are: the National Ocean Service, U.S. 
Department of Commerce, Riverdale, MD (310) 436-6990; and the Eldridge 
Tide and Pilot Book, Robert Eldridge White Publisher, Boston, MA (617) 
742-3045.]

                                  Tides

    Hour of high tide on the day that the identified substance entered a 
coastal or marine environment;
    Tidal range at point that the identified substance entered a coastal 
or marine environment stated in meters; and
    Whether the tide in the area affected by the release is diurnal 
(i.e., completes one full cycle every day) or semi-diurnal (i.e., 
completes two full cycles every day).

            Modifications to the NRDAM/CME Databases (if Any)

    Documentation of the source of the modification; and
    For air temperature:
    Air temperature, stated in degrees Celsius, assigned by the NRDAM/
CME at the point that the identified substance entered a coastal or 
marine environment (see Table III.3.2, Volume III of the NRDAM/CME 
technical document); and
    Substitute air temperature stated in degrees Celsius.
    For water temperature at the surface:
    Water temperature at the surface, stated in degrees Celsius, 
assigned by the NRDAM/CME at the point that the identified substance 
entered a coastal or marine environment (see Table III.3.3, Volume III 
of the NRDAM/CME technical document); and
    Substitute water temperature stated in degrees Celsius.
    For total suspended sediment concentration:
    Total suspended sediment concentration, stated in milligrams per 
liter, assigned by the NRDAM/CME at the point that the identified 
substance entered a coastal or marine environment (see Section 3, Volume 
I of the NRDAM/CME technical document); and
    Substitute suspended sediment concentration stated in milligrams per 
liter.
    For mean settling velocity of suspended solids:
    Mean settling velocity of suspended sediments, stated in meters per 
day, assigned by the NRDAM/CME at the point that the identified 
substance entered a coastal or marine environment (see Section 3, Volume 
I of the NRDAM/CME technical document); and
    Substitute suspended sediment concentration stated in milligrams per 
liter.
    For habitat type:
    Latitude and longitude bounds of area for which the habitat type is 
being modified;
    Habitat type assigned by the NRDAM/CME (see Section 3.4, Volume III 
of the NRDAM/CME technical document); and
    Substitute habitat type.
    For releases in Alaska, if the authorized official leaves the ice 
modeling function off, he or she must provide documentation that ice was 
absent at the site of the release.

                               Definitions

    Background (mean) current--net long-term current flow (i.e., one 
direction only), attributable to forces such as winds, river flow, water 
density, and tides, that remains when all the oscillatory (tidal) 
components have been removed either mathematically or by measurement 
techniques.
    Landward open water--a body of water that does not contain 
vegetation (e.g., wetland, seagrass, or kelp) or invertebrate reef 
(e.g., coral reef) and is classified as ``landward'' in

[[Page 280]]

Table 6.2, Volume I of the NRDAM/CME technical document.
    Province--one of the geographic areas delineated in Table 6.1, 
Volume I of the NRDAM/CME technical document.
    Seaward open water--a body of water that does not contain vegetation 
(e.g., wetlands, seagrass, or kelp) or invertebrate reef (e.g., coral 
reef) and is classified as ``seaward'' in Table 6.2, Volume I of the 
NRDAM/CME technical document.
    Structured-- in an area that contains vegetation (e.g., wetlands, 
seagrass, or kelp) or invertebrate reef (e.g., coral reef).
    Tidal current--currents caused by alternating rise and fall of the 
sea level due to the gravitational forces between the earth, moon, and 
sun.
    Tidal range--difference between the highest and lowest height of the 
tide.

[61 FR 20612, May 7, 1996]

Appendix III to Part 11--Format for Data Inputs and Modifications to the 
                                NRDAM/GLE

    This appendix specifies the format for data inputs and modifications 
to the NRDAM/GLE under Sec. 11.41. Consult the back of this appendix for 
definitions.

                            Point of Analysis

    The NRDAM/GLE begins its calculations at the point that the released 
substance entered water in an area represented by its geographic 
database. Any water within the geographic boundaries of the NRDAM/GLE is 
a ``Great Lakes environment.'' The authorized official must determine 
all data inputs and modifications as of the time and location that the 
released substance entered a Great Lakes environment. In the case of a 
release that began in water in an area within the boundaries of the 
NRDAM/GLE, this point will be the same as the point of the release. 
However, for releases that begin on land or that begin outside the 
boundaries of the NRDAM/GLE, this point will not be the point of the 
release but rather the point at which the released substance migrates 
into a Great Lakes environment.

                          Required Data Inputs

    Documentation of source of data inputs; and

                          Identity of Substance

    For release of single substance:
    Name of the released substance that entered a Great Lakes 
environment as it appears in Table 7.1, Volume I of the NRDAM/GLE 
technical document (incorporated by reference, see Sec. 11.18).
    For releases of two or more substances or a release of a mixture of 
two or more substances:
    Name of only one of the released substances that entered a Great 
Lakes environment as it appears in Table 7.1, Volume I of the NRDAM/GLE 
technical document.

                             Mass or Volume

    For releases of single substance:
    Mass or volume of identified substance that entered a Great Lakes 
environment stated in tonnes, barrels, gallons, liters, pounds, or 
kilograms.
    For releases of two or more substances or a release of a mixture of 
two or more substances:
    Mass or volume of the one identified substance (rather than total 
mass) that entered a Great Lakes environment stated in tonnes, barrels, 
gallons, liters, pounds, or kilograms.

                                Duration

    Length of time over which the identified substance entered a Great 
Lakes environment stated in hours.

                                  Time

    Year, month, day, and hour when the identified substance first 
entered a Great Lakes environment.

                                Location

    Latitude and longitude, stated in degrees and decimal minutes, where 
the identified substance entered a Great Lakes environment.

                                  Winds

    At least one set of data on prevailing wind conditions for each day 
of the 30-day period beginning 24 hours before the identified substance 
entered a Great Lakes environment. Each set must include:
    Wind velocity stated in knots or meters per second; and 
Corresponding wind direction stated in the degree angle of the wind's 
origin.

[One possible source of information is the National Climatic Data 
Center, Asheville, NC (703) 271-4800.]

                            Response Actions

    Percentage of identified substance removed from water surface, 
bottom sediments, and shoreline; and
    For each medium cleaned (water surface, bottom sediments, or 
shoreline), the number of days after the identified substance entered a 
Great Lakes environment that removal began and ended.

                                Closures

    Documentation that the closure was ordered by an appropriate agency 
as a result of the release; and
    For boating areas:

[[Page 281]]

    Number of weekend days of closure stated by calendar month;
    Number of weekday days of closure stated by calendar month; and
    Area closed stated in square kilometers.
    For beaches:
    Whether the beach was Federal or State (including municipal or 
county);
    Number of days of closure stated by calendar month; and
    Length of shoreline closed stated in meters.
    For fisheries:
    Whether area closed was an offshore, nearshore, or wetland fishery;
    Number of days of closure; and
    Area closed stated in square kilometers.
    For furbearer hunting or trapping areas and waterfowl hunting areas:
    Number of days of closure; and
    Area closed stated in square kilometers.

                         Implicit Price Deflator

    Quarterly implicit price deflator for the Gross National Product 
(base year 1992) for the quarter in which the identified substance 
entered a Great Lakes environment. [See the Survey of Current Business, 
published by the U.S. Department of Commerce/Bureau of Economic 
Analysis, 1441 L Street, NW, Washington, D.C., 20230, (202) 606-9900.]

            Modifications to the NRDAM/GLE Databases (if Any)

    Documentation of the source of the modifications; and
    For air temperature:
    Air temperature, stated in degrees Celsius, assigned by the NRDAM/
GLE at the point that the identified substance entered a Great Lakes 
environment (see Table III.6.1, Volume III of the NRDAM/GLE technical 
document); and
    Substitute air temperature stated in degrees Celsius.
    For water temperature at the surface:
    Water temperature at the surface, stated in degrees Celsius, 
assigned by the NRDAM/GLE at the point that the identified substance 
entered a Great Lakes environment (see Table III.6.2.6, Volume III of 
the NRDAM/GLE technical document); and
    Substitute water temperature stated in degrees Celsius.
    For total suspended sediment concentration:
    Total suspended sediment concentration, stated in milligrams per 
liter, assigned by the NRDAM/GLE at the point that the identified 
substance entered a Great Lakes environment (see Section 3, Volume I of 
the NRDAM/GLE technical document); and
    Substitute suspended sediment concentration stated in milligrams per 
liter.
    For mean settling velocity of suspended solids:
    Mean settling velocity of suspended sediments, stated in meters per 
day, assigned by the NRDAM/GLE at the point that the identified 
substance entered a Great Lakes environment (see Section 3, Volume I of 
the NRDAM/GLE technical document); and
    Substitute suspended sediment concentration stated in milligrams per 
liter.
    For habitat type:
    Latitude and longitude bounds of area for which the habitat type is 
being modified;
    Habitat type assigned by the NRDAM/GLE (see Section 6.2, Volume III 
of the NRDAM/GLE technical document); and
    Substitute habitat type.
    If the authorized official turns off the ice modeling function, then 
he or she must provide documentation that ice was absent from the site 
of the release.

                               Definitions

    Nearshore fishery--fishery in an open water area that is less than 
30 feet in depth or is in a connecting channel.
    Offshore fishery--fishery in an open water area that is 30 feet or 
more in depth.
    Wetland fishery--fishery that is not in an open water area.

[61 FR 20614, May 7, 1996]



PART 12--ADMINISTRATIVE AND AUDIT REQUIREMENTS AND COST PRINCIPLES FOR ASSISTANCE PROGRAMS--Table of Contents




Subpart A--Administrative and Audit Requirements and Cost Principles for 
                           Assistance Programs

Sec.
12.1  Scope of part.
12.2  What policies are financial assistance awards and subawards in the 
          form of grants and cooperative agreements subject to?
12.3  Effect on prior issuances.
12.4  Information collection requirements.
12.5  Waiver.

Subpart B [Reserved]

     Subpart C--Uniform Administrative Requirements for Grants and 
          Cooperative Agreements to State and Local Governments

                                 General

12.41  Purpose and scope of this part.
12.42  Scope of subpart.
12.43  Definitions.
12.44  Applicability.
12.45  Effect on other issuances.
12.46  Additions and exceptions.

[[Page 282]]

                         Pre-Award Requirements

12.50  Forms for applying for grants.
12.51  State plans.
12.52  Special grant or subgrant conditions for ``high-risk'' grantees.

                         Post-Award Requirements

                        Financial Administration

12.60  Standards for financial management systems.
12.61  Payment.
12.62  Allowable costs.
12.63  Period of availability of funds.
12.64  Matching or cost sharing.
12.65  Program income.
12.66  Non-Federal audit.

                    Changes, Property, and Subawards

12.70  Changes.
12.71  Real property.
12.72  Equipment.
12.73  Supplies.
12.74  Copyrights.
12.75  Subawards to debarred and suspended parties.
12.76  Procurement.
12.77  Subgrants.

              Reports, Records, Retention, and Enforcement

12.80  Monitoring and reporting program performance.
12.81  Financial reporting.
12.82  Retention and access requirements for records.
12.83  Enforcement.
12.84  Termination for convenience.

                      After-the-Grant Requirements

12.90  Closeout.
12.91  Later disallowances and adjustments.
12.92  Collection of amounts due.

                         Entitlements [Reserved]

Subpart D--Governmentwide Debarment and Suspension (Nonprocurement) and 
      Governmentwide Requirements for Drug-Free Workplace (Grants)

                                 General

12.100  Purpose.
12.105  Definitions.
12.110  Coverage.
12.115  Policy.

                            Effect of Action

12.200  Debarment or suspension.
12.205  Ineligible persons.
12.210  Voluntary exclusion.
12.215  Exception provision.
12.220  Continuation of covered transactions.
12.225  Failure to adhere to restrictions.

                                Debarment

12.300  General.
12.305  Causes for debarment.
12.310  Procedures.
12.311  Investigation and referral.
12.312  Notice of proposed debarment.
12.313  Opportunity to contest proposed debarment.
12.314  Debarring official's decision.
12.315  Settlement and voluntary exclusion.
12.320  Period of debarment.
12.325  Scope of debarment.

                               Suspension

12.400  General.
12.405  Causes for suspension.
12.410  Procedures.
12.411  Notice of suspension.
12.412  Opportunity to contest suspension.
12.413  Suspending official's decision.
12.415  Period of suspension.
12.420  Scope of suspension.

  Responsibilities of GSA, Department of the Interior and Participants

12.500  GSA responsibilities.
12.505  Department of the Interior responsibilities.
12.510  Participants' responsibilities.

                Drug-Free Workplace Requirements (Grants)

12.600  Purpose.
12.605  Definitions.
12.610  Coverage.
12.615  Grounds for suspension of payments, suspension or termination of 
          grants, or suspension or debarment.
12.620  Effect of violation.
12.625  Exception provision.
12.630  Certification requirements and procedures.
12.635  Reporting of and employee sanctions for convictions of criminal 
          drug offenses.

Appendix A to Subpart D--Certification Regarding Debarment, Suspension, 
          and Other Responsibility Matters--Primary Covered Transactions
Appendix B to Subpart D--Certification Regarding Debarment, Suspension, 
          Ineligibility and Voluntary Exclusion--Lower Tier Covered 
          Transactions
Appendix C to Subpart D--Certification Regarding Drug-Free Workplace 
          Requirements

      Subpart E--Buy American Requirements for Assistance Programs

                       Buy American Act--Supplies

12.700  Scope.
12.705  Definitions.
12.710  Policy.
12.715  Evaluating offers.

[[Page 283]]

12.720  Excepted articles, materials, and supplies.
12.725  Solicitation provisions and contract clause.
12.730  Buy American Act--Supplies.

                Buy American Act--Construction Materials

12.800  Scope.
12.805  Definitions.
12.810  Policy.
12.815  Evaluating offers.
12.820  Violations.
12.825  Solicitation provision and contract clause.
12.830  Buy American Act--Construction materials.

Subpart F--Uniform Administrative Requirements for Grants and Agreements 
 With Institutions of Higher Education, Hospitals, and Other Non-Profit 
                              Organizations

                                 General

12.901  Purpose.
12.902  Definitions.
12.903  Effect on other issuances.
12.904  Deviations.
12.905  Subawards.

                         Pre-Award Requirements

12.910  Purpose.
12.911  Pre-award policies.
12.912  Forms for applying for Federal assistance.
12.913  Debarment and suspension.
12.914  Special award conditions.
12.915  Metric system of measurement.
12.916  Resource Conservation and Recovery Act (RCRA) (Pub. L. 94-580 
          codified at 42 U.S.C. 6962).
12.917  Certifications and representations.

                         Post-Award Requirements

                    Financial and Program Management

12.920  Purpose of financial and program management.
12.921  Standards for financial management systems.
12.922  Payment.
12.923  Cost sharing or matching.
12.924  Program income.
12.925  Revision of budget and program plans.
12.926  Non-Federal audits.
12.927  Allowable costs.
12.928  Period of availability of funds.

                           Property Standards

12.930  Purpose of property standards.
12.931  Insurance coverage.
12.932  Real property.
12.933  Federally owned and exempt property.
12.934  Equipment.
12.935  Supplies and other expendable property.
12.936  Intangible property.
12.937  Property trust relationship.

                          Procurement Standards

12.940  Purpose of procurement standards.
12.941  Recipient responsibilities.
12.942  Codes of conduct.
12.943  Competition.
12.944  Procurement procedures.
12.945  Cost and price analysis.
12.946  Procurement records.
12.947  Contract administration.
12.948  Contract provisions.

                           Reports and Records

12.950  Purpose of reports and records.
12.951  Monitoring and reporting program performance.
12.952  Financial reporting.
12.953  Retention and access requirements for records.

                       Termination and Enforcement

12.960  Purpose of termination and enforcement.
12.961  Termination.
12.962  Enforcement.

                      After-the-Award Requirements

12.970  Purpose.
12.971  Closeout procedures.
12.972  Subsequent adjustments and continuing responsibilities.
12.973  Collection of amounts due.

Appendix A to Subpart F--Contract Provisions

    Authority: 5 U.S.C. 301; 31 U.S.C. 6101 note, 7501; 41 U.S.C. 252a, 
701 et seq; Pub. L. 104-256, 110 Stat. 1396; sec. 501, Pub. L. 105-62, 
111 Stat. 1338; sec. 503, Pub. L. 105-62, 111 Stat. 1339; sec. 303, Pub. 
L. 105-83, 111 Stat. 1589; sec. 307, Pub. L. 105-83, 111 Stat. 1590; 
E.O. 12549, 3 CFR, 1986 Comp., p. 189; E.O. 12674, 3 CFR, 1989 Comp., p. 
215; E.O. 12689, 3 CFR, 1989 Comp., p. 235; E.O. 12731, 3 CFR, 1990 
Comp., p. 306; E.O. 13043, 62 FR 19217; 3 CFR 1997 Comp., p. 195; OMB 
Circular A-102; OMB Circular A-110; and OMB Circular A-133.

    Cross Reference: See also Office of Management and Budget notice 
published at 55 FR 21679, May 25, 1990, and 60 FR 33036, June 26, 1995.

    Editorial Note: For additional information, see related documents 
published at 49 FR 24958, June 18, 1984; 52 FR 20178 and 20360, May 29, 
1987; 53 FR 8028, Mar. 11, 1988; 53 FR 19160, May 26, 1988; and 53 FR 
34474, Sept. 6, 1988.

[[Page 284]]



Subpart A--Administrative and Audit Requirements and Cost Principles for 
                           Assistance Programs

    Source: 50 FR 6176, Feb. 14, 1985 and 56 FR 45898, Sept. 9, 1991, 
unless otherwise noted.



Sec. 12.1  Scope of part.

    This part prescribes administrative requirements and cost principles 
for grants and cooperative agreements entered into by the Department.



Sec. 12.2  What policies are financial assistance awards and subawards in the form of grants and cooperative agreements subject to?

    (a) All financial assistance awards and subawards, in the form of 
grants and cooperative agreements, in accordance with paragraph (b) of 
this section, are subject to subparts C, D, E, and F of this part, OMB 
Circulars A-102, ``Grants and Cooperative Agreements with State and 
Local Governments,'' A-110, ``Grants and Other Agreements with 
Institutions of Higher Education, Hospitals, and Other Non-Profit 
Organizations,'' A-87, ``Cost Principles for State and Local 
Governments,'' A-21, ``Cost Principles for Educational Institutions,'' 
A-122, ``Cost Principles for Non-Profit Organizations,'' and A-133, 
``Audits of States, Local Governments, and Non-Profit Organizations.''
    (b)(1) Governmental recipients and subrecipients are subject to 
subparts C, D, and E of this part, Circulars A-87 and A-133.
    (2) Institutions of higher education which are recipients or 
subrecipients are subject to subparts D, E, and F of this part, 
Circulars A-110, A-21, and A-133.
    (3) Non-profit organizations which are recipients or subrecipients 
are subject to subparts D, E, and F of this part, Circulars A-110, A-
122, and A-133.
    (c) The circulars prescribed by this part published in the Federal 
Register are made a part of this regulation and include changes 
published in the Federal Register by OMB.
    (d)(1) Federal ethics and conduct regulations contained in 5 CFR 
part 2635 implement Executive Order 12674, 3 CFR, 1989 Comp., p. 215 (as 
modified by Executive Order 12731, 3 CFR, 1990 Comp., p. 306), 
``Principles of Ethical Conduct for Government Officers and Employees,'' 
by prohibiting employees from endorsing in an official capacity the 
proprietary products or processes of manufacturers or the services of 
commercial firms for advertising, publicity, or sales purposes. The 
Department's use of materials, products, or services does not constitute 
official endorsement.
    (2) The policy in paragraph (d)(1) of this section applies to a 
grant/cooperative agreement whose principal purpose is a partnership 
where the recipient/partner contributes resources to promote agency 
programs, publicize agency activities, assists in fundraising, or 
provides assistance to the agency. In the event that such a grant/
cooperative agreement is awarded to a recipient, other than a State 
government, a local government, or a Federally-recognized Indian tribal 
government, and authorizes joint dissemination of information and 
promotion of activities being supported, the following provision shall 
be made a term and condition of the award:

                  Grant/Cooperative Agreement Provision

    Recipient shall not publicize or otherwise circulate, promotional 
material (such as advertisements, sales brochures, press releases, 
speeches, still and motion pictures, articles, manuscripts or other 
publications) which states or implies governmental, Departmental, 
bureau, or government employee endorsement of a product, service, or 
position which the recipient represents. No release of information 
relating to this award may state or imply that the Government approves 
of the recipient's work products, or considers the recipient's work 
product to be superior to other products or services.
    All information submitted for publication or other public releases 
of information regarding this project shall carry the following 
disclaimer:
    The views and conclusions contained in this document are those of 
the authors and should not be interpreted as representing the opinions 
or policies of the U.S. Government. Mention of trade names or commercial 
products does not constitute their endorsement by the U.S. Government.
    Recipient must obtain prior Government approval for any public 
information releases concerning this award which refer to the Department 
of the Interior or any bureau or employee (by name or title). The 
specific

[[Page 285]]

text, layout photographs, etc. of the proposed release must be submitted 
with the request for approval.
    A recipient further agrees to include this provision in a subaward 
to any subrecipient, except for a subaward to a State government, a 
local government, or to a Federally-recognized Indian tribal government.

                           [End of Provision]

    (3) Recipient requests for clearance of public releases will be 
reviewed using existing public information mechanisms through the 
appropriate Public Affairs Office and with consultation with the 
cognizant Ethics Officer.
    (e) (1) What does Executive Order 13043, ``Increasing Seat Belt Use 
in the UnitedStates,'' dated April 16, 1997, do?
    (i) If you are a Federal grantee, you are encouraged to--
    (A) Adopt and enforce on-the-job seat belt use policies and programs 
for your employees when operating company-owned, rented, or personally 
owned vehicles.
    (B) Conduct education, awareness, and other appropriate programs for 
your employees about the importance of wearing seat belts and the 
consequences of not wearing them.
    (ii) [Reserved]
    (2) When does the policy apply?
    (i) If a grant/cooperative agreement is being awarded by the bureau/
office of the Department--The policy applies.
    (ii) If the recipient awards a grant or cooperative agreement to a 
subrecipient--The policy applies.
    (3) What terms and conditions will be incorporated into the grant/
cooperative agreement or sub-award, if use of a specific provision is 
desired and general applicability to 43 CFR Part 12 is not used instead?
    (i) The following provision will be incorporated into the grant/
cooperative agreement or sub-award:

                         The Seat Belt Provision

    Recipients of grants/cooperative agreements and/or sub-awards are 
encouraged to adopt and enforce on-the-job seat belt use policies and 
programs for their employees when operating company-owned, rented, or 
personally owned vehicles. These measures include, but are not limited 
to, conducting education, awareness, and other appropriate programs for 
their employees about the importance of wearing seat belts and the 
consequences of not wearing them.

                           [End of Provision]

    (ii) [Reserved]

[50 FR 6176, Feb. 14, 1985, as amended at 53 FR 8077, Mar. 11, 1988; 56 
FR 45898, Sept. 9, 1991; 59 FR 17712, Apr. 14, 1994; 62 FR 45944, Aug. 
29, 1997; 65 FR 39822, June 28, 2000]



Sec. 12.3  Effect on prior issuances.

    (a) All provisions of Department of the Interior nonregulatory 
program manuals, handbooks and other materials which are inconsistent 
with the above OMB Circulars are superseded, except to the extent that 
they are (1) required by statute, or (2) authorized in accordance with 
the exceptions provisions of each circular.
    (b) Except to the extent inconsistent with the regulations in 43 CFR 
part 12, subpart C, all existing Department of the Interior regulations 
in 25 CFR parts 23, 27, 39, 40, 41, 256, 272, 278, and 276; 30 CFR parts 
725, 735, 884, 886, and 890; 36 CFR parts 60, 61, 63, 65, 67, 72, and 
800; 43 CFR parts 26 and 32; and 50 CFR parts 80, 81, 82, 83, and 401 
are not superseded by these regulations nor are any paperwork approvals 
under the Paperwork Reduction Act.

[50 FR 6176, Feb. 14, 1985, as amended at 53 FR 8077, Mar. 11, 1988]



Sec. 12.4  Information collection requirements.

    Information collections in addition to those required by applicable 
OMB Circulars will be cleared by responsible bureaus and offices on an 
individual basis.



Sec. 12.5  Waiver.

    Only OMB can grant exceptions from the requirements of these 
Circulars when exceptions are not prohibited under existing laws.

Subpart B [Reserved]



     Subpart C--Uniform Administrative Requirements for Grants and 
          Cooperative Agreements to State and Local Governments

    Source: 53 FR 8077 and 8087, Mar. 11, 1988, unless otherwise noted.

[[Page 286]]

                                 General



Sec. 12.41  Purpose and scope of this part.

    This part establishes uniform administrative rules for Federal 
grants and cooperative agreements and subawards to State, local and 
Indian tribal governments.



Sec. 12.42  Scope of subpart.

    This subpart contains general rules pertaining to this part and 
procedures for control of exceptions from this part.



Sec. 12.43  Definitions.

    As used in this part:
    Accrued expenditures mean the charges incurred by the grantee during 
a given period requiring the provision of funds for: (1) Goods and other 
tangible property received; (2) services performed by employees, 
contractors, subgrantees, subcontractors, and other payees; and (3) 
other amounts becoming owed under programs for which no current services 
or performance is required, such as annuities, insurance claims, and 
other benefit payments.
    Accrued income means the sum of: (1) Earnings during a given period 
from services performed by the grantee and goods and other tangible 
property delivered to purchasers, and (2) amounts becoming owed to the 
grantee for which no current services or performance is required by the 
grantee.
    Acquisition cost of an item of purchased equipment means the net 
invoice unit price of the property 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 grantee's regular 
accounting practices.
    Administrative requirements mean those matters common to grants in 
general, such as financial management, kinds and frequency of reports, 
and retention of records. These are distinguished from ``programmatic'' 
requirements, which concern matters that can be treated only on a 
program-by-program or grant-by-grant basis, such as kinds of activities 
that can be supported by grants under a particular program.
    Awarding agency means (1) with respect to a grant, the Federal 
agency, and (2) with respect to a subgrant, the party that awarded the 
subgrant.
    Cash contributions means the grantee's cash outlay, including the 
outlay of money contributed to the grantee or subgrantee by other public 
agencies and institutions, and private organizations and individuals. 
When authorized by Federal legislation, Federal funds received from 
other assistance agreements may be considered as grantee or subgrantee 
cash contributions.
    Contract means (except as used in the definitions for ``grant'' and 
``subgrant'' in this section and except where qualified by ``Federal'') 
a procurement contract under a grant or subgrant, and means a 
procurement subcontract under a contract.
    Cost sharing or matching means the value of the third party in-kind 
contributions and the portion of the costs of a Federally assisted 
project or program not borne by the Federal Government.
    Cost-type contract means a contract or subcontract under a grant in 
which the contractor or subcontractor is paid on the basis of the costs 
it incurs, with or without a fee.
    Equipment means tangible, nonexpendable, personal property having a 
useful life of more than one year and an acquisition cost of $5,000 or 
more per unit. A grantee may use its own definition of equipment 
provided that such definition would at least include all equipment 
defined above.
    Expenditure report means: (1) For nonconstruction grants, the SF-269 
``Financial Status Report'' (or other equivalent report); (2) for 
construction grants, the SF-271 ``Outlay Report and Request for 
Reimbursement'' (or other equivalent report).
    Federally recognized Indian tribal government means the governing 
body or a governmental agency of any Indian tribe, band, nation, or 
other organized group or community (including any Native village as 
defined in section 3 of the Alaska Native Claims Settlement

[[Page 287]]

Act, 85 Stat 688) certified by the Secretary of the Interior as eligible 
for the special programs and services provided by him through the Bureau 
of Indian Affairs.
    Government means a State or local government or a Federally 
recognized Indian tribal government.
    Grant means an award of financial assistance, including cooperative 
agreements, in the form of money, or property in lieu of money, by the 
Federal Government to an eligible grantee. The term does not include 
technical assistance which provides services instead of money, or other 
assistance in the form of revenue sharing, loans, loan guarantees, 
interest subsidies, insurance, or direct appropriations. Also, the term 
does not include assistance, such as a fellowship or other lump sum 
award, which the grantee is not required to account for.
    Grantee means the government to which a grant is awarded and which 
is accountable for the use of the funds provided. The grantee is the 
entire legal entity even if only a particular component of the entity is 
designated in the grant award document.
    Local government means a county, municipality, city, town, township, 
local public authority (including any public and Indian housing agency 
under the United States Housing Act of 1937) school district, special 
district, intrastate district, council of governments (whether or not 
incorporated as a nonprofit corporation under State law), any other 
regional or interstate government entity, or any agency or 
instrumentality of a local government.
    Obligations means the amounts of orders placed, contracts and 
subgrants awarded, goods and services received, and similar transactions 
during a given period that will require payment by the grantee during 
the same or a future period.
    OMB means the U.S. Office of Management and Budget.
    Outlays (expenditures) mean 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 actual cash disbursement for direct 
charges for goods and services, the amount of indirect expense incurred, 
the value of in-kind contributions applied, and the amount of cash 
advances and payments made to contractors and subgrantees. For reports 
prepared on an accrued expenditure basis, outlays are the sum of actual 
cash disbursements, the amount of indirect expense incurred, the value 
of inkind contributions applied, and the new increase (or decrease) in 
the amounts owed by the grantee for goods and other property received, 
for services performed by employees, contractors, subgrantees, 
subcontractors, and other payees, and other amounts becoming owed under 
programs for which no current services or performance are required, such 
as annuities, insurance claims, and other benefit payments.
    Percentage of completion method refers to a system under which 
payments are made for construction work according to the percentage of 
completion of the work, rather than to the grantee's cost incurred.
    Prior approval means documentation evidencing consent prior to 
incurring specific cost.
    Real property means land, including land improvements, structures 
and appurtenances thereto, excluding movable machinery and equipment.
    Share, when referring to the awarding agency's portion of real 
property, equipment or supplies, means the same percentage as the 
awarding agency's portion of the acquiring party's total costs under the 
grant to which the acquisition costs under the grant to which the 
acquisition cost of the property was charged. Only costs are to be 
counted--not the value of third-party in-kind contributions.
    State means any of the several States of the United States, the 
District of Columbia, the Commonwealth of Puerto Rico, any territory or 
possession of the United States, or any agency or instrumentality of a 
State exclusive of local governments. The term does not include any 
public and Indian housing agency under United States Housing Act of 
1937.
    Subgrant means an award of financial assistance in the form of 
money, or property in lieu of money, made under a grant by a grantee to 
an eligible subgrantee. The term includes financial

[[Page 288]]

assistance when provided by contractual legal agreement, but does not 
include procurement purchases, nor does it include any form of 
assistance which is excluded from the definition of ``grant'' in this 
part.
    Subgrantee means the government or other legal entity to which a 
subgrant is awarded and which is accountable to the grantee for the use 
of the funds provided.
    Supplies means all tangible personal property other than 
``equipment'' as defined in this part.
    Suspension means depending on the context, either (1) temporary 
withdrawal of the authority to obligate grant funds pending corrective 
action by the grantee or subgrantee or a decision to terminate the 
grant, or (2) an action taken by a suspending official in accordance 
with agency regulations implementing E.O. 12549 to immediately exclude a 
person from participating in grant transactions for a period, pending 
completion of an investigation and such legal or debarment proceedings 
as may ensue.
    Termination means permanent withdrawal of the authority to obligate 
previously-awarded grant funds before that authority would otherwise 
expire. It also means the voluntary relinquishment of that authority by 
the grantee or subgrantee. ``Termination'' does not include: (1) 
Withdrawal of funds awarded on the basis of the grantee's underestimate 
of the unobligated balance in a prior period; (2) Withdrawal of the 
unobligated balance as of the expiration of a grant; (3) Refusal to 
extend a grant or award additional funds, to make a competing or 
noncompeting continuation, renewal, extension, or supplemental award; or 
(4) voiding of a grant upon determination that the award was obtained 
fraudulently, or was otherwise illegal or invalid from inception.
    Terms of a grant or subgrant mean all requirements of the grant or 
subgrant, whether in statute, regulations, or the award document.
    Third party in-kind contributions mean property or services which 
benefit a Federally assisted project or program and which are 
contributed by non-Federal third parties without charge to the grantee, 
or a cost-type contractor under the grant agreement.
    Unliquidated obligations for reports prepared on a cash basis mean 
the amount of obligations incurred by the grantee that has not been 
paid. For reports prepared on an accrued expenditure basis, they 
represent the amount of obligations incurred by the grantee for which an 
outlay has not been recorded.
    Unobligated balance means the portion of the funds authorized by the 
Federal agency that has not been obligated by the grantee and is 
determined by deducting the cumulative obligations from the cumulative 
funds authorized.



Sec. 12.44  Applicability.

    (a) General. Subparts A-D of this part apply to all grants and 
subgrants to governments, except where inconsistent with Federal 
statutes or with regulations authorized in accordance with the exception 
provision of Sec. 12.46, or:
    (1) Grants and subgrants to State and local institutions of higher 
education or State and local hospitals.
    (2) The block grants authorized by the Omnibus Budget Reconciliation 
Act of 1981 (Community Services; Preventive Health and Health Services; 
Alcohol, Drug Abuse, and Mental Health Services; Maternal and Child 
Health Services; Social Services; Low-Income Home Energy Assistance; 
States' Program of Community Development Block Grants for Small Cities; 
and Elementary and Secondary Education other than programs administered 
by the Secretary of Education under Title V, Subtitle D, Chapter 2, 
Section 583--the Secretary's discretionary grant program) and Titles I-
III of the Job Training Partnership Act of 1982 and under the Public 
Health Services Act (Section 1921), Alcohol and Drug Abuse Treatment and 
Rehabilitation Block Grant and Part C of Title V, Mental Health Service 
for the Homeless Block Grant).
    (3) Entitlement grants to carry out the following programs of the 
Social Security Act:
    (i) Aid to Needy Families with Dependent Children (Title IV-A of the 
Act, not including the Work Incentive

[[Page 289]]

Program (WIN) authorized by section 402(a)19(G); HHS grants for WIN are 
subject to this part);
    (ii) Child Support Enforcement and Establishment of Paternity (Title 
IV-D of the Act);
    (iii) Foster Care and Adoption Assistance (Title IV-E of the Act);
    (iv) Aid to the Aged, Blind, and Disabled (Titles I, X, XIV, and 
XVI-AABD of the Act); and
    (v) Medical Assistance (Medicaid) (Title XIX of the Act) not 
including the State Medicaid Fraud Control program authorized by section 
1903(a)(6)(B).
    (4) Entitlement grants under the following programs of The National 
School Lunch Act:
    (i) School Lunch (section 4 of the Act),
    (ii) Commodity Assistance (section 6 of the Act),
    (iii) Special Meal Assistance (section 11 of the Act),
    (iv) Summer Food Service for Children (section 13 of the Act), and
    (v) Child Care Food Program (section 17 of the Act).
    (5) Entitlement grants under the following programs of The Child 
Nutrition Act of 1966:
    (i) Special Milk (section 3 of the Act), and
    (ii) School Breakfast (section 4 of the Act).
    (6) Entitlement grants for State Administrative expenses under The 
Food Stamp Act of 1977 (section 16 of the Act).
    (7) A grant for an experimental, pilot, or demonstration project 
that is also supported by a grant listed in paragraph (a)(3) of this 
section.
    (8) Grant funds awarded under subsection 412(e) of the Immigration 
and Nationality Act (8 U.S.C. 1522(e)) and subsection 501(a) of the 
Refugee Education Assistance Act of 1980 (Pub. L. 96-422, 94 Stat. 
1809), for cash assistance, medical assistance, and supplemental 
security income benefits to refugees and entrants and the administrative 
costs of providing the assistance and benefits.
    (9) Grants to local education agencies under 20 U.S.C. 236 through 
241-1(a), and 242 through 244 (portions of the Impact Aid program), 
except for 20 U.S.C. 238(d)(2)(c) and 240(f) (Entitlement Increase for 
Handicapped Children); and
    (10) Payments under the Veterans Administration's State Home Per 
Diem Program (38 U.S.C. 641(a)).
    (b) Entitlement programs. Entitlement programs enumerated above in 
Sec. 12.44(a) (3) through (8) are subject to subpart E.



Sec. 12.45  Effect on other issuances.

    All other grants administration provisions of codified program 
regulations, program manuals, handbooks and other nonregulatory 
materials which are inconsistent with this part are superseded, except 
to the extent they are required by statute, or authorized in accordance 
with the exception provision in Sec. 12.46.



Sec. 12.46  Additions and exceptions.

    (a) For classes of grants and grantees subject to this part, Federal 
agencies may not impose additional administrative requirements except in 
codified regulations published in the Federal Register.
    (b) Exceptions for classes of grants or grantees may be authorized 
only by OMB.
    (c) Exceptions on a case-by-case basis and for subgrantees may be 
authorized by the affected Federal agencies.

                         Pre-Award Requirements



Sec. 12.50  Forms for applying for grants.

    (a) Scope. (1) This section prescribes forms and instructions to be 
used by governmental organizations (except hospitals and institutions of 
higher education operated by a government) in applying for grants. This 
section is not applicable, however, to formula grant programs which do 
not require applicants to apply for funds on a project basis.
    (2) This section applies only to applications to Federal agencies 
for grants, and is not required to be applied by grantees in dealing 
with applicants for subgrants. However, grantees are encouraged to avoid 
more detailed or burdensome application requirements for subgrants.
    (b) Authorized forms and instructions for governmental 
organizations. (1) In applying for grants, applicants shall only use 
standard application forms or those

[[Page 290]]

prescribed by the granting agency with the approval of OMB under the 
Paperwork Reduction Act of 1980.
    (2) Applicants are not required to submit more than the original and 
two copies of preapplications or applications.
    (3) Applicants must follow all applicable instructions that bear OMB 
clearance numbers. Federal agencies may specify and describe the 
programs, functions, or activities that will be used to plan, budget, 
and evaluate the work under a grant. Other supplementary instructions 
may be issued only with the approval of OMB to the extent required under 
the Paperwork Reduction Act of 1980. For any standard form, except the 
SF-424 facesheet, Federal agencies may shade out or instruct the 
applicant to disregard any line item that is not needed.
    (4) When a grantee applies for additional funding (such as a 
continuation or supplemental award) or amends a previously submitted 
application, only the affected pages need be submitted. Previously 
submitted pages with information that is still current need not be 
resubmitted.



Sec. 12.51  State plans.

    (a) Scope. The statutes for some programs require States to submit 
plans before receiving grants. Under regulations implementing Executive 
Order 12372, ``Intergovernmental Review of Federal Programs,'' States 
are allowed to simplify, consolidate and substitute plans. This section 
contains additional provisions for plans that are subject to regulations 
implementing the Executive order.
    (b) Requirements. A State need meet only Federal administrative or 
programmatic requirements for a plan that are in statutes or codified 
regulations.
    (c) Assurances. In each plan the State will include an assurance 
that the State shall comply with all applicable Federal statutes and 
regulations in effect with respect to the periods for which it receives 
grant funding. For this assurance and other assurances required in the 
plan, the State may:
    (1) Cite by number the statutory or regulatory provisions requiring 
the assurances and affirm that it gives the assurances required by those 
provisions,
    (2) Repeat the assurance language in the statutes or regulations, or
    (3) Develop its own language to the extent permitted by law.
    (d) Amendments. A State will amend a plan whenever necessary to 
reflect: (1) New or revised Federal statutes or regulations or (2) a 
material change in any State law, organization, policy, or State agency 
operation. The State will obtain approval for the amendment and its 
effective date but need submit for approval only the amended portions of 
the plan.



Sec. 12.52  Special grant or subgrant conditions for ``high-risk'' grantees.

    (a) A grantee or subgrantee may be considered ``high risk'' if an 
awarding agency determines that a grantee or subgrantee:
    (1) Has a history of unsatisfactory performance, or
    (2) Is not financially stable, or
    (3) Has a management system which does not meet the management 
standards set forth in this part, or
    (4) Has not conformed to terms and conditions of previous awards, or
    (5) Is otherwise not responsible; and if the awarding agency 
determines that an award will be made, special conditions and/or 
restrictions shall correspond to the high risk condition and shall be 
included in the award.
    (b) Special conditions or restrictions may include:
    (1) Payment on a reimbursement basis;
    (2) Withholding authority to proceed to the next phase until receipt 
of evidence of acceptable performance within a given funding period;
    (3) Requiring additional, more detailed financial reports;
    (4) Additional project monitoring;
    (5) Requiring the grante or subgrantee to obtain technical or 
management assistance; or
    (6) Establishing additional prior approvals.
    (c) If an awarding agency decides to impose such conditions, the 
awarding official will notify the grantee or subgrantee as early as 
possible, in writing, of:

[[Page 291]]

    (1) The nature of the special conditions/restrictions;
    (2) The reason(s) for imposing them;
    (3) The corrective actions which must be taken before they will be 
removed and the time allowed for completing the corrective actions and
    (4) The method of requesting reconsideration of the conditions/
restrictions imposed.

                         Post-Award Requirements

                        Financial Administration



Sec. 12.60  Standards for financial management systems.

    (a) A State must expand and account for grant funds in accordance 
with State laws and procedures for expending and accounting for its own 
funds. Fiscal control and accounting procedures of the State, as well as 
its subgrantees and cost-type contractors, must be sufficient to--
    (1) Permit preparation of reports required by this part and the 
statutes authorizing the grant, and
    (2) Permit the tracing of funds to a level of expenditures adequate 
to establish that such funds have not been used in violation of the 
restrictions and prohibitions of applicable statutes.
    (b) The financial management systems of other grantees and 
subgrantees must meet the following standards:
    (1) Financial reporting. Accurate, current, and complete disclosure 
of the financial results of financially assisted activities must be made 
in accordance with the financial reporting requirements of the grant or 
subgrant.
    (2) Accounting records. Grantees and subgrantees must maintain 
records which adequately identify the source and application of funds 
provided for financially-assisted activities. These records must contain 
information pertaining to grant or subgrant awards and authorizations, 
obligations, unobligated balances, assets, liabilities, outlays or 
expenditures, and income.
    (3) Internal control. Effective control and accountability must be 
maintained for all grant and subgrant cash, real and personal property, 
and other assets. Grantees and subgrantees must adequately safeguard all 
such property and must assure that it is used solely for authorized 
purposes.
    (4) Budget control. Actual expenditures or outlays must be compared 
with budgeted amounts for each grant or subgrant. Financial information 
must be related to performance or productivity data, including the 
development of unit cost information whenever appropriate or 
specifically required in the grant or subgrant agreement. If unit cost 
data are required, estimates based on available documentation will be 
accepted whenever possible.
    (5) Allowable cost. Applicable OMB cost principles, agency program 
regulations, and the terms of grant and subgrant agreements will be 
followed in determining the reasonableness, allowability, and 
allocability of costs.
    (6) Source documentation. Accounting records must be supported by 
such source documentation as cancelled checks, paid bills, payrolls, 
time and attendance records, contract and subgrant award documents, etc.
    (7) Cash management. Procedures for minimizing the time elapsing 
between the transfer of funds from the U.S. Treasury and disbursement by 
grantees and subgrantees must be followed whenever advance payment 
procedures are used. Grantees must establish reasonable procedures to 
ensure the receipt of reports on subgrantees' cash balances and cash 
disbursements in sufficient time to enable them to prepare complete and 
accurate cash transactions reports to the awarding agency. When advances 
are made by letter-of-credit or electronic transfer of funds methods, 
the grantee must make drawdowns as close as possible to the time of 
making disbursements. Grantees must monitor cash drawdowns by their 
subgrantees to assure that they conform substantially to the same 
standards of timing and amount as apply to advances to the grantees.
    (c) An awarding agency may review the adequacy of the financial 
management system of any applicant for financial assistance as part of a 
preaward review or at any time subsequent to award.



Sec. 12.61  Payment.

    (a) Scope. This section prescribes the basic standard and the 
methods under

[[Page 292]]

which a Federal agency will make payments to grantees, and grantees will 
make payments to subgrantees and contractors.
    (b) Basic standard. Methods and procedures for payment shall 
minimize the time elapsing between the transfer of funds and 
disbursement by the grantee or subgrantee, in accordance with Treasury 
regulations at 31 CFR part 205.
    (c) Advances. Grantees and subgrantees shall be paid in advance, 
provided they maintain or demonstrate the willingness and ability to 
maintain procedures to minimize the time elapsing between the transfer 
of the funds and their disbursement by the grantee or subgrantee.
    (d) Reimbursement. Reimbursement shall be the preferred method when 
the requirements in paragraph (c) of this section are not met. Grantees 
and subgrantees may also be paid by reimbursement for any construction 
grant. Except as otherwise specified in regulation, Federal agencies 
shall not use the percentage of completion method to pay construction 
grants. The grantee or subgrantee may use that method to pay its 
construction contractor, and if it does, the awarding agency's payments 
to the grantee or subgrantee will be based on the grantee's or 
subgrantee's actual rate of disbursement.
    (e) Working capital advances. If a grantee cannot meet the criteria 
for advance payments described in paragraph (c) of this section, and the 
Federal agency has determined that reimbursement is not feasible because 
the grantee lacks sufficient working capital, the awarding agency may 
provide cash or a working capital advance basis. Under this procedure 
the awarding agency shall advance cash to the grantee to cover its 
estimated disbursement needs for an initial period generally geared to 
the grantee's disbursing cycle. Thereafter, the awarding agency shall 
reimburse the grantee for its actual cash disbursements. The working 
capital advance method of payment shall not be used by grantees or 
subgrantees if the reason for using such method is the unwillingness or 
inability of the grantee to provide timely advances to the subgrantee to 
meet the subgrantee's actual cash disbursements.
    (f) Effect of program income, refunds, and audit recoveries on 
payment. (1) Grantees and subgrantees shall disburse repayments to and 
interest earned on a revolving fund before requesting additional cash 
payments for the same activity.
    (2) Except as provided in paragraph (f)(1) of this section, grantees 
and subgrantees shall disburse program income, rebates, refunds, 
contract settlements, audit recoveries and interest earned on such funds 
before requesting additional cash payments.
    (g) Withholding payments. (1) Unless otherwise required by Federal 
statute, awarding agencies shall not withhold payments for proper 
charges incurred by grantees or subgrantees unless--
    (i) The grantee or subgrantee has failed to comply with grant award 
conditions, or
    (ii) The grantee or subgrantee is indebted to the United States.
    (2) Cash withheld for failure to comply with grant award condition, 
but without suspension of the grant, shall be released to the grantee 
upon subsequent compliance. When a grant is suspended, payment 
adjustments will be made in accordance with Sec. 12.83(c).
    (3) A Federal agency shall not make payment to grantees for amounts 
that are withheld by grantees or subgrantees from payment to contractors 
to assure satisfactory completion of work. Payments shall be made by the 
Federal agency when the grantees or subgrantees actually disburse the 
withheld funds to the contractors or to escrow accounts established to 
assure satisfactory completion of work.
    (h) Cash depositories. (1) Consistent with the national goal of 
expanding the opportunities for minority business enterprises, grantees 
and subgrantees are encouraged to use minority banks (a bank which is 
owned at least 50 percent by minority group members). A list of minority 
owned banks can be obtained from the Minority Business Development 
Agency, Department of Commerce, Washington, DC 20230.
    (2) A grantee or subgrantee shall maintain a separate bank account 
only when required by Federal-State agreement.

[[Page 293]]

    (i) Interest earned on advances. Except for interest earned on 
advances of funds exempt under the Intergovernmental Cooperation Act (31 
U.S.C. 6501 et seq.) and the Indian Self-Determination Act (23 U.S.C. 
450), grantees and subgrantees shall promptly, but at least quarterly, 
remit interest earned on advances to the Federal agency. The grantee or 
subgrantee may keep interest amounts up to $100 per year for 
administrative expenses.



Sec. 12.62  Allowable costs.

    (a) Limitation on use of funds. Grant funds may be used only for:
    (1) The allowable costs of the grantees, subgrantees and cost-type 
contractors, including allowable costs in the form of payments to fixed-
price contractors; and
    (2) Reasonable fees or profit to cost-type contractors but not any 
fee or profit (or other increment above allowable costs) to the grantee 
or subgrantee.
    (b) Applicable cost principles. For each kind of organization, there 
is a set of Federal principles for determining allowable costs. 
Allowable costs will be determined in accordance with the cost 
principles applicable to the organization incurring the costs. The 
following chart lists the kinds of organizations and the applicable cost 
principles.

------------------------------------------------------------------------
           For the costs of a--                Use the principles in--
------------------------------------------------------------------------
State, local or Indian tribal government..  OMB Circular A-87.
Private nonprofit organization other than   OBM Circular A-122.
 an (1) institution of higher education,
 (2) hospital, or (3) organization named
 in OMB Circular A-122 as not subject to
 that circular.
Educational institutions..................  OMB Circular A-21.
For-profit organization other than a        48 CFR Part 31. Contract
 hospital and an organization named in OBM   Cost Principles and
 Circular A-122 as not subject to that       Procedures, or uniform cost
 circular.                                   accounting standards that
                                             comply with cost principles
                                             acceptable to the Federal
                                             agency.
------------------------------------------------------------------------



Sec. 12.63  Period of availability of funds.

    (a) General. Where a funding period is specified, a grantee may 
charge to the award only costs resulting from obligations of the funding 
period unless carryover of unobligated balances is permitted, in which 
case the carryover balances may be charged for costs resulting from 
obligations of the subsequent funding period.
    (b) Liquidation of obligations. A grantee must liquidate all 
obligations incurred under the award not later than 90 days after the 
end of the funding period (or as specified in a program regulation) to 
coincide with the submission of the annual Financial Status Report (SF-
269). The Federal agency may extend this deadline at the request of the 
grantee.



Sec. 12.64  Matching or cost sharing.

    (a) Basic rule: Costs and contributions acceptable. With the 
qualifications and exceptions listed in paragraph (b) of this section, a 
matching or cost sharing requirement may be satisfied by either or both 
of the following:
    (1) Allowable costs incurred by the grantee, subgrantee or a cost-
type contractor under the assistance agreement. This includes allowable 
costs borne by non-Federal grants or by others cash donations from non-
Federal third parties.
    (2) The value of third party in-kind contributions applicable to the 
period to which the cost sharing or matching requirements applies.
    (b) Qualifications and exceptions--(1) Costs borne by other Federal 
grant agreements. Except as provided by Federal statute, a cost sharing 
or matching requirement may not be met by costs borne by another Federal 
grant. This prohibition does not apply to income earned by a grantee or 
subgrantee from a contract awarded under another Federal grant.
    (2) General revenue sharing. For the purpose of this section, 
general revenue sharing funds distributed under 31 U.S.C. 6702 are not 
considered Federal grant funds.
    (3) Cost or contributions counted towards other Federal costs-
sharing requirements. Neither costs nor the values of third party in-
kind contributions may count towards satisfying a cost sharing or 
matching requirement of a grant agreement if they have been or will be 
counted towards satisfying a cost sharing or matching requirement of 
another Federal grant agreement, a Federal procurement contract, or any 
other award of Federal funds.

[[Page 294]]

    (4) Costs financed by program income. Costs financed by program 
income, as defined in Sec. 12.65, shall not count towards satisfying a 
cost sharing or matching requirement unless they are expressly permitted 
in the terms of the assistance agreement. (This use of general program 
income is described in Sec. 12.65(g).)
    (5) Services or property financed by income earned by contractors. 
Contractors under a grant may earn income from the activities carried 
out under the contract in addition to the amounts earned from the party 
awarding the contract. No costs of services or property supported by 
this income may count toward satisfying a cost sharing or matching 
requirement unless other provisions of the grant agreement expressly 
permit this kind of income to be used to meet the requirement.
    (6) Records. Costs and third party in-kind contributions counting 
towards satisfying a cost sharing or matching requirement must be 
verifiable from the records of grantees and subgrantee or cost-type 
contractors. These records must show how the value placed on third party 
in-kind contributions was derived. To the extent feasible, volunteer 
services will be supported by the same methods that the organization 
uses to support the allocability of regular personnel costs.
    (7) Special standards for third party in-kind contributions. (i) 
Third party in-kind contributions count towards satisfying a cost 
sharing or matching requirement only where, if the party receiving the 
contributions were to pay for them, the payments would be allowable 
costs.
    (ii) Some third party in-kind contributions are goods and services 
that, if the grantee, subgrantee, or contractor receiving the 
contribution had to pay for them, the payments would have been an 
indirect costs. Costs sharing or matching credit for such contributions 
shall be given only if the grantee, subgrantee, or contractor has 
established, along with its regular indirect cost rate, a special rate 
for allocating to individual projects or programs the value of the 
contributions.
    (iii) A third party in-kind contribution to a fixed-price contract 
may count towards satisfying a cost sharing or matching requirement only 
if it results in:
    (A) An increase in the services or property provided under the 
contract (without additional cost to the grantee or subgrantee) or
    (B) A cost savings to the grantee or subgrantee.
    (iv) The values placed on third party in-kind contributions for cost 
sharing or matching purposes will conform to the rules in the succeeding 
sections of this part. If a third party in-kind contribution is a type 
not treated in those sections, the value placed upon it shall be fair 
and reasonable.
    (c) Valuation of donated services--(1) Volunteer services. Unpaid 
services provided to a grantee or subgrantee by individuals will be 
6valued at rates consistent with those ordinarily paid for similar work 
in the grantee's or subgrantee's organization. If the grantee or 
subgrantee does not have employees performing similar work, the rates 
will be consistent with those ordinarily paid by other employers for 
similar work in the same labor market. In either case, a reasonable 
amount for fringe benefits may be included in the valuation.
    (2) Employees of other organizations. When an employer other than a 
grantee, subgrantee, or cost-type contractor furnishes free of charge 
the services of an employee in the employee's normal line of work, the 
services will be valued at the employee's regular rate of pay exclusive 
of the employee's fringe benefits and overhead costs. If the services 
are in a different line of work, paragraph (c)(1) of this section 
applies.
    (d) Valuation of third party donated supplies and loaned equipment 
or space. (1) If a third party donates supplies, the contribution will 
be valued at the market value of the supplies at the time of donation.
    (2) If a third party donates the use of equipment or space in a 
building but retains title, the contribution will be valued at the fair 
rental rate of the equipment or space.
    (e) Valuation of third party donated equipment, buildings, and land. 
If a third party donates equipment, buildings, or land, and title passes 
to a grantee or subgrantee, the treatment of the donated property will 
depend upon the

[[Page 295]]

purpose of the grant or subgrant, as follows:
    (1) Awards for capital expenditures. If the purpose of the grant or 
subgrant is to assist the grantee or subgrantee in the acquisition of 
property, the market value of that property at the time of donation may 
be counted as cost sharing or matching,
    (2) Other awards. If assisting in the acquisition of property is not 
the purpose of the grant or subgrant, paragraphs (e)(2) (i) and (ii) of 
this section apply:
    (i) If approval is obtained from the awarding agency, the market 
value at the time of donation of the donated equipment or buildings and 
the fair rental rate of the donated land may be counted as cost sharing 
or matching. In the case of a subgrant, the terms of the grant agreement 
may require that the approval be obtained from the Federal agency as 
well as the grantee. In all cases, the approval may be given only if a 
purchase of the equipment or rental of the land would be approved as an 
allowable direct cost. If any part of the donated property was acquired 
with Federal funds, only the non-Federal share of the property may be 
counted as cost-sharing or matching.
    (ii) If approval is not obtained under paragraph (e)(2)(i) of this 
section, no amount may be counted for donated land, and only 
depreciation or use allowances may be counted for donated equipment and 
buildings. The depreciation or use allowances for this property are not 
treated as third party in-kind contributions. Instead, they are treated 
as costs incurred by the grantee or subgrantee. They are computed and 
allocated (usually as indirect costs) in accordance with the cost 
principles specified in Sec. 12.62, in the same way as depreciation or 
use allowances for purchased equipment and buildings. The amount of 
depreciation or use allowances for donated equipment and buildings is 
based on the property's market value at the time it was donated.
    (f) Valuation of grantee or subgrantee donated real property for 
construction/acquisition. If a grantee or subgrantee donates real 
property for a construction or facilities acquisition project, the 
current market value of that property may be counted as cost sharing or 
matching. If any part of the donated property was acquired with Federal 
funds, only the non-Federal share of the property may be counted as cost 
sharing or matching.
    (g) Appraisal of real property. In some cases under paragraphs (d), 
(e) and (f) of this section, it will be necessary to establish the 
market value of land or a building or the fair rental rate of land or of 
space in a building. In these cases, the Federal agency may require the 
market value or fair rental value be set by an independent appraiser, 
and that the value or rate be certified by the grantee. This requirement 
will also be imposed by the grantee on subgrantees.



Sec. 12.65  Program income.

    (a) General. Grantees are encouraged to earn income to defray 
program costs. Program income includes income from fees for services 
performed, from the use or rental of real or personal property acquired 
with grant funds, from the sale of commodities or items fabricated under 
a grant agreement, and from payments of principal and interest on loans 
made with grant funds. Except as otherwise provided in regulations of 
the Federal agency, program income does not include interest on grant 
funds, rebates, credits, discounts, refunds, etc. and interest earned on 
any of them.
    (b) Definition of program income. Program income means gross income 
received by the grantee or subgrantee directly generated by a grant 
supported activity, or earned only as a result of the grant agreement 
during the grant period. ``During the grant period'' is the time between 
the effective date of the award and the ending date of the award 
reflected in the final financial report.
    (c) Cost of generating program income. If authorized by Federal 
regulations or the grant agreement, costs incident to the generation of 
program income may be deducted from gross income to determine program 
income.
    (d) Governmental revenues. Taxes, special assessments, levies, 
fines, and other such revenues raised by a grantee or subgrantee are not 
program income unless the revenues are specifically identified in the 
grant agreement or

[[Page 296]]

Federal agency regulations as program income.
    (e) Royalties. Income from royalties and license fees for 
copyrighted material, patents, and inventions developed by a grantee or 
subgrantee is program income only if the revenues are specifically 
identified in the grant agreement or Federal agency regulations as 
program income. (See Sec. 12.74.)
    (f) Property. Proceeds from the sale of real property or equipment 
will be handled in accordance with the requirements of Secs. 12.71 and 
12.72.
    (g) Use of program income. Program income shall be deducted from 
outlays which may be both Federal and non-Federal as described below, 
unless the Federal agency regulations or the grant agreement specify 
another alternative (or a combination of the alternatives). In 
specifying alternatives, the Federal agency may distinguish between 
income earned by the grantee and income earned by subgrantees and 
between the sources, kinds, or amounts of income. When Federal agencies 
authorize the alternatives in paragraphs (g) (2) and (3) of this 
section, program income in excess of any limits stipulated shall also be 
deducted from outlays.
    (1) Deduction. Ordinarily program income shall be deducted from 
total allowable costs to determine the net allowable costs. Program 
income shall be used for current costs unless the Federal agency 
authorizes otherwise. Program income which the grantee did not 
anticipate at the time of the award shall be used to reduce the Federal 
agency and grantee contributions rather than to increase the funds 
committed to the project.
    (2) Addition. When authorized, program income may be added to the 
funds committed to the grant agreement by the Federal agency and the 
grantee. The program income shall be used for the purposes and under the 
conditions of the grant agreement.
    (3) Cost sharing or matching. When authorized, program income may be 
used to meet the cost sharing or matching requirement of the grant 
agreement. The amount of the Federal grant award remains the same.
    (h) Income after the award period. There are no Federal requirements 
governing the disposition of program income earned after the end of the 
award period (i.e., until the ending date of the final financial report, 
see paragraph (a) of this section), unless the terms of the agreement or 
the Federal agency regulations provide otherwise.



Sec. 12.66  Non-Federal audit.

    (a) Basic rule. Grantees and subgrantees are responsible for 
obtaining audits in accordance with the Single Audit Act Amendments of 
1996 (31 U.S.C. 7501-7507) and revised OMB Circular A-133, ``Audits of 
States, Local Governments, and Non-Profit Organizations.'' The audits 
shall be made by an independent auditor in accordance with generally 
accepted government auditing standards covering financial audits.
    (b) Subgrantees. State or local governments, as those terms are 
defined for purposes of the Single Audit Act Amendments of 1996, that 
provide Federal awards to a subgrantee, which expends $300,000 or more 
(or other amount as specified by OMB) in Federal awards in a fiscal 
year, shall:
    (1) Determine whether State or local subgrantees have met the audit 
requirements of the Act and whether subgrantees covered by OMB Circular 
A-110, ``Uniform Administrative Requirements for Grants and Agreements 
with Institutions of Higher Education, Hospitals, and Other Non-Profit 
Organizations,'' have met the audit requirements of the Act. Commercial 
contractors (private for-profit and private and governmental 
organizations) providing goods and services to State and local 
governments are not required to have a single audit performed. State and 
local governments should use their own procedures to ensure that the 
contractor has complied with laws and regulations affecting the 
expenditure of Federal funds;
    (2) Determine whether the subgrantee spent Federal assistance funds 
provided in accordance with applicable laws and regulations. This may be 
accomplished by reviewing an audit of the subgrantee made in accordance 
with the Act, Circular A-110, or through other means (e.g., program 
reviews) if the subgrantee has not had such an audit;

[[Page 297]]

    (3) Ensure that appropriate corrective action is taken within six 
months after receipt of the audit report in instance of noncompliance 
with Federal laws and regulations;
    (4) Consider whether subgrantee audits necessitate adjustment of the 
grantee's own records; and
    (5) Require each subgrantee to permit independent auditors to have 
access to the records and financial statements.
    (c) Auditor selection. In arranging for audit services, Sec. 12.36 
shall be followed.

[53 FR 8077 and 8087, Mar. 11, 1988, as amended at 62 FR 45939, 45945, 
Aug. 29, 1997]

                    Changes, Property, and Subawards



Sec. 12.70  Changes.

    (a) General. Grantees and subgrantees are permitted to rebudget 
within the approved direct cost budget to meet unanticipated 
requirements and may make limited program changes to the approved 
project. However, unless waived by the awarding agency, certain types of 
post-award changes in budgets and projects shall require the prior 
written approval of the awarding agency.
    (b) Relation to cost principles. The applicable cost principles (see 
Sec. 12.62) contain requirements for prior approval of certain types of 
costs. Except where waived, those requirements apply to all grants and 
subgrants even if paragraphs (c) through (f) of this section do not.
    (c) Budget changes--(1) Nonconstruction projects. Except as stated 
in other regulations or an award document, grantees or subgrantees shall 
obtain the prior approval of the awarding agency whenever any of the 
following changes is anticipated under a nonconstruction award:
    (i) Any revision which would result in the need for additional 
funding.
    (ii) Unless waived by the awarding agency, cumulative transfers 
among direct cost categories, or, if applicable, among separately 
budgeted programs, projects, functions, or activities which exceed or 
are expected to exceed ten percent of the current total approved budget, 
whenever the awarding agency's share exceeds $100,000.
    (iii) Transfer of funds allotted for training allowances (i.e., from 
direct payments to trainees to other expense categories).
    (2) Construction projects. Grantees and subgrantees shall obtain 
prior written approval for any budget revision which would result in the 
need for additional funds.
    (3) Combined construction and nonconstruction projects. When a grant 
or subgrant provides funding for both construction and nonconstruction 
activities, the grantee or subgrantee must obtain prior written approval 
from the awarding agency before making any fund or budget transfer from 
nonconstruction to construction or vice versa.
    (d) Programmatic changes. Grantees or subgrantees must obtain the 
prior approval of the awarding agency whenever any of the following 
actions is anticipated:
    (1) Any revision of the scope or objectives of the project 
(regardless of whether there is an associated budget revision requiring 
prior approval).
    (2) Need to extend the period of availability of funds.
    (3) Changes in key persons in cases where specified in an 
application or a grant award. In research projects, a change in the 
project director or principal investigator shall always require approval 
unless waived by the awarding agency.
    (4) Under nonconstruction projects, contracting out, subgranting (if 
authorized by law) or otherwise obtaining the services of a third party 
to perform activities which are central to the purposes of the award. 
This approval requirement is in addition to the approval requirements of 
Sec. 12.76 but does not apply to the procurement of equipment, supplies, 
and general support services.
    (e) Additional prior approval requirements. The awarding agency may 
not require prior approval for any budget revision which is not 
described in paragraph (c) of this section.
    (f) Requesting prior approval. (1) A request for prior approval of 
any budget revision will be in the same budget formal the grantee used 
in its application and shall be accompanied by a narrative justification 
for the proposed revision.

[[Page 298]]

    (2) A request for a prior approval under the applicable Federal cost 
principles (see Sec. 12.62) may be made by letter.
    (3) A request by a subgrantee for prior approval will be addressed 
in writing to the grantee. The grantee will promptly review such request 
and shall approve or disapprove the request in writing. A grantee will 
not approve any budget or project revision which is inconsistent with 
the purpose or terms and conditions of the Federal grant to the grantee. 
If the revision, requested by the subgrantee would result in a change to 
the grantee's approved project which requires Federal prior approval, 
the grantee will obtain the Federal agency's approval before approving 
the subgrantee's request.



Sec. 12.71  Real property.

    (a) Title. Subject to the obligations and conditions set forth in 
this section, title to real property acquired under a grant or subgrant 
will vest upon acquisition in the grantee or subgrantee respectively.
    (b) Use. Except as otherwise provided by Federal statutes, real 
property will be used for the originally authorized purposes as long as 
needed for that purposes, and the grantee or subgrantee shall not 
dispose of or encumber its title or other interests.
    (c) Disposition. When real property is no longer needed for the 
originally authorized purpose, the grantee or subgrantee will request 
disposition instructions from the awarding agency. The instructions will 
provide for one of the following alternatives:
    (1) Retention of title. Retain title after compensating the awarding 
agency. The amount paid to the awarding agency will be computed by 
applying the awarding agency's percentage of participation in the cost 
of the original purchase to the fair market value of the property. 
However, in those situations where a grantee or subgrantee is disposing 
of real property acquired with grant funds and acquiring replacement 
real property under the same program, the net proceeds from the 
disposition may be used as an offset to the cost of the replacement 
property.
    (2) Sale of property. Sell the property and compensate the awarding 
agency. The amount due to the awarding agency will be calculated by 
applying the awarding agency's percentage of participation in the cost 
of the original purchase to the proceeds of the sale after deduction of 
any actual and reasonable selling and fixing-up expenses. If the grant 
is still active, the net proceeds from sale may be offset against the 
original cost of the property. When a grantee or subgrantee is directed 
to sell property, sales procedures shall be followed that provide for 
competition to the extent practicable and result in the highest possible 
return.
    (3) Transfer of title. Transfer title to the awarding agency or to a 
third-party designated/approved by the awarding agency. The grantee or 
subgrantee shall be paid an amount calculated by applying the grantee or 
subgrantee's percentage of participation in the purchase of the real 
property to the current fair market value of the property.



Sec. 12.72  Equipment.

    (a) Title. Subject to the obligations and conditions set forth in 
this section, title to equipment acquired under a grant or subgrant will 
vest upon acquisition in the grantee or subgrantee respectively.
    (b) States. A State will use, manage, and dispose of equipment 
acquired under a grant by the State in accordance with State laws and 
procedures. Other grantees and subgrantees will follow paragraphs (c) 
through (e) of this section.
    (c) Use. (1) Equipment shall be used by the grantee or subgrantee in 
the program or project for which it was acquired as long as needed, 
whether or not the project or program continues to be supported by 
Federal funds. When no longer needed for the original program or 
project, the equipment may be used in other activities currently or 
previously supported by a Federal agency.
    (2) The grantee or subgrantee shall also make equipment available 
for use on other projects or programs currently or previously supported 
by the Federal Government, providing such use will not interfere with 
the work on the projects or program for which it

[[Page 299]]

was originally acquired. First preference for other use shall be given 
to other programs or projects supported by the awarding agency. User 
fees should be considered if appropriate.
    (3) Notwithstanding the encouragement in Sec. 12.65(a) to earn 
program income, the grantee or subgrantee must not use equipment 
acquired with grant funds to provide services for a fee to compete 
unfairly with private companies that provide equivalent services, unless 
specifically permitted or contemplated by Federal statute.
    (4) When acquiring replacement equipment, the grantee or subgrantee 
may use the equipment to be replaced as a trade-in or sell the property 
and use the proceeds to offset the cost of the replacement property, 
subject to the approval of the awarding agency.
    (d) Management requirements. Procedures for managing equipment 
(including replacement equipment), whether acquired in whole or in part 
with grant funds, until disposition takes place will, as a minimum, meet 
the following requirements:
    (1) Property records must be maintained that include a description 
of the property, a serial number or other identification number, the 
source of property, who holds title, the acquisition date, and cost of 
the property, percentage of Federal participation in the cost of the 
property, the location, use and condition of the property, and any 
ultimate disposition data including the date of disposal and sale price 
of the property.
    (2) A physical inventory of the property must be taken and the 
results reconciled with the property records at least once every two 
years.
    (3) A control system must be developed to ensure adequate safeguards 
to prevent loss, damage, or theft of the property. Any loss, damage, or 
theft shall be investigated.
    (4) Adequate maintenance procedures must be developed to keep the 
property in good condition.
    (5) If the grantee or subgrantee is authorized or required to sell 
the property, proper sales procedures must be established to ensure the 
highest possible return.
    (e) Disposition. When original or replacement equipment acquired 
under a grant or subgrant is no longer needed for the original project 
or program or for other activities currently or previously supported by 
a Federal agency, disposition of the equipment will be made as follows:
    (1) Items of equipment with a current per-unit fair market value of 
less than $5,000 may be retained, sold or otherwise disposed of with no 
further obligation to the awarding agency.
    (2) Items of equipment with a current per unit fair market value in 
excess of $5,000 may be retained or sold and the awarding agency shall 
have a right to an amount calculated by multiplying the current market 
value or proceeds from sale by the awarding agency's share of the 
equipment.
    (3) In cases where a grantee or subgrantee fails to take appropriate 
disposition actions, the awarding agency may direct the grantee or 
subgrantee to take excess and disposition actions.
    (f) Federal equipment. In the event a grantee or subgrantee is 
provided Federally-owned equipment:
    (1) Title will remain vested in the Federal Government.
    (2) Grantees or subgrantees will manage the equipment in accordance 
with Federal agency rules and procedures, and submit an annual inventory 
listing.
    (3) When the equipment is no longer needed, the grantee or 
subgrantee will request disposition instructions from the Federal 
agency.
    (g) Right to transfer title. The Federal awarding agency may reserve 
the right to transfer title to the Federal Government or a third part 
named by the awarding agency when such a third party is otherwise 
eligible under existing statutes. Such transfers shall be subject to the 
following standards:
    (1) The property shall be identified in the grant or otherwise made 
known to the grantee in writing.
    (2) The Federal awarding agency shall issue disposition instruction 
within 120 calendar days after the end of the Federal support of the 
project for which it was acquired. If the Federal awarding agency fails 
to issue disposition instructions within the 120 calendar-day period the 
grantee shall follow 12.72(e).

[[Page 300]]

    (3) When title to equipment is transferred, the grantee shall be 
paid an amount calculated by applying the percentage of participation in 
the purchase to the current fair market value of the property.



Sec. 12.73  Supplies.

    (a) Title. Title to supplies acquired under a grant or subgrant will 
vest, upon acquisition, in the grantee or subgrantee respectively.
    (b) Disposition. If there is a residual inventory of unused supplies 
exceeding $5,000 in total aggregate fair market value upon termination 
or completion of the award, and if the supplies are not needed for any 
other Federally sponsored programs or projects, the grantee or 
subgrantee shall compensate the awarding agency for its share.



Sec. 12.74  Copyrights.

    The Federal awarding agency reserves a royalty-free, nonexclusive, 
and irrevocable license to reproduce, publish or otherwise use, and to 
authorize others to use, for Federal Government purposes:
    (a) The copyright in any work developed under a grant, subgrant, or 
contract under a grant or subgrant; and
    (b) Any rights of copyright to which a grantee, subgrantee or a 
contractor purchases ownership with grant support.



Sec. 12.75  Subawards to debarred and suspended parties.

    Grantees and subgrantees must not make any award or permit any award 
(subgrant or contract) at any tier to any party which is debarred or 
suspended or is otherwise excluded from or ineligible for participation 
in Federal assistance programs under Executive Order 12549, ``Debarment 
and Suspension.''



Sec. 12.76  Procurement.

    (a) States. When procuring property and services under a grant, a 
State will follow the same policies and procedures it uses for 
procurements from its non-Federal funds. The State will ensure that 
every purchase order or other contract includes any clauses required by 
Federal statutes and executive orders and their implementing 
regulations. Other grantees and subgrantees will follow paragraphs (b) 
through (i) in this section.
    (b) Procurement standards. (1) Grantees and subgrantees will use 
their own procurement procedures which reflect applicable State and 
local laws and regulations, provided that the procurements conform to 
applicable Federal law and the standards identified in this section.
    (2) Grantees and subgrantees will maintain a contract administration 
system which ensures that contractors perform in accordance with the 
terms, conditions, and specifications of their contracts or purchase 
orders.
    (3) Grantees and subgrantees will maintain a written code of 
standards of conduct governing the performance of their employees 
engaged in the award and administration of contracts. No employee, 
officer or agent of the grantee or subgrantee shall participate in 
selection, or in the award or administration of a contract supported by 
Federal funds if a conflict of interest, real or apparent, would be 
involved. Such a conflict would arise when:
    (i) The employee, officer or agent,
    (ii) Any member of his immediate family,
    (iii) His or her partner, or
    (iv) An organization which employs, or is about to employ, any of 
the above, has a financial or other interest in the firm selected for 
award. The grantee's or subgrantee's officers, employees or agents will 
neither solicit nor accept gratuities, favors or anything of monetary 
value from contractors, potential contractors, or parties to 
subagreements. Grantee and subgrantees may set minimum rules where the 
financial interest is not substantial or the gift is an unsolicited item 
of nominal intrinsic value. To the extent permitted by State or local 
law or regulations, such standards or conduct will provide for 
penalties, sanctions, or other disciplinary actions for violations of 
such standards by the grantee's and subgrantee's officers, employees, or 
agents, or by contractors or their agents. The awarding agency may in 
regulation provide additional prohibitions relative to real, apparent, 
or potential conflicts of interest.

[[Page 301]]

    (4) Grantee and subgrantee procedures will provide for a review of 
proposed procurements to avoid purchase of unnecessary or duplicative 
items. Consideration should be given to consolidating or breaking out 
procurements to obtain a more economical purchase. Where appropriate, an 
analysis will be made of lease versus purchase alternatives, and any 
other appropriate analysis to determine the most economical approach.
    (5) To foster greater economy and efficiency, grantees and 
subgrantees are encouraged to enter into State and local 
intergovernmental agreements for procurement or use of common goods and 
services.
    (6) Grantees and subgrantees are encouraged to use Federal excess 
and surplus property in lieu of purchasing new equipment and property 
whenever such use is feasible and reduces project costs.
    (7) Grantees and subgrantees are encouraged to use value engineering 
clauses in contracts for construction projects of sufficient size to 
offer reasonable opportunities for cost reductions. Value engineering is 
a systematic and creative anaylsis of each contract item or task to 
ensure that its essential function is provided at the overall lower 
cost.
    (8) Grantees and subgrantees will make awards only to responsible 
contractors possessing the ability to perform successfully under the 
terms and conditions of a proposed procurement. Consideration will be 
given to such matters as contractor integrity, compliance with public 
policy, record of past performance, and financial and technical 
resources.
    (9) Grantees and subgrantees will maintain records sufficient to 
detail the significant history of a procurement. These records will 
include, but are not necessarily limited to the following: rationale for 
the method of procurement, selection of contract type, contractor 
selection or rejection, and the basis for the contract price.
    (10) Grantees and subgrantees will use time and material type 
contracts only--
    (i) After a determination that no other contract is suitable, and
    (ii) If the contract includes a ceiling price that the contractor 
exceeds at its own risk.
    (11) Grantees and subgrantees alone will be responsible, in 
accordance with good administrative practice and sound business 
judgment, for the settlement of all contractual and administrative 
issues arising out of procurements. These issues include, but are not 
limited to source evaluation, protests, disputes, and claims. These 
standards do not relieve the grantee or subgrantee of any contractual 
responsibilities under its contracts. Federal agencies will not 
substitute their judgment for that of the grantee or subgrantee unless 
the matter is primarily a Federal concern. Violations of law will be 
referred to the local, State, or Federal authority having proper 
jurisdiction.
    (12) Grantees and subgrantees will have protest procedures to handle 
and resolve disputes relating to their procurements and shall in all 
instances disclose information regarding the protest to the awarding 
agency. A protestor must exhaust all administrative remedies with the 
grantee and subgrantee before pursuing a protest with the Federal 
agency. Reviews of protests by the Federal agency will be limited to:
    (i) Violations of Federal law or regulations and the standards of 
this section (violations of State or local law will be under the 
jurisdiction of State or local authorities) and
    (ii) Violations of the grantee's or subgrantee's protest procedures 
for failure to review a complaint or protest. Protests received by the 
Federal agency other than those specified above will be referred to the 
grantee or subgrantee.
    (c) Competition. (1) All procurement transactions will be conducted 
in a manner providing full and open competition consistent with the 
standards of Sec. 12.76. Some of the situations considered to be 
restrictive of competition include but are not limited to:
    (i) Placing unreasonable requirements on firms in order for them to 
qualify to do business,
    (ii) Requiring unnecessary experience and excessive bonding,
    (iii) Noncompetitive pricing practices between firms or between 
affiliated companies,

[[Page 302]]

    (iv) Noncompetitive awards to consultants that are on retainer 
contracts,
    (v) Organizational conflicts of interest,
    (vi) Specifying only a ``brand name'' product instead of allowing 
``an equal'' product to be offered and describing the performance of 
other relevant requirements of the procurement, and
    (vii) Any arbitrary action in the procurement process.
    (2) Grantees and subgrantees will conduct procurements in a manner 
that prohibits the use of statutorily or administratively imposed in-
State or local geographical preferences in the evaluation of bids or 
proposals, except in those cases where applicable Federal statutes 
expressly mandate or encourage geographic preference. Nothing in this 
section preempts State licensing laws. When contracting for 
architectural and engineering (A/E) services, geographic location may be 
a selection criteria provided its application leaves an appropriate 
number of qualified firms, given the nature and size of the project, to 
compete for the contract.
    (3) Grantees will have written selection procedures for procurement 
transactions. These procedures will ensure that all solicitations:
    (i) Incorporate a clear and accurate description of the technical 
requirements for the material, product, or service to be procured. Such 
description shall not, in competitive procurements, contain features 
which unduly restrict competition. The description may include a 
statement of the qualitative nature of the material, product or service 
to be procured, and when necessary, shall set forth those minimum 
essential characteristics and standards to which it must conform if it 
is to satisfy its intended use. Detailed product specifications should 
be avoided if at all possible. When it is impractical or uneconomical to 
make a clear and accurate description of the technical requirements, a 
``brand name or equal'' description may be used as a means to define the 
performance or other salient requirements of a procurement. The specific 
features of the named brand which must be met by offerors shall be 
clearly stated; and
    (ii) Identify all requirements which the offerors must fulfill and 
all other factors to be used in evaluating bids or proposals.
    (4) Grantees and subgrantees will ensure that all prequalified lists 
of persons, firms, or products which are used in acquiring goods and 
services are current and include enough qualified sources to ensure 
maximum open and free competition. Also, grantees and subgrantees will 
not preclude potential bidders from qualifying during the solicitation 
period.
    (d) Methods of procurement to be followed--(1) Procurement by small 
purchase procedures. Small purchase procedures are those relatively 
simple and informal procurement methods for securing services, supplies, 
or other property that do not cost more than the simplified acquisition 
threshold fixed at 41 U.S.C. 403(11) (currently set at $100,000). If 
small purchase procedures are used, price or rate quotations shall be 
obtained from an adequate number of qualified sources.
    (2) Procurement by sealed bids (formal advertising). Bids are 
publicly solicited and a firm-fixed-price contract (lump sum or unit 
price) is awarded to the responsible bidder whose bid, conforming with 
all the material terms and conditions of the invitation for bids, is the 
lowest in price. The sealed bid method is the preferred method for 
procuring construction, if the conditions in Sec. 12.76(d)(2)(i) apply.
    (i) In order for sealed bidding to be feasible, the following 
conditions should be present:
    (A) A complete, adequate, and realistic specification or purchase 
description is available;
    (B) Two or more responsible bidders are willing and able to compete 
effectively and for the business; and
    (C) The procurement lends itself to a firm fixed price contract and 
the selection of the successful bidder can be made principally on the 
basis of price.
    (ii) If sealed bids are used, the following requirements apply:
    (A) The invitation for bids will be publicly advertised and bids 
shall be solicited from an adequate number of known suppliers, providing 
them sufficient time prior to the date set for opening the bids;

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    (B) The invitation for bids, which will include any specifications 
and pertinent attachments, shall define the items or services in order 
for the bidder to properly respond;
    (C) All bids will be publicly opened at the time and place 
prescribed in the invitation for bids;
    (D) A firm fixed-price contract award will be made in writing to the 
lowest responsive and responsible bidder. Where specified in bidding 
documents, factors such as discounts, transportation cost, and life 
cycle costs shall be considered in determining which bid is lowest. 
Payment discounts will only be used to determine the low bid when prior 
experience indicates that such discounts are usually taken advantage of; 
and
    (E) Any or all bids may be rejected if there is a sound documented 
reason.
    (3) Procurement by competitive proposals. The technique of 
competitive proposals is normally conducted with more than one source 
submitting an offer, and either a fixed-price or cost-reimbursement type 
contract is awarded. It is generally used when conditions are not 
appropriate for the use of sealed bids. If this method is used, the 
following requirements apply:
    (i) Requests for proposals will be publicized and identify all 
evaluation factors and their relative importance. Any response to 
publicized requests for proposals shall be honored to the maximum extent 
practical;
    (ii) Proposals will be solicited from an adequate number of 
qualified sources;
    (iii) Grantees and subgrantees will have a method for conducting 
technical evaluations of the proposals received and for selecting 
awardees;
    (iv) Awards will be made to the responsible firm whose proposal is 
most advantageous to the program, with price and other factors 
considered; and
    (v) Grantees and subgrantees may use competitive proposal procedures 
for qualifications-based procurement of architectural/engineering (A/E) 
professional services whereby competitors' qualifications are evaluated 
and the most qualified competitor is selected, subject to negotiation of 
fair and reasonable compensation. The method, where price is not used as 
a selection factor, can only be used in procurement of A/E professional 
services. It cannot be used to purchase other types of services though 
A/E firms are a potential source to perform the proposed effort.
    (4) Procurement by noncompetitive proposals is procurement through 
solicitation of a proposal from only one source, or after solicitation 
of a number of sources, competition is determined inadequate.
    (i) Procurement by noncompetitive proposals may be used only when 
the award of a contract is infeasible under small purchase procedures, 
sealed bids or competitive proposals and one of the following 
circumstances applies:
    (A) The item is available only from a single source;
    (B) The public exigency or emergency for the requirement will not 
permit a delay resulting from competitive solicitation;
    (C) The awarding agency authorizes noncompetitive proposals; or
    (D) After solicitation of a number of sources, competition is 
determined inadequate.
    (ii) Cost analysis, i.e., verifying the proposed cost data, the 
projections of the data, and the evaluation of the specific elements of 
costs and profits, is required.
    (iii) Grantees and subgrantees may be required to submit the 
proposed procurement to the awarding agency for pre-award review in 
accordance with paragraph (g) of this section.
    (e) Contracting with small and minority firms, women's business 
enterprise and labor surplus area firms. (1) The grantee and subgrantee 
will take all necessary affirmative steps to assure that minority firms, 
women's business enterprises, and labor surplus area firms are used when 
possible.
    (2) Affirmative steps shall include:
    (i) Placing qualified small and minority businesses and women's 
business enterprises on solicitation lists;
    (ii) Assuring that small and minority businesses, and women's 
business enterprises are solicited whenever they are potential sources;

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    (iii) Dividing total requirements, when economically feasible, into 
smaller tasks or quantities to permit maximum participation by small and 
minority business, and women's business enterprises;
    (iv) Establishing delivery schedules, where the requirement permits, 
which encourage participation by small and minority business, and 
women's business enterprises;
    (v) Using the services and assistance of the Small Business 
Administration, and the Minority Business Development Agency of the 
Department of Commerce; and
    (vi) Requiring the prime contractor, if subcontracts are to be let, 
to take the affirmative steps listed in paragraphs (e)(2) (i) through 
(v) of this section.
    (f) Contract cost and price. (1) Grantees and subgrantees must 
perform a cost or price analysis in connection with every procurement 
action including contract modifications. The method and degree of 
analysis is dependent on the facts surrounding the particular 
procurement situation, but as a starting point, grantees must make 
independent estimates before receiving bids or proposals. A cost 
analysis must be performed when the offeror is required to submit the 
elements of his estimated cost, e.g., under professional, consulting, 
and architectural engineering services contracts. A cost analysis will 
be necessary when adequate price competition is lacking, and for sole 
source procurements, including contract modifications or change orders, 
unless price resonableness can be established on the basis of a catalog 
or market price of a commercial product sold in substantial quantities 
to the general public or based on prices set by law or regulation. A 
price analysis will be used in all other instances to determine the 
reasonableness of the proposed contract price.
    (2) Grantees and subgrantees will negotiate profit as a separate 
element of the price for each contract in which there is no price 
competition and in all cases where cost analysis is performed. To 
establish a fair and reasonable profit, consideration will be given to 
the complexity of the work to be performed, the risk borne by the 
contractor, the contractor's investment, the amount of subcontracting, 
the quality of its record of past performance, and industry profit rates 
in the surrounding geographical area for similar work.
    (3) Costs or prices based on estimated costs for contracts under 
grants will be allowable only to the extent that costs incurred or cost 
estimates included in negotiated prices are consistent with Federal cost 
principles (see Sec. 12.62). Grantees may reference their own cost 
principles that comply with the applicable Federal cost principles.
    (4) The cost plus a percentage of cost and percentage of 
construction cost methods of contracting shall not be used.
    (g) Awarding agency review. (1) Grantees and subgrantees must make 
available, upon request of the awarding agency, technical specifications 
on proposed procurements where the awarding agency believes such review 
is needed to ensure that the item and/or service specified is the one 
being proposed for purchase. This review generally will take place prior 
to the time the specification is incorporated into a solicitation 
document. However, if the grantee or subgrantee desires to have the 
review accomplished after a solicitation has been developed, the 
awarding agency may still review the specifications, with such review 
usually limited to the technical aspects of the proposed purchase.
    (2) Grantees and subgrantees must on request make available for 
awarding agency pre-award review procurement documents, such as requests 
for proposals or invitations for bids, independent cost estimates, etc. 
when:
    (i) A grantee's or subgrantee's procurement procedures or operation 
fails to comply with the procurement standards in this section; or
    (ii) The procurement is expected to exceed the simplified 
acquisition threshold and is to be awarded without competition or only 
one bid or offer is received in response to a solicitation; or
    (iii) The procurement, which is expected to exceed the simplified 
acquisition threshold, specifies a ``brand name'' product; or

[[Page 305]]

    (iv) The proposed award is more than the simplified acquisition 
threshold and is to be awarded to other than the apparent low bidder 
under a sealed bid procurement; or
    (v) A proposed contract modification changes the scope of a contract 
or increases the contract amount by more than the simplified acquisition 
threshold.
    (3) A grantee or subgrantee will be exempt from the pre-award review 
in paragraph (g)(2) of this section if the awarding agency determines 
that its procurement systems comply with the standards of this section.
    (i) A grantee or subgrantee may request that its procurement system 
be reviewed by the awarding agency to determine whether its system meets 
these standards in order for its system to be certified. Generally, 
these reviews shall occur where there is a continuous high-dollar 
funding, and third-party contracts are awarded on a regular basis.
    (ii) A grantee or subgrantee may self-certify its procurement 
system. Such self-certification shall not limit the awarding agency's 
right to survey the system. Under a self-certification procedure, 
awarding agencies may wish to rely on written assurances from the 
grantee or subgrantee that it is complying with these standards. A 
grantee or subgrantee will cite specific procedures, regulations, 
standards, etc., as being in compliance with these requirements and have 
its system available for review.
    (h) Bonding requirements. For construction or facility improvement 
contracts or subcontracts exceeding the simplified acquisition 
threshold, the awarding agency may accept the bonding policy and 
requirements of the grantee or subgrantee provided the awarding agency 
has made a determination that the awarding agency'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 will, 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 law of all persons 
supplying labor and material in the execution of the work provided for 
in the contract.
    (i) Contract provisions. A grantee's and subgrantee's contracts must 
contain provisions in paragraph (i) of this section. Federal agencies 
are permitted to require changes, remedies, changed conditions, access 
and records retention, suspension of work, and other clauses approved by 
the Office of Federal Procurement Policy.
    (1) Administrative, contractual, or legal remedies in instances 
where contractors violate or breach contract terms, and provide for such 
sanctions and penalties as may be appropriate. (Contracts more than the 
simplified acquisition threshold)
    (2) Termination for cause and for convenience by the grantee or 
subgrantee including the manner by which it will be effected and the 
basis for settlement. (All contracts in excess of $10,000)
    (3) Compliance with Executive Order 11246 of September 24, 1965, 
entitled ``Equal Employment Opportunity,'' as amended by Executive Order 
11375 of October 13, 1967, and as supplemented in Department of Labor 
regulations (41 CFR chapter 60). (All construction contracts awarded in 
excess of $10,000 by grantees and their contractors or subgrantees)
    (4) Compliance with the Copeland ``Anti-Kickback'' Act (18 U.S.C. 
874) as supplemented in Department of Labor regulations (29 CFR Part 3). 
(All contracts and subgrants for construction or repair)

[[Page 306]]

    (5) Compliance with the Davis-Bacon Act (40 U.S.C. 276a to 276a-7) 
as supplemented by Department of Labor regulations (29 CFR Part 5). 
(Construction contracts in excess of $2000 awarded by grantees and 
subgrantees when required by Federal grant program legislation)
    (6) Compliance with Sections 103 and 107 of the Contract Work Hours 
and Safety Standards Act (40 U.S.C. 327-330) as supplemented by 
Department of Labor regulations (29 CFR Part 5). (Construction contracts 
awarded by grantees and subgrantees in excess of $2000, and in excess of 
$2500 for other contracts which involve the employment of mechanics or 
laborers)
    (7) Notice of awarding agency requirements and regulations 
pertaining to reporting.
    (8) Notice of awarding agency requirements and regulations 
pertaining to patent rights with respect to any discovery or invention 
which arises or is developed in the course of or under such contract.
    (9) Awarding agency requirements and regulations pertaining to 
copyrights and rights in data.
    (10) Access by the grantee, the subgrantee, the Federal grantor 
agency, the Comptroller General of the United States, or any of their 
duly authorized representatives to any books, documents, papers, and 
records of the contractor which are directly pertinent to that specific 
contract for the purpose of making audit, examination, excerpts, and 
transcriptions.
    (11) Retention of all required records for three years after 
grantees or subgrantees make final payments and all other pending 
matters are closed.
    (12) Compliance with all applicable standards, orders, or 
requirements issued under section 306 of the Clean Air Act (42 U.S.C. 
1857(h)), section 508 of the Clean Water Act (33 U.S.C. 1368), Executive 
Order 11738, and Environmental Protection Agency regulations (40 CFR 
part 15). (Contracts, subcontracts, and subgrants of amounts in excess 
of $100,000)
    (13) Mandatory standards and policies relating to energy efficiency 
which are contained in the State energy conservation plan issued in 
compliance with the Energy Policy and Conservation Act (Pub. L. 94-163, 
89 Stat. 871).

[53 FR 8077 and 8087, Mar. 11, 1988, as amended at 60 FR 19639, 19644, 
Apr. 19, 1995]



Sec. 12.77  Subgrants.

    (a) States. States shall follow State law and procedures when 
awarding and administering subgrants (whether on a cost reimbursement or 
fixed amount basis) of financial assistance to local and Indian tribal 
governments. States shall:
    (1) Ensure that every subgrant includes any clauses required by 
Federal statute and executive orders and their implementing regulations;
    (2) Ensure that subgrantees are aware of requirements imposed upon 
them by Federal statute and regulation;
    (3) Ensure that a provision for compliance with Sec. 12.82 is placed 
in every cost reimbursement subgrant; and
    (4) Conform any advances of grant funds to subgrantees substantially 
to the same standards of timing and amount that apply to cash advances 
by Federal agencies.
    (b) All other grantees. All other grantees shall follow the 
provisions of this part which are applicable to awarding agencies when 
awarding and administering subgrants (whether on a cost reimbursement or 
fixed amount basis) of financial assistance to local and Indian tribal 
governments. Grantees shall:
    (1) Ensure that every subgrant includes a provision for compliance 
with this part;
    (2) Ensure that every subgrant includes any clauses required by 
Federal statute and executive orders and their implementing regulations; 
and
    (3) Ensure that subgrantees are aware of requirements imposed upon 
them by Federal statutes and regulations.
    (c) Exceptions. By their own terms, certain provisions of this part 
do not apply to the award and administration of subgrants:
    (1) Section 12.50;
    (2) Section 12.51;
    (3) The letter-of-credit procedures specified in Treasury 
Regulations at 31 CFR part 205, cited in Sec. 12.61; and
    (4) Section 12.90.

[[Page 307]]

               Reports, Records Retention, and Enforcement



Sec. 12.80  Monitoring and reporting program performance.

    (a) Monitoring by grantees. Grantees are responsible for managing 
the day-to-day operations of grant and subgrant supported activities. 
Grantees must monitor grant and subgrant supported activities to assure 
compliance with applicable Federal requirements and that performance 
goals are being achieved. Grantee monitoring must cover each program, 
function or activity.
    (b) Nonconstruction performance reports. The Federal agency may, if 
it decides that performance information available from subsequent 
applications contains sufficient information to meet its programmatic 
needs, require the grantee to submit a performance report only upon 
expiration or termination of grant support. Unless waived by the Federal 
agency this report will be due on the same date as the final Financial 
Status Report.
    (1) Grantees shall submit annual performance reports unless the 
awarding agency requires quarterly or semi-annual reports. However, 
performance reports will not be required more frequently than quarterly. 
Annual reports shall be due 90 days after the grant year, quarterly or 
semi-annual reports shall be due 30 days after the reporting period. The 
final performance report will be due 90 days after the expiration or 
termination of grant support. If a justified request is submitted by a 
grantee, the Federal agency may extend the due date for any performance 
report. Additionally, requirements for unnecessary performance reports 
may be waived by the Federal agency.
    (2) Performance reports will contain, for each grant, brief 
information on the following:
    (i) A comparison of actual accomplishments to the objectives 
established for the period. Where the output of the project can be 
quantified, a computation of the cost per unit of output may be required 
if that information will be useful.
    (ii) The reasons for slippage if established objectives were not 
met.
    (iii) Additional pertinent information including, when appropriate, 
analysis and explanation of cost overruns or high unit costs.
    (3) Grantees will not be required to submit more than the original 
and two copies of performance reports.
    (4) Grantees will adhere to the standards in this section in 
prescribing performance reporting requirements for subgrantees.
    (c) Construction performance reports. For the most part, on-site 
technical inspections and certified percentage-of-completion data are 
relied on heavily by Federal agencies to monitor progress under 
construction grants and subgrants. The Federal agency will require 
additional formal performance reports only when considered necessary, 
and never more frequently than quarterly.
    (d) Significant developments. Events may occur between the scheduled 
performance reporting dates which have significant impact upon the grant 
or subgrant supported activity. In such cases, the grantee must inform 
the Federal agency as soon as the following types of conditions become 
known:
    (1) Problems, delays, or adverse conditions which will materially 
impair the ability to meet the objective of the award. This disclosure 
must include a statement of the action taken, or contemplated, and any 
assistance needed to resolve the situation.
    (2) Favorable developments which enable meeting time schedules and 
objectives sooner or at less cost than anticipated or producing more 
beneficial results than originally planned.
    (e) Federal agencies may make site visits as warranted by program 
needs.
    (f) Waivers, extensions. (1) Federal agencies may waive any 
performance report required by this part if not needed.
    (2) The grantee may waive any performance report from a subgrantee 
when not needed. The grantee may extend the due date for any performance 
report from a subgrantee if the grantee will still be able to meet its 
performance reporting obligations to the Federal agency.

[[Page 308]]



Sec. 12.81  Financial reporting.

    (a) General. (1) Except as provided in paragraphs (a) (2) and (5) of 
this section, grantees will use only the forms specified in paragraphs 
(a) through (e) of this section, and such supplementary or other forms 
as may from time to time be authorized by OMB, for:
    (i) Submitting financial reports to Federal agencies, or
    (ii) Requesting advances or reimbursements when letters of credit 
are not used.
    (2) Grantees need not apply the forms prescribed in this section in 
dealing with their subgrantees. However, grantees shall not impose more 
burdensome requirements on subgrantees.
    (3) Grantees shall follow all applicable standard and supplemental 
Federal agency instructions approved by OMB to the extend required under 
the Paperwork Reduction Act of 1980 for use in connection with forms 
specified in paragraphs (b) through (e) of this section. Federal 
agencies may issue substantive supplementary instructions only with the 
approval of OMB. Federal agencies may shade out or instruct the grantee 
to disregard any line item that the Federal agency finds unnecessary for 
its decisionmaking purposes.
    (4) Grantees will not be required to submit more than the original 
and two copies of forms required under this part.
    (5) Federal agencies may provide computer outputs to grantees to 
expedite or contribute to the accuracy of reporting. Federal agencies 
may accept the required information from grantees in machine usable 
format or computer printouts instead of prescribed forms.
    (6) Federal agencies may waive any report required by this section 
if not needed.
    (7) Federal agencies may extend the due date of any financial report 
upon receiving a justified request from a grantee.
    (b) Financial Status Report--(1) Form. Grantees will use Standard 
Form 269 or 269A, Financial Status Report, to report the status of funds 
for all nonconstruction grants and for construction grants when required 
in accordance with Sec. 12.81(e)(2)(iii).
    (2) Accounting basis. Each grantee will report program outlays and 
program income on a cash or accrual basis as prescribed by the awarding 
agency. If the Federal agency requires accrual information and the 
grantee's accounting records are not normally kept on the accural basis, 
the grantee shall not be required to convert its accounting system but 
shall develop such accrual information through and analysis of the 
documentation on hand.
    (3) Frequency. The Federal agency may prescribe the frequency of the 
report for each project or program. However, the report will not be 
required more frequently than quarterly. If the Federal agency does not 
specify the frequency of the report, it will be submitted annually. A 
final report will be required upon expiration or termination of grant 
support.
    (4) Due date. When reports are required on a quarterly or semiannual 
basis, they will be due 30 days after the reporting period. When 
required on an annual basis, they will be due 90 days after the grant 
year. Final reports will be due 90 days after the expiration or 
termination of grant support.
    (c) Federal Cash Transactions Report--(1) Form. (i) For grants paid 
by letter or credit, Treasury check advances or electronic transfer of 
funds, the grantee will submit the Standard Form 272, Federal Cash 
Transactions Report, and when necessary, its continuation sheet, 
Standard Form 272a, unless the terms of the award exempt the grantee 
from this requirement.
    (ii) These reports will be used by the Federal agency to monitor 
cash advanced to grantees and to obtain disbursement or outlay 
information for each grant from grantees. The format of the report may 
be adapted as appropriate when reporting is to be accomplished with the 
assistance of automatic data processing equipment provided that the 
information to be submitted is not changed in substance.
    (2) Forecasts of Federal cash requirements. Forecasts of Federal 
cash requirements may be required in the ``Remarks'' section of the 
report.
    (3) Cash in hands of subgrantees. When considered necessary and 
feasible by the Federal agency, grantees may be required to report the 
amount of cash

[[Page 309]]

advances in excess of three days' needs in the hands of their 
subgrantees or contractors and to provide short narrative explanations 
of actions taken by the grantee to reduce the excess balances.
    (4) Frequency and due date. Grantees must submit the report no later 
than 15 working days following the end of each quarter. However, where 
an advance either by letter of credit or electronic transfer of funds is 
authorized at an annualized rate of one million dollars or more, the 
Federal agency may require the report to be submitted within 15 working 
days following the end of each month.
    (d) Request for advance or reimbursement--(1) Advance payments. 
Requests for Treasury check advance payments will be submitted on 
Standard Form 270, Request for Advance or Reimbursement. (This form will 
not be used for drawdowns under a letter of credit, electronic funds 
transfer or when Treasury check advance payments are made to the grantee 
automatically on a predetermined basis.)
    (2) Reimbursements. Requests for reimbursement under nonconstruction 
grants will also be submitted on Standard Form 270. (For reimbursement 
requests under construction grants, see paragraph (e)(1) of this 
section.)
    (3) The frequency for submitting payment requests is treated in 
Sec. 12.81(b)(3).
    (e) Outlay report and request for reimbursement for construction 
programs--(1) Grants that support construction activities paid by 
reimbursement method. (i) Requests for reimbursement under construction 
grants will be submitted on Standard Form 271, Outlay Report and Request 
for Reimbursement for Construction Programs. Federal agencies may, 
however, prescribe the Request for Advance or Reimbursement form, 
specified in Sec. 12.81(d), instead of this form.
    (ii) The frequency for submitting reimbursement requests is treated 
in Sec. 12.81(b)(3).
    (2) Grants that support construction activities paid by letter of 
credit, electronic funds transfer or Treasury check advance. (i) When a 
construction grant is paid by letter of credit, electronic funds 
transfer or Treasury check advances, the grantee will report its outlays 
to the Federal agency using Standard Form 271, Outlay Report and Request 
for Reimbursement for Construction Programs. The Federal agency will 
provide any necessary special instruction. However, frequency and due 
date shall be governed by Sec. 12.81(b) (3) and (4).
    (ii) When a construction grant is paid by Treasury check advances 
based on periodic requests from the grantee, the advances will be 
requested on the form specified in Sec. 12.81(d).
    (iii) The Federal agency may substitute the Financial Status Report 
specified in Sec. 12.81(b) for the Outlay Report and Request for 
Reimbursement for Construction Programs.
    (3) Accounting basis. The accounting basis for the Outlay Report and 
Request for Reimbursement for Construction Programs shall be governed by 
Sec. 12.81(b)(2).



Sec. 12.82  Retention and access requirements for records.

    (a) Applicability. (1) This section applies to all financial and 
programmatic records, supporting documents, statistical records, and 
other records of grantees or subgrantees which are:
    (i) Required to be maintained by the terms of this part, program 
regulations or the grant agreement, or
    (ii) Otherwise reasonably considered as pertinent to program 
regulations or the grant agreement.
    (2) This section does not apply to records maintained by contractors 
or subcontractors. For a requirement to place a provision concerning 
records in certain kinds of contracts, see Sec. 12.76(i)(10).
    (b) Length of retention period. (1) Except as otherwise provided, 
records must be retained for three years from the starting date 
specified in paragraph (c) of this section.
    (2) If any litigation, claim, negotiation, audit or other action 
involving the records has been started before the expiration of the 3-
year period, the records must be retained until completion of the action 
and resolution of all issues which arise from it, or until the end of 
the regular 3-year period, whichever is later.
    (3) To avoid duplicate recordkeeping, awarding agencies may make 
special

[[Page 310]]

arrangements with grantees and subgrantees to retain any records which 
are continuously needed for joint use. The awarding agency will request 
transfer of records to its custody when it determines that the records 
possess long-term retention value. When the records are transferred to 
or maintained by the Federal agency, the 3-year retention requirement is 
not applicable to the grantee or subgrantee.
    (c) Starting date of retention period--(1) General. When grant 
support is continued or renewed at annual or other intervals, the 
retention period for the records of each funding period starts on the 
day the grantee or subgrantee submits to the awarding agency its single 
or last expenditure report for that period. However, if grant support is 
continued or renewed quarterly, the retention period for each year's 
records starts on the day the grantee submits its expenditure report for 
the last quarter of the Federal fiscal year. In all other cases, the 
retention period starts on the day the grantee submits its final 
expenditure report. If an expenditure report has been waived, the 
retention period starts on the day the report would have been due.
    (2) Real property and equipment records. The retention period for 
real property and equipment records starts from the date of the 
disposition or replacement or transfer at the direction of the awarding 
agency.
    (3) Records for income transactions after grant or subgrant support. 
In some cases grantees must report income after the period of grant 
support. Where there is such a requirement, the retention period for the 
records pertaining to the earning of the income starts from the end of 
the grantee's fiscal year in which the income is earned.
    (4) Indirect cost rate proposals, cost allocations plans, etc. This 
paragraph applies 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).
    (i) If submitted for negotiation. If the proposal, plan, or other 
computation is required to be submitted to the Federal Government (or to 
the grantee) to form the basis for negotiation of the rate, then the 3-
year retention period for its supporting records starts from the date of 
such submission.
    (ii) If not submitted for negotiation. If the proposal, plan, or 
other computation is not required to be submitted to the Federal 
Government (or to the grantee) for negotiation purposes, then the 3-year 
retention period for the proposal plan, or computation and its 
supporting records starts from end of the fiscal year (or other 
accounting period) covered by the proposal, plan, or other computation.
    (d) Substitution of microfilm. Copies made by microfilming, 
photocopying, or similar methods may be substituted for the original 
records.
    (e) Access to records--(1) Records of grantees and subgrantees. The 
awarding agency and the Comptroller General of the United States, or any 
of their authorized representatives, shall have the right of access to 
any pertinent books, documents, papers, or other records of grantees and 
subgrantees which are pertinent to the grant, in order to make audits, 
examinations, excerpts, and transcripts.
    (2) Expiration of right of access. The rights of access in this 
section must not be limited to the required retention period but shall 
last as long as the records are retained.
    (f) Restrictions on public access. The Federal Freedom of 
Information Act (5 U.S.C. 552) does not apply to records Unless required 
by Federal, State, or local law, grantees and subgrantees are not 
required to permit public access to their records.



Sec. 12.83  Enforcement.

    (a) Remedies for noncompliance. If a grantee or subgrantee 
materially fails to comply with any term of an award, whether stated in 
a Federal statute or regulation, an assurance, in a State plan or 
application, a notice of award, or elsewhere, the awarding agency may 
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 grantee or subgrantee or

[[Page 311]]

more severe enforcement action by the awarding agency,
    (2) Disallow (that is, deny both use of funds and 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 for the 
grantee's or subgrantee's program,
    (4) Withhold further awards for the program, or
    (5) Take other remedies that may be legally available.
    (b) Hearings, appeals. In taking an enforcement action, the awarding 
agency will provide the grantee or subgrantee an opportunity for such 
hearing, appeal, or other administrative proceeding to which the grantee 
or subgrantee is entitled under any statute or regulation applicable to 
the action involved.
    (c) Effects of suspension and termination. Costs of grantee or 
subgrantee resulting from obligations incurred by the grantee or 
subgrantee during a suspension or after termination of an award are not 
allowable unless the awarding agency expressly authorizes them in the 
notice of suspension or termination or subsequently. Other grantee or 
subgrantee costs during suspension or after termination which are 
necessary and not reasonably avoidable are allowable if:
    (1) The costs result from obligations which were properly incurred 
by the grantee or subgrantee before the effective date of suspension or 
termination, are not in anticipation of it, and, in the case of a 
termination, are noncancellable, and,
    (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 grantee or subgrantee from being subject to 
``Debarment and Suspension'' under E.O. 12549 (see Sec. 12.75).



Sec. 12.84  Termination for convenience.

    Except as provided in Sec. 12.83 awards may be terminated in whole 
or in part only as follows:
    (a) By the awarding agency with the consent of the grantee or 
subgrantee 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, or
    (b) By the grantee or subgrantee upon written notification to the 
awarding agency, setting forth the reasons for such termination, the 
effective date, and in the case of partial termination, the portion to 
be terminated. However, if, in the case of a partial termination, the 
awarding agency determines that the remaining portion of the award will 
not accomplish the purposes for which the award was made, the awarding 
agency may terminate the award in its entirety under either Sec. 12.83 
or paragraph (a) of this section.

                      After-the-Grant Requirements



Sec. 12.90  Closeout.

    (a) General. The Federal agency will close out the award when it 
determines that all applicable administrative actions and all required 
work of the grant has been completed.
    (b) Reports. Within 90 days after the expiration or termination of 
the grant, the grantee must submit all financial, performance, and other 
reports required as a condition of the grant. Upon request by the 
grantee, Federal agencies may extend this timeframe. These may include 
but are not limited to:
    (1) Final performance or progress report.
    (2) Financial Status Report (SF 269) or Outlay Report and Request 
for Reimbursement for Construction Programs (SF-271) (as applicable.)
    (3) Final request for payment (SF-270) (if applicable).
    (4) Invention disclosure (if applicable).
    (5) Federally-owned property report: In accordance with 
Sec. 12.72(f), a grantee must submit an inventory of all Federally owned 
property (as distinct from property acquired with grant funds) for which 
it is accountable and request disposition instructions from the Federal 
agency of property no longer needed.
    (c) Cost adjustment. The Federal agency will, within 90 days after 
receipt of

[[Page 312]]

reports in paragraph (b) of this section, make upward or downward 
adjustments to the allowable costs.
    (d) Cash adjustments. (1) The Federal agency will make prompt 
payment to the grantee for allowable reimbursable costs.
    (2) The grantee must immediately refund to the Federal agency any 
balance of unobligated (unencumbered) cash advanced that is not 
authorized to be retained for use on other grants.



Sec. 12.91  Later disallowances and adjustments.

    The closeout of a grant does not affect:
    (a) The Federal agency's right to disallow costs and recover funds 
on the basis of a later audit or other review;
    (b) The grantee's obligation to return any funds due as a result of 
later refunds, corrections, or other transactions;
    (c) Records retention as required in Sec. 12.82;
    (d) Property management requirements in Secs. 12.71 and 12.72; and
    (e) Audit requirements in Sec. 12.66.



Sec. 12.92  Collection of amounts due.

    (a) Any funds paid to a grantee in excess of the amount to which the 
grantee is finally determined to be entitled under the terms of the 
award constitute a debt to the Federal Government. If not paid within a 
reasonable period after demand, the Federal agency may reduce the debt 
by:
    (1) Making an adminstrative offset against other requests for 
reimbursements,
    (2) Withholding advance payments otherwise due to the grantee, or
    (3) Other action permitted by law.
    (b) Except where otherwise provided by statutes or regulations, the 
Federal agency will charge interest on an overdue debt in accordance 
with the Federal Claims Collection Standards (4 CFR Ch. II). The date 
from which interest is computed is not extended by litigation or the 
filing of any form of appeal.

                         Entitlements [Reserved]



Subpart D--Governmentwide Debarment and Suspension (Nonprocurement) and 
      Governmentwide Requirements for Drug-Free Workplace (Grants)

    Source: 53 FR 19199, and 19204, May 26, 1988, unless otherwise 
noted.

                                 General



Sec. 12.100  Purpose.

    (a) Executive Order (E.O.) 12549 provides that, to the extent 
permitted by law, Executive departments and agencies shall participate 
in a governmentwide system for nonprocurement debarment and suspension. 
A person who is debarred or suspended shall be excluded from Federal 
financial and nonfinancial assistance and benefits under Federal 
programs and activities. Debarment or suspension of a participant in a 
program by one agency shall have governmentwide effect.
    (b) These regulations implement section 3 of E.O. 12549 and the 
guidelines promulgated by the Office of Management and Budget under 
section 6 of the E.O. by:
    (1) Prescribing the programs and activities that are covered by the 
governmentwide system;
    (2) Prescribing the governmentwide criteria and governmentwide 
minimum due process procedures that each agency shall use;
    (3) Providing for the listing of debarred and suspended 
participants, participants declared ineligible (see definition of 
``ineligible'' in Sec. 12.105), and participants who have voluntarily 
excluded themselves from participation in covered transactions;
    (4) Setting forth the consequences of a debarment, suspension, 
determination of ineligibility, or voluntary exclusion; and
    (5) Offering such other guidance as necessary for the effective 
implementation and administration of the governmentwide system.

[[Page 313]]

    (c) These regulations also implement Executive Order 12689 (3 CFR, 
1989 Comp., p. 235) and 31 U.S.C. 6101 note (Public Law 103-355, sec. 
2455, 108 Stat. 3327) by--
    (1) Providing for the inclusion in the List of Parties Excluded from 
Federal Procurement and Nonprocurement Programs all persons proposed for 
debarment, debarred or suspended under the Federal Acquisition 
Regulation, 48 CFR Part 9, subpart 9.4; persons against which 
governmentwide exclusions have been entered under this part; and persons 
determined to be ineligible; and
    (2) Setting forth the consequences of a debarment, suspension, 
determination of ineligibility, or voluntary exclusion.
    (d) Although these regulations cover the listing of ineligible 
participants and the effect of such listing, they do not prescribe 
policies and procedures governing declarations of ineligibility.

[60 FR 33040, 33061, June 26, 1995]



Sec. 12.105  Definitions.

    The following definitions apply to this part:
    Adequate evidence. Information sufficient to support the reasonable 
belief that a particular act or omission has occurred.
    Affiliate. Persons are affiliates of each other if, directly or 
indirectly, either one controls or has the power to control the other, 
or, a third person controls or has the power to control both. Indicia of 
control include, but are not limited to: interlocking management or 
ownership, identity of interests among family members, shared facilities 
and equipment, common use of employees, or a business entity organized 
following the suspension or debarment of a person which has the same or 
similar management, ownership, or principal employees as the suspended, 
debarred, ineligible, or voluntarily excluded person.
    Agency. Any executive department, military department or defense 
agency or other agency of the executive branch, excluding the 
independent regulatory agencies.
    Civil judgment. The disposition of a civil action by any court of 
competent jurisdiction, whether entered by verdict, decision, 
settlement, stipulation, or otherwise creating a civil liability for the 
wrongful acts complained of; or a final determination of liability under 
the Program Fraud Civil Remedies Act of 1988 (31 U.S.C. 3801-12).
    Conviction. A judgment or conviction of a criminal offense by any 
court of competent jurisdiction, whether entered upon a verdict or a 
plea, including a plea of nolo contendere.
    Debarment. An action taken by a debarring official in accordance 
with these regulations to exclude a person from participating in covered 
transactions. A person so excluded is ``debarred.''
    Debarring official. An official authorized to impose debarment. The 
debarring official is either:
    (1) The agency head, or
    (2) An official designated by the agency head.
    (3) The debarring official for the Department of the Interior is the 
Director, Office of Acquisition and Property Management.
    Exception official. The official authorized to grant exceptions 
under Sec. 12.215 for the Department of the Interior is the Director, 
Office of Acquisition and Property Management.
    Findings of fact official. The official authorized to conduct and 
prepare findings of fact, if required under Sec. 12.314(b)(2) or 
Sec. 12.413(b)(2), is the Director, Office of Hearings and Appeals, or 
designee.
    Indictment. Indictment for a criminal offense. An information or 
other filing by competent authority charging a criminal offense shall be 
given the same effect as an indictment.
    Ineligible. Excluded from participation in Federal nonprocurement 
programs pursuant to a determination of ineligibility under statutory, 
executive order, or regulatory authority, other than Executive Order 
12549 and its agency implementing regulations; for exemple, excluded 
pursuant to the Davis-Bacon Act and its implementing regulations, the 
equal employment opportunity acts and executive orders, or the 
environmental protection acts and executive orders. A person is 
ineligible where the determination of ineligibility affects such 
person's eligibility to participate in more than one covered 
transaction.

[[Page 314]]

    Legal proceedings. Any criminal proceeding or any civil judicial 
proceeding to which the Federal Government or a State or local 
government or quasi-governmental authority is a party. The term includes 
appeals from such proceedings.
    List of Parties Excluded from Federal Procurement and Nonprocurement 
Programs. A list compiled, maintained and distributed by the General 
Services Administration (GSA) containing the names and other information 
about persons who have been debarred, suspended, or voluntarily excluded 
under Executive Orders 12549 and 12689 and these regulations or 48 CFR 
part 9, subpart 9.4, persons who have been proposed for debarment under 
48 CFR part 9, subpart 9.4, and those persons who have been determined 
to be ineligible.
    Notice. A written communication served in person or sent by 
certified mail, return receipt requested, or its equivalent, to the last 
known address of a party, its identified counsel, its agent for service 
of process, or any partner, officer, director, owner, or joint venturer 
of the party. Notice, if undeliverable, shall be considered to have been 
received by the addressee five days after being properly sent to the 
last address known by the agency.
    Participant. Any person who submits a proposal for, enters into, or 
reasonably may be expected to enter into a covered transaction. This 
term also includes any person who acts on behalf of or is authorized to 
commit a participant in a covered transaction as an agent or 
representative of another participant.
    Person. Any individual, corporation, partnership, association, unit 
of government or legal entity, however organized, except: foreign 
governments or foreign governmental entities, public international 
organizations, foreign government owned (in whole or in part) or 
controlled entities, and entities consisting wholly or partially of 
foreign governments or foreign governmental entities.
    Preponderance of the evidence. Proof by information that, compared 
with that opposing it, leads to the conclusion that the fact at issue is 
more probably true than not.
    Principal. Officer, director, owner, partner, key employee, or other 
person within a participant with primary management or supervisory 
responsibilities; or a person who has a critical influence on or 
substantive control over a covered transaction, whether or not employed 
by the participant. Persons who have a critical influence on or 
substantive control over a covered transaction are:
    (1) Principal investigators.
    (2) [Reserved]
    Proposal. A solicited or unsolicited bid, application, request, 
invitation to consider or similar communication by or on behalf of a 
person seeking to participate or to receive a benefit, directly or 
indirectly, in or under a covered transaction.
    Respondent. A person against whom a debarment or suspension action 
has been initiated.
    State. Any of the States of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, any territory or possession 
of the United States, or any agency of a State, exclusive of 
institutions of higher education, hospitals, and units of local 
government. A State instrumentality will be considered part of the State 
government if it has a written determination from a State government 
that such State considers that instrumentality to be an agency of the 
State government.
    Suspending official. An official authorized to impose suspension. 
The suspending official is either:
    (1) The agency head, or
    (2) An official designated by the agency head.
    (3) The suspending official for the Department of the Interior is 
the Director, Office of Acquisition and Property Management.
    Suspension. An action taken by a suspending official in accordance 
with these regulations that immediately excludes a person from 
participating in covered transactions for a temporary period, pending 
completion of an investigation and such legal, debarment, or Program 
Fraud Civil Remedies Act proceedings as may ensue. A person so excluded 
is ``suspended.''
    Voluntary exclusion or voluntarily excluded. A status of 
nonparticipation or

[[Page 315]]

limited participation in covered transactions assumed by a person 
pursuant to the terms of a settlement.

[53 FR 19199 and 19204, May 26, 1988, as amended at 60 FR 33040, 33061, 
June 26, 1995]



Sec. 12.110  Coverage.

    (a) These regulations apply to all persons who have participated, 
are currently participating or may reasonably be expected to participate 
in transactions under Federal nonprocurement programs. For purposes of 
these regulations such transactions will be referred to as ``covered 
transactions.''
    (1) Covered transaction. For purposes of these regulations, a 
covered transaction is a primary covered transaction or a lower tier 
covered transaction. Covered transactions at any tier need not involve 
the transfer of Federal funds.
    (i) Primary covered transaction. Except as noted in paragraph (a)(2) 
of this section, a primary covered transaction is any nonprocurement 
transaction between an agency and a person, regardless of type, 
including: grants, cooperative agreements, scholarships, fellowships, 
contracts of assistance, loans, loan guarantees, subsidies, insurance, 
payments for specified use, donation agreements and any other 
nonprocurement transactions between a Federal agency and a person. 
Primary covered transactions also include those transactions specially 
designated by the U.S. Department of Housing and Urban Development in 
such agency's regulations governing debarment and suspension.
    (ii) Lower tier covered transaction. A lower tier covered 
transaction is:
    (A) Any transaction between a participant and a person other than a 
procurement contract for goods or services, regardless of type, under a 
primary covered transaction.
    (B) Any procurement contract for goods or services between a 
participant and a person, regardless of type, expected to equal or 
exceed the Federal procurement small purchase threshold fixed at 10 
U.S.C. 2304(g) and 41 U.S.C. 253(g) (currently $25,000) under a primary 
covered transaction.
    (C) Any procurement contract for goods or services between a 
participant and a person under a covered transaction, regardless of 
amount, under which that person will have a critical influence on or 
substantive control over that covered transaction. Such persons are:
    (1) Principal investigators.
    (2) Providers of Federally-required audit services.
    (2) Exceptions. The following transactions are not covered:
    (i) Statutory entitlements or mandatory awards (but not subtier 
awards thereunder which are not themselves mandatory), including 
deposited funds insured by the Federal Government;
    (ii) Direct awards to foreign governments or public international 
organizations, or transactions with foreign governments or foreign 
governmental entities, public international organizations, foreign 
government owned (in whole or in part) or controlled entities, entities 
consisting wholly or partially of foreign governments or foreign 
governmental entities;
    (iii) Benefits to an individual as a personal entitlement without 
regard to the individual's present responsibility (but benefits received 
in an individual's business capacity are not excepted);
    (iv) Federal employment;
    (v) Transactions pursuant to national or agency-recognized 
emergencies or disasters;
    (vi) Incidental benefits derived from ordinary governmental 
operations; and
    (vii) Other transactions where the application of these regulations 
would be prohibited by law.
    (viii) Transactions entered into pursuant to Public Law 93-638.
    (ix) Under natural resources management programs, permits, licenses, 
exchanges and other acquisitions of real property, rights-of-way, and 
easements.
    (x) Transactions concerning mineral patent claims entered into 
pursuant to 30 U.S.C. 22 et seq.
    (xi) Water service contracts and repayment contracts entered into 
pursuant to 43 U.S.C. 485.
    (3) Department of the Interior covered transactions. These 
Department of the Interior regulations apply to the Department's 
domestic assistance covered transactions (whether by a Federal agency, 
recipient, subrecipient, or intermediary) including, except as

[[Page 316]]

noted in paragraph (a)(2) of this section: grants, cooperative 
agreements, scholarships, fellowships, contracts of assistance, loans, 
loan guarantees, subsidies, insurance, payments for specified use, 
donation agreements, Federal acquisition of a leasehold interest or any 
other interest in real property, concession contracts, dispositions of 
Federal real and personal property and natural resources, subawards, 
subcontracts and transactions at any tier that are charged as direct or 
indirect costs, regardless of type (including subtier awards under 
awards which are statutory entitlement or mandatory awards), and any 
other nonprocurement transactions between the Department and a person.
    (b) Relationship to other sections. This section describes the types 
of transactions to which a debarment or suspension under the regulations 
will apply. Subpart B, ``Effect of Action,'' Sec. 12.200, ``Debarment or 
suspension,'' sets forth the consequences of a debarment or suspension. 
Those consequences would obtain only with respect to participants and 
principals in the covered transactions and activities described in 
Sec. 12.110(a). Sections 12.325, ``Scope of debarment,'' and 12.420, 
``Scope of suspension,'' govern the extent to which a specific 
participant or organizational elements of a participant would be 
automatically included within a debarment or suspension action, and the 
conditions under which affiliates or persons associated with a 
participant may also be brought within the scope of the action.
    (c) Relationship to Federal procurement activities. In accordance 
with E.O. 12689 and section 2455 of Public Law 103-355, any debarment, 
suspension, proposed debarment or other governmentwide exclusion 
initiated under the Federal Acquisition Regulation (FAR) on or after 
August 25, 1995 shall be recognized by and effective for Executive 
Branch agencies and participants as an exclusion under this regulation. 
Similarly, any debarment, suspension or other governmentwide exclusion 
initiated under this regulation on or after August 25, 1995 shall be 
recognized by and effective for those agencies as a debarment or 
suspension under the FAR.

[53 FR 19199 and 19204, May 26, 1988, as amended at 60 FR 33041, 33061, 
June 26, 1995]



Sec. 12.115  Policy.

    (a) In order to protect the public interest, it is the policy of the 
Federal Government to conduct business only with responsible persons. 
Debarment and suspension are discretionary actions that, taken in 
accordance with Executive Order 12549 and these regulations, are 
appropriate means to implement this policy.
    (b) Debarment and suspension are serious actions which shall be used 
only in the public interest and for the Federal Government's protection 
and not for purposes of punishment. Agencies may impose debarment or 
suspension for the causes and in accordance with the procedures set 
forth in these regulations.
    (c) When more than one agency has an interest in the proposed 
debarment or suspension of a person, consideration shall be given to 
designating one agency as the lead agency for making the decision. 
Agencies are encouraged to establish methods and procedures for 
coordinating their debarment or suspension actions.

                            Effect of Action



Sec. 12.200  Debarment or suspension.

    (a) Primary covered transactions. Except to the extent prohibited by 
law, persons who are debarred or suspended shall be excluded from 
primary covered transactions as either participants or principals 
throughout the Executive Branch of the Federal Government for the period 
of their debarment, suspension, or the period they are proposed for 
debarment under 48 CFR part 9, subpart 9.4. Accordingly, no agency shall 
enter into primary covered transactions with such excluded persons 
during such period, except as permitted pursuant to Sec. 12.215.
    (b) Lower tier covered transactions. Except to the extent prohibited 
by law, persons who have been proposed for debarment under 48 CFR part 
9, subpart 9.4, debarred or suspended shall be excluded from 
participating as either participants or principals in all lower

[[Page 317]]

tier covered transactions (see Sec. 12.110(a)(1)(ii)) for the period of 
their exclusion.
    (c) Exceptions. Debarment or suspension does not affect a person's 
eligibility for--
    (1) Statutory entitlements or mandatory awards (but not subtier 
awards thereunder which are not themselves mandatory), including 
deposited funds insured by the Federal Government;
    (2) Direct awards to foreign governments or public international 
organizations, or transactions with foreign governments or foreign 
governmental entities, public international organizations, foreign 
government owned (in whole or in part) or controlled entities, and 
entities consisting wholly or partially of foreign governments or 
foreign governmental entities;
    (3) Benefits to an individual as a personal entitlement without 
regard to the individual's present responsibility (but benefits received 
in an individual's business capacity are not excepted);
    (4) Federal employment;
    (5) Transactions pursuant to national or agency-recognized 
emergencies or disasters;
    (6) Incidental benefits derived from ordinary governmental 
operations; and
    (7) Other transactions where the application of these regulations 
would be prohibited by law.
    (8) Transactions entered into pursuant to Public Law 93-638, 88 
Stat. 2203.
    (9) Under natural resources management programs, permits, licenses, 
exchanges and other acquisitions of real property, rights-of-way, and 
easements.
    (10) Mineral patent claims entered into pursuant to 30 U.S.C. 33 et 
seq.
    (11) Water service contracts and repayment contracts entered into 
pursuant to 43 U.S.C. 485.

[60 FR 33041, 33061, June 26, 1995]



Sec. 12.205  Ineligible persons.

    Persons who are ineligible, as defined in Sec. 12.105(i), are 
excluded in accordance with the applicable statutory, Executive order, 
or regulatory authority.



Sec. 12.210  Voluntary exclusion.

    Persons who accept voluntary exclusions under Sec. 12.315 are 
excluded in accordance with the terms of their settlements. The 
Department of the Interior shall, and participants may, contact the 
original action agency to ascertain the extent of the exclusion.



Sec. 12.215  Exception provision.

    The Department of the Interior may grant an exception permitting a 
debarred, suspended, or voluntarily excluded person, or a person 
proposed for debarment under 48 CFR part 9, subpart 9.4, to participate 
in a particular covered transaction upon a written determination by the 
agency head or an authorized designee stating the reason(s) for 
deviating from the Presidential policy established by Executive Order 
12549 and Sec. 12.200. However, in accordance with the President's 
stated intention in the Executive Order, exceptions shall be granted 
only infrequently. Exceptions shall be reported in accordance with 
Sec. 12.505(a).

[60 FR 33041, 33061, June 26, 1995]



Sec. 12.220  Continuation of covered transactions.

    (a) Notwithstanding the debarment, suspension, proposed debarment 
under 48 CFR part 9, subpart 9.4, determination of ineligibility, or 
voluntary exclusion of any person by an agency, agencies and 
participants may continue covered transactions in existence at the time 
the person was debarred, suspended, proposed for debarment under 48 CFR 
part 9, subpart 9.4, declared ineligible, or voluntarily excluded. A 
decision as to the type of termination action, if any, to be taken 
should be made only after thorough review to ensure the propriety of the 
proposed action.
    (b) Agencies and participants shall not renew or extend covered 
transactions (other than no-cost time extensions) with any person who is 
debarred, suspended, proposed for debarment under 48 CFR part 9, subpart 
9.4, ineligible or voluntary excluded, except as provided in 
Sec. 12.215.

[60 FR 33041, 33061, June 26, 1995]



Sec. 12.225  Failure to adhere to restrictions.

    (a) Except as permitted under Sec. 12.215 or Sec. 12.220, a 
participant shall not

[[Page 318]]

knowingly do business under a covered transaction with a person who is--
    (1) Debarred or suspended;
    (2) Proposed for debarment under 48 CFR part 9, subpart 9.4; or
    (3) Ineligible for or voluntarily excluded from the covered 
transaction.
    (b) Violation of the restriction under paragraph (a) of this section 
may result in disallowance of costs, annulment or termination of award, 
issuance of a stop work order, debarment or suspension, or other 
remedies as appropriate.
    (c) A participant may rely upon the certification of a prospective 
participant in a lower tier covered transaction that it and its 
principals are not debarred, suspended, proposed for debarment under 48 
CFR part 9, subpart 9.4, ineligible, or voluntarily excluded from the 
covered transaction (See Appendix B of these regulations), unless it 
knows that the certification is erroneous. An agency has the burden of 
proof that a participant did knowingly do business with a person that 
filed an erroneous certification.

[60 FR 33041, 33061, June 26, 1995]

                                Debarment



Sec. 12.300  General.

    The debarring official may debar a person for any of the causes in 
Sec. 12.305, using procedures established in Secs. 12.310 through 
12.314. The existence of a cause for debarment, however, does not 
necessarily require that the person be debarred; the seriousness of the 
person's acts or omissions and any mitigating factors shall be 
considered in making any debarment decision.



Sec. 12.305  Causes for debarment.

    Debarment may be imposed in accordance with the provisions of 
Secs. 12.300 through 12.314 for:
    (a) Conviction of or civil judgment for:
    (1) Commission of fraud or a criminal offense in connection with 
obtaining, attempting to obtain, or performing a public or private 
agreement or transaction;
    (2) Violation of Federal or State antitrust statutes, including 
those proscribing price fixing between competitors, allocation of 
customers between competitors, and bid rigging;
    (3) Commission of embezzlement, theft, forgery, bribery, 
falsification or destruction of records, making false statements, 
receiving stolen property, making false claims, or obstruction of 
justice; or
    (4) Commission of any other offense indicating a lack of business 
integrity or business honesty that seriously and directly affects the 
present responsibility of a person.
    (b) Violation of the terms of a public agreement or transaction so 
serious as to affect the integrity of an agency program, such as:
    (1) A willful failure to perform in accordance with the terms of one 
or more public agreements or transactions;
    (2) A history of failure to perform or of unsatisfactory performance 
of one or more public agreements or transactions; or
    (3) A willful violation of a statutory or regulatory provision or 
requirement applicable to a public agreement or transaction.
    (c) Any of the following causes:
    (1) A nonprocurement debarment by any Federal agency taken before 
October 1, 1988, the effective date of these regulations, or a 
procurement debarment by any Federal agency taken pursuant to 48 CFR 
subpart 9.4;
    (2) Knowingly doing business with a debarred, suspended, ineligible, 
or voluntarily excluded person, in connection with a covered 
transaction, except as permitted in Sec. 12.215 or Sec. 12.220;
    (3) Failure to pay a single substantial debt, or a number of 
outstanding debts (including disallowed costs and overpayments, but not 
including sums owed the Federal Government under the Internal Revenue 
Code) owed to any Federal agency or instrumentality, provided the debt 
is uncontested by the debtor or, if contested, provided that the 
debtor's legal and administrative remedies have been exhausted;
    (4) Violation of a material provision of a voluntary exclusion 
agreement entered into under Sec. 12.315 or of any settlement of a 
debarment or suspension action; or
    (5) Violation of any requirement of the drug-free workplace 
requirements for grants, relating to providing a

[[Page 319]]

drug-free workplace, as set forth in Sec. 12.615 of this part.
    (d) Any other cause of so serious or compelling a nature that it 
affects the present responsibility of a person.

[53 FR 19199, 19204, May 26, 1988, as amended at 54 FR 4950, 4963, Jan. 
31, 1989; 55 FR 21701, May 25, 1990]



Sec. 12.310  Procedures.

    The Department of the Interior shall process debarment actions as 
informally as practicable, consistent with the principles of fundamental 
fairness, using the procedures in Secs. 12.311 through 12.314.



Sec. 12.311  Investigation and referral.

    Information concerning the existence of a cause for debarment from 
any source shall be promptly reported, investigated, and referred, when 
appropriate, to the debarring official for consideration. After 
consideration, the debarring official may issue a notice of proposed 
debarment.



Sec. 12.312  Notice of proposed debarment.

    A debarment proceeding shall be initiated by notice to the 
respondent advising:
    (a) That debarment is being considered;
    (b) Of the reasons for the proposed debarment in terms sufficient to 
put the respondent on notice of the conduct or transaction(s) upon which 
it is based;
    (c) Of the cause(s) relied upon under Sec. 12.305 for proposing 
debarment;
    (d) Of the provisions of Sec. 12.311 through Sec. 12.314, and any 
other Department of the Interior procedures, if applicable, governing 
debarment decisionmaking; and
    (e) Of the potential effect of a debarment.



Sec. 12.313  Opportunity to contest proposed debarment.

    (a) Submission in opposition. Within 30 days after receipt of the 
notice of proposed debarment, the respondent may submit, in person, in 
writing, or through a representative, information and argument in 
opposition to the proposed debarment.
    (b) Additional proceedings as to disputed material facts. (1) In 
actions not based upon a conviction or civil judgment, if the debarring 
official finds that the respondent's submission in opposition raises a 
genuine dispute over facts material to the proposed debarment, 
respondent(s) shall be afforded an opportunity to appear with a 
representative, submit documentary evidence, present witnesses, and 
confront any witness the agency presents.
    (2) A transcribed record of any additional proceedings shall be made 
available at cost to the respondent, upon request, unless the respondent 
and the agency, by mutual agreement, waive the requirement for a 
transcript.



Sec. 12.314  Debarring official's decision.

    (a) No additional proceedings necessary. In actions based upon a 
conviction or civil judgment, or in which there is no genuine dispute 
over material facts, the debarring official shall make a decision on the 
basis of all the information in the administrative record, including any 
submission made by the respondent. The decision shall be made within 45 
days after receipt of any information and argument submitted by the 
respondent, unless the debarring official extends this period for good 
cause.
    (b) Additional proceedings necessary. (1) In actions in which 
additional proceedings are necessary to determine disputed material 
facts, written findings of fact shall be prepared. The debarring 
official shall base the decision on the facts as found, together with 
any information and argument submitted by the respondent and any other 
information in the administrative record.
    (2) The debarring official may refer disputed material facts to 
another official for findings of fact. The debarring official may reject 
any such findings, in whole or in part, only after specifically 
determining them to be arbitrary and capricious or clearly erroneous.
    (3) The debarring official's decision shall be made after the 
conclusion of the proceedings with respect to disputed facts.
    (c)(1) Standard of proof. In any debarment action, the cause for 
debarment must be established by a preponderance of the evidence. Where 
the proposed debarment is based upon a conviction or

[[Page 320]]

civil judgment, the standard shall be deemed to have been met.
    (2) Burden of proof. The burden of proof is on the agency proposing 
debarment.
    (d) Notice of debarring official's decision. (1) If the debarring 
official decides to impose debarment, the respondent shall be given 
prompt notice:
    (i) Referring to the notice of proposed debarment;
    (ii) Specifying the reasons for debarment;
    (iii) Stating the period of debarment, including effective dates; 
and
    (iv) Advising that the debarment is effective for covered 
transactions throughout the executive branch of the Federal Government 
unless an agency head or an authorized designee makes the determination 
referred to in Sec. 12.215.
    (2) If the debarring official decides not to impose debarment, the 
respondent shall be given prompt notice of that decision. A decision not 
to impose debarment shall be without prejudice to a subsequent 
imposition of debarment by any other agency.



Sec. 12.315  Settlement and voluntary exclusion.

    (a) When in the best interest of the Government, the Department of 
the Interior may, at any time, settle a debarment or suspension action.
    (b) If a participant and the agency agree to a voluntary exclusion 
of the participant, such voluntary exclusion shall be entered on the 
Nonprocurement List (see subpart E).



Sec. 12.320  Period of debarment.

    (a) Debarment shall be for a period commensurate with the 
seriousness of the cause(s). If a suspension precedes a debarment, the 
suspension period shall be considered in determining the debarment 
period.
    (1) Debarment for causes other than those related to a violation of 
the requirements of the drug-free workplace requirements for grants of 
this subpart generally should not exceed three years. Where 
circumstances warrant, a longer period of debarment may be imposed.
    (2) In the case of a debarment for a violation of the requirements 
of the drug-free workplace requirements for grants of this subpart (see 
12.305(c)(5)), the period of debarment shall not exceed five years.
    (b) [Reserved]

[53 FR 19199, 19204, May 26, 1988, as amended at 54 FR 4950, 4963, Jan. 
31, 1989; 55 FR 21701, May 25, 1990]



Sec. 12.325  Scope of debarment.

    (a) Scope in general. (1) Debarment of a person under these 
regulations constitutes debarment of all its divisions and other 
organizational elements from all covered transactions, unless the 
debarment decision is limited by its terms to one or more specifically 
identified individuals, divisions or other organizational elements or to 
specific types of transactions.
    (2) The debarment action may include any affiliate of the 
participant that is specifically named and given notice of the proposed 
debarment and an opportunity to respond (see Secs. 12.311 through 
12.314).
    (b) Imputing conduct. For purposes of determining the scope of 
debarment, conduct may be imputed as follows:
    (1) Conduct imputed to participant. The fraudulent, criminal or 
other seriously improper conduct of any officer, director, shareholder, 
partner, employee, or other individual associated with a participant may 
be imputed to the participant when the conduct occurred in connection 
with the individual's performance of duties for or on behalf of the 
participant, or with the participant's knowledge, approval, or 
acquiescence. The participant's acceptance of the benefits derived from 
the conduct shall be evidence of such knowledge, approval, or 
acquiescence.
    (2) Conduct imputed to individuals associated with participant. The 
fraudulent, criminal, or other seriously improper conduct of a 
participant may be imputed to any officer, director, shareholder, 
partner, employee, or other individual associated with the participant 
who participated in, knew of, or had reason to know of the participant's 
conduct.
    (3) Conduct of one participant imputed to other participants in a 
joint venture. The fraudulent, criminal, or other seriously improper 
conduct of one participant in a joint venture, grant pursuant

[[Page 321]]

to a joint application, or similar arrangement may be imputed to other 
participants if the conduct occurred for or on behalf of the joint 
venture, grant pursuant to a joint application, or similar arrangement 
may be imputed to other participants if the conduct occurred for or on 
behalf of the joint venture, grant pursuant to a joint application, or 
similar arrangement or with the knowledge, approval, or acquiescence of 
these participants. Acceptance of the benefits derived from the conduct 
shall be evidence of such knowledge, approval, or acquiescence.

                               Suspension



Sec. 12.400  General.

    (a) The suspending official may suspend a person for any of the 
causes in Sec. 12.405 using procedures established in Secs. 12.410 
through 12.413.
    (b) Suspension is a serious action to be imposed only when:
    (1) There exists adequate evidence of one or more of the causes set 
out in Sec. 12.405, and
    (2) Immediate action is necessary to protect the public interest.
    (c) In assessing the adequacy of the evidence, the agency should 
consider how much information is available, how credible it is given the 
circumstances, whether or not important allegations are corroborated, 
and what inferences can reasonably be drawn as a result. This assessment 
should include an examination of basic documents such as grants, 
cooperative agreements, loan authorizations, and contracts.



Sec. 12.405  Causes for suspension.

    (a) Suspension may be imposed in accordance with the provisions of 
Secs. 12.400 through 12.413 upon adequate evidence:
    (1) To suspect the commission of an offense listed in 
Sec. 12.305(a); or
    (2) That a cause for debarment under Sec. 12.305 may exist.
    (b) Indictment shall constitute adequate evidence for purposes of 
suspension actions.



Sec. 12.410  Procedures.

    (a) Investigation and referral. Information concerning the existence 
of a cause for suspension from any source shall be promptly reported, 
investigated, and referred, when appropriate, to the suspending official 
for consideration. After consideration, the suspending official may 
issue a notice of suspension.
    (b) Decisionmaking process. The Department of the Interior shall 
process suspension actions as informally as practicable, consistent with 
principles of fundamental fairness, using the procedures in Sec. 12.411 
through Sec. 12.413.



Sec. 12.411  Notice of suspension.

    When a respondent is suspended, notice shall immediately be given:
    (a) That suspension has been imposed;
    (b) That the suspension is based on an indictment, conviction, or 
other adequate evidence that the respondent has committed irregularities 
seriously reflecting on the propriety of further Federal Government 
dealings with the respondent;
    (c) Describing any such irregularities in terms sufficient to put 
the respondent on notice without disclosing the Federal Government's 
evidence;
    (d) Of the cause(s) relied upon under Sec. 12.405 for imposing 
suspension;
    (e) That the suspension is for a temporary period pending the 
completion of an investigation or ensuing legal, debarment, or Program 
Fraud Civil Remedies Act proceedings;
    (f) Of the provisions of Sec. 12.411 through Sec. 12.413 and any 
other Department of the Interior procedures, if applicable, governing 
suspension decisionmaking; and
    (g) Of the effect of the suspension.



Sec. 12.412  Opportunity to contest suspension.

    (a) Submission in opposition. Within 30 days after receipt of the 
notice of suspension, the respondent may submit, in person, in writing, 
or through a representative, information and argument in opposition to 
the suspension.
    (b) Additional proceedings as to disputed material facts. (1) If the 
suspending official finds that the respondent's submission in opposition 
raises a genuine dispute over facts material to the suspension, 
respondent(s) shall be afforded an opportunity to appear with a 
representative, submit documentary

[[Page 322]]

evidence, present witnesses, and confront any witness the agency 
presents, unless:
    (i) The action is based on an indictment, conviction or civil 
judgment, or
    (ii) A determination is made, on the basis of Department of Justice 
advice, that the substantial interests of the Federal Government in 
pending or contemplated legal proceedings based on the same facts as the 
suspension would be prejudiced.
    (2) A transcribed record of any additional proceedings shall be 
prepared and made available at cost to the respondent, upon request, 
unless the respondent and the agency, by mutual agreement, waive the 
requirement for a transcript.



Sec. 12.413  Suspending official's decision.

    The suspending official may modify or terminate the suspension (for 
example, see Sec. 12.320(c) for reasons for reducing the period or scope 
of debarment) or may leave it in force. However, a decision to modify or 
terminate the suspension shall be without prejudice to the subsequent 
imposition of suspension by any other agency or debarment by any agency. 
The decision shall be rendered in accordance with the following 
provisions:
    (a) No additional proceedings necessary. In actions: Based on an 
indictment, conviction, or civil judgment; in which there is no genuine 
dispute over material facts; or in which additional proceedings to 
determine disputed material facts have been denied on the basis of 
Department of Justice advice, the suspending official shall make a 
decision on the basis of all the information in the administrative 
record, including any submission made by the respondent. The decision 
shall be made within 45 days after receipt of any information and 
argument submitted by the respondent, unless the suspending official 
extends this period for good cause.
    (b) Additional proceedings necessary. (1) In actions in which 
additional proceedings are necessary to determine disputed material 
facts, written findings of fact shall be prepared. The suspending 
official shall base the decision on the facts as found, together with 
any information and argument submitted by the respondent and any other 
information in the administrative record.
    (2) The suspending official may refer matters involving disputed 
material facts to another official for findings of fact. The suspending 
official may reject any such findings, in whole or in part, only after 
specifically determining them to be arbitrary or capricious or clearly 
erroneous.
    (c) Notice of suspending official's decision. Prompt written notice 
of the suspending official's decision shall be sent to the respondent.



Sec. 12.415  Period of suspension.

    (a) Suspension shall be for a temporary period pending the 
completion of an investigation or ensuing legal, debarment, or Program 
Fraud Civil Remedies Act proceedings, unless terminated sooner by the 
suspending official or as provided in paragraph (b) of this section.
    (b) If legal or administrative proceedings are not initiated within 
12 months after the date of the suspension notice, the suspension shall 
be terminated unless an Assistant Attorney General or United States 
Attorney requests its extension in writing, in which case it may be 
extended for an additional six months. In no event may a suspension 
extend beyond 18 months, unless such proceedings have been initiated 
within that period.
    (c) The suspending official shall notify the Department of Justice 
of an impending termination of a suspension, at least 30 days before the 
12-month period expires, to give that Department an opportunity to 
request an extension.



Sec. 12.420  Scope of suspension.

    The scope of a suspension is the same as the scope of a debarment 
(see Sec. 12.325), except that the procedures of Secs. 12.410 through 
12.413 shall be used in imposing a suspension.

  Responsibilities of GSA, Department of the Interior and Participants



Sec. 12.500  GSA responsibilities.

    (a) In accordance with the OMB guidelines, GSA shall compile, 
maintain, and distribute a list of all persons who have been debarred, 
suspended, or

[[Page 323]]

voluntarily excluded by agencies under Executive Order 12549 and these 
regulations, and those who have been determined to be ineligible.
    (b) At a minimum, this list shall indicate:
    (1) The names and addresses of all debarred, suspended, ineligible, 
and voluntarily excluded persons, in alphabetical order, with cross-
references when more than one name is involved in a single action;
    (2) The type of action;
    (3) The cause for the action;
    (4) The scope of the action;
    (5) Any termination date for each listing; and
    (6) The agency and name and telephone number of the agency point of 
contact for the action.



Sec. 12.505  Department of the Interior responsibilities.

    (a) The agency shall provide GSA with current information concerning 
debarments, suspension, determinations of ineligibility, and voluntary 
exclusions it has taken. Until February 18, 1989, the agency shall also 
provide GSA and OMB with information concerning all transactions in 
which the Department of the Interior has granted exceptions under 
Sec. 12.215 permitting participation by debarred, suspended, or 
voluntarily excluded persons.
    (b) Unless an alternative schedule is agreed to by GSA, the agency 
shall advise GSA of the information set forth in Sec. 12.500(b) and of 
the exceptions granted under Sec. 12.215 within five working days after 
taking such actions.
    (c) The agency shall direct inquiries concerning listed persons to 
the agency that took the action.
    (d) Agency officials shall check the Nonprocurement List before 
entering covered transactions to determine whether a participant in a 
primary transaction is debarred, suspended, ineligible, or voluntarily 
excluded (Tel. ).
    (e) Agency officials shall check the Nonprocurement List before 
approving principals or lower tier participants where agency approval of 
the principal or lower tier participant is required under the terms of 
the transaction, to determine whether such principals or participants 
are debarred, suspended, ineligible, or voluntarily excluded.



Sec. 12.510  Participants' responsibilities.

    (a) Certification by participants in primary covered transactions. 
Each participant shall submit the certification in appendix A to this 
subpart for it and its principals at the time the participant submits 
its proposal in connection with a primary covered transaction, except 
that States need only complete such certification as to their 
principals. Participants may decide the method and frequency by which 
they determine the eligibility of their principals. In addition, each 
participant may, but is not required to, check the Nonprocurement List 
for its principals (Tel. ). Adverse information on the 
certification will not necessarily result in denial of participation. 
However, the certification, and any additional information pertaining to 
the certification submitted by the participant, shall be considered in 
the administration of covered transactions.
    (b) Certification by participants in lower tier covered 
transactions. (1) Each participant shall require participants in lower 
tier covered transactions to include the certification in appendix B to 
this subpart for it and its principals in any proposal submitted in 
connection with such lower tier covered transactions.
    (2) A participant may rely upon the certification of a prospective 
participant in a lower tier covered transaction that it and its 
principals are not debarred, suspended, ineligible, or voluntarily 
excluded from the covered transaction by any Federal agency, unless it 
knows that the certification is erroneous. Participants may decide the 
method and frequency by which they determine the eligiblity of their 
principals. In addition, a participant may, but is not required to, 
check the Nonprocurement List for its principals and for participants 
(Tel. ).
    (c) Changed circumstances regarding certification. A participant 
shall provide immediate written notice to the Department of the Interior 
if at any time the participant learns that its certification was 
erroneous when submitted or has become erroneous by reason of changed 
circumstances. Participants in

[[Page 324]]

lower tier covered transactions shall provide the same updated notice to 
the participant to which it submitted its proposals.

                Drug-Free Workplace Requirements (Grants)

    Source: 55 FR 21688, 21701, May 25, 1990, unless otherwise noted.

    Editorial Note: Nomenclature changes for Secs. 12.600 through 12.635 
appear at 55 FR 21702, May 25, 1990.



Sec. 12.600  Purpose.

    (a) The purpose of the drug-free workplace requirements for grants 
is to carry out the Drug-Free Workplace Act of 1988 by requiring that--
    (1) A grantee, other than an individual, shall certify to the agency 
that it will provide a drug-free workplace;
    (2) A grantee who is an individual shall certify to the agency that, 
as a condition of the grant, he or she will not engage in the unlawful 
manufacture, distribution, dispensing, possession or use of a controlled 
substance in conducting any activity with the grant.
    (b) Requirements implementing the Drug-Free Workplace Act of 1988 
for contractors with the agency are found at 48 CFR subparts 9.4, 23.5, 
and 52.2.



Sec. 12.605  Definitions.

    (a) Except as amended in this section, the definitions of 
Sec. 12.105 apply to the drug-free workplace requirements for grants.
    (b) For purposes of the drug-free workplace requirements for grants-
-
    (1) Controlled substance means a controlled substance in schedules I 
through V of the Controlled Substances Act (21 U.S.C. 812), and as 
further defined by regulation at 21 CFR 1308.11 through 1308.15;
    (2) Conviction means a finding of guilt (including a plea of nolo 
contendere) or imposition of sentence, or both, by any judicial body 
charged with the responsibility to determine violations of the Federal 
or State criminal drug statutes;
    (3) Criminal drug statute means a Federal or non-Federal criminal 
statute involving the manufacture, distribution, dispensing, use, or 
possession of any controlled substance;
    (4) Drug-free workplace means a site for the performance of work 
done in connection with a specific grant at which employees of the 
grantee are prohibited from engaging in the unlawful manufacture, 
distribution, dispensing, possession, or use of a controlled substance;
    (5) Employee means the employee of a grantee directly engaged in the 
performance of work under the grant, including:
    (i) All direct charge employees;
    (ii) All indirect charge employees, unless their impact or 
involvement is insignificant to the performance of the grant; and,
    (iii) Temporary personnel and consultants who are directly engaged 
in the performance of work under the grant and who are on the grantee's 
payroll.

This definition does not include workers not on the payroll of the 
grantee (e.g., volunteers, even if used to meet a matching requirement; 
consultants or independent contractors not on the payroll; or employees 
of subrecipients or subcontractors in covered workplaces);
    (6) Federal agency or agency means any United States executive 
department, military department, government corporation, government 
controlled corporation, any other establishment in the executive branch 
(including the Executive Office of the President), or any independent 
regulatory agency;
    (7) Grant means an award of financial assistance, including a 
cooperative agreement, in the form of money, or property in lieu of 
money, by a Federal agency directly to a grantee. The term grant 
includes block grant and entitlement grant programs, whether or not 
exempted from coverage under the grants management government-wide 
common rule on uniform administrative requirements for grants and 
cooperative agreements. The term does not include technical assistance 
that provides services instead of money, or other assistance in the form 
of loans, loan guarantees, interest subsidies, insurance, or direct 
appropriations; or any veterans' benefits to individuals,

[[Page 325]]

i.e., any benefit to veterans, their families, or survivors by virtue of 
the service of a veteran in the Armed Forces of the United States;
    (8) Grantee means a person who applies for or receives a grant 
directly from a Federal agency (except another Federal agency);
    (9) Individual means a natural person;
    (10) State means any of the States of the United States, the 
District of Columbia, the Commonwealth of Puerto Rico, any territory or 
possession of the United States, or any agency of a State, exclusive of 
institutions of higher education, hospitals, and units of local 
government. A State instrumentality will be considered part of the State 
government if it has a written determination from a State government 
that such State considers the instrumentality to be an agency of the 
State government.



Sec. 12.610  Coverage.

    (a) The drug-free workplace requirements for grants applies to any 
grantee of the agency.
    (b) The drug-free workplace requirements for grants applies to any 
grant, except where application of the drug-free workplace requirements 
for grants would be inconsistent with the international obligations of 
the United States or the laws or regulations of a foreign government. A 
determination of such inconsistency may be made only by the agency head 
or his/her designee.
    (c) The provisions of subpart D apply to matters covered by the 
drug-free workplace requirements for grants, except where specifically 
modified by the drug-free workplace requirements for grants. In the 
event of any conflict between provisions of the drug-free workplace 
requirements for grants and other provisions of subpart D, the 
provisions of the drug-free workplace requirements for grants are deemed 
to control with respect to the implementation of drug-free workplace 
requirements concerning grants.

[55 FR 21688, 21701, May 25, 1990]



Sec. 12.615  Grounds for suspension of payments, suspension or termination of grants, or suspension or debarment.

    A grantee shall be deemed in violation of the requirements of the 
drug-free workplace requirements for grants if the agency head or his or 
her official designee determines, in writing, that--
    (a) The grantee has made a false certification under Sec. 12.630;
    (b) With respect to a grantee other than an individual--
    (1) The grantee has violated the certification by failing to carry 
out the requirements of paragraphs (A)(a)-(g) and/or (B) of the 
certification (Alternate I to appendix C) or
    (2) Such a number of employees of the grantee have been convicted of 
violations of criminal drug statutes for violations occurring in the 
workplace as to indicate that the grantee has failed to make a good 
faith effort to provide a drug-free workplace.
    (c) With respect to a grantee who is an individual--
    (1) The grantee has violated the certification by failing to carry 
out its requirements (Alternate II to appendix C); or
    (2) The grantee is convicted of a criminal drug offense resulting 
from a violation occurring during the conduct of any grant activity.



Sec. 12.620  Effect of violation.

    (a) In the event of a violation of the drug-free workplace 
requirements for grants as provided in Sec. 12.615, and in accordance 
with applicable law, the grantee shall be subject to one or more of the 
following actions:
    (1) Suspension of payments under the grant;
    (2) Suspension or termination of the grant; and
    (3) Suspension or debarment of the grantee under the provisions of 
subpart D.
    (b) Upon issuance of any final decision under subpart D requiring 
debarment of a grantee, the debarred grantee shall be ineligible for 
award of any grant from any Federal agency for a period specified in the 
decision, not to

[[Page 326]]

exceed five years (see Sec. 12.320(a)(2) of subpart D).



Sec. 12.625  Exception provision.

    The agency head may waive with respect to a particular grant, in 
writing, a suspension of payments under a grant, suspension or 
termination of a grant, or suspension or debarment of a grantee if the 
agency head determines that such a waiver would be in the public 
interest. This exception authority cannot be delegated to any other 
official.



Sec. 12.630  Certification requirements and procedures.

    (a)(1) As a prior condition of being awarded a grant, each grantee 
shall make the appropriate certification to the Federal agency providing 
the grant, as provided in appendix C to subpart D.
    (2) Grantees are not required to make a certification in order to 
continue receiving funds under a grant awarded before March 18, 1989, or 
under a no-cost time extension of such a grant. However, the grantee 
shall make a one-time drug-free workplace certification for a non-
automatic continuation of such a grant made on or after March 18, 1989.
    (b) Except as provided in this section, all grantees shall make the 
required certification for each grant. For mandatory formula grants and 
entitlements that have no application process, grantees shall submit a 
one-time certification in order to continue receiving awards.
    (c) A grantee that is a State may elect to make one certification in 
each Federal fiscal year. States that previously submitted an annual 
certification are not required to make a certification for Fiscal Year 
1990 until June 30, 1990. Except as provided in paragraph (d) of this 
section, this certification shall cover all grants to all State agencies 
from any Federal agency. The State shall retain the original of this 
statewide certification in its Governor's office and, prior to grant 
award, shall ensure that a copy is submitted individually with respect 
to each grant, unless the Federal agency has designated a central 
location for submission.
    (1) The Department of the Interior is not designating a central 
location for the receipt of the statewide certifications from States. 
Therefore, each State shall ensure that a copy of their certification is 
submitted individually with respect to each grant application sent to 
the Bureau/Office within the Department.
    (2) [Reserved]
    (d)(1) The Governor of a State may exclude certain State agencies 
from the statewide certification and authorize these agencies to submit 
their own certifications to Federal agencies. The statewide 
certification shall name any State agencies so excluded.
    (2) A State agency to which the statewide certification does not 
apply, or a State agency in a State that does not have a statewide 
certification, may elect to make one certification in each Federal 
fiscal year. State agencies that previously submitted a State agency 
certification are not required to make a certification for Fiscal Year 
1990 until June 30, 1990. The State agency shall retain the original of 
this State agency-wide certification in its central office and, prior to 
grant award, shall ensure that a copy is submitted individually with 
respect to each grant, unless the Federal agency designates a central 
location for submission.
    (i) The Department of the Interior is not designating a central 
location for the receipt of State agency-wide certifications from State 
agencies. Therefore, each State agency shall ensure that a copy is 
submitted individually with respect to each grant application sent to 
the Bureau/Office within the Department.
    (3) When the work of a grant is done by more than one State agency, 
the certification of the State agency directly receiving the grant shall 
be deemed to certify compliance for all workplaces, including those 
located in other State agencies.
    (e)(1) For a grant of less than 30 days performance duration, 
grantees shall have this policy statement and program in place as soon 
as possible, but in any case by a date prior to the date on which 
performance is expected to be completed.
    (2) For a grant of 30 days or more performance duration, grantees 
shall have

[[Page 327]]

this policy statement and program in place within 30 days after award.
    (3) Where extraordinary circumstances warrant for a specific grant, 
the grant officer may determine a different date on which the policy 
statement and program shall be in place.

[55 FR 21688, 21701, May 25, 1990]



Sec. 12.635  Reporting of and employee sanctions for convictions of criminal drug offenses.

    (a) When a grantee other than an individual is notified that an 
employee has been convicted for a violation of a criminal drug statute 
occurring in the workplace, it shall take the following actions:
    (1) Within 10 calendar days of receiving notice of the conviction, 
the grantee shall provide written notice, including the convicted 
employee's position title, to every grant officer, or other designee on 
whose grant activity the convicted employee was working, unless a 
Federal agency has designated a central point for the receipt of such 
notifications. Notification shall include the identification number(s) 
for each of the Federal agency's affected grants.
    (i) The Department of the Interior is not designating a central 
location for the receipt of these notices from grantees. Therefore, the 
grantee shall provide this written notice to every grant officer, or 
other designee within a Bureau/Office of the Department on whose grant 
activity the convicted employee was working.
    (2) Within 30 calendar days of receiving notice of the conviction, 
the grantee shall do the following with respect to the employee who was 
convicted.
    (i) Take appropriate personnel action against the employee, up to 
and including termination, consistent with requirements of the 
Rehabilitation Act of 1973, as amended; or
    (ii) Require the employee to participate satisfactorily in a drug 
abuse assistance or rehabilitation program approved for such purposes by 
a Federal, State, or local health, law enforcement, or other appropriate 
agency.
    (b) A grantee who is an individual who is convicted for a violation 
of a criminal drug statute occurring during the conduct of any grant 
activity shall report the conviction, in writing, within 10 calendar 
days, to his or her Federal agency grant officer, or other designee, 
unless the Federal agency has designated a central point for the receipt 
of such notices. Notification shall include the identification number(s) 
for each of the Federal agency's affected grants.
    (1) The Department of the Interior is not designating a central 
location for the receipt of the notice from a grantee who is an 
individual. Therefore, the grantee who is an individual shall provide 
this written notice to the grant officer or other designee within the 
Bureau/Office within the Department.
    (2) [Reserved]

(Approved by the Office of Management and Budget under control number 
0991-0002)

[55 FR 21688 and 21702, May 25, 1990]

 Appendix A to Subpart D of Part 12--Certification Regarding Debarment, 
     Suspension, and Other Responsibility Matters--Primary Covered 
                              Transactions

                     Instructions for Certification

    1. By signing and submitting this proposal, the prospective primary 
participant is providing the certification set out below.
    2. The inability of a person to provide the certification required 
below will not necessarily result in denial of participation in this 
covered transaction. The prospective participant shall submit an 
explanation of why it cannot provide the certification set out below. 
The certification or explanation will be considered in connection with 
the department or agency's determination whether to enter into this 
transaction. However, failure of the prospective primary participant to 
furnish a certification or an explanation shall disqualify such person 
from participation in this transaction.
    3. The certification in this clause is a material representation of 
fact upon which reliance was placed when the department or agency 
determined to enter into this transaction. If it is later determined 
that the prospective primary participant knowingly rendered an erroneous 
certification, in addition to other remedies available to the Federal 
Government, the department or agency may terminate this transaction for 
cause or default.
    4. The prospective primary participant shall provide immediate 
written notice to the department or agency to which this proposal is 
submitted if at any time the prospective primary participant learns that 
its certification was erroneous when submitted

[[Page 328]]

or has become erroneous by reason of changed circumstances.
    5. The terms covered transaction, debarred, suspended, ineligible, 
lower tier covered transaction, participant, person, primary covered 
transaction, principal, proposal, and voluntarily excluded, as used in 
this clause, have the meanings set out in the Definitions and Coverage 
sections of the rules implementing Executive Order 12549. You may 
contact the department or agency to which this proposal is being 
submitted for assistance in obtaining a copy of those regulations.
    6. The prospective primary participant agrees by submitting this 
proposal that, should the proposed covered transaction be entered into, 
it shall not knowingly enter into any lower tier covered transaction 
with a person who is proposed for debarment under 48 CFR part 9, subpart 
9.4, debarred, suspended, declared ineligible, or voluntarily excluded 
from participation in this covered transaction, unless authorized by the 
department or agency entering into this transaction.
    7. The prospective primary participant further agrees by submitting 
this proposal that it will include the clause titled ``Certification 
Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-
Lower Tier Covered Transaction,'' provided by the department or agency 
entering into this covered transaction, without modification, in all 
lower tier covered transactions and in all solicitations for lower tier 
covered transactions.
    8. A participant in a covered transaction may rely upon a 
certification of a prospective participant in a lower tier covered 
transaction that it is not proposed for debarment under 48 CFR part 9, 
subpart 9.4, debarred, suspended, ineligible, or voluntarily excluded 
from the covered transaction, unless it knows that the certification is 
erroneous. A participant may decide the method and frequency by which it 
determines the eligibility of its principals. Each participant may, but 
is not required to, check the List of Parties Excluded from Federal 
Procurement and Nonprocurement Programs.
    9. Nothing contained in the foregoing shall be construed to require 
establishment of a system of records in order to render in good faith 
the certification required by this clause. The knowledge and information 
of a participant is not required to exceed that which is normally 
possessed by a prudent person in the ordinary course of business 
dealings.
    10. Except for transactions authorized under paragraph 6 of these 
instructions, if a participant in a covered transaction knowingly enters 
into a lower tier covered transaction with a person who is proposed for 
debarment under 48 CFR part 9, subpart 9.4, suspended, debarred, 
ineligible, or voluntarily excluded from participation in this 
transaction, in addition to other remedies available to the Federal 
Government, the department or agency may terminate this transaction for 
cause or default.

Certification Regarding Debarment, Suspension, and Other Responsibility 
                  Matters--Primary Covered Transactions

    (1) The prospective primary participant certifies to the best of its 
knowledge and belief, that it and its principals:
    (a) Are not presently debarred, suspended, proposed for debarment, 
declared ineligible, or voluntarily excluded by any Federal department 
or agency;
    (b) Have not within a three-year period preceding this proposal been 
convicted of or had a civil judgment rendered against them for 
commission of fraud or a criminal offense in connection with obtaining, 
attempting to obtain, or performing a public (Federal, State or local) 
transaction or contract under a public transaction; violation of Federal 
or State antitrust statutes or commission of embezzlement, theft, 
forgery, bribery, falsification or destruction of records, making false 
statements, or receiving stolen property;
    (c) Are not presently indicted for or otherwise criminally or 
civilly charged by a governmental entity (Federal, State or local) with 
commission of any of the offenses enumerated in paragraph (1)(b) of this 
certification; and
    (d) Have not within a three-year period preceding this application/
proposal had one or more public transactions (Federal, State or local) 
terminated for cause or default.
    (2) Where the prospective primary participant is unable to certify 
to any of the statements in this certification, such prospective 
participant shall attach an explanation to this proposal.

[60 FR 33042, 33061, June 26, 1995]

 Appendix B to Subpart D of Part 12--Certification Regarding Debarment, 
 Suspension, Ineligibility and Voluntary Exclusion--Lower Tier Covered 
                              Transactions

                     Instructions for Certification

    1. By signing and submitting this proposal, the prospective lower 
tier participant is providing the certification set out below.
    2. The certification in this clause is a material representation of 
fact upon which reliance was placed when this transaction was entered 
into. If it is later determined that the prospective lower tier 
participant knowingly rendered an erroneous certification, in addition 
to other remedies available to the Federal Government the department or

[[Page 329]]

agency with which this transaction originated may pursue available 
remedies, including suspension and/or debarment.
    3. The prospective lower tier participant shall provide immediate 
written notice to the person to which this proposal is submitted if at 
any time the prospective lower tier participant learns that its 
certification was erroneous when submitted or had become erroneous by 
reason of changed circumstances.
    4. The terms covered transaction, debarred, suspended, ineligible, 
lower tier covered transaction, participant, person, primary covered 
transaction, principal, proposal, and voluntarily excluded, as used in 
this clause, have the meaning set out in the Definitions and Coverage 
sections of rules implementing Executive Order 12549. You may contact 
the person to which this proposal is submitted for assistance in 
obtaining a copy of those regulations.
    5. The prospective lower tier participant agrees by submitting this 
proposal that, should the proposed covered transaction be entered into, 
it shall not knowingly enter into any lower tier covered transaction 
with a person who is proposed for debarment under 48 CFR part 9, subpart 
9.4, debarred, suspended, declared ineligible, or voluntarily excluded 
from participation in this covered transaction, unless authorized by the 
department or agency with which this transaction originated.
    6. The prospective lower tier participant further agrees by 
submitting this proposal that it will include this clause titled 
``Certification Regarding Debarment, Suspension, Ineligibility and 
Voluntary Exclusion-Lower Tier Covered Transaction,'' without 
modification, in all lower tier covered transactions and in all 
solicitations for lower tier covered transactions.
    7. A participant in a covered transaction may rely upon a 
certification of a prospective participant in a lower tier covered 
transaction that it is not proposed for debarment under 48 CFR part 9, 
subpart 9.4, debarred, suspended, ineligible, or voluntarily excluded 
from covered transactions, unless it knows that the certification is 
erroneous. A participant may decide the method and frequency by which it 
determines the eligibility of its principals. Each participant may, but 
is not required to, check the List of Parties Excluded from Federal 
Procurement and Nonprocurement Programs.
    8. Nothing contained in the foregoing shall be construed to require 
establishment of a system of records in order to render in good faith 
the certification required by this clause. The knowledge and information 
of a participant is not required to exceed that which is normally 
possessed by a prudent person in the ordinary course of business 
dealings.
    9. Except for transactions authorized under paragraph 5 of these 
instructions, if a participant in a covered transaction knowingly enters 
into a lower tier covered transaction with a person who is proposed for 
debarment under 48 CFR part 9, subpart 9.4, suspended, debarred, 
ineligible, or voluntarily excluded from participation in this 
transaction, in addition to other remedies available to the Federal 
Government, the department or agency with which this transaction 
originated may pursue available remedies, including suspension and/or 
debarment.

    Certification Regarding Debarment, Suspension, Ineligibility an 
          Voluntary Exclusion--Lower Tier Covered Transactions

    (1) The prospective lower tier participant certifies, by submission 
of this proposal, that neither it nor its principals is presently 
debarred, suspended, proposed for debarment, declared ineligible, or 
voluntarily excluded from participation in this transaction by any 
Federal department or agency.
    (2) Where the prospective lower tier participant is unable to 
certify to any of the statements in this certification, such prospective 
participant shall attach an explanation to this proposal.

[60 FR 33042, 33061, June 26, 1995]

 Appendix C to Subpart D of Part 12--Certification Regarding Drug-Free 
                         Workplace Requirements

                     Instructions for Certification

    1. By signing and/or submitting this application or grant agreement, 
the grantee is providing the certification set out below.
    2. The certification set out below is a material representation of 
fact upon which reliance is placed when the agency awards the grant. If 
it is later determined that the grantee knowingly rendered a false 
certification, or otherwise violates the requirements of the Drug-Free 
Workplace Act, the agency, in addition to any other remedies available 
to the Federal Government, may take action authorized under the Drug-
Free Workplace Act.
    3. For grantees other than individuals, Alternate I applies.
    4. For grantees who are individuals, Alternate II applies.
    5. Workplaces under grants, for grantees other than individuals, 
need not be identified on the certification. If known, they may be 
identified in the grant application. If the grantee does not identify 
the workplaces at the time of application, or upon award, if there is no 
application, the grantee must keep the identity of the workplace(s) on 
file

[[Page 330]]

in its office and make the information available for Federal inspection. 
Failure to identify all known workplaces constitutes a violation of the 
grantee's drug-free workplace requirements.
    6. Workplace identifications must include the actual address of 
buildings (or parts of buildings) or other sites where work under the 
grant takes place. Categorical descriptions may be used (e.g., all 
vehicles of a mass transit authority or State highway department while 
in operation, State employees in each local unemployment office, 
performers in concert halls or radio studios).
    7. If the workplace identified to the agency changes during the 
performance of the grant, the grantee shall inform the agency of the 
change(s), if it previously identified the workplaces in question (see 
paragraph five).
    8. Definitions of terms in the Nonprocurement Suspension and 
Debarment common rule and Drug-Free Workplace common rule apply to this 
certification. Grantees' attention is called, in particular, to the 
following definitions from these rules:
    Controlled substance means a controlled substance in Schedules I 
through V of the Controlled Substances Act (21 U.S.C. 812) and as 
further defined by regulation (21 CFR 1308.11 through 1308.15);
    Conviction means a finding of guilt (including a plea of nolo 
contendere) or imposition of sentence, or both, by any judicial body 
charged with the responsibility to determine violations of the Federal 
or State criminal drug statutes;
    Criminal drug statute means a Federal or non-Federal criminal 
statute involving the manufacture, distribution, dispensing, use, or 
possession of any controlled substance;
    Employee means the employee of a grantee directly engaged in the 
performance of work under a grant, including: (i) All direct charge 
employees; (ii) All indirect charge employees unless their impact or 
involvement is insignificant to the performance of the grant; and, (iii) 
Temporary personnel and consultants who are directly engaged in the 
performance of work under the grant and who are on the grantee's 
payroll. This definition does not include workers not on the payroll of 
the grantee (e.g., volunteers, even if used to meet a matching 
requirement; consultants or independent contractors not on the grantee's 
payroll; or employees of subrecipients or subcontractors in covered 
workplaces).

        Certification Regarding Drug-Free Workplace Requirements

             Alternate I. (Grantees Other Than Individuals)

    A. The grantee certifies that it will or will continue to provide a 
drug-free workplace by:
    (a) Publishing a statement notifying employees that the unlawful 
manufacture, distribution, dispensing, possession, or use of a 
controlled substance is prohibited in the grantee's workplace and 
specifying the actions that will be taken against employees for 
violation of such prohibition;
    (b) Establishing an ongoing drug-free awareness program to inform 
employees about--
    (1) The dangers of drug abuse in the workplace;
    (2) The grantee's policy of maintaining a drug-free workplace;
    (3) Any available drug counseling, rehabilitation, and employee 
assistance programs; and
    (4) The penalties that may be imposed upon employees for drug abuse 
violations occurring in the workplace;
    (c) Making it a requirement that each employee to be engaged in the 
performance of the grant be given a copy of the statement required by 
paragraph (a);
    (d) Notifying the employee in the statement required by paragraph 
(a) that, as a condition of employment under the grant, the employee 
will--
    (1) Abide by the terms of the statement; and
    (2) Notify the employer in writing of his or her conviction for a 
violation of a criminal drug statute occurring in the workplace no later 
than five calendar days after such conviction;
    (e) Notifying the agency in writing, within ten calendar days after 
receiving notice under paragraph (d)(2) from an employee or otherwise 
receiving actual notice of such conviction. Employers of convicted 
employees must provide notice, including position title, to every grant 
officer or other designee on whose grant activity the convicted employee 
was working, unless the Federal agency has designated a central point 
for the receipt of such notices. Notice shall include the identification 
number(s) of each affected grant;
    (f) Taking one of the following actions, within 30 calendar days of 
receiving notice under paragraph (d)(2), with respect to any employee 
who is so convicted--
    (1) Taking appropriate personnel action against such an employee, up 
to and including termination, consistent with the requirements of the 
Rehabilitation Act of 1973, as amended; or
    (2) Requiring such employee to participate satisfactorily in a drug 
abuse assistance or rehabilitation program approved for such purposes by 
a Federal, State, or local health, law enforcement, or other appropriate 
agency;
    (g) Making a good faith effort to continue to maintain a drug-free 
workplace through implementation of paragraphs (a), (b), (c), (d), (e) 
and (f).

[[Page 331]]

    B. The grantee may insert in the space provided below the site(s) 
for the performance of work done in connection with the specific grant:

Place of Performance (Street address, city, county, State, zip code)

________________________________________________________________________
________________________________________________________________________
________________________________________________________________________

Check {time}  if there are workplaces on file that are not identified 
here.

              Alternate II. (Grantees Who Are Individuals)

    (a) The grantee certifies that, as a condition of the grant, he or 
she will not engage in the unlawful manufacture, distribution, 
dispensing, possession, or use of a controlled substance in conducting 
any activity with the grant;
    (b) If convicted of a criminal drug offense resulting from a 
violation occurring during the conduct of any grant activity, he or she 
will report the conviction, in writing, within 10 calendar days of the 
conviction, to every grant officer or other designee, unless the Federal 
agency designates a central point for the receipt of such notices. When 
notice is made to such a central point, it shall include the 
identification number(s) of each affected grant.

[55 FR 21690, 21701, May 25, 1990]



      Subpart E--Buy American Requirements for Assistance Programs

    Source: 59 FR 36715, July 19, 1994, unless otherwise noted.

                       Buy American Act--Supplies



Sec. 12.700  Scope.

    This subpart implements section 307 of the Omnibus Consolidated 
Appropriations Act of 1997 (Public Law 104-208, 110 Stat. 3009) and 
section 501 of the Energy and Water Development Appropriations Act, 1997 
(Public Law 104-206, 110 Stat. 2984). For awards made under the 
authority of section 307(a) of Public Law 104-208, this subpart requires 
that no funds made available in the Act may be expended by an entity 
unless the entity agrees that in expending the funds the entity will 
comply with sections 2 through 4 of the Act of March 3, 1933 (41 U.S.C. 
10a-10c; popularly known as the ``Buy American Act''). It applies to 
procurement contracts under grants and cooperative agreements which 
provide for the purchase of equipment and products. Section 501 of 
Public Law 104-206, 110 Stat. 2984, only applies to awards made by the 
Bureau of Reclamation. In addition, for these awards, there is only a 
requirement that in providing financial assistance to, or entering into 
any contract with, any entity using funds made available in this Act, 
the Secretary, to the greatest extent practicable, will provide to the 
entity a notice describing a statement within the Act made by Congress. 
This statement concerns the sense of the Congress that to the greatest 
extent practicable, all equipment and products purchased with funds made 
available in the Act, should be American-made. Therefore, for Fiscal 
Year 1997 awards, only the requirements in Section 12.700 and 12.710 
will apply to awards made by the Bureau of Reclamation.

[61 FR 68667, Dec. 30, 1996]



Sec. 12.705  Definitions.

    Components, as used in this subpart, means those articles, 
materials, and supplies incorporated directly into the end products.
    Concern, as used in this subpart, means any business entity 
organized for profit (even if its ownership is in the hands of a 
nonprofit entity) with a place of business located in the United States 
and which makes a significant contribution to the U.S. economy through 
payment of taxes and/or use of American products, to an individual, 
partnership, corporation, joint venture, association, or cooperative.
    Domestic end product, as used in this subpart, means (a) an 
unmanufactured end product mined or produced in the United States; or 
(b) an end product manufactured in the United States, if the cost of its 
components mined, produced, or manufactured in the United States exceeds 
50 percent of the cost of all its components. (In determining if an end 
product is domestic, only the end product and its components shall be 
considered.) The cost of each component includes transportation costs to 
the place of incorporation into the end product and any applicable duty 
(whether or not a duty-free entry certificate is issued). Components of 
foreign origin of the same class or kind

[[Page 332]]

for which determinations have been made in accordance with Section 
12.710(d) (3) and (4) are treated as domestic. Scrap generated, 
collected, and prepared for processing in the United States is 
considered domestic. On acquisitions above $25,000 in value, components 
of Canadian origin are treated as domestic.
    Domestic offer, as used in this subpart, means an offered price for 
a domestic end product, including transportation to destination.
    End product, as used in this subpart, means those articles, 
materials, and supplies to be acquired for public use under the grant, 
cooperative agreement, or procurement contract awarded under the grant 
or cooperative agreement.
    Foreign end product, as used in this subpart, means an end product 
other than a domestic end product.
    Foreign offer, as used in this subpart, means an offered price for a 
foreign end product, including transportation to destination and duty 
(whether or not a duty-free entry certificate is issued).
    Instrumentality, as used in this subpart, does not include an agency 
or division of the government of a country.
    Labor surplus area, as used in this subpart, means a geographical 
area identified by the Department of Labor in accordance with 20 CFR 
part 654, subpart A, as an area of concentrated unemployment or 
underemployment or an area of labor surplus.
    Labor surplus area concern, as used in this subpart, means a concern 
that together with its first-tier subcontractors will perform 
substantially in labor surplus areas. Performance is substantially in 
labor surplus areas if the costs incurred under the contract on account 
of manufacturing, production, or performance of appropriate services in 
labor surplus areas exceed 50 percent of the contract price.
    United States, as used in this subpart, means the states thereof, 
the District of Columbia, and the territories and possessions of the 
United States.

[59 FR 36715, July 19, 1994, as amended at 61 FR 68668, Dec. 30, 1996]



Sec. 12.710  Policy.

    (a) In the case of any equipment or product that may be authorized 
to be purchased with financial assistance provided using funds made 
available under Public Law 104-208, it is the sense of Congress that 
entities receiving the assistance should, in expending the assistance, 
purchase only American-made equipment and products.
    (b) In awarding financial assistance under Public Law 104-208, 110 
Stat. 3009, bureaus and offices excluding the Bureau of Reclamation will 
provide to each recipient of the assistance the following notice:

    Notice: Pursuant to sec. 307 of the Omnibus Consolidated 
Appropriations Act of 1997, Public Law 104-208, 110 Stat. 3009, please 
be advised of the following:
    In the case of any equipment or product that may be authorized to be 
purchased with financial assistance provided using funds made available 
in this act, it is the sense of the Congress that entities receiving the 
assistance should, in expending the assistance, purchase only American-
made equipment and products.

    (c) In awarding financial assistance using funds made available 
under Public Law 104-206, to the greatest extent practicable, the Bureau 
of Reclamation will provide to each recipient of the assistance the 
following notice:

    Notice: Pursuant to sec. 501 of the Energy and Water Development 
Appropriations Act, 1997, Public Law 104-206, 110 Stat. 2984, please be 
advised of the following:
    It is the sense of the Congress, that to the greatest extent 
practicable, all equipment and products purchased with funds made 
available in this act should be American-made.

    (d) The Buy American Act requires that only domestic end products be 
acquired for public use, except articles, materials, and supplies--
    (1) For use outside the United States;
    (2) For which the cost would be unreasonable, as determined in 
accordance with Sec. 12.715;
    (3) For which the agency head determines that domestic preference 
would be inconsistent with the public interest; or
    (4) That are not mined, produced, or manufactured in the United 
States in sufficient and reasonable available commercial quantities, of 
a satisfactory quality (see Sec. 12.720).

[[Page 333]]

    (e) The grantee's contracting officer may make a nonavailability 
determination under Sec. 12.710(d)(4) for a procurement contract awarded 
under the grant or cooperative agreement if--
    (1) The procurement action was conducted by full and open 
competition;
    (2) The procurement action was publicly advertised; and
    (3) No offer for a domestic end product was received; or
    (f) The head of the grantee's contracting activity or designee may 
make a nonavailability determination under Sec. 12.710(d)(4) for any 
circumstance other than specified in paragraph (e) of this section.

[59 FR 36715, July 19, 1994, as amended at 59 FR 65500, Dec. 20, 1994; 
61 FR 39084, July 26, 1996; 61 FR 68668, Dec. 30, 1996]



Sec. 12.715  Evaluating offers.

    (a) Unless the head of the grantee organization or a designee at a 
level no lower than the grantee's designated awarding official 
determines otherwise, the offered price of a domestic end product is 
unreasonable when the lowest acceptable domestic offer exceeds the 
lowest acceptable foreign offer (see Sec. 12.705), inclusive of duty, 
by--
    (1) More than 6 percent, if the domestic offer is from a large 
business that is not a labor surplus area concern; or
    (2) More than 12 percent, if the domestic offer is from a small 
business concern or any labor surplus area concern.
    (b) The evaluation in paragraph (a) of this section shall be applied 
on an item-by-item basis or to any group of items on which award may be 
made as specifically provided by the solicitation.
    (c) If an award of more than $250,000 would be made to a domestic 
concern if the 12-percent factor were applied, but not if the 6-percent 
factor were applied, the head of the grantee organization or a designee 
at a level no lower than the grantee's designated awarding official 
shall decide whether award to the domestic concern would involve 
unreasonable cost.



Sec. 12.720  Excepted articles, materials, and supplies.

    (a) As indicated in the Federal Acquisition Regulation (FAR), one or 
more agencies have determined that the articles, materials, and supplies 
on the list referred to in paragraph (b) of this section are not mined, 
produced, or manufactured in the United States in sufficient and 
reasonably available commercial quantities of a satisfactory quality. 
This referenced list in paragraph (b) of this section is furnished for 
information only; an article, material or supply listed therein may be 
treated as domestic only when the head of the grantee organization or a 
designee at a level no lower than the grantee's designated awarding 
official has made a determination that it is not mined, produced, or 
manufactured in the United States in sufficient and reasonably available 
quantities of a satisfactory quality.
    (b) Refer to the current list of excepted articles, materials, and 
supplies in FAR 25.108 (48 CFR 25.108).



Sec. 12.725  Solicitation provisions and contract clause.

    (a) When quotations are obtained orally, vendors shall be informed 
that only domestic end products, other than end products excepted on a 
blanket or individual basis (see Sec. 12.720), shall be acceptable, 
unless the price for an offered domestic end product is unreasonable 
(see Sec. 12.715).
    (b) The grantee awarding officer shall insert the clause at 
Sec. 12.730, Buy American Act--Supplies, in solicitations for 
procurement contracts awarded under the grant or cooperative agreement 
for the purchase of supplies, or for services involving the furnishing 
of supplies, for use within the United States.



Sec. 12.730  Buy American Act--Supplies.

    As prescribed in Sec. 12.725, insert the following clause:

                       Buy American Act--Supplies

    (a) The Buy American Act (41 U.S.C. 10) provides that the Government 
give preference to domestic end products.
    Components, as used in this clause, means those articles, materials, 
and supplies incorporated directly into the end products.
    Domestic end product, as used in this clause, means an 
unmanufactured end product mined or produced in the United States, if 
the cost of its components mined, produced,

[[Page 334]]

or manufactured in the United States exceeds 50 percent of the cost of 
all its components. Components of foreign origin of the same class or 
kind as the products referred to in paragraphs (b)(2) or (3) of this 
clause shall be treated as domestic.
    End products, as used in this clause, means those articles, 
materials, and supplies to be acquired for public use under this 
contract.
    (b) The contractor shall deliver only domestic end products, except 
those--
    (1) For use outside the United States;
    (2) That the Government determines are not mined, produced, or 
manufactured in the United States in sufficient and reasonably available 
commercial quantities of a satisfactory quality;
    (3) For which the head of the grantee organization or a designee at 
a level no lower than the grantee's designated awarding official 
determines that domestic preference would be inconsistent with the 
public interest; or
    (4) For which the head of the grantee organization or a designee at 
a level no lower than the grantee's designated awarding official 
determines the cost to be unreasonable (see Sec. 12.715).

                             (End of clause)

                Buy American Act--Construction Materials



Sec. 12.800  Scope.

    This subpart implements the Buy American Act (41 U.S.C. 10). It 
applies to procurement contracts awarded under a grant or cooperative 
agreement for the construction, alteration, or repair of any public 
building or public work in the United States.



Sec. 12.805  Definitions.

    Components, as used in this subpart, means those articles, 
materials, and supplies incorporated directly into construction 
materials.
    Construction, as used in this subpart, means construction, 
alteration, or repair of any public building or public work in the 
United States.
    Construction materials, as used in this subpart, means an article, 
material, and supply brought to the construction site for incorporation 
into the building or work.
    Construction material also includes an item brought to the site pre-
assembled from articles, materials, and supplies. However, emergency 
life safety systems, such as emergency lighting, fire alarm, and audio 
evacuation systems, which are discrete systems incorporated into a 
public building or work and which are produced as a complete system, 
shall be evaluated as a single and distinct construction material 
regardless of when or how the individual parts or components of such 
systems are delivered to the construction site.
    Domestic construction material, as used in this section, means: (a) 
An unmanufactured construction material mined or produced in the United 
States, or (b) a construction material manufactured in the United 
States, if the cost of its components mined, produced, or manufactured 
in the United States exceeds 50 percent of the cost of all its 
components. (In determining whether a construction material is domestic, 
only the construction material and its components shall be considered.) 
The cost of each component includes transportation costs to the place of 
incorporation into the construction material and any applicable duty 
(whether or not a duty-free entry certificate is issued). Components of 
foreign origin of the same class or kind for which determinations have 
been made in accordance with Sec. 12.810(a)(3) are treated as domestic.
    Foreign construction material, as used in this section, means as 
construction material other than a domestic construction material.
    United States (see Sec. 12.705).



Sec. 12.810  Policy.

    (a) The Buy American Act requires that only domestic construction 
materials be used in construction in the United States, except when--
    (1) The cost would be unreasonable as determined in accordance with 
Sec. 12.815;
    (2) The head of the grantee organization or a designee at a level no 
lower than the grantee's designated awarding official determines that 
use of a particular domestic construction material would be 
impracticable; or
    (3) The head of the grantee organization or a designee at a level no 
lower than the grantee's designated awarding official determines the 
construction material is not mined, produced, or manufactured in the 
United States in sufficient and reasonably available commercial 
quantities of a satisfactory quality (see Sec. 12.720).

[[Page 335]]

    (b) When it is determined for any reasons stated in this section 
that certain foreign construction materials may be used, the excepted 
materials shall be listed in the agreement. Findings justifying the 
exception shall be available for public inspection.



Sec. 12.815  Evaluating offers.

    (a) The restrictions of the Buy American Act do not apply when the 
head of the grantee organization or a designee at a level no lower than 
the grantee's designated awarding official determines that using a 
particular domestic construction material would unreasonably increase 
the cost or would be impracticable.
    (b) When proposed awards are submitted to the head of the grantee 
organization or a designee at a level no lower than the grantee's 
designated awarding official for approval, each submission shall include 
a description of the materials, including unit and quantity, estimated 
costs, location of the construction project, name and address of the 
proposed contractor, and a detailed justification of the 
impracticability of using domestic materials.



Sec. 12.820  Violations.

    Violation of the Buy American Act in the performance of a 
procurement construction contract under a grant or cooperative agreement 
is a cause for debarment. Information concerning a failure to comply 
with the clause at Sec. 12.830, Buy American Act--Construction 
Materials, shall be promptly reported, investigated, and referred, when 
appropriate to the appropriate U.S. Department of the Interior employee 
responsible for administering the grant or cooperative agreement. (For 
debarment procedures, see subpart D of this part).



Sec. 12.825  Solicitation provision and contract clause.

    The grantee awarding official shall insert the clause at 
Sec. 12.830, Buy American Act--Construction Materials, in solicitations 
for procurement contracts awarded under a grant or cooperative agreement 
for construction inside the United States.



Sec. 12.830  Buy American Act--Construction materials.

    As prescribed in Sec. 12.825, insert the following clause in 
solicitations for procurement contracts awarded under a grant or 
cooperative agreement for construction inside the United States:

                Buy American Act--Construction Materials

    (a) The Buy American Act (41 U.S.C. 10) provides that the Government 
give preference to domestic construction material.
    Components, used in this clause, means those articles, materials, 
and supplies incorporated directly into construction materials.
    Construction material, as used in this clause, means an article, 
material, or supply brought to the construction site for incorporation 
into the building or work. Construction material also includes an item 
brought to the site pre-assembled from articles, materials or supplies. 
However, emergency life safety systems, such as emergency lighting, fire 
alarm, and audio evacuation systems, which are discrete systems 
incorporated into a public building or work and which are produced as a 
complete system, shall be evaluated as a single and distinct 
construction material regardless of when or how the individual parts or 
components of such systems are delivered to the construction site.
    Domestic construction material, as used in this clause, means (a) an 
unmanufactured construction material mined or produced in the United 
States, or (b) a construction material manufactured in the United 
States, if the cost of its components mined, produced, or manufactured 
in the United States exceeds 50 percent of the cost of all its 
components. Components of foreign origin of the same class or kind as 
the construction materials determined to be unavailable pursuant to 
Sec. 12.810(a)(3) of 43 CFR part 12, subpart E shall be treated as 
domestic.
    (b) The contractor agrees that only domestic construction material 
will be used by the contractor, subcontractors, materialmen, and 
suppliers in the performance of this agreement, except for foreign 
construction materials, if any, listed in this agreement.


[[Page 336]]



                             (End of clause)



Subpart F--Uniform Administrative Requirements for Grants and Agreements 
 With Institutions of Higher Education, Hospitals, and Other Non-Profit 
                              Organizations

    Source: 60 FR 17238, Apr. 5, 1995, unless otherwise noted.

                                 General



Sec. 12.901  Purpose.

    This subpart establishes uniform administrative requirements for 
Federal grants and agreements awarded to institutions of higher 
education, hospitals, and other non-profit organizations.



Sec. 12.902  Definitions.

    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, subrecipients, and 
other payees; and,
    (3) Other amounts becoming owed under programs for which no current 
services or performance is required.
    Accrued income means the sum of:
    (1) Earnings during a given period from:
    (i) Services performed by the recipient, and
    (ii) 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.
    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.
    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.
    Award means financial assistance that provides support or 
stimulation to accomplish a public purpose. Awards include grants and 
other agreements in the form of money or property in lieu of money, by 
the Federal Government 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 to individuals; 
and, contracts which are required to be entered into and administered 
under procurement laws and regulations.
    Cash contributions means the recipient's cash outlay, including the 
outlay of money contributed to the recipient by third parties.
    Closeout means the process by which a Federal agency determines that 
all applicable administrative actions and all required work of the award 
have been completed by the recipient and Federal awarding agency.
    Contract means a procurement contract under an award or subaward, 
and a procurement subcontract under a recipient's or subrecipient's 
contract.
    Cost sharing or matching means that portion of project or program 
costs not borne by the Federal Government.
    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 Federal sponsorship ends.
    Disallowed costs means those charges to an award that the Federal 
awarding agency determines to be unallowable, in accordance with the 
applicable Federal cost principles or other terms and conditions 
contained in the award.
    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

[[Page 337]]

$5,000 or more per unit. However, consistent with recipient policy, 
lower limits may be established.
    Excess property means property under the control of any Federal 
awarding agency that, as determined by the Secretary, is no longer 
required for its needs or the discharge of its responsibilities.
    Exempt property means tangible personal property acquired in whole 
or in part with Federal funds, where the 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.
    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.
    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.
    Funding period means the period of time when Federal funding is 
available for obligation by the recipient.
    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.
    Obligations means 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.
    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 subrecipients. 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 
goods and other property received, for services performed by employees, 
contractors, subrecipients and other payees and other amounts becoming 
owed under programs for which no current services or performance are 
required.
    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.
    Prior approval means written approval by an authorized official 
evidencing prior consent.
    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. 12.924 (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 patients and copyrights, 
and interest on loans made with award funds. Interest earned on advances 
of Federal funds is not program income. Except as otherwise provided in 
Federal awarding agency 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.
    Project costs means all allowable costs, as set forth in the 
applicable Federal cost principles, incurred by a

[[Page 338]]

recipient and the value of the contributions made by third parties in 
accomplishing the objectives of the award during the project period.
    Project period means the period established in the award document 
during which Federal sponsorship begins and ends.
    Property means, unless otherwise stated, real property, equipment, 
supplies, intangible property and debt instruments.
    Real property means land, including land improvements, structures 
and appurtenances thereto, but excludes movable machinery and equipment.
    Recipient means an organization receiving financial assistance 
directly from Federal awarding agencies 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, at the discretion of the Federal 
awarding agency, foreign or international organizations (such as 
agencies of the United Nations) which are recipients, subrecipients, or 
contractors or subcontractors of recipients or subrecipients. 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.
    Research and development means all research activities, both basic 
and applied, and all development activities that are supported at 
universities, colleges, and other non-profit institutions.
    (1) Research is defined as a systematic study directed toward fuller 
scientific knowledge or understanding of the subject studied.
    (2) 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 includes 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.
    Small awards means a grant or cooperative agreement not exceeding 
the small purchase threshold fixed at 41 U.S.C. 403(11) (currently 
$100,000).
    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 this section.
    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) at the discretion of the Federal 
awarding agency.
    Supplies means all personal property excluding equipment, intangible 
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.''
    Suspension means an action by a Federal awarding agency that 
temporarily withdraws Federal sponsorship under an award, pending 
corrective action by the recipient or pending a decision to terminate 
the award by the Federal awarding agency. Suspension of an award is a 
separate action from suspension under the Department of the Interior 
Regulations implementing E.O.'s 12549 and 12689, ``Debarment and 
Suspension.'' See subpart D of 43 CFR part 12.

[[Page 339]]

    Termination means the cancellation of Federal sponsorship, in whole 
or in part, under an agreement at any time prior to the date of 
completion.
    Third party in-kind contributions means the value of noncash 
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.
    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.
    Unobligated balance means the portion of the funds authorized by 
Federal awarding agency that has not been obligated by the recipient and 
is determined by deducting the cumulative obligations from the 
cumulative funds authorized.
    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.
    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. 12.903  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 
Section 12.904.



Sec. 12.904  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. Federal 
awarding agencies may apply more restrictive requirements to a class of 
recipients when approved by OMB. All requests for class deviations shall 
be processed through the Assistant Secretary-Policy, Management, and 
Budget. Federal awarding agencies 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 Federal awarding agencies. Bureau/office application of less 
restrictive requirements when awarding small awards, except for those 
requirements which are statutory, as well as exceptions on a case-by-
case basis, will be handled by designated officials identified in 
bureau/office procedures.



Sec. 12.905  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 regulations implementing the grants management common 
rule, ``Uniform Administrative Requirements for Grants and Cooperative 
Agreements to State and Local Governments,'' 43 CFR part 12.

                         Pre-Award Requirements



Sec. 12.910  Purpose.

    Sections 12.011 through 12.917 prescribe forms and instructions and 
other pre-award matters to be used in applying for Federal awards.



Sec. 12.911  Pre-award policies.

    (a) Use of Grants and Cooperative Agreements, and Contracts. In each 
instance, the Federal awarding agency shall decide on the appropriate 
award instrument (i.e., grant, cooperative agreement, or contract). The 
Federal Grant and Cooperative Agreement Act

[[Page 340]]

(31 U.S.C. 6301-6308) 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. Federal awarding agencies 
shall notify the public of their funding priorities for discretionary 
grant programs, unless funding priorities are established by Federal 
statute.



Sec. 12.912  Forms for applying for Federal assistance.

    (a) Federal awarding agencies 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 
Federal awarding agency in place of or as a supplement to the Standard 
Form 424 (SF-424) series.
    (b) Applicants shall use the SF-424 series or those forms and 
instructions prescribed by the Federal awarding agency.
    (c) For Federal programs covered by E.O. 12372, ``Intergovernmental 
Review of Federal Programs,'' the applicant shall complete the 
appropriate sections of the SF-424 (Application for Federal Assistance) 
indicating whether the application was subject to review by the State 
Single Point of Contact (SPOC). The name and address of the SPOC for a 
particular State can be obtained from the Federal awarding agency or the 
Catalog of Federal Domestic Assistance. The SPOC shall advise the 
applicant whether the program for which application is made has been 
selected by that State for review. (See also 43 CFR part 9).
    (d) Federal awarding agencies that do not use the SF-424 form will 
indicate whether the application is subject to review by the State under 
E.O. 12372.



Sec. 12.913  Debarment and suspension.

    Federal awarding agencies and recipients shall comply with the 
nonprocurement debarment and suspension common rule implementing E.O.s 
12549 and 12689, ``Debarment and Suspension,'' subpart D of 43 CFR part 
12. This common rule restricts subawards and contracts with certain 
parties that are debarred, suspended or otherwise excluded from or 
ineligible for participation in Federal assistance programs or 
activities.



Sec. 12.914  Special award conditions.

    (a) Federal awarding agencies may impose additional requirements as 
needed, if an applicant or recipient:
    (1) Has a history of poor performance;
    (2) Is not financially stable;
    (3) Has a management system that does not meet the standards 
prescribed in this part;
    (4) Has not conformed to the terms and conditions of a previous 
award; or
    (5) Is not otherwise responsible.
    (b) Additional requirements may only be imposed provided that the 
applicant or recipient is notified in writing as to:
    (1) The nature of the additional requirements;
    (2) The reason why the additional requirements are being imposed;
    (3) The nature of the corrective action needed;
    (4) The time allowed for completing the corrective actions; and
    (5) The method for requesting reconsideration of the additional 
requirements imposed.
    (c) Any special conditions shall be promptly removed once the 
conditions that prompted them have been corrected.



Sec. 12.915  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

[[Page 341]]

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. 
Federal awarding agencies will follow the provisions of E.O. 12770, 
``Metric usage in Federal Government Programs.'' When applicable, the 
awarding agency shall request that measurement-sensitive information to 
be included as part of the application, be expressed in metric units. 
When required by the awarding agency, for grants to recipients, the 
following term and condition will be incorporated into the grant:

                                Provision

    All progress and final reports, other reports, or
    All progress and final reports, other reports, or publications 
produced under this award shall employ the metric system of measurements 
to the maximum extent practicable. Both metric and inch-pound units 
(dual units) may be used if necessary during any transition period(s). 
However, the recipient may use non-metric measurements to the extent 
that the recipient has supporting documentation that the use of metric 
measurements is impracticable or is likely to cause significant 
inefficiencies or loss of markets to the recipient, such as when foreign 
competitors are producing competing products in non-metric units.

                            End of Provision



Sec. 12.916  Resource Conservation and Recovery Act (RCRA) (Pub. L. 94-580 codified at 42 U.S.C. 6962).

    Under the Act, any State agency or agency of a political subdivision 
of a State that is using appropriated Federal funds must comply with 
section 6002 of RCRA. Section 6002 of RCRA 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 and 
hospitals 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. 12.917  Certifications and representations.

    Unless prohibited by statute or codified regulation, each Federal 
awarding agency is authorized and encouraged to allow recipients to 
submit 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 recipients' compliance with the pertinent 
requirements.

                         Post-Award Requirements

                    Financial and Program Management



Sec. 12.920  Purpose of financial and program management.

    Sections 12.921 through 12.928 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. 12.921  Standards for financial management systems.

    (a) Federal awarding agencies shall require recipients to relate 
financial data to performance data and develop unit cost information 
whenever practical.
    (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. 12.952. If a Federal 
awarding agency 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

[[Page 342]]

data for their 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.
    (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) (31 U.S.C. 6501 note) 
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, the Federal awarding agency, 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) The Federal awarding agency 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 in 
Sec. 12.921 (c) and (d), 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 United 
States.''



Sec. 12.922  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) Recipients are to be paid in advance, provided they maintain or 
demonstrate the willingness to maintain or demonstrate written 
procedures that minimize the time elapsing between the transfer of funds 
and disbursement by the recipient, and financial management systems that 
meet the standards for fund control and accountability as established in 
Sec. 12.921. 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 purposes 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 will be consolidated to cover 
anticipated cash needs for all awards made by the Federal awarding 
agency to the recipient.
    (1) Advance payment mechanisms include, but are not limited to, 
Treasury check and electronic funds transfer.
    (2) Advance payment mechanisms are subject to 31 CFR part 205.

[[Page 343]]

    (3) Recipients shall be authorized to submit requests for advances 
and reimbursements at least monthly when electronic fund transfers are 
not used.
    (d) Requests for Treasury check advance payment shall be submitted 
on SF-270, ``Request for Advance or Reimbursement,'' or other forms as 
may be authorized by OMB. This form is not to be used when Treasury 
check advance payments are made to the recipient automatically through 
the use of a predetermined payment schedule or if precluded by special 
Federal awarding agency instructions for electronic funds transfer.
    (e) Reimbursement is the preferred method when the requirements in 
paragraph (b) of this section cannot be met. Federal awarding agencies 
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.
    (1) When the reimbursement method is used, the Federal awarding 
agency shall make payment within 30 days after receipt of the billing, 
unless the billing is improper.
    (2) Recipients shall be authorized to submit a request for 
reimbursement at least monthly when electronic funds transfers are not 
used.
    (f) If a recipient cannot meet the criteria for advance payments and 
the Federal awarding agency has determined that reimbursement is not 
feasible because the recipient lacks sufficient working capital, the 
Federal awarding agency may provide cash on a working capital advance 
basis. Under this procedure, the Federal awarding agency 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, the Federal awarding agency 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 subrecipient to meet the subrecipient'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, Federal awarding agencies 
shall not withhold payments for proper charges made by recipients at any 
time during the project period unless paragraph (h)(1) or (h)(2) of this 
section apply:
    (1) A recipient has failed to comply with the project objectives, 
the terms and conditions of the award, or Federal reporting 
requirements; or
    (2) The recipient or subrecipient is delinquent in a debt to the 
United States as defined in OMB Circular A-129, ``Managing Federal 
Credit Programs.'' Under such conditions, the Federal awarding agency 
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, Federal awarding agencies 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 opportunities for 
women-owned and minority-owned business enterprises, recipients are 
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

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bearing accounts, unless paragraph (k) (1), (2) or (3) apply:
    (1) The recipient receives less than $120,000 in Federal awards per 
year.
    (2) The best reasonably 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) For those entities where CMIA and its implementing regulations 
do not apply, interest earned on Federal advances deposited in interest 
bearing accounts shall be remitted annually to Department of Health and 
Human Services, Payment Management System, P.O. Box 6021, Rockville, MD 
20852. Interest amounts up to $250 per year may be retained by the 
recipient for administrative expense. In keeping with Electronic Funds 
Transfer rules, (31 CFR part 206), interest should be remitted to the 
HHS Payment Management System through an electronic medium such as the 
FEDWIRE Deposit system. Recipients which do not have this capability 
should use a check. State universities and hospitals shall comply with 
CMIA, as it pertains to interest. If an entity subject to CMIA uses its 
own funds to pay pre-award costs for discretionary awards without prior 
written approval from the Federal awarding agency, it waives its right 
to recover the interest under CMIA.
    (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. Each Federal 
awarding agency shall adopt the SF-270 as a standard form for all 
nonconstruction programs where electronic funds transfer or 
predetermined advance methods are not used. Federal awarding agencies, 
however, have the option of using this form for construction programs in 
lieu of the SF-271, ``Outlay Report and Request for Reimbursement for 
Construction Programs.''
    (2) SF-271, Outlay Report and Request for Reimbursement for 
Construction Programs. Each Federal awarding agency shall adopt the SF-
271 as the standard form to be used for requesting reimbursement for 
construction programs. However, a Federal awarding agency may substitute 
the SF-270 when the Federal awarding agency determines that it provides 
adequate information to meet Federal needs.



Sec. 12.923  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 the 
Federal awarding agency.
    (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 the Federal awarding 
agency.
    (c) Values for recipient contributions of services and property 
shall be established in accordance with the applicable cost principles. 
If a Federal awarding agency 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.

[[Page 345]]

    (2) The current fair market value. However, when there is sufficient 
justification, the Federal awarding agency 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 paragraph 
(g) (1) or (2) of this section apply:
    (1) If the purpose of the award is to assist the recipient to 
acquire 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 the Federal 
awarding agency 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 their 
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.
    (i) The following requirements pertain to the recipient's supporting 
records for in-kind contributions from third parties.
    (1) Volunteer services shall be documented and, to the extent 
feasible, supported by the same methods used by the recipient for its 
own employees.
    (2) The basis for determining the valuation for personal service, 
material, equipment, buildings and land shall be documented.



Sec. 12.924  Program income.

    (a) Federal awarding agencies shall apply the standards set forth in 
this section in requiring recipient organizations 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

[[Page 346]]

be retained by the recipient and, in accordance with Federal awarding 
agency regulations or the terms and conditions of the award, shall be 
used in one or more of the following ways:
    (1) Added to funds committed to the project or program by the 
Federal awarding agency and recipient and used to further eligible 
project or program objectives;
    (2) Used to finance the non-Federal share of the project or program; 
or
    (3) Deducted from the total project or program allowable cost in 
determining the net allowable costs upon which the Federal share of 
costs is based.
    (c) When an agency authorizes the disposition of program income as 
described in paragraph (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) If the Federal awarding agency does not specify in its 
regulations or the terms and conditions of the award 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) of this section 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. 12.914.
    (e) Unless Federal awarding agency 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) If authorized by Federal awarding agency regulations or the 
terms and conditions of the award, 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. 12.930 through 12.937).
    (h) Unless Federal awarding agency regulations or the terms and 
conditions 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. 12.925  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 
Federal awarding agency requirements. 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 Federal awarding agencies 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 the 
Federal awarding agency.
    (6) The inclusion, unless waived by the Federal awarding agency, 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,'' or 45 CFR part 
74, appendix E,

[[Page 347]]

``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 
award, 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 paragraph (c)(1) and (c)(4) of 
this section, Federal awarding agencies are authorized, at their option, 
to waive cost-related and administrative prior written approvals 
required by this subpart and OMB Circulars A-21 and A-122. Such waivers 
may include authorizating 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 the Federal awarding 
agency. All pre-award costs are incurred at the recipient's risk (i.e., 
the Federal awarding agency 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 anticipated and inadequate to cover such costs).
    (2) Initiate a one-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 the Federal 
awarding agency 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. The conditions that prevent 
issuance of a one-time extension are:
    (i) The terms and conditions of award prohibit the extension;
    (ii) The extension requires additional Federal funds; or
    (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 the Federal awarding 
agency provides otherwise in the award or in the agency's regulations, 
the prior approval requirements described in paragraph (e)(1) through 
(3) 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) applies.
    (f) The Federal awarding agency may, at its option, restrict the 
transfer of funds among direct cost categories or programs, functions 
and activities for awards in which the Federal share of the project 
exceeds $100,000 and the cumulative amount of the transfer exceeds or is 
expected to exceed 10 percent of the total budget as last approved by 
the Federal awarding agency. No Federal awarding agency 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) No other changes to nonconstruction budgets, except for the 
changes described in paragraph (j) of this section, require prior 
approval.
    (h) For construction awards, recipients shall request prior written 
approval promptly from Federal awarding agencies for budget revisions 
whenever paragraph (h) (1), (2) or (3) of this section apply:
    (1) the revision results from changes in the scope or the objective 
of the project or program;
    (2) additional Federal funds are needed to complete the project; or
    (3) the recipient requests a revision that involves specific costs 
for which prior written approval requirements may be imposed under 
Sec. 12.927.
    (i) No other prior approval requirements for specific items will be 
imposed unless OMB approves a deviation.
    (j) When a Federal awarding agency makes an award that provides 
support

[[Page 348]]

for both construction and nonconstruction work, the Federal awarding 
agency may require the recipient to request prior approval before making 
any fund or budget transfers between the two types of work supported.
    (k) For both construction and nonconstruction awards, Federal 
awarding agencies shall require recipients to notify the Federal 
awarding agency 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 the 
Federal awarding agency indicates that a letter of request suffices.
    (m) Within 30 calendar days from the date of receipt of the request 
for budget revisions, the Federal awarding agencies 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, the Federal awarding agency shall inform the recipient in 
writing of the date when the recipient may expect the decision.



Sec. 12.926  Non-Federal audits.

    (a) Recipients and subrecipients that are institutions of higher 
education or other non-profit organizations (including hospitals) shall 
be subject to the audit requirements contained in the Single Audit Act 
Amendments of 1996 (31 U.S.C. 7501-7507) and revised OMB Circular A-133, 
``Audits of States, Local Governments, and Non-Profit Organizations.''
    (b) State and local governments shall be subject to the audit 
requirements contained in the Single Audit Act Amendments of 1996 (31 
U.S.C. 7501-7507) and revised OMB Circular A-133, ``Audits of States, 
Local Governments, and Non-Profit Organizations.''
    (c) For-profit hospitals not covered by the audit provisions of 
revised OMB Circular A-133 shall be subject to the audit requirements of 
the Federal awarding agencies.

[60 FR 17238, Apr. 5, 1995, as amended at 62 FR 45939, 45945, Aug. 29, 
1997]



Sec. 12.927  Allowable costs.

    Federal awarding agencies shall determine allowable costs in 
accordance with the type of entity incurring the costs, using the 
appropriate directive from the table below.

------------------------------------------------------------------------
    Entity incurring costs                Applicable directive
------------------------------------------------------------------------
State, local, or Federally     OMB Circular A-87, Cost Principles for
 recognized Indian Tribe.       State and Local Governments.
Non-profit organization......  OMB Circular A-122, Cost Principles for
                                Non-profit Organizations and 43 CFR
                                12.927(b).
Institution of Higher          OMB Circular A-21, Cost Principles for
 Education.                     Educational Institutions.
Hospital.....................  45 CFR part 74, appendix E, Principles
                                for Determining Costs Applicable to
                                Research and Development Under Grants
                                and Contracts with Hospitals.
Commercial organization or     48 CFR part 31, Contract Principles and
 non-profit organization        Procedures or uniform cost accounting
 listed in Attachment C of      standards that comply with cost
 OMB Circular A-122.            principles acceptable to the Federal
                                agency.
------------------------------------------------------------------------



Sec. 12.928  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 the Federal 
awarding agency.

                           Property Standards



Sec. 12.930  Purpose of property standards.

    Sections 12.931 through 12.937 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.

[[Page 349]]

Federal awarding agencies shall require recipients to observe these 
standards under awards and shall not impose additional requirements, 
unless specifically required by Federal statute. The recipient may use 
its own property management standards and procedures provided it 
observes the provisions of Secs. 12.931 through 12.937.



Sec. 12.931  Insurance coverage.

    Recipients shall, at a minimum, provide the equivalent insurance 
coverage for real property and equipment acquired with Federal funds as 
provided to property owned by the recipient. Federally-owned property 
need not be insured unless required by the terms and conditions of the 
award.



Sec. 12.932  Real property.

    Each Federal awarding agency shall prescribe requirements for 
recipients concerning the use and disposition of real property acquired 
in whole or in part under awards. Unless otherwise provided by statute, 
such requirements, at a minimum, shall contain the following.
    (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 the awarding agency.
    (b) The recipient shall obtain written approval by the Federal 
awarding agency 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 the Department of the Interior.
    (c) When the real property is no longer needed as provided in 
paragraphs (a) and (b) of this section, the recipient shall request 
disposition instructions from the Federal awarding agency or its 
successor. The Federal awarding agency will give 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 that 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 the Federal awarding agency 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. 12.933  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 to the Federal awarding agency an inventory listing of 
Federally-owned property in their custody. Upon completion of the award 
or when the property is no longer needed, the recipient shall report the 
property to the Federal awarding agency for further utilization.
    (2) If the Federal awarding agency has no further need for the 
property, it shall be declared excess and reported to the General 
Services Administration, unless the Federal awarding agency 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

[[Page 350]]

Science Education in Support of the National Education Goals.'') 
Appropriate instructions shall be issued to the recipient by the Federal 
awarding agency.
    (b) Exempt property. Exempt property. When statutory authority 
exists, the Federal awarding agency has the option to vest title to 
property acquired with Federal funds in the recipient without further 
obligation to the Federal Government and under conditions the Federal 
awarding agency considers appropriate. Such property is ``exempt 
property.'' Should a Federal awarding agency not establish conditions, 
title to exempt property upon acquisition shall vest in the recipient 
without further obligation to the Federal Government.



Sec. 12.934  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 or not the project 
or program continues to be supported by Federal funds, and shall not 
encumber the property without approval of the Federal awarding agency. 
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 the Federal awarding agency, 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 the Federal awarding agency 
that financed the equipment; 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 the Federal awarding agency. 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 the Federal awarding agency.
    (f) The recipient'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 the Federal awarding agency for its share.
    (2) Equipment owned by the Federal Government shall be identified to 
indicate Federal ownership.

[[Page 351]]

    (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 the Federal awarding agency.
    (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 the Federal awarding agency. 
The Federal awarding agency shall determine whether the equipment can be 
used to meet the agency's requirements. If no requirement exists within 
that agency, the availability of the equipment shall be reported to the 
General Services Administration by the Federal awarding agency to 
determine whether a requirement for the equipment exists in other 
Federal agencies. The Federal awarding agency 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 the Federal awarding agency 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 is computed by applying the percentage of the recipient's 
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 will be reimbursed by the Federal awarding 
agency for such costs incurred in its disposition.
    (h) The Federal awarding agency may reserve the right to transfer 
the title to the Federal Government or to a third party named by the 
Federal Government when the third party is otherwise eligible under 
existing statutes. The transfer shall be subject to the following 
standards.
    (1) The equipment shall be appropriately identified in the award or 
otherwise made known to the recipient in writing.
    (2) The Federal awarding agency shall issue disposition instructions 
within 120 calendar days after receipt of a final inventory. The final 
inventory shall list all equipment acquired with Federal funds and 
Federally-owned equipment. If the Federal awarding agency fails to issue 
disposition instructions within the 120-calendar-day period, the 
recipient shall

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apply the standards of this section, as appropriate.
    (3) When the Federal awarding agency exercises its right to take 
title, the equipment shall be subject to the provisions for Federally-
owned equipment.



Sec. 12.935  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. 12.936  Intangible property.

    (a) The recipient may copyright any work that is subject to 
copyright and was developed, or for which ownership was purchased, under 
an award. The Federal awarding agency(ies) reserves 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) The Federal Government has the right to:
    (1) Obtain, reproduce, publish or otherwise use the data first 
produced under an award; and
    (2) Authorize others to receive, reproduce, publish, or otherwise 
use such data for Federal purposes.
    (d)(1) In addition, in response to a Freedom of Information Act 
(FOIA) request for research data relating to published research findings 
produced under an award that were used by the Federal Government in 
developing an agency action that has the force and effect of law, the 
Federal awarding agency shall request, and the recipient shall provide, 
within a reasonable time, the research data so that they can be made 
available to the public through the procedures established under the 
FOIA. If the Federal awarding agency obtains the research data solely in 
response to a FOIA request, the agency may charge the requester a 
reasonable fee equaling the full incremental cost of obtaining the 
research data. This fee should reflect costs incurred by the agency, the 
recipient, and applicable subrecipients. This fee is in addition to any 
fees the agency may assess under the FOIA (5 U.S.C. 552(a)(4)(A)).
    (2) The following definitions apply for purposes of this paragraph 
(d):
    (i) Research data is defined as the recorded factual material 
commonly accepted in the scientific community as necessary to validate 
research findings, but not any of the following: preliminary analyses, 
drafts of scientific papers, plans for future research, peer reviews, or 
communications with colleagues. This ``recorded'' material excludes 
physical objects (e.g., laboratory samples). Research data also do not 
include:
    (A) Trade secrets, commercial information, materials necessary to be 
held confidential by a researcher until they are published, or similar 
information which is protected under law; and
    (B) Personnel and medical information and similar information the 
disclosure of which would constitute a clearly unwarranted invasion of 
personal privacy, such as information that could be used to identify a 
particular person in a research study.
    (ii) Published is defined as either when:

[[Page 353]]

    (A) Research findings are published in a peer-reviewed scientific or 
technical journal; or
    (B) A Federal agency publicly and officially cites the research 
findings in support of an agency action that has the force and effect of 
law.
    (iii) Used by the Federal Government in developing an agency action 
that has the force and effect of law is defined as when an agency 
publicly and officially cites the research findings in support of an 
agency action that has the force and effect of law.
    (e) Title to intangible property and debt instruments acquired under 
an award or subaward 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 
the Federal awarding agency. When no longer needed for the originally 
authorized purpose, disposition of the intangible property shall occur 
in accordance with the provisions of Sec. 12.934(g).

[63 FR 12188, Mar. 12, 1998, as amended at 65 FR 14407, 14418, Mar. 16, 
2000]



Sec. 12.937  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. Agencies 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. 12.940  Purpose of procurement standards.

    Sections 12.941 through 12.948 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 the Federal awarding agencies upon recipients, 
unless specifically required by Federal statute or executive order or 
approved by OMB.



Sec. 12.941  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 the Federal 
awarding agency, 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. 12.942  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

[[Page 354]]

violations of such standards by officers, employees, or agents of the 
recipient.



Sec. 12.943  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 bids 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. 12.944  Procurement procedures.

    (a) All recipients shall establish written procurement procedures. 
These procedures shall provide, at a minimum, that:
    (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; and
    (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 use small 
businesses, minority-owned firms, and women's business enterprises, 
whenever possible. Recipients of Federal 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.

[[Page 355]]

    (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 agencies' implementation of E.O.s 12549 and 12689, 
``Debarment and Suspension.'' See 43 CFR part 12.
    (e) Recipients shall, on request, make available for the Federal 
awarding agency, pre-award review of procurement documents, such as 
requests 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 this part.
    (2) The procurement is expected to exceed the small purchase 
threshold fixed at 41 U.S.C. 403 (11) (currently $100,000) 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. 12.945  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. 12.946  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. 12.947  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 
documents, as appropriate, whether contractors have met the terms, 
conditions and specifications of the contract.



Sec. 12.948  Contract provisions.

    The recipient shall include, in addition to provisions to define a 
sound and complete agreement, the provisions below in all contracts and 
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

[[Page 356]]

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, the Federal 
awarding agency may accept the bonding policy and requirements of the 
recipient, provided the Federal awarding agency 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, the Federal awarding agency, 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. 12.950  Purpose of reports and records.

    Sections 12.951 through 12.953 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. 12.951  Monitoring and reporting program performance.

    (a) Recipients are responsible for managing and monitoring each 
project, program, subaward, function or activity supported by the award. 
Recipients shall monitor subawards to ensure subrecipients have met the 
audit requirements as delineated in Sec. 12.926.
    (b) The Federal awarding agency shall prescribe the frequency of 
submission for performance reports. Except as provided in 
Sec. 12.951(f), performance reports will 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. The Federal 
awarding agency 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.

[[Page 357]]

    (c) A final technical or performance report shall be required after 
completion of the project only if the awarding agency determines this to 
be appropriate.
    (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 the Federal awarding agency 
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) Federal awarding agencies may make site visits, as needed.
    (h) Federal awarding agencies shall comply with clearance 
requirements of 5 CFR part 1320 when requesting performance data from 
recipients.



Sec. 12.952  Financial reporting.

    (a) The following forms or such other forms as may be approved by 
OMB are authorized for obtaining financial information from recipients.
    (1) SF-269 or SF-269A, Financial Status Report. (i) Each Federal 
awarding agency will require recipients to use either the SF-269 or SF-
269A to report the status of funds for all nonconstruction projects or 
programs. A Federal awarding agency may, however, have the option of not 
requiring the SF-269 or SF-269A when the SF-270, Request for Advance or 
Reimbursement, or SF-272, Report of Federal Cash Transactions, is 
determined to provide adequate information to meet its needs, except 
that a final SF-269 or SF-269A shall be required at the completion of 
the project when the SF-270 is used only for advances.
    (ii) The Federal awarding agency shall prescribe whether the report 
shall be on a cash or accrual basis. If the Federal awarding agency 
requires accrual information and the recipient's accounting records are 
not normally kept on the accrual basis, the recipient shall not be 
required to convert its accounting system, but shall develop accrual 
information through best estimates based upon an analysis of the 
documentation on hand.
    (iii) The Federal awarding agency shall determine the frequency of 
the Financial Status Report for each project or program, considering the 
size and complexity of the particular project or program. However, the 
report shall not be required more frequently than quarterly or less 
frequently than annually. A final report shall be required at the 
completion of the agreement.
    (iv) The Federal awarding agency shall require recipients to submit 
the SF-269 or SF-269A (an original and no more than two copies) no later 
than 30 days after the end of each specified reporting period for 
quarterly and semi-annual reports, and 90 calendar days for annual and 
final reports. Extensions of reporting due dates may be approved by the 
Federal awarding agency upon request by the recipient.
    (2) SF-272, Report of Federal Cash Transactions. (i) When funds are 
advanced to recipients, the Federal awarding agency shall require each 
recipient to submit the SF-272 and, when necessary, its continuation 
sheet, SF-272a. The Federal awarding agency shall use this report to 
monitor cash advanced to recipients and to obtain disbursement 
information for each agreement with the recipients.
    (ii) Federal awarding agencies may require forecasts of Federal cash 
requirements in the ``Remarks'' section of the report.

[[Page 358]]

    (iii) When practical and deemed necessary, Federal awarding agencies 
may require recipients to report in the ``Remarks'' section the amount 
of cash advances received in excess of three days. Recipients shall 
provide short narrative explanations of actions taken to reduce the 
excess balances.
    (iv) Recipients shall be required to submit not more than the 
original and two copies of the SF-272 15 calendar days following the end 
of each quarter. The Federal awarding agencies may require a monthly 
report from those recipients receiving advances totaling $1 million or 
more per year.
    (v) Federal awarding agencies may waive the requirement for 
submission of the SF-272 for any one of the following reasons:
    (A) When monthly advances do not exceed $25,000 per recipient, 
provided that such advances are monitored through other forms contained 
in this section;
    (B) If, in the Federal awarding agency's opinion, the recipient's 
accounting controls are adequate to minimize excessive Federal advances; 
or
    (C) When the electronic payment mechanisms provide adequate data.
    (b) When the Federal awarding agency needs additional information or 
more frequent reports, the following shall be observed:
    (1) When additional information is needed to comply with legislative 
requirements, Federal awarding agencies shall issue instructions to 
require recipients to submit such information under the ``Remarks'' 
section of the reports.
    (2) When a Federal awarding agency determines that a recipient's 
accounting system does not meet the standards in Sec. 12.921, additional 
pertinent information to further monitor awards may be obtained upon 
written notice to the recipient until such time as the system is brought 
up to standard. The Federal awarding agency, in obtaining this 
information, shall comply with report clearance requirements of 5 CFR 
part 1320.
    (3) Federal awarding agencies are encouraged to shade out any line 
item on any report if not necessary.
    (4) Federal awarding agencies may accept the identical information 
from the recipients in machine readable format or computer printouts or 
electronic outputs in lieu of prescribed formats.
    (5) Federal awarding agencies may provide computer or electronic 
outputs to recipients when such action expedites or contributes to the 
accuracy or reporting.



Sec. 12.953  Retention and access requirements for records.

    (a) This section sets forth requirements for record retention and 
access to records for awards to recipients. Federal awarding agencies 
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. The only exceptions are the following:
    (1) If any litigation, claim, or audit is started before the 
expiration of the 3-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 transferred to or maintained by the Federal 
awarding agency, the 3-year retention requirement is not applicable to 
the recipient.
    (4) Indirect cost rate proposals, cost allocation plans, etc., as 
specified in Sec. 12.953(g).
    (c) Copies of original records may be substituted for the original 
records if authorized by the Federal awarding agency.
    (d) The Federal awarding agency will 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 recordkeeping, a Federal awarding agency may make arrangements 
for recipients to retain

[[Page 359]]

any records that are continuously needed for joint use.
    (e) The Federal awarding agency, 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, no Federal awarding agency shall 
place restrictions on recipients that limit public access to the records 
of recipients that are pertinent to an award, except when the Federal 
awarding agency 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 had 
belonged to the Federal awarding agency.
    (g) Indirect cost rate proposals, cost allocation plans, 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 the 
Federal awarding agency 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 the submission.
    (2) If not submitted for negotiation. If the recipient is not 
required to submit to the Federal awarding agency 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. 12.960  Purpose of termination and enforcement.

    Sections 12.961 and 12.962 set forth uniform suspension, termination 
and enforcement procedures.



Sec. 12.961  Termination.

    (a) Awards may be terminated in whole or in part only if paragraph 
(a)(1), (a)(2) or (a)(3) of this section applies.
    (1) By the Federal awarding agency, if a recipient materially fails 
to comply with the terms and conditions of an award.
    (2) By the Federal awarding agency 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 the Federal awarding agency 
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 the Federal awarding agency 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 paragraph (a) (1) 
or (2) of this section.
    (b) If costs are allowed under an award, the responsibilities of the 
recipient referred to in Sec. 12.971(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.

[[Page 360]]



Sec. 12.962  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, 
the Federal awarding agency may, in addition to imposing any of the 
special conditions outlined in Sec. 12.914, 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 the 
Federal awarding agency.
    (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 for the project or program.
    (5) Take other remedies that may be legally available.
    (b) Hearings and appeals. In taking an enforcement action, the 
awarding agency shall provide the recipient an opportunity for hearing, 
appeal, or other administrative proceeding to which the recipient is 
entitled under any statute 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 the Federal 
awarding agency 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 paragraphs (c) (1) and (2) of this section apply:
    (1) The costs result from obligations which are 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.
    (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 the Federal awarding 
agency implementing regulations (see 43 CFR part 12).

                      After-the-Award Requirements



Sec. 12.970  Purpose.

    Sections 12.971 through 12.973 contain closeout procedures and other 
procedures for subsequent disallowances and adjustments.



Sec. 12.971  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. The 
Federal awarding agency may approve extensions when requested by the 
recipient.
    (b) Unless the Federal awarding agency 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) The Federal awarding agency 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 the Federal awarding agency 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, the 
Federal awarding agency 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

[[Page 361]]

from the Federal Government in accordance with Secs. 12.931 through 
12.937.
    (g) If a final audit has not been performed prior to the closeout of 
an award, the Federal awarding agency shall retain the right to recover 
an appropriate amount after fully considering the recommendations on 
disallowed costs resulting from the final audit.



Sec. 12.972  Subsequent adjustments and continuing responsibilities.

    (a) The closeout of an award does not affect any of the following.
    (1) The right of the Federal awarding agency 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. 12.926.
    (4) Property management requirements in Secs. 12.931 through 12.937.
    (5) Records retention as required in Sec. 12.953.
    (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 Federal awarding agency and the recipient, provided the 
responsibilities of the recipient referred to in Sec. 12.973(a), 
including those for property management as applicable, are considered 
and provisions made for continuing responsibilities of the recipient, as 
appropriate.



Sec. 12.973  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, the 
Federal awarding agency may reduce the debt by 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, the Federal awarding agency 
shall charge interest on an overdue debt in accordance with 4 CFR 
chapter II, ``Federal Claims Collection Standards.''

         Appendix A to Subpart F of Part 12--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 E.O. 11246, ``Equal Employment 
Opportunity,'' as amended by E.O. 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 and subgrants in excess of $100,000 for 
construction or repair awarded by recipients and subrecipients 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 or subrecipient 
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 the 
Federal awarding agency.
    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 and subrecipients 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

[[Page 362]]

wage determination. The recipient shall report all suspected or reported 
violations to the Federal awarding agency.
    4. Contract Work Hours and Safety Standards Act (40 U.S.C. 327-333)-
- Where applicable, all contracts awarded by recipients in excess of 
$100,000 for construction contracts and 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 section 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 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 
and subgrants 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 the 
Federal awarding agency 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 more than $100,000 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 (E.O.s 12549 and 12689)--No contracts 
shall be made to parties listed on the General Services Administration's 
``Lists of Parties Excluded from Federal Procurement or Nonprocurement 
Programs'' in accordance with E.O.s 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 E.O. 
12549. Contractors with awards that exceed the small purchase threshold 
shall provide the required certification regarding their exclusion 
status and that of their principals.



PART 13--VENDING FACILITIES OPERATED BY BLIND PERSONS--Table of Contents




Sec.
13.1  Authority and purpose.
13.2  Application for permit.
13.3  Cooperation in selection of facilities.
13.4  Terms of permit.
13.5  Protection from competition.
13.6  Appeals.

    Authority: Sec. 4, 68 Stat. 663; 20 U.S.C. 107.

    Source: 22 FR 9476, Nov. 27, 1957, unless otherwise noted.



Sec. 13.1  Authority and purpose.

    The Randolph-Sheppard Vending Stand Act of June 20, 1936, as amended 
by section 4 of the Act of August 3, 1954 (68 Stat. 663; 20 U.S.C. 107), 
directs that, insofar as practicable, preference shall be given to blind 
persons in the operation of vending stands and machines on any Federal 
property. The regulations in this part prescribe the policies and 
procedures to achieve and protect that preference on property, including 
land, owned or leased by the United States and controlled by the 
Department of the Interior.



Sec. 13.2  Application for permit.

    (a) State licensing agencies designated by the Department of Health, 
Education, and Welfare under the Randolph-Sheppard Vending Stand Act

[[Page 363]]

may apply for permits to establish and maintain vending facilities, 
including both vending stands and machines, to be operated by blind 
persons licensed by the State agencies. Application for a permit shall 
be made, in writing, by the State licensing agency to the head of the 
Interior bureau or office having control of the property in question. In 
the regulations in this part the term ``head of the Interior bureau or 
office'' includes the authorized representatives of that bureau or 
office.
    (b) The head of the Interior bureau or office may deny an 
application if he determines that the issuance of a permit would unduly 
inconvenience the bureau or office or adversely affect the interests of 
the United States. Such determination shall be in writing and shall 
state the reasons on which it is based. The fact that a permit will be 
without charge for rent shall not constitute a basis for denying an 
application.
    (c) In considering applications for permits, due regard shall be 
given to the terms of any existing contractual arrangements.



Sec. 13.3  Cooperation in selection of facilities.

    Upon request from a State licensing agency, the Interior bureau or 
office shall cooperate in selecting locations and arranging 
accommodations for vending facilities to be operated by blind persons. 
In making such selection, due consideration shall be given to the 
requirements of occupant agencies, availability of suitable space, and 
requirements for preparation and maintenance of the space.



Sec. 13.4  Terms of permit.

    Every permit shall describe the location of the vending facilities 
and shall be subject to the following provisions:
    (a) The permit shall be issued in the name of the applicant State 
licensing agency.
    (b) The permit shall be for a definite term, not to exceed five 
years, and shall be without charge for rent.
    (c) The permit may be revoked at any time upon not less than 30 days 
written notice to the permittee from the head of the Interior bureau or 
office having control of the property where the vending facilities are 
located. Such notice shall state the reasons on which it is based.
    (d) Items sold at the vending facilities shall be limited to 
newspapers, periodicals, pre-packaged confections, tobacco products, 
articles dispensed automatically or in containers or wrappings in which 
they are placed before receipt by the vendor, and such other articles as 
may be approved by the head of the Interior bureau or office for each 
location. The head of the Interior bureau or office may require 
discontinuance of sale of any type of article, upon not less than 15 
days' notice in writing.
    (e) Vending facilities shall be operated in compliance with such 
standards of appearance, safety, health, sanitation, and efficiency as 
may be prescribed by the head of the Interior bureau or office. Such 
standards shall conform, so far as practicable with the provisions of 
State laws and regulations, whether or not the property is under the 
exclusive jurisdiction of the United States.
    (f) The permittee shall arrange for the modification or relocation 
of the vending facilities when in the opinion of the head of the 
Interior bureau or office such action is essential to the satisfactory 
maintenance, operation, or use of the property concerned and shall not 
modify or relocate such facilities without such approval. Installation, 
modification, relocation, or removal of vending facilities shall be made 
only under the supervision of the head of the Interior bureau or office 
and without cost to the Department of the Interior. The permittee may be 
required to remove any vending device deemed undesirable by the head of 
the Interior bureau or office. Ownership of vending devices installed by 
the permittee or operator shall remain vested with the installer. All 
extra identifiable costs incurred by the Department of the Interior in 
restoring to its original condition any space vacated by removal or 
relocation of vending facilities shall be reimbursed by the permittee or 
the operator.
    (g) In the event a vending facility is being operated in a manner 
unsatisfactory to the Interior bureau or office,

[[Page 364]]

the permittee will be notified in writing and required to take 
appropriate action to rectify the situation.
    (h) The operator of the vending facility shall carry such insurance 
against losses by fire, public liability, employer's liability, or other 
hazards as is customary among prudent operators of similar businesses 
under comparable circumstances.



Sec. 13.5  Protection from competition.

    (a) The head of the Interior bureau or office shall protect the 
blind operator of the vending facility against direct competition from 
other vendors or vending machines on property which the head of the 
Interior bureau or office controls. Other vendors or vending machines 
shall be considered in direct competition with vending facilities 
permitted under the regulations in this part if they sell or dispense 
articles which are similar or identical to those on sale at the vending 
facilities in such proximity to the vending facility as to attract 
customers who might otherwise patronize the vending facilities.
    (b) After a permit has been issued under the regulations in this 
part to a State licensing agency for operation of a vending facility, 
the head of the Interior bureau or office, except as provided in 
paragraphs (c) and (d) of this section, shall take action to terminate, 
as soon as possible and with minimum interruption to the service 
afforded customers, any existing competitive arrangement for the sale of 
any articles similar to or identical to those sold or to be sold under 
the permit. Notice of such termination shall be given as required under 
the terms of the existing arrangement, or if none is provided, a notice 
of not less than 30 days shall be given in writing.
    (c) Existing arrangements with respect to vending machines need not 
be terminated if such vending machines are moved at the expense of their 
operators to locations elsewhere on the property which are 
noncompetitive with a blind-operated vending facility, or if the income 
from such machines is assigned to the blind operator.
    (d) This section shall not apply to the sale and service of food and 
other articles considered as food and usually sold in connection with 
meals by cafeterias, restaurants, or similar food dispensing 
establishments.



Sec. 13.6  Appeals.

    When the head of an Interior bureau or office has designated a 
representative to act for him under these regulations, he shall provide 
for the review of any matter in dispute between such representatives and 
the State licensing agency. In the event that they fail to reach 
agreement concerning the granting of a permit for the vending stand, the 
modification or revocation of a permit, the suitability of the stand 
location, the assignment of vending proceeds, the methods of operation 
of the stand, or other terms of the permit (including articles which may 
be sold) the State licensing agency shall have the right of appeal to 
the Director, Office of Hearings and Appeals. Such appeals shall be made 
in writing and shall be filed in the Office of the Director (address: 
Director, Office of Hearings and Appeals, 801 North Quincy Street, 
Arlington, VA 22203) within 15 days from the date of notice of the 
decision from which the appeal is taken. Such appeals shall comply 
otherwise with the general rules of the Office of Hearings and Appeals 
in subpart B of part 4 of this title and with the special regulations 
set forth in subpart G of part 4 of this title applicable to proceedings 
in appeals cases which do not lie within the appellate jurisdiction of 
an established Appeals Board of the Office of Hearings and Appeals. Upon 
appeal, full investigation shall be undertaken. A full report shall be 
obtained from the Interior representative from whose decision the appeal 
is being taken. The State licensing agency shall be given opportunity to 
present information. The Department of Health, Education, and Welfare 
shall be available for general advice on program activities and 
objectives. A final decision of the Director, Office f Hearings and 
Appeals, or of an Ad Hoc Appeals Board appointed by him to consider the 
appeal and to issue decision thereon, shall be rendered within ninety 
days of the filing of the appeal. Notification of the decision on appeal 
and the action taken thereon shall be given to the State licensing 
agency and to the Department of Health, Education, and

[[Page 365]]

Welfare. The decision of the Director, Office of Hearings and Appeals, 
or of an Ad Hoc Appeals Board appointed by him, shall be final. At the 
end of each fiscal year the Office of the Secretary shall report to the 
Department of Health, Education, and Welfare the total number of 
applications for vending stand locations received from State licensing 
agencies, the number accepted, the number denied, and the number still 
pending.

[36 FR 7206, Apr. 15, 1971, as amended at 67 FR 4368, Jan. 30, 2002]



PART 14--PETITIONS FOR RULEMAKING--Table of Contents




Sec.
14.1  Scope.
14.2  Filing of petitions.
14.3  Consideration of petitions.
14.4  Publication of petitions.

    Authority: 5 U.S.C. 553(e).

    Source: 46 FR 47789, Sept. 30, 1981, unless otherwise noted.



Sec. 14.1  Scope.

    This part prescribes procedures for the filing and consideration of 
petitions for rulemaking.



Sec. 14.2  Filing of petitions.

    Under the Administrative Procedure Act, any person may petition for 
the issuance, amendment, or repeal of a rule (5 U.S.C. 553(e)). The 
petition will be addressed to the Secretary of the Interior, U.S. 
Department of the Interior, Washington, DC 20240. It will identify the 
rule requested to be repealed or provide the text of a proposed rule or 
amendment and include reasons in support of the petition.



Sec. 14.3  Consideration of petitions.

    The petition will be given prompt consideration and the petitioner 
will be notified promptly of action taken.



Sec. 14.4  Publication of petitions.

    A petition for rulemaking may be published in the Federal Register 
if the official responsible for acting on the petition determines that 
public comment may aid in consideration of the petition.



PART 15--KEY LARGO CORAL REEF PRESERVE--Table of Contents




Sec.
15.1  Scope.
15.2  Removal or destruction of natural features and marine life.
15.3  Dredging, filling, excavating and building activities.
15.4  Refuse and polluting substances.
15.5  Wrecks.
15.6  Markers.
15.7  Fishing.
15.8  Skin diving.
15.9  Collection of scientific specimens.
15.10  Operation of watercraft.
15.11  Explosives and dangerous weapons.
15.12  Closing of Preserve.
15.13  Report of accidents.
15.14  Applicability of laws.

    Authority: Sec. 5, 67 Stat. 464; 43 U.S.C. 1334; Proc. 3339, 25 FR 
2352.

    Source: 25 FR 8948, Sept. 17, 1960, unless otherwise noted.



Sec. 15.1  Scope.

    The State of Florida has established a similar coral reef preserve 
on an area situated shoreward of a line three geographic miles from Key 
Largo and contiguous to the Key Largo Coral Reef Preserve. It is the 
policy of the Department of the Interior to cooperate with the State of 
Florida and its conservation agencies in the preservation of the reef.



Sec. 15.2  Removal or destruction of natural features and marine life.

    No person shall destroy, injure, deface, mar, move, dig, harmfully 
disturb or remove from the Preserve any beach sand, gravel or minerals, 
corals, sea feathers and fans, shells and shell fish starfishes or other 
marine invertebrates, seaweeds, grasses, or any soil, rock, artifacts, 
stones or other materials. No person shall cut, carve, injure, mutilate, 
move, displace or break off any bottom formation or growth. Nor shall 
any person dig in, or in any other way injure or impair the natural 
beauty or usefulness of this Preserve. No rope, wire or other 
contrivance shall be attached to any coral, rock or other formation, 
whether temporary or permanent in character or use.

[[Page 366]]



Sec. 15.3  Dredging, filling, excavating and building activities.

    No dredging, excavating, or filling operations of any kind are 
permitted in the Preserve and no materials of any sort may be deposited 
in or on the waters thereof. No building or structure of any kind, 
whether permanent or temporary, may be constructed or built, and no 
public service facility may be constructed or extended into, upon or 
across the Preserve.



Sec. 15.4  Refuse and polluting substances.

    No person shall dump or deposit in or on the waters of this Preserve 
any oily liquids or wastes, acids or other deleterious chemicals, 
bottles, broken glass paper, boxes, cans, dirt, rubbish, waste garbage, 
refuse or other debris or polluting substance.



Sec. 15.5  Wrecks.

    No person shall willfully destroy molest, remove, deface, displace, 
or tamper with any wrecks, parts of wrecks or any cargo pertaining to 
such wrecks within the Preserve in such manner as to injure or destroy 
any coral formation.



Sec. 15.6  Markers.

    No person shall willfully mark, deface or injure in any way, or 
displace, remove or tamper with any Preserve signs, notices or placards, 
whether temporary or permanent, or with any monuments, stakes, posts or 
other boundary markers.



Sec. 15.7  Fishing.

    (a) Spear fishing within the boundaries or confines of this Preserve 
is prohibited.
    (b) The use of poisons, electric charges, or other such methods is 
prohibited.



Sec. 15.8  Skin diving.

    Diving with camera, or diving for observation and pleasure is 
permitted and encouraged within the Preserve.



Sec. 15.9  Collection of scientific specimens.

    Collection of natural objects and marine life for educational 
purposes and for scientific and industrial research shall be done only 
in accordance with the terms of written permits granted by the Director 
of the Florida Board of Parks and Historic Memorials. Such permits shall 
be issued only to persons representing reputable scientific, research, 
or educational institutions. No permits will be granted for specimens 
the removal of which would disturb the remaining natural features or mar 
their appearance. All permits are subject to cancellation without notice 
at the discretion of the issuing official. Permits shall be for a 
limited term and may be renewed at the discretion of the issuing 
official.



Sec. 15.10  Operation of watercraft.

    No watercraft shall be operated in such a manner as to strike or 
otherwise cause damage to the natural features of the Preserve. Except 
in case of emergency endangering life or property, no anchor shall be 
cast or dragged in such a way as to damage any reef structure.



Sec. 15.11  Explosives and dangerous weapons.

    No person shall carry, use or possess within the Preserve firearms 
of any description, air rifles, spring guns, bows and arrows, slings, 
spear guns, harpoons, or any other kind of weapon potentially harmful to 
the reef structure. The use of such weapons from beyond the boundaries 
of the Preserve and aimed or directed into the Preserve is forbidden. 
The use or possession of explosives within the Preserve is prohibited.



Sec. 15.12  Closing of Preserve.

    The Preserve may be closed to public use in the event of emergency 
conditions encouraged within the Preserve.



Sec. 15.13  Report of accidents.

    Accidents involving injury to life or property shall be reported as 
soon as possible by the person or persons involved to the officer in 
charge of the Preserve.



Sec. 15.14  Applicability of laws.

    In areas to which this part pertains all Federal Acts shall be 
enforced insofar as they are applicable, and the laws and regulations of 
the State of Florida

[[Page 367]]

shall be invoked and enforced in accordance with the Act of June 25, 
1948 (62 Stat. 686; 18 U.S.C. 13)



PART 16--CONSERVATION OF HELIUM--Table of Contents




Sec.
16.1  Agreements to dispose of helium in natural gas.
16.2  Applications for helium disposition agreements.
16.3  Terms and conditions.
16.4  Consideration to the United States; renegotiation.
16.5  Bonds.

    Authority: R.S. 2478, as amended, 60 Stat. 950, 74 Stat. 918, 922; 
43 U.S.C. 1201, 30 U.S.C. 181, 50 U.S.C. 167a, 167g.



Sec. 16.1  Agreements to dispose of helium in natural gas.

    (a) Pursuant to his authority and jurisdiction over Federal lands, 
the Secretary may enter into agreements with qualified applicants to 
dispose of the helium of the United States upon such terms and 
conditions as he deems fair, reasonable, and necessary to conserve such 
helium, whenever helium can be conserved that would otherwise be wasted 
or lost to Federal ownership or use in the production of oil or gas from 
Government lands embraced in an oil and gas lease or whenever federally 
owned deposits of helium-bearing gas are being drained. The precise 
nature of any agreement will depend on the conditions and circumstances 
involved in that particular case.
    (b) An agreement shall be subject to the existing rights of the 
Federal oil and gas lessee.
    (c) An agreement shall provide that in the extraction of helium from 
gas produced from Federal lands, it shall be extracted so as to cause no 
delay, except that required by the extraction process, in the delivery 
of the residue of the gas produced from such lands to the owner thereof. 
Title will be granted to the helium which is physically reduced to 
possession.

[30 FR 9218, July 23, 1965]



Sec. 16.2  Applications for helium disposition agreements.

    The application for a helium disposition agreement need not be in 
any particular form, but must contain information sufficient to enable 
the Secretary to determine that the proposal will conserve helium that 
will otherwise be wasted, drained, or lost to Federal ownership or use, 
and to evaluate the suitability of the proposal.

[30 FR 9219, July 23, 1965]



Sec. 16.3  Terms and conditions.

    The applicant must agree not to develop wells on Federal land with 
the principal purpose of recovering the helium component of natural gas 
unless permission to do so has been expressly granted by the Secretary.

[30 FR 9219, July 23, 1965]



Sec. 16.4  Consideration to the United States; renegotiation.

    (a) The Secretary shall determine the royalty or other compensation 
to be paid by the applicant, which royalty or other compensation 
together with the royalties and other compensation paid by the oil and 
gas lessee, shall be in an amount sufficient to secure to the United 
States a return on all the values, including recovered helium.
    (b) The Secretary may require that each agreement shall contain a 
renegotiation clause providing for renegotiation of the royalty 
percentage ten years from the effective date of the agreement and at 
five-year intervals thereafter.

[29 FR 9383, July 9, 1964. Redesignated at 30 FR 9218, July 23, 1965]



Sec. 16.5  Bonds.

    The applicant shall be required to submit a bond in such amount and 
in such form as the Secretary may prescribe to secure the faithful 
performance of the terms of any agreement made.

[29 FR 9383, July 9, 1964. Redesignated at 30 FR 9218, July 23, 1965]

[[Page 368]]



PART 17--NONDISCRIMINATION IN FEDERALLY ASSISTED PROGRAMS OF THE DEPARTMENT OF THE INTERIOR--Table of Contents




 Subpart A--Nondiscrimination on the Basis of Race, Color, or National 
                                 Origin

Sec.
17.1  Purpose.
17.2  Application of this part.
17.3  Discrimination prohibited.
17.4  Assurances required.
17.5  Compliance information.
17.6  Conduct of investigations.
17.7  Procedure for effecting compliance.
17.8  Hearings.
17.9  Decisions and notices.
17.10  Judicial review.
17.11  Effect on other regulations; forms and instructions.
17.12  Definitions.

Appendix A to Subpart A
Appendix B to Subpart A

          Subpart B--Nondiscrimination on the Basis of Handicap

17.200  Purpose.
17.201  Application.
17.202  Definitions.
17.203  Discrimination prohibited.
17.204  Assurances required.
17.205  Remedial action, voluntary action, and self-evaluation.
17.206  Designation of responsible employee and adoption of grievance 
          procedures.
17.207  Notification.
17.208  Administrative requirements for small recipients.
17.209  Effect of State or local law or other requirements and effect of 
          employment opportunities.
17.210  Employment practices.
17.211  Reasonable accommodation.
17.212  Employment criteria.
17.213  Pre-employment inquiries.
17.214-17.215  [Reserved]
17.216  Program accessibility.
17.217  Existing facilities.
17.218  New construction.
17.219  [Reserved]
17.220  Preschool, elementary, and secondary education.
17.221-17.231  [Reserved]
17.232  Postsecondary education.
17.233-17.249  [Reserved]
17.250  Health, welfare, and social services.
17.251  Drug and alcohol addicts.
17.252  Education of institutionalized persons.
17.253-17.259  [Reserved]
17.260  Historic preservation programs.
17.270  Recreation programs.
17.271-17.279  [Reserved]
17.280  Enforcement procedures.

            Subpart C--Nondiscrimination on the Basis of Age

                                 General

17.300  What is the purpose of the Age Discrimination Act of 1975?
17.301  What is the purpose of DOI's age discrimination regulations?
17.302  To what programs do these regulations apply?
17.303  Definitions.

              Standards for Determining Age Discrimination

17.310  Rules against age discrimination.
17.311  Exceptions to the rules against age discrimination.
17.312  Burden of proof.
17.313  Special benefits for children and the elderly.
17.314  Age distinctions contained in DOI regulations.
17.315  Affirmative action by recipients.

                        Duties of DOI Recipients

17.320  General responsibilities.
17.321  Notice to subrecipients and beneficiaries.
17.322  Assurance of compliance and recipient assessment of age 
          distinctions.
17.323  Information collection requirements.

         Investigation, Conciliation, and Enforcement Procedures

17.330  Compliance reviews.
17.331  Complaints.
17.332  Mediation.
17.333  Investigation.
17.334  Prohibition against intimidation or retaliation.
17.335  Compliance procedure.
17.336  Hearings, decisions, post-termination proceedings.
17.337  Remedial action by recipients.
17.338  Alternate funds disbursal procedure.
17.339  Exhaustion of administrative remedies.

Subpart D [Reserved]

Subpart E--Enforcement of Nondiscrimination on the Basis of Handicap in 
   Programs or Activities Conducted by the Department of the Interior

17.501  Purpose.
17.502  Application.
17.503  Definitions.
17.504-17.509  [Reserved]
17.510  Self-evaluation.
17.511  Notice.
17.512-17.529  [Reserved]
17.530  General prohibitions against discrimination.

[[Page 369]]

17.531-17.539  [Reserved]
17.540  Employment.
17.541-17.548  [Reserved]
17.549  Program accessibility: Discrimination prohibited.
17.550  Program accessibility: Existing facilities.
17.551  Program accessibility: New construction and alterations.
17.552-17.559  [Reserved]
17.560  Communications.
17.561-17.569  [Reserved]
17.570  Compliance procedures.



 Subpart A--Nondiscrimination on the Basis of Race, Color, or National 
                                 Origin

    Authority: Sec. 602, 78 Stat. 252; 42 U.S.C. 2000d-1; and the laws 
referred to in Appendix A.



Sec. 17.1  Purpose.

    The purpose of this part is to effectuate the provisions of title VI 
of the Civil Rights Act of 1964 to the end that no person in the United 
States shall, on the grounds of race, color, or national origin, be 
excluded from participation in, be denied the benefits of, or be 
otherwise subjected to discrimination under any program or activity 
receiving Federal financial assistance from the Department of the 
Interior.

[29 FR 16293, Dec. 4, 1964, as amended at 43 FR 4259, Feb. 1, 1978]



Sec. 17.2  Application of this part.

    (a) This part applies to any program for which Federal financial 
assistance is authorized under a law administered by the Department, 
including programs and activities that are federally-assisted under the 
laws listed in appendix A to this subpart. It applies to money paid, 
property transferred, or other Federal financial assistance extended 
under any such program after the effective date of the regulation 
pursuant to an application approved prior to such effective date. This 
part does not apply to (1) any Federal financial assistance by way of 
insurance or guaranty contracts, (2) money paid, property transferred, 
or other assistance extended under any such program before the effective 
date of this part, (3) any assistance to any individual who is the 
ultimate beneficiary under any such program, or (4) except to the extent 
described in Sec. 17.3, any employment practice, under any such program, 
of any employer, employment agency, or labor organization. The fact that 
a statute under which Federal financial assistance is extended to a 
program or activity is not listed in appendix A to subpart A shall not 
mean, if title VI is otherwise applicable, that such program or activity 
is not covered. Other statutes now in force or hereafter enacted may be 
added to this list by notice published in the Federal Register.
    (b) In any program receiving Federal financial assistance in the 
form, or for the acquisition, of real property or an interest in real 
property, to the extent that rights to space on, over, or under any such 
property are included as part of the program receiving that assistance, 
the nondiscrimination requirement of that part shall extend to any 
facility located wholly or in part of the space.

[29 FR 16293, Dec. 4, 1964, as amended at 38 FR 17975, July 5, 1973; 43 
FR 4259, Feb. 1, 1978]



Sec. 17.3  Discrimination prohibited.

    (a) General. No person in the United States shall, on the grounds of 
race, color, or national origin be excluded from participation in, be 
denied the benefits of, or be otherwise subjected to discrimination 
under any program to which this part applies.
    (b) Specific discriminatory actions prohibited. (1) A recipient 
under any program to which this part applies may not, directly or 
through contractual or other arrangements, on the grounds of race, 
color, or national origin:
    (i) Deny an individual any service, financial aid, or other benefit 
provided under the program;
    (ii) Provide any service, financial aid, or other benefit to an 
individual which is different, or is provided in a different manner, 
from that provided to others under the program;
    (iii) Subject an individual to segregation or separate treatment in 
any matter related to his receipt of any service, financial aid, or 
other benefit under the program;
    (iv) Restrict an individual in any way in the enjoyment of any 
advantage or privilege enjoyed by others receiving

[[Page 370]]

any service, financial aid, or other benefit under the program;
    (v) Treat an individual differently from others in determining 
whether he satisfies any admission, enrollment, quota, eligibility, 
membership or other requirement or condition which individuals must meet 
in order to be provided any service, financial aid, or other benefit 
provided under the program;
    (vi) Deny an individual an opportunity to participate in the program 
through the provision of services or otherwise or afford him an 
opportunity to do so which is different from that afforded others under 
the program (including the opportunity to participate in the program as 
an employee but only to the extent set forth in paragraph (c) of this 
section).
    (vii) Deny a person the opportunity to participate as a member of a 
planning or advisory body which is an integral part of the program.
    (2) A recipient, in determining the types of services, financial 
aid, or other benefits, or facilities which will be provided under any 
such program or the class of individuals to whom, or the situations in 
which, such services, financial aid, other benefits or facilities will 
be provided under any such program, or the class of individuals to be 
afforded an opportunity to participate in any such program, may not, 
directly or through contractual or other arrangements, utilize criteria 
or methods of administration which have the effect of subjecting 
individuals to discrimination because of their race, color, or national 
origin, or have the effect of defeating or substantially impairing 
accomplishment of the objectives of the program as respect individuals 
of a particular race, color, or national origin.
    (3) In determining the site or location of facilities, a recipient 
or applicant may not make selections with the purpose or effect of 
excluding persons from, denying them the benefits of, or subjecting them 
to discrimination under any program to which this regulation applies, on 
the grounds of race, color, or national origin; or with the purpose or 
effect if defeating or substantially impairing the accomplishment of the 
objectives of the Act or this part.
    (4)(i) In administering a program regarding which the recipient has 
previously discriminated against persons on the grounds of race, color, 
or national origin, the recipient must take affirmative action to 
overcome the effects of prior discrimination.
    (ii) Even in the absence of such prior discrimination, a recipient 
in administering a program may take affirmative action to overcome the 
effects of conditions which resulted in limiting participation by 
persons of a particular race, color or national origin.
    (5) References in this section to services, financial aid, or other 
benefits provided under a program receiving Federal financial assistance 
shall be deemed to include any service, financial aid, or other benefit 
provided in or through a facility provided with the aid of Federal 
financial assistance.
    (6) The enumeration of specific forms of prohibited discrimination 
in this paragraph (b) and paragraph (c) of this section does not limit 
the generality of the prohibition in paragraph (a) of this section.
    (c) Employment practices. (1) Where a primary objective of a program 
of Federal financial assistance to which this part applies is to provide 
employment, a recipient or other party subject to this part shall not, 
directly or through contractual or other arrangements, subject a person 
to discrimination on the ground of race, color, or national origin in 
its employment practices under such program (including recruitment or 
recruitment advertising, hiring, firing, upgrading, promotion, demotion, 
transfer, layoff, termination, rates of pay or other forms of 
compensation or benefits, selection for training or apprenticeship, use 
of facilities, and treatment of employees). Such recipient shall take 
affirmative action to insure that applicants are employed, and employees 
are treated during employment, without regard to their race, color, or 
national origin. The requirements applicable to construction employment 
under any such program shall be those specified in or pursuant to Part 
III of Executive Order 11246, as amended, or any Executive Order which 
supersedes it.
    (2) The requirements of paragraph (c)(1) of this section apply to 
programs

[[Page 371]]

under laws funded or administered by the Department where a primary 
objective of the Federal financial assistance is (i) to reduce the 
unemployment of such individuals or to help them through employment to 
meet subsistence needs, (ii) to assist such individuals in meeting 
expenses incident to the commencement or continuation of their education 
or training, or (iii) to provide work experience which contributes to 
the education or training of such individuals. Assistance given under 
the following laws has one of the above purposes as a primary objective: 
Water Resources Research Act of 1964, title I, 78 Stat. 329, and those 
statutes listed in appendix A to this subpart where the facilities or 
employment opportunities provided are limited, or a preference is given, 
to students, fellows, or other persons in training or related 
employment.
    (3) Where a primary objective of the Federal financial assistance is 
not to provide employment, but discrimination on the ground of race, 
color, or national origin in the employment practices of the recipient 
or other persons subject to the regulation tends, on the ground of race, 
color, or national origin, to exclude individuals from participation in, 
to deny them the benefit of, or to subject them to discrimination under 
any program to which this regulation applies, the provisions of 
paragraph (c)(1) of this section shall apply to the employment practices 
of the recipient or other persons subject to this part, to the extent 
necessary to assure equality of opportunity to, and nondiscriminatory 
treatment of, beneficiaries.
    (d) Programs for Indians, natives of certain territories, and Alaska 
natives. An individual shall not be deemed subjected to discrimination 
by reason of his exclusion from the benefits of a program which, in 
accordance with Federal law, is limited to Indians, natives of certain 
territories, or Alaska natives, if the individual is not a member of the 
class to which the program is addressed. Such programs include those 
authorized by statutes listed in appendix B to this subpart.

[29 FR 16293, Dec. 4, 1964, as amended at 38 FR 17976, July 5, 1973; 43 
FR 4259, Feb. 1, 1978]



Sec. 17.4  Assurances required.

    (a) General. (1) Every application for Federal financial assistance 
to carry out a program to which this part applies, except a program to 
which paragraph (b) of this section applies, and every application for 
Federal financial assistance to provide a facility shall, as a condition 
to its approval and the extension of any Federal financial assistance 
pursuant to the application, contain or be accompanied by, an assurance 
that the program will be conducted or the facility operated in 
compliance with all requirements imposed by or pursuant to this part. 
Every program of Federal financial assistance shall require the 
submission of such an assurance. In the case where the Federal financial 
assistance is to provide or is in the form of personal property, or real 
property or interest therein or structures thereon, or impovement of 
real property or structures, the assurance shall obligate the recipient, 
or, in the case of a subsequent transfer, the transferee, for the period 
during which the property is used for a purpose for which the Federal 
financial assistance is extended or for another purpose involving the 
provision of similar services or benefits, or for as long as the 
recipient retains ownership or possession of the property, whichever is 
longer. In all other cases the assurance shall obligate the recipient 
for the period during which Federal financial assistance is extended to 
the program. In the case where the assistance is sought for the 
construction of a facility or part of a facility, the assurance shall in 
any event extend to the entire facility and to facilities operated in 
connection therewith. The Secretary shall specify the form of the 
foregoing assurances for each program, and the extent to which like 
assurances will be required of subgrantees, contractors and 
subcontractors, transferees, successors in interest, and other 
participants in the program. Any such assurance shall include provisions 
which give the United States a right to seek its judicial enforcement.
    (2) In the case where Federal financial assistance is provided in 
the form

[[Page 372]]

of a transfer of real property, structures, or improvements thereon, or 
interest therein, from the Federal Government, the instrument effecting 
or recording the transfer shall contain a covenant running with the land 
assuring nondiscrimination for the period during which the real property 
is used for a purpose for which the Federal financial assistance is 
extended or for another purpose involving the provision of similar 
services or benefits. Where no transfer of property or interest therein 
from the Federal Government is involved, but property is acquired or 
improved under a program of Federal financial assistance, the recipient 
shall agree to include such covenant in any subsequent transfer of such 
property. When the property is obtained from the Federal Government, 
such covenant may also include a condition coupled with a right to be 
reserved by the Department to revert title to the property in the event 
of a breach of the covenant where, in the discretion of the Secretary, 
such a condition and right of reverter is appropriate to the program 
under which the real property is obtained and to the nature of the grant 
and the grantee. In such event if a transferee of real property proposes 
to mortgage or otherwise encumber the real property as security for 
financing construction of new, or improvement of existing facilities on 
such property for the purposes for which the property was transferred, 
the Secretary may agree, upon request of the transferee and if necessary 
to accomplish such financing, and upon such conditions as he deems 
appropriate, to subordinate such right of reversion to the lien of such 
mortgage or other encumbrance.
    (b) Continuing State programs. (1) Every application by a State or 
any agency or political subdivision of a State to carry out a program 
involving continuing Federal financial assistance to which this 
regulation applies shall as a condition to its approval and the 
extension of any Federal financial assistance pursuant to the 
application (i) contain or be accompanied by a statement that the 
program is (or, in the case of a new program, will be) conducted in 
compliance with all requirements imposed by or pursuant to this part, or 
a statement of the extent to which it is not, at the time the statement 
is made, so conducted, and (ii) provide or be accompanied by provision 
for such methods of administration for the program as are found by the 
Secretary or his designee to give reasonable assurance that the 
applicant and all recipients of Federal financial assistance under such 
program will comply with all requirements imposed by or pursuant to this 
regulation, including methods of administration which give reasonable 
assurance that any noncompliance indicated in the statement under 
paragraph (b)(1)(i) of this section will be corrected.
    (2) With respect to some programs which are carried out by States or 
agencies or political subdivisions of States and which involve 
continuing Federal financial assistance administered by the Department, 
there has been no requirement that applications be filed by such 
recipients. From the effective date of this part no Federal financial 
assistance administered by this Department will be extended to a State 
or to an agency or a political subdivision of a State unless an 
application for such Federal financial assistance has been received from 
the State or State agency or political subdivision.
    (c) Elementary and secondary schools. The requirements of paragraph 
(a) or (b) of this section with respect to any elementary or secondary 
school or school system shall be deemed to be satisfied if such school 
or school system (1) is subject to a final order of a court of the 
United States for the desegregation of such school or school system, and 
provides an assurance that it will comply with such order, including any 
future modification of such order, or (2) submits a plan for the 
desegregation of such school or school system which the responsible 
official of the Department of Health, Education, and Welfare determines 
is adequate to accomplish the purposes of the Act and this part within 
the earliest practicable time and provides reasonable assurance that it 
will carry out such plan; in any case of continuing Federal financial 
assistance the responsible official of the Department of Health, 
Education, and Welfare may reserve

[[Page 373]]

the right to redetermine, after such period as may be specified by him, 
the adequacy of the plan to accomplish the purposes of the Act and this 
part. In any case in which a final order of a court of the United States 
for the desegregation of such school or school system is entered after 
submission of such a plan, such plan shall be revised to conform to such 
final order, including any future modification of such order.
    (d) Assurances from institutions. (1) In the case of any application 
for Federal financial assistance to an institution of higher education 
(including assistance for construction, for research for a special 
training project, for a student assistance program, or for another 
purpose), the assurance required by this section shall extend to 
admission practices and to all other practices relating to the treatment 
of students.
    (2) The assurance required with respect to an institution of higher 
education or any other institution, insofar as the assurance relates to 
the institution's practices with respect to admission or other treatment 
of individuals as students or clients of the institution or to the 
opportunity to participate in the provision of services or other 
benefits to such individuals, shall be applicable to the entire 
institution unless the applicant establishes, to the satisfaction of the 
Secretary or his designee, that the institution's practices in 
designated parts or programs of the institution will in no way affect 
its practices in the program of the institution for which Federal 
financial assistance is sought, or the beneficiaries of or participants 
in such program. If in any such case the assistance sought is for the 
construction of a facility or part of a facility, the assurance shall in 
any event extend to the entire facility and to facilities operated in 
connection therewith.

[29 FR 16293, Dec. 4, 1964, as amended at 38 FR 17976, July 5, 1973]



Sec. 17.5  Compliance information.

    (a) Cooperation and assistance. The Secretary or his designee shall 
to the fullest extent practicable seek the cooperation of recipients in 
obtaining compliance with this part and shall provide assistance and 
guidance to recipients to help them comply voluntarily with this part.
    (b) Compliance reports. Each recipient shall keep such records and 
submit to the Secretary or his designee timely, complete and accurate 
compliance reports, at such times, and in such form and containing such 
information, as the Secretary or his designee may determine to be 
necessary to enable him to ascertain whether the recipient has complied 
or is complying with this part. In general, recipients should have 
available for the Department racial and ethnic data showing the extent 
to which members of minority groups are beneficiaries of federally--
assisted programs. In the case of any program under which a primary 
recipient extends Federal financial assistance to any other recipient, 
such other recipient shall also submit such compliance reports to the 
primary recipient as may be necessary to enable the primary recipient to 
carry out its obligations under this part.
    (c) Access to sources of information. Each recipient shall permit 
access by the Secretary or his designee during normal business hours to 
such of its books, records, accounts, and other sources of information, 
and its facilities as may be pertinent to ascertain compliance with this 
part. Where any information required of a recipient is in the exclusive 
possession of any other agency, institution or person and this agency, 
institution or person shall fail or refuse to furnish this information, 
the recipient shall so certify in its report and shall set forth what 
efforts it has made to obtain the information.
    (d) Information to beneficiaries and participants. Each recipient 
shall make available to participants, beneficiaries, and other 
interested persons such information regarding the provisions of this 
part and its applicability to the program under which the recipient 
receives Federal financial assistance, and make such information 
available to them in such manner as the Secretary or his designee finds 
necessary to apprise such persons of the protections against 
discrimination assured them by the Act and this part.

[38 FR 17976, July 5, 1973]

[[Page 374]]



Sec. 17.6  Conduct of investigations.

    (a) Periodic compliance reviews. The Secretary or his designee shall 
from time to time review the practices of recipients to determine 
whether they are complying with this part.
    (b) Complaints. Any person who believes himself or any specific 
class of individuals to be subjected to discrimination prohibited by 
this part may by himself or by a representative file with the Secretary 
a written complaint. A complaint must be filed not later than 180 days 
from the date of the alleged discrimination, unless the time for filing 
is extended by the Secretary, or his designee.
    (c) Investigations. Whenever a compliance review, report, complaint, 
or any other information indicates a possible failure to comply with 
this part, a prompt investigation shall be made. The investigation 
should include, where appropriate, a review of the pertinent practices 
and policies of the recipient, the circumstances under which the 
possible noncompliance with this part occurred, and other factors 
relevant to a determination as to whether the recipient has failed to 
comply with this part.
    (d) Resolution of matters. (1) If an investigation pursuant to 
paragraph (c) of this section indicates a failure to comply with this 
part, the recipient shall be informed in writing and the matter will be 
resolved by informal means whenever possible. If it has been determined 
that the matter cannot be resolved by informal means, action will be 
taken as provided for in Sec. 17.7.
    (2) If an investigation does not warrant action pursuant to 
paragraph (d)(1) of this section, the recipient and complainant, if any, 
shall be informed in writing.
    (e) Intimidatory or retaliatory acts prohibited. No recipient or 
other person shall intimidate, threaten, coerce, or discriminate against 
any individual for the purpose of interfering with any right or 
privilege secured by section 601 of the act or this part, or because he 
has made a complaint, testified, assisted, or participated in any manner 
in an investigation, proceeding, or hearing under this part. The 
identity of complainants shall be kept confidential except to the extent 
necessary to carry out the purposes of this part, including the conduct 
of any investigation, hearing, or judicial proceeding arising 
thereunder.

[29 FR 16293, Dec. 4, 1964, as amended at 38 FR 17977, July 5, 1973]



Sec. 17.7  Procedure for effecting compliance.

    (a) General. If there appears to be a failure or threatened failure 
to comply with this part, and if the noncompliance or threatened 
noncompliance cannot be corrected by informal means, compliance with 
this part may be effected by the suspension or termination of or refusal 
to grant or to continue Federal financial assistance or by any other 
means authorized by law. Such other means may include, but are not 
limited to, (1) a reference to the Department of Justice with a 
recommendation that appropriate proceedings be brought to enforce any 
rights of the United States under any law of the United States 
(including other titles of the Act), or any assurance or other 
contractual undertaking, and (2) any applicable proceeding under State 
or local law.
    (b) Noncompliance with Sec. 17.4. If an applicant fails or refuses 
to furnish an assurance required under Sec. 17.4 or otherwise fails or 
refuses to comply with a requirement imposed by or pursuant to that 
section, Federal financial assistance may be refused in accordance with 
the procedures of paragraph (c) of this section. The Department shall 
not be required to provide assistance in such a case during the pendency 
of the administrative proceedings under such paragraph, except that the 
Department shall continue assistance during the pendency of such 
proceedings where such assistance is due and payable pursuant to an 
application therefor approved prior to the effective date of this part.
    (c) Termination of or refusal to grant or to continue Federal 
financial assistance. No order suspending, terminating, or refusing to 
grant or continue Federal financial assistance shall become effective 
until (1) the Secretary or his designee has advised the applicant or 
recipient of his failure to comply and has determined that compliance 
cannot be secured by voluntary means, (2) there

[[Page 375]]

has been an express finding on the record, after opportunity for 
hearing, of a failure by the applicant or recipient to comply with a 
requirement imposed by or pursuant to this part, (3) the action has been 
approved by the Secretary pursuant to Sec. 17.9(e), and (4) the 
expiration of 30 days after the Secretary has filed with the committee 
of the House and the committee of the Senate having legislative 
jurisdiction over the program involved, a full written report of the 
circumstances and the grounds for such action. Any action to suspend or 
terminate or to refuse to grant or to continue Federal financial 
assistance shall be limited to the particular political entity, or part 
thereof, or other applicant or recipient as to whom such finding has 
been made and shall be limited in its effect to the particular program, 
or part thereof, in which such noncompliance has been so found.
    (d) Other means authorized by law. No action to effect compliance by 
any other means authorized by law shall be taken until (1) the Secretary 
or his designee has determined that compliance cannot be secured by 
voluntary means, (2) the recipient or other person has been notified of 
its failure to comply and of the action to be taken to effect 
compliance, and (3) the expiration of at least 10 days from the mailing 
of such notice to the recipient or other person. During this period of 
at least 10 days additional effort shall be made to persuade the 
recipient or other person to comply with this part and to take such 
corrective action as may be appropriate.

[29 FR 16293, Dec. 4, 1964, as amended at 38 FR 17977, July 5, 1973]



Sec. 17.8  Hearings.

    (a) Opportunity for hearing. Whenever an opportunity for a hearing 
is required by Sec. 17.7(c), reasonable notice shall be given by 
registered or certified mail, return receipt requested, to the affected 
applicant or recipient. This notice shall advise the applicant or 
recipient of the action proposed to be taken, the specific provision 
under which the proposed action against it is to be taken, and the 
matters of fact or law asserted as the basis for this action, and either 
(1) fix a date not less than 20 days after the date of such notice 
within which the applicant or recipient may request of the 
administrative law judge to whom the matter has been assigned that the 
matter be scheduled for hearing or (2) advise the applicant or recipient 
that the matter in question has been set down for hearing at a stated 
place and time. The time and place so fixed shall be reasonable and 
shall be subject to change for cause. The complainant, if any, shall be 
advised of the time and place of the hearing. An applicant or recipient 
may waive a hearing and submit written information and argument for the 
record. The failure of an applicant or recipient to request a hearing 
under this paragraph or to appear at a hearing for which a date has been 
set shall be deemed to be a waiver of the right to a hearing under 
section 602 of the act and Sec. 17.7(c) and consent to the making of a 
decision on the basis of such information as is available.
    (b) Time and place of hearing. Hearings shall be held at the Office 
of Hearings and Appeals of the Department in the Washington, DC, area, 
at a time fixed by the administrative law judge to whom the matter has 
been assigned unless he determines that the convenience of the applicant 
or recipient or of the Department requires that another place be 
selected. Hearings shall be held before an administrative law judge 
designated by the Office of Hearings and Appeals in accordance with 5 
U.S.C. 3105 and 3344.
    (c) Right to counsel. In all proceedings under this section, the 
applicant or recipient and the Department shall have the right to be 
represented by counsel.
    (d) Procedures, evidence, and record (1) The hearing, decision, and 
any administrative review thereof shall be conducted in conformity with 
5 U.S.C. 554--557, and in accordance with such rules of procedure as are 
proper (and not inconsistent with this section) relating to the conduct 
of the hearing, giving of notices subsequent to those provided for in 
paragraph (a) of this section, taking of testimony, exhibits, arguments 
and briefs, requests for findings, and other related matters. Both the 
Department and the applicant or recipient shall be entitled to introduce 
all relevant evidence on the issues as

[[Page 376]]

stated in the notice for hearing or as determined by the officer 
conducting the hearing at the outset of or during the hearing.
    (2) Technical rules of evidence shall not apply to hearings 
conducted pursuant to this part, but rules or principles designed to 
assure production of the most credible evidence available and to subject 
testimony to test by cross-examination shall be applied where reasonably 
necessary by the officer conducting the hearing. The hearing officer may 
exclude irrelevant, immaterial, or unduly repetitious evidence. All 
documents and other evidence offered or taken for the record shall be 
open to examination by the parties and opportunity shall be given to 
refute facts and arguments advanced on either side of the issues. A 
transcript shall be made of the oral evidence except to the extent that 
the substance thereof is stipulated for the record. All decisions shall 
be based upon the hearing record and written findings shall be made.
    (e) Consolidated or joint hearings. In cases in which the same or 
related facts are asserted to constitute noncompliance with this part 
with respect to two or more programs to which this part applies or 
noncompliance with this part and the regulations of one or more other 
Federal departments or agencies issued under title VI of the act, the 
Secretary may, by agreement with such other departments or agencies, 
where applicable, provide for the conduct of consolidated or joint 
hearings, and for the application to such hearings of rules of procedure 
not inconsistent with this part. Final decisions in such cases, insofar 
as this part is concerned, shall be made in accordance with Sec. 17.9.

[29 FR 16293, Dec. 4, 1964, as amended at 38 FR 17977, July 5, 1973]



Sec. 17.9  Decisions and notices.

    (a) Initial decision by an administrative law judge. The 
administrative law judge shall make an initial decision and a copy of 
such initial decision shall be sent by registered mail, return receipt 
requested, to the recipient or applicant.
    (b) Review of the initial decision. The applicant or recipient may 
file his exceptions to the initial decision, with his reasons therefor, 
with the Director, Office of Hearings and Appeals, within thirty days of 
receipt of the initial decision. In the absence of exceptions, the 
Director, Office of Hearings and Appeals, on his own motion within 
forty-five days after the initial decision, may notify the applicant or 
recipient that he will review the decision. In the absence of exceptions 
or a notice of review, the initial decision shall constitute the final 
decision subject to the approval of the Secretary pursuant to paragraph 
(f) of this section.
    (c) Decisions by the Director, Office of Hearings and Appeals. 
Whenever the Director, Office of Hearings and Appeals, reviews the 
decision of a hearing examiner pursuant to paragraph (b) of this 
section, the applicant or recipient shall be given reasonable 
opportunity to file with him briefs or other written statements of its 
contention, and a copy of the final decision of the Director, Office of 
Hearings and Appeals, shall be given to the applicant or recipient and 
to the complainant, if any.
    (d) Decisions on record where a hearing is waived. Whenever a 
hearing is waived pursuant to Sec. 17.8(a), a decision shall be made by 
the Director, Office of Hearings and Appeals on the record and a copy of 
such decision shall be given in writing to the applicant or recipient 
and to the complainant, if any.
    (e) Rulings required. Each decision of an administrative law judge 
or the Director, Office of Hearings and Appeals, shall set forth his 
ruling on each finding, conclusion, or exception presented, and shall 
identify the requirement or requirements imposed by or pursuant to this 
part with which it is found that the applicant or recipient has failed 
to comply.
    (f) Approval by Secretary. Any final decision of a hearing examiner 
or of the Director, Office of Hearings and Appeals, which provides for 
the suspension or termination of, or the refusal to grant or continue 
Federal financial assistance, or the imposition of any other sanction 
available under this part of the act, shall promptly be transmitted to 
the Secretary, who may approve such decision, may vacate it, or remit or 
mitigate any sanction imposed.

[[Page 377]]

    (g) Content of decisions. The final decision may provide for the 
suspension or termination of, or refusal to grant or continue Federal 
financial assistance, in whole or in part, under the program involved, 
and may contain such terms, conditions, and other provisions as are 
consistent with and effectuate the purposes of the act and this part, 
including provisions designed to assure that no Federal financial 
assistance will thereafter be extended under such program to the 
applicant or recipient determined by such decision to be in default in 
its performance of an assurance given by it pursuant to this regulation, 
or to have otherwise failed to comply with this part, unless and until 
it corrects its noncompliance and satisfies the Secretary that it will 
fully comply with this part.
    (h) Post termination proceedings. (1) An applicant or recipient 
adversely affected by an order issued under paragraph (g) of this 
section shall be restored to full eligibility to receive Federal 
financial assistance if it satisfies the terms and conditions of that 
order for such eligibility or if it brings itself into compliance with 
this part and provides reasonable assurance that it will fully comply 
with this part.
    (2) Any applicant or recipient adversely affected by an order 
entered pursuant to paragraph (g) of this section may at any time 
request the Secretary to restore fully its eligibility to receive 
Federal financial assistance.
    (3) If the Secretary denies any such request, the applicant or 
recipient may submit to the Secretary a request for a hearing in 
writing, specifying why it believes the Secretary to have been in error. 
It shall thereupon be given an expeditious hearing, with a decision on 
the record in accordance with the procedures set forth in subpart I of 
part 4 of this title. The applicant or recipient shall be restored to 
such eligibility if it proves at such a hearing that it satisfied the 
requirements of paragraph (h)(1) of this section.
    (4) While proceedings under this paragraph are pending, the 
sanctions imposed by the order issued under paragraph (g) of this 
section shall remain in effect.

[38 FR 17977, July 5, 1973; 44 FR 54299, Sept. 19, 1979]



Sec. 17.10  Judicial review.

    Action taken pursuant to section 602 of the act is subject to 
judicial review as provided in section 603 of the act.

[29 FR 16293, Dec. 4, 1964]



Sec. 17.11  Effect on other regulations; forms and instructions.

    (a) Effect on other regulations. All regulations, orders, or like 
directions heretofore issued by any officer of the Department which 
impose requirements designed to prohibit any discrimination against 
individuals on the grounds of race, color, or national origin under any 
program to which this regulation applies and which authorize the 
suspension or termination of or refusal to grant or to continue Federal 
financial assistance to any applicant for or recipient of such 
assistance under such program for failure to comply with such 
requirements are hereby superseded to the extent that such 
discrimination is prohibited by this part, except that nothing in this 
part shall be deemed to relieve any person of any obligation assumed or 
imposed under any such superseded regulation, order, instruction, or 
like direction prior to the effective date of this regulation. Nothing 
in this regulation, however, shall be deemed to supersede any of the 
following (including future amendments thereof): (1) Executive Orders 
10925, 11114 and 11246, as amended and regulations issued thereunder, 
(2) Executive Order 11063 and regulations issued thereunder, or any 
other regulations or instructions insofar as such order, regulations, or 
instructions prohibit discrimination on the grounds of race, color, or 
national origin in any program or situation to which this part is 
inapplicable, or prohibit discrimination on any other ground.
    (b) Forms and instructions. The Secretary or his designee shall 
issue and promptly make available to interested persons instructions and 
procedures for

[[Page 378]]

effectuating this part as applied to programs to which this part applies 
and for which he is responsible.
    (c) Supervision and coordination. The Secretary may from time to 
time assign to such officials of the Department as he deems appropriate, 
or to officials of other departments or agencies of the Government with 
the consent of such departments or agencies, responsibilities in 
connection with the effectuation of the purposes of title VI of the act 
and this part (other than responsibility for final decision as provided 
in Sec. 17.9), including the achievement of effective coordination and 
maximum uniformity within the Department and within the Executive Branch 
of the Government in the application of title VI of the act and this 
part to similar programs and in similar situations. Any action taken, 
determination made or requirement imposed by an official of another 
department or agency acting pursuant to an assignment of responsibility 
under this paragraph shall have the same effect as though such action 
had been taken by the Secretary of the Interior.

[29 FR 16293, Dec. 4, 1964, as amended at 43 FR 4259, Feb. 1, 1978]



Sec. 17.12  Definitions.

    As used in this part:
    (a) The term act means the Civil Rights Act of 1964 (Pub. L. 88-352 
78 Stat. 241).
    (b) The term Department means the Department of the Interior, and 
includes each of its bureaus and offices.
    (c) The term Secretary means the Secretary of the Interior or, 
except in Sec. 17.9(f), any person to whom he has delegated his 
authority in the matter concerned.
    (d) The term United States means the States of the United States, 
the District of Columbia, Puerto Rico, the Virgin Islands, American 
Samoa, Guam, Wake Island, the Canal Zone, and the territories and 
possessions of the United States, and the term ``State'' means any one 
of the foregoing.
    (e) The term Federal financial assistance includes (1) grants and 
loans of Federal funds, (2) grants or donations of Federal property and 
interests in property, (3) the detail of Federal personnel (4) the sale 
or lease of, or the permission to use (on other than a casual or 
transient basis), Federal property or any interest in such property 
without consideration or at a nominal consideration or at a 
consideration which is reduced for the purpose of assisting the 
recipient or in recognition of the public interest to be served by such 
sale or lease to the recipient, and (5) any Federal agreement, 
arrangement, or other contract which has as one of its purposes the 
provision of assistance.
    (f) The term program includes any program, project, or activity for 
the provision of services, financial aid, or other benefits to 
individuals (including education or training, health, welfare, 
rehabilitation, housing, or other services whether provided through 
employees of the recipient of Federal financial assistance or provided 
by others through contracts or other arrangements with the recipient, 
and including work opportunities and cash or loan or other assistance to 
individuals), or for the provision of facilities for furnishing services 
financial aid or other benefits to individuals. The services, financial 
aid, or other benefits provided under a program receiving Federal 
financial assistance shall be deemed to include any services, financial 
aid, or other benefits provided with the aid of Federal financial 
assistance or with the aid of any non-Federal funds, property, or other 
resources required to be expended or made available for the program to 
meet matching requirements or other conditions which must be met in 
order to receive the Federal financial assistance, and to include any 
services financial aid, or other benefits provided in or through a 
facility provided with the aid of Federal financial assistance or such 
non-Federal resources.
    (g) The term facility includes all or any portion of structures, 
equipment, or other real or personal property or interests therein, and 
the provision of facilities includes the construction, expansion, 
renovation, remodeling, alteration or acquisition of facilities.
    (h) The term recipient means any State, political subdivision of any 
State, or instrumentality of any State or political subdivision, any 
public or

[[Page 379]]

private agency, institution, or organization, or any other entity, or 
any individual, in any State, to whom Federal financial assistance is 
extended, directly or through another recipient, for any program, 
including any successor, assign, or transferee thereof, but such term 
does not include the ultimate beneficiary under such program.
    (i) The term primary recipient means any recipient which is 
authorized or required to extend Federal financial assistance to another 
recipient for the purpose of carrying out a program.
    (j) The term applicant means one who submits an application, 
request, or plan required to be approved by the head of a bureau or 
office, or by a primary recipient, as a condition to eligibility for 
Federal financial assistance, and the term ``application'' means such an 
application, request, or plan.
    (k) The term Office of Hearings and Appeals refers to a constituent 
office of the Department established July 1, 1970. 35 FR 12081 (1970).

[29 FR 16293, Dec. 4, 1964, as amended at 38 FR 17978, July 5, 1973]

                   Appendix A to Subpart A of Part 17

    Federal financial assistance subject to part 17 includes, but is not 
limited to, that authorized by the following statutes:
    I. Public Lands and Acquired Lands. (a) Grants and loans of Federal 
funds.
    1. Mineral Leasing Act of 1920, as amended and supplemented (30 
U.S.C. 181--287).
    2. Mineral Leasing Act for Acquired Lands (30 U.S.C. 351--359).
    3. Alaska Grazing Act (44 Stat. 1452, 48 U.S.C. 471, et seq.).
    4. Proceeds of Certain Land Sales (R.S. sec. 3689, as amended, 31 
U.S.C. 711 (17)).
    5. Taylor Grazing Act (48 Stat. 1269, as amended, 43 U.S.C. 315 et 
seq.).
    6. Oregon and California Railroad and Coos Bay Wagon Road Grant 
Lands Act (50 Stat. 874, 43 U.S.C. 1181f).
    7. Payment to States for Swamp Lands Erroneously Sold by U.S. (R.S. 
sec. 3689, as amended, 31 U.S.C. 711 (18)).
    8. Alaska Statehood Act, sec. 6(f), (72 Stat. 341, 48 U.S.C. note 
preceding sec. 21).
    (b) Sale, lease, grant, or other disposition of, or the permission 
to use, Federal property or any interest in such property at less than 
fair market value.
    1. Materials Act (61 Stat. 681, as amended 30 U.S.C. 601--604).
    2. Rights-of-way for Tramroads, Canals, Reservoirs (28 Stat. 635, as 
amended, 43 U.S.C. 956, 957).
    3. Highway Rights-of-way (R.S. sec. 2477 43 U.S.C. 932).
    4. Small Tract Act (52 Stat. 609, as amended, 43 U.S.C. 682a--682e).
    5. Rights-of-way for Dams, Reservoirs, Water Plants, Canals, etc. 
(33 Stat. 628, 16 U.S.C. 524).
    6. Rights-of-way for Power and Communication Facilities (36 Stat. 
1253, as amended, 43 U.S.C. 961).
    7. Recreation and Public Purposes Act (44 Stat. 741, as amended, 43 
U.S.C. 869--869-4).
    8. Stock-Watering Reservoirs (29 Stat. 434, as amended, 43 U.S.C. 
952--955).
    9. Alaska Housing Authority Act (63 Stat. 60, 48 U.S.C. 484c).
    10. Railroad Rights-of-way in Alaska (30 Stat. 409, 48 U.S.C. 411--
419).
    11. Grants to States in Aid Schools (44 Stat. 1026 as amended, 43 
U.S.C. 870).
    12. Carey Act (28 Stat. 422, as amended, 43 U.S.C. 641).
    13. Airports and Aviation Fields (45 Stat. 728, as amended, 49 
U.S.C. 211--214).
    14. Special Land Use Permits (R.S. sec. 453, as amended, 43 U.S.C. 
2).
    15. Rights-of-way for Irrigation and Drainage (26 Stat. 1101, as 
amended, 43 U.S.C. 946).
    16. Rights-of-way for Pipelines to Transport Oil or Natural Gas (41 
Stat. 449, as amended, 30 U.S.C. 185).
    17. Townsite Laws (R.S. 2380 et seq., as amended, 43 U.S.C. 711 et 
seq.).
    18. Leases of Lands near Springs (43 Stat. 1133, 43 U.S.C. 971).
    19. Rights-of-way for Railroads (18 Stat. 482, 43 U.S.C. 934).
    20. Grants of Easements (76 Stat. 1129, 40 U.S.C. 319--319c).
    II. Water and Power. (a) Grants and loans of Federal funds.
    1. Federal Reclamation Program (32 Stat. 388, 43 U.S.C. 391, and 
Acts amendatory or supplementary thereto).
    2. Reservation of Land for Park, Playground, or Community Center (38 
Stat. 727, 43 U.S.C. 569).
    3. Distribution System Loan Program (69 Stat. 244, as amended, 43 
U.S.C. 421a--421d).
    4. Rehabilitation and Betterment Loan Program (63 Stat. 724, as 
amended, 43 U.S.C. 504).
    5. Small Reclamation Project Loan Program (70 Stat. 1044, 43 U.S.C. 
422a--422k).
    6. Assistance to School Districts on Reclamation Projects (62 Stat. 
1108, 43 U.S.C. 385a).
    7. Payment from Colorado River Dam Fund, Boulder Canyon Project (54 
Stat. 776 as amended, 43 U.S.C. 618(c)).
    8. Payment on In Lieu of Taxes Lands Acquired Pursuant to Columbia 
Basin Project Act (57 Stat. 19, 16 U.S.C. 835c-1).
    9. Payment in Lieu of Taxes on Land to Trinity County, California 
(69 Stat. 729).
    10. Saline Water Research Program (66 Stat. 328, as amended, 42 
U.S.C. 1951).

[[Page 380]]

    11. Water User Repayment Obligations on Reclamation Projects (43 
Stat. 703, 43 U.S.C. 501, 62 Stat. 273, 66 Stat. 754).
    12. Water Resources Research Act (78 Stat. 329).
    (b) Sale, lease, grant or other disposition of, or the permission to 
use, Federal property or any interest in such property at less than fair 
market value.
    1. Townsite Disposal on Reclamation Projects (34 Stat. 116, 43 
U.S.C. 566).
    2. Transfer of Federal Property in Coulee Dam, Washington (71 Stat. 
529, 16 U.S.C. 835c note).
    3. Transfer of Federal Property to Boulder City, Nevada (72 Stat. 
1726, 43 U.S.C. 617u note).
    4. Reservation of Land for Park, Playground, or Community Center (38 
Stat. 727, 43 U.S.C. 569).
    5. Saline Water Research Program-Donation of Laboratory Equipment 
(72 Stat. 1793, 42 U.S.C. 1892).
    6. Reclamation Program-Conveyance of Land to School Districts (41 
Stat. 326, 43 U.S.C. 570).
    7. Recreation and Public Purposes Program (44 Stat. 741, as amended, 
43 U.S.C. 869-869a).
    8. Dedication of Land for Public Purposes, Page. Arizona (72 Stat. 
1686, 1688).
    9. Removal of Sand, Gravel, and Other Minerals, and Building 
Materials from Reclamation Project Lands (53 Stat. 1196, as amended, 43 
U.S.C. 387).
    III. Mineral Resources. Grants and loans of Federal funds.
    1. Control of Coal Mine Fires (68 Stat. 1009, 30 U.S.C. 551--558 et 
seq.)
    2. Anthracite Mine Drainage and Flood Control and Sealing of 
Abandoned Mines and Filling Voids (69 Stat. 352, as amended, 30 U.S.C. 
571--576).
    3. Sealing and filling of voids in abandoned coal mines, reclamation 
of surface mine areas, and extinguishing mine fires (79 Stat. 13, as 
amended, 40 U.S.C., App., 205).
    IV. Fish and Wildlife. (a) Grants of Federal funds.
    1. Pittman-Robertson Act (50 Stat. 917, as amended, 16 U.S.C. 669).
    2. Dingell-Johnson Act (64 Stat. 430, 16 U.S.C. 777).
    3. Sharing of Refuge Revenues (49 Stat. 383, as amended, 16 U.S.C. 
715s).
    4. Aid to Alaska (Section 6(e) of the Alaska Statehood Act, 72 Stat. 
340, and Act of February 28, 1944, 58 Stat. 101, 16 U.S.C. 631e).
    5. Anadromous Fish Act of 1965 (79 Stat. 1125, 16 U.S.C. 757a--
757f).
    6. Aid to Education (70 Stat. 1126, 16 U.S.C. 760d).
    7. Jellyfish Act of 1966 (80 Stat. 1149, 16 U.S.C. 1201--1205).
    (b) Sale, lease, grant, or other disposition of, or the permission 
to use, Federal property or any interest in such property at less than 
fair market value.
    1. Cooperative Research and Training Program for Fish and Wildlife 
Resources (74 Stat. 733, 16 U.S.C. 753a)
    2. Protection and Conservation of Bald and Golden Eagles (54 Stat. 
251, as amended 16 U.S.C. 668a).
    3. Wildlife Land Transfers (sec. 8 of Colorado River Storage Project 
Act of 1956, 70 Stat. 110, 43 U.S.C. 620g)
    4. Fish and Wildlife Coordination Act (48 Stat. 401, as amended, 16 
U.S.C. 661--664).
    (c) Furnishing of services of a type for which the recipient would 
otherwise pay.
    1. Lampry Eradication Program (60 Stat. 930, as amended, 16 U.S.C. 
921)
    2. Cooperative Research and Training Program for Fish and Wildlife 
Resources (74 Stat. 733, 16 U.S.C. 753a)
    3. Fish and Wildlife Coordination Act (48 Stat. 401, as amended, 16 
U.S.C. 661 et seq.).
    V. Parks and Territories. (a) Grants and loans of Federal funds.
    1. Payments to School Districts--Yellowstone National Park (62 Stat. 
338, 16 U.S.C. 40a).
    2. Payments in Lieu of Taxes--Grand Teton National Park (64 Stat. 
851, 16 U.S.C. 406d-3).
    3. Historic Preservation Act of 1966 (80 Stat. 915, 16 U.S.C. 47a).
    4. Bureau of Outdoor Recreation (77 Stat. 49, 16 U.S.C. 460l).
    5. Revised Organic Act of the Virgin Islands (68 Stat. 497, as 
amended, 48 U.S.C. 1541--1644).
    6. Guam Rehabilitation Act (77 Stat. 302).
    7. Organic Act of Guam (64 Stat. 384 as amended, 48 U.S.C. 1421--
1425 except sec. 9(a), 48 U.S.C. 1422c(a)).
    8. Guam Agricultural Act (P.L. 88-584, 78 Stat. 926).
    9. Outdoor Recreation Programs (78 Stat. 897, as amended, 16 U.S.C. 
460l--460l-11).
    (b) Sale, lease, grant or other disposition of, or the permission 
to, use Federal property or any interest in such property at less than 
fair market value.
    1. Puerto Rico Federal Relations Act (39 Stat. 954, 48 U.S.C. 748).
    2. Virgin Islands Corporation Act (63 Stat. 350, as amended, 48 
U.S.C. 1407 et seq.).
    3. Territorial Submerged Lands Act (77 Stat. 338, 48 U.S.C. 1701--
1704).
    4. Organic Act of Guam (64 Stat. 392, 48 U.S.C. 1421f(c)).
    (c) Furnishing of services by the Federal Government of a type for 
which the recipient would otherwise pay.
    1. Bureau of Outdoor Recreation (77 Stat. 49, 16 U.S.C. 460l).
    VI. Indian Affairs. (a) Grants and loans of Federal funds.
    1. Menominee County, Wis. Educational Grants (76 Stat. 53).
    (b) Sale, lease, grant, or other disposition of or the permission to 
use, Federal property

[[Page 381]]

or any interest in such property at less than fair market value.
    1. Conveyance of School Property (67 Stat. 41, as amended, 25 U.S.C. 
293a).
    2. Adult Vocational Training Act (70 Stat. 986, 25 U.S.C. 309).
    VII. General. 1. Department Projects under the Public Works 
Acceleration Act (76 Stat. 541, 42 U.S.C. 2641--2643).
    2. Grants for Support of Scientific Research (72 Stat. 1793, 42 
U.S.C. 1891--1893).
    3. Special Use Permits (R.S. sec. 441, as amended, 43 U.S.C. 1457).
    4. Land and Water Conservation Fund Act of 1964 (Pub. L. 88-578, 78 
Stat. 897).

[29 FR 16293, Dec. 4, 1964, as amended at 38 FR 17978, July 5, 1973]

                   Appendix B to Subpart A of Part 17

    The following statutes authorize programs limited to individuals of 
a particular race, color, or national origin
    I. Indians and Alaska Natives. 1. Snyder Act (42 Stat. 208, 25 
U.S.C. 13).
    2. Adult Vocational Training Act (70 Stat. 986, 25 U.S.C. 309).
    3. Vocational and Trade School Act (48 Stat. 986, 25 U.S.C. 471)
    4. Johnson-O'Malley Act (48 Stat. 596, as amended, 25 U.S.C. 452-53)
    5. Revolving Fund for Loan to Indians (48 Stat. 986, 25 U.S.C. 470).
    6. Revolving Fund for Loans to Tribes (77 Stat. 301).
    7. Conveyance of Buildings, Improvements, or Facilities to Tribes 
(70 Stat. 1057, 25 U.S.C. 443a).
    8. Alaska Reindeer Act (50 Stat. 900, 48 U.S.C. 250--250p)
    9. Disposals to Alaskan Natives (44 Stat. 629, 48 U.S.C. 355a and 
355c).
    II. Natives of Certain Territories. 1. Acceptance of Samoan Cession 
Agreement (45 Stat. 1253, as amended, 48 U.S.C. 1661).
    2. Samoan Omnibus Act (76 Stat. 586, 48 U.S.C. 1666)
    3. Guam Organic Act (64 Stat. 387, 48 U.S.C. 1422c).

[29 FR 16293, Dec. 4, 1964]



          Subpart B--Nondiscrimination on the Basis of Handicap

    Authority: 29 U.S.C. 794.

    Source: 47 FR 29546, July 7, 1982, unless otherwise noted.



Sec. 17.200  Purpose.

    The purpose of this subpart is to implement section 504 of the 
Rehabilitation Act of 1973 and its subsequent amendments, which are 
designed to eliminate discrimination on the basis of handicap in any 
program or activity receiving Federal financial assistance.



Sec. 17.201  Application.

    This subpart applies to each recipient of Federal financial 
assistance from the Department of the Interior and to each program or 
activity that receives or benefits from such assistance.



Sec. 17.202  Definitions.

    As used in this subpart, the term:
    (a) The Act means the Rehabilitation Act of 1973, Public Law 93-112, 
as amended by the Rehabilitation Act Amendments of 1974, Public Law 93-
516, and the Rehabilitation, Comprehensive Service, and Developmental 
Disabilities Act of 1978, Public Law 95-602, 29 U.S.C. 700 et seq.
    (b) Section 504 means section 504 of the Act.
    (c) Education of the Handicapped Act means that statute as amended 
by the Education for All Handicapped Children Act of 1975, Public Law 
94-142, 20 U.S.C. 1401 et seq.
    (d) Department means the Department of the Interior.
    (e) Director means the Director of the Office for Equal Opportunity 
of the Department.
    (f) Recipient means any State or its political subdivision, any 
instrumentality of a State or its political subdivision, any public or 
private agency, institution, organization, or other entity, or any 
person to which Federal financial assistance is extended directly or 
through another recipient, including any successor, assignee, or 
transferee of a recipient, but excluding the ultimate beneficiary of the 
assistance.
    (g) Applicant for assistance means one who submits an application, 
request, or plan required to be approved by a Department official or by 
a recipient as a condition to becoming a recipient.
    (h) Federal financial assistance means any grant, cooperative 
agreement, loan, contract (other than a procurement contract or a 
contract of insurance or guaranty), or any other arrangement by which 
the Department provides or otherwise makes available assistance in the 
form of:
    (1) Funds;
    (2) Services of Federal personnel; or

[[Page 382]]

    (3) Real and personal property or any interest in or use of such 
property, including:
    (i) Easements, transfers or leases of such property for less than 
fair market value or for reduced consideration; and
    (ii) Proceeds from a subsequent transfer or lease of such property 
if the Federal share of its fair market value is not returned to the 
Federal Government.
    (i) Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, outdoor recreation and program 
spaces, park sites, developed sites, or other real or personal property 
or interest in such property.
    (j) Handicapped person. (1) Handicapped person means any person who 
(i) has a physical, mental or sensory impairment which substantially 
limits one or more major life activities, (ii) has a record of such an 
impairment, or (iii) is regarded as having such an impairment.
    (2) As used in paragraph (j)(1)(i) of this section, the phrase:
    (i) Physical, mental or sensory impairment means (A) any 
physiological disorder or condition, cosmetic disfigurement, or 
anatomical loss affecting one or more of the following body systems: 
Neurological; musculoskeletal; special sense organs; respiratory, 
including speech organs; cardiovascular; reproductive; digestive; 
genito-urinary; hemic and lymphatic; skin; and endocrine; or (B) any 
mental or psychological disorder, such as mental retardation, organic 
brain syndrome, emotional or mental illness, and specific learning 
disabilities. The term ``physical, mental or sensory impairment'' 
includes, but is not limited to, such diseases and conditions as 
orthopedic, visual, speech, and hearing impairments, cerebral palsy, 
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, 
diabetes, mental retardation, emotional illness, drug addiction, and 
alcoholism.
    (ii) Major life activities means functions such as caring for one's 
self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (iii) Has a record of such an impairment means has a history of, or 
has been misclassified as having a mental, physical or sensory 
impairment that substantially limits one or more major life activities.
    (iv) Is regarded as having an impairment means:
    (A) Has a physical, mental or sensory impairment that does not 
substantially limit major life activities but that is treated by a 
recipient as constituting such a limitation;
    (B) Has a physical, mental or sensory impairment that substantially 
limits major life activities only as a result of the attitudes of others 
toward such impairment; or
    (C) Has none of the impairments defined in paragraph (j)(2)(i) of 
this section but is treated by a recipient as having such an impairment.
    (k) Qualified handicapped person means:
    (1) With respect to employment, a handicapped person who, with 
reasonable accommodation, can perform the essential functions of the job 
in question. Insofar as this part relates to employent of handicapped 
persons, the term ``handicapped person'' does not include any individual 
who is an alcoholic or drug abuser whose current use of alcohol or drugs 
prevents such individual from performing the duties of the job in 
question or whose employment, by reason of such current alcohol or drug 
abuse, would constitute a direct threat to property or the safety of 
others.
    (2) With respect to public preschool, elementary, secondary, or 
adult education services, a handicapped person (i) of an age during 
which nonhandicapped persons are provided such services, (ii) of any age 
during which it is mandatory under State law to provide such services to 
handicapped persons, or (iii) to whom a State is required to provide a 
free appropriate public education under section 612 of the Education of 
the Handicapped Act.
    (3) With respect to postsecondary and vocational education services, 
a handicapped person who meets the academic and technical standards 
requisite to admission or participation in the recipient's education 
program or activity.
    (4) With respect to services, a handicapped person who meets the 
essential

[[Page 383]]

eligibility requirements for the receipt of such services.
    (l) Handicap means any condition or characteristic that renders a 
person a handicapped person as defined in paragraph (j)(2)(i) of this 
section.
    (m) Integrated setting means that whenever possible, programs should 
be available to the handicapped in the same setting and under similar 
circumstances as are available to the nonhandicapped.
    (n) Ultimate beneficiary means one among a class of persons who are 
entitled to benefit from, or otherwise participate in, programs 
receiving Federal financial assistance and to whom the protections of 
this subpart extend. The ultimate beneficiary class may be the general 
public or some narrower group of persons.
    (o) Advisory Council means the Advisory Council on Historic 
Preservation.
    (p) ATBCB means the Architectual and Transportation Barriers 
Compliance Board, an agency empowered by the Architectural Barriers Act 
of 1968 (Pub. L. 90-480) to establish accessibility standards under 
section 502.



Sec. 17.203  Discrimination prohibited.

    (a) General. No qualified handicapped person shall, on the basis of 
handicap, be excluded from participation in, be denied the benefits of, 
or otherwise be subjected to discrimination under any program or 
activity which receives or benefits from Federal financial assistance.
    (b) Discriminatory actions prohibited. (1) A recipient, in providing 
any aid, benefit, or service, may not, directly or through contractual, 
licensing, or other arrangements, on the basis of handicap:
    (i) Deny a qualified handicapped person the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified handicapped person an opportunity to 
participate in or benefit from the aid, benefit, or service that is not 
equal to that afforded others;
    (iii) Provide a qualified handicapped person with an aid, benefit, 
or service that is not as effective as that provided to others;
    (iv) Provide different or separate aids, benefits or services to 
handicapped persons or to any class of handicapped persons unless such 
action is necessary to provide qualified handicapped persons with aid, 
benefits, or services that are as effective as those provided to others;
    (v) Aid or perpetuate discrimination against a qualified handicapped 
person by providing significant assistance to an agency, organization, 
or person that discriminates on the basis of handicap in providing any 
aid, benefit, or services to beneficiaries of the recipient's program;
    (vi) Deny a qualified handicapped person the opportunity to 
participate as a member of planning or advisory boards; or
    (vii) Otherwise limit a qualified handicapped person in the 
enjoyment of any right, privilege, advantage, or opportunity enjoyed by 
others receiving an aid, benefit, or service.
    (2) Aids, benefits, and services, to be equally effective, are not 
required to produce the identical result of level of achievement for 
handicapped and nonhandicapped persons, but must afford handicapped 
persons equal opportunity to obtain the same result, to gain the same 
benefit, or to reach the same level of achievement, in the most 
integrated setting appropriate to the person's needs.
    (3) Despite the existence of separate or different programs or 
activities, a recipient may not deny a qualified handicapped person the 
opportunity to participate in all programs or activities covered by this 
subpart that are not separate or different.
    (4) A recipient may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration (i) that 
have the effect of subjecting qualified handicapped persons to 
discrimination on the basis of handicap, (ii) that have the purpose or 
effect of defeating or substantially impairing accomplishment of the 
objectives of the recipient's program with respect to handicapped 
persons, or (iii) that perpetuate the discrimination of another 
recipient if both recipients are subject to common administrative 
control or are agencies of the same State.

[[Page 384]]

    (5) In determining the site or location of a facility, an applicant 
for assistance or a recipient may not make selections (i) that have the 
effect of excluding handicapped persons from, denying them the benefits 
of, or otherwise subjecting them to discrimination under any program or 
activity that receives or benefits from Federal financial assistance or 
(ii) that have the purpose of effect of defeating or substantially 
impairing the accomplishment of the objectives of the program or 
activity with respect to handicapped persons.
    (6) As used in this section, the aid, benefit, or services provided 
under a program or activity receiving or benefiting from Federal 
financial assistance includes any aid, benefit, or service provided in 
or through a facility that has been constructed, expanded, altered, 
leased or rented, or otherwise acquired, in whole or in part, with 
Federal financial assistance for the period during which the facility is 
used for a purpose for which the Federal financial assistance is 
extended or for another purpose involving the provision of similar 
services or benefits.
    (7) Nothing in this section is to be construed as affecting the 
acquisition of historic sites or wilderness areas.
    (c) Programs limited by Federal law. The exclusion of nonhandicapped 
persons from the benefits of a program limited by Federal statute or 
Executive Order to handicapped persons or the exclusion of a specific 
class of handicapped persons from a program limited by Federal statute 
or Executive Order to a different class of handicapped persons is not 
prohibited by this subpart.
    (d) Recipients shall take appropriate steps to insure that 
communications with their applicants, employees, and beneficiaries are 
available to persons with impaired vision and hearing.



Sec. 17.204  Assurances required.

    (a) Assurances. An applicant for Federal financial assistance for a 
program or activity to which this subpart applies shall provide 
assurances, in accordance with OMB Circular A-102, that the program will 
be operated in compliance with this subpart. An applicant may 
incorporate these assurances by reference in subsequent applications to 
the Department.
    (b) Duration of obligation. (1) In the case of Federal financial 
assistance extended in the form of real property or to provide real 
property or structures on the property, the assurance will obligate the 
recipient or, in the case of a subsequent transfer, the transferee, for 
the period during which the real property or structures are used for the 
purpose for which Federal financial assistance is extended or for 
another purpose involving the provision of similar services or benefits.
    (2) In the case of Federal financial assistance extended to provide 
personal property, the assurance will obligate the recipient for the 
period during which it retains ownership or possession of the property.
    (3) In all other cases the assurance will obligate the recipient for 
the period during which Federal financial assistance is extended.
    (c) Covenants. (1) Where Federal financial assistance is provided in 
the form of real property or interest in the property from the 
Department, the instrument effecting or recording this transfer shall 
contain a covenant running with the land to assure nondiscrimination for 
the period during which the real property is used for a purpose for 
which the Federal financial assistance is extended or for another 
purpose involving the provision of similar services or benefits.
    (2) Where no transfer of property is involved but property is 
purchased or improved with Federal financial assistance, the recipient 
shall agree to include the covenant described in paragraph (c)(1) of 
this section in the instrument effecting or recording any subsequent 
transfer of the property.
    (3) Where Federal financial assistance is provided in the form of 
real property or interest in the property from the Department, the 
covenant shall unless prohibited by the conveyance authority, also 
include a condition coupled with a right to be reserved by the 
Department to revert title to the property in the event of a breach of 
the covenant. If a transferee of real property proposes to mortgage or 
otherwise encumber the real property as security for financing 
construction of

[[Page 385]]

new, or improvement of existing, facilities on the property for the 
purposes for which the property was transferred, the Director may, upon 
request of the transferee and if necessary to accomplish such financing 
and upon such conditions as he or she deems appropriate, agree to 
forbear the exercise of such right to revert title for so long as the 
lien of such mortgage or other encumbrance remains effective.
    (4) Every application by a State or any agency or political 
subdivision of a State to carry out a program involving continuing 
Federal financial assistance shall as a condition to its approval and 
the extension of any Federal financial assistance pursuant to the 
application (i) contain or be accompanied by a statement that the 
program is (or, in the case of a new program, will be) conducted in 
compliance with all requirements imposed by or pursuant to this subpart, 
or a statement of the extent to which it is not, at the time the 
statement is made, so conducted, and (ii) provide or be accompanied by 
provision for such methods of administration for the program as are 
found by the Secretary or his designee to give reasonable assurance that 
the applicant and all recipients of Federal financial assistance under 
such program will comply with all requirements imposed by or pursuant to 
this regulation, including methods of administration which give 
reasonable assurance that any noncompliance indicated in the statement 
under paragraph (c)(4)(i) of this section will be corrected.



Sec. 17.205  Remedial action, voluntary action, and self-evaluation.

    (a) Remedial action. (1) If the Director finds that a recipient has 
discriminated against persons on the basis of handicap in violation of 
section 504 or this subpart, the recipient shall take such remedial 
action as the Director deems necessary to overcome the effects of the 
discrimination.
    (2) Where a recipient is found to have discriminated against persons 
on the basis of handicap in violation of section 504 or this subpart and 
where another recipient exercises control over the recipient that has 
discriminated, the Director, where appropriate, may require either or 
both recipients to take remedial action.
    (3) The Director may, where necessary to overcome the effects of 
discrimination in violation of section 504 or this subpart, require a 
recipient to take remedial action (i) with respect to handicapped 
persons who are no longer participants in the recipient's program but 
who were participants in the program when such discrimination occurred 
or (ii) with respect to handicapped persons who would have been 
participants in the program had the discrimination not occurred.
    (b) Voluntary action. A recipient may take steps, in addition to any 
action that is required by this subpart, to overcome the effects of 
conditions that resulted in limited participation in the recipient's 
program or activity by qualified handicapped persons.
    (c) Self-evaluation. (1) A recipient shall, within one year of the 
effective date of this subpart:
    (i) Evaluate, with the assistance of interested persons, including 
handicapped persons or organizations representing handicapped persons, 
its current policies and practices and the effects thereof that do not 
or may not meet the requirements of this subpart;
    (ii) Modify, after consultation with interested persons, including 
handicapped persons or organizations representing handicapped persons, 
any policies and practices that do not meet the requirements of this 
subpart; and
    (iii) Take, after consultation with interested persons, including 
handicapped persons or organizations representing handicapped persons, 
appropriate remedial steps to eliminate the effects of any 
discrimination that resulted from adherence to these policies and 
practices.
    (2) A recipient that employs fifteen or more persons shall, for at 
least three years following completion of the evaluation required under 
paragraph (c)(1) of this section, maintain on file, make available for 
public inspection, and provide to the Director upon request: (i) A list 
of the interested persons consulted, (ii) a description of areas 
examined and any problems identified, and (iii) a description of any 
modifications made and of any remedial steps taken.

[[Page 386]]

    (3) A recipient, whose application is approved after the effective 
date of this regulation, shall within one year of receipt of the Federal 
financial assistance, be required to comply with the provisions of this 
section.



Sec. 17.206  Designation of responsible employee and adoption of grievance procedures.

    (a) Designation of responsible employee. A recipient that employs 
fifteen or more people shall designate at least one person to coordinate 
efforts to comply with this subpart.
    (b) Adoption of grievance procedures. A recipient that employs 
fifteen or more people shall adopt grievance procedures that incorporate 
appropriate due process standards and that provide for the prompt and 
equitable resolution of complaints alleging any action prohibited by 
this subpart. Such procedures need not be established with respect to 
complaints from applicants for employment or from applicants for 
admission to postsecondary educational institutions.



Sec. 17.207  Notification.

    (a) A recipient that employs fifteen or more people shall take 
appropriate initial and continuing steps to notify participants, 
beneficiaries, applicants, and employees, including those with impaired 
vision or hearing, the mentally retarded, the learning disabled, and any 
other disability that impairs the communication process, and unions or 
professional organizations holding collective bargaining or professional 
agreements with the recipient, that it does not discriminate on the 
basis of handicap in violation of section 504 and this subpart. The 
notification shall state, where appropriate, that the recipient does not 
discriminate in admission or access to, or treatment or employment in, 
its programs and activities. The notification shall also include an 
identification of the responsible employee designated pursuant to 
Sec. 17.206(a). A recipient shall make the initial notification required 
by this paragraph within 90 days of the effective date of this subpart. 
Methods of initial and continuing notification may include the posting 
of notices in recipients' publications, and distribution of memoranda or 
other written communications.
    (b) If a recipient publishes or uses recruitment materials or 
publications containing general information that it makes available to 
participants, beneficiaries, applicants, or employees, it shall include 
in those materials or publications a statement of the policy described 
in paragraph (a) of this section. A recipient may meet the requirement 
of this paragraph either by including appropriate inserts in existing 
materials and publications or by revising and reprinting the materials 
and publications.



Sec. 17.208  Administrative requirements for small recipients.

    The Director may require any recipient with fewer than fifteen 
employees, or any class of such recipients, to comply with Secs. 17.206 
and 17.207, in whole or in part, when the Director finds a violation of 
this subpart or finds that such compliance will not significantly impair 
the ability of the recipient or class of recipients to provide benefits 
or services.



Sec. 17.209  Effect of State or local law or other requirements and effect of employment opportunities.

    (a) The obligation to comply with this subpart is not obviated or 
alleviated by the existence of any State or local law or other 
requirement that, on the basis of handicap, imposes prohibitions or 
limits upon the eligibility of qualified handicapped persons to receive 
services or to practice any occupation or profession.
    (b) The obligation to comply with this subpart is not obviated or 
alleviated because employment opportunities in any occupation or 
profession are or may be more limited for handicapped persons than for 
nonhandicapped persons.



Sec. 17.210  Employment practices.

    (a) General. (1) No qualified handicapped person shall, on the basis 
of handicap, be subjected to discrimination in employment under any 
program or activity to which this subpart applies.

[[Page 387]]

    (2) A recipient that receives assistance under the Education of the 
Handicapped Act shall take positive steps to employ and advance in 
employment qualified handicapped persons in programs assisted under the 
Act.
    (3) A recipient shall make all decisions concerning employment under 
any program or activity to which this subpart applies in a manner which 
insures that discrimination on the basis of handicap does not occur, and 
may not limit, segregate, or classify applicants or employees in any way 
that adversely affects their opportunities or status because of 
handicap.
    (4) A recipient may not participate in a contractual or other 
relationship that has the effect of subjecting qualified handicapped 
applicants or employees to discrimination prohibited by this subpart. 
The relationships referred to in this subparagraph include relationships 
with employment and referral agencies, with labor unions, with 
organizations providing or administering fringe benefits to employees of 
the recipient, and with organizations providing training and 
apprenticeship programs.
    (b) Specific activities. The provisions of this subpart apply to:
    (1) Recruitment, advertising, and the processing of applications for 
employment;
    (2) Hiring, upgrading, promotion, award of tenure, demotion, 
transfer, layoff, termination, right of return from layoff, and 
rehiring;
    (3) Rates of pay or any other form of compensation and changes in 
compensation;
    (4) Job assignments, job classifications, organizational structures, 
position descriptions, lines of progressions, and seniority lists;
    (5) Leaves of absence, sick leave, or any other leave;
    (6) Fringe benefits available by virtue of employment, whether or 
not administered by the recipient;
    (7) Selection and financial support for training, including 
apprenticeship, professional meetings, conferences, and other related 
activities, and selection for leaves of absence to pursue training;
    (8) Employer-sponsored activities, including social or recreation 
programs; and
    (9) Any other term, condition, or privilege of employment, such as 
granting awards, recognition and/or monetary recompense for money-saving 
suggestions or superior performance.
    (c) A recipient's obligation to comply with this subpart is not 
affected by any inconsistent term of any collective bargaining 
agreeement to which it is a party.



Sec. 17.211  Reasonable accommodation.

    (a) A recipient shall make reasonable accommodation to the known 
physical or mental limitations of an otherwise qualified handicapped 
applicant or employee unless the recipient can demonstrate that the 
accommodation would impose an undue hardship on the operation of its 
program.
    (b) Reasonable accommodation may include but is not limited to: (1) 
Making facilities used by employees readily accessible to and usable by 
handicapped persons, and (2) job restructuring, part-time or modified 
work schedules, acquisition or modification of equipment or devices, the 
provision of readers or interpreters, and other similar actions. This 
list is neither all inclusive nor meant to suggest that employers must 
follow all the actions listed.
    (c) In determining pursuant to paragraph (a) of this section whether 
an accommodation would impose an undue hardship on the operation of a 
recipient's program, factors to be considered include:
    (1) The overall size of the recipient's program with respect to 
number of employees, number and type of facilities, and size of budget;
    (2) The type of the recipient's operations, including the 
composition and structure of the recipient's workforce; and
    (3) The nature and cost of the accommodation needed.
    (d) A recipient may not deny any employment opportunity to a 
handicapped employee or applicant if the basis for denial is the need to 
make reasonable accommodation to the physical or

[[Page 388]]

mental limitations of the employee or applicant.



Sec. 17.212  Employment criteria.

    (a) A recipient may not make use of any employment test or other 
selection criterion that screens out or tends to screen out handicapped 
persons or any class of handicapped persons unless it can be 
demonstrated to the Director that (1) the test score or other selection 
criterion, as used by the recipient, is shown to be job-related for the 
position in question, and (2) alternative job-related tests or criteria 
that do not screen out or tend to screen out as many handicapped persons 
are not shown by the Director to be available.
    (b) A recipient shall select and administer tests concerning 
employment so as best to ensure that, when administered to an applicant 
or employee who has a handicap that impairs sensory, manual, or speaking 
skills the test results accurately reflect the applicant's or employee's 
job skills, aptitude, or whatever other factor the test purports to 
measure, rather than reflecting the applicant's or employee's impaired 
sensory, manual, or speaking skills (except where those skills are the 
factors that the test purports to measure).
    (c) All job qualifications must be shown to be directly related to 
the job in question.



Sec. 17.213  Pre-employment inquiries.

    (a) Except as provided in paragraphs (b) and (c) of this section, a 
recipient may not conduct a pre-employment medical examination or make a 
pre-employment inquiry as to whether the applicant is a handicapped 
person or as to the nature or severity of a handicap. A recipient may, 
however, make a pre-employment inquiry into an applicant's ability to 
perform job-related functions.
    (b) When a recipient is taking remedial action to correct the 
effects of past discrimination pursuant to Sec. 17.205(a), when a 
recipient is taking voluntary action to overcome the effects of 
conditions that resulted in limited participation in its federally 
assisted program or activity pursuant to Sec. 17.205(b), or when a 
recipient is taking affirmative action pursuant to section 503 of the 
Act, the recipient may invite applicants for employment to indicate 
whether and to what extent they are handicapped, provided that:
    (1) The recipient states clearly on any written questionnaire used 
for this purpose, or makes clear orally if no written questionnaire is 
used, that the information requested is intended for use solely in 
connection with its remedial action obligations or its voluntary or 
affirmative action efforts.
    (2) The recipient states clearly that the information is being 
requested on a voluntary basis, that it will be kept confidential as 
provided in paragraph (d) of this section, that refusal to provide it 
will not subject the applicant or employee to any adverse treatment, and 
that it will be used only in accordance with this subpart.
    (3) The recipient must communicate with the applicant in a manner 
that will ensure that the applicant understands clearly the reasons for 
the recipient's questions.
    (c) Nothing in this section shall prohibit a recipient from 
conditioning an offer of employment on the results of a medical 
examination conducted prior to the employee's entrance on duty, provided 
that: (1) All entering employees are subjected to such an examination 
regardless of handicap, and (2) the results of such an examination are 
used only in accordance with the requirements of this subpart.
    (d) Information obtained in accordance with this section as to the 
medical condition or history of the applicant shall be collected and 
maintained on separate forms that shall be accorded confidentiality as 
medical records, except that:
    (1) Supervisors and managers may be informed regarding restrictions 
on the work or duties of handicapped persons and regarding necessary 
accommodations;
    (2) First aid and safety personnel may be informed, where 
appropriate, if the condition might require emergency treatment;
    (3) Government officials investigating compliance with the Act shall 
be provided relevant information upon request.

[[Page 389]]



Secs. 17.214-17.215  [Reserved]



Sec. 17.216  Program accessibility.

    No handicapped person shall, because a recipient's facilities are 
inaccessible to or unusable by handicapped persons, be denied the 
benefits of, be excluded from participation in, or otherwise be 
subjected to discrimination under any program or activity to which this 
subpart applies.



Sec. 17.217  Existing facilities.

    (a) Program accessibility. A recipient shall operate each program or 
activity so that the program or activity, when viewed in its entirety, 
is readily accessible to and usable by handicapped persons. This 
paragraph does not require a recipient to make each of its existing 
facilities or every part of a facility accessible to and usable by 
handicapped persons.
    (b) Methods. A recipient may comply with the requirements of 
paragraph (a) of this section through such means as redesigning of 
equipment, reassignment of classes or other services to accessible 
buildings, assignment of aides to beneficiaries, delivery of services at 
alternate accessible sites, alterations of existing facilities and 
construction of new facilities in conformance with the requirements of 
Sec. 17.218, or any other methods that result in making its program or 
activity accessible to handicapped persons. A recipient is not required 
to make structural changes in existing facilities where other methods 
are effective in achieving compliance with paragraph (a) of this 
section. In choosing among available methods for meeting the requirement 
of paragraph (a) of this section, a recipient shall give priority to 
those methods that offer programs and activities to handicapped persons 
in the most integrated setting appropriate.
    (c) Small recipients. If a recipient with fewer than fifteeen 
employees that provides services finds, after consultation with a 
handicapped person seeking its services, that there is no method of 
complying with paragraph (a) of this section other than making a 
significant alteration in its existing facilities, the recipient may, as 
an alternative, refer the handicapped person to to other providers of 
those services whose facilities are accessible.
    (d) Time period. A recipient shall comply with the requirement of 
paragraph (a) of this section within sixty days of the effective date of 
this subpart except that where structural changes in facilities are 
necessary, such changes shall be made as expeditiously as possible, but 
in no event later than three years after the effective date of this 
subpart. New recipients receiving Federal financial assistance shall 
comply with the requirement of paragraph (a) of this section, except 
that where structural changes in facilities are necessary, such changes 
shall be made as expeditiously as possible, but in no event later than 
three years after the date of approval of the application.
    (e) Transition plan. In the event that structural changes to 
facilities are necessary to meet the requirement of paragraph (a) of 
this section a recipient shall develop, within one year of the effective 
date of this subpart, a transition plan setting forth the steps 
necessary to complete such changes. New recipients, receiving financial 
assistance after the effective date of this regulation, shall develop a 
transition plan within one year of receipt of the financial assistance. 
The plan shall be developed with the assistance of interested persons, 
including handicapped persons or organizations representing handicapped 
persons. A copy of the transition plan shall be made available for 
public inspection. The plan shall, at a minimum:
    (1) Identify physical obstacles in the recipient's facilities that 
limit the accessibility of its program or activity to handicapped 
persons;
    (2) Describe in detail the methods that will be used to make the 
facilities accessible and usable;
    (3) Specify the schedule for taking the steps necessary to achieve 
full program accessibility and, if the time period of the transition 
plan is longer than one year, identify steps that will be taken during 
each year of the transition period; and
    (4) Indicate the person responsible for implementation of the plan.
    (f) Notice. The recipient shall adopt and implement procedures to 
insure

[[Page 390]]

that interested persons, including persons with impaired vision or 
hearing, can obtain information as to the existence and location of 
services, activities, and facilities that are accessible to and usable 
by handicapped persons.



Sec. 17.218  New construction.

    (a) Design and construction. Each facility or part of a facility 
constructed by, on behalf of, or for the use of a recipient shall be 
designed and constructed in such manner that the facility or part of the 
facility is readily assessible to and usable by handicapped persons, if 
the construction was commenced after the effective date of this subpart.
    (b) Alteration. Each facility or part of a facility which is altered 
by, on behalf of, or for the use of a recipient after the effective date 
of this subpart, in a manner that affects or could affect the usability 
of the facility or part of the facility shall, to the maximum extent 
feasible, be altered in such manner that the altered portion of the 
facility is readily accessible to and usable by handicapped persons.
    (c) Conformance with Uniform Federal Accessibility Standards. (1) 
Effective as of August 15, 1990, design, construction, or alteration of 
buildings in conformance with sections 3-8 of the Uniform Federal 
Accessibility Standards (UFAS) (appendix A to 41 CFR subpart 101-19.6) 
shall be deemed to comply with the requirements of this section with 
respect to those buildings. Departures from particular technical and 
scoping requirements of UFAS by the use of other methods are permitted 
where substantially equivalent or greater access to and usability of the 
building is provided.
    (2) For purposes of this section, section 4.1.6(1)(g) of UFAS shall 
be interpreted to exempt from the requirements of UFAS only mechanical 
rooms and other spaces that, because of their intended use, will not 
require accessibility to the public or beneficiaries or result in the 
employment or residence therein of persons with physical handicaps.
    (3) This section does not require recipients to make building 
alterations that have little likelihood of being accomplished without 
removing or altering a load-bearing structural member.

[47 FR 29546, July 7, 1982, as amended at 55 FR 28912, July 16, 1990]



Sec. 17.219  [Reserved]



Sec. 17.220  Preschool, elementary, and secondary education.

    This section applies to preschool, elementary, secondary, and adult 
education programs and activities that receive or benefit from Federal 
financial assistance, and to recipients that operate, or that receive or 
benefit from Federal financial assistance for the operation of such 
programs or activities. For the purposes of this section, recipients 
shall comply with the Section 504 requirements promulgated by the 
Department of Education at 34 CFR part 104, subpart D.



Secs. 17.221-17.231  [Reserved]



Sec. 17.232  Postsecondary education.

    This section applies to postsecondary education and activities, 
including postsecondary vocational education programs and activities, 
that receive or benefit from Federal financial assistance and to 
recipients that operate, or that receive or benefit from Federal 
financial assistance for the operation of such programs or activities. 
For the purposes of this section, all recipients shall comply with the 
section 504 requirements promulgated by the Department of Education at 
34 CFR part 104, subpart E.



Secs. 17.233-17.249  [Reserved]



Sec. 17.250  Health, welfare, and social services.

    This subpart applies to health, welfare, and other social service 
programs and activities that receive or benefit from Federal financial 
assistance and to recipients that operate, or that receive or benefit 
from Federal financial assistance for the operation of such programs or 
activities.
    (a) General. In providing health, welfare, or other social services 
or benefits, a recipient may not, on the basis of handicap:
    (1) Deny a qualified handicapped person these benefits or services;

[[Page 391]]

    (2) Afford a qualified handicapped person an opportunity to receive 
benefits or services that is not equal to that offered nonhandicapped 
persons;
    (3) Provide a qualified handicapped person with benefits or services 
that are not as effective, as defined in Sec. 17.203(b), as the benefits 
or services provided to others;
    (4) Provide benefits or services in a manner that limits or has the 
effect of limiting the participation of qualified handicapped persons; 
or
    (5) Provide different or separate benefits or services to 
handicapped persons except where necessary to provide qualified 
handicapped persons with benefits and services that are as effective as 
those provided to others.
    (b) Notice. A recipient that provides notice concerning 
beneficiaries or services, or written material concerning waivers of 
rights or consent to treatment, shall take such steps as are necessary 
to insure that qualified handicapped persons, including those with 
impaired sensory or speaking skills, are not denied effective notice 
because of their handicap.
    (c) Emergency treatment for the hearing impaired. A recipient 
hospital that provides health services or benefits shall establish a 
procedure for effective communication with persons with impaired hearing 
for the purpose of providing emergency health care.
    (d) Auxiliary aids. (1) A recipient that employs fifteen or more 
persons shall provide appropriate auxiliary aids to persons with 
impaired sensory, manual, or speaking skills, where necessary to afford 
such persons an equal opportunity to benefit from the service in 
question.
    (2) The Director may require recipients with fewer than fifteen 
employees to provide auxiliary aids where the provision of aids would 
not significantly impair the ability of the recipient to provide its 
benefits or services.
    (3) For the purpose of this paragraph, auxiliary aids may include 
brailled and taped material, interpreters, visual aids, and other aids 
for persons with impaired hearing or vision.



Sec. 17.251  Drug and alcohol addicts.

    A recipient that operates a general hospital or outpatient facility 
may not discriminate in admission or treatment against a drug or alcohol 
abuser or addict who is suffering from a medical condition, because of 
the person's drug or alcohol abuse or addiction.



Sec. 17.252  Education of institutionalized persons.

    A recipient that operates or supervises a program or activity for 
persons who are institutionalized because of handicap shall ensure that 
each qualified handicapped person, as defined in Sec. 17.202(d)(2), in 
its program or activity is provided an appropriate education, as defined 
in the regulation set forth by the Department of Education at 34 CFR 
104.33(b). Nothing in this section shall be interpreted as altering in 
any way the obligations of recipients under Sec. 17.216.



Secs. 17.253-17.259  [Reserved]



Sec. 17.260  Historic preservation programs.

    (a) Definitions. For the purposes of this section, the term 
``historic preservation programs'' means programs receiving Federal 
financial assistance that has preservation of historic properties as a 
primary purpose.
    Historic properties means those buildings or facilities that are 
listed or eligible for listing in the National Register of Historic 
Places, or such properties designated as historic under a statute of the 
appropriate State or local governmental body.
    Substantial impairment means a permanent alteration that results in 
a significant loss of the integrity of finished materials, design 
quality or special character.
    (b) Obligations. (1) In the case of historic preservation programs, 
program accessibility means that, when viewed in its entirety, a program 
is readily accessible to and usable by qualified handicapped persons. 
This paragraph does not necessarily require a recipient to make each of 
its existing historic properties or every part of an historic property 
accessible to and usable by qualified handicapped persons. Methods of 
achieving program accessibility include:
    (i) Making physical alterations which enable qualified handicapped 
persons

[[Page 392]]

to have access to otherwise inaccessible areas or features of historic 
properties;
    (ii) Using audio-visual materials and devices to depict otherwise 
inaccessible areas or features of historic properties;
    (iii) Assigning persons to guide qualified handicapped persons into 
or through otherwise inaccessible portions of historic properties;
    (iv) Adopting other innovative methods to achieve program 
accessibility.

Because the primary benefit of an historic preservation program is the 
experience of the historic property itself, in taking steps to achieve 
program accessibility, recipients shall give priority to those means 
which make the historic property, or portions thereof, physically 
accessible to handicapped individuals.
    (2) Where program accessibility cannot be achieved without causing a 
substantial impairment of significant historic features, the Secretary 
may grant a waiver of the program accessibility requirement. In 
determining whether program accessibility can be achieved without 
causing a substantial impairment, the Secretary shall consider the 
following factors:
    (i) Scale of property, reflecting its ability to absorb alterations;
    (ii) Use of the property, whether primarily for public or private 
purpose;
    (iii) Importance of the historic features of the property to the 
conduct of the program; and,
    (iv) Cost of alterations in comparison to the increase in 
accessibility.

The Secretary shall periodically review any waiver granted under this 
section and may withdraw it if technological advances or other changes 
so warrant.
    (c) Advisory Council comments. Where the property is federally owned 
or where Federal funds may be used for alterations, the comments of the 
Advisory Council on Historic Preservation shall be obtained when 
required by section 106 of the National Historic Preservation Act of 
1966, as amended (16 U.S.C. 470), and 36 CFR part 800, prior to 
effectuation of structural alterations.

[47 FR 29546, July 7, 1982, as amended at 55 FR 28912, July 16, 1990]



Sec. 17.270  Recreation programs.

    This section applies to recreation programs that receive or benefit 
from Federal financial assistance and to recipients that operate, or 
that receive or benefit from Federal financial assistance for the 
operation of such programs or activities.
    (a) Accessibility in existing recreation facilities. In the case of 
existing recreation facilities, accessibility of programs or activities 
shall mean accessibility of programs or activities when viewed in their 
entirety as provided at Sec. 17.217. When it is not reasonable to alter 
natural and physical features, the following other methods of achieving 
accessibility may include, but are not limited to:
    (1) Reassigning programs to accessible locations.
    (2) Delivering programs or activities at alternate accessible sites 
operated by or available for such use by the recipient.
    (3) Assignments of aides to beneficiaries.
    (4) Construction of new facilities in conformance with the 
requirements of Sec. 17.218.
    (5) Other methods that result in making the program or activity 
accessible to handicapped persons.
    (b) [Reserved]



Secs. 17.271-17.279  [Reserved]



Sec. 17.280  Enforcement procedures.

    The compliance and enforcement provisions applicable to title VI of 
the Civil Rights Act of 1964 apply to this subpart. These procedures are 
found in 43 CFR part 17, subpart A, Secs. 17.5-17.11 and 43 CFR part 4, 
subpart I.



            Subpart C--Nondiscrimination on the Basis of Age

    Authority: Age Discrimination Act of 1975, as amended, 42 U.S.C. 
6101 et seq.; 45 CFR part 90.

    Source: 54 FR 3598, Jan. 25, 1989, unless otherwise noted.

[[Page 393]]

                                 General



Sec. 17.300  What is the purpose of the Age Discrimination Act of 1975?

    The Age Discrimination Act of 1975, as amended, is designed to 
prohibit discrimination on the basis of age in programs and activities 
receiving Federal financial assistance. The Act also permits federally 
assisted programs and activities, and recipients of Federal funds, to 
continue to use certain age distinctions and factors other than age 
which meet the requirements of the Act and these regulations.



Sec. 17.301  What is the purpose of DOI's age discrimination regulations?

    The purpose of these regulations is to set out DOI's policies and 
procedures under the Age Discrimination Act of 1975 and the general age 
discrimination regulations at 45 CFR part 90. The Act and the general 
regulations prohibit discrimination on the basis of age in programs or 
activities receiving Federal financial assistance. The Act and the 
general regulations permit federally assisted programs and activities, 
and recipients of Federal funds, to continue to use age distinctions and 
factors other than age which meet the requirements of the Act and its 
implementing regulations.



Sec. 17.302  To what programs do these regulations apply?

    (a) The Act and these regulations apply to each DOI recipient and to 
each program or activity operated by the recipient which receives or 
benefits from Federal financial assistance provided by DOI.
    (b) The Act and these regulations do not apply to:
    (1) An age distinction contained in that part of a Federal, State or 
local statute or ordinance adopted by an elected, general purpose 
legislative body which:
    (i) Provides any benefits or assistance to persons based on age; or,
    (ii) Establishes criteria for participation in age-related terms; 
or,
    (iii) Describes intended beneficiaries or target groups in age-
related terms; or
    (2) Any employment practice of any employer, employment agency, or 
labor-management joint apprenticeship training program, except for any 
program or activity receiving Federal financial assistance for public 
service employment under the Job Partnership Training Act (29 U.S.C. 
1501 et seq.).



Sec. 17.303  Definitions.

    As used in these regulations, the term:
    (a) Act means the Age Discrimination Act of 1975, as amended (Title 
III of Pub. L. 94-135).
    (b) Action means any act, activity, policy, rule, standard, or 
method of administration; or the use of any policy, rule, standard, or 
method of administration.
    (c) Age means how old a person is, or the number of years from the 
date of a person's birth.
    (d) Age distinction means any action using age or an age-related 
term.
    (e) Age-related term means a word or words which necessarily imply a 
particular age or range of ages (for example, ``children,'' ``adult,'' 
``older persons,'' but not ``student'').
    (f) Discrimination means unlawful treatment based on age.
    (g) DOI means the United States Department of the Interior.
    (h) Federal financial assistance means any grant, entitlement, loan, 
cooperative agreement, contract (other than a procurement contract or a 
contract of insurance or guaranty), or any other arrangement by which 
the agency provides or otherwise makes available assistance in the form 
of:
    (1) Funds;
    (2) Services of Federal personnel;
    (3) Real and personal property or any interest in or use of 
property, including:
    (i) Transfers or leases of property for less than fair market value 
or for reduced consideration; and
    (ii) Proceeds from a subsequent transfer or lease of property if the 
Federal share of its fair market value is not returned to the Federal 
Government.
    (i) FMCS means the Federal Mediation and Conciliation Service.
    (j) Recipient means any State or its political subdivision, any 
instrumentality of a State or its political subdivision, any public or 
private agency,

[[Page 394]]

institution, organization, or other entity, or any person to which 
Federal assistance is extended, directly or through another recipient. 
Recipient includes any successor, assignee, transferee, or subrecipient, 
but excludes the ultimate beneficiary of the assistance.
    (k) Secretary means the Secretary of the Department of the Interior 
or his or her designee.
    (l) Subrecipient means any of the entities in the definition of 
``recipient'' to which a recipient extends or passes on Federal 
financial assistance. A subrecipient is generally regarded as a 
recipient of Federal financial assistance and has all the duties of a 
recipient in these regulations.
    (m) United States means the fifty states, the District of Columbia, 
Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, the 
Commonwealth of the Northern Marianas, and the territories and 
possessions of the United States.

              Standards for Determining Age Discrimination



Sec. 17.310  Rules against age discrimination.

    The rules stated in this section are limited by the exceptions 
contained in Sec. 17.311.
    (a) General rule. No person in the United States shall, on the basis 
of age, be excluded from participation in, be denied the benefits of, or 
be subjected to discrimination under any program or activity receiving 
Federal financial assistance.
    (b) Specific rules. A recipient may not, in any program or activity 
receiving Federal financial assistance, directly or through contractual, 
licensing, or other arrangements, use age distinctions or take any other 
actions which have the effect, on the basis of age, of:
    (1) Excluding individuals from, denying them the benefits of, or 
subjecting them to, discrimination under a program or activity receiving 
Federal financial assistance; or
    (2) Denying or limiting individuals in their opportunity to 
participate in any program or activity receiving Federal financial 
assistance.
    (c) The specific forms of age discrimination listed in paragraph (b) 
of this section do not necessarily constitute a complete list.



Sec. 17.311  Exceptions to the rules against age discrimination.

    (a) Definitions. For purposes of this section, the terms ``normal 
operation'' and ``statutory objective'' shall have the following 
meaning:
    (1) Normal operation means the operation of a program or activity 
without significant changes that would impair its ability to meet its 
objectives.
    (2) Statutory objective means any purpose of a program or activity 
expressly stated in any Federal, State, or local statute or ordinance 
adopted by an elected, general purpose legislative body.
    (b) Exceptions to the rules against age discrimination: Normal 
operation or statutory objective of any program or activity.

A recipient is permitted to take an action otherwise prohibited by 
Sec. 17.310 if the action reasonably takes into account age as a factor 
necessary to the normal operation or the achievement of any statutory 
objective of a program or activity. An action reasonably takes into 
account age as a factor necessary to the normal operation or the 
achievement of any statutory objective of a program or activity, if:
    (1) Age is used as a measure or approximation of one or more other 
characteristics; and
    (2) The other characteristic(s) must be measured or approximated in 
order for the normal operation of the program or activity to continue, 
or to achieve any statutory objective of the program or activity; and
    (3) The other characteristic(s) can be reasonably measured or 
approximated by the use of age; and
    (4) The other characteristic(s) are impractical to measure directly 
on an individual basis.
    (c) Exceptions to the rules against age discrimination: Reasonable 
factors other than age. A recipient is permitted to take an action 
otherwise prohibited by Sec. 17.310 which is based on a factor other 
than age, even though that action may have a disproportionate effect on 
persons of different ages. An action may be based on a factor other than 
age only if the factor

[[Page 395]]

bears a direct and substantial relationship to the normal operation of 
the program or activity or to the achievement of a statutory objective.



Sec. 17.312  Burden of proof.

    The burden of proving that an age distinction or other action falls 
within the exceptions outlined in Secs. 17.311(b) and 17.311(c), is on 
the recipient of Federal financial assistance.



Sec. 17.313  Special benefits for children and the elderly.

    If a recipient operating a program provides special benefits to the 
elderly or to children, such use of age distinctions shall be presumed 
to be necessary to the normal operation of the program, notwithstanding 
the provisions of Sec. 17.311.



Sec. 17.314  Age distinctions contained in DOI regulations.

    Any age distinctions contained in a rule or regulation issued by DOI 
shall be presumed to be necessary to the achievement of a statutory 
objective of the program to which the rule or regulation applies, 
notwithstanding the provisions of Sec. 17.311.



Sec. 17.315  Affirmative action by recipients.

    Even in the absence of a finding of discrimination, a recipient may 
take affirmative action to overcome the effects of conditions that 
resulted in limited participation in the recipient's program or activity 
on the basis of age.

                        Duties of DOI Recipients



Sec. 17.320  General responsibilities.

    Each DOI recipient has primary responsibility to ensure that its 
programs and activities are in compliance with the Act and these 
regulations, and shall take steps to eliminate violations of the Act. A 
recipient also has responsibility to maintain records, provide 
information, and to afford DOI access to its records to the extent DOI 
finds necessary to determine whether the recipient is in compliance with 
the Act and these regulations.



Sec. 17.321  Notice to subrecipients and beneficiaries.

    (a) Where a recipient extends Federal financial assistance from DOI 
to subrecipients, the recipient shall provide the subrecipients written 
notice of their obligations under the Act and these regulations.
    (b) Each recipient shall make necessary information about the Act 
and these regulations available to its program beneficiaries in order to 
inform them of the protections against discrimination provided by the 
Act and these regulations.



Sec. 17.322  Assurance of compliance and recipient assessment of age distinctions.

    (a) Each recipient of Federal financial assistance from DOI shall 
sign a written assurance as specified by DOI that it will comply with 
the Act and these regulations.
    (b) Recipient assessment of age distinctions. (1) As part of a 
compliance review under Sec. 17.330 or complaint investigation under 
Sec. 17.331, DOI may require a recipient employing the equivalent of 15 
or more employees to complete a written self-evaluation, in a manner 
specified by the responsible Department official, of any age distinction 
imposed in its program or activity receiving Federal financial 
assistance from DOI to assess the recipient's compliance with the Act.
    (2) Whenever an assessment indicates a violation of the Act and the 
DOI regulations, the recipient shall take corrective action.



Sec. 17.323  Information collection requirements.

    Each recipient shall:
    (a) Keep records in a form and containing information which DOI 
determines may be necessary to ascertain whether the recipient is 
complying with the Act and these regulations.
    (b) Provide to DOI, upon request, information and reports which DOI 
determines are necessary to ascertain whether the recipient is complying 
with the Act and these regulations.
    (c) Permit reasonable access by DOI to the books, records, accounts, 
and other recipient facilities and sources of

[[Page 396]]

information to the extent DOI determines necessary to ascertain whether 
the recipient is complying with the Act and these regulations.
    (d) The information collection requirements contained in this 
section have been approved by the Office of Management and Budget under 
44 U.S.C. 3501 et seq. and assigned clearance number 1084-0027. The 
information will be collected and used to assess recipients' compliance 
with the Act. Response is required to obtain a benefit.
    (e) Public reporting burden for this information is estimated to 
average 8 hours per response, including the time for reviewing 
instructions, searching existing data sources, gathering and maintaining 
the data needed; and completing and reviewing the collection of 
information. Send comments regarding this burden estimate or any other 
aspect of this collection of information, including suggestions for 
reducing the burden, to: Departmental Clearance Officer, U.S. Department 
of the Interior, 18th and C Streets, NW., Washington, DC 20240, Mail 
Stop 2242; and the Office of Information and Regulatory Affairs, Office 
of Management and Budget, Washington, DC 20503.

         Investigation, Conciliation, and Enforcement Procedures



Sec. 17.330  Compliance reviews.

    (a) DOI may conduct compliance reviews and pre-award reviews of 
recipients or use other similar procedures that will permit it to 
investigate and correct violations of the Act and these regulations. DOI 
may conduct these reviews even in the absence of a complaint against a 
recipient. The reviews may be as comprehensive as necessary to determine 
whether a violation of the Act and these regulations has occurred.
    (b) If a compliance review or pre-award review indicates a violation 
of the Act or these regulations, DOI will attempt to secure voluntary 
compliance with the Act. If voluntary compliance cannot be achieved, DOI 
will arrange for enforcement as described in Sec. 17.335.



Sec. 17.331  Complaints.

    (a) Any person, individually or as a member of a class or on behalf 
of others, may file a complaint with DOI, alleging discrimination 
prohibited by the Act or these regulations based on an action occurring 
on or after July 1, 1979. A complaint must be filed within 180 days from 
the date the complainant had knowledge of the alleged act of 
discrimination. For good cause shown, however, DOI may extend this time 
limit.
    (b) DOI will consider the date a complaint is filed to be the date 
upon which the complaint sufficiently meets the criteria for acceptance 
as described in paragraphs (a) and (c)(1) of this section.
    (c) DOI will attempt to facilitate the filing of complaints wherever 
possible, including taking the following measures:
    (1) Accepting as a sufficient complaint, any written statement which 
identifies the parties involved and the date the complainant first had 
knowledge of the alleged violation, describes generally the action or 
practice complained of, and is signed by the complainant.
    (2) Freely permitting a complainant to add information to the 
complaint to meet the requirements of a sufficient complaint, as 
described in paragraphs (a) and (c)(1) of this section.
    (3) Notifying the complainant and the recipient of their rights and 
obligations under the complaint procedure, including the right to have a 
representative at all stages of the complaint procedure.
    (4) Notifying the complainant and the recipient (or their 
representatives) of their right to contact DOI for information and 
assistance regarding the complaint resolution process.
    (d) DOI will return to the complainant any complaint outside the 
jurisdiction of these regulations, and will state the reason(s) why it 
is outside the jurisdiction of these regulations.



Sec. 17.332  Mediation.

    (a) Referral of complaints for mediation. DOI will promptly refer to 
the FMCS all sufficient complaints that:
    (1) Fall within the jurisdiction of the Act and these regulations 
unless the age distinction complained of is clearly within an exception; 
and,

[[Page 397]]

    (2) Contain all information necessary for further processing.
    (b) Both the complainant and the recipient shall participate in the 
mediation process to the extent necessary to reach an agreement or make 
an informed judgment that an agreement is not possible.
    (c) If the complainant and the recipient reach an agreement, FMCS 
shall prepare a written statement of the agreement and have the 
complainant and the recipient sign it. The FMCS shall send the agreement 
to DOI. DOI, however, retains the right to monitor the recipient's 
compliance with the agreement.
    (d) The FMCS shall protect the confidentiality of all information 
obtained in the course of the mediation process. No mediator shall 
testify in any adjudicative proceeding, produce any document, or 
otherwise disclose any information obtained in the course of the 
mediation process without prior approval of the head of the mediation 
agency.
    (e) DOI will use the mediation process for a maximum of 60 days 
after receiving a complaint. Mediation ends if:
    (1) 60 days elapse from the time the complaint is filed; or
    (2) Prior to the end of that 60 day period, an agreement is reached; 
or
    (3) Prior to the end of that 60 day period, the FMCS determines that 
an agreement cannot be reached.
    (f) The FMCS shall return unresolved complaints to DOI.



Sec. 17.333  Investigation.

    (a) Informal investigation. (1) DOI will investigate complaints that 
are unresolved after mediation or are reopened because of a violation of 
a mediation agreement.
    (2) As part of the initial investigation, DOI will use informal fact 
finding methods, including joint or separate discussions with the 
complainant and recipient to establish the facts, and, if possible, 
settle the complaint on terms that are mutually agreeable to the 
parties. DOI may seek the assistance of any involved State program 
agency.
    (3) DOI will put any agreement in writing and have it signed by the 
parties and an authorized official at DOI.
    (4) The settlement shall not affect the operation of any other 
enforcement effort of DOI, including compliance reviews and 
investigation of other complaints which may involve the recipient.
    (5) The settlement is not a finding of discrimination against a 
recipient.
    (b) Formal investigation. If DOI cannot resolve the complaint 
through informal means, it will develop formal findings through further 
investigation of the complaint. If the investigation indicates a 
violation of these regulations, DOI will attempt to obtain voluntary 
compliance. If DOI cannot obtain voluntary compliance, it will begin 
enforcement as described in Sec. 17.335.



Sec. 17.334  Prohibition against intimidation or retaliation.

    A recipient may not engage in acts of intimidation or retaliation 
against any person who:
    (a) Attempts to assert a right protected by the Act or these 
regulations; or
    (b) Cooperates in any mediation, inquiry, hearing, or other part of 
DOI's investigation, conciliation, and enforcement process.



Sec. 17.335  Compliance procedure.

    (a) DOI may enforce the Act and these regulations through:
    (1) Termination of a recipient's Federal financial assistance from 
DOI under the program or activity involved where the recipient has 
violated the Act or these regulations. The determination of the 
recipient's violation may be made only after a recipient has had an 
opportunity for a hearing on the record before an administrative law 
judge.
    (2) Any other means authorized by law including but not limited to:
    (i) Referral to the Department of Justice for proceedings to enforce 
any rights of the United States or obligations of the recipient created 
by the Act or these regulations.
    (ii) Use of any requirement of, or referral to, any Federal, State 
or local government agency that will have the effect of correcting a 
violation of the Act or these regulations.

[[Page 398]]

    (b) DOI will limit any termination under Sec. 17.335(a)(1) to the 
particular recipient and particular program or activity or part of such 
program or activity DOI finds in violation of these regulations. DOI 
will not base any part of a termination on a finding with respect to any 
program or activity of the recipient that does not receive Federal 
financial assistance from DOI.
    (c) DOI will take no action under paragraph (a) of this section 
until:
    (1) The Secretary or his/her designee has advised the recipient of 
its failure to comply with the Act and these regulations and has 
determined that voluntary compliance cannot be obtained.
    (2) Thirty days have elapsed after the Secretary or his/her designee 
has sent a written report of the circumstances and grounds of the action 
to the committees of Congress having legislative jurisdiction over the 
Federal program or activity involved. The Secretary or his/her designee 
will file a report whenever any action is taken under paragraph (a) of 
this section.
    (d) DOI also may defer granting new Federal financial assistance 
from DOI to a recipient when a hearing under Sec. 17.335(a)(l) is 
initiated.
    (1) New Federal financial assistance from DOI includes all 
assistance for which DOI requires an application or approval, including 
renewal or continuation of existing activities or authorization of new 
activities, during the deferral period. New Federal financial assistance 
from DOI does not include increases in funding as a result of changed 
computation of formula awards or assistance approved prior to the 
beginning of a hearing under Sec. 17.335(a)(1).
    (2) DOI will not begin a deferral until the recipient has received a 
notice of an opportunity for a hearing under Sec. 17.335(a)(1). DOI will 
not continue a deferral for more than 60 days unless a hearing has begun 
within that time or the time for beginning the hearing has been extended 
by mutual consent of the recipient and the Secretary. DOI will not 
continue a deferral for more than 30 days after the close of the 
hearing, unless the hearing results in a finding against the recipient.



Sec. 17.336  Hearings, decisions, post-termination proceedings.

    Certain DOI procedural provisions applicable to title VI of the 
Civil Rights Act of 1964 apply to DOI's enforcement of these 
regulations. The procedural provisions of DOI's Title VI regulations can 
be found at 43 CFR 17.8 through 17.10 and 43 CFR part 4, subpart I.



Sec. 17.337  Remedial action by recipients.

    Where DOI finds a recipient has discriminated on the basis of age, 
the recipient shall take any remedial action that DOI may require to 
overcome the effects of the discrimination. If another recipient 
exercises control over the recipient that has discriminated, DOI may 
require both recipients to take remedial action.



Sec. 17.338  Alternate funds disbursal procedure.

    (a) When DOI withholds funds from a recipient under these 
regulations, where permissible the Secretary may disburse the withheld 
funds directly to an alternate recipient under the applicable 
regulations of the bureau or office providing the assistance.
    (b) The Secretary will require any alternative recipient to 
demonstrate:
    (1) The ability to comply with these regulations; and
    (2) The ability to achieve the goals of the Federal statute 
authorizing the program or activity.



Sec. 17.339  Exhaustion of administrative remedies.

    (a) A complainant may file a civil action following the exhaustion 
of administrative remedies under the Act. Administrative remedies are 
exhausted if:
    (1) 180 days have elapsed since the complainant filed the complaint 
and DOI has made no finding with regard to the complaint; or
    (2) DOI issues any finding in favor of the recipient.
    (b) If DOI fails to make a finding within 180 days or issues a 
finding in favor of the recipient, DOI will:
    (1) Promptly advise the complainant of this fact;
    (2) Advise the complainant of his or her right to bring a civil 
action for injunctive relief; and

[[Page 399]]

    (3) Inform the complainant:
    (i) That he or she may bring a civil action only in a United States 
district court for the district in which the recipient is found or 
transacts business;
    (ii) That a complainant prevailing in a civil action has the right 
to be awarded the costs of the action, including reasonable attorney's 
fees, but that the complainant must demand these costs in the complaint;
    (iii) That before commencing the action the complainant shall give 
30 days notice by registered mail to the Secretary of HHS, the Attorney 
General of the United States, the Secretary of the Interior, and the 
recipient;
    (iv) That the notice must state: the alleged violation of the Act; 
the relief requested; the court in which the complainant is bringing the 
action; and whether or not attonrey's fees are demanded in the event the 
complainant prevails; and
    (v) That the complainant may not bring an action if the same alleged 
violation of the Act by the same recipient is the subject of a pending 
action in any court of the United States.

Subpart D [Reserved]



Subpart E--Enforcement of Nondiscrimination on the Basis of Handicap in 
   Programs or Activities Conducted by the Department of the Interior

    Authority: 29 U.S.C. 794.

    Source: 52 FR 6553, Mar. 5, 1987, unless otherwise noted.



Sec. 17.501  Purpose.

    The purpose of this part is to effectuate section 119 of the 
Rehabilitation, Comprehensive Services, and Developmental Disabilities 
Amendments of 1978, which amended section 504 of the Rehabilitation Act 
of 1973 to prohibit discrimination on the basis of handicap in programs 
or activities conducted by Executive agencies or the U.S. Postal 
Service.



Sec. 17.502  Application.

    This part applies to all programs and activities conducted and/or 
administered and/or maintained by the agency except for programs or 
activities conducted outside the United States that do not involve 
handicapped persons in the United States.



Sec. 17.503  Definitions.

    For purposes of this part, the term--
    Agency means Department of the Interior.
    Auxiliary aids means services or devices that enable persons with 
impaired sensory, manual, or speaking skills to have an equal 
opportunity to participate in, and enjoy the benefits of, programs or 
activities conducted by the agency. For example, auxiliary aids useful 
for persons with impaired vision include readers, Brailled materials, 
audio recordings, and other similar services and devices. Auxiliary aids 
useful for persons with impaired hearing include telephone handset 
amplifiers, telephones compatible with hearing aids, telecommunication 
devices for deaf persons (TDD's), interpreters, notetakers, written 
materials, and other similar services and devices.
    Complete complaint means a written statement that contains the 
complainant's name and address and describe the agency's actions in 
sufficient detail to inform the agency of the nature and date of the 
alleged violation of section 504. It shall be signed by the complainant 
or by someone authorized to do so on his or her behalf. Complainant or 
behalf of classes or third parties shall describe or identify (by name, 
if possible) the alleged victims of discrimination.
    Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, outdoor recreation and program 
spaces, park sites, developed sites, rolling stock or other conveyances, 
or other real or personal property.
    Handicapped person means any person who has a physical, mental, or 
sensory impairment that substantially limits one or more major life 
activities, has a record of such an impairment, or is regarded as having 
such an impairment. As used in this definition, the phrase:
    (1) Physical, mental, or sensory impairment includes--
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of

[[Page 400]]

the following body systems: Neurological; musculoskeletal; special sense 
organs; respiratory, including speech organs; cardiovascular; 
reproductive; digestive; genitourinary; hemic and lymphatic; skin; and 
endocrine; or
    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities. The term ``physical, mental or sensory 
impairment'' includes, but is not limited to, such diseases and 
conditions as orthopedic, visual, speech, and hearing impairments, 
cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, 
cancer, heart disease, diabetes, mental retardation, emotional illness, 
drug addiction, and alcoholism.
    (2) Major life activities includes functions such as caring for 
one's self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (3) Has a record of such impairment means has a history of, or has 
been misclassified as having, a mental, physical, or sensory impairment 
that substantially limits one or more major life activities.
    (4) Is regarded as having an impairment means--
    (i) Has a physical, mental, or sensory impairment that does not 
substantially limit major life activities but is treated by the agency 
as constituting such a limitation;
    (ii) Has a physical, mental, or sensory impairment that 
substantially limits major life activities only as a result of the 
attitudes of others toward such impairment; or
    (iii) Has none of the impairments defined in paragraph (1) of this 
definition but is treated by the agency as having such an impairment.
    Historic preservation programs means programs conducted by the 
agency that have preservation of historic properties as a primary 
purpose.
    Historic properties means those properties that are listed or 
eligible for listing in the National Register of Historic Places or 
properties designated as historic under a statute of the appropriate 
state or local government body.
    Qualified handicapped person means--
    (1) With respect to preschool, elementary, or secondary education 
services provided by the agency, a handicapped person who is a member of 
a class of persons otherwise entitled by statute, regulation, or agency 
policy to receive education services from the agency.
    (2) With respect to any other agency program or activity under which 
a person is required to perform services or to achieve a level of 
accomplishment, a handicapped person who meets the essential eligibility 
requirements and who can achieve the purpose of the program or activity 
without modifications in the program or activity that the agency can 
demonstrate would result in a fundamental alteration in its nature; or
    (3) With respect to any other program or activity, a handicapped 
person who meets the essential eligibility requirements for 
participation in, or receipt of benefits from that program or activity.
    (4) Qualified handicapped person is defined for purposes of 
employment in 29 CFR 1613.702(f), which is made applicable to this part 
by Sec. 17.540.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the 
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617), 
and the Rehabilitation, Comprehensive Services, and Developmental 
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955). As used 
in this part, section 504 applies only to programs or activities 
conducted by Executive agencies and not to federally assisted programs.
    Substantial impairment means a significant loss of the integrity of 
finished materials, design quality, or special character resulting from 
a permanent alteration.



Secs. 17.504-17.509  [Reserved]



Sec. 17.510  Self-evaluation.

    (a) The agency shall, within one year of the effective date of this 
part, evaluate, with the assistance of interested persons, including 
handicapped persons or organizations representing handicapped persons, 
its current policies and practices, and the effects thereof, that

[[Page 401]]

do not or may not meet the requirements of this part, and, to the extent 
modification of any such policies and practices is required, the agency 
shall proceed to make the necessary modifications.
    (b) The agency shall, for at least three years following completion 
of the evaluation required under paragraph (a) of this section, maintain 
on file and make available for public inspection--
    (1) A list of the interested persons consulted;
    (2) A description of areas examined and any problems identified; and
    (3) A description of any modifications made.



Sec. 17.511  Notice.

    The agency shall make available to employees, applicants, 
participants, beneficiaries, and other interested persons such 
information regarding the provisions of this part and its applicability 
to the programs or activities conducted by the agency, and make such 
information available to them in such manner as the agency head finds 
necessary to apprise such persons of the protections against 
discrimination assured them by section 504 and this regulation.



Secs. 17.512-17.529  [Reserved]



Sec. 17.530  General prohibitions against discrimination.

    (a) No qualified handicapped person shall, on the basis of handicap, 
be excluded from participation in, be denied the benefits of, or 
otherwise be subjected to discrimination under any program or activity 
conducted by the agency.
    (b)(1) The agency, in providing any aid, benefit, or service, may 
not, directly or through contractual, licensing, or other arrangements, 
on the basis of handicap--
    (i) Deny a qualified handicapped person the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified handicapped person an opportunity to 
participate in or benefit from the aid, benefit or service that is not 
equal to that afforded others;
    (iii) Provide a qualified handicapped person with an aid, benefit, 
or service that is not as effective in affording equal opportunity to 
obtain the same result, to gain the same benefit, or to reach the same 
level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
handicapped persons or to any class of handicapped persons than is 
provided to others unless such action is necessary to provide qualified 
handicapped persons with aid, benefits, or services that are as 
effective as those provided to others;
    (v) Deny a qualified handicapped person the opportunity to 
participate as a member of planning or advisory boards; or
    (vi) Otherwise limit a qualified handicapped person in the enjoyment 
of any right, privilege, advantage, or opportunity enjoyed by others 
receiving the aid, benefit, or service.
    (2) The agency may not deny a qualified handicapped person the 
opportunity to participate in programs or activities that are not 
separate or different, despite the existence of permissibly separate or 
different programs or activities.
    (3) The agency may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration the purpose 
or effect of which would--
    (i) Subject qualified handicapped persons to discrimination on the 
basis of handicap; or
    (ii) Defeat or substantially impair accomplishment of the objectives 
of a program or activity with respect to handicapped persons.
    (4) The agency may not, in determining the site or location of a 
facility, make selections the purpose or effect of which would--
    (i) Exclude handicapped persons from, deny them the benefits of, or 
otherwise subject them to discrimination under any program or activity 
conducted by the agency; or
    (ii) Defeat or substantially impair the accomplishment of the 
objectives of a program or activity with respect to handicapped persons.
    (5) The agency, in the selection of procurement contractors, may not 
use

[[Page 402]]

criteria that subject qualified handicapped persons to discrimination on 
the basis of handicap.
    (6) The agency may not administer a licensing or certification 
program in a manner that subjects qualified handicapped persons to 
discrimination on the basis of handicap, nor may the agency establish 
requirements for the programs or activities of licensees or certified 
entities that subject qualified handicapped persons to discrimination on 
the basis of handicap. However, the programs or activities of entities 
that are licensed or certified by the agency are not, themselves, 
covered by this part.
    (c) The exclusion of nonhandicapped persons from the benefits of a 
program limited by Federal statute or Executive order to handicapped 
persons or the exclusion of a specific class of handicapped persons from 
a program limited by Federal statute or Executive order to a different 
class of handicapped persons is not prohibited by this part.
    (d) The agency shall administer programs or activities in the most 
integrated setting appropriate to the needs of qualified handicapped 
persons.



Secs. 17.531-17.539  [Reserved]



Sec. 17.540  Employment.

    No qualified handicapped person shall, on the basis of handicap, be 
subjected to discrimination in employment under any program or activity 
conducted by the agency. The definitions, requirements and procedures of 
section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), as 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1613, shall apply to employment in federally conducted programs or 
activities.



Secs. 17.541-17.548  [Reserved]



Sec. 17.549  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec. 17.550, no qualified 
handicapped person shall, because the agency's facilities are 
inaccessible to or unusable by handicapped persons, be denied the 
benefits of, be excluded from participation in, or otherwise be 
subjected to discrimination under any program or activity conducted by 
the agency.



Sec. 17.550  Program accessibility: Existing facilities.

    (a) General. The agency shall operate each program or activity so 
that the program or activity, when viewed in its entirety, is readily 
accessible to and usable by handicapped persons. This paragraph does 
not--
    (1) Necessarily require the agency to make each of its existing 
facilities or every part of a facility accessible to and usable by 
handicapped persons;
    (2) In the case of historic preservation programs, require the 
agency to take any action that would result in a substantial impairment 
of significant historic features of an historic property; or
    (3) Require the agency to take any action that it can demonstrate 
would result in a fundamental alteration in the nature of a program or 
activity or in undue financial and administrative burdens. In those 
circumstances where agency personnel believe that the proposed action 
would fundamentally alter the program or activity or would result in 
undue financial and administrative burdens, the agency has the burden of 
proving that compliance with Sec. 17.550(a) would result in such an 
alteration or burdens. The decision that compliance would result in such 
alteration or burdens must be made by the agency head or his or her 
designee after considering all agency resources available for use in the 
funding and operation of the conducted program or activity, and must be 
accompanied by a written statement of the reasons for reaching that 
conclusion. If an action would result in such an alteration or such 
burdens, the agency shall take any other action that would not result in 
such an alteration or such burdens but would nevertheless ensure that 
handicapped persons receive the benefits and services of the program or 
activity.
    (b) Methods--(1) General. The agency may comply with the 
requirements of this section through such means as redesign of 
equipment, reassignment of services to accessible locations, assignment 
of aides to beneficiaries, home visits, delivery of services at 
alternate

[[Page 403]]

accessible sites, alteration of existing facilities and construction of 
new facilities, use of accessible rolling stock, or any other methods 
that result in making its programs or activities readily accessible to 
and usable by handicapped persons. The agency is not required to make 
structural changes in existing facilities where other methods are 
effective in achieving compliance with this section. The agency, in 
making alterations to existing buildings, shall meet accessibility 
requirements to the extent compelled by the Architectural Barriers Act 
of 1968, as amended (42 U.S.C. 4151-4157) and any regulations 
implementing it. In choosing among available methods for meeting the 
requirements of this section, the agency shall give priority to those 
methods that offer programs and activities to qualified handicapped 
persons in the most integrated setting appropriate.
    (2) Historic preservation programs. In meeting the requirements of 
paragraph (a) of this section in historic preservation programs, the 
agency shall give priority to methods that provide physical access to 
handicapped persons. In cases where a physical alteration to an historic 
property is not required because of paragraph (a)(2) or (a)(3) of this 
section, alternative, methods of achieving program accessibility 
include--
    (i) Using audio-visual materials and devices to depict those 
portions of an historic property that cannot otherwise be made 
accessible.
    (ii) Assigning persons to guide handicapped persons into or through 
portions of historic properties that cannot otherwise be made 
accessible; or
    (iii) Adopting other innovative methods.
    (3) Recreation programs. In meeting the requirements of paragraph 
(a) in recreation programs, the agency shall provide that the program or 
activity, when viewed in its entirety, is readily accessible to and 
usable by handicapped persons. When it is not reasonable to alter 
natural and physical features, accessibility may be achieved by 
alternative methods as noted in paragraph (b)(1) of this section.
    (c) Time period for compliance. The agency shall comply with the 
obligations established under this section within sixty (60) days of the 
effective date of this part except that where structural changes in 
facilities are necessary, such changes shall be made within three years 
of the effective date of this part, but in any event as expeditiously as 
possible.
    (d) Transition plan. In the event that structural changes to 
facilities are necessary to achieve program accessibility, the agency 
shall develop, within six months of the effective date of this part, a 
transition plan setting forth the steps necessary to complete such 
changes. The plan shall be developed with the assistance of interested 
persons, including handicapped persons or organizations representing 
handicapped persons. A copy of the transition plan shall be made 
available for public inspection. The plan shall, at a minimum--
    (1) Identify physical obstacles in the agency's facilities that 
limit the accessibility of its programs or activities to handicapped 
persons;
    (2) Describe in detail the methods that will be used to make the 
facilities accessible;
    (3) Specify the schedule for taking the steps necessary to achieve 
compliance with this section and, if the time period of the transition 
plan is longer than one year, identify steps that will be taken during 
each year of the transition period;
    (4) Indicate the official responsible for implementation of the 
plan; and
    (5) Identify the persons or groups with whose assistance the plan 
was prepared.



Sec. 17.551  Program accessibility: New construction and alterations.

    Each building or part of a building that is constructed or altered 
by, on behalf of, or for the use of the agency shall be designed, 
constructed, or altered so as to be readily accessible to and usable by 
handicapped persons. The definitions, requirements, and standards of the 
Architectural Barriers Act (42 U.S.C. 4151-4157) as established in 41 
CFR 101-19.600 to 101-19.607 apply to buildings covered by this section.

[[Page 404]]



Secs. 17.552-17.559  [Reserved]



Sec. 17.560  Communications.

    (a) The agency shall take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public.
    (1) The agency shall furnish appropriate auxiliary aids where 
necessary to afford a handicapped person an equal opportunity to 
participate in, and enjoy the benefits of, a program or activity 
conducted by the agency.
    (i) In determining what type of auxiliary aid is necessary, the 
agency shall give primary consideration to the requests of the 
handicapped person.
    (ii) The agency need not provide individually prescribed devices, 
readers for personal use or study, attendant services, or other devices 
of a personal nature.
    (2) Where the agency communicate with applicants and beneficiaries 
by telephone, telecommunications devices for deaf persons (TDD's) or 
equally effective telecommunication systems shall be used.
    (b) The agency shall ensure that interested persons, including 
persons with impaired vision or hearing, can obtain information as to 
the existence and location of accessible services, activities, and 
facilities.
    (c) The agency shall provide signage at a primary entrance to each 
of its inaccessible facilities, directing users to a location at which 
they can obtain information about accessible facilities. The 
international symbol for accessibility shall be used at each primary 
entrance of an accessible facility.
    (d) This section does not require the agency to take any action that 
it can demonstrate would result in a fundamental alteration in the 
nature of a program or activity or in undue financial and administrative 
burdens. In those circumstances where agency personnel believe that the 
proposed action would fundamentally alter the program or activity or 
would result in undue financial and administrative burdens, the agency 
has the burden of proving that compliance with Sec. 17.560 would result 
in such alteration or burdens. The decision that compliance would result 
in such alteration or burdens must be made by the agency head or his or 
her designee after considering all agency resources available for use in 
the funding and operation of the conducted program or activity, and must 
be accompanied by a written statement of the reasons for reaching that 
conclusion. If an action required to comply with this section would 
result in such alteration or such burdens, the agency shall take any 
other action that would not result in such an alteration or such burdens 
but would nevertheless ensure that, to the maximum extent possible, 
handicapped persons receive the benefits and services of the program or 
activity.



Secs. 17.561-17.569  [Reserved]



Sec. 17.570  Compliance procedures.

    (a) Except as provided in paragraph (b) of this section, this 
section applies to all allegations of discrimination on the basis of 
handicap in programs or activities conducted by the agency.
    (b) The agency shall process complaints alleging violations of 
section 504 with respect to employment according to the procedures 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29 
U.S.C. 791).
    (c) Responsibility for implementation and operation of this section 
shall be vested in the Director of the Office for Equal Opportunity. 
Complaints filed pursuant to this section shall be delivered or mailed 
to the Director, Office for Equal Opportunity, U.S. Department of the 
Interior, Washington, DC 20240. If any agency official other than the 
Director of the Office for Equal Opportunity receives a complaint, he or 
she shall immediately forward the complaint to the agency's Director of 
the Office for Equal Opportunity.
    (d)(1) The agency shall accept and investigate all complete 
complaints for which it has jurisdiction. All complete complaints must 
be filed within 180 days of the alleged act of discrimination. The 
agency may extend this time period for good cause.
    (2) If the agency Director for the Office of Equal Opportunity 
receives a complaint that is not complete, he or

[[Page 405]]

she shall notify the complainant, within thirty (30) days of receipt of 
the incomplete complaint, that additional information is needed. If the 
complainant fails to complete and submit the requested information 
within thirty (30) days of receipt of this notice the agency Director of 
the Office for Equal Opportunity shall dismiss the complaint without 
prejudice.
    (3) The agency Director of the Office for Equal Opportunity may 
require agency employees to cooperate and participate in the 
investigation and resolution of complaints. Employees who are required 
to cooperate and participate in any investigation under this section 
shall do so as part of their official duties.
    (e) If the agency receives a complaint over which it does not have 
jurisdiction, it shall promptly notify the complainant and shall refer 
the complaint to the appropriate government entity.
    (f) The agency shall notify the Architectural and Transportation 
Barriers Compliance Board upon receipt of any complaint alleging that a 
building or facility that is subject to the Architectural Barriers Act 
of 1968, as amended (42 U.S.C. 4151-4157), or section 502 of the 
Rehabilitation Act of 1973, as amended (29 U.S.C. 792), is not readily 
accessible to and usable by handicapped persons.
    (g) Within 180 days of the receipt of a complete complaint for which 
it has jurisdiction, the agency shall notify the complainant of the 
results of the investigation in a letter containing--
    (1) Findings of fact and conclusions of law:
    (2) A description of a remedy for each violation found; and
    (3) A notice of the right to appeal.
    (h) Appeals of the findings of fact and conclusions of law or 
remedies must be filed by the complainant within ninety (90) days of 
receipt from the agency of the letter required by Sec. 17.570(g). The 
agency may extend this time for good cause.
    (i) Timely appeals shall be accepted and processed by the Under 
Secretary.
    (j) The agency shall notify the complainant of the results of the 
appeal within sixty (60) days of the receipt of the request. If the 
agency determines that it needs additional information from the 
complainant, it shall have sixty (60) days from the date it receives the 
additional information to make its determination on the appeal.
    (k) The time limits cited in paragraphs (g) and (j) of this may be 
extended for an individual case when the Under Secretary determines that 
there is good cause, based on the particular circumstances of that case, 
for the extension.
    (l) The agency may delegate its authority for conducting complaint 
investigations to other Federal agencies, except that the authority for 
making the final determination may not be delegated.



PART 18--NEW RESTRICTIONS ON LOBBYING--Table of Contents




                           Subpart A--General

Sec.
18.100  Conditions on use of funds.
18.105  Definitions.
18.110  Certification and disclosure.

                 Subpart B--Activities by Own Employees

18.200  Agency and legislative liaison.
18.205  Professional and technical services.
18.210  Reporting.

            Subpart C--Activities by Other Than Own Employees

18.300  Professional and technical services.

                  Subpart D--Penalties and Enforcement

18.400  Penalties.
18.405  Penalty procedures.
18.410  Enforcement.

                          Subpart E--Exemptions

18.500  Secretary of Defense.

                        Subpart F--Agency Reports

18.600  Semi-annual compilation.
18.605  Inspector General report.

Appendix A to Part 18--Certification Regarding Lobbying
Appendix B to Part 18--Disclosure Form to Report Lobbying

    Authority: Sec. 319, Pub. L. 101-121 (31 U.S.C. 1352); 5 U.S.C. 301.

    Cross Reference: See also Office of Management and Budget notice 
published at 54 FR 52306, December 20, 1989.

[[Page 406]]


    Source: 55 FR 6737, 6753, Feb. 26, 1990, unless otherwise noted.



                           Subpart A--General



Sec. 18.100  Conditions on use of funds.

    (a) No appropriated funds may be expended by the recipient of a 
Federal contract, grant, loan, or cooperative ageement to pay any person 
for influencing or attempting to influence an officer or employee of any 
agency, a Member of Congress, an officer or employee of Congress, or an 
employee of a Member of Congress in connection with any of the following 
covered Federal actions: the awarding of any Federal contract, the 
making of any Federal grant, the making of any Federal loan, the 
entering into of any cooperative agreement, and the extension, 
continuation, renewal, amendment, or modification of any Federal 
contract, grant, loan, or cooperative agreement.
    (b) Each person who requests or receives from an agency a Federal 
contract, grant, loan, or cooperative agreement shall file with that 
agency a certification, set forth in appendix A to this part, that the 
person has not made, and will not make, any payment prohibited by 
paragraph (a) of this section.
    (c) Each person who requests or receives from an agency a Federal 
contract, grant, loan, or a cooperative agreement shall file with that 
agency a disclosure form, set forth in appendix B to this part, if such 
person has made or has agreed to make any payment using nonappropriated 
funds (to include profits from any covered Federal action), which would 
be prohibited under paragraph (a) of this section if paid for with 
appropriated funds.
    (d) Each person who requests or receives from an agency a commitment 
providing for the United States to insure or guarantee a loan shall file 
with that agency a statement, set forth in appendix A to this part, 
whether that person has made or has agreed to make any payment to 
influence or attempt to influence an officer or employee of any agency, 
a Member of Congress, an officer or employee of Congress, or an employee 
of a Member of Congress in connection with that loan insurance or 
guarantee.
    (e) Each person who requests or receives from an agency a commitment 
providing for the United States to insure or guarantee a loan shall file 
with that agency a disclosure form, set forth in appendix B to thisd 
part, if that person has made or has agreed to make any payment to 
influence or attempt to influence an officer or employee of any agency, 
a Member of Congress, an officer or employee of Congress, or an employee 
of a Member of Congress in connection with that loan insurance or 
guarantee.



Sec. 18.105  Definitions.

    For purposes of this part:
    (a) Agency, as defined in 5 U.S.C. 552(f), includes Federal 
executive departments and agencies as well as independent regulatory 
commissions and Government corporations, as defined in 31 U.S.C. 
9101(1).
    (b) Covered Federal action means any of the following Federal 
actions:
    (1) The awarding of any Federal contract;
    (2) The making of any Federal grant;
    (3) The making of any Federal loan;
    (4) The entering into of any cooperative agreement; and,
    (5) The extension, continuation, renewal, amendment, or modification 
of any Federal contract, grant, loan, or cooperative agreement.

Covered Federal action does not include receiving from an agency a 
commitment providing for the United States to insure or guarantee a 
loan. Loan guarantees and loan insurance are addressed independently 
within this part.
    (c) Federal contract means an acquisition contract awarded by an 
agency, including those subject to the Federal Acquisition Regulation 
(FAR), and any other acquisition contract for real or personal property 
or services not subject to the FAR.
    (d) Federal cooperative agreement means a cooperative agreement 
entered into by an agency.
    (e) Federal grant means an award of financial assistance in the form 
of money, or property in lieu of money, by the Federal Government or a 
direct

[[Page 407]]

appropriation made by law to any person. The term does not include 
technical assistance which provides services instead of money, or other 
assistance in the form of revenue sharing, loans, loan guarantees, loan 
insurance, interest subsidies, insurance, or direct United States cash 
assistance to an individual.
    (f) Federal loan means a loan made by an agency. The term does not 
include loan guarantee or loan insurance.
    (g) Indian tribe and tribal organization have the meaning provided 
in section 4 of the Indian Self-Determination and Education Assistance 
Act (25 U.S.C. 450B). Alaskan Natives are included under the definitions 
of Indian tribes in that Act.
    (h) Influencing or attempting to influence means making, with the 
intent to influence, any communication to or appearance before an 
officer or employee or any agency, a Member of Congress, an officer or 
employee of Congress, or an employee of a Member of Congress in 
connection with any covered Federal action.
    (i) Loan guarantee and loan insurance means an agency's guarantee or 
insurance of a loan made by a person.
    (j) Local government means a unit of government in a State and, if 
chartered, established, or otherwise recognized by a State for the 
performance of a governmental duty, including a local public authority, 
a special district, an intrastate district, a council of governments, a 
sponsor group representative organization, and any other instrumentality 
of a local government.
    (k) Officer or employee of an agency includes the following 
individuals who are employed by an agency:
    (1) An individual who is appointed to a position in the Government 
under title 5, U.S. Code, including a position under a temporary 
appointment;
    (2) A member of the uniformed services as defined in section 101(3), 
title 37, U.S. Code;
    (3) A special Government employee as defined in section 202, title 
18, U.S. Code; and,
    (4) An individual who is a member of a Federal advisory committee, 
as defined by the Federal Advisory Committee Act, title 5, U.S. Code 
appendix 2.
    (l) Person means an individual, corporation, company, association, 
authority, firm, partnership, society, State, and local government, 
regardless of whether such entity is operated for profit or not for 
profit. This term excludes an Indian tribe, tribal organization, or any 
other Indian organization with respect to expenditures specifically 
permitted by other Federal law.
    (m) Reasonable compensation means, with respect to a regularly 
employed officer or employee of any person, compensation that is 
consistent with the normal compensation for such officer or employee for 
work that is not furnished to, not funded by, or not furnished in 
cooperation with the Federal Government.
    (n) Reasonable payment means, with respect to perfessional and other 
technical services, a payment in an amount that is consistent with the 
amount normally paid for such services in the private sector.
    (o) Recipient includes all contractors, subcontractors at any tier, 
and subgrantees at any tier of the recipient of funds received in 
connection with a Federal contract, grant, loan, or cooperative 
agreement. The term excludes an Indian tribe, tribal organization, or 
any other Indian organization with respect to expenditures specifically 
permitted by other Federal law.
    (p) Regularly employed means, with respect to an officer or employee 
of a person requesting or receiving a Federal contract, grant, loan, or 
cooperative agreement or a commitment providing for the United States to 
insure or guarantee a loan, an officer or employee who is employed by 
such person for at least 130 working days within one year immediately 
preceding the date of the submission that initiates agency consideration 
of such person for receipt of such contract, grant, loan, cooperative 
agreement, loan insurance commitment, or loan guarantee commitment. An 
officer or employee who is employed by such person for less than 130 
working days within one year immediately preceding the date of the 
submission that initiates agency consideration of such person shall be 
considered to be regularly employed as

[[Page 408]]

soon as he or she is employed by such person for 130 working days.
    (q) State means a State of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, a territory or possession of 
the United States, an agency or instrumentality of a State, and a multi-
State, regional, or interstate entity having governmental duties and 
powers.



Sec. 18.110  Certification and disclosure.

    (a) Each person shall file a certification, and a disclosure form, 
if required, with each submission that initiates agency consideration of 
such person for:
    (1) Award of a Federal contract, grant, or cooperative agreement 
exceeding $100,000; or
    (2) An award of a Federal loan or a commitment providing for the 
United States to insure or guarantee a loan exceeding $150,000.
    (b) Each person shall file a certification, and a disclosure form, 
if required, upon receipt by such person of:
    (1) A Federal contract, grant, or cooperative agreement exceeding 
$100,000; or
    (2) A Federal loan or a commitment providing for the United States 
to insure or guarantee a loan exceeding $150,000, unless such person 
previously filed a certification, and a disclosure form, if required, 
under paragraph (a) of this section.
    (c) Each person shall file a disclosure form at the end of each 
calendar quarter in which there occurs any event that requires 
disclosure or that materially affects the accuracy of the information 
contained in any disclosure form previously filed by such person under 
paragraph (a) or (b) of this section. An event that materially affects 
the accuracy of the information reported includes:
    (1) A cumulative increase of $25,000 or more in the amount paid or 
expected to be paid for influencing or attempting to influence a covered 
Federal action; or
    (2) A change in the person(s) or individual(s) influencing or 
attempting to influence a covered Federal action; or,
    (3) A change in the officer(s), employee(s), or Member(s) contacted 
to influence or attempt to influence a covered Federal action.
    (d) Any person who requests or receives from a person referred to in 
paragraph (a) or (b) of this section:
    (1) A subcontract exceeding $100,000 at any tier under a Federal 
contract;
    (2) A subgrant, contract, or subcontract exceeding $100,000 at any 
tier under a Federal grant;
    (3) A contract or subcontract exceeding $100,000 at any tier under a 
Federal loan exceeding $150,000; or,
    (4) A contract or subcontract exceeding $100,000 at any tier under a 
Federal cooperative agreement,

shall file a certification, and a disclosure form, if required, to the 
next tier above.
    (e) All disclosure forms, but not certifications, shall be forwarded 
from tier to tier until received by the person referred to in paragraph 
(a) or (b) of this section. That person shall forward all disclosure 
forms to the agency.
    (f) Any certification or disclosure form filed under paragraph (e) 
of this section shall be treated as a material representation of fact 
upon which all receiving tiers shall rely. All liability arising from an 
erroneous representation shall be borne solely by the tier filing that 
representation and shall not be shared by any tier to which the 
erroneous representation is forwarded. Submitting an erroneous 
certification or disclosure constitutes a failure to file the required 
certification or disclosure, respectively. If a person fails to file a 
required certification or disclosure, the United States may pursue all 
available remedies, including those authorized by section 1352, title 
31, U.S. Code.
    (g) For awards and commitments in process prior to December 23, 
1989, but not made before that date, certifications shall be required at 
award or commitment, covering activities occurring between December 23, 
1989, and the date of award or commitment. However, for awards and 
commitments in process prior to the December 23, 1989 effective date of 
these provisions, but not made before December 23, 1989, disclosure 
forms shall not be required at time of award or commitment but shall be 
filed within 30 days.

[[Page 409]]

    (h) No reporting is required for an activity paid for with 
appropriated funds if that activity is allowable under either subpart B 
or C.



                 Subpart B--Activities by Own Employees



Sec. 18.200  Agency and legislative liaison.

    (a) The prohibition on the use of appropriated funds, in Sec. 18.100 
(a), does not apply in the case of a payment of reasonable compensation 
made to an officer or employee of a person requesting or receiving a 
Federal contract, grant, loan, or cooperative agreement if the payment 
is for agency and legislative liaison activities not directly related to 
a covered Federal action.
    (b) For purposes of paragraph (a) of this section, providing any 
information specifically requested by an agency or Congress is allowable 
at any time.
    (c) For purposes of paragraph (a) of this section, the following 
agency and legislative liaison activities are allowable at any time only 
where they are not related to a specific solicitation for any covered 
Federal action:
    (1) Discussing with an agency (including individual demonstrations) 
the qualities and characteristics of the person's products or services, 
conditions or terms of sale, and service capabilities; and,
    (2) Technical discussions and other activities regarding the 
application or adaptation of the person's products or services for an 
agency's use.
    (d) For purposes of paragraph (a) of this section, the following 
agencies and legislative liaison activities are allowable only where 
they are prior to formal solicitation of any covered Federal action:
    (1) Providing any information not specifically requested but 
necessary for an agency to make an informed decision about initiation of 
a covered Federal action;
    (2) Technical discussions regarding the preparation of an 
unsolicited proposal prior to its official submission; and,
    (3) Capability presentations by persons seeking awards from an 
agency pursuant to the provisions of the Small Business Act, as amended 
by Public Law 95-507 and other subsequent amendments.
    (e) Only those activities expressly authorized by this section are 
allowable under this section.



Sec. 18.205  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec. 18.100 
(a), does not apply in the case of a payment of reasonable compensation 
made to an officer or employee of a person requesting or receiving a 
Federal contract, grant, loan, or cooperative agreement or an extension, 
continuation, renewal, amendment, or modification of a Federal contract, 
grant, loan, or cooperative agreement if payment is for professional or 
technical services rendered directly in the preparation, submission, or 
negotiation of any bid, proposal, or application for that Federal 
contract, grant, loan, or cooperative agreement or for meeting 
requirements imposed by or pursuant to law as a condition for receiving 
that Federal contract, grant, loan, or cooperative agreement.
    (b) For purposes of paragraph (a) of this section, ``professional 
and technical services'' shall be limited to advice and analysis 
directly applying any professional or technical discipline. For example, 
drafting of a legal document accompanying a bid or proposal by a lawyer 
is allowable. Similarly, technical advice provided by an engineer on the 
performance or operational capability of a piece of equipment rendered 
directly in the negotiation of a contract is allowable. However, 
communications with the intent to influence made by a professional (such 
as a licensed lawyer) or a technical person (such as a licensed 
accountant) are not allowable under this section unless they provide 
advice and analysis directly applying their professional or technical 
expertise and unless the advice or analysis is rendered directly and 
solely in the preparation, submission or negotiation of a covered 
Federal action. Thus, for example, communications with the intent to 
influence made by a lawyer that do not provide legal advice or analysis 
directly and solely related to the legal aspects of

[[Page 410]]

his or her client's proposal, but generally advocate one proposal over 
another are not allowable under this section because the lawyer is not 
providing professional legal services. Similarly, communications with 
the intent to influence made by an engineer providing an engineering 
analysis prior to the preparation or submission of a bid or proposal are 
not allowable under this section since the engineer is providing 
technical services but not directly in the preparation, submission or 
negotiation of a covered Federal action.
    (c) Requirements imposed by or pursuant to law as a condition for 
receiving a covered Federal award include those required by law or 
regulation, or reasonably expected to be required by law or regulation, 
and any other requirements in the actual award documents.
    (d) Only those services expressly authorized by this section are 
allowable under this section.



Sec. 18.210  Reporting.

    No reporting is required with respect to payments of reasonable 
compensation made to regularly employed officers or employees of a 
person.



            Subpart C--Activities by Other Than Own Employees



Sec. 18.300  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec. 18.100 
(a), does not apply in the case of any reasonable payment to a person, 
other than an officer or employee of a person requesting or receiving a 
covered Federal action, if the payment is for professional or technical 
services rendered directly in the preparation, submission, or 
negotiation of any bid, proposal, or application for that Federal 
contract, grant, loan, or cooperative agreement or for meeting 
requirements imposed by or pursuant to law as a condition for receiving 
that Federal contract, grant, loan, or cooperative agreement.
    (b) The reporting requirements in Sec. 18.110 (a) and (b) regarding 
filing a disclosure form by each person, if required, shall not apply 
with respect to professional or technical services rendered directly in 
the preparation, submission, or negotiation of any commitment providing 
for the United States to insure or guarantee a loan.
    (c) For purposes of paragraph (a) of this section, ``professional 
and technical services'' shall be limited to advice and analysis 
directly applying any professional or technical discipline. For example, 
drafting or a legal document accompanying a bid or proposal by a lawyer 
is allowable. Similarly, technical advice provided by an engineer on the 
performance or operational capability of a piece of equipment rendered 
directly in the negotiation of a contract is allowable. However, 
communications with the intent to influence made by a professional (such 
as a licensed lawyer) or a technical person (such as a licensed 
accountant) are not allowable under this section unless they provide 
advice and analysis directly applying their professional or technical 
expertise and unless the advice or analysis is rendered directly and 
solely in the preparation, submission or negotiation of a covered 
Federal action. Thus, for example, communications with the intent to 
influence made by a lawyer that do not provide legal advice or analysis 
directly and solely related to the legal aspects of his or her client's 
proposal, but generally advocate one proposal over another are not 
allowable under this section because the lawyer is not providing 
professional legal services. Similarly, communications with the intent 
to influence made by an engineer providing an engineering analysis prior 
to the preparation or submission of a bid or proposal are not allowable 
under this section since the engineer is providing technical services 
but not directly in the preparation, submission or negotiation of a 
covered Federal action.
    (d) Requirements imposed by or pursuant to law as a condition for 
receiving a covered Federal award include those required by law or 
regulation, or reasonably expected to be required by law or regulation, 
and any other requirements in the actual award documents.

[[Page 411]]

    (e) Persons other than officers or employees of a person requesting 
or receiving a covered Federal action include consultants and trade 
associations.
    (f) Only those services expressly authorized by this section are 
allowable under this section.



                  Subpart D--Penalties and Enforcement



Sec. 18.400  Penalties.

    (a) Any person who makes an expenditure prohibited herein shall be 
subject to a civil penalty of not less than $10,000 and not more than 
$100,000 for each such expenditure.
    (b) Any person who fails to file or amend the disclosure form (see 
Appendix B to this part) to be filed or amended if required herein, 
shall be subject to a civil penalty of not less than $10,000 and not 
more than $100,000 for each such failure.
    (c) A filing or amended filing on or after the date on which an 
administrative action for the imposition of a civil penalty is commenced 
does not prevent the imposition of such civil penalty for a failure 
occurring before that date. An administrative action is commenced with 
respect to a failure when an investigating official determines in 
writing to commence an investigation of an allegation of such failure.
    (d) In determining whether to impose a civil penalty, and the amount 
of any such penalty, by reason of a violation by any person, the agency 
shall consider the nature, circumstances, extent, and gravity of the 
violation, the effect on the ability of such person to continue in 
business, any prior violations by such person, the degree of culpability 
of such person, the ability of the person to pay the penalty, and such 
other matters as may be appropriate.
    (e) First offenders under paragraph (a) or (b) of this section shall 
be subject to a civil penalty of $10,000, absent aggravating 
circumstances. Second and subsequent offenses by persons shall be 
subject to an appropriate civil penalty between $10,000 and $100,000, as 
determined by the agency head or his or her designee.
    (f) An imposition of a civil penalty under this section does not 
prevent the United States from seeking any other remedy that may apply 
to the same conduct that is the basis for the imposition of such civil 
penalty.



Sec. 18.405  Penalty procedures.

    Agencies shall impose and collect civil penalties pursuant to the 
provisions of the Program Fraud and Civil Remedies Act, 31 U.S.C. 
sections 3803 (except subsection (c)), 3804, 3805, 3806, 3807, 3808, and 
3812, insofar as these provisions are not inconsistent with the 
requirements herein.
    (a) The Department of the Interior implementation of the Program 
Fraud and Civil Remedies Act of 1985 is found at 43 CFR part 35.
    (b) [Reserved]

[55 FR 6737, 6753, Feb. 26, 1990, as amended at 55 FR 6754, Feb. 26, 
1990]



Sec. 18.410  Enforcement.

    The head of each agency shall take such actions as are necessary to 
ensure that the provisions herein are vigorously implemented and 
enforced in that agency.



                          Subpart E--Exemptions



Sec. 18.500  Secretary of Defense.

    (a) The Secretary of Defense may exempt, on a case-by-case basis, a 
covered Federal action from the prohibition whenever the Secretary 
determines, in writing, that such an exemption is in the national 
interest. The Secretary shall transmit a copy of each such written 
exemption to Congress immediately after making such a determination.
    (b) The Department of Defense may issue supplemental regulations to 
implement paragraph (a) of this section.



                        Subpart F--Agency Reports



Sec. 18.600  Semi-annual compilation.

    (a) The head of each agency shall collect and compile the disclosure 
reports (see appendix B to this part) and, on May 31 and November 30 of 
each year, submit to the Secretary of the Senate and the Clerk of the 
House of Representatives a report containing a compilation of the 
information contained

[[Page 412]]

in the disclosure reports received during the six-month period ending on 
March 31 or September 30, respectively, of that year.
    (b) The report, including the compilation, shall be available for 
public inspection 30 days after receipt of the report by the Secretary 
and the Clerk.
    (c) Information that involves intelligence matters shall be reported 
only to the Select Committee on Intelligence of the Senate, the 
Permanent Select Committee on Intelligence of the House of 
Representatives, and the Committees on Appropriations of the Senate and 
the House of Representatives in accordance with procedures agreed to by 
such committees. Such information shall not be available for public 
inspection.
    (d) Information that is classified under Executive Order 12356 or 
any successor order shall be reported only to the Committee on Foreign 
Relations of the Senate and the Committee on Foreign Affairs of the 
House of Representatives or the Committees on Armed Services of the 
Senate and the House of Representatives (whichever such committees have 
jurisdiction of matters involving such information) and to the 
Committees on Appropriations of the Senate and the House of 
Representatives in accordance with procedures agreed to by such 
committees. Such information shall not be available for public 
inspection.
    (e) The first semi-annual compilation shall be submitted on May 31, 
1990, and shall contain a compilation of the disclosure reports received 
from December 23, 1989 to March 31, 1990.
    (f) Major agencies, designated by the Office of Management and 
Budget (OMB), are required to provide machine-readable compilations to 
the Secretary of the Senate and the Clerk of the House of 
Representatives no later than with the compilations due on May 31, 1991. 
OMB shall provide detailed specifications in a memorandum to these 
agencies.
    (g) Non-major agencies are requested to provide machine-readable 
compilations to the Secretary of the Senate and the Clerk of the House 
of Representatives.
    (h) Agencies shall keep the originals of all disclosure reports in 
the official files of the agency.



Sec. 18.605  Inspector General report.

    (a) The Inspector General, or other official as specified in 
paragraph (b) of this section, of each agency shall prepare and submit 
to Congress each year, commencing with submission of the President's 
Budget in 1991, an evaluation of the compliance of that agency with, and 
the effectiveness of, the requirements herein. The evaluation may 
include any recommended changes that may be necessary to strengthen or 
improve the requirements.
    (b) In the case of an agency that does not have an Inspector 
General, the agency official comparable to an Inspector General shall 
prepare and submit the annual report, or, if there is no such comparable 
official, the head of the agency shall prepare and submit the annual 
report.
    (c) The annual report shall be submitted at the same time the agency 
submits its annual budget justifications to Congress.
    (d) The annual report shall include the following: All alleged 
violations relating to the agency's covered Federal actions during the 
year covered by the report, the actions taken by the head of the agency 
in the year covered by the report with respect to those alleged 
violations and alleged violations in previous years, and the amounts of 
civil penalties imposed by the agency in the year covered by the report.

         Appendix A to Part 18--Certification Regarding Lobbying

 Certification for Contracts, Grants, Loans, and Cooperative Agreements

    The undersigned certifies, to the best of his or her knowledge and 
belief, that:
    (1) No Federal appropriated funds have been paid or will be paid, by 
or on behalf of the undersigned, to any person for influencing or 
attempting to influence an officer or employee of an agency, a Member of 
Congress, an officer or employee of Congress, or an employee of a Member 
of Congress in connection with the awarding of any Federal contract, the 
making of any Federal grant, the making of any Federal loan, the 
entering into of any cooperative agreement, and the

[[Page 413]]

extension, continuation, renewal, amendment, or modification of any 
Federal contract, grant, loan, or cooperative agreement.
    (2) If any funds other than Federal appropriated funds have been 
paid or will be paid to any person for influencing or attempting to 
influence an officer or employee of any agency, a Member of Congress, an 
officer or employee of Congress, or an employee of a Member of Congress 
in connection with this Federal contract, grant, loan, or cooperative 
agreement, the undersigned shall complete and submit Standard Form-LLL, 
``Disclosure Form to Report Lobbying,'' in accordance with its 
instructions.
    (3) The undersigned shall require that the language of this 
certification be included in the award documents for all subawards at 
all tiers (including subcontracts, subgrants, and contracts under 
grants, loans, and cooperative agreements) and that all subrecipients 
shall certify and disclose accordingly.
    This certification is a material representation of fact upon which 
reliance was placed when this transaction was made or entered into. 
Submission of this certification is a prerequisite for making or 
entering into this transaction imposed by section 1352, title 31, U.S. 
Code. Any person who fails to file the required certification shall be 
subject to a civil penalty of not less than $10,000 and not more than 
$100,000 for each such failure.

            Statement for Loan Guarantees and Loan Insurance

    The undersigned states, to the best of his or her knowledge and 
belief, that:
    If any funds have been paid or will be paid to any person for 
influencing or attempting to influence an officer or employee of any 
agency, a Member of Congress, an officer or employee of Congress, or an 
employee of a Member of Congress in connection with this commitment 
providing for the United States to insure or guarantee a loan, the 
undersigned shall complete and submit Standard Form-LLL, ``Disclosure 
Form to Report Lobbying,'' in accordance with its instructions.
    Submission of this statement is a prerequisite for making or 
entering into this transaction imposed by section 1352, title 31, U.S. 
Code. Any person who fails to file the required statement shall be 
subject to a civil penalty of not less than $10,000 and not more than 
$100,000 for each such failure.

[[Page 414]]

        Appendix B to Part 18--Disclosure Form to Report Lobbying
      [GRAPHIC] [TIFF OMITTED] TC01JA91.000
      

[[Page 415]]


[GRAPHIC] [TIFF OMITTED] TC01JA91.001


[[Page 416]]


[GRAPHIC] [TIFF OMITTED] TC01JA91.002


[[Page 417]]





PART 19--WILDERNESS PRESERVATION--Table of Contents




           Subpart A--National Wilderness Preservation System

Sec.
19.1  Scope and purpose.
19.2  Definitions.
19.3  Reviews of roadless areas and roadless islands.
19.4  Liaison with other governmental agencies and submission of views 
          by interested persons.
19.5  Hearing procedures.
19.6  Regulations respecting administration and uses of wilderness areas 
          under jurisdiction of the Secretary.
19.7  Private contributions and gifts.
19.8  Prospecting, mineral locations, mineral patents, and mineral 
          leasing within National Forest Wilderness.

Subpart B [Reserved]

    Authority: 78 Stat. 890, R.S. 2478; 16 U.S.C. 1131-1136, 43 U.S.C. 
1201.

    Source: Circ. 2203, 31 FR 3011, Feb. 22, 1966, unless otherwise 
noted.



           Subpart A--National Wilderness Preservation System



Sec. 19.1  Scope and purpose.

    This subpart sets forth sections dealings with the administration by 
the Department of the Interior of certain provisions of the Wilderness 
Act (78 Stat. 890; 16 U.S.C. 1131-1136).



Sec. 19.2  Definitions.

    As used in this subpart the term:
    (a) National Forest Wilderness means an area or part of an area of 
national forest lands designated by the Wilderness Act or by a 
subsequent act of Congress as a wilderness area.
    (b) National Park System means all federally owned or controlled 
areas administered by the Secretary through the National Park Service.
    (c) National Wilderness Preservation System means the Federally 
owned areas designated by the Wilderness Act or subsequent acts of 
Congress as wilderness areas.
    (d) National Wildlife Refuge System means those lands and waters 
administered by the Secretary as wildlife refuges, wildlife ranges, game 
ranges, wildlife management areas, and waterfowl production areas 
established under any statute, proclamation, executive order, or public 
land order.
    (e) Roadless area means a reasonably compact area of undeveloped 
Federal land which possesses the general characteristics of a wilderness 
and within which there is no improved road that is suitable for public 
travel by means of four-wheeled, motorized vehicles intended primarily 
for highway use.
    (f) Roadless island means a roadless area that is surrounded by 
permanent waters or that is markedly distinguished from surrounding 
lands by topographical or ecological features such as precipices, 
canyons, thickets, or swamps.
    (g) Secretary means the Secretary of the Interior or an official of 
the Department of the Interior who exercises authority delegated by the 
Secretary of the Interior.
    (h) Wilderness means a wilderness as defined in section 2(c) of the 
Wilderness Act.



Sec. 19.3  Reviews of roadless areas and roadless islands.

    (a) The Secretary is required by section 3(c) of the Wilderness Act 
to review every roadless area of 5,000 contiguous acres or more in each 
unit of the National Park System and every roadless area of 5,000 
contiguous acres or more and every roadless island in the national 
wildlife refuges and game ranges of the National Wildlife Refuge System, 
which was under the supervision of the Secretary on September 3, 1964. 
The Secretary is further required to recommend to the President whether 
each such area and island is suitable or not suitable for preservation 
as wilderness. Reports and recommendations must be submitted by the 
Secretary in time to permit the President to advise the Congress of his 
recommendations thereon:
    (1) Covering not less than one-third of such areas and islands by 
September 3, 1967;
    (2) Covering not less than an additional one-third by not later than 
September 3, 1971; and
    (3) Covering the remainder by not later than September 3, 1974.
    (b) The primary objective of the Department of the Interior's review 
of

[[Page 418]]

roadless areas and roadless islands pursuant to section 3(c) of the 
Wilderness Act and the regulations of this part shall be to identify and 
recommend for preservation as wilderness, by inclusion in the National 
Wilderness Preservation System, those areas which, after consideration 
of all relevant factors, it is concluded will achieve the policy of the 
Congress, as expressed in section 2(a) of the Wilderness Act.
    (c) Nothing in the sections of this part shall, by implication or 
otherwise, be construed to lessen the authority of the Secretary with 
respect to the maintenance of roadless areas within units of the 
National Park System or the maintenance of roadless areas and islands 
within units of the National Wildlife Refuge System.



Sec. 19.4  Liaison with other governmental agencies and submission of views by interested persons.

    (a) When a review is initiated under the provisions of section 3(c) 
of the Wilderness Act and the sections of this part, arrangements shall 
be made for appropriate consideration of problems of mutual concern with 
other Federal agencies and with regional, State, and local governmental 
agencies.
    (b) Any person desiring to submit recommendations as to the 
suitability or nonsuitability for preservation as wilderness of any 
roadless area in any unit of the National Park System, or of any such 
area or any roadless island in any unit of the National Wildlife Refuge 
System, may submit such recommendations at any time to the 
superintendent or manager in charge of the unit. Such recommendations 
will be accorded careful consideration and shall be forwarded with the 
report of review to the Office of the Secretary.



Sec. 19.5  Hearing procedures.

    (a) Before any recommendation of the Secretary concerning the 
suitability or nonsuitability of any roadless area or island for 
preservation as wilderness is submitted to the President, a public 
hearing or hearings shall be held thereon at a location or locations 
convenient to the area or areas affected. If the lands involved are 
located in more than one State, at least one such hearing shall be held 
in each State. At least 30 days before the date of any such hearing, 
public notice thereof shall be published in the Federal Register and in 
newspapers of general circulation in the area. The public notice shall 
contain or make reference to a map of the lands involved and a 
definition of boundaries and a statement of the action proposed to be 
taken by the Secretary thereon.
    (1) Any hearing held under this section shall be presided over by a 
hearing officer designated by the Secretary.
    (2) Any person may present testimony at the hearing orally or in 
writing, or both, by notification to the hearing officer in accordance 
with the published notice of the hearing. Witnesses shall not be 
subjected to cross-examination but the hearing officer may invite 
responses by witnesses to questions he may ask for the purpose of 
clarifying the testimony presented.
    (3) The witnesses shall not be sworn, but statements made by them 
orally or in writing are subject to the provisions of 18 U.S.C. 1001, 
which makes it a crime for any person knowingly and willfully to make to 
any agency of the United States any false, fictitious, or fraudulent 
statement as to any matter within its jurisdiction.
    (4) A verbatim record of the hearing shall be kept.
    (5) The hearing officer may be instructed by the Secretary to 
prepare and submit a recommendation concerning the suitability or 
nonsuitability of the area or areas for preservation as wilderness.
    (6) A copy of the transcript of the hearing record, and of any 
recommendation made by the hearing officer as a result thereof, shall, 
during the pendency of the subject matter, be maintained for public 
examination (i) in an office of the Department of the Interior 
convenient to the area or areas affected and (ii) in the headquarters 
office of the Department in Washington, DC.
    (7) The Secretary reserves the right at all times to consider 
information available to his office from any source not limited to the 
record of the public hearing or hearings, in the further consideration 
of proposed recommendations concerning the suitability or the

[[Page 419]]

nonsuitability of the area or areas for preservation as wilderness.
    (b) At least 30 days before the date of any such public hearing, the 
hearing officer shall advise the Governor of each State and the 
governing board of each county, or in Alaska the borough, in which the 
lands are located, and the other Federal departments and agencies 
concerned, and invite such officials and agencies to submit their views 
at the hearing. The Governor, the governing board, and the other Federal 
agencies may also submit views following the hearing but such views must 
be received in the Office of the Secretary by no later than 30 days 
following the date of the hearing to assure that they will receive 
consideration.
    (c) Any public views received pursuant to the provisions of this 
section will be accorded careful consideration and a summary thereof 
shall be forwarded with the recommendations of the Secretary to the 
President with respect to the area under consideration.

[31 FR 3011, Feb. 22, 1966, as amended at 37 FR 16079, Aug. 10, 1972]



Sec. 19.6  Regulations respecting administration and uses of wilderness areas under jurisdiction of the Secretary.

    Regulations respecting administration and use of areas under the 
jurisdiction of the Secretary which may be designated as wilderness 
areas by statute shall be developed with a view to protecting such areas 
and preserving their wilderness character for the use and enjoyment of 
the American people in such manner as will leave them unimpaired for 
future use and enjoyment as wilderness, with inconsistent uses held to a 
minimum.



Sec. 19.7  Private contributions and gifts.

    (a) The Secretary is authorized by section 6(b) of the Wilderness 
Act to accept on behalf of the United States private contributions and 
gifts to be used to further the purposes of the act. The Secretary, 
under the authorization of section 6(b), may accept on behalf of the 
United States any sums of money, marketable securities or other personal 
property (but not real property) to be used for such things as 
expediting reviews of roadless areas and islands under his jurisdiction, 
expediting mineral resource surveys of National Forest Wilderness, or 
fostering public information and research related to wilderness 
preservation.
    (b) Anyone desiring to make a contribution or gift under the 
provisions of this section may submit an offer to the Secretary of the 
Interior, Washington, DC 20240, stating the amount of money or 
describing the securities or other personal property involved. If the 
offer involves property other than cash, the statement should set forth 
that the offeror is the owner of the property free and clear of all 
encumbrances and adverse claims. The offeror may specify a particular 
purpose for which the offer is made, but the Secretary may in his 
discretion reject any offer entailing purposes, terms, or conditions 
unacceptable to him.
    (c) Sums of money and marketable securities received under this 
section that are not otherwise restricted and are allocated to 
furthering the purposes of the Wilderness Act as it relates to lands 
within the National Park System shall be transferred to a special 
account in the National Park Trust Fund and shall be administered in 
accordance with the provisions of 36 CFR part 9.
    (d) Offers of gifts of land to promote the purposes of a grazing 
district or facilitate administration of public lands, including 
preservation and management of wilderness, values, may be tendered to 
the Secretary under the provisions of section 8(a) of the Taylor Grazing 
Act of June 28, 1934 (48 Stat. 1272) as amended (43 U.S.C. 315g). Offers 
of gifts of land or interests in land to facilitate administration or 
contribute to improvement, management, use, or protection of public 
lands and their resources, including the preservation and management of 
wilderness values, may be tendered to the Secretary under the provisions 
of section 103(a) of the Public Land Administration Act of July 14 1960 
(74 Stat. 506: 43 U.S.C. 1364). Persons desiring to make such offers 
should follow the procedures established by 43 CFR subpart 2111.
    (e) Under the provisions of the Act of June 5, 1920 (41 Stat. 917; 
16 U.S.C. 6),

[[Page 420]]

the Secretary is authorized, in his discretion, to accept donations of 
patented lands, rights-of-way over patented lands or other lands, 
buildings, or other property within the various national parks and 
national monuments for the purposes of the National Park System. Persons 
desiring to offer lands, rights-of-way, or buildings under the 
provisions of the Act of June 5, 1920, should make inquiry of the 
superintendent of the national park or monument within which the 
property is located.



Sec. 19.8  Prospecting, mineral locations, mineral patents, and mineral leasing within National Forest Wilderness.

    Regulations issued under the provisions of the Wilderness Act 
pertaining to prospecting, mineral locations, mineral patents, and 
mineral leasing within National Forest Wilderness are contained in parts 
3327 and 3638 of subchapter C of chapter II of this title.

    Editorial Note: See Redesignation Table No. 2 of 43 CFR which 
appears in Volume II of the List of CFR Sections Affected, 1964-1972 for 
the appropriate sections to former parts 3327 and 3638.

Subpart B [Reserved]



PART 20--EMPLOYEE RESPONSIBILITIES AND CONDUCT--Table of Contents




Sec.
20.101  Cross-references to ethical conduct, financial disclosure and 
          other applicable regulations.
20.102  Definitions.
20.103  Employee responsibilities.

                  Subpart B--Department Ethics Program

20.201  Ethics officials.
20.202  Ethics program responsibilities.
20.203  Exclusion from confidential financial disclosure requirement for 
          certain special Government employees.

    Subpart C--Acceptance and Payment of Travel and Related Expenses

20.301  General policy.
20.302  Exclusions.

  Subpart D--Special Provisions Governing Financial and Other Outside 
            Interests of Certain Employees of the Department

20.401  Interests in Federal lands.
20.402  Interests in underground or surface coal mining operations.
20.403  Certificates of disclaimer.

              Subpart E--Other Employee Conduct Provisions

20.501  General policy.
20.502  Conformance with policy and subordination to authority.
20.503  Scope of authority.
20.504  Selling or soliciting.
20.505  Habitual use of intoxicants.
20.506  Appropriations, legislation and lobbying.
20.507  Unlawful organizations.
20.508  Notary.
20.509  Penalty mail and official stationery.
20.510  Fraud or false statements in a Government matter.
20.511  Carrying of firearms.
20.512  Labor practices.

              Subpart F--Disciplinary and Remedial Actions

20.601  General.
20.602  Remedial action.
20.603  Appealing an order for remedial action.

    Authority: 5 U.S.C. 301, 7301; 5 U.S.C. App. (Reorganization Plan 
No. 3 of 1950); 30 U.S.C. 1211; 43 U.S.C. 11, 31(a); 5 CFR 2634.903, 
2634.905.

    Source: 62 FR 53720, Oct. 16, 1997, unless otherwise noted.



                      Subpart A--General Provisions



Sec. 20.101  Cross-references to ethical conduct, financial disclosure and other applicable regulations.

    In addition to the rules in this part, employees of the Department 
of the Interior also should refer to the Standards of Ethical Conduct 
for Employees of the Executive Branch, at 5 CFR part 2635; the 
Department's regulations that supplement those executive branch-wide 
standards at 5 CFR part 3501; the employee responsibilities and conduct 
regulations at 5 CFR part 735; and the executive branch financial 
disclosure regulations at 5 CFR part 2634.

[[Page 421]]



Sec. 20.102  Definitions.

    (a) The following terms are used throughout this part and have the 
following meanings:
    (1) Department means the U.S. Department of the Interior and any of 
its components.
    (2) Secretary means the Secretary of the Interior.
    (3) Bureau means each major program operating component of the 
Department, the Office of the Secretary, the Office of the Solicitor, 
and the Office of the Inspector General.
    (4) Employee means a regular employee, a special Government 
employee, and a contract education employee in the Office of the 
Assistant Secretary--Indian Affairs or the Bureau of Indian Affairs, 
unless the text of a particular subpart, section, or paragraph indicates 
that either regular employees or special Government employees are not 
intended to be covered by that subpart, section or paragraph. Volunteers 
in National Parks whose services are accepted pursuant to 16 U.S.C. 18g 
are not employees.
    (b) Specific definitions. Additional definitions of terms 
specifically associated with a particular subpart, section, or paragraph 
are found in that subpart, section, or paragraph.



Sec. 20.103  Employee responsibilities.

    It is the responsibility of each employee:
    (a) To be familiar with and to comply with all Federal statues, 
Executive Orders, and regulations that govern his or her conduct. 
Employees are expected to consult with their supervisors and servicing 
ethics counselors on questions they may have regarding the applicability 
of any ethics or other conduct provision. Ethics advice may also be 
obtained from the Solicitor's Office and the Department Ethics Office.
    (b) To report directly or through appropriate channels to the Office 
of Inspector General or other appropriate authority matters coming to 
their attention which do or may involve violations of law or regulation 
by employees, contractors, sub-contractors, grantees, subgrantees, 
lessees, licensees or other persons having official business with the 
Department.



                  Subpart B--Department Ethics Program



Sec. 20.201  Ethics officials.

    (a) Designated Agency Ethics Official refers to the official 
designated under 5 CFR 2638.201 to coordinate and manage the 
Department's ethics program.
    (b) The head of each bureau is the ``Ethics Counselor'' for that 
bureau, except that the Deputy Assistant Secretary for Policy is the 
Ethics Counselor for employees in the Office of the Secretary and 
related offices. The Solicitor is the Ethics Counselor for the Office of 
the Solicitor and the Inspector General is the Ethics Counselor for the 
Office of Inspector General.
    (c) The personnel officer for each bureau or other qualified 
employee who has been delegated responsibility for the operational 
duties of the Ethics Counselor for the bureau, it the ``Deputy Ethics 
Counselor'' for that bureau.
    (d) A bureau, regional, or area personnel officer or other qualified 
employee may be assigned to serve as an ``Associate Ethics Counselor'' 
or ``Assistant Ethics Counselor,'' with delegated responsibility to 
perform the operational duties of the Ethics Counselor at the field 
level. Associate Ethics Counselors or Assistant Ethics Counselors may 
also be designated within the bureau headquarters.

[62 FR 53720, Oct. 16, 1997, as amended at 63 FR 34259, June 24, 1998]



Sec. 20.202  Ethics program responsibilities.

    (a) The Designated Agency Ethics Official (or the alternate agency 
ethics official in his or her absence) shall coordinate and manage the 
department's ethics program in accordance with 5 CFR 2638.203.
    (b) Each Ethics Counselor shall, for his or her bureau:
    (1) Order disciplinary or remedial action in accordance with the 
provisions of subpart F of this part. This authority may not be 
redelegated.
    (2) Designate: (i) The Bureau Personnel Officer (or other qualified 
headquarters employee) as Deputy Ethics Counselor to carry out 
operational duties of the Ethics Counselor within

[[Page 422]]

their bureaus under the general direction of the Ethics Counselor; and
    (ii) Headquarters bureau, regional, or area personnel officers (or 
other qualified employees) as Associate Ethics Counselors or Assistant 
Ethics Counselors to perform ethics counseling and the collection and 
review of financial disclosure reports.
    (3) Ensure that vacancy announcements for positions which require a 
public or confidential financial disclosure report alert applicants to 
the filing requirement.
    (4) Establish and maintain internal procedures and guidelines to 
adequately and systematically inform employees of the content, meaning, 
and importance of ethical conduct and other conduct regulations.
    (c) All supervisors may make decisions as to whether conduct by 
employees under their supervision would result in the appearance that 
the employee would violate or is violating the ethical standards set 
forth in 5 CFR 2635; all supervisors are expected, therefore, to be 
familiar with those standards. In addition, any supervisor who grants 
prior approval of an employee's outside employment under 5 CFR 
3501.105(b) is expected, at a minimum, to provide information to the 
employee about the prohibitions in 18 U.S.C. 203, 205 and 208 at the 
time such approval is granted.



Sec. 20.203  Exclusion from confidential financial disclosure requirement for certain special Government employees.

    In an instance involving the proposed employment of a special 
Government employee for highly specialized and limited duties, the head 
of the bureau or office may propose to the Designated Agency Ethics 
Official (DAEO) a reporting of financial interests restricted to such 
interests as may be determined to be relevant to the duties the special 
Government employee is to perform. The DAEO may, under the provisions of 
5 CFR 2634.905, exclude the special Government employee from all or a 
portion of the confidential reporting requirements of the OGE Form 450. 
Any confidential financial disclosure requirement must be satisfied by 
the special Government employee before he begins his employment.



    Subpart C--Acceptance and Payment of Travel and Related Expenses



Sec. 20.301  General policy.

    (a) Except as specifically authorized by law, when an employee is on 
official duty (no leave status), all travel and accommodations shall be 
at Government expense and his or her acceptance of outside reimbursement 
for travel expenses or services in kind from private sources, either in 
his or her behalf or in behalf of the Government, is not allowed.
    (b) Under certain circumstances, the Department may charge a fee or 
accept reimbursement for providing a service or thing of value to a 
private source when the service or thing of value provided benefits to 
both the Government and the particular private source (31 U.S.C. 9701). 
In such instances only a portion of the costs can be accepted from the 
private source. The Department must pay expenses associated with its 
usual official business and for the benefits it receives from 
participating in the event. The private source can be charged or may 
reimburse the Department for that portion of the service provided that 
exceeds the Department's usual expenses and the benefits to the 
Government. Under this provision, payments from private sources must be 
deposited in the U.S. Treasury unless the bureau receiving the payment 
is authorized by statute to accept such payments.
    (c) When a bureau is authorized by statute other than 31 U.S.C. 1353 
to accept gifts, and 31 U.S.C. 1353 does not apply, the travel expenses 
incurred by an employee directed to participate in a convention, 
seminar, or similar meeting sponsored by a private source for the mutual 
interest of the Government and the private source may be reimbursed to 
the bureau and credited to its appropriation. The employee shall be paid 
by the bureau in accordance with the law relating to reimbursement for 
official travel and any accommodations and goods or services in kind 
furnished an employee shall be treated as a donation to the bureau and

[[Page 423]]

an appropriate reduction shall be made to the employee's reimbursement 
(46 CG 689 (1967)).
    (d) When participation at a function is not in an official capacity, 
an employee may accept reimbursement of travel and accommodation 
expenses from a private source, provided that such acceptance is 
permitted by law and Federal regulations. Participation as a private 
citizen must occur on one's own time, such as while on leave. If 
participation should occur during the course of official travel (i.e., 
evening or weekend hours during official travel status), the travel 
voucher submitted for Government reimbursement of official duty expenses 
must be adjusted to claim only that per diem and travel attributable to 
official duty. Employees who are in positions for which the rate of pay 
is specified in 5 U.S.C. 5311-5318 (the Executive Schedule) are on 24-
hour duty, and determinations of what constitutes official duty and what 
is private participation should be carefully made.



Sec. 20.302  Exclusions.

    (a) Where employee travel is for attendance at a meeting or similar 
function (31 U.S.C. 1353(a)), the Department may accept payment for the 
employee and/or the employee's spouse's travel from a non-Federal source 
when proper consideration is given to the conditions in paragraph (a)(1) 
of this section and a written authorization to accept payment is issued 
in advance of the travel.
    (1) Conditions. Such travel expenses paid for by a non-Federal 
source may be accepted by the Department only if all of the following 
conditions are met:
    (i) The travel relates to the employee's official duties;
    (ii) The travel, subsistence and related expenses are with respect 
to the attendance of an employee (and/or the accompanying spouse of such 
employee when applicable) at a meeting or similar function. This 
includes a conference, seminar, speaking engagement, symposium, training 
course, or similar event that takes place away from the employee's 
official station, and is sponsored or cosponsored by a non-Federal 
source;
    (iii) The non-Federal source is not disqualified because of a real 
or apparent conflict of interest as determined under paragraph (a)(2) of 
this section; and
    (iv) The travel event is not required to carry out the Department's 
statutory or regulatory functions. Examples of statutory or regulatory 
functions that are essential to the Department's mission include 
investigations, inspections, audits, site visits, compliance reviews or 
program evaluations.
    (2) Conflict of interest analysis. (i) The Department's acceptance 
of any payment from a non-Federal source under the authority of 31 
U.S.C. 1353 shall not be approved when an Authorized Approving Official, 
identified in paragraph (a)(2)(iii) of this section, determines that 
under the circumstances, acceptance of the travel expenses would cause a 
reasonable person with knowledge of all relevant facts to:
    (A) Question the integrity of the work to be performed by the 
employee receiving the benefit; or
    (B) Question the integrity of the Department's other program 
operations.
    (ii) When making these determinations, an Authorized Approving 
Official shall be guided by all relevant considerations including, but 
not limited to:
    (A) The identity of the non-Federal source and the source's 
relationship to the Department;
    (B) The purpose of the meeting or similar function and its 
relationship to the Department's programs or operations;
    (C) The identity of other expected participants and their 
relationship to the Department;
    (D) The nature and sensitivity of any pending Department matter 
which, when decided, may affect the interests of the non-Federal source;
    (E) The significance of the employee's role in any such pending 
matter;
    (F) The monetary value and character of the travel benefits offered 
by the non-Federal source; and
    (G) The potential reaction from Department customers, including the 
public, if the acceptance of travel expenses was made known to them.
    (iii) An ``Authorized Approving Official'' means that Department 
official who has been delegated authority to approve the usual travel 
authorizations

[[Page 424]]

of the employee who will benefit from the non-Federal travel payment.
    (iv) The procedures stated below must be satisfied before the 
employee (and/or the accompanying spouse) begin his or her travel:
    (A) Each employee (and/or the accompanying spouse) must have an 
approved Travel Authorization (Form DI-1020). Section 10 (``Purpose and 
Remarks'') of this Form must contain a statement that the authority to 
accept payment from a non-Federal source for the specified travel event 
is 31 U.S.C. 1353, and the travel situation complies with the conditions 
for acceptance under 41 CFR 304-1.4.
    (B) The supplementary form entitled, ``Report of Payments Accepted 
From Non-Federal Sources Under 31 U.S.C. 1353'' (Form DI-2000) must also 
be completed and signed by the employee and the Authorized Approving 
Official. A copy of Form DI-1020 and Form DI-2000 must be filed with the 
employee's Deputy Ethics Counselor.
    (C) Payment from a non-Federal source to cover the travel related 
expenses of an employee may be made in the form of a check or similar 
instrument made payable to the Department. Employees should not accept 
cash or negotiate checks or similar instruments payable to them. Any 
negotiable instruments received by an employee shall be transmitted 
immediately to the appropriate accounting office.
    (b) When on official duty, contributions and awards incident to 
training in non-Government facilities, and payment of travel, 
subsistence, and other expenses incident to attendance at meetings may 
be accepted by an employee when the payment is made by a non-profit, tax 
exempt organization as described in 26 U.S.C. 501(c)(3) and when no real 
or apparent conflict of interest will result. Prior advice should be 
obtained from the employee's ethics counselor in this circumstance (5 
U.S.C. 4111).
    (c) Employees may accept reimbursement by the Department for travel 
and related expenses when on detail under the Intergovernmental 
Personnel Act, in accordance with 5 U.S.C. 3375.
    (d) Should the Director of the United States Information Agency, 
with the approval of the employing agency, assign an employee to a 
foreign government, reimbursement for the employee's pay and allowances 
shall be made to the United States in an amount equal to the 
compensation, travel expenses, and allowances payable to such person 
during the period of such assignment, in accordance with 22 U.S.C. 1451.
    (e) Should an employee be detailed by the Secretary to an 
international organization which requests services, the employee is 
deemed to be (for the purpose of preserving his or her allowances, 
privileges, rights, seniority, and other benefits) an employee of the 
Department and the employee is entitled to pay, allowances, and benefits 
from funds available to the Department. The international organization 
may reimburse the Department for all or part of the pay, travel 
expenses, and allowances payable during the detail; or, the detailed 
employee may be paid or reimbursed directly by the international 
organization for allowances or expenses incurred in the performance of 
duties required by the detail without regard to 18 U.S.C. 209 (5 U.S.C. 
3343).



  Subpart D--Special Provisions Governing Financial and Other Outside 
            Interests of Certain Employees of the Department



Sec. 20.401  Interests in Federal lands.

    (a) Statutory prohibition applicable to employees of the Bureau of 
Land Management. (1) In accordance with 43 U.S.C. 11, employees of the 
Bureau of Land Management are prohibited from voluntarily acquiring a 
direct or indirect interest in Federal lands.
    (2) Definitions. For purposes of applying the prohibition in 43 
U.S.C. 11:
    (i) Federal lands. means public lands or resources or an interest in 
lands or resources administered or controlled by the Department, 
including, but not limited to, all submerged lands lying seaward outside 
of the area of ``lands beneath navigable water'' as defined in 43 U.S.C. 
1301(a), and of which the subsoil and seabed appertain to the United 
States and are subject to its jurisdiction and control.

[[Page 425]]

    (ii) Direct interest in Federal lands means any employee ownership 
or part ownership in Federal lands or any participation in the earnings 
therefrom, or the right to occupy or use the property or to take any 
benefits there from, based upon a contract, grant, lease, permit, 
easement, rental agreement, or application. Direct interest in Federal 
lands also includes:
    (A) Membership or outside employment in a business which has 
interests in Federal lands; and.
    (B) Ownership of stock or other securities in corporations 
determined by the Department to have an interest in Federal lands 
directly or through a subsidiary.
    (iii) Indirect interest in Federal lands means any ownership or part 
ownership of an interest in Federal lands by an employee in the name of 
another where the employee still reaps the benefits. Indirect interest 
in Federal lands also includes:
    (A) Holdings in land, mineral rights, grazing rights or livestock 
which in any manner are connected with or involve the substantial use of 
the resources or facilities of the Federal lands; or
    (B) Substantial holdings of a spouse or minor child.
    (b) Statutory prohibition applicable to employees of the U.S. 
Geological Survey. (1) In accordance with 43 U.S.C. 31(a), the Director 
and members of the U.S. Geological Survey are prohibited from having any 
personal or private interests in the lands or mineral wealth of the 
region under survey.
    (2) Definitions. For purposes of applying the prohibition in 43 
U.S.C. 31(a):
    (i) Personal or private interest means ownership of an interest in, 
or employment with a person or enterprise which leases or uses, Federal 
lands for commercial purposes.
    (ii) Region under survey means Federal lands which are administered 
or controlled by the Department.
    (c) Exclusions. (1)(i) Except for U.S. mineral surveyors, an 
individual employed on an intermittent or seasonal basis for a period 
not exceeding 180 working days in each calendar year, and a special 
Government employee (SGE) engaged in field work relating to land, range, 
forest, and mineral conservation and management activities, and the 
spouse of such an individual or SGE, shall not be precluded from 
retaining any interest, including renewal or continuation of existing 
rights, in Federal lands, provided that such individual or SGE or spouse 
shall not acquire any additional interest in Federal lands during 
employment.
    (ii) A U.S. mineral surveyor is a person appointed under the 
authority of 30 U.S.C. 39, and as such is included within the term 
``officers, clerks, and employees'' of the Bureau of Land Management as 
that term is used in 43 U.S.C. 11 and construed in Waskey v. Hammer, 223 
U.S. 85 (1912). U.S. mineral surveyors are also considered to be special 
government employees.
    (2) A Bureau of Land Management employee or any member of the 
employee's family may acquire wild free-roaming horses or burros from 
Federal lands for maintenance and protection through a cooperative 
agreement entered into in accordance with 43 CFR part 4700.
    (3) A Bureau of Land Management employee may retain a direct or 
indirect interest in Federal lands when:
    (i) There is little or no relationship between the employee's 
functions or duties and the particular interest in Federal lands, and
    (ii) The employee, or the spouse or dependent child of the employee, 
acquired such an interest:
    (A) By gift, devise, bequest, or court award or settlement, or
    (B) Prior to the time the employee entered on duty in the 
Department.
    (4) Pursuant to 43 U.S.C. 1621(d), 43 U.S.C. 11 does not apply to 
any land grants or other rights granted under 43 U.S.C. chapter 33.
    (5) The recreational or other personal and noncommercial use of the 
Federal lands by an employee, the employee's spouse or dependent child, 
on the same terms as use of the Federal lands is available to the 
general public, is not prohibited.
    (6) Advisory councils. Nothing in 43 U.S.C. 11 shall disqualify 
individuals appointed pursuant to the Federal Land Policy and Management 
Act of 1976, 43 U.S.C. 1739, as members of advisory boards or councils, 
from acquiring or retaining grazing licenses or permits

[[Page 426]]

issued pursuant to section 3 of the Taylor Grazing Act (43 U.S.C. 315b), 
or any other interest in land or resources administered by the Bureau of 
Land Management: Provided, that in no case shall the member of any such 
board or council participate in any advice or recommendation concerning 
such license or permit in which such member is directly or indirectly 
interested.
    (d) Request for advice. When an employee is in doubt as to whether 
the acquisition or retention of any interest in lands or resources 
administered by the Department would violate the provisions of this 
section, a statement of the facts should be submitted promptly by the 
individual involved to his or her servicing ethics counselor for 
guidance.



Sec. 20.402  Interests in underground or surface coal mining operations.

    (a) Definitions. As used in this section:
    (1) Direct financial interest in underground or surface coal mining 
operations means ownership or part ownership by an employee of lands, 
stocks, bonds, debentures, warrants, partnership shares, or other 
holdings and also means any other arrangement where the employee may 
benefit from his or her holding in or salary from coal mining operation. 
Direct financial interests also include employment, pensions, creditor, 
real property and other financial relationships.
    (2) Indirect financial interest in underground or surface coal 
mining operations means the same financial relationships as for direct 
ownership, but where the employee reaps the benefits of such interests 
including interests held by his or her spouse, dependent child and other 
relatives, including in-laws, residing in the employee's home. The 
employee will not be deemed to have an indirect financial interest if 
there is no relationship between the employee's functions or duties and 
the coal mining operation in which the spouse, dependent child or other 
resident relative holds a financial interest.
    (3) Coal mining operation means the business of developing, 
producing, preparing or loading bituminous coal, subbituminous coal, 
anthracite or lignite or of reclaiming the areas upon which such 
activities occur.
    (4) Performing any function or duty under the Surface Mining Control 
and Reclamation Act of 1977 means those decisions or actions, which if 
performed or not performed by an employee, affect the programs under the 
Act.
    (b) Prohibitions. (1) Neither the Director nor any other employee of 
the Office of Surface Mining Reclamation and Enforcement or any other 
employee who performs functions or duties under the Surface Mining 
Control and Reclamation Act of 1977, 30 U.S.C. 1201 et seq., shall have 
a direct or indirect financial interest in underground or surface coal 
mining operations.
    (2) The Surface Mining Control and Reclamation Act of 1977, at 30 
U.S.C. 1211(f), provides that anyone who knowingly violates the 
prohibitions in that Act shall, upon conviction, be punished by a fine 
of not more than $2,500, or by imprisonment for not more than one year, 
or both.
    (c) Employees are encouraged to review regulations contained in 30 
CFR part 706 which pertain to the prohibitions restated in this section.



Sec. 20.403  Certificates of disclaimer.

    (a) Each employee of the U.S. Geological Survey, Bureau of Land 
Management, Minerals Management Service, and Office of Surface Mining 
Reclamation and Enforcement shall sign a certificate of disclaimer upon 
entrance to or upon transfer to a position within any of these bureaus. 
The employee's signature will indicate that he or she:
    (1) Is aware of the specific restrictions pertinent to his or her 
employment; and
    (2) Is in compliance with such restrictions.
    (b) If an employee is unable to sign the certificate, he or she must 
submit a statement of facts to the appropriate ethics counselor for 
review and appropriate action.
    (c) Signed certificates of disclaimer shall be filed and maintained 
by the employee's deputy ethics counselor.



              Subpart E--Other Employee Conduct Provisions



Sec. 20.501  General policy.

    Employees of the Department are expected to maintain especially high

[[Page 427]]

standards of honesty, integrity, impartiality, and conduct to ensure the 
proper performance of Government business and the continual trust and 
confidence of citizens in their Government. Employees are expected to 
comply with all Federal statutes, Executive Orders, Office of Government 
Ethics and Office of Personnel Management regulations, and Departmental 
regulations. The conduct of employees should reflect the qualities of 
courtesy, consideration, loyalty to the United States, a deep sense of 
responsibility for the public trust, promptness in dealing with and 
serving the public, and a standard of personal behavior which will be a 
credit to the individual and the Department. These principles apply to 
official conduct and to private conduct which affects in any way the 
ability of the employee or the Department to effectively accomplish the 
work of the Department.



Sec. 20.502  Conformance with policy and subordination to authority.

    Employees are required to carry out the announced policies and 
programs of the Department and to obey proper requests and directions or 
supervisors. While policies related to one's work are under 
consideration employees may, and are expected to, express their 
professional opinions and points of view. Once a decision has been 
rendered by those in authority, each employee is expected to comply with 
the decision and work to ensure the success of programs or issues 
affected by the decision. An employee is subject to appropriate 
disciplinary action, including removal, if he or she fails to:
    (a) Comply with any lawful regulations, orders, or policies; or
    (b) Obey the proper requests of supervisors having responsibility 
for his or her performance.



Sec. 20.503  Scope of authority.

    Employes shall not engage in any conduct or activity which is in 
excess of his or her authority, or is otherwise contrary to any law or 
announced Departmental policy.



Sec. 20.504  Selling or soliciting.

    Employees and other persons are prohibited from selling or 
soliciting for personal gain within any building or on any lands 
occupied or used by the Department. Exception is granted for Department-
authorized operations, including, but not limited to, the Interior 
Department Recreation Association, the Indian Arts and Crafts store, and 
for cafeteria, newsstand, snack bar and vending machine operations which 
are authorized by the Department of the benefit of employees or the 
public.



Sec. 20.505  Habitual use of intoxicants.

    An employee who habitually uses intoxicants to excess may be subject 
to removal (5 U.S.C. 7352).



Sec. 20.506  Appropriations, legislation and lobbying.

    (a) Unless expressly authorized by Congress, employees are 
prohibited from using any part of the money appropriated by any 
enactment of Congress to pay for any personal service, advertisement, 
telegram, telephone, letter, printed or written matter, or other device, 
intended or designed to influence in any manner a Member of Congress, to 
favor or oppose, by vote or otherwise, any legislation or appropriation 
by Congress, whether before or after the introduction of any bill or 
resolution proposing such legislation or appropriation; this prohibition 
does not prevent any employee from communicating to Members of Congress 
on the request of any Member or through proper official channels, 
requests for legislation or appropriations which they deem necessary for 
the efficient conduct of the public business (18 U.S.C. 1913).
    (b) When acting in their official capacity, employees are required 
to refrain from promoting or opposing legislation relating to programs 
of the Department without the official sanction of the property 
Departmental authority.
    (c) The rights of employees, individually or collectively, to 
otherwise petition Congress, or to a Committee or Member thereof, shall 
not be interfered with or denied (5 U.S.C. 7211).



Sec. 20.507  Unlawful organizations.

    An employee may not advocate the violent overthrow of our 
constitutional

[[Page 428]]

form of government nor may an employee be a member of an organization 
that he or she knows advocates the violent overthrow of our 
constitutional form of government (5 U.S.C. 7311).



Sec. 20.508  Notary.

    An employee is prohibited from charging fees for performance of any 
notarial act for any employee of the Federal Government who is acting in 
his or her official capacity, or for any person during the hours of such 
notary's service to the Government (E.O. 977, Nov. 24, 1908).



Sec. 20.509  Penalty mail and official stationery.

    (a) An employee is prohibited from using any official envelope, 
label, or indorsement authorized by law, to avoid the payment of postage 
or registry fee on his or her private letter, packet, package, or other 
matter in the mail (18 U.S.C. 1719).
    (b) Official Government envelopes and official letterhead stationery 
are Government property that may only be used for authorized purposes. 
Employees' use of Government envelopes to mail their own personal job 
applications is not authorized.



Sec. 20.510  Fraud or false statements in a Government matter.

    An employees shall not, in any matter within the jurisdiction of any 
department or agency of the United States, knowingly or willfully 
falsify, conceal or cover up by any trick, scheme, or device a material 
fact, or make any false, fictitious, fraudulent statements or 
representations, or make or use any false writing or document knowing 
the same to contain any false, fictitious or fraudulent statement or 
entry (18 U.S.C. 1001). Special attention is required in the 
certification of time and attendance reports, applications for 
employment, request for travel reimbursement, and purchase orders and 
receiving forms.



Sec. 20.511  Carrying of firearms.

    Employees, except those specifically designated to perform 
enforcement, police or other official duties requiring the use of 
firearms, are prohibited from carrying or having in their possession 
firearms on property under the control of the Secretary. Employees who 
are officially stationed in parks, refuges, Indian reservations, other 
Tribal lands or other wilderness areas which are known to be inhabited 
by wild animals, are permitted, when on those lands, to carry and use 
firearms for personal protection as permitted by existing policy or as 
authorized by the park, refuge or area supervisor. Notwithstanding this 
paragraph, employees who are not on official duty may carry firearms on 
Departmental lands under the same conditions and in accordance with 
procedures and authorizations established for members of the general 
public.



Sec. 20.512  Labor practices.

    Employees are prohibited from striking against the Government of the 
United States (5 U.S.C. 7311). Additional information regarding 
affiliation with employee organizations is found in the Department 
Manual, Part 370, Chapter 711, Labor Management Relations.



              Subpart F--Disciplinary and Remedial Actions



Sec. 20.601  General.

    This subpart deals with disciplinary actions and remedial actions 
for violations, or potential violations, of conflict of interest laws or 
of the regulations in this part or in 5 CFR part 2635 or 5 CFR part 
3501. Disciplinary action may include oral or written warning or 
admonishment, reprimand, suspension, reduction in grade or pay, removal 
from position or removal from office. Such action shall be taken in 
accordance with Departmental policies and procedures, applicable 
statutes, Executive Orders, regulations, and any applicable collective 
bargaining agreement provisions. Disciplinary action may be imposed 
independently from and without prior application of remedial actions, 
including those remedial actions listed in Sec. 20.602.



Sec. 20.602  Remedial action.

    (a)(1) Remedial action should normally be considered only after 
attempts to obtain voluntary resolution

[[Page 429]]

have failed. Voluntary resolution may include:
    (i) Voluntary divestiture;
    (ii) Voluntary conversion to securities which are not prohibited, or 
the holding of which would not violate law or regulation; or
    (iii) Voluntary reassignment to another position.
    (2) If the bureau Ethics Counselor decides that remedial action is 
required, such action shall be initiated within a reasonable time, 
usually 90 days.
    (b) Remedial action may include:
    (1) Reassignment or disqualification of the employee. It may be 
possible for the employee to be reassigned to another job, or to be 
disqualified from performing particular duties. Although the number of 
cases where this remedy can be used should be rare, the possibility 
should be explored before divestiture of an interest is ordered.
    (2) Waiver. (i) The Designated Agency Ethics Official (DAEO) is 
authorized to make a written advance determination pursuant to 18 U.S.C. 
208(b)(1) waiving the prohibitions of 18 U.S.C. 208(a) for any 
Department employee except the Secretary and those employees in the same 
organization as the DEAO, i.e., the Department's Office of Policy, 
Management and Budget. The Secretary or the Deputy Secretary shall issue 
individual waivers pursuant to 18 U.S.C. 208(b)(1) for employees in the 
Office of Policy, Management and Budget.
    (ii) In the case of a special Government employee serving on an 
advisory committee within the meaning of the Federal Advisory Committee 
Act, 5 U.S.C. App. (including an individual being considered for an 
appointment to such a position), the DAEO, after review of the financial 
disclosure report filed by the individual pursuant to the Ethics in 
Government Act of 1978, 5 U.S.C. App., is authorized to certify in 
writing that the need for the individual's services outweighs the 
potential for a conflict of interest created by the financial interest 
involved.
    (iii) The DAEO may grant a waiver under 5 CFR 3501.103(e) from the 
regulatory restrictions at 5 CFR 3501.103 (b) and (c).
    (3) Divestiture of the interest. An employee may be required to 
divest an interest, including outside employment, that is prohibited by 
law or regulation. Divestiture of the interest shall be ordered in all 
situations where it is determined by the appropriate official that there 
is no other satisfactory remedy. Evidence of divestiture must be 
provided in the form of broker's sale receipt or other appropriate 
document.

    Note to paragraph (b)(3): It may be possible in certain cases for 
the tax consequences of divestiture to be delayed, if the interest is 
sold pursuant to a certificate of divestiture issued before the sale by 
the Director, U.S. Office of Government Ethics. See 5 CFR part 2634, 
subpart J.

    (c) Authority to order remedial action. (1) Each bureau Ethics 
Counselor is authorized to order remedial actions within his or her 
bureau. The advice of the appropriate Regional Solicitor, the Associate 
Solicitor--Division of General Law, or the Designated Agency Ethics 
Official or his or her designee may be sought before such an order is 
issued. This authority to order remedial action may not be redelegated.
    (2) The Deputy Assistant Secretary for Policy is authorized to order 
remedial actions for employees within the Office of the Secretary, 
except that the Secretary shall order remedial actions in situations 
involving the Deputy Secretary.
    (d) An employee who fails to comply with an order for remedial 
action is considered to be in violation of this part and shall be 
subject to disciplinary action.



Sec. 20.603   Appealing an order for remedial action.

    (a) When and how to appeal. An employee has the right to appeal an 
order for remedial action under Sec. 20.602, and shall have 30 days from 
the date of the remedial action order to exercise this right before any 
disciplinary action may be initiated. For appeals of remedial orders 
issued under Sec. 20.602, the procedures described in 370 DM 771 may not 
be used in lieu of or in addition to those of this section. Each appeal 
shall be in writing and shall contain:
    (1) The basis for appeal;
    (2) Fact(s) supporting the basis; and
    (3) The telephone number where appellant can be reached to discuss 
facts pertinent to the appeal.

[[Page 430]]

    (b) Where to appeal. (1) Orders for remedial action issued by an 
Ethics Counselor may be appealed to the Deputy Secretary, whose decision 
shall be final.
    (2) Orders for remedial action issued by the Deputy Secretary may be 
appealed to the Secretary, whose decision shall be final.
    (c) Review Board analysis and recommendations. (1)(i) Each appeal 
shall be considered by a Review Board consisting of:
    (A) A program Assistant Secretary selected by the Designated Agency 
Ethics Official;
    (B) The Associate Solicitor or the Deputy Associate Solicitor, 
Division of General law; and
    (C) The Director or Deputy Director of the Departmental Office of 
Personnel within the Department.
    (ii) Assistant Secretaries may delegate authority to serve on the 
Review Board to a Deputy Assistant Secretary who has not been involved, 
and who has not advised or made a decision on the issue or on the order 
for remedial action.
    (2) The Deputy Agency Ethics Official or his or her assistant shall 
serve as secretary to the Review Board, except for cases in which he or 
she has previously participated. In such cases, the Review Board shall 
designate an employee who has not previously been involved with the case 
to serve as secretary.
    (3) The Review Board members shall: (i) Obtain from the appropriate 
ethics counselor a full statement of actions and considerations which 
led to the order for remedial action including any supporting 
documentation or files used by the Ethics Counselor.
    (ii) Obtain from the employee all facts, information, exhibits for 
documents which he or she feels should be considered before a final 
decision is made.
    (iii) The secretary to the Review Board shall prepare a summary of 
the facts pertinent to the appeal. When appropriate, the Review Board 
may provide for personal appearance by the appellant before the Review 
Board if necessary to ascertain the circumstances concerning the appeal 
or may designate the Review Board secretary or another employee to 
conduct further fact finding, or may do both. Fact finding procedures 
shall be carried out by a person(s) who:
    (A) Has not been involved in the matter being appealed; and
    (B) Does not occupy a position subordinate to any official who 
recommended, advised, made a decision on, or who otherwise is or was 
involved in, the matter being appealed.
    (iv) Establish a file containing all documents related to the 
appeal, which shall be available to the appellant and his or her 
representative.
    (v) Provide to the official who will decide the appeal an advisory 
recommendation on the appeal. The views of dissenting members of the 
Review Board shall also be provided.
    (d) Assurances to the appellant. Each appellant is assured of:
    (1) Freedom from restraint, interference, coercion, discrimination 
or reprisal in presenting an appeal;
    (2) A reasonable amount of official time to present the appeal if 
the employee is otherwise in a duty status;
    (3) The right to obtain counseling from an ethics counselor of the 
Department; and
    (4) The right to be accompanied, represented, and advised by a 
representative of his or her own choosing, except that the Review Board 
may disallow the choice of an individual as a representative if such 
representation would result in a conflict of interest or position, would 
conflict with the priority needs of the Department, or which would give 
rise to unreasonable costs to the Government.
    (e) Assurances to the appellant's representative. Each person chosen 
to represent an appellant is assured of:
    (1) Freedom from restraint, interference, coercion, discrimination 
or reprisal; and
    (2) A reasonable amount of official time to present the appeal if 
the representative is an employee of the Department and is otherwise in 
a duty status.

[[Page 431]]



PART 21--OCCUPANCY OF CABIN SITES ON PUBLIC CONSERVATION AND RECREATION AREAS--Table of Contents




Sec.
21.1  Purpose.
21.2  Scope of regulations.
21.3  Definitions.
21.4  Occupancy under permit of privately owned cabins on recreation 
          areas and conservation areas.
21.5  Occupancy under permit of Government-owned cabins on public 
          recreation and conservation areas.
21.6  Cabin site occupancy where a recreation or conservation area has 
          been leased to, or turned over to, another Federal or non-
          Federal public agency for administration.
21.7  Occupancy by trespassers.
21.8  Appeals.

    Authority: Sec. 10, 32 Stat. 390; 43 U.S.C. 373; 52 Stat. 609, as 
amended, 43 U.S.C. 682; R.S. 2478, 43 U.S.C. 1201; 44 Stat. 471, as 
amended, 43 U.S.C. 869; 76 Stat. 653, 16 U.S.C. 460; 48 Stat. 402, as 
amended, 16 U.S.C. 664; 33 Stat. 614, 16 U.S.C. 686; 45 Stat. 448, 16 
U.S.C. 690; 43 Stat. 651, 16 U.S.C. 725; 48 Stat. 1270, 43 U.S.C. 315; 
39 Stat. 535, 16 U.S.C. 3.

    Source: 32 FR 8361, June 10, 1967, unless otherwise noted.



Sec. 21.1  Purpose.

    This part establishes (a) when, and by what standards, use of 
conservation and recreation areas under private cabin permits must be 
modified or discontinued so as to allow the public use of such areas and 
(b) the procedures for renewing, extending, phasing out, or terminating 
private cabin permits. No current permits or any valid existing rights, 
are, per se, canceled by the provisions of this part. However, permits 
may be canceled for cause, or pursuant to termination provisions within 
the permit itself.



Sec. 21.2  Scope of regulations.

    The provisions of this part apply to all recreation or conservation 
areas administered by the Department of the Interior, including 
recreation or conservation areas leased or transferred for 
administration to other Federal and non-Federal public agencies, 
wherever the Department of the Interior retains jurisdiction over the 
issuance of cabin site permits by such other agencies. The provisions of 
this part do not modify or cancel any existing arrangement whereby the 
Department of the Interior or bureau or office thereof has leased, or 
turned over for administration, a public recreation or conservation area 
to another Federal or non-Federal public agency. The provisions of this 
part will also provide policy guidelines for the Departmental handling 
of assignments, amendments, or modifications of existing permits or 
agreements, but do not apply to areas transferred by deed where the 
United States retains a reversionary interest, nor to areas of the 
National Park System other than those where private cabin sites are 
located.
    (a) The policies set out in this part shall not affect occupancy by 
private persons who have private rights, or rights of occupancy 
adjudicated or confirmed by court action, statute, or pursuant to a 
contract by which they conveyed to the Government the land on which a 
cabin or other substantial improvement is located.
    (b) The policies set out in this part shall not apply to any 
concession contract or to any other permit or occupancy primarily 
granted to serve public rather than private or individual purposes-- 
such as, permits granted to groups who assist in maintaining historic 
trails, or permits for youth and church group camp facilities, etc.
    (c) The regulations in this part shall not supersede or 
substantially contravene the implementation of the Lower Colorado River 
Land Use Plan.



Sec. 21.3  Definitions.

    (a) Public recreation area or recreation area means any land, title 
to which is in the United States and under the administration or 
jurisdiction of the Department of the Interior that is suitable for 
recreational purposes, including all such areas of the National Park 
System not excepted by Sec. 21.2, Bureau of Reclamation Reservoir areas, 
and any other areas dedicated to or administered by the Department for 
public recreational use.
    (b) Conservation area means any land, title to which is in the 
United States and under the administration or jurisdiction of the 
Department of the Interior that is designated for fish, wildlife,

[[Page 432]]

or other conservation purposes, including all such areas of the National 
Wildlife Refuge Systems, National Fish Hatchery Systems, and any other 
such areas administered by the U.S. Fish and Wildlife Service; also, 
land administered by the Bureau of Land Management and suitable for 
conservation or protection of fish or wildlife.
    (c) Permit means any lease, license, or other contract whereby a 
public recreation or conservation area is made available, in whole or 
part, to an individual or group for recreational purposes for a 
stipulated period of time, but does not include leases or transfers to 
other Federal or non-Federal public agencies.
    (d) Cabin site means any area within a public recreation or 
conservation area whose occupancy and use is granted to an individual or 
group for a period of time by permit.
    (e) Substantial improvement means any building, structure, or other 
relatively permanent facility or improvement affixed to a cabin site, 
utilized for human occupancy or related purposes, and costing or worth 
$1,000 or more. It does not include trailers or similar removable 
facilities.
    (f) Investment in a substantial improvement refers to the basic 
expenditure of moneys or property in kind in connection with a 
particular improvement. Thus, for example, where property is conveyed by 
testamentary or inter vivos gift, the donee will be seen only as 
occupying the position of the donor with respect to the time and amount 
of the investment since it was the donor who made the investment.
    (g) Amortization is the process whereby the investor in a 
substantial improvement derives sufficient use and/or economic benefit 
from the improvement over a period of time as to reasonably compensate 
for his investment.
    (h) Trespasser means any person who is occupying land in a public 
recreation or conservation area without a valid permit.
    (i) Authorized Officer means any person or persons designated by the 
head of any bureau or office of the Department with administrative 
jurisdiction over a particular conservation or recreation area, to make 
determinations and take other actions, consistent with the regulations 
in this part with respect to such area.



Sec. 21.4  Occupancy under permit of privately owned cabins on recreation areas and conservation areas.

    (a) In any areas where the Authorized Officer determines that the 
recreational requirements of the general public are limited, and is an 
area where private cabin site use has heretofore been permitted, he may 
extend or renew permits. Each such existing permit and any extension or 
renewal thereof will be:
    (1) Reviewed at least once in every 5-year period to determine that 
the continued use of the individual cabin site is not inconsistent with 
the needs of the general public for use of the area. In periodically 
reviewing whether the existence of private cabin sites conflicts with 
the best public use of an area, consideration shall be given to (i) 
existing and projected public need for the area, (ii) compatibility 
between public uses and private cabin sites, (iii) development potential 
and plans for the area, and (iv) other relevant factors.
    (2) Whenever the Authorized Officer determines that the public need 
for use of a recreation or conservation area has grown to a point where 
continued private cabin site use is no longer in the public interest, 
the procedures set forth in paragraph (b) of this section will be 
invoked to phase out existing permits by reducing and eliminating 
renewals, or extensions, consistent with protection of legitimate 
investment in improvements. These determinations and the reasons 
therefor shall be published in the Federal Register, together with such 
other forms of public notice as may be appropriate and necessary as 
determined by the Authorized Officer.
    (3) Except as otherwise provided in an existing permit, no 
substantial improvement may hereafter be placed on any cabin site under 
permit without the prior approval of the Authorized Officer, and on such 
terms as the Authorized Officer may provide, consistent with public 
need. All renewed or extended permits shall contain this provision. Any 
such provision shall expressly state that the permission to

[[Page 433]]

place a substantial improvement on the site is a limited license subject 
to public need for the area and does not give the owner of the 
improvement any interest in the land or any special rights or equities, 
other than the right to remove the improvement at any time, subject to 
the land being left in reasonably unimpaired condition. This provision 
shall expressly stipulate that the owner shall have as a time period 
within which to amortize his investment in a substantial improvement 
placed on the site after the date of the regulations in this part, only 
the period of his existing permit, together with such extensions of his 
permit as may be granted consistent with the regulations in this part.
    (b) Whenever the Authorized Officer determines, pursuant to 
paragraph (a)(2) of this section that the needs of the general public 
for a particular public recreation or conservation area are sufficient 
to be inconsistent with further use of that area for private cabin 
sites, no further extension, or renewals of permits for any individual 
site shall, except as otherwise required by law, be granted for any 
period extending more than 5 years after the effective date of that 
determination: Provided, however, That, except as otherwise required by 
law, if an investment was made in a substantial improvement upon a site 
before the effective date of this part, the extension or renewal of the 
permit for such site shall be made for a period sufficient to permit 20 
years amortization of the investment from the date of the investment in 
the improvement upon the site, unless the Authorized Officer finds that 
the needs of the general public for that site require that the extension 
or renewal be for a lesser period. Thus, for example, if a permit for 
the site is purchased before the effective date of the regulations in 
this part with the substantial improvement then in place, for a 
consideration of $1,000 or more, such amortization period runs from the 
purchase date, and is not affected, in any event, by the date of the 
determination under paragraph (a) of this section. The amortization 
period for any investment in a substantial improvement on or after the 
effective date of the regulations in this part is covered by paragraph 
(a)(3) of this section, this paragraph (b), and paragraph (b)(5) of this 
section.
    (1) Any permit, in an area required for general public recreation or 
conservation use, that expires prior to 5 years after the determination 
described in this paragraph (b), may, if otherwise authorized by law, be 
extended to the end of such 5 years if the Authorized Officer determines 
that such extension is necessary to the fair and efficient 
administration of this part.
    (2) Any renewal or extension of a permit pursuant to this part shall 
be subject to the condition that the occupant maintain the site and the 
improvements thereon in a good and serviceable condition, ordinary wear 
and tear excluded.
    (3) Any renewal or extension of a permit shall expressly state its 
termination date and that there will be no extension or renewal 
thereafter, except as provided by this part. Permits shall expressly 
state that they grant no vested property right but afford only a limited 
license to occupy the land, pending a greater public use.
    (4) Upon termination of occupancy under a permit, its renewal or 
extension, the permittee shall remove his improvements from the site 
within 90 days from the date of termination, and the land shall be left 
in reasonably unimpaired condition and as near to its original 
undisturbed condition as possible. Any property not so removed shall 
become the property of the United States or may be moved off the site, 
at the cost of the permittee. Any renewal, or extension, of a permit 
shall state these requirements.
    (5) Voluntary and involuntary transfers of cabin site permits, 
including by sale, devise, inheritance, or otherwise, may be permitted, 
subject to approval by the Authorized Officer, subject to the terms, 
conditions, and restrictions in the permit. No such transfer shall 
operate to extend the terms of a permit. A transfer after the effective 
date of the regulations in this part shall give the transferee no rights 
in addition to those which the transferor had. Where any transfer of a 
cabin site permit is approved, the approval shall state in writing the 
requirements of

[[Page 434]]

this paragraph, and include the statement that the amortization period 
for any substantial improvement located on the site shall be limited to 
the period to which the transferor would have been entitled under the 
regulations in this part.
    (6) Nonuse of a site for a period of more than 2 consecutive 
calendar years shall terminate the permit without right of renewal 
(subject to the specific terms of the permit): Provided, however, That 
where the nonuse is the result of the death, illness, or military 
service of the permittee the Authorized Officer may waive such nonuse. 
In such case, sale or transfer of the improvement may be made for the 
unexpired portion of the permit and subject to the provisions for 
amortization set forth in this section. The Authorized Officer may make 
exceptions to this termination provision in any case where he determines 
that the needs of the general public so require (see introductory text 
of this paragraph (b)). All permits renewed, or extended after the 
effective date of this part shall state the requirements of this 
paragraph.



Sec. 21.5  Occupancy under permit of Government-owned cabins on public recreation and conservation areas.

    (a) Those permittees who occupy Government-owned cabins, including 
those whose permits currently have expired, but previously have been 
renewed on a year-to-year basis, may have their permits renewed up to 
July 1, 1969. After that date, the permits shall not be renewed and 
shall be terminated finally except upon a determination by the 
Authorized Officer that a renewal or extension is fully consistent with 
the public use of the area.
    (b) The provisions for amortization of substantial improvements do 
not apply to this type of occupancy.



Sec. 21.6  Cabin site occupancy where a recreation or conservation area has been leased to, or turned over to, another Federal or non-Federal public agency for 
          administration.

    (a) After the effective date of this part, any agreement whereby a 
recreation or conservation area is leased or turned over to another 
Federal or non-Federal public agency for administration, shall include 
the requirement that any permits to individuals, groups or others issued 
or extended by another Federal or non-Federal public agency to whom an 
area has been leased or transferred for administration, shall comply 
with, and set forth on the face of the permit, the requirements stated 
in this part. Similar requirements shall be applied in situations where 
an existing agreement reserves such authority to this Department.
    (b) All such arrangements between another public agency and a 
permittee (see Sec. 21.2) shall be reviewed by the Authorized Officer to 
assure full compliance with those provisions of the permit which are 
designed to assure performance in the best interests of the general 
public.
    (c) Renewals, extensions, or new leases or transfers to other 
Federal, State, or local agencies for administration of public 
recreation areas, shall be granted only pursuant to the policies set 
forth in this part, and only upon an affirmative finding by the 
Authorized Officer that they are fully consistent with present and 
future public uses. All applicable safeguards set forth in this part, 
including the protection of future public uses, shall be expressly 
incorporated into such leases or transfers.



Sec. 21.7  Occupancy by trespassers.

    Occupants of cabin sites who do not hold a valid permit for the 
occupancy or use of the site, shall be required to surrender occupancy, 
failing which legal action shall be taken. Nothing herein shall grant 
any rights to a trespasser.



Sec. 21.8  Appeals.

    Any determination made pursuant to any of the provisions of this 
part may be appealed to the Director, Office of Hearings and Appeals, in 
accordance with the general rules set forth in subpart B of part 4 of 
this title and the special procedural rules in subpart G of part 4 of 
this title, applicable to proceedings in appeals cases which do not lie 
within the appellate jurisdiction of an established Appeals Board of the 
Office of Hearings and Appeals.

[36 FR 7206, Apr. 15, 1971]

[[Page 435]]



PART 22--ADMINISTRATIVE CLAIMS UNDER THE FEDERAL TORT CLAIMS ACT AND INDEMNIFICATION OF DEPARTMENT OF THE INTERIOR EMPLOYEES--Table of Contents




                  Subpart A--Administrative Tort Claims

Sec.
22.1  Purpose.
22.2  Provisions of law and regulations thereunder.
22.3  Procedure for filing claims.
22.4  Denial of claims.
22.5  Payment of claims.

   Subpart B--Indemnification of Department of the Interior Employees

22.6  Policy.

    Authority: 28 U.S.C. 2671-2680; 5 U.S.C. 301.

    Source: 32 FR 6683, May 2, 1967, unless otherwise noted.



                  Subpart A--Administrative Tort Claims



Sec. 22.1  Purpose.

    (a) The purpose of this part is to establish procedures for the 
filing and settlement of claims accruing on and after January 18, 1967, 
under the Federal Tort Claims Act (in part, 28 U.S.C. 2401(b), 2671-
2680, as amended by Pub. L. 89-506, 80 Stat. 306).
    (b) [Reserved]

[32 FR 6683, May 2, 1967, as amended at 47 FR 38329, Aug. 31, 1982]



Sec. 22.2  Provisions of law and regulations thereunder.

    (a) Section 2672 of title 28 U.S. Code, as above amended, provides 
that:

    The head of each Federal agency or his designee, in accordance with 
regulations prescribed by the Attorney General, may consider, ascertain, 
adjust, determine, compromise, and settle any claim for injury or death 
caused by the negligent or wrongful act or omission of any employee of 
the agency while acting within the scope of his office or employment, 
under circumstances where the United States, if a private person, would 
be liable to the claimant in accordance with the law of the place where 
the act or omission occurred: Provided, That any award, compromise, or 
settlement in excess of $25,000 shall be effected only with the prior 
written approval of the Attorney General or his designee.
    Subject to the provisions of this title relating to civil actions on 
tort claims against the United States, any such award, compromise, 
settlement, or determination shall be final and conclusive on all 
officers of the Government, except when procured by means of fraud.
    Any award, compromise, or settlement in an amount of $2,500 or less 
made pursuant to this section shall be paid by the head of the Federal 
agency concerned out of appropriations available to that agency. Payment 
of any award, compromise, or settlement in an amount in excess of $2,500 
made pursuant to this section or made by the Attorney General in any 
amount pursuant to section 2677 of this title shall be paid in a manner 
similar to judgments and compromises in like causes and appropriations 
or funds available for the payment of such judgments and compromises are 
hereby made available for the payment of awards, compromises, or 
settlements under this chapter.
    The acceptance by the claimant of any such award, compromise, or 
settlement shall be final and conclusive on the claimant, and shall 
constitute a complete release of any claim against the United States and 
against the employee of the Government whose act or omission gave rise 
to the claim, by reason of the same subject matter.

    (b) Subsection (a) of section 2675 of said title 28 provides that:

    An action shall not be instituted upon a claim against the United 
States for money damages for injury or death caused by the negligent or 
wrongful act or omission of any employee of the Government while acting 
within the scope of his office or employment, unless the claimant shall 
have first presented the claim to the appropriate Federal agency and his 
claim shall have been finally denied by the agency in writing and sent 
by certified or registered mail. The failure of any agency to make final 
disposition of a claim within 6 months after it is filed shall, at the 
option of the claimant any time thereafter, be deemed a final denial of 
the claim for purposes of this section. The provisions of this 
subsection shall not apply to such claims as may be asserted under the 
Federal Rules of Civil Procedure by third party complaint, cross-claim, 
or counter-claim.

    (c) Section 2678 of said title 28, as amended, provides that no 
attorney shall charge fees in excess of 25 percent of a judgment or 
settlement after litigation, or in excess of 20 percent of 
administrative settlements.
    (d) Subsection (b) of section 2679 of said title 28 provides that 
tort remedies against the United States resulting from the operation of 
any employee of

[[Page 436]]

the Government of any motor vehicle while acting within the scope of his 
employment shall be exclusive of any other civil action or proceeding 
against the employee or his estate.
    (e) Subsection (b) of section 2401 of said title 28 provides:

    A tort claim against the United States shall be forever barred 
unless it is presented in writing to the appropriate Federal agency 
within 2 years after such claim accrues or unless action is begun within 
6 months after the date of mailing, by certified or registered mail, of 
notice of final denial of the claim by the agency to which it was 
presented.

    (f) The Federal Tort Claims Act, as amended, shall apply to claims 
accruing 6 months or more after date of its enactment (date of 
enactment, July 18, 1966).
    (g) Pursuant to section 2672 of title 28, United States Code, as 
amended, the Attorney General has issued regulations (herein referred to 
as ``the Regulations''; 28 CFR part 14), prescribing standards and 
procedures for settlement of tort claims (31 FR 16616). The officers to 
whom authority is delegated to settle tort claims shall follow and be 
guided by such Regulations (28 CFR part 14).



Sec. 22.3  Procedure for filing claims.

    (a) The procedure for filing and the contents of claims shall be 
pursuant to Secs. 14.2, 14.3 and 14.4 of the regulations (28 CFR part 
14).
    (b) Claims shall be filed directly with the local field office of 
the Bureau or Office of the Department out of whose activities the 
accident or incident occurred.
    (c) Upon receipt of a claim, the time and date of receipt shall be 
recorded. The claim shall be forwarded with the investigative file 
immediately to the appropriate Associate, Regional, or Field Solicitor 
for determination.

(5 U.S.C. 301, 5 U.S.C. 552)

[40 FR 53591, Nov. 19, 1975]



Sec. 22.4  Denial of claims.

    Denial of a claim shall be communicated as provided by Sec. 14.9 of 
the regulations (28 CFR part 14).



Sec. 22.5  Payment of claims.

    (a) When an award of $2,500 or less is made, the voucher signed by 
the claimant shall be transmitted for payment to the appropriate Bureau 
or Office of the Department. When an award over $2,500 is made, 
transmittal for payment will be made as prescribed by Sec. 14.10 of the 
regulations (28 CFR part 14).
    (b) Prior to payment appropriate releases shall be obtained as 
provided in said section.



   Subpart B--Indemnification of Department of the Interior Employees



Sec. 22.6  Policy.

    (a) The Department of the Interior may indemnify a Department 
employee, who is personally named as a defendant in any civil suit in 
state or federal court or an arbitration proceeding or other proceeding 
seeking damages against a Department employee personally, for any 
verdict, judgment, or other monetary award which is rendered against 
such employee, provided that the conduct giving rise to the verdict, 
judgment, or award was taken within the scope of his or her employment 
and that such indemnification is in the interest of the Department of 
the Interior as determined by the Secretary or his designee.
    (b) The Department of the Interior may settle or compromise a 
personal damage claim against a Department employee by the payment of 
available funds, at any time, provided the alleged conduct giving rise 
to the personal damage claim was taken within the employee's scope of 
employment and that such settlement or compromise is in the interest of 
the Department of the Interior as determined by the Secretary or his 
designee.
    (c) Absent exceptional circumstances as determined by the Secretary 
or his designee, the Department will not entertain a request either to 
agree to indemnify or to settle a personal damage claim before entry of 
an adverse verdict, judgment, or award.
    (d) A Department employee may request indemnification to satisfy a 
verdict, judgment, or award entered

[[Page 437]]

against the employee. The employee shall submit a written request, with 
appropriate documentation including copies of the verdict, judgment, 
award, or settlement proposal, in a timely manner to the Solicitor, who 
shall make a recommended disposition of the request. Where appropriate, 
the Department shall seek the views of the Department of Justice. The 
Solicitor shall forward the request, the accompanying documentation, and 
the Solicitor's recommendation to the Secretary or his designee for 
decision.
    (e) Any payment under this section either to idemnify a Department 
of the Interior employee or to settle a personal damage claim shall be 
contingent upon the availability of appropriated funds of the Department 
of the Interior.

[55 FR 4610, Feb. 9, 1990]



PART 23--SURFACE EXPLORATION, MINING AND RECLAMATION OF LANDS--Table of Contents




Sec.
23.1  Purpose.
23.2  Scope.
23.3  Definitions.
23.4  Application for permission to conduct exploration operations.
23.5  Technical examination of prospective surface exploration and 
          mining operations.
23.6  Basis for denial of a permit, lease, or contract.
23.7  Approval of exploration plan.
23.8  Approval of mining plan.
23.9  Performance bond.
23.10  Reports: Inspection.
23.11  Notice of noncompliance: Revocation.
23.12  Appeals.
23.13  Consultation.

    Authority: Sec. 32, 41 Stat. 450, as amended; 30 U.S.C. 189; sec. 5, 
44 Stat. 1058; 30 U.S.C. 285; sec. 10, 61 Stat. 915; 30 U.S.C. 359; and 
sec. 2, 48 Stat. 1270; 43 U.S.C. 315.

    Source: 34 FR 852, Jan. 18, 1969, unless otherwise noted.



Sec. 23.1  Purpose.

    It is the policy of this Department to encourage the development of 
the mineral resources under its jurisdiction where mining is authorized. 
However, the public interest requires that, with respect to the 
exploration for, and the surface mining of, such minerals, adequate 
measures be taken to avoid, minimize, or correct damage to the 
environment--land, water, and air--and to avoid, minimize, or correct 
hazards to the public health and safety. The regulations in this part 
prescribe procedures to that end.



Sec. 23.2  Scope.

    (a) Except as provided in paragraph (b) of this section, the 
regulations in this part provide for the protection and conservation of 
nonmineral resources during operations for the discovery, development, 
surface mining, and onsite processing of minerals under permits, leases, 
or contracts issued pursuant to: The Mineral Leasing Act of February 25, 
1920, as amended (30 U.S.C. 181-287); the Mineral Leasing Act for 
Acquired Lands (30 U.S.C. 251-359); and title 23, United States Code, 
section 317, relating to appropriation for highway purposes of lands 
owned by the United States.
    (b) The regulations in this part do not cover the exploration for 
oil and gas or the issuance of leases, or operations thereunder, for oil 
and gas under the mineral leasing acts, which are covered by regulations 
in subpart 3107 and part 3120 of this title and 30 CFR part 221; neither 
do they cover minerals underlying Indian tribal or allotted lanes, which 
are subject to regulations in title 25 CFR, nor minerals subject to the 
general mining laws (30 U.S.C. 21 through 54); nor minerals under the 
Materials Act; nor minerals underlying lands, the surface of which is 
not owned by the U.S. Government; nor minerals or operations subject to 
the provisions of 43 CFR subpart 3041.

    Note: See Redesignation Table 2 of 43 CFR part 4000 to End, for 
appropriate sections of former subpart 3107 and part 3120 referred to in 
the above paragraph (b).

    (c) The regulations in this part shall apply only to permits, 
leases, or contracts issued subsequent to the date on which the 
regulations become effective.

[34 FR 852, Jan. 18, 1969, as amended at 37 FR 12801, June 29, 1972; 41 
FR 20273, May 17, 1976; 48 FR 27016, June 10, 1983]

[[Page 438]]



Sec. 23.3  Definitions.

    As used in the regulations in this part:
    (a) Mineral leasing acts means the Mineral Leasing Act of February 
25, 1920, as amended and supplemented (30 U.S.C. 181-287) and the 
Mineral Leasing Act for Acquired Lands (30 U.S.C. 351-359);
    (b) Mining Supervisor means the Area Mining Supervisor, or his 
authorized representative, of the Geological Survey authorized as 
provided in 30 CFR 211.3 and 231.2 to supervise operations on the land 
covered by a permit or lease;
    (c) District manager means the manager of the district office or 
other authorized officer of the Bureau of Land Management having 
administrative jurisdiction of and responsibility for the land covered 
by a permit, lease, contract, application, or offer;
    (d) Overburden means all the earth and other materials which lie 
above a natural deposit of minerals and such earth and other materials 
after removal from their natural state in the process of mining;
    (e) Area of land to be affected or area of land affected means the 
area of land from which overburden is to be or has been removed and upon 
which the overburden or waste is to be or has been deposited, and 
includes all lands affected by the construction of new roads or the 
improvement or use of existing roads to gain access to an operation and 
for haulage;
    (f) Operation means all of the premises, facilities, roads, and 
equipment used in the process of determining the location, composition 
or quality of a mineral deposit, or in developing, extracting, or onsite 
processing of a mineral deposit in a designated area;
    (g) Method of operation means the method or manner by which a cut or 
open pit is made, the overburden is placed or handled, water is 
controlled or affected and other pacts performed by the operator in the 
process of exploring or uncovering and removing or onsite processing of 
a mineral deposit;
    (h) Holder or Operator means the permittee, leasee, or contractor 
designated in a permit, lease, or contract;
    (i) Reclamation means measures undertaken to bring about the 
necessary reconditioning or restoration of land or water that has been 
affected by exploration or mineral development, mining or onsite 
processing operations, and waste disposal, in ways which will prevent or 
control onsite and offsite damage to the environment.

[34 FR 852, Jan. 18, 1969, as amended at 38 FR 10009, Apr. 23, 1973; 48 
FR 27016, June 10, 1983]



Sec. 23.4  Application for permission to conduct exploration operations.

    No person shall, in any manner or by any means which will cause the 
surface of lands to be disturbed, explore, test, or prospect for 
minerals (other than oil and gas) subject to disposition under the 
mineral leasing acts without first filing an application for, and 
obtaining, a permit, lease or contract which authorizes such exploring, 
testing, or prospecting.

[34 FR 852, Jan. 18, 1969, as amended at 48 FR 27016, June 10, 1983]



Sec. 23.5  Technical examination of prospective surface exploration and mining operations.

    (a)(1) In connection with an application for a permit or lease under 
the mineral leasing acts, the district manager shall make, or cause to 
be made, a technical examination of the prospective effects of the 
proposed exploration or surface mining operations upon the environment. 
The technical examination shall take into consideration the need for the 
preservation and protection of other resources, including recreational, 
scenic, historic, and ecological values; the control of erosion, 
flooding, and pollution of water; the isolation of toxic materials; the 
prevention of air pollution; the reclamation by revegetation, 
replacement of soil, or by other means, of lands affected by the 
exploration or mining operations; the prevention of slides; the 
protection of fish and wildlife and their habitat; and the prevention of 
hazards to public health and safety.
    (2) A technical examination of an area should be made with the 
recognition that actual potential mining sites and mining operations 
vary widely with respect to topography, climate, surrounding land uses, 
proximity to densely used areas, and other environmental influences and 
that mining and

[[Page 439]]

reclamation requirements should provide sufficient flexibility to permit 
adjustment to local conditions.
    (b) Based upon the technical examination, the district manager shall 
formulate the general requirements which the applicant must meet for the 
protection of nonmineral resources during the conduct of exploration or 
mining operations and for the reclamation of lands or waters affected by 
exploration or mining operations. The general requirements shall be made 
known in writing to the applicant before the issuance of a permit or 
lease or the making of a contract, and upon acceptance thereof by the 
applicant, shall be incorporated in the permit, lease, or contract. If 
an application or offer is made under the Mineral Leasing Act for 
Acquired Lands and if the lands are under the jurisdiction of an agency 
other than the Department of the Interior, the requirements must 
incorporate provisions prescribed by that agency. If the application or 
offer is made under the Mineral Leasing Act of February 25, 1920, and if 
the lands are under the jurisdiction of an agency other than the 
Department of the Interior, the district manager shall consult 
representatives of the agency administering the land and obtain their 
recommendations for provisions to be incorporated in the general 
requirements. If the district manager does not concur in the 
recommendations, the issues shall be referred for resolution to the 
Under Secretary of the Department of the Interior and the comparable 
officer of the agency submitting the recommendations. In the case of 
disagreement on the issues which are so referred, the Secretary of the 
Interior shall make a determination on the recommendations which shall 
be final and binding.
    (c) In each instance in which an application or offer is made under 
the mineral leasing acts, the mining supervisor shall participate in the 
technical examination and in the formulation of the general 
requirements. If the lands covered by an application or offer are under 
the jurisdiction of a bureau of the Department of the Interior other 
than the Bureau of Land Management, the district manager shall consult 
representatives of the bureau administering the land. If the lands 
covered by the application or offer are under the jurisdiction of an 
agency other than the Department of the Interior and that agency makes a 
technical examination of the type provided for in paragraph (a) of this 
section, district managers and mining supervisors are authorized to 
participate in that examination.
    (d) Whenever it is determined that any part of the area described in 
an application or offer for a permit, lease, or contract is such that 
previous experience under similar conditions has shown that operations 
cannot feasibly be conducted by any known methods or measures to avoid--
    (1) Rock or landslides which would be a hazard to human lives or 
endanger or destroy private or public property; or
    (2) Substantial deposition of sediment and silt into streams, lakes, 
reservoirs; or
    (3) A lowering of water quality below standards established by the 
appropriate State water pollution control agency, or by the Secretary of 
the Interior; or
    (4) A lowering of the quality of waters whose quality exceeds that 
required by the established standards--unless and until it has been 
affirmatively demonstrated to the State water pollution control agency 
and to the Department of the Interior that such lowering of quality is 
necessary to economic and social development and will not preclude any 
assigned uses made of such waters; or
    (5) The destruction of key wildlife habitat or important scenic, 
historical, or other natural or cultural features; the district manager 
may prohibit or otherwise restrict operations on such part of an area.
    (e) If, on the basis of a technical examination, the district 
manager determines that there is a likelihood that there will be a 
lowering of water quality as described in paragraphs (d) (3) and (4) of 
this section caused by the operation, no lease or permit shall be issued 
or contract made until after consultation with the Federal Water 
Pollution Control Administration and a finding by the Administration 
that the proposed operation would not be in

[[Page 440]]

violation of the Federal Water Pollution Control Act, as amended (33 
U.S.C. section 466 et seq.) or of Executive Order No. 11288 (31 FR 
9261). Where a permit or lease is involved the district manager's 
determination shall be made in consultation with the mining supervisor.
    (f) Each notice of a proposed appropriation of a materials site 
filed by the Department of Transportation under 23 U.S.C. 317 shall be 
transmitted to the proper district manager. The district manager shall 
cause a technical examination to be made as provided in paragraph (a) of 
this section and shall formulate the requirements which the State 
highway department or its nominee must meet. If the land covered by the 
proposed appropriation is under the jurisdiction of a bureau of the 
Department other than the Bureau of Land Management, the district 
manager shall consult representatives of the bureau administering the 
land. If the district manager determines, or, in an instance in which 
the land is administered by another bureau, a representative of that 
bureau determines that the proposed appropriation is contrary to the 
public interest or is inconsistent with the purposes for which such land 
or materials are reserved, the district manager shall promptly submit 
the matter to the Secretary of the Interior for his decision. In other 
instances, the district manager shall notify the Department of 
Transportation of the requirements and conditions which the State 
highway department or its nominee must meet.

[34 FR 852, Jan. 18, 1969, as amended at 48 FR 27016, June 10, 1983]



Sec. 23.6  Basis for denial of a permit, lease, or contract.

    An application or offer for a permit, lease, or contract to conduct 
exploratory or extractive operations may be denied any applicant or 
offeror who has forfeited a required bond because of failure to comply 
with an exploration or mining plan. However, a permit, lease, or 
contract may not be denied an applicant or offeror because of the 
forfeiture of a bond if the lands disturbed under his previous permit, 
lease, or contract have subsequently been reclaimed without cost to the 
Federal Government.



Sec. 23.7  Approval of exploration plan.

    (a) Before commencing any surface disturbing operations to explore, 
test, or prospect for minerals covered by the mineral leasing acts the 
operator shall file with the mining supervisor a plan for the proposed 
exploration operations. The mining supervisor shall consult with the 
district manager with respect to the surface protection and reclamation 
aspects before approving said plan.
    (b) Depending upon the size and nature of the operation and the 
requirements established pursuant to Sec. 23.5 the mining supervisor or 
the district manager may require that the exploration plan submitted by 
the operator include any or all of the following:
    (1) A description of the area within which exploration is to be 
conducted;
    (2) Two copies of a suitable map or aerial photograph showing 
topographic, cultural and drainage features;
    (3) A statement of proposed exploration methods, i.e. drilling, 
trenching, etc., and the location of primary support roads and 
facilities;
    (4) A description of measures to be taken to prevent or control 
fire, soil erosion, pollution of surface and ground water, damage to 
fish and wildlife or other natural resources, and hazards to public 
health and safety both during and upon abandonment of exploration 
activities.
    (c) The mining supervisor or the district manager shall promptly 
review the exploration plan submitted to him by the operator and shall 
indicate to the operator any changes, additions, or amendments necessary 
to meet the requirements formulated pursuant to Sec. 23.5, the 
provisions of the regulations in this part, and the terms of the permit.
    (d) The operator shall comply with the provisions of an approved 
exploration plan. The mining supervisor and the district manager may, 
with respect to such a plan, exercise the authority provided by 
paragraphs (f) and (g) of Sec. 23.8 respecting a mining plan.

[34 FR 852, Jan. 18, 1969, as amended at 48 FR 27016, June 10, 1983]

[[Page 441]]



Sec. 23.8  Approval of mining plan.

    (a) Before surface mining operations may commence under any permit 
or lease issued under the mineral leasing acts the operator must file a 
mining plan with the mining supervisor and obtain his approval of the 
plan. Paragraphs (b) through (g) of this section confer authority upon 
mining supervisors with respect to mining plans pertaining to permits or 
leases issued under the mineral leasing acts. The mining supervisor 
shall consult with the district manager with respect to the surface 
protection and reclamation aspects before approving said plan.
    (b) Depending on the size and nature of the operation and the 
requirements established pursuant to Sec. 23.5, the mining supervisor or 
the district manager may require that the mining plan submitted by the 
operator include any or all of the following:
    (1) A description of the location and area to be affected by the 
operations;
    (2) Two copies of a suitable map, or aerial photograph showing the 
topography, the area covered by the permit, lease, or contract, the name 
and location of major topographic and cultural features, and the 
drainage plan away from the area to be affected;
    (3) A statement of proposed methods of operating, including a 
description of proposed roads or vehicular trails; the size and location 
of structures and facilities to be built;
    (4) An estimate of the quantity of water to be used and pollutants 
that are expected to enter any receiving waters;
    (5) A design for the necessary impoundment, treatment or control of 
all runoff water and drainage from workings so as to reduce soil erosion 
and sedimentation and to prevent the pollution of receiving waters;
    (6) A description of measures to be taken to prevent or control 
fire, soil erosion, pollution of surface and ground water, damage to 
fish and wildlife, and hazards to public health and safety; and
    (7) A statement of the proposed manner and time of performance of 
work to reclaim areas disturbed by the holder's operation.
    (c) In those instances in which the permit, lease, or contract 
requires the revegetation of an area of land to be affected the mining 
plan shall show:
    (1) Proposed methods of preparation and fertilizing the soil prior 
to replanting;
    (2) Types and mixtures of shrubs, trees, or tree seedlings, grasses 
or legumes to be planted; and
    (3) Types and methods of planting, including the amount of grasses 
or legumes per acre, or the number and spacing of trees, or tree 
seedlings, or combinations of grasses and trees.
    (d) In those instances in which the permit, lease, or contract 
requires regrading and backfilling, the mining plan shall show the 
proposed methods and the timing of grading and backfilling of areas to 
be affected by the operation.
    (e) The mining supervisor or the district manager shall review the 
mining plan submitted to him by the operator and shall promptly indicate 
to the operator any changes, additions, or amendments necessary to meet 
the requirements formulated pursuant to Sec. 23.5, the provisions of the 
regulations in this part and the terms of the permit, lease, or 
contract. The operator shall comply with the provisions of an approved 
mining plan.
    (f) A mining plan may be changed by mutual consent of the mining 
supervisor or the district manager and the operator at any time to 
adjust to changed conditions or to correct any oversight. To obtain 
approval of a change or supplemental plan the operator shall submit a 
written statement of the proposed changes or supplement and the 
justification for the changes proposed. The mining supervisor or the 
district manager shall promptly notify the operator that he consents to 
the proposed changes or supplement or, in the event he does not consent, 
he shall specify the modifications thereto under which the proposed 
changes or supplement would be acceptable. After mutual acceptance of a 
change of a plan the operator shall not depart therefrom without further 
approval.
    (g) If circumstances warrant, or if development of a mining plan for 
the entire operation is dependent upon unknown factors which cannot or 
will not be determined except during the progress of the operations, a 
partial

[[Page 442]]

plan may be approved and supplemented from time to time. The operator 
shall not, however, perform any operation except under an approved plan.

[34 FR 852, Jan. 18, 1969, as amended at 48 FR 27016, June 10, 1983]



Sec. 23.9  Performance bond.

    (a)(1) Upon approval of an exploration plan or mining plan, the 
operator shall be required to file a suitable performance bond of not 
less than $2,000 with satisfactory surety, payable to the Secretary of 
the Interior, and the bond shall be conditioned upon the faithful 
compliance with applicable regulations, the terms and conditions of the 
permit, lease, or contract, and the exploration or mining plan as 
approved, amended or supplemented. The bond shall be in an amount 
sufficient to satisfy the reclamation requirements of an approved 
exploration or mining plan, or an approved partial or supplemental plan. 
In determining the amount of the bond consideration shall be given to 
the character and nature of the reclamation requirements and the 
estimated costs of reclamation in the event that the operator forfeits 
his performance bond.
    (2) In lieu of a performance bond an operator may elect to deposit 
cash or negotiable bonds of the U.S. Government. The cash deposit or the 
market value of such securities shall be equal at least to the required 
sum of the bond.
    (b) A bond may be a nationwide or statewide bond which the operator 
has filed with the Department under the provisions of the applicable 
leasing regulations in subchapter C of chapter II of this title, if the 
terms and conditions thereof are sufficient to comply with the 
regulations in this part.
    (c) The district manager shall set the amount of a bond and take the 
necessary action for an increase or for a complete or partial release of 
a bond. He shall take action with respect to bonds for leases or permits 
only after consultation with the mining supervisor.
    (d) Performance bonds will not be required of Federal, State, or 
other governmental agencies. Where the exploration or mining is actually 
performed for such Federal, State, or governmental agencies by a 
contractor who would have to post a bond under the terms of paragraph 
(a) of this section if he were the operator, such agencies shall require 
the contractor to furnish a bond payable to the United States which 
meets the requirements of paragraph (a) of this section. If, for some 
other purpose, the contractor furnishes a performance bond, an amendment 
to that bond which meets the requirements of paragraph (a) of this 
section will be acceptable in lieu of an additional or separate bond.

[34 FR 852, Jan. 18, 1969, as amended at 35 FR 11237, July 14, 1970]



Sec. 23.10  Reports: Inspection.

    (a)(1) The holder of a permit or lease under the mineral leasing 
acts shall file the reports required by this section with the mining 
supervisor.
    (2) The provisions of this section confer authority and impose 
duties upon mining supervisors with respect to permits or leases issued 
under the mineral leasing acts.
    (b) Operations report: Within 30 days after the end of each calendar 
year, or if operations cease before the end of a calendar year, within 
30 days after the cessation of operations, the operator shall submit an 
operations report containing the following information:
    (1) An identification of the permit, lease, or contract and the 
location of the operation;
    (2) A description of the operations performed during the period of 
time for which the report is filed;
    (3) An identification of the area of land affected by the operations 
and a description of the manner in which the land has been affected;
    (4) A statement as to the number of acres disturbed by the 
operations and the number of acres which were reclaimed during the 
period of time;
    (5) A description of the method utilized for reclamation and the 
results thereof;
    (6) A statement and description of reclamation work remaining to be 
done.
    (c) Grading and backfilling report: Upon completion of such grading 
and backfilling as may be required by an approved exploration or mining 
plan,

[[Page 443]]

the operator shall make a report thereon and request inspection for 
approval. Whenever it is determined by such inspection that backfilling 
and grading has been carried out in accordance with the established 
requirements and approved exploration or mining plan, the district 
manager shall issue a release of an appropriate amount of the 
performance bond for the area graded and backfilled. Appropriate amounts 
of the bond shall be retained to assure that satisfactory planting, if 
required, is carried out.
    (d) Planting report: (1) Whenever planting is required by an 
approved exploration or mining plan, the operator shall file a report 
with the mining supervisor or district manager whenever such planting is 
completed. The report shall--
    (i) Identify the permit, lease, or contract;
    (ii) Show the type of planting or seeding, including mixtures and 
amounts;
    (iii) Show the date of planting or seeding;
    (iv) Identify or describe the areas of the lands which have been 
planted:
    (v) Contain such other information as may be relevant.
    (2) The mining supervisor or district manager, as soon as possible 
after the completion of the first full growing season, shall make an 
inspection and evaluation of the vegetative cover and planting to 
determine if a satisfactory growth has been established.
    (3) If it is determined that a satisfactory vegetative cover has 
been established and is likely to continue to grow, any remaining 
portion of the performance bond may be released if all requirements have 
been met by the operator.
    (e) Report of cessation or abandonment of operations: (1) Not less 
than 30 days prior to cessation or abandonment of operations, the 
operator shall report his intention to cease or abandon operations, 
together with a statement of the exact number of acres of land affected 
by his operations, the extent of reclamation accomplished and other 
relevant information.
    (2)(i) Upon receipt of such report the mining supervisor or the 
district manager shall make an inspection to determine whether 
operations have been carried out and completed in accordance with the 
approved exploration or mining plan.
    (ii) Whenever the lands in a permit, lease or contract issued under 
the mineral leasing acts are under the jurisdiction of a bureau of the 
Department of the Interior other than the Bureau of Land Management the 
mining supervisor or the district manager, as appropriate, shall obtain 
the concurrence of the authorized officer of such bureau that the 
operation has been carried out and completed in accordance with the 
approved exploration or mining plan with respect to the surface 
protection and reclamation aspects of such plan before releasing the 
performance bond.
    (iii) Whenever the lands in a permit, lease or contract issued under 
the Mineral Leasing Act of 1920 are under the jurisdiction of an agency 
other than the Department of the Interior, the mining supervisor or the 
district manager, as appropriate, shall consult representatives of the 
agency administering the lands and obtain their recommendations as to 
whether the operation has been carried out and completed in accordance 
with the approved exploration or mining plan with respect to the surface 
protection and reclamation aspects of such plan before releasing the 
performance bond. If the mining supervisor or district manager, as 
appropriate, do not concur in the recommendations of the agency 
regarding compliance with the surface protection and reclamation aspects 
of the approved exploration or mining plan, the issues shall be referred 
for resolution to the Under Secretary of the Department of the Interior 
and the comparable officer of the agency submitting the recommendations. 
In the case of disagreement on issues which are so referred, the 
Secretary of the Interior shall make a determination which shall be 
final and binding. In cases in which the recommendations are not 
concurred in by the mining supervisor or district manager, the 
performance bond shall not be released until resolution of the issues or 
until a final determination by the Secretary of the Interior.

[[Page 444]]

    (iv) Whenever the lands in a permit or lease issued under the 
Mineral Leasing Act for Acquired Lands are under the jurisdiction of an 
agency other than the Department of the Interior, the mining supervisor 
or the district manager, as appropriate, shall obtain the concurrence of 
the authorized officer of such agency that the operation has been 
carried out and completed in accordance with the approved exploration or 
mining plan with respect to the surface protection and reclamation 
aspects of such plan before releasing the performance bond.

[34 FR 852, Jan. 18, 1969, as amended at 48 FR 27016, June 10, 1983]



Sec. 23.11  Notice of noncompliance: Revocation.

    (a) The provisions of this section confer authority and impose 
duties upon mining supervisors with respect to permits or leases issued 
under the mineral leasing acts. The Mining supervisor shall consult with 
the district manager before taking any action under this section.
    (b) The mining supervisor or district manager shall have the right 
to enter upon the lands under a permit, lease, or contract, at any 
reasonable time, for the purpose of inspection or investigation to 
determine whether the terms and conditions of the permit, lease, or 
contract, and the requirements of the exploration or mining plan have 
been complied with.
    (c) If the mining supervisor or the district manager determines that 
an operator has failed to comply with the terms and conditions of a 
permit, lease, or contract, or with the requirements of an exploration 
or mining plan, or with the provisions of applicable regulations under 
this part the supervisor or manager shall serve a notice of 
noncompliance upon the operator by delivery in person to him or his 
agent or by certified or registered mail addressed to the operator at 
his last known address.
    (d) A notice of noncompliance shall specify in what respects the 
operator has failed to comply with the terms and conditions of a permit, 
lease, or contract, or the requirements of an exploration or mining 
plan, or the provisions of applicable regulations, and shall specify the 
action which must be taken to correct the noncompliance and the time 
limits within which such action must be taken.
    (e) Failure of the operator to take action in accordance with the 
notice of noncompliance shall be grounds for suspension by the mining 
supervisor or the district manager of operations or for the initiation 
of action for the cancellation of the permit, lease, or contract and for 
forfeiture of the performance bond required under Sec. 23.9.

[34 FR 852, Jan. 18, 1969, as amended at 48 FR 27016, June 10, 1983]



Sec. 23.12  Appeals.

    (a) A person adversely affected by a decision or order of a district 
manager or of a mining supervisor made pursuant to the provisions of 
this part shall have a right of appeal to the Board of Land Appeals, 
Office of Hearings and Appeals, whenever the decision appealed from was 
rendered by a district manager, or to the Director of the Geological 
Survey if the decision or order appealed from was rendered by a mining 
supervisor, and the further right to appeal to the Board of Land Appeals 
from an adverse decision of the Director of the Geological Survey unless 
such decision was approved by the Secretary prior to promulgation.
    (b) Appeals to the Board of Land Appeals shall be made pursuant to 
part 4 of this title. Appeals to the Director of the Geological Survey 
shall be made in the manner provided in 30 CFR part 290.
    (c) In any case involving a permit, lease, or contract for lands 
under the jurisdiction of an agency other than the Department of the 
Interior, or a bureau of the Department of the Interior other than the 
Bureau of Land Management, the officer rendering a decision or order 
shall designate the authorized officer of such agency as an adverse 
party on whom a copy of any notice of appeal and any statement of 
reasons, written arguments, or briefs must be served.
    (d) Hearings to present evidence on an issue of fact before an 
administrative law judge may be ordered by the Board of Land Appeals or 
the Director of the Geological Survey, as the case

[[Page 445]]

may be, in accordance with the procedure set forth in part 4 of this 
title.

[35 FR 10009, June 18, 1970, as amended at 36 FR 7206, Apr. 15, 1971; 38 
FR 10009, Apr. 23, 1973]



Sec. 23.13  Consultation.

    Whenever the lands included in a permit, lease, or contract are 
under the jurisdiction of an agency other than the Department of the 
Interior or under the jurisdiction of a bureau of the Department of the 
Interior other than the Bureau of Land Management, the mining supervisor 
or the district manager, as appropriate, shall consult the authorized 
officer of such agency before taking any final action under Secs. 23.7, 
23.8, 23.10 (c) and (d) (2) and (3), and 23.11(c).



PART 24--DEPARTMENT OF THE INTERIOR FISH AND WILDLIFE POLICY: STATE-FEDERAL RELATIONSHIPS--Table of Contents




Sec.
24.1  Introduction.
24.2  Purpose.
24.3  General jurisdictional principles.
24.4  Resource management and public activities on Federal lands.
24.5  International agreements.
24.6  Cooperative agreements.
24.7  Exemptions.

    Authority: 43 U.S.C. 1201.

    Source: 48 FR 11642, Mar. 18, 1983, unless otherwise noted.



Sec. 24.1  Introduction.

    (a) In 1970, the Secretary of the Interior developed a policy 
statement on intergovernmental cooperation in the preservation, use and 
management of fish and wildlife resources. The purpose of the policy (36 
FR 21034, Nov. 3, 1971) was to strengthen and support the missions of 
the several States and the Department of the Interior respecting fish 
and wildlife. Since development of the policy, a number of Congressional 
enactments and court decisions have addressed State and Federal 
responsibilities for fish and wildlife with the general effect of 
expanding Federal jurisdiction over certain species and uses of fish and 
wildlife traditionally managed by the States. In some cases, this 
expansion of jurisdiction has established overlapping authorities, 
clouded agency jurisdictions and, due to differing agency 
interpretations and accountabilities, has contributed to confusion and 
delays in the implementation of management programs. Nevertheless, 
Federal authority exists for specified purposes while State authority 
regarding fish and resident wildlife remains the comprehensive backdrop 
applicable in the absence of specific, overriding Federal law.
    (b) The Secretary of the Interior reaffirms that fish and wildlife 
must be maintained for their ecological, cultural, educational, 
historical, aesthetic, scientific, recreational, economic, and social 
values to the people of the United States, and that these resources are 
held in public trust by the Federal and State governments for the 
benefit of present and future generations of Americans. Because fish and 
wildlife are fundamentally dependent upon habitats on private and public 
lands managed or subject to administration by many Federal and State 
agencies, and because provisions for the protection, maintenance and 
enhancement of fish and wildlife and the regulation for their use are 
established in many laws and regulations involving a multitude of 
Federal and State administrative structures, the effective stewardship 
of fish and wildlife requires the cooperation of the several States and 
the Federal Government.
    (c) It is the intent of the Secretary to strengthen and support, to 
the maximum legal extent possible, the missions of the States\1\ and the 
Department of the Interior to conserve and manage effectively the 
nation's fish and wildlife. It is, therefore, important that a 
Department of the Interior Fish and Wildlife Policy be implemented to 
coordinate and facilitate the efforts of

[[Page 446]]

Federal and State agencies in the attainment of this objective.
---------------------------------------------------------------------------

    \1\``States'' refers to all of the several States, the District of 
Columbia, the Commonwealth of Puerto Rico, American Samoa, the Virgin 
Islands, Guam, the Trust Territory of the Pacific Islands, the 
Commonwealth of Northern Mariana Islands and other territorial 
possessions, and the constituent units of government upon which these 
entities may have conferred authorities related to fish and wildlife 
matters.
---------------------------------------------------------------------------



Sec. 24.2  Purpose.

    (a) The purpose of the Department of the Interior Fish and Wildlife 
Policy is to clarify and support the broad authorities and 
responsibilities of Federal\2\ and State agencies responsible for the 
management of the nation's fish and wildlife and to identify and promote 
cooperative agency management relationships which advance 
scientifically-based resource management programs. This policy is 
intended to reaffirm the basic role of the States in fish and resident 
wildlife management, especially where States have primary authority and 
responsibility, and to foster improved conservation of fish and 
wildlife.
---------------------------------------------------------------------------

    \2\Hereinafter, the Bureau of Reclamation, Bureau of Land 
Management, Fish and Wildlife Service, and National Park Service will be 
referred to collectively as ``Federal agencies.''
---------------------------------------------------------------------------

    (b) In developing and implementing this policy, this Department will 
be furthering the manifest Congressional policy of Federal-State 
cooperation that pervades statutory enactments in the area of fish and 
wildlife conservation. Moreover, in recognition of the scope of its 
activities in managing hundreds of millions of acres of land within the 
several States, the Department of the Interior will continue to seek new 
opportunities to foster a ``good neighbor'' policy with the States.



Sec. 24.3  General jurisdictional principles.

    (a) In general the States possess broad trustee and police powers 
over fish and wildlife within their borders, including fish and wildlife 
found on Federal lands within a State. Under the Property Clause of the 
Constitution, Congress is given the power to ``make all needful Rules 
and Regulations respecting the Territory or other Property belonging to 
the United States.'' In the exercise of power under the Property Clause, 
Congress may choose to preempt State management of fish and wildlife on 
Federal lands and, in circumstances where the exercise of power under 
the Commerce Clause is available, Congress may choose to establish 
restrictions on the taking of fish and wildlife whether or not the 
activity occurs on Federal lands, as well as to establish restrictions 
on possessing, transporting, importing, or exporting fish and wildlife. 
Finally, a third source of Federal constitutional authority for the 
management of fish and wildlife is the treaty making power. This 
authority was first recognized in the negotiation of a migratory bird 
treaty with Great Britain on behalf of Canada in 1916.
    (b) The exercise of Congressional power through the enactment of 
Federal fish and wildlife conservation statutes has generally been 
associated with the establishment of regulations more restrictive than 
those of State law. The power of Congress respecting the taking of fish 
and wildlife has been exercised as a restrictive regulatory power, 
except in those situations where the taking of these resources is 
necessary to protect Federal property. With these exceptions, and 
despite the existence of constitutional power respecting fish and 
wildlife on Federally owned lands, Congress has, in fact, reaffirmed the 
basic responsibility and authority of the States to manage fish and 
resident wildlife on Federal lands.
    (c) Congress has charged the Secretary of the Interior with 
responsibilities for the management of certain fish and wildlife 
resources, e.g., endangered and threatened species, migratory birds, 
certain marine mammals, and certain aspects of the management of some 
anadromous fish. However, even in these specific instances, with the 
limited exception of marine mammals, State jurisdiction remains 
concurrent with Federal authority.



Sec. 24.4  Resource management and public activities on Federal lands.

    (a) The four major systems of Federal lands administered by the 
Department of the Interior are lands administered by the Bureau of 
Reclamation, Bureau of Land Management, units of the National Wildlife 
Refuge System and national fish hatcheries, and units of the National 
Park System.
    (b) The Bureau of Reclamation withdraws public lands and acquires 
non-

[[Page 447]]

Federal lands for construction and operation of water resource 
development projects within the 17 Western States. Recreation and 
conservation or enhancement of fish and wildlife resources are often 
designated project purposes. General authority for Reclamation to modify 
project structures, develop facilities, and acquire lands to accommodate 
fish and wildlife resources is given to the Fish and Wildlife 
Coordination Act of 1946, as amended (16 U.S.C. 661-667e). That act 
further provides that the lands, waters and facilities designated for 
fish and wildlife management purposes, in most instances, should be made 
available by cooperative agreement to the agency exercising the 
administration of these resources of the particular State involved. The 
Federal Water Project Recreation Act of 1965, as amended, also directs 
Reclamation to encourage non-Federal public bodies to administer project 
land and water areas for recreation and fish and wildlife enhancement. 
Reclamation withdrawal, however, does not enlarge the power of the 
United States with respect to management of fish and resident wildlife 
and, except for activities specified in Section III.3 above, basic 
authority and responsibility for management of fish and resident 
wildlife on such lands remains with the State.
    (c) BLM-administered lands comprise in excess of 300 million acres 
that support significant and diverse populations of fish and wildlife. 
Congress in the Federal Land Policy and Management Act of 1976 (43 
U.S.C. 1701 et seq.) directed that non-wilderness BLM lands be managed 
by the Secretary under principles of multiple use and sustained yield, 
and for both wilderness and non-wilderness lands explicitly recognized 
and reaffirmed the primary authority and responsibility of the States 
for management of fish and resident wildlife on such lands. 
Concomitantly, the Secretary of the Interior is charged with the 
responsibility to manage non-wilderness BLM lands for multiple uses, 
including fish and wildlife conservation. However, this authority to 
manage lands for fish and wildlife values is not a preemption of State 
jurisdiction over fish and wildlife. In exercising this responsibility 
the Secretary is empowered to close areas to hunting, fishing or 
trapping for specified reasons viz., public safety, administration, or 
compliance with provisions of applicable law. The closure authority of 
the Secretary is thus a power to close areas to particular activities 
for particular reasons and does not in and of itself constitute a grant 
of authority to the Secretary to manage wildlife or require or authorize 
the issuance of hunting and/or fishing permits or licenses.
    (d) While the several States therefore possess primary authority and 
responsibility for management of fish and resident wildlife on Bureau of 
Land Management lands, the Secretary, through the Bureau of Land 
Management, has custody of the land itself and the habitat upon which 
fish and resident wildlife are dependent. Management of the habitat is a 
responsibility of the Federal Government. Nevertheless, Congress in the 
Sikes Act has directed the Secretary of the Interior to cooperate with 
the States in developing programs on certain public lands, including 
those administered by BLM and the Department of Defense, for the 
conservation and rehabilitation of fish and wildlife including specific 
habitat improvement projects.
    (e) Units of the National Wildlife Refuge System occur in nearly 
every State and constitute Federally owned or controlled areas set aside 
primarily as conservation areas for migratory waterfowl and other 
species of fish or wildlife. Units of the system also provide outdoor 
enjoyment for millions of visitors annually for the purpose of hunting, 
fishing and wildlife-associated recreation. In 1962 and 1966, Congress 
authorized the use of National Wildlife Refuges for outdoor recreation 
provided that it is compatible with the primary purposes for which the 
particular refuge was established. In contrast to multiple use public 
lands, the conservation, enhancement and perpetuation of fish and 
wildlife is almost invariably the principal reason for the establishment 
of a unit of the National Wildlife Refuge System. In consequence, 
Federal activity respecting management of migratory waterfowl and other 
wildlife residing on units of the National Wildlife Refuge System

[[Page 448]]

involves a Federal function specifically authorized by Congress. It is 
therefore for the Secretary to determine whether units of the System 
shall be open to public uses, such as hunting and fishing, and on what 
terms such access shall be granted. However, in recognition of the 
existing jurisdictional relationship between the States and the Federal 
Government, Congress, in the National Wildlife Refuge System 
Administration Act of 1966 (16 U.S.C. 668dd), has explicitly stated that 
nothing therein shall be construed as affecting the authority of the 
several States to manage fish and resident wildlife found on units of 
the system. Thus, Congress has directed that, to the maximum extent 
practicable, such public uses shall be consistent with State laws and 
regulations. Units of the National Wildlife Refuge System, therefore, 
shall be managed, to the extent practicable and compatible with the 
purposes for which they were established, in accordance with State laws 
and regulations, comprehensive plans for fish and wildlife developed by 
the States, and Regional Resource Plans developed by the Fish and 
Wildlife Service in cooperation with the States.
    (f) Units of the National Park System contain natural, recreation, 
historic, and cultural values of national significance as designated by 
Executive and Congressional action. Specific enabling legislation has 
authorized limited hunting, trapping or fishing activity within certain 
areas of the system. As a general rule, consumptive resource utilization 
is prohibited. Those areas which do legislatively allow hunting, 
trapping, or fishing, do so in conformance with applicable Federal and 
State laws. The Superintendent may, in consultation with the appropriate 
State agency, fix times and locations where such activities will be 
prohibited. Areas of the National Park System which permit fishing 
generally will do so in accordance with applicable State and Federal 
Laws.
    (g) In areas of exclusive Federal jurisdiction, State laws are not 
applicable. However, every attempt shall be made to consult with the 
appropriate States to minimize conflicting and confusing regulations 
which may cause undue hardship.
    (h) The management of habitat for species of wildlife, populations 
of wildlife, or individual members of a population shall be in 
accordance with a Park Service approved Resource Management Plan. The 
appropriate States shall be consulted prior to the approval of 
management actions, and memoranda of understanding shall be executed as 
appropriate to ensure the conduct of programs which meet mutual 
objectives.
    (i) Federal agencies of the Department of the Interior shall:
    (1) Prepare fish and wildlife management plans in cooperation with 
State fish and wildlife agencies and other Federal (non-Interior) 
agencies where appropriate. Where such plans are prepared for Federal 
lands adjoining State or private lands, the agencies shall consult with 
the State or private landowners to coordinate management objectives;
    (2) Within their statutory authority and subject to the management 
priorities and strategies of such agencies, institute fish and wildlife 
habitat management practices in cooperation with the States to assist 
the States in accomplishing their fish and wildlife resource plans;
    (3) Provide for public use of Federal lands in accordance with State 
and Federal laws, and permit public hunting, fishing and trapping within 
statutory and budgetary limitations and in a manner compatible with the 
primary objectives for which the lands are administered. The hunting, 
fishing, and trapping, and the possession and disposition of fish, game, 
and fur animals, shall be conducted in all other respects within the 
framework of applicable State and Federal laws, including requirements 
for the possession of appropriate State licenses or permits.
    (4) For those Federal lands that are already open for hunting, 
fishing, or trapping, closure authority shall not be exercised without 
prior consultation with the affected States, except in emergency 
situations. The Bureau of Land Management may, after consultation with 
the States, close all or any portion of public land under its 
jurisdiction to public hunting, fishing, or trapping for reasons of 
public safety, administration, or compliance with

[[Page 449]]

provisions of applicable law. The National Park Service and Fish and 
Wildlife Service may, after consultation with the States, close all or 
any portion of Federal land under their jurisdictions, or impose such 
other restrictions as are deemed necessary, for reasons required by the 
Federal laws governing the management of their areas; and
    (5) Consult with the States and comply with State permit 
requirements in connection with the activities listed below, except in 
instances where the Secretary of the Interior determines that such 
compliance would prevent him from carrying out his statutory 
responsibilities:
    (i) In carrying out research programs involving the taking or 
possession of fish and wildlife or programs involving reintroduction of 
fish and wildlife;
    (ii) For the planned and orderly removal of surplus or harmful 
populations of fish and wildlife except where emergency situations 
requiring immediate action make such consultation and compliance with 
State regulatory requirements infeasible; and
    (iii) In the disposition of fish and wildlife taken under paragraph 
(i) (5)(i) or (i) (5)(ii) of this section.



Sec. 24.5  International agreements.

    (a) International conventions have increasingly been utilized to 
address fish and wildlife issues having dimensions beyond national 
boundaries. The authority to enter into such agreements is reserved to 
the President by and with the advice and consent of the Senate. However, 
while such agreements may be valuable in the case of other nations, in a 
Federal system such as ours sophisticated fish and wildlife programs 
already established at the State level may be weakened or not enhanced.
    (b) To ensure that effective fish and wildlife programs already 
established at the State level are not weakened, the policy of the 
Department of the Interior shall be to recommend that the United States 
negotiate and accede to only those international agreements that give 
strong consideration to established State programs designed to ensure 
the conservation of fish and wildlife populations.
    (c) It shall be the policy of the Department to actively solicit the 
advice of affected State agencies and to recommend to the U.S. 
Department of State that representatives of such agencies be involved 
before and during negotiation of any new international conventions 
concerning fish and wildlife.



Sec. 24.6  Cooperative agreements.

    (a) By reason of the Congressional policy (e.g., Fish and Wildlife 
Coordination Act of 1956) of State-Federal cooperation and coordination 
in the area of fish and wildlife conservation, State and Federal 
agencies have implemented cooperative agreements for a variety of fish 
and wildlife programs on Federal lands. This practice shall be continued 
and encouraged. Appropriate topics for such cooperative agreements 
include but are not limited to:
    (1) Protection, maintenance, and development of fish and wildlife 
habitat;
    (2) Fish and wildlife reintroduction and propagation;
    (3) Research and other field study programs including those 
involving the taking or possession of fish and wildlife;
    (4) Fish and wildlife resource inventories and data collection;
    (5) Law enforcement;
    (6) Educational programs;
    (7) Toxicity/mortality investigations and monitoring;
    (8) Animal damage management;
    (9) Endangered and threatened species;
    (10) Habitat preservation;
    (11) Joint processing of State and Federal permit applications for 
activities involving fish, wildlife and plants;
    (12) Road management activities affecting fish and wildlife and 
their habitat;
    (13) Management activities involving fish and wildlife; and,
    (14) Disposition of fish and wildlife taken in conjunction with the 
activities listed in this paragraph.
    (b) The cooperating parties shall periodically review such 
cooperative agreements and adjust them to reflect changed circumstances.

[[Page 450]]



Sec. 24.7  Exemptions.

    (a) Exempted from this policy are the following:
    (1) The control and regulation by the United States, in the area in 
which an international convention or treaty applies, of the taking of 
those species and families of fish and wildlife expressly named or 
otherwise covered under any international treaty or convention to which 
the United States is a party;
    (2) Any species of fish and wildlife, control over which has been 
ceded or granted to the United States by any State; and
    (3) Areas over which the States have ceded exclusive jurisdiction to 
the United States.
    (b) Nothing in this policy shall be construed as affecting in any 
way the existing authorities of the States to establish annual harvest 
regulations for fish and resident wildlife on Federal lands where public 
hunting, fishing or trapping is permitted.



PART 26--GRANTS TO STATES FOR ESTABLISHING YOUTH CONSERVATION CORPS PROGRAMS--Table of Contents




Sec.
26.1  Introduction.
26.2  Definitions.
26.3  Program purpose and objectives.
26.4  Legislation.
26.5  Administrative requirements.
26.6  Request for grant.
26.7  Application format and instructions.
26.8  Program reporting requirements.
26.9  Consideration and criteria for awarding grants.

    Authority: Sec. 4, 86 Stat. 1320, as amended, 88 Stat. 1067 (16 
U.S.C. 1704)

    Source: 43 FR 41004, Sept. 13, 1978, unless otherwise noted.



Sec. 26.1  Introduction.

    (a) The Youth Conservation Corps (YCC) is a program of summer 
employment for young men and women, aged 15 through 18, who work, earn, 
and learn together by doing projects which further the development and 
conservation of the natural resources of the United States. The corps is 
open to youth of both sexes, and youth of all social, economic, and 
racial classifications who are permanent residents of the United States, 
its territories, possessions, trust territories or commonwealths.
    (b) The Youth Conservation Corps Act of 1970 (Pub. L. 91-378) 
provided for a 3-year pilot program to be carried out on lands and 
waters under the jurisdiction of the Secretary of Agriculture or the 
Secretary of the Interior. Public Law 92-597 amended the 1970 Act to 
include a pilot program (beginning in fiscal year 1974) of grants to 
States to assist them in meeting the cost of Youth Conservation Corps 
projects on non-Federal public lands and waters within the States. 
Public Law 93-408 made the Youth Conservation Corps program permanent.



Sec. 26.2  Definitions.

    (a) Terms used in these Regulations are defined as follows:
    (1) Act. The Youth Conservation Corps Act of 1970. Public Law 91-
378, as amended.
    (2) Secretaries. The Secretaries of Agriculture and the Interior, or 
their designated representatives, who jointly administer the grant 
program. Within the Department of Agriculture, the YCC program is 
administered by the Forest Service; within the Department of the 
Interior it is administered by the Office of Youth Programs.
    (3) States. Any of the several States of the United States, the 
District of Columbia, the Commonwealth of Puerto Rico, the Virgin 
Islands, Guam, the Trust Territory of the Pacific Islands, American 
Samoa, and the Commonwealth of the Northern Mariana Islands.
    (4) Grant. Money or property provided in lieu of money, paid or 
furnished by the Secretaries pursuant to the Act to a State to carry out 
a YCC program on non-Federal public lands and waters. The amount of any 
grant shall be determined jointly by the Secretaries, except that no 
grant for any project may exceed 80 per centum of the cost (as 
determined by the Secretaries) of said project.
    (5) Grantee. Any State which is a recipient of a Federal grant for 
the operation of a YCC program.
    (6) Subgrantee. Any public organization, municipality, county, or 
agency which administers non-Federal public

[[Page 451]]

lands and waters which successfully applied through a State for the 
operation of a Youth Conservation Corps project within that State.
    (7) Contractor. Any public agency or organization or any private 
nonprofit agency or organization which has been in existence for at 
least 5 years which operates a YCC project for a grantee or subgrantee.
    (8) Program agent. Individual designated in writing by the Governor 
to have program responsibility for all aspects of YCC operations in that 
State except for those projects conducted under Federal auspices.
    (9) State grant program. That part of the YCC program carried out on 
non-Federal public lands and waters by States receiving YCC grants-in-
aid.
    (10) Project. The operating unit of the State YCC grant program. A 
project will be designated as either residential or nonresidential.
    (i) Residential project. One in which youth reside either 7 or 5 
days per week at a site on or in proximity to the public lands where 
they conduct their work-learning program.
    (ii) Nonresidential project. One in which youth reside at home and 
daily commute to the public lands to conduct their work-learning 
program.
    (11) Operating year. January 1 through December 31.
    (12) Non-Federal public lands and waters. Any lands or waters within 
the territorial limits of a State owned either in fee simple by a State 
or political subdivision thereof or over which a State or political 
subdivision thereof has, as determined by the Secretaries, sufficient 
long-term jurisdiction so that improvements made as the result of a 
grant will accrue primarily to the benefit of the public as a whole. 
Federally owned public lands and waters administered by a State or 
political subdivision thereof under agreement with a Department or 
Agency of the Federal Government are eligible under such definition if 
the Secretaries determine that the State or political subdivision 
thereof is entitled to or is likely to retain administrative 
responsibility for an extended period of time sufficient to justify 
classification as non-Federal public lands or waters.



Sec. 26.3  Program purpose and objectives.

    (a) The purpose of the Act is to further the development and 
maintenance of the natural resources of the United States by American 
youth and in so doing prepare them for the ultimate responsibility of 
maintaining and managing these resources for the American people. The 
Departments of Agriculture and the Interior have stressed the following 
three equally important objectives of the Youth Conservation Corps as 
reflected in the law:
    (1) Accomplish needed conservation work on public lands.
    (2) Provide gainful employment for 15- through 18-year-old males and 
females from all social, economic, and racial backgrounds.
    (3) Develop an understanding and appreciation of the Nation's 
environment and heritage in participating youth.
    (b) These objectives will be accomplished in a manner that will 
provide the youth with an opportunity to acquire increased self-dignity 
and self-discipline, better work and relate with peers and supervisors, 
and build lasting cultural bridges between youth from various social, 
ethnic, racial and economic backgrounds.
    (c) Each YCC project will have, to the maximum extent possible as 
determined by the Secretaries' representatives, the following 
characteristics:
    (1) A properly balanced and integrated environmental work-learning 
program in which environmental knowledge and awareness derives 
principally from meaningful work activities on public lands.
    (2) A mixture of youth of both sexes from various social, economic, 
ethnic, and racial backgrounds which is representative of the youth 
residing within the recruiting area.
    (3) A group-living component, both in residential and nonresidential 
programs, wherein enrollees have an opportunity to relate to each other 
and to staff during nonworking hours in activities which promote social 
interaction and group learning (e.g., evening cookouts, overnight or 
weekend camping).
    (4) An enrollment of sufficient size (not less than 10 enrollees) 
that will permit social interaction and group learning. The program 
encourages

[[Page 452]]

projects of a size of 20 to 50 enrollees as the most desirable size.



Sec. 26.4  Legislation.

    State programs must meet all of the requirements of section 4 of the 
act. Section 4 of the act which applies to the grant program reads as 
follows:

    Sec. 4(a). The Secretary of the Interior and the Secretary of 
Agriculture shall jointly establish a program under which grants shall 
be made to States to assist them in meeting the cost of projects for the 
employment of young men and women to develop, preserve, and maintain 
non-Federal public lands and waters within the States. For purposes of 
this section, the term ``States'' includes the District of Columbia, the 
Commonwealth of Puerto Rico, the Virgin Islands, Guam, the Trust 
Territory of the Pacific Islands, and American Samoa.
    (b)(1) No grant may be made under this section unless an application 
therefor has been submitted to, and approved by, the Secretary of the 
Interior and the Secretary of Agriculture. Such application shall be in 
such form, and submitted in such manner, as the Secretaries shall 
jointly by regulation prescribe, and shall contain--
    (A) Assurances satisfactory to the Secretaries that individuals 
employed under the project for which the application is submitted shall: 
(i) Have attained the age of 15 but not attained the age of 19, (ii) be 
permanent residents of the United States or its territories, 
possessions, or the Trust Territory of the Pacific Islands, (iii) be 
employed without regard to the personnel laws, rules, and regulations 
applicable to full-time employees of the applicant, (iv) be employed for 
a period of not more than 90 days in any calendar year, and (v) be 
employed without regard to their sex or social, economic, or racial 
classification; and
    (B) Such other information as the Secretaries may jointly by 
regulation prescribe.
    (2) The Secretaries may approve applications which they determine 
(A) meet the requirements of paragraph (1), and (B) are for projects 
which will further the development, preservation, or maintenance of non-
Federal public lands or waters within the jurisdiction of the applicant.
    (c)(1) The amount of any grant under this section shall be 
determined jointly by the Secretaries, except that no grant for any 
project may exceed 80 per centum of the cost (as determined by the 
Secretaries) of such project.
    (2) Payments under grants under this section may be made in advance 
or by way of reimbursement and at such intervals and on such conditions 
as the Secretaries find necessary.
    (d) Thirty per centum of the sum appropriated under section 6 for 
any fiscal year shall be made available for grants under this section 
for such fiscal year.



Sec. 26.5  Administrative requirements.

    The following administrative requirements must be met:
    (a) Recruitment and selection will be conducted in accordance with a 
Statewide plan designed to assure:
    (1) An equal opportunity for both sexes, for all urban and rural 
youth regardless of social, economic, ethnic or racial background, with 
special outreach efforts toward minority, disadvantaged, non-public 
school youth, and youth having left school before graduation;
    (2) That selections will be made on a random basis, without 
consideration of race, creed, religion, or national origin. Each project 
should be assigned as near as possible an equal number of slots for 
males and females;
    (3) That enrollees have attained age 15 by June 1 but not age 19 by 
August 30;
    (4) That not more than 10 percent of the enrollees in a project have 
been YCC enrollees in previous years and all returnees be designated as 
youth leaders and paid $1.50 per day in addition to their hourly rate of 
pay.
    (b) To the maximum extent practicable, enrollees should be selected 
from an area within 1 day's surface travel from their home to a 
residential YCC project.
    (c) Capital outlays for facilities should be kept at a minimum. No 
grant is to be made for construction of residential facilities other 
than to provide temporary facilities and their necessary basic 
infrastructure, and necessary renovation or modification of existing 
facilities.
    (d) Operation of a project or session will be for a minimum of 26 
consecutive calendar days. Projects during nonsummer periods may be 
authorized by the Secretaries when it can clearly be demonstrated that 
enrollment will not interfere with the established educational systems.
    (e) The enrollee is an employee of the grantee or subgrantee. 
Depending on grantee's or subgrantee's work-week, grantees will insure 
that enrollees are

[[Page 453]]

engaged in up to 40 hours of work-learning activities each week, 25 
percent of which will be in environmental awareness.
    (f) To arrive at the enrollee weekly pay rate, the Federal or State 
minimum hourly wage (whichever is higher) should be multiplied by 30 
hours per week, or 75 percent of the number of hours in the grantee or 
subgrantee established work-week, if less than 40 hours. To the maximum 
extent possible, the grantee should apply the same meal and lodging 
deduction as used by the Federal program.
    (g) The Federal Government will cost-share as part of the grant 
enrollee pay based on up to 30 hours per week; any cost based on 
enrollee compensation for more than 30 hours per week will be assumed by 
the grantee or sub-grantee and will not be part of the grant.
    (h) Grantees must provide for an effective accident control, health, 
and safety program. As a minimum, grantees shall follow U.S. Department 
of Labor Bulletin No. 101, ``A Guide to Child Labor Provisions of the 
Fair Labor Standards Act.''
    (i) Grantees will have a financial management system which will 
provide the information called for in attachment G of the Office of 
Management and Budget (OMB) circular A-102 (formerly FMC 74-7).
    (j) ``Request for Advance or Reimbursement,'' as outlined in OMB 
circular A-102, attachment H, item 4(a), will be used to obtain an 
advance to start and/or maintain the program. It can also be used to 
obtain a reimbursement during or at the end of a project. An advance, 
not to exceed 1 month's needs, may be made after approval of the grant 
application.
    (k) Grantees will prepare a ``Financial Status Report'' required by 
OMB circular A-102, attachment H, item (3)a. This report will be 
prepared on a cash basis. Instructions and forms will be supplied each 
grantee at the time of grant award. Grantees shall require similar 
reports from all subgrantees and contractors to facilitate their own 
reporting to the grantor agencies. The Financial Status Report will be 
prepared as of December 31 of each operating year. This report will be 
forwarded in time to reach the Secretaries by March 31 of the following 
operating year.
    (l) Allowable costs under the grant program are defined in FMC 74-4 
and OMB circular A-102.
    (m) Records retention and custodial requirements for records are 
prescribed by attachment C to OMB circular A-102.
    (n) A budget revision is required in advance when the scope of the 
grant is to be changed through (1) addition or elimination of a project, 
(2) reduction in the State's grant program of 5 percent or more of 
enrollees, and/or (3) determination that the grantee will not utilize 
Federal funds in amount in excess of $5,000 or 5 percent of the Federal 
grant, whichever is greater. A budget revision must also be submitted 
when the State's matching ratio is reduced. No budget revision may be 
submitted later than March 31 following the end of the operating year. 
Procedures in attachment K of OMB circular A-102 will be followed.
    (o) Grantees shall comply with the provisions of attachments N and O 
of OMB circular A-102 in regard to nonexpendable personal property and 
procurement standards.
    (p) The Secretaries or their designees shall periodically review the 
conduct of the program of the State.
    (q) Grantees will supervise those projects in the State being 
administered by subgrantees and contractors. Subgrantees and contractors 
will be required to operate in accordance with the procedures outlined 
in these regulations and the grant agreement with the State. Periodic 
inspection of subgrantee projects will be made by the grantee under the 
direction of the program agent or his designee. Grantees or subgrantees 
may contract with any public agency or organization or any private 
nonprofit agency or organization which has been in existence for at 
least 5 years.
    (r) Grantees will meet the financial audit requirements of 
attachment G to OMB circular A-102 and will require the same of 
subgrantees. Copies of audits will be made available to the Secretaries 
upon request.
    (s) Grantees shall provide accidental injury compensation and tort 
claims

[[Page 454]]

coverage under State laws for its enrollees. Enrollees shall be employed 
without regard to State personnel laws, rules, and regulations 
applicable to full-time employees. It is not intended that State 
enrollees be covered for retirement, unemployment compensation, health 
and life insurance purposes, or that they earn or be granted leave-with-
pay or sick leave; such charges shall not be considered a qualifiying 
expense for Federal cost-share purposes.
    (t) If the grantee fails to comply with the grant award 
stipulations, standards, or conditions, the Secretaries may jointly 
suspend the grant, in whole or in part, pending corrective action. 
Subsequent to or during any period of suspension of the grant, the 
Federal Government shall not be obligated to reimburse the grantee for 
any incurrence of obligations for suspended projects other than direct 
pay of enrollees and then only for a period of time which both the 
Secretaries shall determine to be reasonable. In addition, the 
Secretaries may jointly terminate the grant, in whole or in part. 
Termination shall be effected by notice of termination. Upon receipt of 
a notice of termination, the grantee shall:
    (1) Discontinue further commitments of grant funds for the 
terminated project(s).
    (2) Cancel all sub-grants or contracts, where possible, scheduled 
for payment with funds budgeted for the terminated project(s).
    (3) Within 90 days after receipt of the notice of termination for 
the entire grant, supply either of the Secretaries with a financial 
status report, along with a refund check for any unused portion of funds 
advanced, or a request for reimbursement for allowable expenditures 
incurred in the grant program.



Sec. 26.6  Request for grant.

    (a) Of the amount available for Youth Conservation Corps projects, 
30 percent will be allocated for State projects. All States will be 
given an opportunity to participate in the program. Allocated funds not 
needed by a State will be reallocated, based on the merit of proposals 
submitted in accordance with paragraph (c) of this section.
    (b) Pursuant to section (4)(c)(1) of Public Law 93-408, States may 
receive grants up to but not to exceed 80 percent of the cost of funding 
any project from the Federal Government. The combined Federal/State 
costs of individual projects and other program expenses as established 
in the grant application determine the Federal/State cost-sharing ratio. 
Matching State costs can consist of either direct expenditures or 
services of an in-kind nature.
    (c) Application for Federal Assistance (Standard Form 424) will be 
used by applicants in applying for grants under this program. 
Application forms will be supplied to Program Agents. Only a Program 
Agent may submit an application. A single grant application must be 
submitted for the entire summer program within each State. A separate 
application must be used for non-summer projects. A non-summer project 
is defined as one which extends beyond September 30, or begins prior to 
May 1.
    (d) The Secretaries have designated individuals for each State who 
will jointly represent them. Grant applications (original and two 
copies) must be submitted to the designated reresentative of either 
Secretary. January 1 has been established as the deadline date for 
acceptance of applications for each operating year. Names and addresses 
of designated representatives will be furnished to each State. The 
Secretaries' representatives must jointly approve grant proposals. 
Approval or disapproval of proposals will be documented by a formal 
letter to the Program Agent. The Secretaries' representatives will also 
be available for technical assistance and will monitor the program.



Sec. 26.7  Application format and instructions.

    Grant application must be made using the Office of Management and 
Budget approved form (SF-424) entitled ``Federal Assistance.'' Specific 
instructions and requirements which must be followed are included in the 
Secretaries' State Grant Procedures Handbook. General instructions for 
completing the form by part numbers are:

[[Page 455]]

    (a) Part I--(SF-424 Cover Sheet, Sections I and II) shall be 
completed.
    (b) Part II--(Budget Data). See YCC State Grant Procedures Handbook 
for definitions of cost categories and for budget narrative 
instructions.
    (c) Part III--(Program Narrative Statement). Complete a separate 
description of each project, which will include the following 
information (Items 13, 14, 15, and 16 may be consolidated, if common to 
all projects):
    (1) Project number.
    (2) Project name and address.
    (3) Project location (nearest city or town and county).
    (4) Name of grantee, sub-grantee and/or contractor.
    (5) Land Ownership class(es) benefiting from the program--State, 
county, municipal or other non-Federal public lands (identify).
    (6) Number of male and female youth planned for project, including 
youth leaders.
    (7) Type of project (7-day residential; 5-day residential; non-
residential; other).
    (8) Length of session(s) (e.g., number of weeks) and proposed 
beginning and ending dates per session.
    (9) Cost of project.
    (10) Description of living conditions, if residential project (types 
of facilities, age, condition, tents, cabins, dormitories, food 
service).
    (11) Project staff (number and position titles).
    (12) Work-learning program. (Describe major projects, planned units 
of production if applicable, and any constraints that are anticipated. 
Explain how environmental learning will be integrated into projects.)
    (13) Complete calculation for daily rate of enrollee pay, including 
deduction for food lodging.
    (14) Description of health and safety program.
    (15) Description of enrollee recruiting and selection system. (The 
Statewide recruiting and selection plan may be substituted.)
    (16) Description of staff recruiting and selection system, including 
affirmative action measures to be taken.
    (d) Part IV--(Assurances) is preprinted within Attachment M, Exhibit 
M-5, OMB Circular A-102, and is to be included as part of the 
application. The following assurance is not preprinted and must be 
included by the grantee in the grant application: The grantee agrees to 
administer tests and questionnaires; conduct interviews; submit enrollee 
statistical and work accomplishment data; and otherwise assist the 
Federal Government in collecting information.



Sec. 26.8  Program reporting requirements.

    (a) Monitoring and reporting of program performance will be in 
accordance with Attachment I of OMB Circular A-102.
    (b) The reporting and/or recordkeeping requirements contained herein 
have been approved by the Office of Management and Budget in accordance 
with the Federal Reports Act of 1942.



Sec. 26.9  Consideration and criteria for awarding grants.

    The decision by both of the Secretaries' representatives on grants 
to individual States will consider the following:
    (a) The amount of grant funds allocated to the State.
    (b) The quality of the proposed program in terms of meeting program 
characteristics and objectives.
    (c) The overall cost per enrollee 8-week position.
    (d) Actual prior performance of the State in administering YCC 
projects.
    (e) The performance of the grantee in meeting the conditions of the 
grant and the requirements of OMB Circular A-102 and FMC 74-4.



 PART 27--NONDISCRIMINATION IN ACTIVITIES CONDUCTED UNDER PERMITS, RIGHTS-OF-WAY, PUBLIC LAND ORDERS, AND OTHER FEDERAL AUTHORIZATIONS GRANTED OR ISSUED UNDER 
TITLE II OF PUBLIC LAW 93-153--Table of Contents




Sec.
27.1  Purpose.
27.2  Application.
27.3  Discrimination prohibited.
27.4  Assurances.
27.5  Equal opportunity terms.
27.6  Equal opportunity implementation.
27.7  Compliance information.

[[Page 456]]

27.8  Compliance procedures.
27.9  Procedures for effecting compliance.
27.10  Hearings.
27.11  Decisions and notices.
27.12  Judicial review.
27.13  Effect on other regulations; forms and instructions.
27.14  Definitions.

    Authority: Sec. 403, 87 Stat. 576 (1973)

    Source: 39 FR 34285, Sept. 24, 1974, unless otherwise noted.



Sec. 27.1  Purpose.

    The purpose of this part is to effectuate section 403 of Public Law 
93-153 (87 Stat. 576) to the end that no person shall on the grounds of 
race, creed, color, national origin, or sex, be excluded from receiving, 
or participating in any activity conducted under, any permit, right-of-
way, public land order, or other Federal authorization granted or issued 
under title II of Public Law 93-153, 87 Stat. 584, the Trans-Alaska 
Pipeline Authorization Act.



Sec. 27.2  Application.

    This part applies to all activities, including contracting, 
employment, services, financial aids, and other benefits, conducted 
under permits, rights-of-way, public land orders, and other Federal 
authorizations granted or issued under title II of the Act by recipients 
of those authorizations, their agents, contractors, and subcontractors 
at each of their facilities conducting such activities.



Sec. 27.3  Discrimination prohibited.

    (a) General. No person shall on the grounds of race, creed, color, 
national origin, or sex, be excluded from receiving or participating in 
any activity conducted under, any permit, right-of-way, public land 
order, or other Federal authorization to which this part applies.
    (b) Specific discriminatory actions prohibited. No recipient of any 
permit, right-of-way, public land order, or other Federal authorization 
to which this part applies, or its contractors, or subcontractors to 
which this part applies may directly or through contractual or other 
arrangements, on the grounds of race, creed, color, national origin, or 
sex, discriminate in offering or providing employment, contracting, 
services, financial aids, or other benefits as follows:
    (1) Employment practices. No recipient, contractor, or subcontractor 
to which this part applies may, directly or through contractual or other 
arrangements, subject an individual to discrimination on the grounds of 
race, creed, color, national origin, or sex in its employment practices, 
including recruitment advertising, hiring, firing, up-grading, 
promotion, demotion, or transfer, layoff, or terminations, rates of pay 
or other forms of compensation, or benefits, selection for training, or 
apprenticeship, use of facilities, treatment of employees or any other 
employment practice.
    (2) Contracting practices. No recipient, contractor, or 
subcontractor to which this part applies may discriminate on the grounds 
of race, creed, color, national origin, or sex in its contracting 
practices, including but not limited to, determining qualification for 
placement on bidder lists, composition of bidder lists, pre-bid 
conferences, solicitation for bids, designation of quantities, or other 
specifications, delivery schedules, contract award and performance, or 
any other contracting practice.
    (3) Services, financial aids and other benefits. No recipient, 
contractor, or subcontractor to which this part applies may, directly or 
through contractual or other arrangements, on the grounds of race, 
creed, color, national origin, or sex, discriminate in offering or 
providing services, financial aids, or other benefits as follows:
    (i) Deny an individual any service, financial aid, or other benefit 
provided, in whole or in part, because of any Federal authorization to 
which this part applies;
    (ii) Provide any service, financial aid, or other benefit to an 
individual which is different, or is provided in a different manner, 
from that provided to others;
    (iii) Subject an individual to segregation or separate treatment in 
any matter related to his receipt of any service, financial aid, or 
other benefit provided, in whole or in part, because of any Federal 
authorization to which this part applies;
    (iv) Restrict an individual in any way in the enjoyment of any 
advantage or

[[Page 457]]

privilege enjoyed by others receiving any service, financial aid, or 
other benefit provided, in whole or in part, because of any Federal 
authorization to which this part applies;
    (v) Treat an individual differently from others in determining 
whether he satisfies any admission, enrollment, eligibility, membership 
or other requirement or condition which individuals must meet in order 
to be provided any service, financial aid, or other benefit offered, in 
whole or in part, because of any Federal authorization to which this 
part applies;
    (vi) Deny an individual an opportunity to participate in any 
activity made possible, in whole or in part, because of any Federal 
authorization to which this part applies, through the provision of 
services or otherwise, or afford him an opportunity to do so which is 
different from that afforded others;
    (vii) Deny an individual the opportunity to participate as a member 
of a planning or advisory body participating in the provision of any 
service, financial aid, or other benefit which is integrally associated 
with any Federal authorization to which this part applies;
    (4) Determining and administering services, financial aids and other 
benefits. In determining the types of services, financial aids or other 
benefits, or facilities which will be provided because of any Federal 
authorization to which this part applies, or the class of individuals or 
establishments to whom, or the situations in which, such services, 
financial aids, other benefits or facilities will be provided, or the 
class of individuals or establishments to be afforded an opportunity to 
participate in any activity made possible, in whole or in part, because 
of any Federal authorization to which this part applies, a recipient, 
contractor, or subcontractor to which this part applies, may not, 
directly or through contractual or other arrangements, utilize criteria 
or methods of administration which have the effect of subjecting 
individuals or establishments to discrimination because of their race, 
creed, color, national origin, or sex.
    (5) Site or location of facilities. In determining the site or 
location of facilities, for the provision of services, financial aids, 
or other benefits, a recipient, contractor or subcontractor to which 
this part applies, may not make selections with the purpose or effect of 
excluding individuals or establishments from, denying them the benefits 
of, or subjecting them to discrimination on the grounds of race, creed, 
color, national origin, or sex, or with the purpose or effect of 
defeating or substantially impairing the accomplishment of the 
objectives of section 403 of Public Law 93-153 and implementing rules, 
regulations, and orders.
    (6) References to services, financial aides or other benefits. 
References to services, financial aids or other benefits shall be deemed 
to include all services, financial aids, or other benefits provided in 
or through facilities, programs, or operations made possible, in whole 
or in part, because of any Federal authorizations to which this part 
applies.
    (7) Scope of prohibited discrimination. The enumeration of specific 
forms of prohibited discrimination in this paragraph (b) does not limit 
the generality of the prohibitions in paragraph (a) of this section.



Sec. 27.4  Assurances.

    Every application for a permit, right-of-way, public land order, or 
other Federal authorization to which this part applies, filed after the 
effective date of these regulations, and every contract covered 
hereunder to provide goods, services or facilities in the amount of 
$10,000 or more to the recipient of any Federal authorization to which 
this part applies, must contain an assurance that the recipient, 
contractor, or subcontractor does not and will not maintain any 
facilities in a segregated manner, and that all requirements imposed by 
or pursuant to section 403 of PubLic Law 93-153 shall be met, and that 
it will require a similar assurance in every subcontract over $10,000. 
The assurances shall be in a form specified by the Department Compliance 
Officer.



Sec. 27.5  Equal opportunity terms.

    Each permit, right-of-way, public land order, or other Federal 
authorization to which this part applies, shall include by reference or 
incorporation

[[Page 458]]

by operation of law the terms, conditions, obligations, and 
responsibilities of this section, as follows:
    (a) The recipient hereby agrees that it will not, directly or 
through contractual or other arrangements, on the grounds of race, 
creed, color, national origin, or sex, discriminate against any 
individual or establishment in offering or providing contracts, 
employment, services, financial aids, or other benefits. Recipient will 
take affirmative action to utilize minority business enterprises in the 
performance of contracts awarded by recipient, to assure that applicants 
for employment are employed and that employees are treated during 
employment, and that individuals are offered and provided services, 
financial aids, and other benefits without regard to their race, creed, 
color, national origin, or sex. Recipient agrees to post in conspicuous 
places available to contractors, employees, and other interested 
individuals, notices which set forth these equal opportunity terms and 
to notify interested individuals, such as bidders, purchasers, and labor 
unions or representatives of workers with whom it has collective 
bargaining agreements of recipient's obligations under section 403 of 
Public Law 93-153.
    (b) The recipient will comply with all rules, regulations, and 
orders of the Department of the Interior which implement section 403 of 
Public Law 93-153.
    (c) The recipient will furnish all information and reports required 
by or pursuant to rules, regulations, and orders implementing section 
403 of Public Law 93-153 and permit access to its books, records, and 
accounts by the Secretary of the Interior, the Department Compliance 
Officer, or other designee of the Secretary, for purposes of 
investigation to ascertain compliance with rules, regulations, and 
orders of the Department of the Interior which implement section 403 of 
Public Law 93-153.
    (d) The recipient recognizes and agrees that its obligation for 
compliance with section 403 of Public Law 93-153 and implementing rules, 
regulations, and orders extends not only to direct activities, but also 
to require that contractors, subcontractors, suppliers, and lessees, 
comply with section 403 and implementing rules, regulations and orders. 
To that end the recipient agrees that with regard to all contracts over 
$10,000 and all contracts of indefinite quantity (unless there is reason 
to believe that the amount to be ordered in any year under the contract 
will not exceed $10,000) to:
    (1) Obtain as part of its contractual arrangements with such 
parties, as a minimum form of assurance an agreement in writing, that:
    (i) The contractor hereby agrees that it will not, directly or 
through contractual or other arrangements, on the grounds of race, 
creed, color, national origin, or sex, discriminate against any 
individual or establishment in offering or providing contracts, 
employment, services, financial aids, or other benefits. Contractor will 
take affirmative action to utilize minority business enterprises in the 
performance of subcontracts which is awards, and to assure that 
applicants are employed and that employees are treated during 
employment, and that individuals are offered and provided services, 
financial aids, and other benefits without regard to their race, creed, 
color, national origin, or sex. Contractor agrees to post in conspicuous 
places available to contractors, employees, and other interested 
individuals notices which set forth these equal opportunity terms and to 
notify interested individuals, such as bidders, purchasers, and labor 
unions or representatives of workers with whom it has collective 
bargaining agreements of contractor's obligations under section 403 of 
Public Law 93-153.
    (ii) The contractor will comply with all rules, regulations, and 
orders of the Department of the Interior which implement section 403 of 
Public Law 93-153.
    (iii) The contractor will furnish all information and reports 
required by or pursuant to rules, regulations, and orders implementing 
section 403 of Public Law 93-153 and permit access to its books, 
records, and accounts by the Secretary of the Interior, the Department 
Compliance Officer, or other designee of the Secretary, for purposes of 
investigation to ascertain compliance with rules, regulations, and 
orders of the Department of the Interior which

[[Page 459]]

implement section 403 of Public Law 93-153.
    (iv) Contractor's noncompliance with the nondiscrimination clauses 
of this contract or with any of said rules, regulations, and orders 
shall constitute a breach of its contractual arrangements whereby said 
arrangements may be cancelled, terminated, or suspended, or may be 
subject to enforcement otherwise by appropriate legal proceedings.
    (v) Contractor will obtain the provisions of paragraph (d)(1) (i) 
through (v) of this section in all subcontracts over $10,000 and all 
subcontracts of indefinite quantity (unless there is reason to believe 
that the amount to be ordered in any year under the contract will not 
exceed $10,000).
    (2) Recipient will make every good faith effort to secure the 
compliance and will assist and cooperate actively with the Department 
Compliance Officer and the Secretary or his designee in obtaining and 
enforcing the compliance of said contracting parties with the 
requirements of section 403 and implementing rules, regulations, and 
orders, and with their respective contractual arrangements; and will 
take such action with respect to any contract or purchase order that the 
Secretary of the Interior, the Department Compliance Officer, or other 
designee of the Secretary may direct as a means of enforcing such 
provisions: Provided, however, That in the event the recipient becomes 
involved in litigation with a noncomplying party, it may request the 
Department of the Interior to enter into such litigation to protect the 
interests of the United States in the enforcement of these obligations, 
and
    (3) Recipient will obtain and furnish to the Department Compliance 
Officer such information as he may require for the supervision or 
securing of such compliance.
    (e) In the event of the recipient's noncompliance with the equal 
opportunity terms, compliance may be effected by the suspension or 
termination or refusal to grant or to continue providing the Federal 
authorization in accordance with procedures authorized by section 403 of 
Public Law 93-153, and set forth in implementing rules, regulations, or 
orders, or by any other means authorized by law.



Sec. 27.6  Equal opportunity implementation.

    Within sixty (60) days of the effective date of these regulations, 
or within sixty (60) days from the commencement of a Federal 
authorization to which this part applies, whichever occurs later, 
recipients of Federal authorizations to which this part applies, shall 
prepare and submit an affirmative action plan for each of their 
establishments to which this part applies, to assure that the 
requirements of this part will be met. In addition, recipients and each 
of their prime contractors and subcontractors shall require each 
contractor and subcontractor with a contract of $50,000 or more and 50 
or more employees to develop within sixty (60) days from the 
commencement of the contract and to keep on file a written affirmative 
action plan for each of its establishments, to which this part applies, 
with the exception of those establishments which the Department 
Compliance Officer determines are in all respects separate and distinct 
from performance of the activities of the prime contractor or 
subcontractor conducted under the Federal authorizations. Such plans 
shall include a set of specific and result-oriented procedures which the 
recipient, contractor or subcontractor commits itself to apply every 
good faith effort to achieve equal opportunity in all aspects of its 
operations. An acceptable program must include an analysis of all areas 
of operation of the recipient, contractor, or subcontractor in which it 
could be deficient in offering services, opportunities, or benefits to 
minority groups and women, and all areas of employment in which it could 
be deficient in the utilization of minority groups and women and all 
areas of contracting in which it could be deficient in the utilization 
of minority business enterprises, and, further, specific goals and 
specific timetables to which its efforts will be directed, to correct 
all deficiencies and thus to increase materially the participation of 
minorities and women in all aspects of its operation. The implementing 
affirmative action plans shall include the following:
    (a) Services, financial aids, and other benefits. The implementing 
program is required to specifically address all

[[Page 460]]

areas of operation of the recipient, contractor or subcontractor which 
offer and provide services, financial aids, and other benefits; it shall 
identify those services, financial aids, and benefits; analyze the 
opportunities available to minorities and women in each area; and set 
forth affirmative action, including goals and time- tables, which will 
be taken to materially increase participation of minorities and women.
    (b) Employment practices. The implementing plan shall address all 
aspects of employment operations and is required to contain all analyses 
and commitments, including goals and timetables, which are required in 
rules, regulations, and orders implementing Executive Order 11246, as 
amended, and to include additional commitments to employment goals for 
minorities and women in construction operations, to the extent that 
those goals are not established under Executive Order 11246.
    (c) Contracting practices. Recipients to which this part applies and 
each of their contractors and subcontractors with a contract of $150,000 
or more shall also include in their affirmative action plan a program in 
which the recipient, contractor or subcontractor agrees to take specific 
affirmative action as set forth below to utilize minority business 
enterprises as subcontractors and suppliers. For this purpose, the term 
minority business enterprise means a business enterprise that is owned 
or controlled by minority group members or women. The plan shall 
identify specific actions which the recipient, contractor or 
subcontractor will take to:
    (1) Designate a liaison officer who will administer the minority 
business enterprises program;
    (2) Provide adequate and timely consideration of the potentialities 
of minority business enterprises in all contracting decisions;
    (3) Afford minority business enterprises an equitable opportunity to 
compete for contracts and subcontracts by arranging solicitations, time 
for preparation of bids, quantities, specifications, and delivery 
schedules so as to facilitiate the participation of minority business 
enterprises;
    (4) Submit periodic reports of contracting opportunities, 
procedures, and awards to minority business enterprises, at such times, 
and in such form, and containing such information as the Department 
Compliance Officer may prescribe, including reports showing:
    (i) Procedures which have been adopted to comply with the policies 
set forth in this clause, including the establishment of a source list 
of minority business enterprises;
    (ii) Awards to minority business enterprises on the source lists, 
and
    (iii) Specific efforts to identify and award contracts to minority 
business enterprises.
    (5) Establish specific goals and timetables to utilize minority 
business enterprises in the performance of contracts awarded.
    (6) Inform minority business enterprises and organizations of 
minority business enterprises of contracting opportunities and 
procedures.
    (7) Cooperate with the Department Compliance Officer in any studies 
and surveys of the recipient's minority business enterprise procedures 
and practices that the Department Compliance Officer may from time to 
time conduct.
    (8) Assist potential minority business enterprises in obtaining and 
maintaining suitable bonding capabilities, in those instances where 
bonds are required.
    (d) Exemption. Contracts and subcontracts are exempt from the 
requirements of the equal opportunity clause with regard to work 
performed outside the United States by employees who were not recruited 
within the United States.



Sec. 27.7  Compliance information.

    (a) Records, reports, and access to books. Each recipient, 
contractor, or subcontractor to which this part applies, shall keep such 
records and submit to the Department Compliance Officer complete and 
accurate reports, at such times, and in such form, and containing such 
information, as he may determine to be necessary to enable him to 
ascertain whether the recipient, contractor or subcontractor has 
complied or is complying with rules, regulations and orders implementing 
section 403 of Public Law 93-153. In the case where the recipient, 
contractor or

[[Page 461]]

subcontractor contracts with another, such other contractor shall also 
submit such compliance reports to the recipient, contractor or 
subcontractor as may be necessary to enable the recipient, contractor or 
subcontractor to determine and carry out his obligations under section 
403 of Public Law 93-153 and implementing rules, regulations, and 
orders.
    (b) Access to sources of information. Each recipient, contractor and 
subcontractor to which this part applies, shall permit access by the 
Department Compliance Officer or his designee or by the Secretary or his 
designee during normal business hours to such of his books, records, 
accounts, and other sources of information, and his facilities, as may 
be pertinent to ascertain compliance with rules, regulations, and orders 
implementing section 403 of Public Law 93-153.
    (c) Information in possession of other agency, institution, or 
person. Where any information required of a recipient, contractor or 
subcontractor is in the exclusive possession of any other agency, 
institution, or person and such agency, institution or person shall fail 
or refuse to furnish this information, the recipient, contractor or 
subcontractor shall so certify in a report and shall set forth what 
efforts it has made to obtain the information.
    (d) Failure to submit reports. Failure to file timely, complete and 
accurate reports as required constitutes noncompliance with the equal 
opportunity clause and is ground for the imposition by the agency, 
recipient, contractor, or subcontractor of any sanctions as authorized 
by section 403 of Public Law 93-153 and implementating rules, 
regulations, and orders.
    (e) Information to beneficiaries and participants. Each recipient, 
contractor and subcontractor to which this part applies, shall make 
available to participants in and beneficiaries of its operations and 
services, information regarding the provisions of this part and the 
details of the recipient's, contractor's or subcontractor's compliance 
with this part, to the extent that it will enhance their participation 
in nondiscrimination programs of recipient, contractor, or 
subcontractor, and aid the recipient, contractor, or subcontractor in 
meeting its obligations under this part.



Sec. 27.8  Compliance procedures.

    (a) Approval of affirmative action plans. The Department Compliance 
Officer shall from time to time review the recipient's, contractor's or 
subcontractor's affirmative action plans to determine whether they meet 
the requirements of rules, regulations and orders implementing section 
403 of Public Law 93-153. Where deficiencies are found to exist, the 
Department Compliance Officer or his designee will so inform the 
recipient, contractor or subcontractor and the matter will be resolved 
by informal means whenever possible. If it has been determined that the 
matter cannot be resolved by informal means, action will be taken as 
provided for in Sec. 27.9.
    (b) Periodic compliance reviews. The Department Compliance Officer 
shall from time to time review the practices of recipients, contractors 
and subcontractors to determine whether they are complying with the 
rules, regulations and orders implementing section 403 of Public Law 93-
153. The purpose of the compliance review is to determine if the 
recipient, contractor or subcontractor maintains nondiscriminatory 
operations and practices and whether it is taking the action required by 
the rules, regulations, and orders implementing section 403 of Public 
Law 93-153 to assure that no person on the grounds of race, creed, 
color, national origin or sex is excluded from receiving or 
participating in any activity conducted under any permit, right-of-way, 
public land order or other Federal authorization to which this part 
applies. It shall consist of a comprehensive analysis of all aspects of 
the recipient's, contractor's or subcontractor's operations and 
practices which may be involved, and the policies and conditions 
resulting therefrom. Where necessary, recommendations for appropriate 
sanctions shall be made.
    (c) Complaints. Any person who believes himself or any other 
individual to be subjected to discrimination prohibited by this part may 
file with the Department Compliance Officer or his designee, a written 
complaint. A complaint must be filed not later than 180

[[Page 462]]

days from the date of the alleged discrimination, unless the time for 
filing is extended by the Department Compliance Officer or his designee.
    (d) Investigations. The Department Compliance Officer or his 
designee will make a prompt investigation whenever a compliance review 
report, complaint, or any other information indicates a possible failure 
to comply with the rules, regulations, and orders implementing section 
403 of Public Law 93-153. The investigation should include, where 
appropriate, a review of the pertinent practices and policies of the 
recipient, contractor, or subcontractor, the circumstances under which 
the possible noncompliance occurred and other factors relevant to a 
determination as to whether the recipient, contractor or subcontractor 
has failed to comply with section 403 of Public Law 93-153 and 
implementing rules, regulations, and orders.
    (e) Resolution of matters. (1) If an investigation pursuant to 
paragraph (a), (b), (c), or (d) of this section indicates a failure to 
comply with the rules, regulations, and orders implementing section 403 
of Public Law 93-153, the Department Compliance Officer or his designee 
will so inform the recipient, contractor or subcontractor and the matter 
will be resolved by informal means whenever possible. Before the 
recipient, contractor or subcontractor can be found to be in compliance, 
he must make specific commitments in writing, to correct all 
deficiencies. The commitments must include the precise actions to be 
taken and dates for completion. The time periods allotted shall be no 
longer than the minimum periods necessary to effect such changes. Upon 
approval of the Department Compliance Officer, the recipient, contractor 
or subcontractor, may be considered in compliance, on condition that the 
commitments are faithfully kept. The recipient, contractor or 
subcontractor shall be notified that making such commitments does not 
preclude future determinations of noncompliance when the commitments are 
not being met or when there is a determination by the Department 
Compliance Officer that the full facts were not known at the time 
commitments were accepted, and that commitments are not sufficient to 
correct deficiencies.
    (2) If an investigation does not warrant action pursuant to 
paragraph (e)(1) of this section, the Department Compliance Officer 
shall so inform the recipient, contractor or subcontractor, and the 
complainant, if any, in writing.
    (f) Intimidatory or retaliatory acts prohibited. No recipient, 
contractor or subcontractor shall intimidate, threaten, coerce, or 
discriminate against any individual for the purpose of interfering with 
any right or privilege secured by section 403 of Public Law 93-153 and 
implementing rules, regulations, and orders, or because he has made a 
complaint, testified, assisted, benefited from, or participated in any 
manner in an investigation, compliance review, proceeding, or hearing 
under this part. The identity of complainants shall be kept confidential 
except to the extent necessary to carry out the purposes of this part 
including the conduct of any investigation, hearing, or judicial 
proceeding arising thereunder.
    (g) Approval of action by Authorized Officer. During the period of 
construction of the Trans-Alaska Pipeline, and until such time as this 
paragraph (g) is rescinded by the Secretary, the Department Compliance 
Officer shall coordinate all actions taken pursuant to this part with 
the Authorized Officer and shall secure the approval of the Authorized 
Officer prior to the taking of any final act hereunder.



Sec. 27.9  Procedures for effecting compliance.

    (a) General. If there appears to be a failure or refusal of any 
recipient, contractor, or subcontractor to observe or comply 
substantially with section 403 of Public Law 93-153, or implementing 
rules, regulations, and orders, compliance may be effected through the 
use of conciliation conferences, informal hearings, and procedures to 
cause termination or suspension of or refusal to grant or to continue 
the permit, or other Federal authorization to which this part applies, 
or of the contracts to which this part applies, or by any other means 
authorized by law. Such other means may include, but are not limited to:

[[Page 463]]

    (1) A reference to the Department of Justice with a recommendation 
that appropriate proceedings be brought to enforce any rights of the 
United States under any law of the United States or any assurance or 
other contractural undertaking, and
    (2) Any applicable proceeding under State or local law.
    (b) Noncompliance with Sec. 27.4. In the event that a recipient 
fails or refuses to furnish an assurance required under Sec. 27.4, or 
otherwise fails or refuses to comply with a requirement imposed by or 
pursuant to that section the failure or refusal may, at the option of 
the Secretary, be grounds for authorizing proceedings to cause refusal 
of the Federal authorization in accordance with the procedures of 
paragraph (c) of this section. The Department of the Interior shall not 
be required to provide the authorization in such a case during the 
pendency of the administrative proceedings under such paragraph.
    (c) Termination of or refusal to grant or to continue the Federal 
authorization--(1) General. In those instances where a recipient fails 
or refuses to observe or comply substantially with section 403 of Public 
Law 93-153 or implementing rules, regulations, and orders, noncompliance 
at the option of the Secretary, may be grounds for termination, 
suspension, refusal to grant or continue the Federal authorization.
    (i) Recommendation to proceed. The Department Compliance Officer may 
request that the Secretary commence procedures to suspend, terminate, or 
refuse to grant or continue the Federal authorization or to cause such 
suspension, termination, or refusal to grant. He shall indicate the 
specific grounds for alleging noncompliance with section 403 and 
implementing rules, regulations, and orders, the actions which would 
create compliance, and the time necessary to achieve compliance.
    (ii) Commencement of proceedings. Before the Secretary authorizes 
the commencement of an administrative proceeding for termination, 
suspension, or refusal to grant any Federal authorization to which this 
part applies, the Secretary or his designee shall give the recipient 
notice in writing of the alleged ground or grounds for termination or 
formal suspension, or refusal to grant, with sufficient particularity to 
enable the recipient to comply with section 403 of Public Law 93-153 and 
implementing rules, regulations and orders. The recipient shall have 
sixty (60) days from the date of delivery of the notice within which to 
comply. If compliance cannot be achieved in sixty (60) days, the 
recipient shall be entitled to additional time if he demonstrates that 
compliance is not possible within the sixty (60) day period and that the 
necessary curative actions were undertaken promptly and have been 
diligently prosecuted toward completion; Provided further that the 
aforesaid additional time shall not exceed ninety (90) days from the 
last day of the said sixty (60) day period, without the prior written 
consent of the Secretary or his designee which shall specify the last 
day upon which the curative action must be completed to the satisfaction 
of the Secretary or his designee.
    (iii) Opportunity for a hearing. No order suspending, terminating or 
refusing to grant or continue any Federal authorization to which this 
part applies shall become effective until there has been an express 
finding on the record, after opportunity for a formal hearing, of a 
failure by the applicant or recipient to comply substantially with 
section 403 of Public Law 93-153 or implementing rules, regulations, and 
orders and the action has been approved by the Secretary pursuant to 
Sec. 27.11(e).
    (2) [Reserved]
    (d) Other means authorized by law. No action to effect compliance by 
any other means authorized by law shall be taken until (1) the action 
has been approved by the Secretary, (2) the recipient or other person 
has been notified of its failure to comply and of the action to be taken 
to effect compliance, and (3) the expiration of at least 10 days from 
the mailing of such notice to the recipient or other person. During this 
period of at least 10 days additional efforts shall be made to persuade 
the recipient or other person to comply and to take such corrective 
action as may be appropriate.



Sec. 27.10  Hearings.

    (a) Informal hearings--(1) Purpose. The Department Compliance 
Officer may convene such informal hearings as may

[[Page 464]]

be deemed appropriate for the purpose of inquiring into the status of 
compliance of any recipient, contractor, or subcontractor to which this 
part applies.
    (2) Notice. Recipients, contractors, and subcontractors shall be 
advised in writing as to the time and place of the informal hearings and 
may be directed to bring specific documents and records, or furnish 
other relevant information concerning their compliance status. When so 
requested, the recipient, contractor, or subcontractor shall attend and 
bring requested documents and records, or other requested information.
    (3) Conduct of hearings. The hearing shall be conducted by hearing 
officers appointed by the Department Compliance Officer. Parties to 
informal hearings may be represented by counsel or other authorized 
representative as provided in 43 CFR part 1 and shall have a fair 
opportunity to present any relevant material. Formal rules of evidence 
will not apply to such proceedings.
    (b) Formal hearings--(1) Opportunity for hearing. Whenever an 
opportunity for a hearing is required by Sec. 27.9(c), reasonable notice 
shall be given by registered or certified mail, return receipt 
requested, to the affected applicant or recipient. This notice shall 
advise the applicant or recipient of the action proposed to be taken, 
the specific provision under which the proposed action against it is to 
be taken, and the matters of fact or law asserted as the basis for this 
action, and either (i) fix a date not less than twenty (20) days after 
the date of such notice within which the applicant or recipient may 
request of the Secretary or his designee or the administrative law judge 
to whom the matter has been assigned that the matter be scheduled for 
hearing or (ii) advise the applicant or recipient that the matter in 
question has been set down for hearing at a stated place and time. The 
time and place so fixed shall be reasonable and shall be subject to 
change for cause. The complainant, if any, shall be advised of the time 
and place of the hearing. An applicant or recipient may waive a hearing 
and submit written information and argument for the record. The failure 
of an applicant or recipient to request a hearing under this paragraph 
or to appear at a hearing for which a date has been set shall be deemed 
to be a waiver of the right to a hearing under section 403 of Public Law 
93-153 and implementing rules, regulations, and orders and consent to 
the making of a decision on the basis of information on the record.
    (2) Time and place of hearing. Hearings shall be conducted by the 
Office of Hearings and Appeals of the Department, at a time and place 
fixed by the administrative law judge to whom the matter has been 
assigned. Hearings shall be held before an administrative law judge 
designated by the Office of Hearings and Appeals in accordance with its 
procedures.
    (3) Right to Counsel. In all proceedings under this section, the 
applicant or recipient and the Department shall have the right to be 
represented by counsel or other authorized representative as provided in 
43 CFR part 1.
    (4) Procedures, evidence, and record. (i) The hearing, decision, and 
any administrative review thereof shall be conducted in conformity with 
5 U.S.C. 554 through 557 and in accordance with such rules of procedure 
as are proper (and not inconsistent with this section) relating to the 
conduct of the hearing, giving of notices subsequent to those provided 
for in paragraph (b)(1) of this section, taking of testimony, exhibits, 
arguments and briefs, requests for findings, and other related matters. 
Both the Department and the applicant or recipient shall be entitled to 
introduce all relevant evidence on the issues as stated in the notice 
for hearing or as determined by the administrative law judge conducting 
the hearing at the outset of or during the hearing.
    (ii) Technical rules of evidence shall not apply to hearings 
conducted pursuant to this part, but rules or principles designed to 
assure production of the most credible evidence available and to subject 
testimony to test by cross-examination shall be applied where determined 
reasonably necessary by the administrative law judge conducting the 
hearing. The administrative law judge may exclude irrelevant, 
immaterial, or unduly repetitious evidence. All documents and other 
evidence offered or taken for the record shall be open to

[[Page 465]]

examination by the parties and opportunity shall be given to refute 
facts and arguments advanced on either side of the issues. A transcript 
shall be made of the oral evidence except to the extent that the 
substance thereof is stipulated for the record. All decisions shall be 
based upon the hearing record and written findings shall be made.
    (5) Consolidated or joint hearings. In cases in which the same or 
related facts are asserted to constitute noncompliance with this part 
with respect to two or more Federal authorizations to which this part 
applies, or asserted to constitute noncompliance with this part and the 
regulations of one or more other Federal departments or agencies, the 
Secretary may, by agreement with such other departments or agencies, 
where applicable, provide for the conduct of consolidated or joint 
hearings, and for the application to such hearings of rules of procedure 
not inconsistent with this part. Final decisions in such cases, insofar 
as this part is concerned, shall be made in accordance with Sec. 27.11.



Sec. 27.11  Decisions and notices.

    (a) Initial decision by an administrative law judge. The 
administrative law judge shall make an initial decision and a copy of 
such initial decision shall be sent by registered mail, return receipt 
requested, to the recipient or applicant.
    (b) Review of the initial decision. The applicant or recipient may 
file his exceptions to the initial decision, with his reasons therefor, 
with the Director, Office of Hearings and Appeals, within thirty (30) 
days of receipt of the initial decision. In the absence of exceptions, 
the Director, Office of Hearings and Appeals, on his own motion within 
forty-five (45) days after the initial decision, may notify the 
applicant or recipient that he will review the decision. In the absence 
of exceptions or a notice of review, the initial decision shall 
constitute the final decision subject to the approval of the Secretary 
pursuant to paragraph (f) of this section.
    (c) Decisions by the Director, Office of Hearings and Appeals. 
Whenever the Director, Office of Hearings and Appeals, reviews the 
decision of an administrative law judge pursuant to paragraph (b) of 
this section, the applicant or recipient shall be given reasonable 
opportunity to file with him briefs or other written statements of its 
contention, and a copy of the final decision of the Director, Office of 
Hearings and Appeals, shall be given to the applicant or recipient and 
to the complainant, if any.
    (d) Decisions on record where a hearing is waived. Whenever a 
hearing is waived pursuant to Sec. 27.10 (b)(1), a decision shall be 
made by the Director, Office of Hearings and Appeals, on the record and 
a copy of such decision shall be given in writing to the applicant or 
recipient and to the complainant, if any.
    (e) Rulings required. Each decision of an administrative law judge 
or the Director, Office of Hearings and Appeals, shall set forth his 
ruling on each finding, conclusion, or exception presented, and shall 
identify the requirement or requirements imposed by or pursuant to this 
part with which it is found that the applicant or recipient has failed 
to comply.
    (f) Approval by Secretary. Any final decision of an administrative 
law judge or of the Director, Office of Hearings and Appeals, which 
provides for the suspension or termination of, or the refusal to grant 
or continue a Federal authorization, or the imposition of any other 
sanction available under this part, shall promptly be transmitted to the 
Secretary, who may approve such decision, may vacate it, or remit or 
mitigate any sanction imposed.
    (g) Content of decisions. The final decision may provide for 
suspension or termination of, or refusal to grant or continue a Federal 
authorization, in whole or in part, and may contain such terms, 
conditions, and other provisions as are consistent with and will 
effectuate the purposes of section 403 of Public Law 93-153 and 
implementing rules, regulations, and orders, including provisions 
designated to assure that no Federal authorization will be extended 
under title II of Public Law 93-153 to the applicant or recipient 
determined by such decision to be in default in its performance of an 
assurance given by it pursuant to section 403 and implementing rules, 
regulations, and orders or to have otherwise failed

[[Page 466]]

to comply with this part, unless and until it corrects its noncompliance 
and satisfies the Secretary that it will fully comply with this part.
    (h) Post termination decisions. An applicant or recipient adversely 
affected by an order issued under paragraph (g) of this section shall be 
restored to full eligibility to receive the Federal authorization if it 
satisfies the terms and conditions of that order for such eligibility 
and if it provides reasonable assurance that it will fully comply with 
this part.



Sec. 27.12  Judicial review.

    Action taken pursuant to this part is subject to judicial review.



Sec. 27.13  Effect on other regulations; forms and instructions.

    (a) Effect on other regulations. Nothing in these regulations shall 
be deemed to supersede any of the following (including future amendments 
thereof):
    (1) Executive Order 11246, as amended, and regulations therefor;
    (2) Executive Order 11063 and regulations issued thereunder, or any 
other regulations or instructions insofar as such Order, regulations, or 
instructions prohibit discrimination on the ground of race, creed, 
color, national origin, or sex in any program or situation to which this 
part is inapplicable, or prohibit discrimination on any other ground.
    (3) Regulations to effectuate title VI of the Civil Rights Act of 
1964.
    (b) Forms and instructions. The Department Compliance Officer may 
issue and make available to interested persons instructions and 
procedures for effectuating this part.
    (c) Supervision and coordination. The Secretary may from time to 
time assign to such officials of the Department as he deems appropriate, 
or to officials of other departments or agencies of the Government with 
the consent of such departments or agencies, responsibilities in 
connection with the effectuation of the purposes of this part (other 
than responsibility for final decision as provided in Sec. 27.11), 
including the achievement of effective coordination and maximum 
uniformity within the Department and within the Executive Branch of the 
Government in the application of this part. Any action taken, 
determination made, or requirement imposed by an official of another 
department or agency acting pursuant to an assignment of responsibility 
under this paragraph shall have the same effect as though such action 
had been taken by the Secretary of the Interior.



Sec. 27.14  Definitions.

    As used in this part:
    (a) The term Secretary means the Secretary of the Interior.
    (b) The term applicant means one who submits an application for any 
Federal authorization to which this part applies.
    (c) The term recipient means any entity or individual who receives a 
permit, right-of-way, public land order, or other Federal authorization 
granted or issued under title II of Public Law 93-153 and its agent or 
agents.
    (d) The term contract means any agreement or arrangement between a 
recipient and any person (in which the parties do not stand in the 
relationship of an employer and an employee) in any way related to the 
activities of the recipient conducted under any permit, right-of-way, 
public land order, or other Federal authorization granted or issued 
under title II.
    (e) The term subcontract means any agreement or arrangement between 
a contractor and any person (in which the parties do not stand in the 
relationship of an employer and an employee) in any way related to the 
performance of any one or more contracts as defined above.
    (f) The Authorized Officer means the employee of the Department, 
designated to act on behalf of the Secretary pursuant to the Agreement 
and Grant of Right-of-Way for Trans-Alaska Pipeline or such other person 
to whom the Authorized Officer redelegates his authority pursuant to the 
delegation of authority to the Authorized Officer from the Secretary.
    (g) The Department Compliance Officer means that officer of the 
Department of the Interior so designated by the Secretary.

[[Page 467]]



PART 28--FIRE PROTECTION EMERGENCY ASSISTANCE--Table of Contents




Sec.
28.1  Purpose.
28.2  Definitions.
28.3  Emergency assistance.

    Authority: Act of May 27, 1955 (42 U.S.C. 1856, 1856b).

    Source: 41 FR 51794, Nov. 24, 1976, unless otherwise noted.



Sec. 28.1  Purpose.

    The purpose of this part is to provide criteria for agencies in the 
Department to render fire protection emergency assistance to fire 
organizations not within the Department.



Sec. 28.2  Definitions.

    As used in this part:
    (a) The term agency head means the Secretary of the Interior or an 
official of the Department of the Interior who exercises authority 
delegated by the Secretary of the Interior.
    (b) The term fire protection includes personnel services and 
equipment required for fire prevention, the protection of life and 
property, and firefighting; and



Sec. 28.3  Emergency assistance.

    In the absence of a reciprocal fire protection agreement, each 
agency head may provide emergency fire protection will not jeopardize 
the property of the United States by making it impossible for the agency 
head to protect the property of the United States and such assistance is 
determined to be in the best interest of the United States. The 
providing of emergency assistance shall not be in the best interest of 
the United States and may not be granted by an agency head if:
    (a) Persons other than those currently employed by the agency at the 
time of the emergency and trained in the type of emergency assistance 
being provided would be used in the providing of the emergency 
assistance.
    (b) Assistance is provided to a place more than an hour's travel 
from where the agency maintains fire protection facilities. Assistance 
which requires more than an hour's travel may be given for those fire 
emergencies threatening to last more than 12 hours, or endangering human 
life.



PART 29--TRANS-ALASKA PIPELINE LIABILITY FUND--Table of Contents




Sec.
29.1  Definitions.
29.2  Creation of the Fund.
29.3  Fund administration.
29.4  General powers.
29.5  Officers and employees.
29.6  Financing, accounting, and audit.
29.7  Imposition of strict liability.
29.8  Notification and advertisement.
29.9  Claims, settlement and adjudication.
29.10  Subrogation.
29.11  Investment.
29.12  Borrowing.
29.13  Termination.
29.14  Information collection.

    Authority: Sec. 204(c), Trans-Alaska Pipeline Authorization Act, 43 
U.S.C. 1653(c); secs. 311(p)(1) and 311(p)(2) of the Federal Water 
Pollution Control Act, 33 U.S.C. 1321 (p)(1), (2).

    Source: 53 FR 3396, Feb. 5, 1988, unless otherwise noted.



Sec. 29.1  Definitions.

    As used in this part:
    (a) Act means the Trans-Alaska Pipeline Authorization Act, title II 
of Public Law 93-153, 43 U.S.C. secs. 1651, et seq.
    (b) Affiliated means:
    (1) Any person owned or effectively controlled by the vessel Owner 
or Operators; or
    (2) Any person that effectively controls or has the power to 
effectively control the vessel Owner or Operator by--
    (i) Stock interest, or
    (ii) Representation on a board of directors or similar body, or
    (iii) Contract or other agreement with other stockholders, or
    (iv) Otherwise, or;
    (3) Any person which is under common ownership or control with the 
vessel Owner or Operator.
    (c) Claim means a demand in writing for payment for damage allegedly 
caused by an incident.
    (d) Contact person means a person designated by the Owner or 
Operator and identified to the Fund Administrator and the National 
Response Center operated by the Coast Guard as the official

[[Page 468]]

responsible for coordinating with the Fund the resolution of claims 
filed as a result of a TAPS oil spill.
    (e) Damage or damages means any economic loss, arising out of or 
directly resulting from an incident, including but not limited to:
    (1) Removal costs;
    (2) Injury to, or destruction of, real or personal property;
    (3) Loss of use of real or personal property;
    (4) Injury to, or destruction of, natural resources;
    (5) Loss of use of natural resources; or
    (6) Loss of profits or impairment of earning capacity due to injury 
or destruction of real or personal property or natural resources, 
including loss of subsistence hunting, fishing and gathering 
opportunities.
    (f) Fund means the Trans-Alaska Pipeline Liability Fund established 
as a non-profit corporate entity by section 204(c)(4) of the Trans-
Alaska Pipeline Authorization Act.
    (g) Guarantor means the person, other than the Owner or Operator who 
provides evidence of financial responsibility for an Owner or Operator, 
and includes an underwriter, insurer or surety company.
    (h) Incident (or ``spill'') means a discharge of oil from a vessel 
which is carrying TAPS oil loaded on that vessel at the terminal 
facilities of the Pipeline and which:
    (1) Violates applicable water quality standards, or
    (2) Causes a film or sheen upon or discoloration of the surface of 
the water or adjoining shorelines or causes a sludge or emulsion to be 
deposited beneath the surface of the water or upon adjoining shorelines.
    (i) Operator of the Pipeline means the common agent designated by 
the Permittees to operate the Pipeline.
    (j) Owner of the oil means the Owner of TAPS oil at the time that 
such oil is loaded on a vessel at the terminal facilities of the 
Pipeline.
    (k)(1) Owner means, in the case of a vessel, the person owning the 
vessel carrying TAPS oil at the time of an incident, and
    (2) Operator means, in the case of a vessel, the person operating, 
or chartering by demise, the vessel carrying TAPS oil at the time of an 
incident.
    (l) Person means an individual, a corporation, a partnership, an 
association, a joint stock company, a business trust, an unincorporated 
organization, or a Government entity.
    (m) Person in charge of the vessel means the individual on board the 
vessel with the ultimate responsibility for vessel navigation and 
operations.
    (n) Permittees means the holders of the Pipeline right-of-way for 
the Trans-Alaska Pipeline System.
    (o) Pipeline means any Pipeline in the Trans-Alaska Pipeline System.
    (p) Secretary means the Secretary of the Interior or an authorized 
representative of the Secretary.
    (q) TAPS oil means oil which was transported through the Trans-
Alaska Pipeline and loaded on a vessel at the terminal facilities of the 
Pipeline.
    (r) Terminal facilities means those facilities of the Trans-Alaska 
Pipeline System at which oil is taken from the Pipeline and loaded on 
vessels or placed in storage for future loading onto vessels.
    (s) Trans-Alaska Pipeline System or System means any Pipeline or 
terminal facilities constructed by the Permittees under the authority of 
the Act.
    (t) United States includes the various States of the United States, 
the District of Columbia, the Commonwealth of Puerto Rico, the Canal 
Zone, Guam, the Virgin Islands, American Samoa, the Commonwealth of the 
Northern Mariana Islands, and the Trust Territory of the Pacific 
Islands.
    (u) Vessel means any type of water-craft or other artificial 
contrivance, used or capable of being used as a means of transportation 
on water, which is engaged in any segment of transportation between the 
terminal facilities of the Pipeline and ports under the jurisdiction of 
the United States, and which is carrying TAPS oil.



Sec. 29.2  Creation of the Fund.

    (a) The Trans-Alaska Pipeline Liability Fund (Fund) was created by 
the Act as a non-profit corporation to be administered by the holders of 
the Trans-Alaska Pipeline right-of-way under

[[Page 469]]

regulations prescribed by the Secretary. The vessel Owner and Operator 
are strickly liable for the first $14 million of claims for any one 
incident. The vessel Owner and Operator remain liable for claims over 
that amount whenever the damages involved were caused by the 
unseaworthiness of the vessel or by negligence and should the Fund pay 
any claims under those circumstances, the Fund retains the right of 
subrogation. The Fund's maximum liability for any one incident is the 
amount of the claims over $14 million but not to exceed $100 million.
    (b) The Fund shall be subject to, and shall take all steps necessary 
to carry out its responsibilities under, the Act and these implementing 
regulations.
    (c) The right to repeal, alter, or amend these regulations is 
expressly reserved.



Sec. 29.3  Fund administration.

    (a) The Fund shall be administered by a Board of Trustees designated 
by the Permittees and the Secretary as provided in paragraph (b) of this 
section.
    (b)(1) The Board of Trustees shall be comprised of one member 
designated by each Permittee and three members designated by the 
Secretary. At least one member designated by the Secretary shall be 
chosen from persons nominated by the Governor of the State of Alaska. 
Each member shall serve for a period of three years and may succeed 
himself or herself. Each member shall have the right to vote. If 
additional persons become holders of rights-of-way, each such additional 
Permittee shall have the right to designate a trustee, and if any holder 
of right-of-way sells the interest in such right-of-way, such holder's 
designated trustee shall resign from the Board. The Board shall elect by 
a majority vote a Chairman and a Secretary annually.
    (2) Where any activity of the Fund creates a conflict of interest, 
or the appearance of a conflict of interest, on the part of any member 
of the Board of Trustees, the member involved shall excuse himself or 
herself from any consideration of such activity by the Board of 
Trustees.
    (c) The Board of Trustees by a majority vote shall select an 
Administrator to direct the day-to-day operations of the Fund.
    (d) The Board of Trustees shall hold meetings every six months, or 
more frequently when necessary to consider pressing matters, including 
pending claims under Sec. 29.9.
    (e)(1) Each Board Member and officer of the Fund now or hereafter 
serving as such, shall be indemnified by the Fund against any and all 
claims and liabilities to which he or she has or shall become subject by 
reason of serving or having served as such Board Member or officer, or 
by reason of any action alleged to have been taken, omitted, or 
neglected by him or her as such Board Member or officer; and the Fund 
shall reimburse each such person for all legal expenses reasonably 
incurred by him or her in connection with any such claim or liability: 
Provided, however, That no such person shall be indemnified against, or 
be reimbursed for any expenses incurred in connection with, any claim or 
liability arising out of his or her own willful misconduct or gross 
negligence.
    (2) The amount paid to any officer or Board Member by way of 
indemnification shall not exceed his or her actual liabilities and 
actual, reasonable, and necessary expenses incurred in connection with 
the matter involved. Expenses incurred in defending a civil or criminal 
action, suit, or proceeding may be paid by the Fund in advance of the 
final disposition of such action, suit, or proceeding as authorized by 
the Board in the specific case upon receipt of an undertaking by or on 
behalf of the Board Member or officer to repay such amount if it shall 
ultimately be determined that he or she is not entitled to be 
indemnified by the Fund as authorized herein.
    (3) The indemnification provided by this section shall continue as 
to a person who has ceased to be a Board Member or officer and shall 
inure to the benefit of the heirs, executors, and administrators of such 
a person. The right of indemnification hereinabove provided for shall 
not be exclusive of any rights to which any Board Member or officer of 
the Fund may otherwise be entitled by law.

[[Page 470]]



Sec. 29.4  General powers.

    The Fund shall have such powers as may be necessary and appropriate 
for the exercise of the powers herein specifically and impliedly 
conferred upon the Fund and all such incidental powers as are customary 
in non-profit corporations generally, including but not limited to the 
following:
    (a) By resolution of the Board of Trustees, the fund shall adopt a 
corporate seal.
    (b) The Fund may sue and be sued in its corporate name and may 
employ counsel to represent it.
    (c) The Fund shall be a resident of the State of Alaska with its 
principal place of business in Alaska, and the Board of Trustees shall 
establish a business office or offices as deemed necessary for the 
operation of the Fund.
    (d) In any civil action for the recovery of damages resulting from 
an incident, the Fund shall waive personal jurisdiction upon being 
furnished with a copy of the summons and complaint in the action.
    (e) The Board of Trustees of the Fund, by a majority of those 
present and voting, shall adopt and may amend and repeal by-laws 
governing the performance of its statutory duties.
    (f) The Fund shall do all things necessary and proper in conducting 
its activities as Trustee including
    (1) Receipt of fee collections pursuant to section 204(c)(6) of the 
Act;
    (2) Payment of costs and expenses reasonably necessary to the 
administration of the Fund as well as costs required to satisfy claims 
against the Fund;
    (3) Investment of all sums not needed for administration and the 
satisfaction of claims in income-producing securities as hereinafter 
provided; and
    (4) Seeking recovery of any monies to which it is entitled as 
subrogee under circumstances set forth in section 204(c)(8) of the Act.
    (g) The Fund shall determine the character of and the necessity for 
its obligations and expenditures, and the manner in which they shall be 
incurred, allowed, and paid. The Board of Trustees shall establish an 
annual budget, subject to the approval of the Secretary.
    (h) All costs and expenses reasonably necessary to the 
administration of the Fund, including costs and expenses incident to the 
termination, settlement, or payment of claims, are properly chargeable 
as expenses and payable out of fees or other income of the Fund.



Sec. 29.5  Officers and employees.

    (a) The Administrator is the Chief Executive Officer of the Fund and 
is responsible for carrying out all executive and administrative 
functions as authorized by the Board of Trustees in accordance with the 
Act including the receipt and verification of fees collected from Owners 
of TAPS oil pursuant to Sec. 29.6(a), the investment of Fund assets in 
securities according to guidelines approved by the Board of Trustees and 
consistent with these regulations, and the disbursement of such assets 
in payment of expenses and approved claims.
    (b) The Fund may employ such other persons as may be necessary to 
carry out its functions.



Sec. 29.6  Financing, accounting, and audit.

    (a)(1) The Operator of the Pipeline shall notify each Permittee 
within a reasonable time as to the date of the tanker loadings and the 
volumes of TAPS oil loaded. The Permittee will send an invoice for 
transportation charges for TAPS oil (which includes five cents per 
barrel for the Fund) to the Owner of the oil. The Permittee will receive 
the five cents per barrel fee from the Owner of the oil in accordance 
with the terms of its particular pipeline tariff, filed with the 
appropriate governmental agency, and shall transfer the fee on or before 
the next business day to a Fund bank account designated by the 
Administrator. Collection of fees shall cease at the end of the month 
following the month in which $100 million has been accumulated in the 
Fund from any source. Collection of fees shall be resumed when the 
accumulation falls below $100 million. The Administrator shall notify 
the Pipeline carriers by the fifteenth of the month if fees are to be 
collected during the following month.
    (2) The value of the Fund shall be the current market value of the 
Fund on

[[Page 471]]

the day at the end of each month or other agreed upon accounting period.
    (b) Costs of the administration shall be paid from the money 
received by the Fund, and all sums not needed for administration and the 
satisfaction of claims shall be invested in accordance with Sec. 29.11. 
The interest on and the proceeds from the sale of any obligations held 
in the Fund shall be credited to and form a part of the Fund. Income 
from such securities shall be added to the principal of the Fund if not 
used for costs of administration or settlement of claims.
    (c) At the end of each month that fees are payable under the Act, or 
other agreed upon accounting period, the Operator of the Pipeline shall 
provide the Fund with a statement of the respective volumes of crude oil 
transported by the Operator of the Pipeline and delivered to vessels, 
the amount of fees charged and collected, and the Owners of TAPS oil 
from whom such fees were or are due. The Administrator shall provide a 
copy of the statement to the Owners of the oil, and to the State of 
Alaska.
    (d) The Fund shall undertake an annual accounting.
    (e) The Fund shall be subject to an annual audit by the Comptroller 
General, in coordination with the Administrator and the Secretary. 
Authorized representatives of the Comptroller General and the Secretary 
shall have complete access, for purposes of the audit or otherwise, to 
all books, accounts, financial records, reports, files, and all other 
papers, things, or property belonging to or in use by the Fund and they 
shall be afforded full facilities for verifying among other things, 
transactions with the balances on securities held by depositories, 
fiscal agents, and custodians. A report of each audit made by the 
Comptroller General shall be submitted to the Congress.



Sec. 29.7  Imposition of strict liability.

    (a) Notwithstanding the provisions of any other law, where a vessel 
is engaged in any segment of transportation between the terminal 
facilities of the Pipeline and ports under the jurisdiction of the 
United States, and is carrying TAPS oil, the Owner and Operator (jointly 
and severally), and the Fund established by section 204(c) of the Act, 
shall be strictly liable without regard to fault in accordance with that 
section for all damages, including clean-up costs, sustained by any 
person or entity, public or private, including residents of Canada, as a 
result of any discharge of TAPS oil from such vessel. Strict liability 
under this section shall cease when the TAPS oil has first been brought 
ashore at a port under the jurisdiction of the United States.
    (b) Strict liability shall not be imposed under this part if the 
Owner or Operator of the vessel, or the Fund, can prove that the damages 
were caused by an act of war or by the negligence of the United States 
or other governmental agency. Strict liability shall not be imposed 
under the Act with respect to the claim of a damaged party if the Owner 
or Operator of the vessel, or the Fund, can prove that the damage was 
caused by the negligence of such damaged party.
    (c)(1) Strict liability for all claims arising out of any one 
incident shall not exceed $100 million. The Owner and Operator of the 
vessel shall be jointly and severally liable for the first $14 million 
of the claims that meet the definition of damages as provided for in 
these regulations. The Fund shall be liable for the balance of the 
claims that meet the same definition up to $100 million. If the total of 
these claims exceeds $100 million, they shall be reduced 
proportionately. The unpaid portion of any claim may be asserted and 
adjudicated under other applicable Federal or State law.
    (2) The Fund shall establish uniform procedures to determine whether 
claims from a TAPS oil spill might exceed $14 million and $100 million. 
These procedures shall provide that when a determination is made that 
claims may exceed $100 million, payment of claims may be withheld in 
full or in part for a twenty-four month period so that claims may be 
proportionately reduced prior to payment.
    (d)(1) Each Owner or Operator of a vessel shall obtain from the 
Federal Maritime Commission a ``Certificate of Financial Responsibility 
(Alaska Pipeline)'' demonstrating compliance with the provisions of 
section 311(p) of the

[[Page 472]]

Federal Water Pollution Control Act, as amended (33 U.S.C. 1321(p)), and 
regulations promulgated pursuant to such act (33 CFR part 131). 
Notwithstanding inconsistent language in such act, financial 
responsibility in the amount of $14 million for all such vessels must be 
established.
    (2) The certificate obtained in accordance with this subsection 
shall be carried on board the vessel. No TAPS oil may be loaded on any 
vessel which has not been issued a valid certificate which is still in 
effect at the time of loading.



Sec. 29.8  Notification and advertisement.

    (a) As soon as the person in charge of a vessel has knowledge of an 
incident in which the vessel is involved, he shall immediately notify 
the Owner or Operator and the National Response Center, (800) 424-6802, 
of the incident. Notification under this section is in addition to any 
notification requirements under section 311(b)(5) of the Federal Water 
Pollution Control Act, as amended, and the regulations of the Coast 
Guard and the Environmental Protection Agency promulgated thereunder (33 
CFR 153.203 and 40 CFR 110.10, respectively).
    (b) Upon receiving notice of an incident, the National Response 
Center shall immediately notify the Fund.
    (c)(1) At the time of a spill of TAPS oil, the vessel Owner and 
Operator shall consult with each other and identify a single contact 
person to both the Fund Administrator and the National Response Center 
as the official who is responsible for coordinating with the Fund the 
resolution of claims from a spill of TAPS oil. The National Response 
Center shall provide the identity of the contact person to appropriate 
officials of the Coast Guard.
    (2) The Fund shall establish procedures for coordination of the 
handling of claims with the contact person.
    (d) Pursuant to its procedures, the Fund shall ascertain if the 
spill may result in damage claims in excess of $14 million. If it 
concludes that that level may be reached, the Fund shall commence 
advertisement no later than 45 days from the date the Fund receives 
notice of the incident and shall continue advertising for a period of 
not less than thirty days.
    (e) The advertisement must appear in one or more local newspapers of 
general circulation and the Fund shall establish procedures governing 
the format and the information to be included in the advertisement of an 
incident. All advertisements must include:
    (1) The date and location of the incident;
    (2) The name of the Owner or Operator;
    (3) The name and address of the contact person or of the Fund 
Administrator to whom claims should be sent.



Sec. 29.9  Claims, settlement and adjudication.

    (a)(1) Claims in accordance with this section may be submitted by 
any damaged party, his or her duly authorized agent, or his or her 
successor in interest.
    (2) Claims submitted in accordance with this section must contain 
the following information:
    (i) A detailed statement of the circumstances, if known, by which 
the claimed loss occurred.
    (ii) A detailed listing of damages incurred, categorized according 
to the type of damage involved (Sec. 29.1(e)), and including a monetary 
claim for each type of damage listed.
    (iii) Documentation of all monetary claims asserted.
    (b) The contact person must provide copies of all claims filed with 
the vessel Owner or Operator to the Fund Administrator upon request of 
the Administrator. Once such claims are paid, the contact person shall 
notify the Fund and upon request of the Administrator supply any 
adjuster's reports.
    (c) Prior to reaching $14 million in claims filed, the contact 
person shall notify the Fund whether the vessel Owner or Operator will 
assume responsibility to pay damages over the $14 million level.
    (d)(1) In the event the vessel Owner or Operator refuses to pay 
claims over the $14 million level, the Fund shall determine if the $14 
million in claims already filed meet the definition of damage as 
established by this section. The Fund shall pay the claims, or portion 
of claims, over $14 million, which have been determined to meet that 
definition.

[[Page 473]]

    (2) The Fund shall establish uniform procedures and standards for 
the appraisal and settlement of claims against the Fund, including but 
not limited to procedures for appraising claims made to the vessel Owner 
or Operator to determine when $14 million of claims meeting the 
definition of damages has been reached; procedures to determine whether 
claims over the $14 million level which it receives meet the definition 
of damages; and procedures for determining when the services of a 
private insurance and claims adjuster shall be used.
    (e) In the event the vessel Owner or Operator refuses payment of any 
claims up to $14 million, the injured parties have recourse to the 
district court for the Federal district in which the spill occurred or 
the appropriate State court for the State in which the spill occurred. 
The Fund only becomes liable after $14 million in claims meeting the 
definition of damages have been paid or have been acknowledged as 
payable by the vessel Owner or Operator.
    (f) The Fund may settle or compromise any claim presented to it.
    (g) No claim may be presented, nor any action be commenced, for 
damages recoverable under this part unless that claim is presented to or 
that action is commenced against the vessel Owner or Operator, or their 
guarantor, or against the Fund, as to their respective liabilities, 
within two years from the date of discovery of the damages caused by an 
incident, or of the date of the incident causing the damages, whichever 
is earlier.
    (h)(1) The Board of Trustees, by a majority vote, shall decide to 
allow or deny claims or settlements presented to the Fund in accordance 
with this section. In its discretion the Board may delegate the 
authority to settle classes of claims to the Administrator.
    (2)(i) Where a claim is presented to the Fund by or on behalf of any 
person having a close business, personal or governmental association 
with any member of the Board of Trustees, such as to create a conflict 
of interest or the appearance of such conflict of interest on the part 
of such member of the Board of Trustees, the member involved shall 
excuse himself or herself from any consideration of such claim.
    (ii) Where a claim presented to the Fund has previously been 
presented to the Owner or Operator and such Owner or Operator has a 
close business, personal or governmental association with any member of 
the Board of Trustees, such as to create a conflict of interest or the 
appearance of a conflict of interest on the part of such member of the 
Board of Trustees, the member involved shall excuse himself or herself 
from any consideration of such claim.
    (i) Any claimant aggrieved by the Fund's decision on a claim under 
this section may appeal the decision in the appropriate Federal district 
court.



Sec. 29.10  Subrogation.

    If the Fund pays compensation to any claimant, the Fund shall be 
subrogated to all rights, claims, and causes of action which that 
claimant has to the extent permitted by law.



Sec. 29.11  Investment.

    (a) The monies accumulated in the Fund shall be prudently invested 
in the following types of income-producing obligations having a high 
degree of reliability and security, or in such other obligations as the 
Secretary may approve:
    (1) Fixed income securities issued by the United States or any of 
its agencies, at the same interest rates and terms available to private 
investors; and
    (2) Fixed income securities or obligations issued by a corporation 
or issued or guaranteed by a State or local government or any political 
subdivision, agency or instrumentality thereof, provided such 
obligations have a rating by Standard and Poors, or Moody, of ``A'' or 
better, or an equivalent rating, or provided further that the security 
or obligation is of the same priority as another security or obligation 
of the same issuer which has been rated ``A'' or better, and provided 
that the portfolio has an overall rating of ``AA.'' Provided, however, 
That no securities or obligations of the permittees or their affiliates 
or of any investment advisor or custodian to the Fund, or their 
affiliates may be purchased or held by the Fund.

[[Page 474]]

    (3) Time certificates of deposit and commercial paper provided that 
the commercial paper has a rating of either ``A1'' or ``P1'' or both.
    (b) No more than two percent of the total principal amount 
outstanding of fixed income obligations of a single issuer may be held 
by the Fund at any one time, Provided, however, That this restriction 
shall not apply to obligations of the United States or any of its 
agencies.



Sec. 29.12  Borrowing.

    In the event the Fund is unable to satisfy a claim determined to be 
justified, or is in need of money with which to initiate the operation 
of the Fund, the Fund may borrow the money needed from any commercial 
credit source at the lowest available rate of interest. If the amount to 
be borrowed is $500,000 or less, the Administrator may arrange to pledge 
the credit of the Fund pursuant to a resolution of the Board of 
Trustees. If the proposed borrowing exceeds $500,000, the Administrator 
shall, prior to issuance of a note or other security pledging the credit 
of the Fund, secure the approval of the Secretary. No money may be 
borrowed from any of the Permittees or their affiliates.



Sec. 29.13  Termination.

    Upon termination of operations of the Pipeline, the full disposition 
of all claims, and the expiration of time for the filing of claims 
against the Fund, all assets remaining in the Fund shall be placed in a 
temporary trust fund account within the State of Alaska. The terms of 
the trust arrangement shall be determined by the Secretary. During the 
next succeeding session of Congress, the Secretary shall request that 
Congress provide for final disposition of the Fund. If Congress at any 
time establishes a comprehensive oil pollution liability fund which 
supersedes or repeals the Fund, the Fund assets and any pending claims 
shall be disposed of as Congress or the Secretary shall direct.



Sec. 29.14  Information collection.

    The information collection requirements contained in 43 CFR 29.9 
have been approved by the Office of Management and Budget under 44 
U.S.C. 3501 et seq. and assigned approval No. 1084-0026. The information 
being collected is the information required to substantiate claims 
submitted to the Fund. The information will be used to determine whether 
the claims are appropriate for payment by the Fund. Submission of this 
information is required of claimants before a claim can be considered.



PART 32--GRANTS TO STATES FOR ESTABLISHING YOUNG ADULT CONSERVATION CORPS (YACC) PROGRAM--Table of Contents




Sec.
32.1  Introduction.
32.2  Definitions.
32.3  Program purpose and objectives.
32.4  Program operation requirements.
32.5  Administrative requirements.
32.6  Request for grant.
32.7  Application format, instructions, and guidelines.
32.8  Program reporting requirements.
32.9  Consideration and criteria for awarding grants.

    Authority: Pub. L. 95-93, sec. 806, 91 Stat. 630 (29 U.S.C. 801).

    Source: 43 FR 12266, Mar. 23, 1978, unless otherwise noted.



Sec. 32.1  Introduction.

    (a) The Young Adult Conservation Corps (YACC) is authorized by title 
I of the Youth Employment and Demonstration Projects Act of 1977 (Pub. 
L. 95-93), which amends the Comprehensive Employment and Training Act 
(CETA) of 1973 by adding a new title VIII.
    (b) The Young Adult Conservation Corps (YACC) is a year-round 
employment program for young men and women aged 16 through 23 inclusive. 
Financial assistance is available through grants-in-aid for employment 
and work to be performed on projects affecting both Federal and non-
Federal public lands and waters or projects limited to non-Federal 
public lands and waters. YACC grants do not require matching.
    (c) The YACC grant program is jointly managed by the Secretaries of 
the Interior and Agriculture under an interagency agreement with the 
Secretary of Labor.

[[Page 475]]

    (d) Thirty percent of the sums appropriated to carry out the YACC 
program for any fiscal year will be available for grants during such 
year. Grant funds will be allocated on the basis of the total youth 
population within each State. State YACC programs must consist of both 
residential and nonresidential projects. At least 25 percent of the 
State YACC program must be residential by September 30, 1978.



Sec. 32.2  Definitions.

    The terms used in these regulations are defined as follows:
    (a) Act. The Comprehensive Employment and Training Act of 1973, as 
amended.
    (b) YACC. Young Adult Conservation Corps.
    (c) Secretaries. The Secretaries of the Interior and Agriculture or 
their designated representatives. The YACC program is managed within 
Interior by the Office of Youth Programs, and within Agriculture, by the 
Forest Service.
    (d) State. Any of the several States of the United States, District 
of Columbia, Commonwealth of Puerto Rico, Virgin Islands, Guam, American 
Samoa, and The Trust Territories of the Pacific Islands and the Northern 
Marianas.
    (e) Refugee/parolee. An alien who is admitted into the United States 
under the Immigration and Nationality Act, and who is legally authorized 
to take permanent employment in the United States.
    (f) Enrollee. An individual enrolled in the YACC grant program.
    (g) Grant. Funding furnished by the Secretaries to a State pursuant 
to the Act in order to carry out the YACC program.
    (h) Grantee. Any State recipient of a grant for the operation of a 
YACC program affecting both Federal and non-Federal public lands and 
waters, or projects limited to non-Federal public lands and waters as 
designated by the Governor in each State.
    (i) Subgrantee. Any unit of general local government or any public 
agency or organization or any private non-profit agency or organization 
which has been in existence at least 2 years which has successfully 
applied to a State for funds to operate a YACC project affecting both 
Federal and non-Federal public lands and waters within that State or 
projects limited to non-Federal public lands and waters.
    (j) Contractor. Any public agency or organization, or any private 
non-profit agency or organization which has been in existence for at 
least 2 years and is under contract with the grantee or sub-grantee for 
the conduct of a YACC project affecting both Federal and non-Federal 
public lands or waters, or projects limited to non-Federal public lands 
and waters.
    (k) State grant program. The YACC program consisting of one or more 
projects operated by a State with Federal Funding.
    (l) Project. A YACC residential camp operation or nonresidential 
project:
    (1) Residential camp. A YACC facility established and maintained to 
provide 7 days-per-week, 24 hours-per-day residential support services 
for enrollees.
    (2) Nonresidential project. A designated area from which daily work 
activities are assigned and to/from which nonresidential enrollees 
commute daily.
    (m) In consultation with. Advance discussion shall occur on the 
matter under consideration.
    (n) Non-Federal public lands and waters. Any lands or waters within 
the territorial limits of a State owned either in fee simple by a State 
or political subdivision thereof or over which a State or political 
subdivision thereof has, as determined by the Secretaries, sufficient 
long-term jurisidiction so that improvements made as the result of a 
grant will accrue primarily to the benefit of the public as a whole. 
Federally owned public lands and waters administered by a State or 
political subdivision thereof under agreements with a Department or 
Agency of the Federal Government are eligible under such definition if 
the Secretaries determine that the State or political subdivision 
thereof is entitled or is likely to retain administrative responsibility 
for an extended period of time sufficient to justify treatment as non-
Federal public lands or waters.
    (o) Total youth population. Number of youth in a State ages 16 
through 23, consistent with the most current Bureau of Census estimate.

[[Page 476]]

    (p) Labor. U.S. Department of Labor.
    (q) Interior. U.S. Department of the Interior.
    (r) Forest Service. Agency within the U.S. Department of 
Agriculture.



Sec. 32.3  Program purpose and objectives.

    It is the purpose of the Young Adult Conservation Corps to provide 
employment and other benefits to youths of both sexes from all social, 
economic and racial classifications who would not otherwise be currently 
productively employed. The youths will be employed for a period of 
service during which they engage in useful conservation work which would 
otherwise be accomplished if adequate funding were made available.



Sec. 32.4  Program operation requirements.

    (a) The State agencies cooperating with Interior and Forest Service 
having natural resource management responsibilities should be involved 
in the planning and implementation of the program.
    (b) Grantees shall be responsible for the management of each Corps 
camp and project, final selection of enrollees, determination of 
enrollee work assignments, training, discipline and termination, and 
camp operations in accordance with this part and guidelines issued by 
Interior and Forest Service.
    (1) Grantees shall assure that YACC program activities will not 
result in the displacement of employed workers (including partial 
displacement such as reduction in the hours of non-overtime work or 
wages or employment benefits), or impair existing contracts for 
services, or result in the substitution of YACC funds for other funds in 
connection with work that would otherwise be performed, or substitute 
jobs assisted under YACC for existing Federally-assisted jobs, or result 
in the hiring of any youth when any other person is on layoff from the 
same or any substantially equivalent job.
    (2) Grantees shall assure that the activities in which the YACC 
enrollees are employed will result in an increase in employment 
opportunities over those opportunities which would otherwise be 
available.
    (3) In addition, Grantees shall see that YACC enrollees do not, at 
the same time, share common facilities or property with, or work with 
members of the Job Corps, under title IV of the Act, except in emergency 
situations as outlined in paragraph (l)(4)(i) of this section.
    (c) Enrollee eligibility: Membership in the Corps will be limited to 
youths between the ages of 16 to 23, inclusive who are unemployed at the 
time of application. Citizens, lawfully permanent residents of the 
United States, or lawfully admitted refugees, or parolees, may apply for 
enrollment. Applicants also must be capable of carrying out the work of 
the Corps for the estimated duration of their enrollment.
    (d) Candidate recruitment and referral: (1) Interested youth may 
apply to their local Employment Service/Job Service for enrollment. 
State Employment Security Agencies (SESA) and their local Employment 
Service/Job Service (ES/JS) offices shall take applications for YACC 
from all interested youth and shall refer all candidates who self-
certify that they meet eligibility requirements to Grantees for 
selection of those to be enrolled. Self-certification by applicants ages 
16 through 18 who have left school shall include an assurance that they 
did not leave school for the purpose of enrolling in the Corps. Such 
referrals shall include all interested youth, including veterans, from 
both sexes, and all social, economic and racial classifications. Labor 
shall recruit candidates for YACC through the SESA and their local ES/JS 
offices, prime sponsors qualified under section 102 of the act, sponsors 
of Native-American programs qualified under section 302 of the act, 
sponsors of migrant and seasonal farmworkers programs under section 303 
of the act, Interior and Agriculture and such other agencies and 
organizations as deemed appropriate by Labor. All candidates must be 
referred through the local ES/JS offices.
    (2) An equitable proportion of candidates shall be referred from 
each State, based on the State's total youth population. For YACC 
program purposes, total youth population is the

[[Page 477]]

number of youth, 16 through 23, as determined on the basis of the best 
available data. Youth of both sexes and of all social, economic, and 
racial classifications shall be referred equitably.
    (e) Enrollee selection: Grantees shall--(1) Notify ES offices when 
openings are available;
    (2) Select enrollees for the Corps only from those candidates 
referred by Labor and, in selection and assignment, shall provide, to 
the extent feasible, for equitable participation for youth of both sexes 
and of all social, economic, and racial classifications, and for 
equitable participation of youth from each State;
    (3) Notify selected applicants of the date, time and place to which 
they should report for work, and that enrollees must provide their own 
transportation to and from the project or camp;
    (4) Require that enrollees complete physical examinations prior to 
official enrollment (expenses, if any, for the physical examination will 
be borne by the prospective enrollee);
    (5) Require parental consent for those youth who have not reached 
the age of majority as defined by State law;
    (6) Require enrollees to provide their own clothing, with the 
exception of certain safety equipment which will be furnished;
    (7) Notify the referring ES/JS office as soon as possible but no 
later than 30 days after receipt of application, which applicants have 
been selected and have reported for employment and which have not been 
so selected.

Preference in enrollee selection shall be given to applicants in rural 
and urban areas having substantial unemployment rates equal to or in 
excess of 6.5 per centum as determined by the Department of Labor. 
Grantees shall comply with section 808 of the act, concerning 
antidiscrimination.
    (f) Enrollment duration: (1) Grantees shall assure that no 
individual is enrolled in the Corps for a total period of more than 12 
months. Such period may be completed in up to three separate enrollment 
periods so long as the youth meets the eligibility requirements at the 
time of each separate enrollment. An individual who attains age 24 while 
enrolled may remain in the program to complete the current period of 
enrollment.
    (2) No youth shall be enrolled if he or she desires such enrollment 
only for the normal periods between school terms.
    (g) Corpsmember activities. Grantees shall assure that work project 
activities on which YACC enrollees are employed are consistent with the 
Forest and Rangeland Renewable Resource Planning Act of 1974, as amended 
by the National Forest Management Act of 1976. Enrollees will be 
assigned to work projects which are designed to diminish the backlog of 
work in such fields as:
    (1) Tree nursery operations, planting, pruning, thinning and other 
silvicultural measures;
    (2) Wildlife habitat improvement and preservation;
    (3) Range management improvements;
    (4) Recreation development, rehabilitation and maintenance;
    (5) Fish habitat and culture measures;
    (6) Forest insect and disease prevention and control;
    (7) Road and trail maintenance and improvements;
    (8) General sanitation, cleanup, and maintenance and improvements;
    (9) Erosion control and flood damage;
    (10) Drought damage measures; and
    (11) Other natural disaster damage measures.
    (h) Project criteria. YACC projects will be operated on a 
residential and nonresidential basis. Each project location will be 
jointly approved by Interior and Forest Service through their Regional/
Area Offices. To the maximum extent practicable, projects shall:
    (1) Be labor-intensive;
    (2) Be projects for which work plans exist or can be readily 
developed;
    (3) Be able to be initiated promptly;
    (4) Be productive with positive impacts on both the Enrollee as well 
as the Corps from the standpoint of work performed and benefit to 
participating youth;
    (5) Provide work experience to participants in skill areas required 
for the projects;

[[Page 478]]

    (6) If a residential camp, to the maximum extent feasible, be 
located in areas where existing residential facilities are available. 
The use of existing but unoccupied or underutilized Federal, State, and 
local government facilities and equipment shall be maximized; such 
utilization is subject to the approval of the Federal agency, State or 
local government having administrative control thereof;
    (7) If a non-residential project, be located within acceptable 
normal commuting distance from the geographic center of areas of 
substantial unemployment as designated by Labor;
    (8) Be similar to activities of persons employed in seasonal and 
part-time work by Federal natural resource agencies.
    (i) Cooperation with agencies and institutions: (1) Grantees shall, 
to the extent feasible, arrange for local linkages with educational 
systems, CETA and other employment and training programs, employment 
service offices, local apprenticeship sponsors and information centers, 
and employers, in order to arrange for the provision of available 
services to enrollees, both during non-work hours while enrolled, and 
after termination from YACC. Grantees shall establish procedures to 
ensure that enrollees are made aware of established linkages and related 
information and opportunities.
    (2) Grantees shall notify appropriate local ES/JS offices regarding 
enrollee status, in advance of the end of the enrollment period or upon 
termination and shall, to the extent feasible, assist the enrollee in 
making contact with ES/JS or other organizations to enhance the 
possibilities for placement.
    (3) Labor shall work with the Department of Health, Education, and 
Welfare to make suitable arrangements whereby academic credit may be 
awarded by educational institutions and agencies for competencies 
derived from work experience obtained through the YACC program. Labor 
shall also encourage Grantees, through Interior and Forest Service, to 
make necessary arrangements with local education agencies so that 
academic credit for such work experience may be granted.
    (j) Enrollee wages and hours of work: (1) Grantees shall assure that 
enrollees in the State Grant Program are paid at the Federal minimum 
wage rate specified in section 6(a)(1) of the Fair Labor Standards Act 
of 1938, as amended. As an exception, Grantees shall provide for an 
additional cost-of-living adjustment for enrollees in the State of 
Alaska, not to exceed 25 percent of the Federal Wage Rate.
    (2) Wages in the Commonwealth of Puerto Rico, the Virgin Islands, 
American Samoa, and the Northern Marianas shall be consistent with 
provisions of Federal, State, or local laws, otherwise applicable. Wages 
in the Trust Territory of the Pacific Islands shall be consistent with 
local law, except on Eniwetok and Kwajalein Atoll where section 6(a)(1) 
of the Fair Labor Standards Act applies.
    (3) As an incentive, Grantees may authorize incremental increases, 
above the minimum wage, for a limited number of enrollees, to reflect 
additional responsibilities or competencies. For this purpose, two 
promotional categories may be established: (i) Enrollee Leader, and (ii) 
Enrollee Assistant Leader. No more than 15 percent of the enrollment of 
any individual camp or project shall be given such increases. For each 
enrollee thus compensated, the wage increase shall be 50 percent for the 
enrollee leader and 15 percent for the enrollee assistant leader, of the 
applicable basic hourly minimum wage.
    (4) Grantees shall reduce enrollee wages for each hour of unexcused 
absence.
    (5) Enrollees assigned to residential camps may be required to 
assume responsibility for housekeeping and maintenance duties. Such 
duties shall not be considered compensable, unless scheduled during the 
regular work day, in which case enrollees shall be paid at the same rate 
as for regular work assignments.
    (6) Enrollees may not be required to work more than 8 hours per day 
or 40 hours per week, except that Grantees may authorize overtime which 
shall not exceed 10 hours per week per enrollee, in which event they 
shall pay them at his or her regular rate.
    (7) Enrollees assigned to residential camps shall be charged for 
daily food and lodging as follows: 75 cents per

[[Page 479]]

meal furnished and 75 cents per day lodging. Grantees shall arrange for 
payment of such charges by payroll deduction.
    (8) Grantees shall establish a collection procedure for collecting 
payments made by program staff and visitors for meals, lodging, or other 
items requiring reimbursement. Amounts collected shall be treated as 
program income and shall be netted against total YACC program outlays by 
Grantees.
    (9) Income taxes shall be withheld from enrollee wages pursuant to 
the Federal Internal Revenue Code of 1954 (26 U.S.C. 1 et seq.), and 
such State income tax laws as are applicable. Grantees shall provide 
each enrollee with the forms required to effect income tax deductions 
and withholding exemptions and shall assure that appropriate wage and 
tax statements are provided to enrollees.
    (10) Interior and Forest Service shall assure that the payroll 
procedures for both the Federal and State programs are the same. State 
and local grantees shall utilize the payroll forms used by the Federal 
Government for payment of enrollees in accordance with the guidelines 
issued by Forest Service and Interior as appropriate.
    (11) Grantees may utilize the payroll services of the Administrative 
Service Center (ASC), Bureau of Reclamation, P.O. Box 11568, Salt Lake 
City, Utah 84147 for enrollee pay at no direct cost to the Grantee. 
Grantees may elect to payroll the enrollees through their own payroll 
system if the payroll system is consistent with regulations contained 
herein. Those Grantees electing to payroll enrollees through ASC will be 
furnished appropriate forms and instructions.
    (k) Enrollee leave: (1) Grantees shall provide enrollees with paid 
annual leave at a rate of 4 hours for every full pay period which shall 
consist of 2 normal work weeks. Accrual shall commence at the beginning 
of the first full pay period after the day of official enrollment, and 
shall end on the date of official termination. Such leave may be accrued 
up to a maximum of 13 days for 52 weeks of uninterrupted enrollment: 
Enrollees may use accrued leave at any time, subject to approval by the 
Grantee, but shall use all accrued leave prior to each formal 
termination. Accrued leave may be used for such purposes as personal 
business and sick time. The date of formal termination shall be the 
final date upon which the youth is eligible to receive pay, whether this 
is a work day or an accrued but unused leave day. Compensation shall not 
be paid for unused accrued leave.
    (2) Grantees may grant administrative leave with pay for enrollee 
participation in job search and employment development activities. Such 
leave with pay is to be counted as time in employment.
    (3) Emergency or administrative leave, without pay may be granted at 
the discretion of the Grantee. Such leave without pay shall not be 
counted as time in employment.
    (4) Grantees shall pay enrollees for all regular State holidays, if 
they are in a pay status for 8 hours on the workdays immediately 
preceding and following the holiday. Approved leave with pay shall count 
as time in employment for approved paid holidays. Such holidays shall 
not count as annual leave.
    (l) Federal status of enrollees: Except as otherwise specifically 
provided in this subpart, YACC enrollees in the State Grant Program 
shall not be deemed Federal employees, and shall not be subject to the 
provisions of law relating to Federal employment including those 
regarding hours of work, rates of compensation, leave, unemployment 
compensation, and Federal employee benefits. Enrollees in the State 
Grant Program shall be considered Federal employees for the following 
purposes:
    (1) For purposes of section 5911 of title 5 of the U.S. Code, 
relating to allowances for living quarters, enrollees whose housing is 
provided by the Federal Government shall be deemed civil employees of 
the United States within the meaning of the term ``employee'' as defined 
in that section, and provisions of that section shall apply.
    (2) For purposes of the Internal Revenue code of 1954 (26 U.S.C. 1 
et seq.) and title II of the Social Security Act (42 U.S.C. 401 et 
seq.), enrollees shall be deemed employees of the United States, and any 
service performed by a person as an enrollee shall be deemed

[[Page 480]]

to be performed in the employ of the United States.
    (3) For purposes of chapter 171 of title 28 of the U.S. Code, 
relating to tort claims procedures, enrollees in the State Grant Program 
shall be deemed employees of the United States within the meaning of the 
term ``employee of the Government'' as defined in section 2671 of title 
28 U.S. Code, and provisions of that chapter shall apply.
    (i) In the event an enrollee is alleged to be involved in the 
damage, loss or destruction of the property of others or of causing 
personal injury to or the death of other individual(s) while in the 
performance of duty, claims may be filed by the owner(s) of the 
property, the injured person(s) or by a duly authorized agent or legal 
representative of the claimant to the Grantee who shall collect all of 
the facts and submit the claim to the Regional/Area Offices, Interior 
and Forest Service for appropriate action.
    (ii) Tort claims shall be made on Standard Form 95, Claim for Damage 
or Injury form or a similar document, supported by necessary 
justification.
    (4) For purposes of subchapter 1 of chapter 81 of title 5 of the 
U.S. Code, relating to compensation to Federal employees for work 
injuries, enrollees in the State Grant Program shall be deemed employees 
of the United States within the meaning of the term ``employee'' as 
defined in section 8101 of title 5 U.S. Code and provisions of that 
subchapter shall apply, except that the term ``performance of duty'' 
shall not include any act of an enrollee while absent without 
authorization from the enrollee's assigned post of duty, but shall 
include time spent participating in an activity (including an activity 
while on pass or during travel to or from such post of duty) authorized 
by or under the direction of YACC program staff.
    (i) Residential enrollees are generally considered under Federal 
Employees' Compensation Act to be Federal employees from the time each 
begins Government authorized travel to the assigned YACC camp, to the 
time each completes Government authorized travel after termination from 
the program. Residential enrollees shall be generally considered in 
``performance of duty'' at all times during any and all of their 
activities, 24 hours a day, 7 days a week, except when they are absent 
without authorization from their assigned post of duty. Whether a 
residential enrollee is in ``performance of duty'' shall be determined 
by the Office of Workers' Compensation Programs (OWCP).
    (ii) Nonresidential enrollees, after official enrollment are 
generally considered, under Federal Employees Compensation Act (FECA), 
to be in ``performance of duty'' as Federal employees from the time they 
arrive daily at the designated area from which activities are assigned, 
until they leave such designated area or activity. Nonresidential 
enrollees are generally not covered by FECA while commuting between a 
designated area/authorized activity and their residence. Whether a 
nonresidential enrollee is in ``performance of duty'' shall be 
determined by OWCP.
    (iii) Whenever an enrollee is injured, develops an occupation 
related illness, or dies while in the performance of duty, the Grantee 
shall immediately comply with the procedures set out in the Employment 
Standards Administration regulations of 20 CFR chapter 1. The Grantee 
shall also see that a thorough investigation of the circumstances, and a 
medical evaluation are made, and shall see that required forms are 
submitted to the Regional/Area Offices, Interior and Forest Service, for 
appropriate action.
    (iv) If an enrollee dies, the Grantee, in addition to making proper 
notifications, in accordance with procedures established by Interior and 
Forest Service shall:
    (A) Notify the appropriate district office of Workers' Compensation 
Programs (OWCP) through the Regional/Area Office, Interior and Forest 
Service of the death and the circumstances surrounding it, and file 
appropriate forms with that office.
    (B) Be responsible for assuring that the next of kin is informed of 
benefits which may be available from Federal Employees' Compensation;
    (C) Consult the decedent's family as to the final disposition of the 
remains before any final action is taken in this regard; and

[[Page 481]]

    (D) If the next of kin refuses to accept the remains, arrange for 
burial at a site close to the camp/project and at a cost not to exceed 
the amount authorized in section 8134(a) of the Federal Employees' 
Compensation Act (FECA).
    (v) Safety and health: (A) Grantees shall assure that enrollees are 
not required or permitted to work or receive services in buildings or 
surroundings or under condition which are unsanitary, hazardous, or lack 
proper ventilation. Such work or services shall be conducted or provided 
in accordance with the standards set forth in the regulations under the 
Occupational Safety and Health Act of 29 CFR parts 1910, 1926, and 1960 
subpart B.
    (B) Grantees shall conduct safety and health inspections of every 
residential camp and work project area connected therewith, at least 
annually, consistent with the requirements of 29 CFR 1960.26(d).
    (C) Grantees shall issue such items of protective and safety 
clothing and equipment to enrollees as are necessary and appropriate to 
insure a maximum of safety in field and construction activities, 
including, at a minimum, hard hats, gloves, and boots. Grantees shall 
also see that proper use of such clothing and equipment is taught to 
enrollees and enforced. Enrollees are expected to provide all other 
clothing.
    (D) Grantees shall provide complete safety orientation to enrollees 
in all work situations to alert them to any hazards to which they may be 
exposed.
    (vi) Residential living conditions: (A) Grantees shall provide for 
residential support facilities and services which ensure healthful and 
secure living conditions, 7 days a week, 24 hours a day.
    (B) Grantees shall assure that all residential facilities are well 
maintained and shall comply with applicable Federal, State and local 
safety, health, and housing codes for multipurpose group residences. 
Adequate supervision and assistance are to be provided for the safety 
and welfare of the enrollees.
    (vii) Enrollee services: Grantees shall provide enrollees with such 
transportation related to camp and/or project operations, lodging, 
subsistence, medical treatment and other services, supplies, equipment 
and faciliies as may be needed consistent with this part.
    (viii) Enrollee complaints: Grantees shall establish procedures for 
resolving enrollee complaints and issues which arise between the grantee 
and any enrollee regarding adverse action, civil rights, equal 
employment opportunity, enrollment, or upgrading from the time at which 
their referrals are received from ES/JS to the time of formal 
termination. Such procedure shall:
    (1) Provide the enrollee with the opportunity for an informal 
conference,
    (2) Provide prior notice of intended adverse action against the 
enrollee setting forth the grounds and permitting response,
    (3) Provide an opportunity for a formal hearing, and if the enrollee 
is not satisfied, with an opportunity for an appeal and
    (4) Provide an offer of assistance in preparation for hearings and 
appeals.
    (ix) Emergency disaster work: (A) Grantees may utilize enrollees 
aged 18 years and over to perform work in emergency disaster situations. 
Enrollees may volunteer but may not be required to participate while 
natural disasters are occurring; enrollees may, however, be required to 
perform work on damage which has been caused by such disasters. The use 
of YACC enrollees in such activities must provide for qualified 
supervision and training for the enrollee. All such activity shall be 
conducted in accordance with regular Grantee policy: and procedures 
shall meet health, safety and work standards established by Labor in 29 
CFR parts 97B, 22, 23, 24, and 25.
    (B) Such enrollees shall be used only to supplement compensated 
firefighters, and shall be paid at the rates set by the Grantee as 
established in pay plans for emergency firefighters, in accordance with 
established policies, procedures and practices.
    (C) No YACC enrollee is required to work for a greater number of 
hours per day than other firefighters.
    (D) Cost incurred in using YACC enrollees in emergency disaster 
situations shall be borne by the funds of the benefitting organizations 
whenever possible; however, YACC funds may be used to provide such 
assistance subject to the approval of the Secretaries.

[[Page 482]]

    (E) Grantees shall see that the work activity of enrollees under age 
18 is in compliance with Hazardous Occupation Orders issued pursuant to 
the Fair Labor Standards Act (29 CFR 570.50 et seq.).
    (F) All YACC work and services are to be conducted consistent with 
the requirement of the Occupational Health & Safety Act (29 CFR parts 
1910, 1926, and 1960 subpart B).
    (x) Prohibited activities: Grantees shall not permit YACC enrollees 
to participate in emergency relief in connection with labor stoppages, 
strikes, riots, or civil disturbances. Enrollees shall not participate 
in activities on private property except as incidental to emergency work 
provided for in paragraph (i) of this section.
    (xi) Transportation: Grantees shall assign selected enrollees to the 
residential camps nearest to their home as practicable; and to 
nonresidential projects within normal commuting distance from their 
homes. Daily transportation to and from home and work site for 
nonresidential enrollees may not be provided, except from established 
staging areas to work site and return to staging area. YACC will not pay 
the initial transportation from home to residential camp; however, 
residential YACC enrollees may be advanced a portion of their wages for 
the purpose of traveling to the camp upon a determination by the grantee 
that the youth is in need thereof. Grantees shall arrange for repayment 
of such advances by payroll deduction.
    (xii) Project identification: Buildings, campgrounds and other 
permanent projects shall be marked with appropriate signs identifying 
each project as built by or under construction by the YACC.
    (xiii) Post termination assistance: Grantees shall notify 
appropriate local ES/JS offices regarding enrollee status, in advance of 
the end of the enrollment period or upon termination, and shall, to the 
extent feasible, assist the enrollee in making contact with ES/JS or 
other organizations to enhance the possibilities for placement.



Sec. 32.5  Administrative requirements.

    (a) The Governor in each State shall designate the State agency 
having program administration responsibility as the recipient YACC 
grantee. The non-Federal component of YACC in each State will be carried 
out by the designated agency. Other State agencies, lower tier 
governmental organizations, units of local government, any public agency 
or organization or any private nonprofit agency or organization which 
has been in operation at least 2 years, may apply to the designated 
State agency for a YACC sub-grant or contract.
    (b) At least 25 percent of the enrollees in each State YACC program 
must be residential by September 30, 1978. However, the Secretaries may 
waive this residential requirement where State funding allocations 
provide for minimum enrollment numbers. Cost per enrollee limitations 
imposed on Interior and Forest Service in the total program will also be 
applicable to Grantee programs; limitation information will be furnished 
through planning advice to Grantees.
    (c) All grantee camp/project site selections/locations shall be 
approved by Interior and Forest Service through their Regional/Area 
Offices.
    (d) Federal Management Circular (FMC) 74-4 and Office of Management 
and Budget Circular (OMB) A-102 (formerly FMC 74-7) are applicable to 
all grants, agreements, and contracts entered into under this part. 
Copies of these documents can be obtained through any of the several 
regional offices of the Secretaries.
    (e) Grantees shall establish procedures to insure that operational 
directives, guidelines, controls, and records, including appropriate and 
sufficient enrollee records, are established, promulgated, and 
maintained, in accordance with established policies and procedures 
contained herein and consistent with the requirements in Attachment C to 
OMB Circular A-102.
    (f) ``Request for advance or reimbursement'' as outlined in 
Attachment H to OMB Circular A-102 will be used to obtain advance 
funding or for reimbursement. Advances are limited to 30-day needs and 
may not be made before approval of the grant application.
    (g) Except where specifically excluded in Circulars 74-4 and A-102, 
grantees shall impose the requirements

[[Page 483]]

of this part on all State and local government subgrantees and 
contractors. Grantees are responsible for administering their subgrants 
and contracts under these guidelines, and shall make a periodic review 
of all non-Federal YACC projects under its administrative control during 
each operating year.



Sec. 32.6  Request for grant.

    (a) All States will be given an opportunity to participate in the 
program. Thirty percent of each appropriation will be allocated among 
the States on the basis of total youth population as defined in 
Sec. 32.2(o) of this part.
    (b) States may apply for grants under the program in accordance with 
Attachment M of OMB Circular A-102. Forms and instructions may be 
obtained from either Forest Service or Interior Regional/Area locations 
throughout the country.
    (c) The Grantee shall submit a consolidated application for all YACC 
projects included in its program.
    (d) Allocated grant funds not needed by a State may be reallocated 
to another State at the discretion of the Secretaries. The Secretaries 
may choose to reallocate such funds to any one or several of the 
applicants in order to maximize employment. Section 32.9 of this part 
shall also apply to fund reallocation.
    (e) The Secretaries have designated officials at their respective 
Regional/Area Offices to receive and approve State applications for YACC 
grants. These officials must jointly act on all applications and will 
furnish technical assistance and advice concerning all YACC program 
matters. The names and addresses of these designated Federal officials 
will be furnished to each State.
    (f) The initial YACC State Grant Program year shall be from April 1, 
1978, to March 31, 1979. Program years beginning in FY 79 will be 
consistent with the Federal fiscal year (October 1 to September 30).



Sec. 32.7  Application format, instructions, and guidelines.

    Grant Applications will be made using the Office of Management and 
Budget approved form entitled ``Application for Federal Assistance'' 
(short form)--Attachment M. Exhibit M-5 of OMB Circular A-102, Uniform 
Administrative Requirements for Grants-in-Aid to States and Local 
Governments. The application form consists of 4 parts. The application 
shall be prepared in accordance with Attachment M and the following 
supplemental criteria:
    (a) Part III--Program Narrative Statement. Complete a consolidated 
description of all Grant projects summarizing all Grantee, Sub-grantees, 
and Contractor projects.
    Complete a separate profile for each project location and each 
residential or non-residential project which will include the following 
information:

    Name of Grantee, Sub-grantee or Contractor for each project.
    Type project--Residential or Nonresidential.
    The name of the Project Manager/Camp Director.
    The project number--Number projects consecutively.
    The name and address for the project.
    The project location--Show county, nearest city or town, and State.
    The land ownership class(es) benefiting from the program--State, 
county, municipal or other non-Federal public (identify).
    The number of enrollees at full project capacity.
    The planned start-up date.
    The type of work enrollees will engage in--State the primary mission 
of the project, brief explanation of units of expected accomplishments 
and any hazards that might be encountered.
    The staff--Show official position titles, the tour of duty days and 
hours, and a brief description of the duties and/or responsibilities for 
all project staff.
    Health and safety--A statement as to the project's conformance to 
health and safety policies and procedures which are consistent with the 
standards set forth in the Secretaries' Regulations.

    (b) Priority should be given to project proposals according to the 
following general work categories.
    (1) Conservation projects which protect or expand the availability 
of natural resources and/or enhance the care and use thereof.
    (2) Projects designed for general sanitation, clean-up maintenance 
and/or improvements.

[[Page 484]]



Sec. 32.8  Program reporting requirements.

    Grantees shall submit the following reports to the Secretaries 
quarterly within 15 days after the end of December, March, June, and 
September. In addition, a final report is required within 60 days from 
the end of each grant period. Forms for completing the reports will be 
supplied to the grantee at time of grant award. The required reports 
are:
    (a) Quarterly Financial and Program Progress Reports: (1) Financial 
Status. Grantees shall submit a quarterly accrual basis ``Financial 
Status Report'' and a final report.
    (2) Enrollee Characteristics and Program Progress. Based on the 
payroll data system, Administrative Service Center (ASC) provides a 
quarterly summary of enrollee characteristics and program progress to 
Forest Service, Departments of the Interior, and Labor within 15 days of 
the end of the quarter. For States not using the ASC, the same data is 
required to be submitted to the ASC. All States shall submit the 
required final report.
    (b) ``YACC Work Accomplishment'' (YACC Form 5): The purpose of this 
form is to provide program data such as enrollee man-years worked and 
quantity of work accomplished as expressed in normal units of measure. 
Instructions regarding this report will accompany the form.
    (c) The reporting requirements contained herein have been approved 
by the Office of Management and Budget in accordance with the Federal 
Reports Act of 1942.



Sec. 32.9  Consideration and criteria for awarding grants.

    (a) The decision by the Secretaries' designated officials for award 
of YACC grants will consider the following:
    (1) Amount of grant funds appropriated and available.
    (2) The total youth population ages 16 to 23, inclusive, in each 
State in relation to the total for all States.
    (3) The ability of State agencies to operate at the funding level 
provided in any given Federal fiscal year.
    (4) The quality of each proposed project in terms of meeting program 
objectives as reflected in each application. After the initial grant 
year, actual performance of the Grantee in administering the YACC 
program in prior years will be considered.
    (5) The cost to the Federal Government of the State program in 
relation to the quality and quantity of projects proposed.
    (6) The following imposed limitations: (i) National average cost per 
enrollee, (ii) Percent in residential program.
    (7) The capability and past performance by Grantees in meeting their 
responsibilities as required by FMC 74-4 and OMB Circular A-102.
    (8) Project Location Approval. Each project location will be 
approved by Forest Service and Interior through their Regional/Area 
Offices.
    (b) The demonstrated capability of the Grantee to establish and 
implement an effective mechanism to assure equal employment opportunity 
in staff hiring by the Grantee or any subgrantees will be considered 
prior to award. If the Grantee's performance is found to be so 
unsatisfactory or inadequate as to warrant denial, suspension, 
modification or termination, then appropriate action will be taken in 
accordance with the regulations implementing title VI of the Civil 
Rights Act of 1964, 42 U.S.C. 2000d.



PART 33--ALLOCATION OF DUTY-FREE WATCHES FROM THE VIRGIN ISLANDS, GUAM, AND AMERICAN SAMOA [NOTE]--Table of Contents




    Note: Public Law 89-805 (19 U.S.C. 1202) authorizes the Secretary of 
the Interior and the Secretary of Commerce to issue joint regulations 
governing the allocation of duty-free quotas for watches and watch 
movements assembled in the Virgin Islands, Guam, and American Samoa. For 
the text of these joint regulations, see 15 CFR part 303, published at 
42 FR 62907, Dec. 14, 1977, and revised at 49 FR 17740, Apr. 25, 1984.



PART 34--REQUIREMENTS FOR EQUAL OPPORTUNITY DURING CONSTRUCTION AND OPERATION OF THE ALASKA NATURAL GAS TRANSPORTATION SYSTEM--Table of Contents




Sec.
34.1  Statement of purpose.

[[Page 485]]

34.2  Applicability.
34.3  Definitions.
34.4  Discrimination prohibited.
34.5  Assurances.
34.6  Equal opportunity clause.
34.7  Incorporation by operation of law.
34.8  Affirmative action plans.
34.9  Compliance reporting.
34.10  Compliance reviews.
34.11  Enforcement sanctions.

    Authority: Sec. 17, Pub. L. 94-586, 15 U.S.C. 719 (1976).

    Source: 45 FR 31104, May 12, 1980, unless otherwise noted.



Sec. 34.1  Statement of purpose.

    The purpose of these regulations is to implement both section 17 of 
the ANGTA and Condition 11 of the President's Decision.



Sec. 34.2  Applicability.

    These regulations apply to all activities including, but not limited 
to, contracting for goods and services, employment, and any other 
benefits that flow from activities conducted under permits, rights-of-
way, public land orders, and other Federal authorizations granted or 
issued pursuant to ANGTA, by recipients of those authorizations, their 
agents, contractors, and subcontractors, including labor unions or other 
persons.



Sec. 34.3  Definitions.

    (a) As used in this part, the term, ANGTA means the Alaska Natural 
Gas Transportation Act of 1976, Public Law 94-586, 15 U.S.C. 719.
    (b) ANGTS means the Alaska Natural Gas Transportation System as 
designated and described in the President's Decision and Report to 
Congress on the Alaska Natural Gas Transportation System, September 
1977, pursuant to section 7(a) of ANGTA, S.J. Res. 82, 91 Stat. 1268 
(1977).
    (c) The term affirmative action plan means a statement of those 
actions appropriate to overcome the effects of past or present 
practices, policies, or other barriers to equal opportunity in 
employment, procurement, and the provision of services, financial aid or 
other benefits, and includes goals for achieving equal opportunity and a 
description of specific result-oriented procedures to which the 
recipient, contractor or subcontractor commits itself to apply a good 
faith effort in order to achieve the goals.
    (d) The term applicant means a person who has applied for and is 
seeking Federal authorization under ANGTA to construct and operate the 
ANGTS, but has not received or been denied the authorization sought.
    (e) The term contract means any agreement or arrangement (in which 
the parties do not stand in the relationship of employer and employee) 
between a recipient or an applicant and any person for the furnishing of 
supplies or services to a recipient or applicant, or for the use of real 
or personal property including lease arrangements by a recipient or 
applicant. The term contract also includes any agreement or arrangement, 
whether oral or written, express or implied, between two persons and 
which is related in any way to the activities conducted under any 
certificate, permit, right-of-way, lease or other Federal authorization 
granted or issued pursuant to ANGTA, or in any way connected with ANGTS.
    (f) The term contractor means a person who is a party to a contract 
with a recipient or an applicant.
    (g) The term discrimination means an action or a failure to act 
which has the effect or would tend to have the effect of excluding a 
person from participation, denying a person benefits, subjecting a 
person to unequal treatment, or harassing a person because of and on the 
basis of race, creed, color, national origin or sex.
    (h) The term Federal Inspector means the official appointed by the 
President pursuant to section 7(a)(5) of ANGTA to coordinate 
governmental actions with respect to ANGTS, including the monitoring and 
enforcement of the terms and conditions attached to government 
authorizations issued under ANGTA. The term also includes authorized 
representatives of the Federal Inspector.
    (i) The term female business enterprise (FBE) means a sole 
proprietorship, partnership, unincorporated association, joint venture 
or corporation that is owned and controlled by women. To qualify as an 
enterprise owned and controlled by women, 51% of the beneficial 
ownership interests and 51% of the voting interests must be held and 
actually

[[Page 486]]

voted by women. Further, the enterprise must in fact be controlled and 
managed by women.
    (j) The terms minority and minority groups include:
    (1) Black, all persons having origins in any of the Black African 
racial groups not of Hispanic origin;
    (2) Hispanic, all persons of Mexican, Puerto Rican, Cuban, Central 
or South American or other Spanish culture or origin regardless of race;
    (3) Asian and Pacific Islander, all persons having origins in any of 
the Far East, Southeast Asia, the Indian Subcontinent, or the Pacific 
Islands including persons having origin, for example, in China, India, 
Japan, Korea, the Philippine Islands, Samoa; and
    (4) American Indian or Alaskan Native, all persons having origins in 
any of the original people of North America and maintaining identifiable 
tribal affiliations through membership and participation or community 
identification.
    (k) The term minority business enterprise (MBE) means a sole 
proprietorship, partnership, unincorporated association, joint venture 
or corporation that is owned and controlled by minorities. To qualify as 
an enterprise owned and controlled by minorities, 51% of the beneficial 
ownership interest and 51% of the voting interests must be held and 
actually voted by minority people. Further, the enterprise must in fact 
be controlled and managed by minority people.
    (l) The term person includes recipients, contractors, 
subcontractors, governmental agencies, corporations, associations, 
firms, partnerships, joint stock companies, labor unions, employment 
agencies, and individuals.
    (m) The term President's Decision means the President's Decison and 
Report to Congress on the Alaska Natural Gas Transportation System, 
September 1977, pursuant to section 7(a) of ANGTA, approved and adopted 
S.J. Res. 82, 91 Stat. 1268 (1977).
    (n) The term procurement means the acquisition (and directly related 
matters) of personal property and nonpersonal services (including 
construction) by such means as purchasing, renting, leasing, (including 
real property) contracting, or bartering, but not by condemnation or 
donation.
    (o) The term procurement practice means any course of conduct or 
activity taken to effect procurement.
    (p) The term recipient means any corporation association, joint 
stock company, partnership, firm, agency or individual who receives a 
certificate, permit, right-of-way, lease, or other Federal authorization 
granted or issued under ANGTA to construct and operate the ANGTS, 
whether directly or through another recipient including any successor, 
assignee or transferee thereof.
    (q) The term subcontract means any agreement or arrangement between 
a contractor and any person, regardless of tier, (in which the parties 
do not stand in the relationship of employer and employee) in any way 
related to the performance of any one or more contracts as defined 
above.
    (r) The term vendor means a person who sells or provides goods or 
services for the construction and operation of ANGTS. A vendor may be a 
contractor or subcontractor.



Sec. 34.4  Discrimination prohibited.

    (a) General. No person shall, on the grounds of race, creed, color, 
national origin, or sex, be discriminated against or excluded from 
receiving any benefit from or participating in any activity conducted 
under any certificates, permits, rights-of-way, leases, and other 
Federal authorizations to which this part applies.
    (b) Specific actions in which discrimination is prohibited. No 
person shall directly or through contractural or other arrangements, 
discriminate in any activity to which this part applies, including the 
following:
    (1)(i) Employment policies and practices of employers, including 
advertising, hiring or firing, up-grading, promotion, or demotion, 
transfer, layoff, or termination, rates of pay, and other forms of 
compensation or benefits, or other terms and conditions of employment;
    (ii) Employment policies and practices of labor unions, including, 
acceptance of applications for membership,

[[Page 487]]

enrolling or expelling members, classification of members, referrals for 
employment, training and apprenticeship programs, and the provision of 
other benefits of membership;
    (iii) Employment policies and practices of employment agencies 
including acceptance of applications for employment services, referrals 
for employment, classification of individuals for employment, and the 
provision of other benefits and services.
    (2) Procurement practices, including manner of procurement, 
qualification for contracting or placement on procurement source lists, 
the composition of sources solicited, the use of pre-bid conferences, 
solicitation for proposals or bids, the designation of quantities, 
delivery schedules or other specifications, selection procedures, or 
performance standards.
    (3) The provision of services, financial aid and other benefits 
provided in whole or in part, under any Federal authorization to which 
this part applies, more specifically including actions that result in 
the:
    (i) Denial to an individual or establishment of any service, 
financial aid, or other benefits;
    (ii) Provision of any service, financial aid, or other benefit to an 
individual, or establishment which is different, or is provided in a 
different manner, from that provided to others;
    (iii) Subjection of an individual to segregation or separate 
treatment in any matter related to the receipt of any service, financial 
aid, or other benefits;
    (iv) Restriction of an individual in any way in the enjoyment of any 
advantage or privilege enjoyed by others receiving any service, 
financial aid, or other benefit;
    (v) Treatment of an individual that is different from others in the 
determination of any admission, enrollment, eligibility, membership 
requirements or other conditions which individuals must meet in order to 
be provided any service, financial aid, or other benefit;
    (vi) Denial to an individual of an opportunity to participate in any 
activity that is different from that afforded others;
    (vii) Denial to an individual of the opportunity to participate as a 
member of any planning or advisory body that participates in the 
provision of any service, financial aid, or other benefit;
    (viii) Use of criteria or methods of administration which have the 
effect of subjecting individuals or establishments to discrimination in 
the determination of the types of services, financial aid, or other 
benefits, or the facilities that will be provided; or the class of 
individuals or establishments to which, or the situation in which, such 
services, financial aids, other benefits, or facilities will be 
provided; or the class of individuals or establishments to be provided 
an opportunity to participate in any activity; and
    (ix) Selection of a site or location for facilities for the 
provision of services, financial aid, or other benefits, with the 
purpose or effect of substantially impairing the objectives of section 
17, the President's Decision, and implementing rules, regulations, and 
orders.
    (c) Scope of prohibited discrimination. (1) The enumeration of 
specific forms of prohibited discrimination in paragraph (b) of this 
section does not limit the general prohibition in paragraph (b) of this 
section.
    (2) Action taken in compliance with an affirmative action plan 
developed pursuant to these regulations shall not be deemed a violation 
of this section.



Sec. 34.5  Assurances.

    Every application for a certificate, permit, right-of-way, lease, 
public land order, or other Federal authorization to which this part 
applies, filed after the effective date of these regulations, and every 
contract covered hereunder to provide goods, services, or facilities in 
the amount of $10,000 or more to a recipient, contractor, or 
subcontractor to which this Part applies, must contain an assurance that 
the recipient, contractor, or subcontractor does not and will not 
maintain any segregated facilities, and that all requirements imposed by 
or pursuant to section 17, Condition 11 of the President's Decision and 
implementing rules, regulations, and orders shall be met, and that it 
will require a similar assurance in every subcontract of $10,000 or 
more.

[[Page 488]]



Sec. 34.6  Equal opportunity clause.

    Each certificate, permit, right-of-way, lease, or other Federal 
authorization to which this part applies, shall include the following 
Equal Opportunity Clause:
    (a) The recipient, contractor, or subcontractor hereby agrees that 
it will not discriminate directly or indirectly against any individual 
or establishment in offering or providing procurements, employment, 
services, financial aid, other benefits, or other activities to which 
these regulations apply. The recipient, contractor, or subcontractor 
will take affirmative action to utilize business enterprises owned and 
controlled by minorities and/or women in its procurement practices; to 
assure that applicants for employment are employed, and that employees 
are treated during employment, without discrimination on the basis of 
race, creed, color, national origin, or sex; and to assure that 
individuals and establishments are offered and provided services, 
financial aid, and other benefits without discrimination on the basis of 
race, creed, color, national origin, or sex. The recipient, contractor, 
or subcontractor agrees to post in conspicuous places available to 
contractors, subcontractors, employees, and other interested 
individuals, notices which set forth these equal opportunity terms; and 
to notify interested individuals, such as bidders, contractors, 
purchasers, and labor unions or representatives of workers with whom it 
has collective bargaining agreements, of its obligations under section 
17, Condition 11 of the President's Decision, and the implementing 
rules, regulations, and orders thereunder;
    (b) The recipient, contractor, or subcontractor will comply with all 
rules, regulations, and orders which implement section 17 and Condition 
11 of the President's Decision;
    (c) The recipient, contractor, or subcontractor will furnish all 
information and reports required by or pursuant to rules, regulations, 
and orders implementing section 17 and Condition 11 of the President's 
Decision, and will permit access to its facilities, books, records, and 
accounts by the Federal Inspector for purposes of ascertaining 
compliance with such rules, regulations, and orders;
    (d) In the event of a recipient's, contractor's, or subcontractor's 
noncompliance with these equal opportunity terms, compliance may be 
effected through procedures authorized by ANGTA and set forth in 
implementing rules, regulations, and orders, or by any other means 
authorized by law;
    (e) The recipient, contractor, or subcontractor will include the 
provisions of paragraphs (a) to (e) of this section in all agreements to 
assign authorizations, all contracts over $10,000, and all contracts of 
indefinite quantity, unless there is reason to believe that the amount 
to be ordered in any year under the contract will not exceed $10,000. 
The recipient, contractor, or subcontractor will take such action with 
respect to any contract or purchase order that the Federal Inspector may 
direct as a means of enforcing such provisions, including sanctions for 
noncompliance: Provided, however, That in the event the recipient, 
contractor, or subcontractor becomes involved in or is threatened with 
litigation with a subcontractor or vendor, the contractor may request 
the United States to enter into such litigation to protect the interests 
of the United States.
    (f) Any project labor agreement which may be entered into between 
the applicants and any union must be consistent with the provisions of 
these regulations and must contain an Equal Opportunity Clause.



Sec. 34.7  Incorporation by operation of law.

    (a) The Equal Opportunity Clause shall be deemed incorporated into 
every Federal authorization, agreement to assign an authorization, 
contract and subcontract where Sec. 34.6(e) of these regulations 
requires the inclusion of such a clause whether or not the clause is 
physically incorporated in such Federal authorization, agreement to 
assign authorization, contract or subcontract, and whether or not the 
agreement or contract is written.
    (b) The affirmative action plans prepared pursuant to this part 
shall be deemed incorporated into the Federal

[[Page 489]]

authorizations, contracts, and subcontracts to which these regulations 
apply.



Sec. 34.8  Affirmative action plans.

    (a)(1) Within one hundred and twenty (120) days after the effective 
date of this part, applicants or recipients shall have an acceptable 
affirmative action plan which has been approved by the Federal Inspector 
pursuant to paragraph (d) of this section and which conforms to the 
requirements of paragraph (c) of this section. The affirmative action 
plan must set forth overall goals and timetables for the employment of 
minorities and women and the utilization of MBE's and FBE's in the 
construction and operation of the applicant's or recipient's segment of 
the Alaska Natural Gas Transportation System. The approved goals and 
timetables shall be published in accordance with paragraph (d)(4) of 
this section and included in contract bid specifications in accordance 
with paragraph (b)(1) of this section.
    (2) Each contractor and subcontractor with fifty (50) or more 
employees and with a contract of $1,000,000 or more that is in effect on 
the effective date of this part shall, within one hundred and fifty 
(150) days after the effective date of this part, submit an affirmative 
action plan to the Federal Inspector for approval pursuant to paragraph 
(d) of this section. All contractors and subcontractors, with fifty (50) 
or more employees, which are awarded contracts for $1,000,000 or more 
after the effective date of this part shall submit an affirmative action 
plan to the Federal Inspector pursuant to paragraph (d) of this section 
at the time the contract is awarded or 150 days after the effective date 
of this part, whichever is later.
    (b)(1) In addition, recipients and each of their contractors and 
subcontractors shall require, as one of the specifications for all bids 
for contracts in the amount of $50,000 or more, that all bidders which 
have, or would have if awarded the contract, a workforce of 50 or more 
employees, must develop a written affirmative action plan consistent 
with paragraphs (c) (1) and (2) of this section prior to bidding, unless 
an exemption under paragraph (d)(5) of this section has been obtained by 
the bidder. Such a plan must apply to each of the bidder's facilities 
which are associated with any activities conducted pursuant to Federal 
authorizations to which this part applies. A summary of such plan should 
be included with the bid submitted to the contractor or subcontractor. 
The ability of the bidder to comply with these regulations shall be a 
factor considered in evaluating the bid. The plan must be included in 
the contract which is executed between the contractor or subcontractor 
and the bidder subject to whatever revision may be required by the 
Federal Inspector.
    (2) The requirements of paragraph (b)(1) of this section also apply 
to any bidder which has previously been awarded a contract or contracts 
where the total amount of such contract or contracts taken together with 
the amount of the contract upon which the bid is to be made total 
$50,000 or more and the bidder has a workforce of 50 or more employees.
    (3) All bidders for contracts of $150,000 or more must develop a 
written affirmative action plan under paragraph (c)(3) of this section 
regarding procurement and contracting practices. All such plans 
developed under paragraph (c)(3) of this section must be submitted to 
the Federal Inspector for approval at the time the contract is awarded.
    (c) An acceptable affirmative action plan must include an analysis 
of all areas of operation of the recipient, contractor, or subcontractor 
in which it could be deficient in offering services, opportunities, or 
benefits to minority groups and women, all areas of employment in which 
it could be deficient in the utilization of minority groups and women, 
and all areas of procurement in which it could be deficient in the 
utilization of MBE's and FBE's; and, further, the plan must include 
specific goals and specific timetables to which the recipient, 
contractor, or subcontractor will direct its best efforts and undertake 
specific action to correct all deficiencies, and to materially increase 
the participation of minorities and women in all aspects of its 
operation. Such plans shall be updated annually.

[[Page 490]]


In addition, the affirmative action plan shall include the following:
    (1) Services, financial aid, and other benefits. The recipient, 
contractor, or subcontractor is required to specifically address and 
analyze all areas of its operation in which services, financial aid, and 
other benefits are offered or provided at each of its facilities to 
which this part applies. The analysis should include:
    (i) An identification of services, financial aid, and other benefits 
that the recipient, contractor or subcontractor provides or may provide;
    (ii) A description of the population eligible to be served or to 
participate, by race, color, national origin, and sex;
    (iii) An identification of specific actions that will be taken to 
assure that no discrimination occurs in providing services, financial 
aid, and other benefits;
    (iv) If relevant, the location of all existing or proposed 
facilities connected with the services, financial aid, or other 
benefits, as well as related information adequate for determining 
whether the location has or could have the effect of denying access to 
any individual on the basis of prohibited discrimination;
    (v) Where relocation of facilities is involved, the steps that will 
be taken to guard against adverse socioeconomic effects on individuals 
on the basis of race, color, creed, national origin, or sex;
    (vi) Information on all areas of the recipient's, contractor's, or 
subcontractor's operations that require change to assure that specific 
actions prohibited in paragraph (b)(3) of this section do not occur in 
the provision of any of its services, financial aid, or benefits;
    (vii) A monitoring system to assure that no discrimination occurs.
    (2) Employment practices. (i) The affirmative action plan shall 
address all aspects of employment in construction and non-construction 
operations and shall contain the analysis and commitments which are 
required in regulations promulgated by the Department of Labor pursuant 
to Executive Order 11246, specifically, those at 41 CFR 60-4.3(a)(7), 
(13), and (14) for the employment of construction employees, and those 
at 41 CFR 60-2.21, 60-2.22, 60-2.24, 60-2.26 for the employment of non-
construction employees.
    (ii)(A) The affirmative action plan of the applicants or recipients 
shall contain goals and timetables applicable to each segment of the 
ANGTS, employing the method of analysis set forth at 41 CFR 60-2.11(b). 
In developing goals the standards set out at 41 CFR 60-2.12(a)-(j) 
should be followed as well as the specific guidelines set forth below:
    (1) Current national statistics, such as those available from the 
U.S. Bureau of the Census, should be used to determine the available 
minority and female workforce populations unless it can be shown that a 
particular part of the project can be reasonably expected to draw labor 
only from a small area. If such a showing is made then statistics from 
such smaller area shall be employed in setting goals for that part of 
the project.
    (2) Goals should be set separately for each minority group, as set 
out in paragraph (j) of this section, and for women, by each job group.
    (3) Goals should be set in proportion to the group's general 
availability in the population taking into consideration
    (i) The number of group members currently available in that job 
group,
    (ii) The reason members of the group are not available in that job 
group in proportion to their existence in the general population, and
    (iii) The degree to which the provision of training could be 
expected to increase the availability of the group's members in the 
particular job group within the time available.
    (B) The affirmative action plan of each contractor and subcontractor 
shall contain goals and timetables based upon the overall goals and 
timetables set by the applicant or recipient for the segment of the 
ANGTS upon which the contractor or subcontractor will work.
    (iii) It shall not be a violation of this part for a recipient, 
contractor or subcontractor to extend a preference in employment 
consistent with 41 CFR 60-2.12(j). For the purpose of this section the 
term ``reservation'' in Alaska shall

[[Page 491]]

be the same as in 25 CFR 80.1, 91.1, and 93.1.\1\
---------------------------------------------------------------------------

    \1\Editorial Note: In the March 30, 1982, Federal Register, these 
sections were redesignated as 25 CFR 286.1, 101.1, and 103.1, 
respectively.
---------------------------------------------------------------------------

    (3) Procurement and contracting practices. (i) Applicants or 
recipients and each of their contractors and subcontractors with 
contracts of $150,000 or more shall develop for the Federal Inspector's 
approval an affirmative action plan that identifies specific actions 
which the applicant or recipient, contractor or subcontractor, will take 
to afford MBE's and FBE's the maximum practicable opportunity to 
participate in the construction and operation of ANGTS.
    (ii) The affirmative action plan of the applicant or recipient shall 
contain specific dollar goals set separately for MBE's and FBE's, and 
timetables for achieving these goals. The applicant's or recipient's 
goals and timetables shall be applicable to all procurement and 
contracting on its respective segment of the ANGTS. In setting goals the 
following factors should be considered:
    (A) The availability and capability of existing MBE's and FBE's in 
each procurement and contracting area;
    (B) The anticipated levels of procurement and contracting 
activities;
    (C) The extent to which procurement and contracting procedures can 
be amended to utilize contract breakouts and other methods, as described 
in paragraph (c)(3)(iii)(D)(2) of this section, to increase 
opportunities for MBE's and FBE's;
    (D) The extent to which new firms can be organized and the 
capability of existing firms expanded either through the efforts of the 
applicant or recipient and its contractors and subcontractors or through 
the efforts of government or other organizations and institutions.
    (iii) Affirmative action plans developed and submitted pursuant to 
paragraph (c)(3)(i) of this section shall contain the following 
elements:
    (A) An in-depth analysis of all areas of procurement and contracting 
procedures to determine if these procedures offer maximum opportunity 
for the utilization of MBE's and FBE's. All deficiencies must be 
identified along with steps that will be taken to correct them.
    (B) A description of all contracting opportunities to be offered in 
the succeeding year, or for such longer period of time for which 
projections are available. The plan shall identify the types of services 
and supplies for which contracts are to be let, with as much specificity 
as possible, indicating the anticipated dollar amounts of such 
contracts.
    (C) Specific dollar goals for MBE's and FBE's and timetables for 
achieving such goals based upon the overall goals and timetables set by 
the applicant or recipient for the segment of ANGTS upon which the 
contractor or subcontractor will work.
    (D) A description of all actions that will be taken to provide the 
maximum practicable opportunity for MBE's and FBE's to participate in 
the construction and operation of the ANGTS including the following:
    (1) The appointment of a liaison officer who will administer the MBE 
and FBE program, the identification of that officer, and a description 
of the officer's duties and authority;
    (2) Identification of steps that will be taken to insure timely and 
full consideration of MBE's and FBE's in all procurement and contracting 
decisions, and the identification of how those procedures will be 
implemented. This shall include procedures relevant to (i) the 
arrangement of solicitations, (ii) time for preparation of bids, (iii) 
quantity requirements, (iv) determination of specifications, (v) 
determination of delivery schedules, (vi) the determination of the 
manner of contracting, and (vii) breaking out contracts into smaller 
subcontracts;
    (3) An identification of contracting arrangements that will be 
adopted to increase the use of MBE's and FBE's, including analysis of 
the circumstances in which and the extent to which the following types 
of contracting practices can be used: (i) Noncompetitive contracting, 
(ii) contracting based upon competition between a limited number of 
enterprises, and (iii) negotiated contracts;
    (4) Specific procedures for identifying capable MBE's and FBE's and 
for the

[[Page 492]]

dissemination of information on business opportunities and procurement 
practices to minority and women's business organizations and 
associations, in sufficient detail, and affording sufficient time, to 
offer full opportunities for participation by MBE's and FBE's;
    (5) An identification of financial assistance, such as investment in 
Minority Enterprise Small Business Investment Companies (MESBIC) and 
direct investment in MBE's and FBE's, that the recipient, contractor, or 
subcontractor determines to be feasible and financially appropriate to 
offer MBE's and FBE's;
    (6) The identification and elimination of non-essential technical 
requirements and procedures, including non-essential bonding and 
insurance requirements;
    (7) Holding regularly scheduled meetings with procurement and 
contracting officials of the recipient, contractor, or subcontractor to 
explain MBE and FBE policies and procedures;
    (8) Identification of specific procedures for certifying and 
verifying ownership and control of companies identified as MBE's and 
FBE's. The plan shall include the requirements that firms submit 
affidavits as to their status as MBE's and FBE's as defined in 
Sec. 34.3.
    (E) As an integral part of the affirmative action plan, develop and 
maintain separate source listings of MBE's and FBE's. Such lists or 
files should contain whenever possible the following information on each 
company:
    (1) A description of each business, including the type of 
organization,
    (2) The product or service offered,
    (3) Information on ownership and control,
    (4) All relevant data and affidavits which establish that the 
enterprise is in fact owned, controlled, and managed by minorities and/
or women.
    (4) Complaint system for affirmative action plans. (i) The 
affirmative action plan must include a grievance mechanism for resolving 
disputes arising from the implementation of the plan.
    (ii) A copy of all complaints, related records, and specific 
resolutions must be maintained.
    (5) Data to support affirmative action plans and access to plans. 
(i) Data supporting the analyses and plans required by these regulations 
shall be compiled and maintained as part of the affirmative action plan.
    (ii) Copies of the affirmative action plan and supporting data shall 
be made available to the Federal Inspector upon his request as may be 
appropriate for the fulfillment of the Inspector's responsibilities 
under these regulations.
    (d) Review of affirmative action plan. (1) Applicants and their 
contractors and subcontractors which are required by paragraphs (a) and 
(b) of this section to submit affirmative action plans to the Federal 
Inspector for approval shall provide the Federal Inspector with the 
following information at the time the affirmative action plan is 
submitted:
    (i) A brief description of pending applications to any Federal 
agency for Federal financial assistance or the award of a government 
contract, as well as any Federal assistance being received, or any 
government contracts or subcontracts being performed;
    (ii) Whether the applicant, contractor, or subcontractor has been 
the subject of a compliance review conducted by the Department of Labor 
pursuant to 41 CFR part 60-1 within the preceding twelve months;
    (iii) Whether any Federal, State or local government agency has 
found the applicant, contractor, or subcontractor in non-compliance or 
has found reasonable cause to believe the applicant, contractor, or 
subcontractor is in violation of, or in non-conpliance with, any civil 
rights requirements;
    (iv) A description of the methods by which the applicant, 
contractor, or subcontractor will insure that its contractors and 
subcontractors comply with the provisions of the affirmative action 
plans during the term of the contracts;
    (2) The Federal Inspector shall consider conducting an on-site 
review before the award of any Federal authorizations, agreements to 
assign Federal authorizations, contracts or subcontracts under which 
substantial employment or procurement opportunities will be offered;

[[Page 493]]

    (3) The Federal Inspector will determine whether the affirmative 
action plans are adequate. If deficiencies are found to exist in a plan, 
the recipient, contractor, or subcontractor shall correct the 
deficiencies in consultation with the Federal Inspector. If deficiencies 
are not corrected to the satisfaction of the Federal Inspector, the 
Inspector may enforce compliance with this section through measures 
authorized by ANGTA or any other provision of law.
    (4) Upon approval of the affirmative action plan--including the 
goals and timetables--of the applicants or recipients, the Federal 
Inspector shall publicize the goals and timetables which are approved 
for each segment. Notice should be sent to all parties who submitted 
comments to the Department of the Interior in response to the Notice of 
Proposed Rulemaking issued about these regulations on October 12, 1979 
(44 FR 59096).
    (5) The Federal Inspector may, upon request, grant exemptions from 
the requirements of paragraph (b) of this section to any bidder which 
can demonstrate that no significant employment opportunities will result 
from an award of a contract to the bidder.



Sec. 34.9  Compliance reporting.

    (a) Records, reports, and access to books. Each recipient, 
contractor, or subcontractor to which these regulations apply shall 
submit to the Federal Inspector reports in the form and manner that the 
Federal Inspector determines to be necessary to insure compliance with 
the rules, regulations, and orders implementing section 17 and Condition 
11 of the President's Decision.
    (b) Access to sources of information. Each person to whom this part 
applies shall permit access by the Federal Inspector during normal 
business hours to books, records, accounts, and other sources of 
information, and to facilities, as the Federal Inspector determines to 
be necessary to insure compliance with the rules, regulations, and 
orders implementing section 17 and the President's Decision.
    (c) Failure to submit reports. Failure to file timely, complete, and 
accurate reports, or failure to permit access to sources of information 
as required constitutes non-compliance with the Equal Opportunity Clause 
and with these regulations and, therefore, constitutes grounds for 
action by the Federal Inspector, recipient, contractor, or subcontractor 
to enforce compliance or levy sanctions as authorized by ANGTA, by the 
implementing rules, regulations, and orders thereunder, by contractual 
agreement, or by any other means authorized by law.
    (d) Information for beneficiaries and participants. Each recipient 
or other entity required to develop an affirmative action plan pursuant 
to these regulations shall make the plan available for inspection by 
employees, participants, beneficiaries, local, State, and Federal 
government officials, and members of the public upon request. A copy of 
the plan shall be maintained at each place of employment, and a notice 
posted at each such place to advise employees and members of the public 
that the plan is available for inspection upon request.



Sec. 34.10  Compliance reviews.

    (a) Periodic compliance procedures. (1) The Federal Inspector will 
review the practices of recipients, contractors, or subcontractors, 
which offer significant opportunities for employment or procurement, to 
determine whether such recipient, contractor, or subcontractor are 
complying with its affirmative action plans and the rules, regulations, 
and orders implementing section 17 and Condition 11 of the President's 
Decision. The review will consist of a comprehensive analysis of all 
aspects of the recipient's, contractor's, or subcontractor's operations 
and practices and the conditions resulting therefrom. The review will 
include an on-site visit if the Federal Inspector determines that such a 
review is necessary.
    (2) The Federal Inspector will continually monitor and verify the 
status of MBE's and FBE's through procedures as the Inspector may 
determine appropriate.
    (b) Complaints. (1) Complaints alleging discrimination or non-
compliance with affirmative action plans shall be filed with the Federal 
Inspector.
    (2) A complaint must be filed within 180 days from the date of the 
alleged

[[Page 494]]

discrimination, unless the time for filing is extended by the Federal 
Inspector for good cause shown.
    (3) The complaint should include the name, address, and telephone 
number of the complainant; the name and address of the person alleged to 
have discriminated; a description of the alleged discriminatory acts; 
and any other pertinent information which will assist the investigation 
and resolution of the complaint. The complaint should be signed by the 
complainant or his or her authorized representative.
    (4) The filing of a complaint with the Federal Inspector shall not 
constitute the filing of a complaint pursuant to title VII of the Civil 
Rights Act of 1964 with the Equal Opportunity Commission unless, by 
agreement between the two agencies, the Federal Inspector and the Equal 
Employment Opportunity Commission so provide.
    (c) Investigations. The Federal Inspector will make a prompt 
investigation whenever information indicates that a person may have 
failed to comply with section 17 or Condition 11 of the President's 
Decision or the implementing rules, regulations, or orders thereunder. 
The investigation should include, where appropriate, a review of the 
pertinent practices and policies of the person under investigation, the 
circumstances under which the possible noncompliance occurred, and other 
factors relevant to determine whether the person has failed to comply 
with section 17, Condition 11 of the President's Decision, or the 
implementing rules, regulations, and orders thereunder.
    (d) Resolution of complaints and investigations. (1) In exercising 
the broad authority to enforce these regulations, the Federal Inspector 
shall, within 90 days of the effective date of these regulations, 
establish the procedures to be followed in enforcing these regulations. 
These regulations shall thereafter be amended to incorporate these 
procedures. The procedures shall, to the extent consistent with ANGTA, 
be similar to those proposed to be adopted by the Department of Energy 
to resolve complaints of violations of title VI of the Civil Rights Act 
of 1964. See regulations proposed to be codified at 10 CFR 1040.104, 
(Nov. 16, 1978). At a minimum the procedures must incorporate the 
following paragraphs (d) (2) through (5) of this section.
    (2) The Federal Inspector will initiate action upon all complaints 
within 35 days of the date the complaint is filed with the Federal 
Inspector.
    (3) If an investigation pursuant to paragraphs (a) through (c) of 
this section indicates probable non-compliance with section 17, 
Condition 11 of the President's Decision, or the implementing rules, 
regulations, or orders thereunder, the Federal Inspector will attempt to 
resolve the matter by informal methods of conference, conciliation, and 
persuasion.
    (4) Resolution shall be effected through a written agreement between 
the Federal Inspector, the complainant, if any, and the person who has 
failed to comply. The agreement shall contain commitments to promptly 
eliminate all discriminatory conditions, shall identify the precise 
remedial actions to be taken and dates for completion of remedial 
actions, and shall include a provision that breath of the agreement may 
result in further enforcement actions by the Federal Inspector. The 
Federal Inspector will then certify compliance, on condition that the 
commitments are kept. Such certification will not preclude a subsequent 
determination by the Federal Inspector that the full facts were not 
known at the time agreement was executed, or the commitments undertaken 
are not sufficient to correct deficiencies.
    (5) If the Federal Inspector's investigation does not warrant 
enforcement action, the Federal Inspector shall so inform the 
complainant, if any, and the person who was investigated. The 
complainant shall also be notified of any action taken including the 
achievement of voluntary compliance.
    (6) Between the period of these effective dates of these regulations 
and the effective date of the enforcement procedures established by the 
Federal Inspector, pursuant to paragraph (d)(1) of this section, the 
Federal Inspector shall at a minimum adhere to paragraphs (d)(2) through 
(5) of this section.
    (e) Acts of intimidation or retaliation prohibited. No person shall 
intimidate, threaten, coerce, harass, or retaliate against any 
individual for the purpose

[[Page 495]]

of interfering with any right or privilege secured by section 17, 
Condition 11 the President's Decision, and implementing rules, 
regulations, orders, because such individual has opposed a practice 
prohibited by section 17 or by this part, made a complaint, testified, 
assisted in, benefited from, or participated in any manner in an 
investigation, compliance review, proceeding or hearing, conducted 
pursuant to these regulations. The identity of complainants may be kept 
confidential except to the extent necessary to carry out the purpose of 
this part, including investigatory actions, hearings, or judicial 
proceedings.



Sec. 34.11  Enforcement sanctions.

    The provisions of section 17, the President's Decision, and 
implementing rules, regulations, and orders, as appropriate, will be 
enforced through:
    (a) The issuance of a compliance order by the Federal Inspector 
pursuant to section 11 of ANGTA; or
    (b) The commencement of a civil action for appropriate relief, 
including a permanent or temporary injunction, or a civil penalty not to 
exceed $25,000 per day; or
    (c) By any other means authorized by law.



PART 35--ADMINISTRATIVE REMEDIES FOR FRAUDULENT CLAIMS AND STATEMENTS--Table of Contents




Sec.
35.1  Basis and purpose.
35.2  Definitions.
35.3  Basis for civil penalties and assessments.
35.4  Investigation.
35.5  Review by reviewing official.
35.6  Prerequisites for issuing a complaint.
35.7  Complaint.
35.8  Service of complaint.
35.9  Answer.
35.10  Default upon failure to file an answer.
35.11  Referral of complaint and answer to the ALJ.
35.12  Notice of hearing.
35.13  Parties to the hearing.
35.14  Separation of functions.
35.15  Ex parte contacts.
35.16  Disqualification of reviewing official or ALJ.
35.17  Rights of parties.
35.18  Authority of the ALJ.
35.19  Pre-hearing conferences.
35.20  Disclosure of documents.
35.21  Discovery.
35.22  Exchange of witness lists, statements and exhibits.
35.23  Subpoenas for attendance at hearing.
35.24  Protective order.
35.25  Fees.
35.26  Form, filing and service of papers.
35.27  Computation of time.
35.28  Motions.
35.29  Sanctions.
35.30  The hearing and burden of proof.
35.31  Determining the amount of penalties and assessments.
35.32  Location of hearing.
35.33  Witnesses.
35.34  Evidence.
35.35  The record.
35.36  Post-hearing briefs.
35.37  Initial decision.
35.38  Reconsideration of initial decision.
35.39  Appeal to the Secretary of the Interior.
35.40  Stays ordered by the Department of Justice.
35.41  Stay pending appeal.
35.42  Judicial review.
35.43  Collection of civil penalties and assessments.
35.44  Right to administrative offset.
35.45  Deposit in Treasury of United States.
35.46  Compromise or settlement.
35.47  Limitations.

    Authority: 5 U.S.C. 301; 31 U.S.C. 3801-3812.

    Source: 53 FR 4160, Feb. 12, 1988, unless otherwise noted.



Sec. 35.1  Basis and purpose.

    (a) Basis. This part implements the Program Fraud Civil Remedies Act 
of 1986, Public Law 99-509, sections 6101-6104, 100 Stat. 1874 (Oct. 21, 
1986), to be codified at 31 U.S.C. 3801-3812. 31 U.S.C. 3809 of the 
statute requires each authority head to promulgate regulations necessary 
to implement the provisions of the statute.
    (b) Purpose. This part:
    (1) Establishes administrative procedures for imposing civil 
penalties and assessments against persons who make, submit, or present, 
or cause to be made, submitted, or presented, false, fictitious, or 
fraudulent claims or written statements to authorities or to their 
agents, and
    (2) Specifies the hearing and appeal rights of persons subject to 
allegations of liability for such penalties and assessments.

[[Page 496]]



Sec. 35.2  Definitions.

    As used in this part:
    (a) ALJ means an administrative law judge in the Department of the 
Interior appointed pursuant to 5 U.S.C. 3105 or detailed to the 
Department of the Interior pursuant to 5 U.S.C. 3344.
    (b) Benefit means, in the context of ``statement'', anything of 
value, including but not limited to any advantage, preference, 
privilege, license, permit, favorable decision, ruling, status, or loan 
guarantee.
    (c) Claim means any request, demand, or submission--
    (1) Made to the Department of the Interior for property, services, 
or money (including money representing grants, loans, insurance, or 
benefits);
    (2) Made to a recipient of property, services, or money from the 
Department of the Interior or to a party to a contract with the 
Department of the Interior--
    (i) For property or services if the United States--
    (A) Provided such property or services;
    (B) Provided any portion of the funds for the purchase of such 
property or services; or
    (C) Will reimburse such recipient or party for the purchase of such 
property or services; or
    (ii) For the payment of money (including money representing grants, 
loans, insurance, or benefits) if the United States--
    (A) Provided any portion of the money requested or demanded; or
    (B) Will reimburse such recipient or party for any portion of the 
money paid on such request or demand; or
    (3) Made to the Department of the Interior which has the effect of 
decreasing an obligation to pay or account for property, services, or 
money.
    (d) Complaint means the administrative complaint served by the 
reviewing official on the defendant under Sec. 35.7 of this part.
    (e) Defendant means any person alleged in a complaint under 
Sec. 35.7 to be liable for a civil penalty or assessment under Sec. 35.3 
of this part.
    (f) Department means the Department of the Interior.
    (g) Director means the Director of the Office of Hearings and 
Appeals, Office of the Secretary, who is the designee of the Secretary 
of the Interior authorized to consider and decide finally for the 
Department appeals under this part. The authority delegated to the 
Director includes the authority to redelegate appellate review authority 
to an ad hoc board of appeals appointed in accordance with 43 CFR 
4.1(b)(4). Appeals to the Secretary under this part should be mailed or 
delivered to the Director, Office of Hearings and Appeals, U.S. 
Department of the Interior, 801 North Quincy Street, Arlington, Virginia 
22203. Documents will be considered filed when received in the office of 
the Director.
    (h) Government means the U.S. Government.
    (i) Individual means a natural person.
    (j) Initial decision means the written decision of the ALJ required 
by Sec. 35.10 or Sec. 35.37 of this part, and includes a revised initial 
decision issued following a remand or a motion for reconsideration
    (k) Investigating official means the Inspector General of the 
Department of the Interior or an officer or employee of the Office of 
Inspector General designated by the Inspector General and serving in a 
position for which the rate of basic pay is not less than the minimum 
rate of basic pay for grade GS-16 under the General Schedule.
    (l) Knows or has reason to know, means that a person, with respect 
to a claim or statement--
    (1) Has actual knowledge that the claim or statement is false, 
fictitious, or fraudulent;
    (2) Acts in deliberate ignorance of the truth or falsity of the 
claim or statement; or
    (3) Acts in reckless disregard of the truth or falsity of the claim 
or statement.
    (m) Makes, wherever it appears, shall include the terms 
``presents,'' ``submits,'' and ``causes to be made, presented, or 
submitted.'' As the context requires, ``making'' or ``made'', shall 
likewise include the corresponding forms of such terms.
    (n) Person means any individual, partnership, corporation, 
association, or private oganization, and includes the plural of that 
term.
    (o) Representative means an attorney who is a member in good 
standing of

[[Page 497]]

the bar of any State, Territory, or possession of the United States or 
of the District of Columbia or the Commonwealth of Puerto Rico, or other 
representative meeting the qualifications of a non-attorney 
representative found at 43 CFR 1.3 and designated in writing.
    (p) Reviewing official means the Solicitor of the Department of the 
Interior or his designated representative, who is:
    (1) Not subject to supervision by, or required to report to, the 
investigating official; and
    (2) Serving in a position for which the rate of basic pay is not 
less than the minimum rate of basic pay for grade GS-16 under the 
General Schedule.
    (q) Secretary means the Secretary of the Interior or his designated 
representative.
    (r) Statement means any representation, certification, affirmation, 
document, record, or accounting or bookkeeping entry made--
    (1) With respect to a claim or to obtain the approval or payment of 
a claim (including relating to eligibility to make a claim); or
    (2) With respect to (including relating to eligibility for)--
    (i) A contract with, or a bid or proposal for a contract with; or
    (ii) A grant, loan, or benefit from, the Department of the Interior, 
or any State, political subdivision of a State, or other party, if the 
United States Government provides any portion of the money or property 
under such contract or for such grant, loan, or benefit, or if the 
Government will reimburse such State, political subdivision, or party 
for any portion of the money or property under such contract or for such 
grant, loan, or benefit.

[53 FR 4160, Feb. 12, 1988, as amended at 67 FR 4369, Jan. 30, 2002; 67 
FR 12885, Mar. 20, 2002]



Sec. 35.3  Basis for civil penalties and assessments.

    (a) Claims. (1) Except as provided in paragraph (c) of this section, 
any person who makes a claim that the person knows or has reason to 
know--
    (i) Is false, fictitious, or fraudulent;
    (ii) Includes or is supported by any written statement which asserts 
a material fact which is false, fictitious, or fraudulent,
    (iii) Includes or is supported by any written statement that--
    (A) Omits a material fact;
    (B) Is false, fictitious, or fraudulent as a result of such 
omission; and
    (C) Is a statement in which the person making such statement has a 
duty to include such material fact; or
    (iv) Is for payment for the provision of property or services which 
the person has not provided as claimed, shall be subject, in addition to 
any other remedy that may be prescribed by law, to a civil penalty of 
not more than $5,000 for each such claim.
    (2) Each voucher, invoice, claim form, or other individual request 
or demand for property, services, or money constitutes a separate claim.
    (3) A claim shall be considered made to the Department, a recipient, 
or party when such claim is actually made to an agent, fiscal 
intermediary, or other entity, including any State or Territory, or 
political subdivision thereof, acting for or on behalf of the 
Department, recipient, or party.
    (4) Each claim for property, services or money is subject to a civil 
penalty regardless of whether such property, services, or money is 
actually delivered or paid.
    (5) If the Government has made any payment (including transferred 
property or provided services) on a claim, a person subject to a civil 
penalty under paragraph (a)(1) of this section shall also be subject to 
an assessment of not more than twice the amount of such claim or that 
portion thereof that is determined to be in violation of paragraph 
(a)(1) of this section. Such assessment shall be in lieu of damages 
sustained by the Government because of such claim.
    (b) Statements. (1) Except as provided in paragraph (c) of this 
section, any person who makes a written statement that--
    (i) The person knows or has reason to know--
    (A) Asserts a material fact which is false, fictitious, or 
fraudulent; or
    (B) Is false, fictitious, or fraudulent because it omits a material 
fact that the person making the statement has a duty to include in such 
statement; and

[[Page 498]]

    (ii) Contains or is accompanied by an express certification or 
affirmation of the truthfulness and accuracy of the contents of the 
statement, shall be subject, in addition to any other remedy that may be 
prescribed by law, to a civil penalty of not more than $5,000 for each 
such statement.
    (2) Each written representation, certification, or affirmation 
constitutes a separate statement.
    (3) A statement shall be considered made to the Department when such 
statement is actually made to an agent, fiscal intermediary, or other 
entity, including any State or Territory, or political subdivision 
thereof, acting for or on behalf of the Department.
    (c) No proof of specific intent to defraud is required to establish 
liability under this section.
    (d) In any case in which it is determined that more than one person 
is liable for making a claim or statement, each such person may be held 
liable for a civil penalty under this section.
    (e) In any case in which it is determined that more than one person 
is liable for making a claim under this section on which the Government 
has made payment (including transferred property or provided services), 
an assessment may be imposed against any such person or jointly and 
severally against any combination of such persons.



Sec. 35.4  Investigation.

    (a) If the investigating official concludes that a subpoena pursuant 
to the authority conferred by 31 U.S.C. 3804(a) is warranted--
    (1) The subpoena so issued shall notify the person to whom it is 
addressed of the authority under which the subpoena is issued and shall 
identify the records or documents sought;
    (2) The investigating official may designate a person to act on his 
or her behalf to receive the documents sought; and
    (3) The person receiving such subpoena shall be required to tender 
to the investigating official or the person designated to receive the 
documents a certification that the documents sought have been produced, 
or that such documents are not available and the reasons therefor, or 
that such documents, suitably identified, have been withheld based upon 
the assertion of an identified privilege.
    (b) If the investigating official concludes that an action under the 
Program Fraud Civil Remedies Act may be warranted, the investigating 
official shall submit a report containing the findings and conclusions 
of such investigation to the reviewing official.
    (c) Nothing in this section shall preclude or limit the 
investigating official's discretion to refer allegations directly to the 
Department of Justice for suit under the False Claims Act or other civil 
relief, or to defer or postpone a report or referral to the reviewing 
official to avoid interference with a criminal investigation or 
prosecution.
    (d) Nothing in this section modifies any responsibility of the 
investigating official to report violations of criminal law to the 
Attorney General.



Sec. 35.5  Review by reviewing official.

    (a) If, based on the report of the investigating official under 
Sec. 35.4(b), the reviewing official determines that there is adequate 
evidence to believe that a person is liable under Sec. 35.3, the 
reviewing official shall transmit to the Attorney General a written 
notice of the reviewing official's intention to issue a complaint under 
Sec. 35.7 of this part.
    (b) Such notice shall include--
    (1) A statement of the reviewing official's reasons for issuing a 
complaint;
    (2) A statement specifying the evidence that supports the 
allegations of liability;
    (3) A description of the claims or statements upon which the 
allegations of liability are based;
    (4) An estimate of the amount of money, or the value of property, 
services, or other benefits, requested or demanded in violation of 
Sec. 35.3 of this part;
    (5) A statement of any exculpatory or mitigating circumstances that 
may relate to the claims or statements known by the reviewing official 
or the investigating official; and
    (6) A statement that there is a reasonable prospect of collecting an 
appropriate amount of penalties and assessments.

[[Page 499]]



Sec. 35.6  Prerequisites for issuing a complaint.

    (a) The reviewing official may issue a complaint under Sec. 35.7 of 
this part only if--
    (1) The Department of Justice approves the issuance of a complaint 
in a written statement described in 31 U.S.C. 3803(b)(1), and
    (2) In the case of allegations of liability under Sec. 35.3(a) with 
respect to a claim, the reviewing official determines that, with respect 
to such claim or a group of related claims submitted at the same time 
such claim is submitted (as defined in paragraph (b) of this section), 
the amount of money, or the value of property or services, demanded or 
requested in violation of Sec. 35.3(a) of this part does not exceed 
$150,000.
    (b) For the purposes of this section, a related group of claims 
submitted at the same time shall include only those claims arising from 
the same transaction (e.g., grant, loan, application, or contract) that 
are submitted simultaneously as part of a single request, demand, or 
submission.
    (c) Nothing in this section shall be construed to limit the 
reviewing official's authority to join in a single complaint against a 
person claims that are unrelated or were not submitted simultaneously, 
regardless of the amount of money, or the value of property or services, 
demanded or requested.



Sec. 35.7  Complaint.

    (a) On or after the date the Department of Justice approves the 
issuance of a complaint in accordance with 31 U.S.C. 3803(b)(1), the 
reviewing official may serve a complaint on the defendant, as provided 
in Sec. 35.8 of this part.
    (b) The complaint shall state--
    (1) The allegations of liability against the defendant, including 
the statutory basis for liability, an identification of the claims or 
statements that are the basis for the alleged liability, and the reasons 
why liability allegedly arises from such claims or statements;
    (2) The maximum amount of penalties and assessments for which the 
defendant may be held liable;
    (3) Instructions for filing an answer to request a hearing, 
including a specific statement of the defendant's right to request a 
hearing by filing an answer and to be represented by a representative; 
and
    (4) That failure to file an answer within 30 days of service of the 
complaint will result in the imposition of the maximum amount of 
penalties and assessments without right to appeal, as provided in 
Sec. 35.10.
    (c) At the same time the reviewing official serves the complaint, he 
or she shall serve the defendant with a copy of these regulations.



Sec. 35.8  Service of complaint.

    (a) Service of a complaint must be made by certified or registered 
mail or by delivery in any manner authorized by Rule 4(d) of the Federal 
Rules of Civil Procedure. Service is complete upon receipt.
    (b) Proof of service, stating the name and address of the person on 
whom the complaint was served, and the manner and date of service, may 
be made by--
    (1) Affidavit of the individual serving the complaint by delivery;
    (2) A United States Postal Service return receipt card acknowledging 
receipt; or
    (3) Written acknowledgement of receipt by the defendant or his or 
her representative.



Sec. 35.9  Answer.

    (a) The defendant may request a hearing by filing an answer with the 
reviewing official within 30 days of service of the complaint. An answer 
shall be deemed to be a request for hearing.
    (b) In the answer, the defendant--
    (1) Shall admit or deny each of the allegations of liability made in 
the complaint;
    (2) Shall state any defense on which the defendant intends to rely;
    (3) May state any reasons why the defendant contends that the 
penalties and assessments should be less than the statutory maximum; and
    (4) Shall state the name, address, and telephone number of the 
person authorized by the defendant to act as defendant's representative, 
if any.
    (c) If the defendant is unable to file an answer meeting the 
requirements of paragraph (b) of this section within the

[[Page 500]]

time provided, the defendant may, before the expiration of 30 days from 
service of the complaint, file with the reviewing official a general 
answer denying liability and requesting a hearing, and a request for an 
extension of time within which to file an answer meeting the 
requirements of paragraph (b) of this section. The reviewing official 
shall file promptly with the ALJ the complaint, the general answer 
denying liability, and the request for an extension of time as provided 
in Sec. 35.11. For good cause shown, the ALJ may grant the defendant up 
to 30 additional days within which to file an answer meeting the 
requirements of paragraph (b) of this section.



Sec. 35.10  Default upon failure to file an answer.

    (a) If the defendant does not file an answer within the time 
prescribed in Sec. 35.9(a) of this part, the reviewing official may 
refer the complaint to the Office of Hearings and Appeals, Hearings 
Division, Department of the Interior, for assignment to an ALJ.
    (b) Upon the referral of the complaint, the ALJ shall promptly serve 
on defendant in the manner prescribed in Sec. 35.8 of this part, a 
notice that an initial decision will be issued under this section.
    (c) The ALJ shall assume the facts alleged in the complaint to be 
true and, if such facts establish liability under Sec. 35.3 of this 
part, the ALJ shall issue an initial decision imposing the maximum 
amount of penalties and assessments allowed under the statute.
    (d) Except as otherwise provided in this section, by failing to file 
a timely answer the defendant waives any right to further review of the 
penalties and assessments imposed under paragraph (c) of this section, 
and the initial decision shall become final and binding upon the parties 
30 days after it is issued.
    (e) If, before such an initial decision becomes final, the defendant 
files a motion with the ALJ seeking to reopen on the grounds that 
extraordinary circumstances prevented the defendant from filing an 
answer, the initial decision shall be stayed pending the ALJ's decision 
on the motion.
    (f) If, on such motion, the defendant can demonstrate extraordinary 
circumstances excusing the failure to file a timely answer, the ALJ 
shall withdraw the initial decision in paragraph (c) of this section, if 
such a decision has been issued, and shall grant the defendant an 
opportunity to answer the complaint.
    (g) A decision of the ALJ denying a defendant's motion under 
paragraph (e) of this section is not subject to reconsideration under 
Sec. 35.38 of this part.
    (h) The defendant may appeal the decision denying a motion to reopen 
by filing a notice of appeal with the Director within 15 days after the 
ALJ denies the motion. The timely filing of a notice of appeal shall 
stay the initial decision until the appeal is decided.
    (i) If the defendant files a timely notice of appeal with the 
Director, the ALJ shall forward the record of the proceeding to the 
Director.
    (j) The Director shall decide expeditiously whether extraordinary 
circumstances excuse the defendant's failure to file a timely answer 
based solely on the record before the ALJ.
    (k) If the Director decides that extraordinary circumstances excused 
the defendant's failure to file a timely answer, the Director shall 
remand the case to the ALJ with instructions to grant the defendant an 
opportunity to answer.
    (l) If the Director decides that the defendant's failure to file a 
timely answer is not excused, the Director shall reinstate the initial 
decision of the ALJ, which shall become final and binding upon the 
parties 30 days after the Director issues such decision.



Sec. 35.11  Referral of complaint and answer to the ALJ.

    Upon receipt of an answer, the reviewing offical shall file the 
complaint and answer with the Office of Hearings and Appeals, Hearings 
Division, Department of the Interior, for assignment to an ALJ. The 
reviewing official shall include the name, address, and telephone number 
of a representative for the Government.



Sec. 35.12  Notice of hearing.

    (a) When the ALJ receives the complaint and answer, the ALJ shall

[[Page 501]]

promptly serve a notice of hearing upon the defendant in the manner 
prescribed by Sec. 35.8 of this part. At the same time, the ALJ shall 
send a copy of such notice to the representative for the Government.
    (b) Such notice shall include--
    (1) The time and place, and the nature of the hearing;
    (2) The legal authority and jurisdiction under which the hearing is 
to be held;
    (3) The matters of fact and law to be asserted;
    (4) A description of the procedures for the conduct of the hearing;
    (5) The name, address, and telephone number of the representative of 
the Government and of the defendant, if any; and
    (6) Such other matters as the ALJ deems appropriate.



Sec. 35.13  Parties to the hearing.

    (a) The parties to the hearing shall be the defendant and the 
Department of the Interior.
    (b) Pursuant to 31 U.S.C. 3730(c)(5), a private plaintiff under the 
False Claims Act may participate in these proceedings to the extent 
authorized by the provisions of that Act.



Sec. 35.14  Separation of functions.

    (a) The investigating official, the reviewing official, and any 
employee or agent of the Department who takes part in investigating, 
preparing, or presenting a particular case may not, in such case or a 
factually related case--
    (1) Participate in the hearing as the ALJ;
    (2) Participate or advise in the initial decision or the review of 
the initial decision, except as a witness or a representative in public 
proceedings; or
    (3) Make the collection of penalties and assessments under 31 U.S.C. 
3806.
    (b) The ALJ shall not be responsible to, or subject to the 
supervision or direction of, the investigating official or the reviewing 
official.
    (c) Except as provided in paragraph (a) of this section, the 
representative for the Government may be employed anywhere in the 
Department, including in the offices of either the investigating 
official or the reviewing official.



Sec. 35.15  Ex parte contacts.

    No party or person (except employees of the ALJ's office) shall 
communicate in any way with the ALJ on any matter at issue in a case, 
unless on notice and opportunity for all parties to participate. This 
provision does not prohibit a person or party from inquiring about the 
status of a case or asking routine questions concerning administrative 
functions or procedures.



Sec. 35.16  Disqualification of reviewing official or ALJ.

    (a) A reviewing offical or ALJ in a particular case may disqualify 
himself or herself at any time.
    (b) A party may file with the ALJ a motion for disqualification of a 
reviewing official or an ALJ. Such motion shall be accompanied by an 
affidavit alleging personal bias or other reason for disqualification.
    (c) Such motion and affidavit shall be filed promptly upon the 
party's discovery of reasons requiring disqualification, or such 
objections shall be deemed waived.
    (d) Such affidavit shall state specific facts that support the 
party's belief that personal bias or other reason for disqualification 
exists and the time and circumstances of the party's discovery of such 
facts. It shall be accompanied by a certificate of the representative of 
record that it is made in good faith.
    (e) Upon the filing of such a motion and affidavit, the ALJ shall 
proceed no further in the case until he or she resolves the matter of 
disqualification in accordance with paragraph (f) of this section.
    (f)(1) If the ALJ determines that a reviewing official is 
disqualified, the ALJ shall dismiss the complaint without prejudice.
    (2) If the ALJ disqualifies himself or herself, the case shall be 
reassigned promptly to another ALJ.
    (3) If the ALJ denies a motion to disqualify, the Director may 
determine the matter only as part of the review of the initial decision 
upon appeal, if any.



Sec. 35.17  Rights of parties.

    Except as otherwise limited by this part, all parties may--

[[Page 502]]

    (a) Be accompanied, represented, and advised by a representative;
    (b) Participate in any conference held by the ALJ;
    (c) Conduct discovery;
    (d) Agree to stipulations of fact or law, which shall be made part 
of the record;
    (e) Present evidence relevant to the issues at the hearing;
    (f) Present and cross-examine witnesses;
    (g) Present oral arguments at the hearing as permitted by the ALJ; 
and
    (h) Submit written briefs and proposed findings of fact and 
conclusions of law after the hearing.



Sec. 35.18  Authority of the ALJ.

    (a) The ALJ shall conduct a fair and impartial hearing, avoid delay, 
maintain order, and assure that a record of the proceeding is made.
    (b) The ALJ has the authority to--
    (1) Set and change the date, time, and place of the hearing upon 
reasonable notice to the parties;
    (2) Continue or recess the hearing in whole or in part for a 
reasonable period of time;
    (3) Hold conferences to identify or simplify the issues, or to 
consider other matters that may aid in the expeditious disposition of 
the proceeding;
    (4) Administer oaths and affirmations;
    (5) Issue subpoenas requiring the attendance of witnesses and the 
production of documents at depositions or at hearings;
    (6) Rule on motions and other procedural matters;
    (7) Regulate the scope and timing of discovery;
    (8) Regulate the course of the hearing and the conduct of 
representatives and parties;
    (9) Examine witnesses;
    (10) Receive, rule on, exclude, or limit evidence;
    (11) Take official notice of facts;
    (12) Upon motion of a party, decide cases, in whole or in part, by 
summary judgment where there is no disputed issue of material fact;
    (13) Conduct any conference, argument, or hearing on motions in 
person or by telephone; and
    (14) Exercise such other authority as is necessary to carry out the 
responsibilities of the ALJ under this part.
    (c) The ALJ does not have the authority to find Federal statutes or 
regulations invalid.



Sec. 35.19  Pre-hearing conferences.

    (a) The ALJ may schedule pre-hearing conferences as appropriate.
    (b) Upon the motion of any party, the ALJ shall schedule at least 
one pre-hearing conference at a reasonable time in advance of the 
hearing.
    (c) The ALJ may use pre-hearing conferences to discuss the 
following:
    (1) Simplification of the issues;
    (2) The necessity or desirability of amendments to the pleadings, 
including the need for a more definite statement;
    (3) Stipulations and admissions of fact or as to the contents and 
authenticity of documents;
    (4) Whether the parties can agree to submission of the case on a 
stipulated record;
    (5) Whether a party chooses to waive appearance at an oral hearing 
and to submit only documentary evidence (subject to the objection of 
other parties) and written argument;
    (6) Limitation of the number of witnesses;
    (7) Scheduling dates for the exchange of witness lists and of 
proposed exhibits;
    (8) Discovery;
    (9) The time and place for the hearing; and
    (10) Such other matters as may tend to expedite the fair and just 
disposition of the proceedings.
    (d) The ALJ may issue an order containing all matters agreed upon by 
the parties or ordered by the ALJ at a pre-hearing conference.



Sec. 35.20  Disclosure of documents.

    (a) Upon written request to the reviewing official, the defendant 
may review any relevant and material documents, transcripts, records, 
and other materials that relate to the allegations set out in the 
complaint and upon which the findings and conclusions of the 
investigating official under Sec. 35.4(b) of this part are based, unless 
such documents are subject to a privilege under

[[Page 503]]

Federal law. Upon payment of fees for duplication, the defendant may 
obtain copies of such documents.
    (b) Upon written request to the reviewing official, the defendant 
also may obtain a copy of all exculpatory information in the possession 
of the reviewing official or investigating official relating to the 
allegations in the complaint, even if it is contained in a document that 
would otherwise be privileged. If the document would otherwise be 
privileged, only that portion containing exculpatory information must be 
disclosed.
    (c) The notice sent to the Attorney General from the reviewing 
official as described in Sec. 35.5 of this part is not discoverable 
under any circumstances.
    (d) The defendant may file a motion to compel disclosure of the 
documents subject to the provisions of this section. Such a motion may 
only be filed with the ALJ following the filing of an answer pursuant to 
Sec. 35.9 of this part.



Sec. 35.21  Discovery.

    (a) The following types of discovery are authorized:
    (1) Requests for production of documents for inspection and copying;
    (2) Requests for admissions of the authenticity of any relevant 
document or of the truth of any relevant fact;
    (3) Written interrogatories; and
    (4) Depositions.
    (b) For the purposes of this section and Secs. 35.22 and 35.23 of 
this part, the term ``documents'' includes information, documents, 
reports, answers, records, accounts, papers, and other data and 
documentary evidence. Nothing contained herein shall be interpreted to 
require the creation of a document.
    (c) Unless mutually agreed to by the parties, discovery is available 
only as ordered by the ALJ. The ALJ shall regulate the timing of 
discovery.
    (d) Motions for discovery. (1) A party seeking discovery may file a 
motion with the ALJ. Such a motion shall be accompanied by a copy of the 
requested discovery, or in the case of depositions, a summary of the 
scope of the proposed deposition.
    (2) Within ten days of service, a party may file an opposition to 
the motion and/or a motion for protective order as provided in 
Sec. 35.24 of this part.
    (3) The ALJ may grant a motion for discovery only if he or she finds 
that the discovery sought--
    (i) Is necessary for the expeditious, fair, and reasonable 
consideration of the issues;
    (ii) Is not unduly costly or burdensome;
    (iii) Will not unduly delay the proceeding; and
    (iv) Does not seek privileged information.
    (4) The burden of showing that discovery should be allowed is on the 
party seeking discovery.
    (5) The ALJ may grant discovery subject to a protective order under 
Sec. 35.24 of this part.
    (e) Depositions. (1) If a motion for deposition is granted, the ALJ 
shall issue a subpoena for the deponent, which may require the deponent 
to produce documents. The subpoena shall specify the time and place at 
which the deposition will be held.
    (2) The party seeking to depose shall serve the subpoena in the 
manner prescribed in Sec. 35.8 of this part.
    (3) The deponent may file with the ALJ a motion to quash the 
subpoena or a motion for a protective order within ten days of service.
    (4) The party seeking to depose shall provide for the taking of a 
verbatim transcript of the deposition, which it shall make available to 
all other parties for inspection and copying.
    (f) Each party shall bear its own costs of discovery.



Sec. 35.22  Exchange of witness lists, statements and exhibits.

    (a) At least 15 days before the hearing or at such other time as may 
be ordered by the ALJ, the parties shall exchange witness lists, copies 
of prior statements of proposed witnesses, and copies of proposed 
hearing exhibits, including copies of any written statements that the 
party intends to offer in lieu of live testimony in accordance with 
Sec. 35.33(b) of this part. At the time the above documents are 
exchanged, any party that intends to rely on the transcript of 
deposition testimony in lieu of live testimony at the hearing, if 
permitted by the ALJ, shall provide

[[Page 504]]

each party with a copy of the specific pages of the transcript it 
intends to introduce into evidence.
    (b) If a party objects, the ALJ shall not admit into evidence the 
testimony of any witness whose name does not appear on the witness list 
or any exhibit not provided to the opposing party as provided above 
unless the ALJ finds good cause for the failure or that there is no 
prejudice to the objecting party.
    (c) Unless another party objects within the time set by the ALJ, 
documents exchanged in accordance with paragraph (a) of this section 
shall be deemed to be authentic for the purpose of admissibility at the 
hearing.



Sec. 35.23  Subpoenas for attendance at hearing.

    (a) A party wishing to procure the appearance and testimony of any 
individual at the hearing may request that the ALJ issue a subpoena.
    (b) A subpoena requiring the attendance and testimony of an 
individual may also require the individual to produce documents at the 
hearing.
    (c) A party seeking a subpoena shall file a written request therefor 
not less than 15 days before the date fixed for the hearing unless 
otherwise allowed by the ALJ for good cause shown. Such request shall 
specify any documents to be produced and shall designate the witnesses 
and describe the address and location thereof with sufficient 
particularity to permit such witnesses to be found.
    (d) The subpoena shall specify the time and place at which the 
witness is to appear and any documents the witness is to produce.
    (e) The party seeking the subpoena shall serve it in the manner 
prescribed in Sec. 35.8 of this part. A subpoena on a party or upon an 
individual under the control of a party may be served by first class 
mail.
    (f) A party or the individual to whom the subpoena is directed may 
file with the ALJ a motion to quash the subpoena within ten days after 
service or on or before the time specified in the subpoena for 
compliance if it is less than ten days after service.



Sec. 35.24  Protective order.

    (a) A party or a prospective witness or deponent may file a motion 
for a protective order with respect to discovery sought by an opposing 
party or with respect to the hearing, seeking to limit the availability 
or disclosure of evidence.
    (b) In issuing a protective order, the ALJ may make any order which 
justice requires to protect a party or person from annoyance, 
embarrassment, oppression, or undue burden or expense, including one or 
more of the following:
    (1) That the discovery not be had;
    (2) That the discovery may be had only on specified terms and 
conditions, including a designation of the time or place;
    (3) That the discovery may be had only through a method of discovery 
other than that requested;
    (4) That certain matters not be inquired into, or that the scope of 
discovery be limited to certain matters;
    (5) That discovery be conducted with no one present except persons 
designated by the ALJ;
    (6) That the contents of discovery or evidence be sealed;
    (7) That a deposition after being sealed be opened only by order of 
the ALJ;
    (8) That a trade secret or other confidential research, development, 
or commercial information, or facts pertaining to any criminal 
investigation, proceeding, or other administrative investigation not be 
disclosed or be disclosed only in a designated way; or
    (9) That the parties simultaneously file specified documents or 
information enclosed in sealed envelopes to be opened as directed by the 
ALJ.



Sec. 35.25  Fees.

    The party requesting a subpoena shall pay the cost of the fees and 
mileage of any witness subpoenaed in the amounts that would be payable 
to a witness in a proceeding in U.S. District Court. A check for witness 
fees and mileage shall accompany the subpoena when served, except that 
when a subpoena is issued on behalf of the Department, a check for 
witness fees and mileage need not accompany the subpoena.

[[Page 505]]



Sec. 35.26  Form, filing and service of papers.

    (a) Form. (1) Every pleading and paper filed in the proceeding shall 
contain a caption setting forth the title of the action, the case number 
assigned by the ALJ, and a designation of the paper (e.g., motion to 
quash subpoena).
    (2) Every pleading and paper shall be signed by, and shall contain 
the address and telephone number of the party or the person on whose 
behalf the paper was filed, or his or her representative.
    (3) Papers are considered filed when they are mailed. Date of 
mailing may be established by a certificate from the party or its 
representative or by proof that the document was sent by certified or 
registered mail.
    (b) Service. A party filing a document with the ALJ shall, at the 
time of filing, serve a copy of such document on every other party. 
Service upon any party of any document other than those required to be 
served as prescribed in Sec. 35.8 shall be made by delivering a copy, or 
by placing a copy of the document in the U.S. mail, postage prepaid and 
addressed, to the party's last known address. When a party is 
represented by a representative, service shall be made upon such 
representative in lieu of the actual party.
    (c) Proof of service. A certificate of the individual serving the 
document by personal delivery or by mail, setting forth the manner of 
service, shall be proof of service.



Sec. 35.27  Computation of time.

    (a) In computing any period of time under this part or in an order 
issued thereunder, the time begins with the day following the act, 
event, or default, and includes the last day of the period, unless it is 
a Saturday, Sunday, or legal holiday observed by the Federal government, 
in which event it includes the next business day.
    (b) When the period of time allowed is less than seven days, 
intermediate Saturdays, Sundays, and legal holidays observed by the 
Federal government shall be excluded from the computation.
    (c) Where a document has been served or issued by placing it in the 
mail, an additional five days will be added to the time permitted for 
any response.



Sec. 35.28  Motions.

    (a) Any application to the ALJ for an order or ruling shall be by 
motion. Motions shall state the relief sought, the authority relied 
upon, and the facts alleged, and shall be filed with the ALJ and served 
on all other parties.
    (b) Except for motions made during a pre-hearing conference or at 
the hearing, all motions shall be in writing. The ALJ may require that 
oral motions be reduced to writing.
    (c) Within 15 days after a written motion is served, or such other 
time as may be fixed by the ALJ, any party may file a response to such 
motion.
    (d) The ALJ may not grant a written motion before the time for 
filing responses thereto has expired, except upon consent of the parties 
or following a hearing on the motion, but may overrule or deny such 
motion without awaiting a response.
    (e) The ALJ shall make a reasonable effort to dispose of all 
outstanding motions prior to the beginnings of the hearing.



Sec. 35.29  Sanctions.

    (a) The ALJ may sanction a person, including any party or 
representative, for--
    (1) Failing to comply with an order, rule, or procedure governing 
the proceeding;
    (2) Failing to prosecute or defend an action; or
    (3) Engaging in other misconduct that interferes with the speedy, 
orderly, or fair conduct of the hearing.
    (b) Any such sanction, including but not limited to those listed in 
paragraphs (c), (d), and (e) of this section, shall reasonably relate to 
the severity and nature of the failure or misconduct.
    (c) When a party fails to comply with an order, including an order 
for taking a deposition, the production of evidence within the party's 
control, or a request for admission, the ALJ may--
    (1) Draw an inference in favor of the requesting party with regard 
to the information sought;

[[Page 506]]

    (2) In the case of requests for admission, deem each matter of which 
an admission is requested to be admitted;
    (3) Prohibit the party failing to comply with such order from 
introducing evidence concerning, or otherwise relying upon, testimony 
relating to the information sought; and
    (4) Strike any part of the pleadings or other submissions of the 
party failing to comply with such request.
    (d) If a party fails to prosecute or defend an action under this 
part commenced by service of a notice of hearing, the ALJ may dismiss 
the action or may issue an initial decision imposing penalties and 
assessments.
    (e) The ALJ may refuse to consider any motion, request, response, 
brief or other document which is not filed in a timely fashion.



Sec. 35.30  The hearing and burden of proof.

    (a) The ALJ shall conduct a hearing on the record in order to 
determine whether the defendant is liable for a civil penalty or 
assessment under Sec. 35.3 of this part and, if so, the appropriate 
amount of any such civil penalty or assessment considering any 
aggravating or mitigating factors.
    (b) The authority shall prove defendant's liability and any 
aggravating factors by a preponderance of the evidence.
    (c) The defendant shall prove any affirmative defenses and any 
mitigating factors by a preponderance of the evidence.
    (d) The hearing shall be open to the public unless otherwise ordered 
by the ALJ for food cause shown.



Sec. 35.31  Determining the amount of penalties and assessments.

    (a) In determining an appropriate amount of civil penalties and 
assessments, the ALJ and the Director, upon appeal, should evaluate any 
circumstances that mitigate or aggravate the violation and should 
articulate in their opinions the reasons that support the penalties and 
assessments they impose. Because of the intangible costs of fraud, the 
expense of investigating such conduct, and the need to deter others who 
might be similarly tempted, ordinarily double damages and a significant 
civil penalty should be imposed.
    (b) Although not exhaustive, the following factors are among those 
that may influence the ALJ and the Director in determining the amount of 
penalties and assessments to impose with respect to the misconduct 
(i.e., the false, fictitious, or fraudulent claims or statements) 
charged in the complaint:
    (1) The number of false, fictitious, or fraudulent claims or 
statements;
    (2) The time period over which such claims or statements were made;
    (3) The degree of the defendant's culpability with respect to the 
misconduct;
    (4) The amount of money or the value of the property, services, or 
benefit falsely claimed;
    (5) The value of the Government's actual loss as a result of the 
misconduct, including foreseeable consequential damages and the costs of 
investigation.
    (6) The relationship of the amount imposed as civil penalties to the 
amount of the Government's loss;
    (7) The potential or actual impact of the misconduct upon national 
defense, public health or safety, or public confidence in the management 
of Government programs and operations, including particularly the impact 
on the intended beneficiaries of such programs;
    (8) Whether the defendant has engaged in a pattern of the same or 
similar misconduct;
    (9) Whether the defendant attempted to conceal the misconduct;
    (10) The degree to which the defendant has involved others in the 
misconduct or in concealing it;
    (11) Where the misconduct of employees or agents is imputed to the 
defendant, the extent to which the defendant's practices fostered or 
attempted to preclude such misconduct;
    (12) Whether the defendant cooperated in or obstructed an 
investigation of the misconduct;
    (13) Whether the defendant assisted in identifying and prosecuting 
other wrongdoers;
    (14) The complexity of the program or transaction, and the degree of 
the defendant's sophistication with respect

[[Page 507]]

to it, including the extent of the defendant's prior participation in 
the program or in similar transactions;
    (15) Whether the defendant has been found, in any criminal, civil, 
or administrative proceeding to have engaged in similar misconduct or to 
have dealt dishonestly with the government of the United States or of a 
State, directly or indirectly; and
    (16) The need to deter the defendant and others from engaging in the 
same or similar misconduct.
    (c) Nothing in this section shall be construed to limit the ALJ or 
the Director from considering any other factors that in any given case 
may mitigate or aggravate the offense for which penalties and 
assessments are imposed.



Sec. 35.32  Location of hearing.

    (a) The hearing may be held--
    (1) In any judicial district of the United States in which the 
defendant resides or transacts business;
    (2) In any judicial district of the United States in which the claim 
or statement in issue was made; or
    (3) In such other place as may be agreed upon by the defendant and 
the ALJ.
    (b) Each party shall have the opportunity to present argument with 
respect to the location of the hearing.
    (c) The hearing shall be held at the place and at the time ordered 
by the ALJ.



Sec. 35.33  Witnesses.

    (a) Except as provided in paragraph (b) of this section, testimony 
at the hearing shall be given orally by witnesses under oath or 
affirmation.
    (b) At the discretion of the ALJ, testimony may be admitted in the 
form of a written statement or deposition. Any such written statement 
must be provided to all other parties along with the last known address 
of such witness, in a manner which allows sufficient time for other 
parties to subpoena such witness for cross-examination at the hearing. 
Prior written statements of witnesses proposed to testify at the hearing 
and deposition transcripts shall be exchanged as provided in 
Sec. 35.22(a) of this part.
    (c) The ALJ shall exercise reasonable control over the mode and 
order of interrogating witnesses and presenting evidence so as to
    (1) Make the interrogation and presentation effective for the 
ascertainment of the truth,
    (2) Avoid needless consumption of time, and
    (3) Protect witnesses from harassment or undue embarrassment.
    (d) The ALJ shall permit the parties to conduct such cross-
examination as may be required for a full and true disclosure of the 
facts.
    (e) At the discretion of the ALJ, a witness may be cross-examined on 
matters relevant to the proceeding without regard to the scope of his or 
her direct examination. To the extent permitted by the ALJ, cross-
examination on matters outside the scope of direct examination shall be 
conducted in the manner of direct examination and may proceed by leading 
questions only if the witness is a hostile witness, an adverse party, or 
a witness identified with an adverse party.
    (f) Upon motion of any party, the ALJ shall order witnesses excluded 
so that they cannot hear the testimony of other witnesses. The rule does 
not authorize exclusion of--
    (1) A party who is an individual;
    (2) In the case of a party that is not an individual, an officer or 
employee of the party appearing for the entity pro se or designated by 
the party's representative; or
    (3) An individual whose presence is shown by a party to be essential 
to the presentation of its case, including an individual employed by the 
Government engaged in assisting the representative for the Government.



Sec. 35.34  Evidence.

    (a) The ALJ shall determine the admissibility of evidence.
    (b) Except as provided in this part, the ALJ shall not be bound by 
the Federal Rules of Evidence. However, the ALJ may apply the Federal 
Rules of Evidence where appropriate, e.g., to exclude unreliable 
evidence.
    (c) The ALJ shall exclude irrelevant and immaterial evidence.
    (d) Although relevant, evidence may be excluded if its probative 
value is substantially outweighed by the danger of unfair prejudice, 
confusion of the

[[Page 508]]

issues, or by considerations of undue delay or needless presentation of 
cumulative evidence.
    (e) Although relevant, evidence may be excluded if it is privileged 
under Federal law.
    (f) Evidence concerning offers of compromise or settlement shall be 
inadmissible to the extent provided in Rule 408 of the Federal Rules of 
Evidence.
    (g) The ALJ shall permit the parties to introduce rebuttal witnesses 
and evidence.
    (h) All documents and other evidence offered or taken for the record 
shall be open to examination by all parties, unless otherwise ordered by 
the ALJ pursuant to Sec. 35.24.



Sec. 35.35  The record.

    (a) The hearing will be recorded and transcribed. Transcripts may be 
obtained following the hearing from the ALJ at a cost not to exceed the 
actual cost of duplication.
    (b) The transcript of testimony, exhibits and other evidence 
admitted at the hearing, and all papers and requests filed in the 
proceeding constitute the record for the decision by the ALJ and the 
Director.
    (c) The record may be inspected and copied (upon payment of a 
reasonable fee) by anyone, unless otherwise ordered by the ALJ pursuant 
to Sec. 35.24 of this part.



Sec. 35.36  Post-hearing briefs.

    The ALJ may require the parties to file post-hearing briefs. In any 
event, any party may file a post-hearing brief. The ALJ shall fix the 
time for filing such briefs, not to exceed 60 days from the date the 
parties receive the transcript of the hearing or, if applicable, the 
stipulated record. Such briefs may be accompanied by proposed findings 
of fact and conclusions of law. The ALJ may permit the parties to file 
reply briefs.



Sec. 35.37  Initial decision.

    (a) The ALJ shall issue an initial decision based only on the 
record, which shall contain findings of fact, conclusions of law, and 
the amount of any penalties and assessments imposed.
    (b) The findings of fact shall include a finding on each of the 
following issues:
    (1) Whether the claims or statements identified in the complaint, or 
any portions thereof, violate Sec. 35.3 of this part;
    (2) If the person is liable for penalties or assessments, the 
appropriate amount of any such penalties or assessments considering any 
mitigating or aggravating factors that he or she finds in the case, such 
as those described in Sec. 35.31 of this part.
    (c) The ALJ shall promptly serve the initial decision on all parties 
within 90 days after the time for submission of post-hearing briefs and 
reply briefs (if permitted) has expired. The ALJ shall at the same time 
serve all parties with a statement describing the right of any defendant 
determined to be liable for a civil penalty or assessment to file a 
motion for reconsideration with the ALJ or a notice of appeal with the 
Director. If the ALJ fails to meet the deadline contained in this 
paragraph, he or she shall notify the parties of the reason for the 
delay and shall set a new deadline.
    (d) Unless the initial decision of the ALJ is timely appealed to the 
Secretary, or a motion for reconsideration of the initial decision is 
timely filed, the initial decision shall constitute the final decision 
of the Department and shall be final and binding on the parties 30 days 
after it is issued by the ALJ.



Sec. 35.38  Reconsideration of initial decision.

    (a) Except as provided in paragraph (d) of this section, any party 
may file a motion for reconsideration of the initial decision within 20 
days of receipt of the initial decision. If service was made by mail, 
receipt will be presumed to be five days from the date of mailing in the 
absence of contrary proof.
    (b) Every such motion must set forth the matters claimed to have 
been erroneously decided and the nature of the alleged errors. Such 
motion shall be accompanied by a supporting brief.
    (c) Responses to such motions shall be allowed only upon request of 
the ALJ.
    (d) No party may file a motion for reconsideration of an initial 
decision

[[Page 509]]

that has been revised in response to a previous motion for 
reconsideration.
    (e) The ALJ may dispose of a motion for reconsideration by denying 
it or by issuing a revised initial decision.
    (f) If the ALJ denies a motion for reconsideration, the initial 
decision shall constitute the final decision of the Department and shall 
be final and binding on the parties 30 days after the ALJ denies the 
motion, unless the initial decision is timely appealed to the Secretary 
in accordance with Sec. 35.39 of this part.
    (g) If the ALJ issues a revised initial decision, that decision 
shall constitute the final decision of the Department and shall be final 
and binding on the parties 30 days after it is issued, unless it is 
timely appealed to the Secretary in accordance with Sec. 35.39 of this 
part.



Sec. 35.39  Appeal to the Secretary of the Interior.

    (a) Any defendant who as filed a timely answer and who is determined 
in an initial decision to be liable for a civil penalty or assessment 
may appeal such decision to the Secretary by filing a notice of appeal 
with the Director in accordance with this section.
    (b)(1) A notice of appeal may be filed at any time within 30 days 
after the ALJ issues an initial decision. However, if another party 
files a motion for reconsideration under Sec. 35.38 of this part, 
consideration of the appeal shall be stayed automatically pending 
resolution of the motion for reconsideration.
    (2) If a motion for reconsideration is timely filed, a notice of 
appeal may be filed within 30 days after the ALJ denies the motion or 
issues a revised initial decision, whichever applies.
    (3) The Director may extend the initial 30 day period for an 
additional 30 days if the defendant files with the Director a request 
for an extension within the initial 30 day period and shows good cause.
    (c) If the defendant files a timely notice of appeal with the 
Director and the time for filing motions for reconsideration under 
Sec. 35.38 of this part has expired, the ALJ shall forward the record of 
the proceeding to the Director.
    (d) A notice of appeal shall be accompanied by a written brief 
specifying exceptions to the initial decision and reasons supporting the 
exceptions.
    (e) The representative for the Government may file a brief in 
opposition to exceptions within 30 days of receiving the notice of 
appeal and accompanying brief.
    (f) There is no right to appear personally before the Director.
    (g) There is no right to appeal any interlocutory ruling by the ALJ.
    (h) In reviewing the initial decision, the Director shall not 
consider any objection that was not raised before the ALJ unless a 
demonstration is made of extraordinary circumstances causing the failure 
to raise the objection.
    (i) If any party demonstrates to the satisfaction of the Director 
that additional evidence not presented at such hearing is material and 
that there were reasonable grounds for the failure to present such 
evidence at such hearing, the Director shall remand the matter to the 
ALJ for consideration of such additional evidence.
    (j) The Director may affirm, reduce, reverse, compromise, remand, or 
settle any penalty or assessment determined by the ALJ in any initial 
decision.
    (k) The Director shall promptly serve each party to the appeal with 
a copy of the Department's decision and a statement describing the right 
of any person determined to be liable for a civil penalty or assessment 
to seek judicial review.
    (l) Unless a petition for review is filed as provided in 31 U.S.C. 
3805 after a defendant has exhausted all administrative remedies under 
this part and within 60 days after the date on which the Director serves 
the defendant with a copy of the Department's decision, a determination 
that a defendant is liable under Sec. 35.33 of this part is final and is 
not subject to judicial review.



Sec. 35.40  Stays ordered by the Department of Justice.

    If at any time the Attorney General or an Assistant Attorney General 
designated by the Attorney General transmits to the Secretary a written 
finding that continuation of the administrative process described in 
this part with respect to a claim or statement may adversely affect any 
pending or potential criminal or civil action related to

[[Page 510]]

such claim or statement, the Secretary shall stay the process 
immediately. The Secretary may order the process resumed only upon 
receipt of the written authorization of the Attorney General.



Sec. 35.41  Stay pending appeal.

    (a) An initial decision is stayed automatically pending disposition 
of a motion for reconsideration or of an appeal to the Secretary.
    (b) No administrative stay is available following a final decision 
of the Secretary.



Sec. 35.42  Judicial review.

    Section 3805 of title 31, U.S. Code, authorizes judicial review by 
an appropriate U.S. District Court of a final decision of the Secretary 
imposing penalties or assessment under this part and specifies the 
procedures for such review.



Sec. 35.43  Collection of civil penalties and assessments.

    Sections 3806 and 3808(b) of title 31, U.S. Code, authorize actions 
for collection of civil penalties and assessments imposed under this 
part and specify the procedures for such actions.



Sec. 35.44  Right to administrative offset.

    The amount of any penalty or assessment which has become final, or 
for which a judgment has been entered under Sec. 35.42 or Sec. 35.43, or 
any amount agreed upon in a compromise or settlement under Sec. 35.46 of 
this part, may be collected by administrative offset under 31 U.S.C. 
3716, except that an administrative offset may not be made under this 
section against a refund of an overpayment of Federal taxes, then or 
later owing by the United States to the defendant.



Sec. 35.45  Deposit in Treasury of United States.

    All amounts collected pursuant to this part shall be deposited as 
miscellaneous receipts in the Treasury of the United States, except as 
provided in 31 U.S.C. 3806(g).



Sec. 35.46  Compromise or settlement.

    (a) Parties may make offers of compromise or settlement at any time.
    (b) The reviewing official has the exclusive authority to compromise 
or settle a case under this part at any time after the date on which the 
reviewing official is permitted to issue a complaint and before the date 
on which the ALJ issues an initial decision.
    (c) The Secretary has exclusive authority to compromise or settle a 
case under this part at any time after the date on which the ALJ issues 
an initial decision, except during the pendency of any review under 
Sec. 35.42 or during the pendency of any action to collect penalties and 
assessments under Sec. 35.43 of this part.
    (d) The Attorney General has exclusive authority to compromise or 
settle a case under this part during the pendency of any review under 
Sec. 35.42 of this part or of any action to recover penalties and 
assessments under 31 U.S.C. 3806.
    (e) The investigating official may recommend settlement terms to the 
reviewing official, the Secretary, or the Attorney General, as 
appropriate. The reviewing official may recommend settlement terms to 
the Secretary, or the Attorney General, as appropriate.
    (f) Any compromise or settlement must be in writing.



Sec. 35.47  Limitations.

    (a) The notice of hearing with respect to a claim or statement must 
be served in the manner specified in Sec. 35.8 of this part within 6 
years after the date on which such claim or statement is made.
    (b) If the defendant fails to file a timely answer, service of a 
notice under Sec. 35.10(b) of this part shall be deemed a notice of 
hearing for purposes of this section.
    (c) The statute of limitations may be extended by agreement of the 
parties.



PART 36--TRANSPORTATION AND UTILITY SYSTEMS IN AND ACROSS, AND ACCESS INTO, CONSERVATION SYSTEM UNITS IN ALASKA--Table of Contents




Sec.
36.1  Applicability and scope.
36.2  Definitions.
36.3  Preapplication.
36.4  Filing of application.

[[Page 511]]

36.5  Application review.
36.6  NEPA compliance and lead agency.
36.7  Decision process.
36.8  Administrative appeals.
36.9  Issuing permit.
36.10  Access to inholdings.
36.11  Special access.
36.12  Temporary access.
36.13  Special provisions.

    Authority: 16 U.S.C. 1, 3, 668dd et seq., and 3101 et seq.; 43 
U.S.C. 1201.

    Source: 51 FR 31629, Sept. 4, 1986, unless otherwise noted.



Sec. 36.1  Applicability and scope.

    (a) The regulations in this part apply to any application for access 
in the following forms within any conservation system unit (CSU), 
national recreation area or national conservation area within the State 
of Alaska which is administered by the Bureau of Land Management (BLM), 
Fish and Wildlife Service (FWS) or National Park Service (NPS):
    (1) A transportation or utility system (TUS) is any portion of the 
route of the system within any of the aforementioned areas and the 
system is not one which the Department or agency having jurisdiction 
over the unit or area is establishing incident to its management of the 
unit or area;
    (2) Access to inholdings within these areas, as well as within 
public lands administered by the BLM designated as wilderness study 
areas;
    (3) Special access within these areas, as well as within public 
lands administered by the BLM designated as wilderness study areas;
    (4) Temporary access within the aforementioned areas, as well as the 
National Petroleum Reserve in Alaska and public lands administered by 
the BLM designated as wilderness study areas or managed to maintain the 
wilderness character or potential thereof.
    (b) Except as specifically provided in this part, applicable law 
shall apply with respect to the authorization and administration of 
TUSs.



Sec. 36.2  Definitions.

    As used in this part, the term:
    (a) ANILCA means the Alaska National Interest Lands Conservation Act 
(94 Stat. 2371; Pub. L. 96-487).
    (b) Applicable law means a law or regulation of general 
applicability, other than title XI of ANILCA, under which a Federal 
department or agency has jurisdiction to grant an authorization 
(including but not limited to, a right-of-way permit, license, lease or 
certificate) without which a TUS cannot, in whole or in part, be 
established or operated.
    (c) Applicant means an individual, partnership, corporation, 
association or other business entity, and a Federal, State or local 
government entity including a municipal corporation submitting an 
application under this part.
    (d) Appropriate Federal agency means a Federal agency (or the agency 
official to whom the authority has been delegated) that has jurisdiction 
to grant any authorization without which a TUS cannot, in whole or in 
part, be established or operated.
    (e) Area means a CSU, National Recreation Area, or National 
Conservation Area in Alaska administered by the NPS, the FWS or the BLM.
    (f) Compatible with the purposes for which the unit was established 
means that the system will not significantly interfere with or detract 
from the purposes for which the area was established.
    (g) Conservation System Unit (CSU) means any unit in Alaska of the 
National Park System, National Wildlife Refuge System, National Wild and 
Scenic Rivers System, National Trails System or the National Wilderness 
Preservation System administered by the NPS, the FWS or the BLM.
    (h) Economically feasible and prudent alternative route means a 
route either within or outside an area that is based on sound 
engineering practices and is economically practicable, but does not 
necessarily mean the least costly alternative route.
    (i) Improved right-of-ways means routes which are of a permanent 
nature and would involve substantial alteration of the terrain or 
vegetation such as grading and graveling of surfaces or other such 
construction. Trail right-of-ways which are annually or periodically 
marked, brushed, or broken for off-road vehicles are excluded.
    (j) Incident to its management of the unit or area means a type of 
TUS which is used directly or indirectly in support of authorized 
activities, and which is

[[Page 512]]

built by or for the Federal agency which has jurisdiction over the area.
    (k) Other system of general transportation means private and 
commercial transportation of passengers and/or shipment of goods or 
materials.
    (l) Public values means those values relating to the purposes for 
which the area was established as defined by the enabling legislation 
for the area.
    (m) Related structures and facilities means those structures, 
facilities and right-of-ways which are reasonably and minimally 
necessary for the construction, operation and maintenance of a TUS, and 
which are listed as part of the TUS on the consolidated application 
form, Standard Form 299, ``Application for Transportation and Utility 
Systems and Facilities on Federal Lands'' (SF 299).
    (n) Right-of-way permit means a right-of-way permit, lease, license, 
certificate or other authorization for all or part of a TUS in an area.
    (o) Secretary means the Secretary of the Interior.
    (p) Transportation or utility system (TUS) means any of the systems 
listed in paragraphs (p) (1) through (7) of this section, if a portion 
of the route of the system will be within an area and the system is not 
one that the Department or agency having jurisdiction over the area is 
establishing incident to its management of the area. The systems shall 
include related structures and facilities.
    (1) Canals, ditches, flumes, laterals, pipes, pipelines, tunnels and 
other systems for the transportation of water.
    (2) Pipelines and other systems for the transportation of liquids 
other than water, including oil, natural gas, synthetic liquid and 
gaseous fuels and any refined product produced therefrom.
    (3) Pipelines, slurry and emulsion systems and conveyor belts for 
the transportation of solid materials.
    (4) Systems for the transmission and distribution of electric 
energy.
    (5) Systems for transmission or reception of radio, television, 
telephone, telegraph and other electronic signals and other means of 
communication.
    (6) Improved rights-of-way for snowmachines, air cushion vehicles 
and other all-terrain vehicles.
    (7) Roads, highways, railroads, tunnels, tramways, airports, landing 
strips, docks and other systems of general transportation.

[51 FR 31629, Sept. 4, 1986, as amended at 62 FR 52510, Oct. 8, 1997]



Sec. 36.3  Preapplication.

    (a) Anyone interested in obtaining approval of a TUS is encouraged 
to establish early contact with each appropriate Federal agency so that 
filing procedures and details may be discussed, resource concerns and 
potential constraints may be identified, the proposal may be considered 
in agency planning, preapplication activities may be discussed and 
processing of an application may be tentatively scheduled.
    (b) Reasonable preapplication activities in areas shall be permitted 
following a determination by the appropriate Federal agency that the 
activities are necessary to obtain information for filing the SF 299, 
that the activities would not cause significant or permanent damage to 
the values for which the area was established or unreasonably interfere 
with other authorized uses or activities and that it would not 
significantly restrict subsistence uses. In areas administered by the 
NPS or the FWS, a permit shall be obtained from the appropriate agency 
prior to engaging in any preapplication activities. Prior to approval 
and issuance of such a permit, the appropriate Federal agencies must 
find that the proposed preapplication activity is compatible with the 
purposes for which the area was established.



Sec. 36.4  Filing of application.

    (a) A SF 299, which may be obtained from an appropriate Federal 
agency, shall be completed by the applicant according to the 
instructions on the form. The form shall be filed on the same day 
(except in compliance with paragraph (c) of this section) with each 
appropriate Federal agency from which an authorization, such as a 
permit, license, lease or certificate is required for the TUS. Filing 
with any appropriate Interior agency in Alaska shall be considered to be 
a filing with all of its agencies. Any filing fee required by

[[Page 513]]

the appropriate Federal agency pursuant to applicable law must be paid 
at the time of filing.
    (b) Prior to filing the SF 299, the applicant shall determine 
whether additional information to that requested on the form is required 
by the appropriate Federal agencies. If so, the applicant shall file the 
additional information as an attachment to the SF 299.
    (c) When, because of separate filing points, an applicant is not 
able to file with each appropriate Federal agency on the same day, the 
applicant shall file all applications as soon as possible. All 
applications must be filed within a 15 calendar day period. For purposes 
of the time requirements provided for in this part, the application 
shall not be considered to have been filed until the last appropriate 
Federal agency receives the application. The lead agency, determined 
pursuant to Sec. 36.5(a), shall determine the date of filing or that the 
application was not filed within the 15 day period and inform all 
appropriate Federal agencies.
    (d) The information collection requirements contained in these 
regulations have been approved by the Office of Management and Budget 
under 44 U.S.C. 3501 et seq. and assigned clearance numbers 1024-0026 
and 1004-0060. The information collected by the appropriate Federal 
agency will be used to determine whether or not to issue a permit to 
obtain a benefit. A response is required to obtain or retain a benefit.



Sec. 36.5  Application review.

    (a) When there is more than one appropriate Federal agency, the 
Federal agency having management jurisdiction over the longest lineal 
portion of the right-of-way requested in the TUS application shall be 
the lead agency for the purpose of coordinating appropriate Federal 
agency actions in the review and processing of the SF 299, as well as 
for the purpose of compliance with the provisions of the National 
Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq.
    (1) By agreement among the appropriate Federal agencies, a different 
Federal agency may be designated the lead agency for any or all parts of 
the review, processing or NEPA compliance.
    (2) Upon identification of the lead agency, other involved agencies 
will provide assistance as requested by the lead agency.
    (b) Upon receipt of an application, the lead agency will review it 
and determine the filing date pursuant to Sec. 36.4. If it is determined 
that the applicant has not met the 15 calendar day filing deadline, 
pursuant to Sec. 36.4(c) of this part, the lead agency shall notify each 
appropriate Federal agency to return the application to the applicant 
without further action.
    (c) Within 60 days of the date of filing, each appropriate Federal 
agency shall inform the applicant and the lead agency, in writing, 
whether the application on its face:
    (1) Contains the required information; or
    (2) Is insufficient, together with a specific listing of the 
additional information the applicant must submit.
    (d) When the application is insufficient, the applicant must furnish 
the specific information requested within 30 days of receipt of 
notification of deficiency:
    (1) If the applicant needs more time to obtain information, 
additional time may be granted by the appropriate Federal agency upon 
request of the applicant, provided the applicant agrees that the 
application filing date will change to the date of filing of the 
specific additional information.
    (2) Unless extended pursuant to the provisions of paragraph (d)(1) 
of this section, failure of the applicant to respond within the 30 day 
period will result in return of the application without further action.
    (3) The lead agency shall keep all appropriate Federal agencies 
informed of actions occurring under paragraphs (d) (1) and (2) of this 
section, in order that such agencies may note their application records 
accordingly.
    (e) Within 30 days of the receipt of additional information 
requested by the appropriate Federal agency, the applicant shall be 
notified in writing whether the supplemental information is sufficient.

[[Page 514]]

    (1) If the applicant fails to provide all the requested information, 
the application shall be rejected and returned to the applicant along 
with a list of the specific deficiencies.
    (2) When the applicant furnishes the additional information, the 
application will be reinstated, and it will be considered filed as of 
the date the final supplemental information is actually received by the 
appropriate Federal agency.
    (3) The lead agency shall notify appropriate Federal agencies of any 
final rejection under paragraph (e)(1) of this section.



Sec. 36.6  NEPA compliance and lead agency.

    (a) The provisions of NEPA and the Council for Environmental Quality 
regulations (40 CFR parts 1500-1508) will be applied to determine 
whether an Environmental Assessment (EA) or an Environmental Impact 
Statement (EIS) is required, or that a categorical exclusion applies.
    (1) The lead agency, with cooperation of all appropriate Federal 
agencies, shall complete an EA or a draft environmental impact statement 
(DEIS) within nine months of the date the SF 299 was filed.
    (2) If the lead agency determines, for good cause, that the nine-
month period is insufficient, it may extend such period for a reasonable 
specific time. Notification of the extension, together with the reasons 
therefore, shall be provided to the applicant and published in the 
Federal Register at least 30 days prior to the end of the nine-month 
period.
    (3) If the lead agency determines that an EIS is not required, a 
Finding of No Significant Impact (FONSI) will be prepared.
    (4) If an EIS is determined to be necessary, the lead agency shall 
hold a public hearing on the joint DEIS in Washington, DC, and at least 
one location in Alaska.
    (5) The appropriate Federal agencies shall solicit and consider the 
views of other Federal departments and agencies, the Alaska Land Use 
Council, the State, affected units of local government in the State and 
affected corporations formed pursuant to the Alaska Native Claims 
Settlement Act. After public notice, the agencies shall receive and 
consider statements and recommendations regarding the application 
submitted by interested individuals and organizations.
    (6) The lead agency shall ensure compliance with section 810 of 
ANILCA.
    (b) When an EIS is determined to be necessary, within three months 
of completing the DEIS or within one year of the filing of the 
application, whichever is later, the lead agency shall complete the EIS 
and publish a notice of its availability in the Federal Register.
    (c) Cost reimbursement. (1) The costs to the United States of 
application processing, other than costs for EIS preparation and review 
as provided in paragraph (c)(2) of this section, shall be reimbursed by 
the applicant, if such reimbursement is required pursuant to the 
applicable law and procedures of the appropriate Federal agency 
incurring the costs.
    (2) The reasonable administrative and other costs of EIS preparation 
shall be reimbursed by the applicant, according to the BLM's cost 
recovery procedures and regulations implementing section 304 of FLPMA, 
43 U.S.C. 1734.



Sec. 36.7  Decision process.

    There are two separate decision processes. The first is used when 
the appropriate Federal agencies have an applicable law to issue a 
right-of-way permit and the area involved is outside the National 
Wilderness Preservation System. The second is used when an area involved 
in the application is within the National Wilderness Preservation System 
or an appropriate Federal agency has no applicable law with respect to 
issuing a right-of-way permit across all or any area covered by a TUS 
application.
    (a) When the appropriate Federal agencies have an applicable law and 
the area involved is outside the National Wilderness Preservation 
System:
    (1) Within four months of the date of the notice of availability of 
a FONSI or final EIS, each appropriate Federal agency shall make a 
decision based on applicable law to approve or disapprove

[[Page 515]]

the TUS and so notify the applicant in writing.
    (2) Each appropriate Federal agency in making its decision shall 
consider and make detailed findings supported by substantial evidence as 
to the portion of the TUS, within that agency's jurisdiction, with 
respect to:
    (i) The need for and economic feasibility of the TUS;
    (ii) Alternative routes and modes of access, including a 
determination with respect to whether there is any economically feasible 
and prudent alternative to routing the system through or within an area 
and, if not, whether there are alternate routes or modes which would 
result in fewer or less severe adverse impacts upon the area;
    (iii) The feasibility and impacts of including different TUSs in the 
same area;
    (iv) Short and long term social, economic and environmental impacts 
of national, State or local significance, including impacts on fish and 
wildlife and their habitat and on rural, traditional lifestyles;
    (v) The impacts, if any, on the national security interests of the 
United States, that may result from approval or denial of the 
application for the TUS;
    (vi) Any impacts that would affect the purposes for which the 
Federal unit or area concerned was established;
    (vii) Measures which should be instituted to avoid or minimize 
negative impacts;
    (viii) The short and long term public values which may be adversely 
affected by approval of the TUS versus the short and long term public 
benefits which may accrue from such approval; and
    (ix) Impacts, if any, on subsistence uses.
    (3) To the extent the appropriate Federal agencies agree, the 
decisions may be developed jointly, singularly or in some combination 
thereof.
    (4) If an appropriate Federal agency disapproves any portion of the 
TUS, the application in its entirety is disapproved and the applicant 
may file an administrative appeal pursuant to section 1106(a) of ANILCA.
    (b) When an area involved is within the National Wilderness 
Preservation System or an appropriate Federal agency has no applicable 
law with respect to granting all or any part of a TUS application:
    (1) Within four months of the date of publication of the notice of 
the availability of the final EIS or FONSI, each appropriate Federal 
agency shall determine whether to tentatively approve or disapprove each 
right-of-way permit within its jurisdiction that applies with respect to 
the TUS and the Secretary of the Interior shall make notification 
pursuant to section 1106(b) of ANILCA.
    (i) The Federal agency having jurisdiction over a portion of a TUS 
for which there is no applicable law shall recommend approval of that 
portion of the TUS if it is determined that:
    (A) Such system would be compatible with the purposes for which the 
area was established; and
    (B) There is no economically feasible and prudent alternate route 
for the system.
    (ii) If there is applicable law for a portion of the TUS which is 
outside the National Wilderness Preservation System, the applicable law 
shall be applied in making the determination to approve or disapprove 
that portion of the TUS.
    (2) The notification shall be accompanied by a statement of the 
reasons and findings supporting each appropriate Federal agency's 
position. The findings shall include, but not be limited to, the 
findings required in paragraph (a)(2) of this section. The notification 
shall also be accompanied by the final EIS, the EA or statement that a 
categorical exclusion applies and any comments of the public and other 
Federal agencies.



Sec. 36.8  Administrative appeals.

    (a) If any appropriate Federal agency disapproves a TUS application 
pursuant to Sec. 36.7(a), the applicant may appeal the denial pursuant 
to section 1106(a) of ANILCA.
    (b) There is no administrative appeal for a denial issued under the 
provisions of Sec. 36.7(b).



Sec. 36.9  Issuing permit.

    (a) Once an application is approved under the provisions of 
Sec. 36.7(a), a

[[Page 516]]

right-of-way permit will be issued by the appropriate Federal agency or 
agencies, according to that agency's authorizing statutes and 
regulations or, if approved pursuant to the provisions of Sec. 36.7(b), 
according to the provisions of title V of the the Federal Land Policy 
Management Act of 1976 (43 U.S.C. 1701) or other applicable law. The 
permit shall not be issued until all fees and other charges have been 
paid in accordance with applicable law.
    (b) All TUS right-of-way permits shall include, but not be limited 
to, the following terms and conditions:
    (1) Requirements to ensure that to the maximum extent feasible, the 
right-of-way is used in a manner compatible with the purposes for which 
the affected area was established or is managed;
    (2) Requirements for restoration, revegetation and curtailment of 
erosion of the surface of the land;
    (3) Requirements to ensure that activities in connection with the 
right-of-way will not violate applicable air and water quality standards 
and related facility siting standards established pursuant to law;
    (4) Requirements, including the minimum necessary width, designed to 
control or prevent:
    (i) Damage to the environment (including damage to fish and wildlife 
habitat);
    (ii) Damage to public or private property; and
    (iii) Hazards to public health and safety.
    (5) Requirements to protect the interests of individuals living in 
the general area of the right-of-way permit who rely on the fish, 
wildlife and biotic resources of the area for subsistence purposes; and
    (6) Requirements to employ measures to avoid or minimize adverse 
environmental, social or economic impacts.
    (c) Any TUS approved pursuant to this part which occupies, uses or 
traverses any area within the boundaries of a unit of the National Wild 
and Scenic Rivers System shall be subject to such conditions as may be 
necessary to assure that the stream flow of, and transportation on, such 
river are not interfered with or impeded and that the TUS is located and 
constructed in an environmentally sound manner.
    (d) In the case of a pipeline described in section 28(a) of the 
Mineral Leasing Act of 1920, a right-of-way permit issued pursuant to 
this part shall be issued in the same manner as a right-of-way is 
granted under section 28, and the provisions of subsections (c) through 
(j), (1) through (q), and (u) through (y) of section 28 shall apply to 
right-of-way permits issued pursuant to this part.



Sec. 36.10  Access to inholdings.

    (a) This section sets forth the procedures to provide adequate and 
feasible access to inholdings within areas in accordance with section 
1110(b) of ANILCA. As used in this section, the term:
    (1) Adequate and feasible access means a route and method of access 
that is shown to be reasonably necessary and economically practicable 
but not necessarily the least costly alternative for achieving the use 
and development by the applicant on the applicant's nonfederal land or 
occupancy interest.
    (2) Area also includes public lands administered by the BLM 
designated as wilderness study areas.
    (3) Effectively surrounded by means that physical barriers prevent 
adequate and feasible access to State or private lands or valid 
interests in lands except across an area(s). Physical barriers include 
but are not limited to rugged mountain terrain, extensive marsh areas, 
shallow water depths and the presence of ice for large periods of the 
year.
    (4) Inholding means State-owned or privately owned land, including 
subsurface rights of such owners underlying public lands or a valid 
mining claim or other valid occupancy that is within or is effectively 
surrounded by one or more areas.
    (b) It is the purpose of this section to ensure adequate and 
feasible access across areas for any person who has a valid inholding. A 
right-of-way permit for access to an inholding pursuant to this section 
is required only when this part does not provide for adequate and 
feasible access without a right-of-way permit.

[[Page 517]]

    (c) Applications for a right-of-way permit for access to an 
inholding shall be filed with the appropriate Federal agency on a SF 
299. Mining claimants who have acquired their rights under the General 
Mining Law of 1872 may file their request for access as a part of their 
plan of operations. The appropriate Federal agency may require the 
mining claimant applicant to file a SF 299, if in its discretion, it 
determines that more complete information is needed. Applicants should 
ensure that the following information is provided:
    (1) Documentation of the property interest held by the applicant 
including, for claimants under the General Mining Law of 1872, as 
amended (30 U.S.C. 21-54), a copy of the location notice and 
recordations required by 43 U.S.C. 1744;
    (2) A detailed description of the use of the inholding for which the 
applied for right-of-way permit is to serve; and
    (3) If applicable, rationale demonstrating that the inholding is 
effectively surrounded by an area(s).
    (d) The application shall be filed in the same manner as under 
Sec. 36.4 and shall be reviewed and processed in accordance with 
Secs. 36.5 and 36.6.
    (e)(1) For any applicant who meets the criteria of paragraph (b) of 
this section, the appropriate Federal agency shall specify in a right-
of-way permit the route(s) and method(s) of access across the area(s) 
desired by the applicant, unless it is determined that:
    (i) The route or method of access would cause significant adverse 
impacts on natural or other values of the area and adequate and feasible 
access otherwise exists; or
    (ii) The route or method of access would jeopardize public health 
and safety and adequate and feasible access otherwise exists; or
    (iii) The route or method is inconsistent with the management 
plan(s) for the area or purposes for which the area was established and 
adequate and feasible access otherwise exists; or
    (iv) The method is unnecessary to accomplish the applicant's land 
use objective.
    (2) If the appropriate Federal agency makes one of the findings 
described in paragraph (e)(1) of this section, another alternate 
route(s) and/or method(s) of access that will provide the applicant 
adequate and feasible access shall be specified by that Federal agency 
in the right-of-way permit after consultation with the applicant.
    (f) All right-of-way permits issued pursuant to this section shall 
be subject to terms and conditions in the same manner as right-of-way 
permits issued pursuant to Sec. 36.9.
    (g) The decision by the appropriate Federal agency under this 
section is the final administrative decision.



Sec. 36.11  Special access.

    (a) This section implements the provisions of section 1110(a) of 
ANILCA regarding use of snowmachines, motorboats, nonmotorized surface 
transportation, aircraft, as well as off-road vehicle use.

As used in this section, the term:
    (1) Area also includes public lands administered by the BLM and 
designated as wilderness study areas.
    (2) Adequate snow cover shall mean snow of sufficient depth, 
generally 6-12 inches or more, or a combination of snow and frost depth 
sufficient to protect the underlying vegetation and soil.
    (b) Nothing in this section affects the use of snowmobiles, 
motorboats and nonmotorized means of surface transportation 
traditionally used by rural residents engaged in subsistence activities, 
as defined in Tile VIII of ANILCA.
    (c) The use of snowmachines (during periods of adquate snow cover 
and frozen river conditions) for traditional activities (where such 
activities are permitted by ANILCA or other law) and for travel to and 
from villages and homesites and other valid occupancies is permitted 
within the areas, except where such use is prohibited or otherwise 
restricted by the appropriate Federal agency in accordance with the 
procedures of paragraph (h) of this section.
    (d) Motorboats may be operated on all area waters, except where such 
use is prohibited or otherwise restricted by the appropriate Federal 
agency in accordance with the procedures of paragraph (h) of this 
section.
    (e) The use of nonmotorized surface transportation such as domestic 
dogs, horses and other pack or saddle animals is permitted in areas 
except

[[Page 518]]

where such use is prohibited or otherwise restricted by the appropriate 
Federal agency in accordance with the procedures of paragraph (h) of 
this section.
    (f) Aircraft. (1) Fixed-wing aircraft may be landed and operated on 
lands and waters within areas, except where such use is prohibited or 
otherwise restricted by the appropriate Federal agency, including 
closures or restrictions pursuant to the closures of paragraph (h) of 
this section. The use of aircraft for access to or from lands and waters 
within a national park or monument for purposes of taking fish and 
wildlife for subsistence uses therein is prohibited, except as provided 
in 36 CFR 13.45. The operation of aircraft resulting in the harassment 
of wildlife is prohibited.
    (2) In imposing any prohibitions or restrictions on fixed-wing 
aircraft use the appropriate Federal agency shall:
    (i) Publish notice of prohibition or restrictions in ``Notices to 
Airmen'' issued by the Department of Transportation; and
    (ii) Publish permanent prohibitions or restrictions as a regulatory 
notice in the United States Flight Information Service ``Supplement 
Alaska.''
    (3) Except as provided in paragraph (f)(3)(i) of this section, the 
owners of any aircraft downed after December 2, 1980, shall remove the 
aircraft and all component parts thereof in accordance with procedures 
established by the appropriate Federal agency. In establishing a removal 
procedure, the appropriate Federal agency is authorized to establish a 
reasonable date by which aircraft removal operations must be complete 
and determine times and means of access to and from the downed aircraft.
    (i) The appropriate Federal agency may waive the requirements of 
this paragraph upon a determination that the removal of downed aircraft 
would constitute an unacceptable risk to human life, or the removal of a 
downed aircraft would result in extensive resource damage, or the 
removal of a downed aircraft is otherwise impracticable or impossible.
    (ii) Salvaging, removing, possessing or attempting to salvage, 
remove or possess any downed aircraft or component parts thereof is 
prohibited, except in accordance with a removal procedure established 
under this paragraph and as may be controlled by the other laws and 
regulations.
    (4) The use of a helicopter in any area other than at designated 
landing areas pursuant to the terms and conditions of a permit issued by 
the appropriate Federal agency, or pursuant to a memorandum of 
understanding between the appropriate Federal agency and another party, 
or involved in emergency or search and rescue operations is prohibited.
    (g) Off-road vehicles. (1) The use of off-road vehicles (ORV) in 
locations other than established roads and parking areas is prohibited, 
except on routes or in areas designated by the appropriate Federal 
agency in accordance with Executive Order 11644, as amended or pursuant 
to a valid permit as prescribed in paragraph (g)(2) of this section or 
in Sec. 36.10 or Sec. 36.12.
    (2) The appropriate Federal agency is authorized to issue permits 
for the use of ORVs on existing ORV trails located in areas (other than 
in areas designated as part of the National Wilderness Preservation 
System) upon a finding that such ORV use would be compatible with the 
purposes and values for which the area was established. The appropriate 
Federal agency shall include in any permit such stipulations and 
conditions as are necessary for the protection of those purposes and 
values.
    (h) Closure procedures. (1) The appropriate Federal agency may close 
an area on a temporary or permanent basis to use of aircraft, 
snowmachines, motorboats or nonmotorized surface transportation only 
upon a finding by the agency that such use would be detrimental to the 
resource values of the area.
    (2) Temporary closures. (i) Temporary closures shall not be 
effective prior to notice and hearing in the vicinity of the area(s) 
directly affected by such closures and other locations as appropriate.
    (ii) A temporary closure shall not exceed 12 months.
    (3) Permanent closures shall be published by rulemaking in the 
Federal Register with a minimum public comment period of 60 days and 
shall not be

[[Page 519]]

effective until after a public hearing(s) is held in the affected 
vicinity and other locations as deemed appropriate by the appropriate 
Federal agency.
    (4) Temporary and permanent closures shall be: (i) Published at 
least once in a newspaper of general circulation in Alaska and in a 
local newspaper, if available; posted at community post offices within 
the vicinity affected; made available for broadcast on local radio 
stations in a manner reasonably calculated to inform residents in the 
affected vicinity; and designated on a map which shall be available for 
public inspection at the office of the appropriate Federal agency and 
other places convenient to the public; or
    (ii) Designated by posting the area with appropriate signs; or
    (iii) Both.
    (5) In determining whether to open an area that has previously been 
closed pursuant to the provisions of this section, the appropriate 
Federal agency shall provide notice in the Federal Register and shall, 
upon request, hold a hearing in the affected vicinity and other 
locations as appropriate prior to making a final determination.
    (6) Nothing in this section shall limit the authority of the 
appropriate Federal agency to restrict or limit uses of an area under 
other statutory authority.
    (i) Except as otherwise specifically permitted under the provisions 
of this section, entry into closed areas or failure to abide by 
restrictions established under this section is prohibited.
    (j) Any person convicted of violating any provision of the 
regulations contained in this section, or as the same may be amended or 
supplemented, may be punished by a fine or by imprisonment in accordance 
with the penalty provisions applicable to the area.

[51 FR 31629, Sept. 4, 1986; 51 FR 36011, Oct. 8, 1986]



Sec. 36.12  Temporary access.

    (a) For the purposes of this section, the term:
    (1) Area also includes public lands administered by the BLM 
designated as wilderness study areas or managed to maintain the 
wilderness character or potential thereof, and the National Petroleum 
Reserve--Alaska.
    (2) Temporary access means limited, short-term (i.e., up to one year 
from issuance of the permit) access which does not require permanent 
facilities for access to State or private lands.
    (b) This section is applicable to State and private landowners who 
desire temporary access across an area for the purposes of survey, 
geophysical, exploratory and other temporary uses of such non-federal 
lands, and where such temporary access is not affirmatively provided for 
in Secs. 36.10 and 36.11. State and private landowners meeting the 
criteria of Sec. 36.10(b) are directed to use the procedures of 
Sec. 36.10 to obtain temporary access.
    (c) A landowner requiring temporary access across an area for 
survey, geophysical, exploratory or similar temporary activities shall 
apply to the appropriate Federal agency for an access permit by 
providing the relevant information requested in the SF 299.
    (d) The appropriate Federal agency shall grant the desired temporary 
access whenever it is determined, after compliance with the requirements 
of NEPA, that such access will not result in permanent harm to the 
area's resources. The area manager shall include in any permit granted 
such stipulations and conditions on temporary access as are necessary to 
ensure that the access granted would not be inconsistent with the 
purposes for which the area was established and to ensure that no 
permanent harm will result to the area's resources and section 810 of 
ANILCA is complied with.



Sec. 36.13  Special provisions.

    (a) Gates of the Arctic National Park and Preserve. (1) Access for 
surface transportation purposes across Gates of the Arctic National Park 
and Preserve (from the Ambler Mining District to the Alaska Pipeline 
Haul Road (Dalton Highway)) shall be permitted in accordance with the 
provisions of this section.
    (2) Upon the filing of an application in accordance with Sec. 36.4 
for a right-of-way across the western (Kobuk River) unit of the 
preserve, including the Kobuk Wild River, the Secretary shall give 
notice in the Federal Register,

[[Page 520]]

and other such notice as may be appropriate, of a 30 day period for 
other applicants to apply for access. The original application and any 
additional applications received during the 30 day period will be 
reviewed in accordance with Sec. 36.5.
    (3) The Secretary and the Secretary of Transportation shall jointly 
prepare an environmental and economic analysis solely for the purpose of 
determining the most desirable route for the right-of-way and terms and 
conditions which may be required for the issuance of that right-of-way. 
This analysis shall be completed within one year and the draft thereof 
within nine months of the receipt of the application and shall be 
prepared in lieu of an EIS which would otherwise be required under 
section 102(2)(C) of NEPA. This analysis shall be deemed to satisfy all 
requirements of that Act and shall not be subject to judicial review. 
This analysis shall be prepared in accordance with the procedural 
requirements of Sec. 36.6.
    (4) The Secretaries, in preparing this analysis, shall consider the 
following:
    (i) Alternate routes including the consideration of economically 
feasible and prudent alternate routes across the preserve which would 
result in fewer, or less severe, adverse impacts upon the preserve.
    (ii) The environmental, social and economic impacts of the right-of-
way including impacts upon wildlife, fish, and their habitat, and rural 
and traditional lifestyles including subsistence activities and measures 
which should be instituted to avoid or minimize negative impacts and 
enhance positive impacts.
    (5) Within 60 days of the completion of the enviornmental and 
economic analysis, the Secretaries shall jointly agree upon a route for 
issuance of the right-of-way across the preserve. Such right-of-way 
shall be issued in accordance with the provisions of Sec. 36.9.
    (b) Yukon-Charley Rivers National Preserve. (1) Any application 
filed by Doyon, Limited, for a right-of-way to provide access in a 
southerly direction across the Yukon River from its landholdings in the 
watersheds of the Kandik and Nation Rivers shall be processed in 
accordance with this part.
    (2) No right-of-way shall be granted which would cross the Charley 
River or which would involve any lands within the watershed of the 
Charley River.
    (3) An application shall be approved by the appropriate Federal 
agency if it is determined that there exists no economically feasible or 
otherwise reasonably available alternate route.
    (c) Oil and Gas Pipelines--Arctic Slope Regional Corporation. (1) 
Upon the filing by Arctic Slope Regional Corporation for an oil and gas 
TUS across lands identified in section 1431(j) of ANILCA, the 
appropriate Federal agency shall review the filing, determine the 
alignment and location of facilities across/on Federal lands, and issue 
such authorizations as are necessary with respect to the establishment 
of the TUS.
    (2) No environmental document pursuant to NEPA shall be required.
    (3) Investigations as to the proper final alignment of the pipeline 
and location of related facilities are at the discretion of the Federal 
agency and the costs associated with such investigations are not 
recoverable under Sec. 36.6.
    (d) Forty Mile Component of National Wild and Scenic Rivers System. 
The classification of segments of the Forty Mile Components as Wild 
Rivers shall not preclude access across those river segments where the 
appropriate Federal agency determines such access is necessary to permit 
commercial development of asbestos deposits in the North Fork drainage.

[51 FR 31629, Sept. 4, 1986; 51 FR 36011, Oct. 8, 1986]



PART 37--CAVE MANAGEMENT--Table of Contents




                   Subpart A--Cave Management--General

Sec.
37.1  Purpose.
37.2  Policy.
37.3  Authority.
37.4  Definitions.
37.5  Collection of information.

                       Subpart B--Cave Designation

37.11  Nomination, evaluation, and designation of significant caves.
37.12  Confidentiality of cave location information.

    Authority: 16 U.S.C. 4301-4309; 43 U.S.C. 1740.

[[Page 521]]


    Source: 58 FR 51554, Oct. 1, 1993, unless otherwise noted.



                   Subpart A--Cave Management--General



Sec. 37.1  Purpose.

    The purpose of this part is to provide the basis for identifying and 
managing significant caves on Federal lands administered by the 
Secretary of the Interior.



Sec. 37.2  Policy.

    It is the policy of the Secretary that Federal lands be managed in a 
manner which, to the extent practical, protects and maintains 
significant caves and cave resources. The type and degree of protection 
will be determined through the agency resource management planning 
process with full public participation.



Sec. 37.3  Authority.

    Section 4 of the Federal Cave Resources Protection Act of 1988 (102 
Stat. 4546; 16 U.S.C. 4301) authorizes the Secretary to issue 
regulations providing for the identification of significant caves. 
Section 5 authorizes the Secretary to withhold information concerning 
the location of significant caves under certain circumstances.



Sec. 37.4  Definitions.

    (a) Authorized officer means the agency employee delegated the 
authority to perform the duties described in this part.
    (b) Cave means any naturally occurring void, cavity, recess, or 
system of interconnected passages beneath the surface of the earth or 
within a cliff or ledge, including any cave resource therein, and which 
is large enough to permit a person to enter, whether the entrance is 
excavated or naturally formed. Such term shall include any natural pit, 
sinkhole, or other feature that is an extension of a cave entrance or 
which is an integral part of the cave.
    (c) Cave resources means any materials or substances occurring in 
caves on Federal lands, including, but not limited to, biotic, cultural, 
mineralogic, paleontologic, geologic, and hydrologic resources.
    (d) Federal lands, as defined in the Federal Cave Resources 
Protection Act, means lands the fee title to which is owned by the 
United States and administered by the Secretary of the Interior.
    (e) Secretary means the Secretary of the Interior.
    (f) Significant cave means a cave located on Federal lands that has 
been determined to meet the criteria in Sec. 37.11(c).



Sec. 37.5  Collection of information.

    (a) The collections of information contained in this part have been 
approved by the Office of Management and Budget under 44 U.S.C. 3501 et 
seq. and assigned clearance numbers 1004-0165 (cave nominations) and 
1004-0166 (confidential information). The information provided for the 
cave nominations will be used to determine which caves will be listed as 
``significant'' and the information in the requests to obtain 
confidential cave information will be used to decide whether to grant 
access to this information. Response to the call for cave nominations is 
voluntary. No action may be taken against a person for refusing to 
supply the information requested. Response to the information 
requirements for obtaining confidential cave information is required to 
obtain a benefit in accordance with Section 5 of the Federal Cave 
Resources Protection Act of 1988 (102 Stat. 4546; 16 U.S.C. 4301).
    (b) The public reporting burden is estimated to average 3 hours per 
response for the cave nomination and one-half hour per response for the 
confidential cave information request. The estimated response time for 
both of the information burdens includes time for reviewing 
instructions, searching existing data sources, gathering and maintaining 
the data needed, and completing and reviewing the collection of 
information. Send comments regarding this burden estimate or any other 
aspect of this collection of information, including suggestions for 
reducing the burden, to Bureau of Land Management Clearance Officer, WO-
873, Mail

[[Page 522]]

Stop 401 LS, 1849 C Street NW., Washington, DC 20240; and the Office of 
Management and Budget, Paperwork Reduction Project 1004-0165/6, 
Washington, D.C. 20503.



                       Subpart B--Cave Designation



Sec. 37.11  Nomination, evaluation, and designation of significant caves.

    (a) Nominations for initial and subsequent listings. The authorized 
officer will give governmental agencies and the public, including those 
who utilize caves for scientific, educational, and recreational 
purposes, the opportunity to nominate potential significant caves. The 
authorized officer will give public notice, including a notice published 
in the Federal Register, calling for nominations for the initial 
listing, including procedures for preparing and submitting the 
nominations. Nominations for subsequent listings will be accepted from 
governmental agencies and the public by the agency that manages the land 
where the cave is located as new cave discoveries are made or as new 
information becomes available. Nominations not approved for designation 
during the listing process may be resubmitted if better documentation or 
new information becomes available.
    (b) Evaluation for initial and subsequent listings. The evaluation 
of the nominations for significant caves will be carried out in 
consultation with individuals and organizations interested in the 
management and use of cave resources, within the limits imposed by the 
confidentiality provisions of Sec. 37.12 of this part. Nominations will 
be evaluated using the criteria in Sec. 37.11(c).
    (c) Criteria for significant caves. A significant cave on Federal 
lands shall possess one or more of the following features, 
characteristics, or values.
    (1) Biota. The cave provides seasonal or yearlong habitat for 
organisms or animals, or contains species or subspecies of flora or 
fauna that are native to caves, or are sensitive to disturbance, or are 
found on State or Federal sensitive, threatened, or endangered species 
lists.
    (2) Cultural. The cave contains historic properties or 
archaeological resources (as described in 36 CFR 60.4 and 43 CFR 7.3) or 
other features that are included in or eligible for inclusion in the 
National Register of Historic Places because of their research 
importance for history or prehistory, historical associations, or other 
historical or traditional significance.
    (3) Geologic/Mineralogic/Paleontologic. The cave possesses one or 
more of the following features:
    (i) Geologic or mineralogic features that are fragile, or that 
exhibit interesting formation processes, or that are otherwise useful 
for study.
    (ii) Deposits of sediments or features useful for evaluating past 
events.
    (iii) Paleontologic resources with potential to contribute useful 
educational and scientific information.
    (4) Hydrologic. The cave is a part of a hydrologic system or 
contains water that is important to humans, biota, or development of 
cave resources.
    (5) Recreational. The cave provides or could provide recreational 
opportunities or scenic values.
    (6) Educational or Scientific. The cave offers opportunities for 
educational or scientific use; or, the cave is virtually in a pristine 
state, lacking evidence f contemporary human disturbance or impact; or, 
the length, volume, total depth, pit depth, height, or similar 
measurements are notable.
    (d) National Park Service policy. The policy of the National Park 
Service, pursuant to its Organic Act of 1916 (16 U.S.C. 1, et seq.) and 
Management Policies (Chapter 4:20, Dec. 1988), is that all caves are 
afforded protection and will be managed in compliance with approved 
resource management plans. Accordingly, all caves on National Park 
Service-administered lands are deemed to fall within the definition of 
``significant cave.''
    (e) Special management areas. Within special management areas that 
are designated wholly or in part due to cave resources found therein, 
all caves within the so-designated special management area shall be 
determined to be significant.
    (f) Designation and documentation. If the authorized officer 
determines that a cave nominated and evaluated under paragraphs (a) and 
(b) of this section meets one or more of the criteria in paragraph (c), 
the authorized officer

[[Page 523]]

will designate the cave as significant. The authorized officer will 
designate all caves identified in paragraphs (d) and (e) of this section 
to be significant. The authorized officer will notify the nominating 
party of the results of the evaluation and designation. Each agency 
Field Office will retain appropriate documentation for all significant 
caves located within its administrative boundaries. At a minimum, 
documentation shall include a statement of finding signed and dated by 
the authorized officer, and the information used to make the 
determination. This documentation will be retained as a permanent record 
in accordance with the confidentiality provision in Sec. 37.12 of this 
part.
    (g) Decision final. Decisions to designate or not designate a cave 
as significant are made at the sole discretion of the authorized officer 
and are not subject to further administrative review or appeal under 43 
CFR part 4.
    (h) If a cave is determined to be significant, its entire extent, 
including passages not mapped or discovered at the time of the 
determination, is deemed significant. This includes caves that extend 
from lands managed by any Federal agency into lands managed by one or 
more other bureaus or agencies of the Department of the Interior, as 
well as caves initially believed to be separate for which 
interconnecting passages are discovered after significance is 
determined.



Sec. 37.12  Confidentiality of cave location information.

    (a) Information disclosure. No Department of the Interior employee 
shall disclose information that could be used to determine the location 
of any significant cave or cave under consideration for determination, 
unless the authorized officer determines that disclosure will further 
the purposes of the Act and will not create a substantial risk to cave 
resources of harm, theft, or destruction.
    (b) Requesting confidential information. Notwithstanding paragraph 
(a) of this section, the authorized officer may make confidential cave 
information available to a Federal or State governmental agency, bona 
fide educational or research institute, or individual or organization 
assisting the land managing agency with cave management activities. To 
request confidential cave information, such entities shall make a 
written request to the authorized officer that includes the following:
    (1) Name, address, and telephone number of the individual 
responsible for the security of the information received.
    (2) A legal description of the area for which the information is 
sought.
    (3) A statement of the purpose for which the information is sought, 
and
    (4) Written assurances that the requesting party will maintain the 
confidentiality of the information and protect the cave and its 
resources.
    (c) Decision final. Decisions to permit or deny access to 
confidential cave information are made at the sole discretion of the 
authorized officer and are not subject to further administrative review 
or appeal under 5 U.S.C. 552 or 43 CFR parts 2 or 4.



PART 38--PAY OF U.S. PARK POLICE--INTERIM GEOGRAPHIC ADJUSTMENTS--Table of Contents




Sec.
38.1  Definitions.
38.2  Computation of hourly, daily, weekly, and biweekly adjusted rates 
          of pay.
38.3  Administration of adjusted rates of pay.

    Authority: 104 Stat. 1462.

    Source: 56 FR 33719, July 23, 1991, unless otherwise noted.



Sec. 38.1  Definitions.

    In this subpart: Adjusted annual rate of pay means an employee's 
scheduled annual rate of pay multiplied by 1.08 and rounded to the 
nearest whole dollar, counting 50 cents and over as a whole dollar.
    Employee means a U.S. Park Police officer whose official duty 
station is located in an interim geographic adjustment area.
    Interim geographic adjustment area means any of the following 
Consolidated Metropolitan Statistical Areas (CMSAs) as defined by the 
Office of Management and Budget (OMB).
    (1) New York-Northern New Jersey-Long Island, NY-NJ-CT; and

[[Page 524]]

    (2) San Francisco-Oakland-San Jose, CA.
    Official duty station means the duty station for an employee's 
position of record as indicated on his or her most recent notification 
of personnel action.
    Scheduled annual rate of pay means--
    (1) The U.S. Park Police rate of basic pay for the employee's rank 
and step, exclusive of additional pay of any kind;
    (2) A retained rate of pay, where applicable, exclusive of 
additional pay of any kind.



Sec. 38.2  Computation of hourly, daily, weekly, and biweekly adjusted rates of pay.

    When it is necessary to convert the adjusted annual rate of pay to 
an hourly, daily, weekly, or biweekly rate, the following methods apply:
    (a) To derive an hourly rate, divide the adjusted annual rate of pay 
by 2,087 and round to the nearest cent, counting one-half cent and over 
as a whole cent;
    (b) To derive a daily rate, multiply the hourly rate by the number 
of daily hours of service required;
    (c) To derive a weekly or biweekly rate, multiply the hourly rate by 
40 or 80, as the case may be.



Sec. 38.3  Administration of adjusted rates of pay.

    (a) An employee is entitled to be paid the greater of--
    (1) The adjusted annual rate of pay; or
    (2) His or her rate of basic pay (including a local special salary 
rate, where applicable), without regard to any adjustment under this 
section.
    (b) An adjusted rate of pay is considered basic pay for purposes of 
computing:
    (1) Retirement deductions and benefits;
    (2) Life insurance premiums and benefits;
    (3) Premium pay;
    (4) Severance pay;
    (c) When an employee's official duty station is changed from a 
location not in an interim geographic adjustment area to a location in 
an interim geographic adjustment area, payment of the adjusted rate of 
pay begins on the effective date of the change in official duty station.
    (d) An adjusted rate of pay is paid only for those hours for which 
an employee is in a pay status.
    (e) An adjusted rate of pay shall be adjusted as of the effective 
date of any change in the applicable scheduled rate of pay.
    (f) Except as provided in paragraph (g) of this section, entitlement 
to an adjusted rate of pay under this subpart terminates on the date.
    (1) An employee's official duty station is no longer located in an 
interim geographic adjustment area;
    (2) An employee moves to a position not covered;
    (3) An employee separates from Federal service; or
    (4) An employee's local special salary rate exceeds his or her 
adjusted rate of pay.
    (g) In the event of a change in the geographic area covered by a 
CMSA, the effective date of a change in an employee's entitlement to an 
adjusted rate of pay under this subpart shall be the first day of the 
first pay period beginning on or after the date on which a change in the 
definition of a CMSA is made effective.
    (h) Payment of or an increase in, an adjusted rate of pay is not an 
equivalent increase in pay.
    (i) An adjusted rate of pay is included in an employee's ``total 
remuneration,'' and ``straight time rate of pay,'' for the purpose of 
computations under the Fair Labor Standards Act of 1938, as amended.
    (j) Termination of an adjusted rate of pay under paragraph (f) of 
this section is not an adverse action.



PART 41--NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE--Table of Contents




                         Subpart A--Introduction

Sec.
41.100  Purpose and effective date.
41.105  Definitions.
41.110  Remedial and affirmative action and self-evaluation.
41.115  Assurance required.
41.120  Transfers of property.

[[Page 525]]

41.125  Effect of other requirements.
41.130  Effect of employment opportunities.
41.135  Designation of responsible employee and adoption of grievance 
          procedures.
41.140  Dissemination of policy.

                           Subpart B--Coverage

41.200  Application.
41.205  Educational institutions and other entities controlled by 
          religious organizations.
41.210  Military and merchant marine educational institutions.
41.215  Membership practices of certain organizations.
41.220  Admissions.
41.225  Educational institutions eligible to submit transition plans.
41.230  Transition plans.
41.235  Statutory amendments.

     Subpart C--Discrimination on the Basis of Sex in Admission and 
                         Recruitment Prohibited

41.300  Admission.
41.305  Preference in admission.
41.310  Recruitment.

 Subpart D--Discrimination on the Basis of Sex in Education Programs or 
                          Activities Prohibited

41.400  Education programs or activities.
41.405  Housing.
41.410  Comparable facilities.
41.415  Access to course offerings.
41.420  Access to schools operated by LEAs.
41.425  Counseling and use of appraisal and counseling materials.
41.430  Financial assistance.
41.435  Employment assistance to students.
41.440  Health and insurance benefits and services.
41.445  Marital or parental status.
41.450  Athletics.
41.455  Textbooks and curricular material.

Subpart E--Discrimination on the Basis of Sex in Employment in Education 
                    Programs or Activities Prohibited

41.500  Employment.
41.505  Employment criteria.
41.510  Recruitment.
41.515  Compensation.
41.520  Job classification and structure.
41.525  Fringe benefits.
41.530  Marital or parental status.
41.535  Effect of state or local law or other requirements.
41.540  Advertising.
41.545  Pre-employment inquiries.
41.550  Sex as a bona fide occupational qualification.

                          Subpart F--Procedures

41.600  Notice of covered programs.
41.605  Enforcement procedures.

    Authority: 20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688.

    Source: 65 FR 52865, 52891, Aug. 30, 2000, unless otherwise noted.



                         Subpart A--Introduction



Sec. 41.100  Purpose and effective date.

    The purpose of these Title IX regulations is to effectuate Title IX 
of the Education Amendments of 1972, as amended (except sections 904 and 
906 of those Amendments) (20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 
1688), which is designed to eliminate (with certain exceptions) 
discrimination on the basis of sex in any education program or activity 
receiving Federal financial assistance, whether or not such program or 
activity is offered or sponsored by an educational institution as 
defined in these Title IX regulations. The effective date of these Title 
IX regulations shall be September 29, 2000.



Sec. 41.105  Definitions.

    As used in these Title IX regulations, the term:
    Administratively separate unit means a school, department, or 
college of an educational institution (other than a local educational 
agency) admission to which is independent of admission to any other 
component of such institution.
    Admission means selection for part-time, full-time, special, 
associate, transfer, exchange, or any other enrollment, membership, or 
matriculation in or at an education program or activity operated by a 
recipient.
    Applicant means one who submits an application, request, or plan 
required to be approved by an official of the Federal agency that awards 
Federal financial assistance, or by a recipient, as a condition to 
becoming a recipient.
    Designated agency official means Deputy Assistant Secretary for 
Workforce Diversity.
    Educational institution means a local educational agency (LEA) as 
defined by 20 U.S.C. 8801(18), a preschool, a private elementary or 
secondary school, or an

[[Page 526]]

applicant or recipient that is an institution of graduate higher 
education, an institution of undergraduate higher education, an 
institution of professional education, or an institution of vocational 
education, as defined in this section.
    Federal financial assistance means any of the following, when 
authorized or extended under a law administered by the Federal agency 
that awards such assistance:
    (1) A grant or loan of Federal financial assistance, including funds 
made available for:
    (i) The acquisition, construction, renovation, restoration, or 
repair of a building or facility or any portion thereof; and
    (ii) Scholarships, loans, grants, wages, or other funds extended to 
any entity for payment to or on behalf of students admitted to that 
entity, or extended directly to such students for payment to that 
entity.
    (2) A grant of Federal real or personal property or any interest 
therein, including surplus property, and the proceeds of the sale or 
transfer of such property, if the Federal share of the fair market value 
of the property is not, upon such sale or transfer, properly accounted 
for to the Federal Government.
    (3) Provision of the services of Federal personnel.
    (4) Sale or lease of Federal property or any interest therein at 
nominal consideration, or at consideration reduced for the purpose of 
assisting the recipient or in recognition of public interest to be 
served thereby, or permission to use Federal property or any interest 
therein without consideration.
    (5) Any other contract, agreement, or arrangement that has as one of 
its purposes the provision of assistance to any education program or 
activity, except a contract of insurance or guaranty.
    Institution of graduate higher education means an institution that:
    (1) Offers academic study beyond the bachelor of arts or bachelor of 
science degree, whether or not leading to a certificate of any higher 
degree in the liberal arts and sciences;
    (2) Awards any degree in a professional field beyond the first 
professional degree (regardless of whether the first professional degree 
in such field is awarded by an institution of undergraduate higher 
education or professional education); or
    (3) Awards no degree and offers no further academic study, but 
operates ordinarily for the purpose of facilitating research by persons 
who have received the highest graduate degree in any field of study.
    Institution of professional education means an institution (except 
any institution of undergraduate higher education) that offers a program 
of academic study that leads to a first professional degree in a field 
for which there is a national specialized accrediting agency recognized 
by the Secretary of Education.
    Institution of undergraduate higher education means:
    (1) An institution offering at least two but less than four years of 
college-level study beyond the high school level, leading to a diploma 
or an associate degree, or wholly or principally creditable toward a 
baccalaureate degree; or
    (2) An institution offering academic study leading to a 
baccalaureate degree; or
    (3) An agency or body that certifies credentials or offers degrees, 
but that may or may not offer academic study.
    Institution of vocational education means a school or institution 
(except an institution of professional or graduate or undergraduate 
higher education) that has as its primary purpose preparation of 
students to pursue a technical, skilled, or semiskilled occupation or 
trade, or to pursue study in a technical field, whether or not the 
school or institution offers certificates, diplomas, or degrees and 
whether or not it offers full-time study.
    Recipient means any State or political subdivision thereof, or any 
instrumentality of a State or political subdivision thereof, any public 
or private agency, institution, or organization, or other entity, or any 
person, to whom Federal financial assistance is extended directly or 
through another recipient and that operates an education program or 
activity that receives such assistance, including any subunit, 
successor, assignee, or transferee thereof.

[[Page 527]]

    Student means a person who has gained admission.
    Title IX means Title IX of the Education Amendments of 1972, Public 
Law 92-318, 86 Stat. 235, 373 (codified as amended at 20 U.S.C. 1681-
1688) (except sections 904 and 906 thereof), as amended by section 3 of 
Public Law 93-568, 88 Stat. 1855, by section 412 of the Education 
Amendments of 1976, Public Law 94-482, 90 Stat. 2234, and by Section 3 
of Public Law 100-259, 102 Stat. 28, 28-29 (20 U.S.C. 1681, 1682, 1683, 
1685, 1686, 1687, 1688).
    Title IX regulations means the provisions set forth at Secs. 41.100 
through 41.605.
    Transition plan means a plan subject to the approval of the 
Secretary of Education pursuant to section 901(a)(2) of the Education 
Amendments of 1972, 20 U.S.C. 1681(a)(2), under which an educational 
institution operates in making the transition from being an educational 
institution that admits only students of one sex to being one that 
admits students of both sexes without discrimination.

[65 FR 52865, 52891, 52892, Aug. 30, 2000]



Sec. 41.110  Remedial and affirmative action and self-evaluation.

    (a) Remedial action. If the designated agency official finds that a 
recipient has discriminated against persons on the basis of sex in an 
education program or activity, such recipient shall take such remedial 
action as the designated agency official deems necessary to overcome the 
effects of such discrimination.
    (b) Affirmative action. In the absence of a finding of 
discrimination on the basis of sex in an education program or activity, 
a recipient may take affirmative action consistent with law to overcome 
the effects of conditions that resulted in limited participation therein 
by persons of a particular sex. Nothing in these Title IX regulations 
shall be interpreted to alter any affirmative action obligations that a 
recipient may have under Executive Order 11246, 3 CFR, 1964-1965 Comp., 
p. 339; as amended by Executive Order 11375, 3 CFR, 1966-1970 Comp., p. 
684; as amended by Executive Order 11478, 3 CFR, 1966-1970 Comp., p. 
803; as amended by Executive Order 12086, 3 CFR, 1978 Comp., p. 230; as 
amended by Executive Order 12107, 3 CFR, 1978 Comp., p. 264.
    (c) Self-evaluation. Each recipient education institution shall, 
within one year of September 29, 2000:
    (1) Evaluate, in terms of the requirements of these Title IX 
regulations, its current policies and practices and the effects thereof 
concerning admission of students, treatment of students, and employment 
of both academic and non-academic personnel working in connection with 
the recipient's education program or activity;
    (2) Modify any of these policies and practices that do not or may 
not meet the requirements of these Title IX regulations; and
    (3) Take appropriate remedial steps to eliminate the effects of any 
discrimination that resulted or may have resulted from adherence to 
these policies and practices.
    (d) Availability of self-evaluation and related materials. 
Recipients shall maintain on file for at least three years following 
completion of the evaluation required under paragraph (c) of this 
section, and shall provide to the designated agency official upon 
request, a description of any modifications made pursuant to paragraph 
(c)(2) of this section and of any remedial steps taken pursuant to 
paragraph (c)(3) of this section.



Sec. 41.115  Assurance required.

    (a) General. Either at the application stage or the award stage, 
Federal agencies must ensure that applications for Federal financial 
assistance or awards of Federal financial assistance contain, be 
accompanied by, or be covered by a specifically identified assurance 
from the applicant or recipient, satisfactory to the designated agency 
official, that each education program or activity operated by the 
applicant or recipient and to which these Title IX regulations apply 
will be operated in compliance with these Title IX regulations. An 
assurance of compliance with these Title IX regulations shall not be 
satisfactory to the designated agency official if the applicant or 
recipient to whom such assurance applies fails to commit itself to take 
whatever remedial action is necessary in accordance with

[[Page 528]]

Sec. XXX.110(a) to eliminate existing discrimination on the basis of sex 
or to eliminate the effects of past discrimination whether occurring 
prior to or subsequent to the submission to the designated agency 
official of such assurance.
    (b) Duration of obligation. (1) In the case of Federal financial 
assistance extended to provide real property or structures thereon, such 
assurance shall obligate the recipient or, in the case of a subsequent 
transfer, the transferee, for the period during which the real property 
or structures are used to provide an education program or activity.
    (2) In the case of Federal financial assistance extended to provide 
personal property, such assurance shall obligate the recipient for the 
period during which it retains ownership or possession of the property.
    (3) In all other cases such assurance shall obligate the recipient 
for the period during which Federal financial assistance is extended.
    (c) Form. (1) The assurances required by paragraph (a) of this 
section, which may be included as part of a document that addresses 
other assurances or obligations, shall include that the applicant or 
recipient will comply with all applicable Federal statutes relating to 
nondiscrimination. These include but are not limited to: Title IX of the 
Education Amendments of 1972, as amended (20 U.S.C. 1681-1683, 1685-
1688).
    (2) The designated agency official will specify the extent to which 
such assurances will be required of the applicant's or recipient's 
subgrantees, contractors, subcontractors, transferees, or successors in 
interest.



Sec. 41.120  Transfers of property.

    If a recipient sells or otherwise transfers property financed in 
whole or in part with Federal financial assistance to a transferee that 
operates any education program or activity, and the Federal share of the 
fair market value of the property is not upon such sale or transfer 
properly accounted for to the Federal Government, both the transferor 
and the transferee shall be deemed to be recipients, subject to the 
provisions of Secs. 41.205 through 41.235(a).



Sec. 41.125  Effect of other requirements.

    (a) Effect of other Federal provisions. The obligations imposed by 
these Title IX regulations are independent of, and do not alter, 
obligations not to discriminate on the basis of sex imposed by Executive 
Order 11246, 3 CFR, 1964-1965 Comp., p. 339; as amended by Executive 
Order 11375, 3 CFR, 1966-1970 Comp., p. 684; as amended by Executive 
Order 11478, 3 CFR, 1966-1970 Comp., p. 803; as amended by Executive 
Order 12087, 3 CFR, 1978 Comp., p. 230; as amended by Executive Order 
12107, 3 CFR, 1978 Comp., p. 264; sections 704 and 855 of the Public 
Health Service Act (42 U.S.C. 295m, 298b-2); Title VII of the Civil 
Rights Act of 1964 (42 U.S.C. 2000e et seq.); the Equal Pay Act of 1963 
(29 U.S.C. 206); and any other Act of Congress or Federal regulation.
    (b) Effect of State or local law or other requirements. The 
obligation to comply with these Title IX regulations is not obviated or 
alleviated by any State or local law or other requirement that would 
render any applicant or student ineligible, or limit the eligibility of 
any applicant or student, on the basis of sex, to practice any 
occupation or profession.
    (c) Effect of rules or regulations of private organizations. The 
obligation to comply with these Title IX regulations is not obviated or 
alleviated by any rule or regulation of any organization, club, athletic 
or other league, or association that would render any applicant or 
student ineligible to participate or limit the eligibility or 
participation of any applicant or student, on the basis of sex, in any 
education program or activity operated by a recipient and that receives 
Federal financial assistance.



Sec. 41.130  Effect of employment opportunities.

    The obligation to comply with these Title IX regulations is not 
obviated or alleviated because employment opportunities in any 
occupation or profession are or may be more limited for members of one 
sex than for members of the other sex.

[[Page 529]]



Sec. 41.135  Designation of responsible employee and adoption of grievance procedures.

    (a) Designation of responsible employee. Each recipient shall 
designate at least one employee to coordinate its efforts to comply with 
and carry out its responsibilities under these Title IX regulations, 
including any investigation of any complaint communicated to such 
recipient alleging its noncompliance with these Title IX regulations or 
alleging any actions that would be prohibited by these Title IX 
regulations. The recipient shall notify all its students and employees 
of the name, office address, and telephone number of the employee or 
employees appointed pursuant to this paragraph.
    (b) Complaint procedure of recipient. A recipient shall adopt and 
publish grievance procedures providing for prompt and equitable 
resolution of student and employee complaints alleging any action that 
would be prohibited by these Title IX regulations.



Sec. 41.140  Dissemination of policy.

    (a) Notification of policy. (1) Each recipient shall implement 
specific and continuing steps to notify applicants for admission and 
employment, students and parents of elementary and secondary school 
students, employees, sources of referral of applicants for admission and 
employment, and all unions or professional organizations holding 
collective bargaining or professional agreements with the recipient, 
that it does not discriminate on the basis of sex in the educational 
programs or activities that it operates, and that it is required by 
Title IX and these Title IX regulations not to discriminate in such a 
manner. Such notification shall contain such information, and be made in 
such manner, as the designated agency official finds necessary to 
apprise such persons of the protections against discrimination assured 
them by Title IX and these Title IX regulations, but shall state at 
least that the requirement not to discriminate in education programs or 
activities extends to employment therein, and to admission thereto 
unless Secs. 41.300 through 41.310 do not apply to the recipient, and 
that inquiries concerning the application of Title IX and these Title IX 
regulations to such recipient may be referred to the employee designated 
pursuant to Sec. 41.135, or to the designated agency official.
    (2) Each recipient shall make the initial notification required by 
paragraph (a)(1) of this section within 90 days of September 29, 2000 or 
of the date these Title IX regulations first apply to such recipient, 
whichever comes later, which notification shall include publication in:
    (i) Newspapers and magazines operated by such recipient or by 
student, alumnae, or alumni groups for or in connection with such 
recipient; and
    (ii) Memoranda or other written communications distributed to every 
student and employee of such recipient.
    (b) Publications. (1) Each recipient shall prominently include a 
statement of the policy described in paragraph (a) of this section in 
each announcement, bulletin, catalog, or application form that it makes 
available to any person of a type, described in paragraph (a) of this 
section, or which is otherwise used in connection with the recruitment 
of students or employees.
    (2) A recipient shall not use or distribute a publication of the 
type described in paragraph (b)(1) of this section that suggests, by 
text or illustration, that such recipient treats applicants, students, 
or employees differently on the basis of sex except as such treatment is 
permitted by these Title IX regulations.
    (c) Distribution. Each recipient shall distribute without 
discrimination on the basis of sex each publication described in 
paragraph (b)(1) of this section, and shall apprise each of its 
admission and employment recruitment representatives of the policy of 
nondiscrimination described in paragraph (a) of this section, and shall 
require such representatives to adhere to such policy.



                           Subpart B--Coverage



Sec. 41.200  Application.

    Except as provided in Secs. 41.205 through 41.235(a), these Title IX 
regulations apply to every recipient and to each education program or 
activity operated by such recipient that receives Federal financial 
assistance.

[[Page 530]]



Sec. 41.205  Educational institutions and other entities controlled by religious organizations.

    (a) Exemption. These Title IX regulations do not apply to any 
operation of an educational institution or other entity that is 
controlled by a religious organization to the extent that application of 
these Title IX regulations would not be consistent with the religious 
tenets of such organization.
    (b) Exemption claims. An educational institution or other entity 
that wishes to claim the exemption set forth in paragraph (a) of this 
section shall do so by submitting in writing to the designated agency 
official a statement by the highest-ranking official of the institution, 
identifying the provisions of these Title IX regulations that conflict 
with a specific tenet of the religious organization.



Sec. 41.210  Military and merchant marine educational institutions.

    These Title IX regulations do not apply to an educational 
institution whose primary purpose is the training of individuals for a 
military service of the United States or for the merchant marine.



Sec. 41.215  Membership practices of certain organizations.

    (a) Social fraternities and sororities. These Title IX regulations 
do not apply to the membership practices of social fraternities and 
sororities that are exempt from taxation under section 501(a) of the 
Internal Revenue Code of 1954, 26 U.S.C. 501(a), the active membership 
of which consists primarily of students in attendance at institutions of 
higher education.
    (b) YMCA, YWCA, Girl Scouts, Boy Scouts, and Camp Fire Girls. These 
Title IX regulations do not apply to the membership practices of the 
Young Men's Christian Association (YMCA), the Young Women's Christian 
Association (YWCA), the Girl Scouts, the Boy Scouts, and Camp Fire 
Girls.
    (c) Voluntary youth service organizations. These Title IX 
regulations do not apply to the membership practices of a voluntary 
youth service organization that is exempt from taxation under section 
501(a) of the Internal Revenue Code of 1954, 26 U.S.C. 501(a), and the 
membership of which has been traditionally limited to members of one sex 
and principally to persons of less than nineteen years of age.



Sec. 41.220  Admissions.

    (a) Admissions to educational institutions prior to June 24, 1973, 
are not covered by these Title IX regulations.
    (b) Administratively separate units. For the purposes only of this 
section, Secs. 41.225 and 41.230, and Secs. 41.300 through 41.310, each 
administratively separate unit shall be deemed to be an educational 
institution.
    (c) Application of Secs. 41.300 through .310. Except as provided in 
paragraphs (d) and (e) of this section, Secs. 41.300 through 41.310 
apply to each recipient. A recipient to which Secs. 41.300 through 
41.310 apply shall not discriminate on the basis of sex in admission or 
recruitment in violation of Secs. 41.300 through 41.310.
    (d) Educational institutions. Except as provided in paragraph (e) of 
this section as to recipients that are educational institutions, 
Secs. 41.300 through 41.310 apply only to institutions of vocational 
education, professional education, graduate higher education, and public 
institutions of undergraduate higher education.
    (e) Public institutions of undergraduate higher education. 
Secs. 41.300 through 41.310 do not apply to any public institution of 
undergraduate higher education that traditionally and continually from 
its establishment has had a policy of admitting students of only one 
sex.



Sec. 41.225  Educational institutions eligible to submit transition plans.

    (a) Application. This section applies to each educational 
institution to which Secs. 41.300 through 41.310 apply that:
    (1) Admitted students of only one sex as regular students as of June 
23, 1972; or
    (2) Admitted students of only one sex as regular students as of June 
23, 1965, but thereafter admitted, as regular students, students of the 
sex not admitted prior to June 23, 1965.
    (b) Provision for transition plans. An educational institution to 
which this section applies shall not discriminate

[[Page 531]]

on the basis of sex in admission or recruitment in violation of 
Secs. 41.300 through 41.310.



Sec. 41.230  Transition plans.

    (a) Submission of plans. An institution to which Sec. 41.225 applies 
and that is composed of more than one administratively separate unit may 
submit either a single transition plan applicable to all such units, or 
a separate transition plan applicable to each such unit.
    (b) Content of plans. In order to be approved by the Secretary of 
Education, a transition plan shall:
    (1) State the name, address, and Federal Interagency Committee on 
Education Code of the educational institution submitting such plan, the 
administratively separate units to which the plan is applicable, and the 
name, address, and telephone number of the person to whom questions 
concerning the plan may be addressed. The person who submits the plan 
shall be the chief administrator or president of the institution, or 
another individual legally authorized to bind the institution to all 
actions set forth in the plan.
    (2) State whether the educational institution or administratively 
separate unit admits students of both sexes as regular students and, if 
so, when it began to do so.
    (3) Identify and describe with respect to the educational 
institution or administratively separate unit any obstacles to admitting 
students without discrimination on the basis of sex.
    (4) Describe in detail the steps necessary to eliminate as soon as 
practicable each obstacle so identified and indicate the schedule for 
taking these steps and the individual directly responsible for their 
implementation.
    (5) Include estimates of the number of students, by sex, expected to 
apply for, be admitted to, and enter each class during the period 
covered by the plan.
    (c) Nondiscrimination. No policy or practice of a recipient to which 
Sec. 41.225 applies shall result in treatment of applicants to or 
students of such recipient in violation of Secs. 41.300 through 41.310 
unless such treatment is necessitated by an obstacle identified in 
paragraph (b)(3) of this section and a schedule for eliminating that 
obstacle has been provided as required by paragraph (b)(4) of this 
section.
    (d) Effects of past exclusion. To overcome the effects of past 
exclusion of students on the basis of sex, each educational institution 
to which Sec. 41.225 applies shall include in its transition plan, and 
shall implement, specific steps designed to encourage individuals of the 
previously excluded sex to apply for admission to such institution. Such 
steps shall include instituting recruitment programs that emphasize the 
institution's commitment to enrolling students of the sex previously 
excluded.



Sec. 41.235  Statutory amendments.

    (a) This section, which applies to all provisions of these Title IX 
regulations, addresses statutory amendments to Title IX.
    (b) These Title IX regulations shall not apply to or preclude:
    (1) Any program or activity of the American Legion undertaken in 
connection with the organization or operation of any Boys State 
conference, Boys Nation conference, Girls State conference, or Girls 
Nation conference;
    (2) Any program or activity of a secondary school or educational 
institution specifically for:
    (i) The promotion of any Boys State conference, Boys Nation 
conference, Girls State conference, or Girls Nation conference; or
    (ii) The selection of students to attend any such conference;
    (3) Father-son or mother-daughter activities at an educational 
institution or in an education program or activity, but if such 
activities are provided for students of one sex, opportunities for 
reasonably comparable activities shall be provided to students of the 
other sex;
    (4) Any scholarship or other financial assistance awarded by an 
institution of higher education to an individual because such individual 
has received such award in a single-sex pageant based upon a combination 
of factors related to the individual's personal appearance, poise, and 
talent. The pageant, however, must comply with other nondiscrimination 
provisions of Federal law.

[[Page 532]]

    (c) Program or activity or program means:
    (1) All of the operations of any entity described in paragraphs 
(c)(1)(i) through (iv) of this section, any part of which is extended 
Federal financial assistance:
    (i)(A) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (B) The entity of such State or local government that distributes 
such assistance and each such department or agency (and each other State 
or local government entity) to which the assistance is extended, in the 
case of assistance to a State or local government;
    (ii)(A) A college, university, or other postsecondary institution, 
or a public system of higher education; or
    (B) A local educational agency (as defined in section 8801 of title 
20), system of vocational education, or other school system;
    (iii)(A) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (1) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (2) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (B) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (iv) Any other entity that is established by two or more of the 
entities described in paragraphs (c)(1)(i), (ii), or (iii) of this 
section.
    (2)(i) Program or activity does not include any operation of an 
entity that is controlled by a religious organization if the application 
of 20 U.S.C. 1681 to such operation would not be consistent with the 
religious tenets of such organization.
    (ii) For example, all of the operations of a college, university, or 
other postsecondary institution, including but not limited to 
traditional educational operations, faculty and student housing, campus 
shuttle bus service, campus restaurants, the bookstore, and other 
commercial activities are part of a ``program or activity'' subject to 
these Title IX regulations if the college, university, or other 
institution receives Federal financial assistance.
    (d)(1) Nothing in these Title IX regulations shall be construed to 
require or prohibit any person, or public or private entity, to provide 
or pay for any benefit or service, including the use of facilities, 
related to an abortion. Medical procedures, benefits, services, and the 
use of facilities, necessary to save the life of a pregnant woman or to 
address complications related to an abortion are not subject to this 
section.
    (2) Nothing in this section shall be construed to permit a penalty 
to be imposed on any person or individual because such person or 
individual is seeking or has received any benefit or service related to 
a legal abortion. Accordingly, subject to paragraph (d)(1) of this 
section, no person shall be excluded from participation in, be denied 
the benefits of, or be subjected to discrimination under any academic, 
extracurricular, research, occupational training, employment, or other 
educational program or activity operated by a recipient that receives 
Federal financial assistance because such individual has sought or 
received, or is seeking, a legal abortion, or any benefit or service 
related to a legal abortion.



     Subpart C--Discrimination on the Basis of Sex in Admission and 
                         Recruitment Prohibited



Sec. 41.300  Admission.

    (a) General. No person shall, on the basis of sex, be denied 
admission, or be subjected to discrimination in admission, by any 
recipient to which Secs. 41.300 through Secs. 41.310 apply, except as 
provided in Secs. 41.225 and Secs. 41.230.
    (b) Specific prohibitions. (1) In determining whether a person 
satisfies any policy or criterion for admission, or in making any offer 
of admission, a recipient to which Secs. 41.300 through 41.310 apply 
shall not:
    (i) Give preference to one person over another on the basis of sex, 
by ranking

[[Page 533]]

applicants separately on such basis, or otherwise;
    (ii) Apply numerical limitations upon the number or proportion of 
persons of either sex who may be admitted; or
    (iii) Otherwise treat one individual differently from another on the 
basis of sex.
    (2) A recipient shall not administer or operate any test or other 
criterion for admission that has a disproportionately adverse effect on 
persons on the basis of sex unless the use of such test or criterion is 
shown to predict validly success in the education program or activity in 
question and alternative tests or criteria that do not have such a 
disproportionately adverse effect are shown to be unavailable.
    (c) Prohibitions relating to marital or parental status. In 
determining whether a person satisfies any policy or criterion for 
admission, or in making any offer of admission, a recipient to which 
Secs. 41.300 through 41.310 apply:
    (1) Shall not apply any rule concerning the actual or potential 
parental, family, or marital status of a student or applicant that 
treats persons differently on the basis of sex;
    (2) Shall not discriminate against or exclude any person on the 
basis of pregnancy, childbirth, termination of pregnancy, or recovery 
therefrom, or establish or follow any rule or practice that so 
discriminates or excludes;
    (3) Subject to Sec. 41.235(d), shall treat disabilities related to 
pregnancy, childbirth, termination of pregnancy, or recovery therefrom 
in the same manner and under the same policies as any other temporary 
disability or physical condition; and
    (4) Shall not make pre-admission inquiry as to the marital status of 
an applicant for admission, including whether such applicant is ``Miss'' 
or ``Mrs.'' A recipient may make pre-admission inquiry as to the sex of 
an applicant for admission, but only if such inquiry is made equally of 
such applicants of both sexes and if the results of such inquiry are not 
used in connection with discrimination prohibited by these Title IX 
regulations.



Sec. 41.305  Preference in admission.

    A recipient to which Secs. 41.300 through 41.310 apply shall not 
give preference to applicants for admission, on the basis of attendance 
at any educational institution or other school or entity that admits as 
students only or predominantly members of one sex, if the giving of such 
preference has the effect of discriminating on the basis of sex in 
violation of Secs. 41.300 through 41.310.



Sec. 41.310  Recruitment.

    (a) Nondiscriminatory recruitment. A recipient to which Secs. 41.300 
through 41.310 apply shall not discriminate on the basis of sex in the 
recruitment and admission of students. A recipient may be required to 
undertake additional recruitment efforts for one sex as remedial action 
pursuant to Sec. 41.110(a), and may choose to undertake such efforts as 
affirmative action pursuant to Sec. 41.110(b).
    (b) Recruitment at certain institutions. A recipient to which 
Secs. 41.300 through 41.310 apply shall not recruit primarily or 
exclusively at educational institutions, schools, or entities that admit 
as students only or predominantly members of one sex, if such actions 
have the effect of discriminating on the basis of sex in violation of 
Secs. 41.300 through 41.310.



 Subpart D--Discrimination on the Basis of Sex in Education Programs or 
                          Activities Prohibited



Sec. 41.400  Education programs or activities.

    (a) General. Except as provided elsewhere in these Title IX 
regulations, no person shall, on the basis of sex, be excluded from 
participation in, be denied the benefits of, or be subjected to 
discrimination under any academic, extracurricular, research, 
occupational training, or other education program or activity operated 
by a recipient that receives Federal financial assistance. Sections 
41.400 through 41.455 do not apply to actions of a recipient in 
connection with admission of its students to an education program or 
activity of a recipient to which Secs. 41.300 through 41.310 do not 
apply, or an entity, not a recipient, to which Secs. 41.300 through 
41.310 would not apply if the entity were a recipient.

[[Page 534]]

    (b) Specific prohibitions. Except as provided in Secs. 41.400 
through 41.455, in providing any aid, benefit, or service to a student, 
a recipient shall not, on the basis of sex:
    (1) Treat one person differently from another in determining whether 
such person satisfies any requirement or condition for the provision of 
such aid, benefit, or service;
    (2) Provide different aid, benefits, or services or provide aid, 
benefits, or services in a different manner;
    (3) Deny any person any such aid, benefit, or service;
    (4) Subject any person to separate or different rules of behavior, 
sanctions, or other treatment;
    (5) Apply any rule concerning the domicile or residence of a student 
or applicant, including eligibility for in-state fees and tuition;
    (6) Aid or perpetuate discrimination against any person by providing 
significant assistance to any agency, organization, or person that 
discriminates on the basis of sex in providing any aid, benefit, or 
service to students or employees;
    (7) Otherwise limit any person in the enjoyment of any right, 
privilege, advantage, or opportunity.
    (c) Assistance administered by a recipient educational institution 
to study at a foreign institution. A recipient educational institution 
may administer or assist in the administration of scholarships, 
fellowships, or other awards established by foreign or domestic wills, 
trusts, or similar legal instruments, or by acts of foreign governments 
and restricted to members of one sex, that are designed to provide 
opportunities to study abroad, and that are awarded to students who are 
already matriculating at or who are graduates of the recipient 
institution; Provided, that a recipient educational institution that 
administers or assists in the administration of such scholarships, 
fellowships, or other awards that are restricted to members of one sex 
provides, or otherwise makes available, reasonable opportunities for 
similar studies for members of the other sex. Such opportunities may be 
derived from either domestic or foreign sources.
    (d) Aids, benefits or services not provided by recipient. (1) This 
paragraph (d) applies to any recipient that requires participation by 
any applicant, student, or employee in any education program or activity 
not operated wholly by such recipient, or that facilitates, permits, or 
considers such participation as part of or equivalent to an education 
program or activity operated by such recipient, including participation 
in educational consortia and cooperative employment and student-teaching 
assignments.
    (2) Such recipient:
    (i) Shall develop and implement a procedure designed to assure 
itself that the operator or sponsor of such other education program or 
activity takes no action affecting any applicant, student, or employee 
of such recipient that these Title IX regulations would prohibit such 
recipient from taking; and
    (ii) Shall not facilitate, require, permit, or consider such 
participation if such action occurs.



Sec. 41.405  Housing.

    (a) Generally. A recipient shall not, on the basis of sex, apply 
different rules or regulations, impose different fees or requirements, 
or offer different services or benefits related to housing, except as 
provided in this section (including housing provided only to married 
students).
    (b) Housing provided by recipient. (1) A recipient may provide 
separate housing on the basis of sex.
    (2) Housing provided by a recipient to students of one sex, when 
compared to that provided to students of the other sex, shall be as a 
whole:
    (i) Proportionate in quantity to the number of students of that sex 
applying for such housing; and
    (ii) Comparable in quality and cost to the student.
    (c) Other housing. (1) A recipient shall not, on the basis of sex, 
administer different policies or practices concerning occupancy by its 
students of housing other than that provided by such recipient.
    (2)(i) A recipient which, through solicitation, listing, approval of 
housing, or otherwise, assists any agency, organization, or person in 
making housing available to any of its students, shall

[[Page 535]]

take such reasonable action as may be necessary to assure itself that 
such housing as is provided to students of one sex, when compared to 
that provided to students of the other sex, is as a whole:
    (A) Proportionate in quantity; and
    (B) Comparable in quality and cost to the student.
    (ii) A recipient may render such assistance to any agency, 
organization, or person that provides all or part of such housing to 
students of only one sex.



Sec. 41.410  Comparable facilities.

    A recipient may provide separate toilet, locker room, and shower 
facilities on the basis of sex, but such facilities provided for 
students of one sex shall be comparable to such facilities provided for 
students of the other sex.



Sec. 41.415  Access to course offerings.

    (a) A recipient shall not provide any course or otherwise carry out 
any of its education program or activity separately on the basis of sex, 
or require or refuse participation therein by any of its students on 
such basis, including health, physical education, industrial, business, 
vocational, technical, home economics, music, and adult education 
courses.
    (b)(1) With respect to classes and activities in physical education 
at the elementary school level, the recipient shall comply fully with 
this section as expeditiously as possible but in no event later than one 
year from September 29, 2000. With respect to physical education classes 
and activities at the secondary and post-secondary levels, the recipient 
shall comply fully with this section as expeditiously as possible but in 
no event later than three years from September 29, 2000.
    (2) This section does not prohibit grouping of students in physical 
education classes and activities by ability as assessed by objective 
standards of individual performance developed and applied without regard 
to sex.
    (3) This section does not prohibit separation of students by sex 
within physical education classes or activities during participation in 
wrestling, boxing, rugby, ice hockey, football, basketball, and other 
sports the purpose or major activity of which involves bodily contact.
    (4) Where use of a single standard of measuring skill or progress in 
a physical education class has an adverse effect on members of one sex, 
the recipient shall use appropriate standards that do not have such 
effect.
    (5) Portions of classes in elementary and secondary schools, or 
portions of education programs or activities, that deal exclusively with 
human sexuality may be conducted in separate sessions for boys and 
girls.
    (6) Recipients may make requirements based on vocal range or quality 
that may result in a chorus or choruses of one or predominantly one sex.



Sec. 41.420  Access to schools operated by LEAs.

    A recipient that is a local educational agency shall not, on the 
basis of sex, exclude any person from admission to:
    (a) Any institution of vocational education operated by such 
recipient; or
    (b) Any other school or educational unit operated by such recipient, 
unless such recipient otherwise makes available to such person, pursuant 
to the same policies and criteria of admission, courses, services, and 
facilities comparable to each course, service, and facility offered in 
or through such schools.



Sec. 41.425  Counseling and use of appraisal and counseling materials.

    (a) Counseling. A recipient shall not discriminate against any 
person on the basis of sex in the counseling or guidance of students or 
applicants for admission.
    (b) Use of appraisal and counseling materials. A recipient that uses 
testing or other materials for appraising or counseling students shall 
not use different materials for students on the basis of their sex or 
use materials that permit or require different treatment of students on 
such basis unless such different materials cover the same occupations 
and interest areas and the use of such different materials is shown to 
be essential to eliminate sex bias. Recipients shall develop and use 
internal procedures for ensuring that such materials do not discriminate 
on the basis

[[Page 536]]

of sex. Where the use of a counseling test or other instrument results 
in a substantially disproportionate number of members of one sex in any 
particular course of study or classification, the recipient shall take 
such action as is necessary to assure itself that such disproportion is 
not the result of discrimination in the instrument or its application.
    (c) Disproportion in classes. Where a recipient finds that a 
particular class contains a substantially disproportionate number of 
individuals of one sex, the recipient shall take such action as is 
necessary to assure itself that such disproportion is not the result of 
discrimination on the basis of sex in counseling or appraisal materials 
or by counselors.



Sec. 41.430  Financial assistance.

    (a) General. Except as provided in paragraphs (b) and (c) of this 
section, in providing financial assistance to any of its students, a 
recipient shall not:
    (1) On the basis of sex, provide different amounts or types of such 
assistance, limit eligibility for such assistance that is of any 
particular type or source, apply different criteria, or otherwise 
discriminate;
    (2) Through solicitation, listing, approval, provision of 
facilities, or other services, assist any foundation, trust, agency, 
organization, or person that provides assistance to any of such 
recipient's students in a manner that discriminates on the basis of sex; 
or
    (3) Apply any rule or assist in application of any rule concerning 
eligibility for such assistance that treats persons of one sex 
differently from persons of the other sex with regard to marital or 
parental status.
    (b) Financial aid established by certain legal instruments. (1) A 
recipient may administer or assist in the administration of 
scholarships, fellowships, or other forms of financial assistance 
established pursuant to domestic or foreign wills, trusts, bequests, or 
similar legal instruments or by acts of a foreign government that 
require that awards be made to members of a particular sex specified 
therein; Provided, that the overall effect of the award of such sex-
restricted scholarships, fellowships, and other forms of financial 
assistance does not discriminate on the basis of sex.
    (2) To ensure nondiscriminatory awards of assistance as required in 
paragraph (b)(1) of this section, recipients shall develop and use 
procedures under which:
    (i) Students are selected for award of financial assistance on the 
basis of nondiscriminatory criteria and not on the basis of availability 
of funds restricted to members of a particular sex;
    (ii) An appropriate sex-restricted scholarship, fellowship, or other 
form of financial assistance is allocated to each student selected under 
paragraph (b)(2)(i) of this section; and
    (iii) No student is denied the award for which he or she was 
selected under paragraph (b)(2)(i) of this section because of the 
absence of a scholarship, fellowship, or other form of financial 
assistance designated for a member of that student's sex.
    (c) Athletic scholarships. (1) To the extent that a recipient awards 
athletic scholarships or grants-in-aid, it must provide reasonable 
opportunities for such awards for members of each sex in proportion to 
the number of students of each sex participating in interscholastic or 
intercollegiate athletics.
    (2) A recipient may provide separate athletic scholarships or 
grants-in-aid for members of each sex as part of separate athletic teams 
for members of each sex to the extent consistent with this paragraph (c) 
and Sec. 41.450.



Sec. 41.435  Employment assistance to students.

    (a) Assistance by recipient in making available outside employment. 
A recipient that assists any agency, organization, or person in making 
employment available to any of its students:
    (1) Shall assure itself that such employment is made available 
without discrimination on the basis of sex; and
    (2) Shall not render such services to any agency, organization, or 
person that discriminates on the basis of sex in its employment 
practices.
    (b) Employment of students by recipients. A recipient that employs 
any of its students shall not do so in a manner that violates 
Secs. 41.500 through 41.550.

[[Page 537]]



Sec. 41.440  Health and insurance benefits and services.

    Subject to Sec. 41.235(d), in providing a medical, hospital, 
accident, or life insurance benefit, service, policy, or plan to any of 
its students, a recipient shall not discriminate on the basis of sex, or 
provide such benefit, service, policy, or plan in a manner that would 
violate Secs. 41.500 through 41.550 if it were provided to employees of 
the recipient. This section shall not prohibit a recipient from 
providing any benefit or service that may be used by a different 
proportion of students of one sex than of the other, including family 
planning services. However, any recipient that provides full coverage 
health service shall provide gynecological care.



Sec. 41.445  Marital or parental status.

    (a) Status generally. A recipient shall not apply any rule 
concerning a student's actual or potential parental, family, or marital 
status that treats students differently on the basis of sex.
    (b) Pregnancy and related conditions. (1) A recipient shall not 
discriminate against any student, or exclude any student from its 
education program or activity, including any class or extracurricular 
activity, on the basis of such student's pregnancy, childbirth, false 
pregnancy, termination of pregnancy, or recovery therefrom, unless the 
student requests voluntarily to participate in a separate portion of the 
program or activity of the recipient.
    (2) A recipient may require such a student to obtain the 
certification of a physician that the student is physically and 
emotionally able to continue participation as long as such a 
certification is required of all students for other physical or 
emotional conditions requiring the attention of a physician.
    (3) A recipient that operates a portion of its education program or 
activity separately for pregnant students, admittance to which is 
completely voluntary on the part of the student as provided in paragraph 
(b)(1) of this section, shall ensure that the separate portion is 
comparable to that offered to non-pregnant students.
    (4) Subject to Sec. 41.235(d), a recipient shall treat pregnancy, 
childbirth, false pregnancy, termination of pregnancy and recovery 
therefrom in the same manner and under the same policies as any other 
temporary disability with respect to any medical or hospital benefit, 
service, plan, or policy that such recipient administers, operates, 
offers, or participates in with respect to students admitted to the 
recipient's educational program or activity.
    (5) In the case of a recipient that does not maintain a leave policy 
for its students, or in the case of a student who does not otherwise 
qualify for leave under such a policy, a recipient shall treat 
pregnancy, childbirth, false pregnancy, termination of pregnancy, and 
recovery therefrom as a justification for a leave of absence for as long 
a period of time as is deemed medically necessary by the student's 
physician, at the conclusion of which the student shall be reinstated to 
the status that she held when the leave began.



Sec. 41.450  Athletics.

    (a) General. No person shall, on the basis of sex, be excluded from 
participation in, be denied the benefits of, be treated differently from 
another person, or otherwise be discriminated against in any 
interscholastic, intercollegiate, club, or intramural athletics offered 
by a recipient, and no recipient shall provide any such athletics 
separately on such basis.
    (b) Separate teams. Notwithstanding the requirements of paragraph 
(a) of this section, a recipient may operate or sponsor separate teams 
for members of each sex where selection for such teams is based upon 
competitive skill or the activity involved is a contact sport. However, 
where a recipient operates or sponsors a team in a particular sport for 
members of one sex but operates or sponsors no such team for members of 
the other sex, and athletic opportunities for members of that sex have 
previously been limited, members of the excluded sex must be allowed to 
try out for the team offered unless the sport involved is a contact 
sport. For the purposes of these Title IX regulations, contact sports 
include boxing, wrestling, rugby, ice hockey, football, basketball, and 
other sports the purpose or major activity of which involves bodily 
contact.

[[Page 538]]

    (c) Equal opportunity. (1) A recipient that operates or sponsors 
interscholastic, intercollegiate, club, or intramural athletics shall 
provide equal athletic opportunity for members of both sexes. In 
determining whether equal opportunities are available, the designated 
agency official will consider, among other factors:
    (i) Whether the selection of sports and levels of competition 
effectively accommodate the interests and abilities of members of both 
sexes;
    (ii) The provision of equipment and supplies;
    (iii) Scheduling of games and practice time;
    (iv) Travel and per diem allowance;
    (v) Opportunity to receive coaching and academic tutoring;
    (vi) Assignment and compensation of coaches and tutors;
    (vii) Provision of locker rooms, practice, and competitive 
facilities;
    (viii) Provision of medical and training facilities and services;
    (ix) Provision of housing and dining facilities and services;
    (x) Publicity.
    (2) For purposes of paragraph (c)(1) of this section, unequal 
aggregate expenditures for members of each sex or unequal expenditures 
for male and female teams if a recipient operates or sponsors separate 
teams will not constitute noncompliance with this section, but the 
designated agency official may consider the failure to provide necessary 
funds for teams for one sex in assessing equality of opportunity for 
members of each sex.
    (d) Adjustment period. A recipient that operates or sponsors 
interscholastic, intercollegiate, club, or intramural athletics at the 
elementary school level shall comply fully with this section as 
expeditiously as possible but in no event later than one year from 
September 29, 2000. A recipient that operates or sponsors 
interscholastic, intercollegiate, club, or intramural athletics at the 
secondary or postsecondary school level shall comply fully with this 
section as expeditiously as possible but in no event later than three 
years from September 29, 2000.



Sec. 41.455  Textbooks and curricular material.

    Nothing in these Title IX regulations shall be interpreted as 
requiring or prohibiting or abridging in any way the use of particular 
textbooks or curricular materials.



Subpart E--Discrimination on the Basis of Sex in Employment in Education 
                    Programs or Activities Prohibited



Sec. 41.500  Employment.

    (a) General. (1) No person shall, on the basis of sex, be excluded 
from participation in, be denied the benefits of, or be subjected to 
discrimination in employment, or recruitment, consideration, or 
selection therefor, whether full-time or part-time, under any education 
program or activity operated by a recipient that receives Federal 
financial assistance.
    (2) A recipient shall make all employment decisions in any education 
program or activity operated by such recipient in a nondiscriminatory 
manner and shall not limit, segregate, or classify applicants or 
employees in any way that could adversely affect any applicant's or 
employee's employment opportunities or status because of sex.
    (3) A recipient shall not enter into any contractual or other 
relationship which directly or indirectly has the effect of subjecting 
employees or students to discrimination prohibited by Secs. 41.500 
through 41.550, including relationships with employment and referral 
agencies, with labor unions, and with organizations providing or 
administering fringe benefits to employees of the recipient.
    (4) A recipient shall not grant preferences to applicants for 
employment on the basis of attendance at any educational institution or 
entity that admits as students only or predominantly members of one sex, 
if the giving of such preferences has the effect of discriminating on 
the basis of sex in violation of these Title IX regulations.
    (b) Application. The provisions of Secs. 41.500 through 41.550 apply 
to:
    (1) Recruitment, advertising, and the process of application for 
employment;

[[Page 539]]

    (2) Hiring, upgrading, promotion, consideration for and award of 
tenure, demotion, transfer, layoff, termination, application of nepotism 
policies, right of return from layoff, and rehiring;
    (3) Rates of pay or any other form of compensation, and changes in 
compensation;
    (4) Job assignments, classifications, and structure, including 
position descriptions, lines of progression, and seniority lists;
    (5) The terms of any collective bargaining agreement;
    (6) Granting and return from leaves of absence, leave for pregnancy, 
childbirth, false pregnancy, termination of pregnancy, leave for persons 
of either sex to care for children or dependents, or any other leave;
    (7) Fringe benefits available by virtue of employment, whether or 
not administered by the recipient;
    (8) Selection and financial support for training, including 
apprenticeship, professional meetings, conferences, and other related 
activities, selection for tuition assistance, selection for sabbaticals 
and leaves of absence to pursue training;
    (9) Employer-sponsored activities, including social or recreational 
programs; and
    (10) Any other term, condition, or privilege of employment.



Sec. 41.505  Employment criteria.

    A recipient shall not administer or operate any test or other 
criterion for any employment opportunity that has a disproportionately 
adverse effect on persons on the basis of sex unless:
    (a) Use of such test or other criterion is shown to predict validly 
successful performance in the position in question; and
    (b) Alternative tests or criteria for such purpose, which do not 
have such disproportionately adverse effect, are shown to be 
unavailable.



Sec. 41.510  Recruitment.

    (a) Nondiscriminatory recruitment and hiring. A recipient shall not 
discriminate on the basis of sex in the recruitment and hiring of 
employees. Where a recipient has been found to be presently 
discriminating on the basis of sex in the recruitment or hiring of 
employees, or has been found to have so discriminated in the past, the 
recipient shall recruit members of the sex so discriminated against so 
as to overcome the effects of such past or present discrimination.
    (b) Recruitment patterns. A recipient shall not recruit primarily or 
exclusively at entities that furnish as applicants only or predominantly 
members of one sex if such actions have the effect of discriminating on 
the basis of sex in violation of Secs. 41.500 through 41.550.



Sec. 41.515  Compensation.

    A recipient shall not make or enforce any policy or practice that, 
on the basis of sex:
    (a) Makes distinctions in rates of pay or other compensation;
    (b) Results in the payment of wages to employees of one sex at a 
rate less than that paid to employees of the opposite sex for equal work 
on jobs the performance of which requires equal skill, effort, and 
responsibility, and that are performed under similar working conditions.



Sec. 41.520  Job classification and structure.

    A recipient shall not:
    (a) Classify a job as being for males or for females;
    (b) Maintain or establish separate lines of progression, seniority 
lists, career ladders, or tenure systems based on sex; or
    (c) Maintain or establish separate lines of progression, seniority 
systems, career ladders, or tenure systems for similar jobs, position 
descriptions, or job requirements that classify persons on the basis of 
sex, unless sex is a bona fide occupational qualification for the 
positions in question as set forth in Sec. 41.550.



Sec. 41.525  Fringe benefits.

    (a) ``Fringe benefits'' defined. For purposes of these Title IX 
regulations, fringe benefits means: Any medical, hospital, accident, 
life insurance, or retirement benefit, service, policy or plan, any 
profit-sharing or bonus plan, leave, and any other benefit or service

[[Page 540]]

of employment not subject to the provision of Sec. 41.515.
    (b) Prohibitions. A recipient shall not:
    (1) Discriminate on the basis of sex with regard to making fringe 
benefits available to employees or make fringe benefits available to 
spouses, families, or dependents of employees differently upon the basis 
of the employee's sex;
    (2) Administer, operate, offer, or participate in a fringe benefit 
plan that does not provide for equal periodic benefits for members of 
each sex and for equal contributions to the plan by such recipient for 
members of each sex; or
    (3) Administer, operate, offer, or participate in a pension or 
retirement plan that establishes different optional or compulsory 
retirement ages based on sex or that otherwise discriminates in benefits 
on the basis of sex.



Sec. 41.530  Marital or parental status.

    (a) General. A recipient shall not apply any policy or take any 
employment action:
    (1) Concerning the potential marital, parental, or family status of 
an employee or applicant for employment that treats persons differently 
on the basis of sex; or
    (2) Which is based upon whether an employee or applicant for 
employment is the head of household or principal wage earner in such 
employee's or applicant's family unit.
    (b) Pregnancy. A recipient shall not discriminate against or exclude 
from employment any employee or applicant for employment on the basis of 
pregnancy, childbirth, false pregnancy, termination of pregnancy, or 
recovery therefrom.
    (c) Pregnancy as a temporary disability. Subject to Sec. 41.235(d), 
a recipient shall treat pregnancy, childbirth, false pregnancy, 
termination of pregnancy, recovery therefrom, and any temporary 
disability resulting therefrom as any other temporary disability for all 
job-related purposes, including commencement, duration, and extensions 
of leave, payment of disability income, accrual of seniority and any 
other benefit or service, and reinstatement, and under any fringe 
benefit offered to employees by virtue of employment.
    (d) Pregnancy leave. In the case of a recipient that does not 
maintain a leave policy for its employees, or in the case of an employee 
with insufficient leave or accrued employment time to qualify for leave 
under such a policy, a recipient shall treat pregnancy, childbirth, 
false pregnancy, termination of pregnancy, and recovery therefrom as a 
justification for a leave of absence without pay for a reasonable period 
of time, at the conclusion of which the employee shall be reinstated to 
the status that she held when the leave began or to a comparable 
position, without decrease in rate of compensation or loss of 
promotional opportunities, or any other right or privilege of 
employment.



Sec. 41.535  Effect of state or local law or other requirements.

    (a) Prohibitory requirements. The obligation to comply with 
Secs. 41.500 through 41.550 is not obviated or alleviated by the 
existence of any State or local law or other requirement that imposes 
prohibitions or limits upon employment of members of one sex that are 
not imposed upon members of the other sex.
    (b) Benefits. A recipient that provides any compensation, service, 
or benefit to members of one sex pursuant to a State or local law or 
other requirement shall provide the same compensation, service, or 
benefit to members of the other sex.



Sec. 41.540  Advertising.

    A recipient shall not in any advertising related to employment 
indicate preference, limitation, specification, or discrimination based 
on sex unless sex is a bona fide occupational qualification for the 
particular job in question.



Sec. 41.545  Pre-employment inquiries.

    (a) Marital status. A recipient shall not make pre-employment 
inquiry as to the marital status of an applicant for employment, 
including whether such applicant is ``Miss'' or ``Mrs.''
    (b) Sex. A recipient may make pre-employment inquiry as to the sex 
of an applicant for employment, but only if such inquiry is madeequally 
of such applicants of both sexes and if the results of such inquiry are 
not used in connection with discrimination prohibited by these Title IX 
regulations.

[[Page 541]]



Sec. 41.550  Sex as a bona fide occupational qualification.

    A recipient may take action otherwise prohibited by Secs. 41.500 
through 41.550 provided it is shown that sex is a bona fide occupational 
qualification for that action, such that consideration of sex with 
regard to such action is essential to successful operation of the 
employment function concerned. A recipient shall not take action 
pursuant to this section that is based upon alleged comparative 
employment characteristics or stereotyped characterizations of one or 
the other sex, or upon preference based on sex of the recipient, 
employees, students, or other persons, but nothing contained in this 
section shall prevent a recipient from considering an employee's sex in 
relation to employment in a locker room or toilet facility used only by 
members of one sex.



                          Subpart F--Procedures



Sec. 41.600  Notice of covered programs.

    Within 60 days of September 29, 2000, each Federal agency that 
awards Federal financial assistance shall publish in the Federal 
Register a notice of the programs covered by these Title IX regulations. 
Each such Federal agency shall periodically republish the notice of 
covered programs to reflect changes in covered programs. Copies of this 
notice also shall be made available upon request to the Federal agency's 
office that enforces Title IX.



Sec. 41.605  Enforcement procedures.

    The investigative, compliance, and enforcement procedural provisions 
of Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d) (``Title 
VI'') are hereby adopted and applied to these Title IX regulations. 
These procedures may be found at 10 CFR 4.21 through 4.75.

[65 FR 52892, Aug. 30, 2000]

[[Page 543]]

            Subtitle B--Regulations Relating To Public Lands

[[Page 545]]



      CHAPTER I--BUREAU OF RECLAMATION, DEPARTMENT OF THE INTERIOR




  --------------------------------------------------------------------
Part                                                                Page
402             Sale of lands in Federal reclamation 
                    projects................................         547
413             Assessment by irrigation districts of lands 
                    owned by the United States, Columbia 
                    Basin Project, Washington...............         550
414             Offstream storage of Colorado River water 
                    and development and release of 
                    intentionally created unused 
                    apportionment in the Lower Division 
                    States..................................         551
417             Procedural methods for implementing Colorado 
                    River water conservation measures with 
                    lower basin contractors and others......         557
418             Operating criteria and procedures for the 
                    Newlands Reclamation Project, Nevada....         560
420             Off-road vehicle use........................         584
421             Rules of conduct at Hoover Dam..............         588
422             Law enforcement authority at Bureau of 
                    Reclamation projects....................         590
423             Public conduct on reclamation lands and 
                    projects................................         594
424             Regulations pertaining to standards for the 
                    prevention, control, and abatement of 
                    environmental pollution of Conconully 
                    Lake and Conconully Reservoir, Okanogan 
                    County, Wash............................         596
426             Acreage limitation rules and regulations....         597
427             Water conservation rules and regulations....         633
428             Information requirements for certain farm 
                    operations in excess of 960 acres and 
                    the eligibility of certain formerly 
                    excess land.............................         633
429             Procedure to process and recover the value 
                    of rights-of-use and administrative 
                    costs incurred in permitting such use...         636
430             Rules for management of Lake Berryessa......         640
431             General regulations for power generation, 
                    operation, maintenance, and replacement 
                    at the Boulder Canyon Project, Arizona/
                    Nevada..................................         641
432-999

[Reserved]

[[Page 547]]



PART 402--SALE OF LANDS IN FEDERAL RECLAMATION PROJECTS--Table of Contents




                         Subpart A--Public Lands

Sec.
402.1  Purpose of this subpart.
402.2  What lands may be sold; method of sale; limit of acreage.
402.3  Power to sell.
402.4  Citizenship requirement.
402.5  Procedures within the Department.
402.6  Price.
402.7  Notice of sale.
402.8  Terms of sale.
402.9  Contracts.
402.10  Patent.
402.11  Termination or cancellation

   Subpart B--Small Tracts; Public and Acquired Lands; Gila Project, 
                                 Arizona

402.21  Purpose of this subpart.
402.22  Provisions of subpart A applicable.
402.23  Special provisions.



                         Subpart A--Public Lands

    Authority: Sec. 10, 32 Stat. 390, as amended, sec. 6, 46 Stat. 368, 
sec. 5, 64 Stat. 40; 43 U.S.C. 373, 424e, 375f. Interpret or apply 41 
Stat. 605, 46 Stat. 367, sec. 11, 53 Stat. 1197, 64 Stat. 39; 43 U.S.C. 
375, 424 through 424d, 375a, 375b through 375f.

    Source: 18 FR 316, Jan. 15, 1953, unless otherwise noted.



Sec. 402.1  Purpose of this subpart.

    The regulations in this subpart apply to the sale of certain classes 
of lands that are subject to the reclamation laws and that may be sold 
under one of the following statutes:
    (a) The Act of May 20, 1920 (41 Stat. 605; 43 U.S.C. 375);
    (b) The Act of May 16, 1930 (46 Stat. 367; 43 U.S.C. 424 through 
424e); or
    (c) The Act of March 31, 1950 (64 Stat. 39; 43 U.S.C. Sup. 375b 
through 375f).



Sec. 402.2  What lands may be sold; method of sale; limit of acreage.

    (a) Lands which may be sold under the Act of May 20, 1920 (41 Stat. 
605; 43 U.S.C. 375) are lands, not otherwise reserved, which have been 
withdrawn in connection with a Federal irrigation project and improved 
at the expense of the reclamation fund for administration or other like 
purposes and which are no longer needed for project purposes. Not more 
than 160 acres of such lands may be sold to any one person. With one 
exception, such lands must be sold at public auction. If, however, a 
tract is appraised at not more than $300, it may be sold at private sale 
or at public auction and without regard to the provisions of the Act of 
May 20, 1920 respecting notice of publication and mode of sale.
    (b) Lands which may be sold under the Act of May 16, 1930 (46 Stat. 
367; 43 U.S.C. 424 through 424e) are tracts of temporarily or 
permanently unproductive land of insufficient size to support a family. 
A purchaser must be a resident farm owner or entryman on the Federal 
irrigation project where such lands are located and is permitted to 
purchase not more than 160 acres or an area which together with lands 
already owned or entered on such project, does not exceed 320 acres. A 
resident farm owner means a farm owner who is actually residing on the 
farm he owns, and a resident entryman means a homestead entryman who is 
actually residing on the land in his homestead entry. These lands may be 
sold either at public auction or at private sale.
    (c) Lands which may be sold under the Act of March 31, 1950 (64 
Stat. 39; 43 U.S.C. Sup., 375b through 375f) are tracts of land too 
small to be classed as farm units under the Federal reclamation laws. A 
purchaser must be a resident farm owner or entryman (as defined in 
paragraph (b) of this section) on the Federal irrigation project where 
such lands are located and is permitted to purchase not more than 160 
acres or an area which, together with land already owned or entered on 
such project, does not exceed 160 irrigable acres. These lands may be 
sold either at public auction or at private sale.



Sec. 402.3  Power to sell.

    The Commissioner of Reclamation may, in accordance with the 
regulations in this subpart, sell lands under each of the three statutes 
listed in Sec. 402.1. An Assistant Commissioner or an official in charge 
of an office, region, division, district, or project of the Bureau of 
Reclamation, if authorized in writing by the Commissioner of 
Reclamation, may also sell lands under the statutes mentioned in 
accordance

[[Page 548]]

with this subpart, and whenever the term ``Commissioner'' is used in 
this subpart, it includes any official so authorized.



Sec. 402.4  Citizenship requirement.

    Before patent may be issued to a purchaser under the regulations in 
this subpart, he must furnish satisfactory evidence that he is a citizen 
of the United States.



Sec. 402.5  Procedures within the Department.

    (a) Before offering any land for sale under any of the statutes 
listed in Sec. 402.1, the Commissioner should determine that the sale 
will be in the best interest of the project in which the lands are 
located and, if the lands sold are to be irrigated, that there is a 
sufficient water supply for such irrigation.
    (b) When a decision is made to offer lands for sale under any of the 
statutes listed in Sec. 402.1: (1) The Commissioner should notify the 
State Supervisor of the Bureau of Land Management in whose State the 
lands are located, (2) a report showing the status of the lands should 
be obtained from the Manager of the appropriate office of the Bureau of 
Land Management, and (3) a report should be obtained from the Geological 
Survey with respect to the mineral resources of the lands. A copy of the 
report of the Geological Survey should be furnished to the Manager of 
the appropriate land office of the Bureau of Land Management for his use 
in preparing the final certificate.



Sec. 402.6  Price.

    The price of land sold under this subpart shall be not less than 
that fixed by independent appraisal approved by the Commissioner.



Sec. 402.7  Notice of sale.

    The sale of lands at public auction under this part shall be 
administered by the Commissioner. Notice of such sales shall be given by 
publication in a newspaper of general circulation in the vicinity of the 
lands to be sold for either not less than 30 days or once a week for 
five consecutive weeks prior to the date fixed for any such sale. Under 
the Act of May 20, 1920 (41 Stat. 605; 43 U.S.C. 375) notice of sales of 
lands appraised at more than $300 shall also be given by posting upon 
the land. In the case of all sales under this subpart notice may be 
given by such other means as the Commissioner may deem appropriate. 
Where lands are to be sold at private sale, no public notice shall be 
required.



Sec. 402.8  Terms of sale.

    (a) Under the Acts of May 16, 1930 (46 Stat. 367; 43 U.S.C. 424 
through 424e) and March 31, 1950 (64 Stat. 39; 43 U.S.C. Sup., 375b 
through 375f) lands may be sold either for cash or upon deferred 
payments. A sale providing for deferred payments shall be upon terms to 
be established by the Commissioner, except that the Commissioner shall 
require the annual payment of interest at six percent per annum on the 
unpaid balance.
    (b) Under the Act of May 20, 1920 (41 Stat. 605; 43 U.S.C. 375) 
lands may be sold either for cash or upon deferred payments. In 
connection with a sale providing for deferred payments the Commissioner 
shall require that not less than one-fifth the purchase price in cash be 
paid at the time of sale and that the remainder be payable in not more 
than four annual payments with interest at six percent per annum on the 
unpaid balance.
    (c) All payments shall be made to the official of the Bureau of 
Reclamation specified in the contract of sale.



Sec. 402.9  Contracts.

    A contract in form approved by the Commissioner shall be signed by 
the purchaser at the time of sale and executed on behalf of the United 
States by the Commissioner. A copy of the contract shall be furnished to 
the appropriate land office of the Bureau of Land Management for 
entering in the tract books. The contract shall contain a description of 
the land to be sold, the price and terms of sale, a full statement by 
the purchaser respecting his qualifications, including citizenship, a 
description by the purchaser of his present holdings, and a statement by 
him of the irrigable acreage of those holdings. The contract shall also 
contain a statement by the purchaser with respect to his knowledge as to 
whether the land is mineral or non-mineral in

[[Page 549]]

character, as well as all appropriate reservations, mineral and 
otherwise, required by law to be made on entries and patents. 
Assignments of contracts may be made only with the consent of the 
Commissioner and to persons legally qualified to be purchasers.



Sec. 402.10  Patent.

    When a purchaser has complied fully with the provisions of his 
contract and with the applicable provisions of law, including the 
regulations in this subpart, the Commissioner shall issue to the 
purchaser a final receipt so stating. The receipt shall show any liens 
that, under the reclamation laws, must be indicated in the final 
certificate and patent and shall state the statutory authority for such 
liens. The receipt shall be submitted to the Manager of the appropriate 
land office of the Bureau of Land Management and the Manager shall 
prepare a final certificate for the issuance of patent to the purchaser. 
The Manager shall show in the final certificate the above-mentioned 
reclamation liens and any reservations that are required by law to be 
made on the patent.



Sec. 402.11  Termination or cancellation.

    Immediately upon the termination or cancellation of any contract for 
nonpayment or other appropriate reason the Commissioner shall notify the 
proper office of the Bureau of Land Management in order that the tract 
books located there may reflect the termination or cancellation of the 
contract.



   Subpart B--Small Tracts; Public and Acquired Lands; Gila Project, 
                                 Arizona

    Authority: Sec. 15, 53 Stat. 1198, sec. 7, 61 Stat. 630; 43 U.S.C. 
485i, 613e. Interpret or apply secs. 3-4, 61 Stat. 629; 43 U.S.C. 613b 
through 613c.



Sec. 402.21  Purpose of this subpart.

    The regulations in this subpart apply to the sale of small tracts of 
public and acquired lands on the Gila Project, Arizona, that are subject 
to the reclamation laws and that may be sold to actual settlers or 
farmers under the Act of July 30, 1947 (61 Stat. 628; 43 U. S. C. 613--
613e).

[19 FR 431, Jan. 26, 1954]



Sec. 402.22  Provisions of subpart A applicable.

    The regulations in subpart A of this part relative to the sale of 
public lands under the Act of March 31, 1950 (64 Stat. 39; 43 U. S. C., 
Sup. 375b through 375f) shall be applicable to all sales proposed to be 
made under this subpart, except that the provisions of Sec. 402.23(b) 
relative to deeds shall apply in lieu of the provisions of Sec. 402.10 
relative to patents; and excepting further that the residence 
requirements of Sec. 402.2(b) shall not apply.

[18 FR 316, Jan. 15, 1953, as amended at 34 FR 5066, Mar. 11, 1969]



Sec. 402.23  Special provisions.

    (a) After disposition of any lands under this subpart by contract of 
sale and during the time such contract shall remain in effect, said 
lands shall be (1) subject to the provisions of the laws of the State of 
Arizona relating to the organization, government, and regulation of 
irrigation, electrical power, and other similar districts, and (2) 
subject to legal assessment or taxation by any such district and by said 
State or political subdivisions thereof, and to liens for such 
assessments and taxes and to all proceedings for the enforcement 
thereof, in the same manner and to the same extent as privately-owned 
lands; Provided, however, That the United States shall not assume any 
obligation for amounts so assessed or taxed: And provided further, That 
any proceedings to enforce said assessments or taxes shall be subject to 
any title then remaining in the United States, to any prior lien 
reserved to the United States for unpaid installments under contracts of 
sale made under this subpart, and to any obligation for any other 
charges, accrued or unaccrued, for special improvements, construction, 
or operation and maintenance costs of the Gila Project. Any such lands 
situate within the Wellton-Mohawk Division of said project shall also be 
subject to the provisions of the Contract Between the United States and 
Wellton-Mohawk Irrigation and

[[Page 550]]

Drainage District for Construction of Works and for Delivery of Water, 
dated March 4, 1952, including but not limited to the provisions of 
subdivisions (b) and (c) of Article 22.
    (b) When a purchaser has complied fully with the provisions of his 
contract and with the applicable provisions of law, including the 
regulations in this subpart, the Commissioner shall issue a deed to the 
purchaser. The deed shall recite the reservations described in the 
contract of sale.

[19 FR 431, Jan. 26, 1954]



PART 413--ASSESSMENT BY IRRIGATION DISTRICTS OF LANDS OWNED BY THE UNITED STATES, COLUMBIA BASIN PROJECT, WASHINGTON--Table of Contents




Sec.
413.1  Purpose.
413.2  Definitions.
413.3  Assessment of settlement lands.
413.4  Assessment of other project act lands and rights of way.
413.5  Reports on status of settlement lands.

    Authority: Sec. 8, 57 Stat. 20; 16 U.S.C. 835c-4.

    Source: 23 FR 10360, Dec. 25, 1958, unless otherwise noted.



Sec. 413.1  Purpose.

    The provisions of this part shall govern the levy and enforcement of 
assessments by or on behalf of irrigation districts against lands owned 
by the United States within the Columbia Basin Project, pursuant to the 
provisions of subsection 5 (b) and section 8 of the Columbia Basin 
Project Act (57 Stat. 14; 16 U. S. C. 835c-1 and 835c-4) and in keeping 
with the provisions of section 14, Chapter 275, Laws of Washington, 
1943. (Section 89.12.120, Revised Code of Washington).



Sec. 413.2  Definitions.

    As used in this part:
    (a) Project Manager means the Project Manager of the Columbia Basin 
Project, a Federal reclamation project.
    (b) District means any one of the irrigation districts organized 
under the laws of Washington which has contracted with the United States 
under the Columbia Basin Project Act to repay a portion of the 
construction cost of the project.
    (c) Settlement lands means those public lands of the United States 
within the project or those lands acquired by the United States under 
the authority of the Columbia Basin Project Act, title to which is 
vested in the United States and which are being held pending their 
conveyance in accordance with the project settlement and development 
program.
    (d) Other project act lands means those public lands within the 
project and those lands or interests acquired and being held by the 
United States under the Columbia Basin Project Act, which are being held 
other than for conveyance in accordance with the project settlement and 
development program.
    (e) Rights of way means lands or interests in lands acquired by the 
United States under the Federal Reclamation Laws (Act of June 17, 1902, 
32 Stat. 388, 43 U. S. C. 391, and acts amendatory thereof or 
supplementary thereto) for the construction and operation of project 
works, rights of way, including improvements thereon, reserved to the 
United States, under the Act of August 30, 1890 (26 Stat. 391; 43 U. S. 
C. 945) or section 90.40.050 of the Revised Code of Washington and being 
asserted for project purposes.



Sec. 413.3  Assessment of settlement lands.

    (a) Settlement lands, which the United States is not under contract 
to sell or exchange at the time a district makes its annual levy of 
assessments shall not be assessed, except as provided in paragraph (c) 
of this section. If the United States thereafter contracts to sell or 
exchange such lands before the end of the irrigation season following 
the date of the annual levy, the purchaser will be required to make 
appropriate payment to the district for the water service which will be 
available to the purchaser during that irrigation season or the 
remaining portion thereof.
    (b) From the date the United States contracts to sell or exchange 
settlement lands until title thereto passes to the purchaser under such 
contract, or until the rights of the purchaser are terminated or 
reacquired by the United

[[Page 551]]

States settlement lands shall be subject to assessment by a district on 
the same basis as other lands of like character within the operation of 
the district.
    (c) Settlement lands, which the United States is not under contract 
to sell or exchange at the time a district makes its levy may be 
assessed by a district to the extent of the construction charge 
obligation installment required to be levied for the following year on 
such lands on account of the district's construction cost obligation to 
the United States. No other levies shall be made by a district against 
settlement lands in this status.
    (d) While settlement lands which the United States has leased for 
use as irrigated lands and which the United States has not contracted to 
sell or exchange may not be assessed by a district except as provided in 
paragraph (c) of this section, lessees shall pay the district the same 
amounts annually that would be required to be paid for water service if 
the lands were subject to assessment therefor, in addition to any 
assessment levied under paragraph (c) of this section.
    (e) Assessments made by a district against settlement lands while 
the United States is under contract to sell or exchange such lands shall 
be subject to all interest and penalties for delinquency as provided by 
the laws of Washington, but interest and penalties shall cease to 
accumulate on the date such contract is terminated or the purchaser's 
interest therein reacquired by the United States.
    (f) No action shall be taken by or for a district to enforce any 
lien created as permitted under the regulations in this part by 
assessment foreclosure or other means that would purport to transfer any 
right in or title to any land or interests therein while title thereto 
is vested in the United States. Although the United States does not 
assume any obligation for the payment of such liens, it will in any 
conveyance of settlement lands covered thereby convey subject to those 
liens.



Sec. 413.4  Assessment of other project act lands and rights of way.

    (a) A district shall, as to other project act lands and rights of 
way the title to which passes to the United States on or after January 1 
of any year and before the district has levied its assessments for that 
year, immediately remove the lands from its assessment rolls and shall 
not thereafter take any proceedings to complete or enforce the 
assessments. Any such removal from the rolls shall be effective as of 
January 1 of the year in which title passes to the United States Action 
so to remove shall be taken promptly after the giving of written notice 
by the Project Manager to the district as to the lands involved, and the 
district shall provide the United States with a certificate stating that 
the lands have not been and will not be assessed so long as title 
thereto remains in the United States.
    (b) There is no authority in law for the assessment of rights of way 
owned by the United States. Accordingly, a district shall make no 
assessment thereof while title thereto remains in the United States.
    (c) Other project act lands while title thereto remains in the 
United States shall not be assessed for any district charge so long as 
they are in the ``other project act lands'' category.



Sec. 413.5  Reports on status of settlement lands.

    The Project Manager will furnish each district prior to its annual 
levy every year a list of all the settlement lands owned by the United 
States for which water is available and which are not under contract of 
sale or exchange and therefore are not to be assessed by the district, 
except for construction charge obligation installments under 
Sec. 413.3(c) when such charges are required to be levied.



PART 414--OFFSTREAM STORAGE OF COLORADO RIVER WATER AND DEVELOPMENT AND RELEASE OF INTENTIONALLY CREATED UNUSED APPORTIONMENT IN THE LOWER DIVISION STATES--Table of Contents




Sec.

                   Subpart A--Purposes and Definitions

414.1  Purpose.
414.2  Definitions of terms used in this part.

[[Page 552]]

          Subpart B--Storage and Interstate Release Agreements

414.3  Storage and Interstate Release Agreements.
414.4  Reporting Requirements and accounting under storage and 
          interstate release agreements.

          Subpart C--Water Quality and Environmental compliance

414.5  Water Quality.
414.6  Environmental Compliance and funding of Federal costs.

    Authority: 5 U.S.C. 553; 43 U.S.C. 391, 485 and 617; 373 U.S. 546; 
376 U.S. 340.

    Source: 64 FR 59006, Nov. 1, 1999, unless otherwise noted.



                   Subpart A--Purposes and Definitions



Sec. 414.1  Purpose.

    (a) What this part does. This part establishes a procedural 
framework for the Secretary of the Interior (Secretary) to follow in 
considering, participating in, and administering Storage and Interstate 
Release Agreements in the Lower Division States (Arizona, California, 
and Nevada) that would:
    (1) Permit State-authorized entities to store Colorado River water 
offstream;
    (2) Permit State-authorized entities to develop intentionally 
created unused apportionment (ICUA);
    (3) Permit State-authorized entities to make ICUA available to the 
Secretary for release for use in another Lower Division State. This 
release may only take place in accordance with the Secretary's 
obligations under Federal law and may occur in either the year of 
storage or in years subsequent to storage; and
    (4) Allow only voluntary interstate water transactions. These water 
transactions can help to satisfy regional water demands by increasing 
the efficiency, flexibility, and certainty in Colorado River management 
in accordance with the Secretary's authority under Article II (B) (6) of 
the Decree entered March 9, 1964 (376 U.S. 340) in the case of Arizona 
v. California, (373 U.S. 546) (1963), as supplemented and amended.
    (b) What this part does not do. This part does not:
    (1) Affect any Colorado River water entitlement holder's right to 
use its full water entitlement;
    (2) Address or preclude independent actions by the Secretary 
regarding Tribal storage and water transfer activities;
    (3) Change or expand existing authorities under the body of law 
known as the ``Law of the River';
    (4) Change the apportionments made for use within individual States;
    (5) Address intrastate storage or intrastate distribution of water;
    (6) Preclude a Storing State from storing some of its unused 
apportionment in another Lower Division State if consistent with 
applicable State law; or
    (7) Authorize any specific activities; the rule provides a framework 
only.



Sec. 414.2  Definitions of terms used in this part.

    Authorized entity means:
    (1) An entity in a Storing State which is expressly authorized 
pursuant to the laws of that State to enter into Storage and Interstate 
Release Agreements and develop ICUA (``storing entity''); or
    (2) An entity in a Consuming State which has authority under the 
laws of that State to enter into Storage and Interstate Release 
Agreements and acquire the right to use ICUA (``consuming entity'').
    Basic apportionment means the Colorado River water apportioned for 
use within each Lower Division State when sufficient water is available 
for release, as determined by the Secretary of the Interior, to satisfy 
7.5 million acre-feet (maf) of annual consumptive use in the Lower 
Division States. The United States Supreme Court, in Arizona v. 
California, confirmed that the annual basic apportionment for the Lower 
Division States is 2.8 maf of consumptive use in the State of Arizona, 
4.4 maf of consumptive use in the State of California, and 0.3 maf of 
consumptive use in the State of Nevada.
    BCPA means the Boulder Canyon Project Act, authorized by the Act of 
Congress of December 21, 1928 (45 Stat. 1057).
    Colorado River Basin means all of the drainage area of the Colorado 
River

[[Page 553]]

System and all other territory within the United States to which the 
waters of the Colorado River System shall be beneficially applied.
    Colorado River System means that portion of the Colorado River and 
its tributaries within the United States.
    Colorado River water means water in or withdrawn from the 
mainstream.
    Consuming entity means an authorized entity in a Consuming State.
    Consuming State means a Lower Division State where ICUA will be 
used.
    Consumptive use means diversions from the Colorado River less any 
return flow to the river that is available for consumptive use in the 
United States or in satisfaction of the Mexican treaty obligation.
    (1) Consumptive use from the mainstream within the Lower Division 
States includes water drawn from the mainstream by underground pumping.
    (2) The Mexican treaty obligation is set forth in the February 3, 
1944, Water Treaty between Mexico and the United States, including 
supplements and associated Minutes of the International Boundary and 
Water Commission.
    Decree means the decree entered March 9, 1964, by the Supreme Court 
in Arizona v. California, 373 U.S. 546 (1963), as supplemented or 
amended.
    Entitlement means an authorization to beneficially use Colorado 
River water pursuant to:
    (1) The Decree;
    (2) A water delivery contract with the United States through the 
Secretary; or
    (3) A reservation of water from the Secretary.
    Intentionally created unused apportionment or ICUA means unused 
apportionment that is developed:
    (1) Consistent with the laws of the Storing State;
    (2) Solely as a result of, and would not exist except for, 
implementing a Storage and Interstate Release Agreement.
    Lower Division States means the States of Arizona, California, and 
Nevada.
    Mainstream means the main channel of the Colorado River downstream 
from Lee Ferry within the United States, including the reservoirs behind 
dams on the main channel, and Senator Wash Reservoir off the main 
channel.
    Offstream storage means storage in a surface reservoir off of the 
mainstream or in a ground water aquifer. Offstream storage includes 
indirect recharge when Colorado River water is exchanged for ground 
water that otherwise would have been pumped and consumed.
    Secretary means the Secretary of the Interior or an authorized 
representative.
    Storage and Interstate Release Agreement means an agreement, 
consistent with this part, between the Secretary and authorized entities 
in two or more Lower Division States that addresses the details of:
    (1) Offstream storage of Colorado River water by a storing entity 
for future use within the Storing State;
    (2) Subsequent development of ICUA by the storing entity, consistent 
with the laws of the Storing State;
    (3) A request by the storing entity to the Secretary to release ICUA 
to the consuming entity;
    (4) Release of ICUA by the Secretary to the consuming entity; and
    (5) The inclusion of other entities that are determined by the 
Secretary and the storing entity and the consuming entity to be 
appropriate to the performance and enforcement of the agreement.
    Storing entity means an authorized entity in a Storing State.
    Storing State means a Lower Division State in which water is stored 
off the mainstream in accordance with a Storage and Interstate Release 
Agreement for future use in that State.
    Surplus apportionment means the Colorado River water apportioned for 
use within each Lower Division State when sufficient water is available 
for release, as determined by the Secretary, to satisfy in excess of 7.5 
maf of annual consumptive use in the Lower Division States.
    Unused apportionment means Colorado River water within a Lower 
Division State's basic or surplus apportionment, or both, which is not 
otherwise put to beneficial consumptive use during that year within that 
State.

[[Page 554]]

    Upper Division States means the States of Colorado, New Mexico, 
Utah, and Wyoming.
    Water delivery contract means a contract between the Secretary and 
an entity for the delivery of Colorado River water in accordance with 
section 5 of the BCPA.



          Subpart B--Storage and Interstate Release Agreements



Sec. 414.3  Storage and Interstate Release Agreements.

    (a) Basic requirements for Storage and Interstate Release 
Agreements. Two or more authorized entities may enter into Storage and 
Interstate Release Agreements with the Secretary in accordance with 
paragraph (c) of this section. Each agreement must meet all of the 
requirements of this section.
    (1) The agreement must specify the quantity of Colorado River water 
to be stored, the Lower Division State in which it is to be stored, the 
entity(ies) that will store the water, and the facility(ies) in which it 
will be stored.
    (2) The agreement must specify whether the water to be stored will 
be within the unused basic apportionment or unused surplus apportionment 
of the Storing State. For water from the Storing State's apportionment 
to qualify as unused apportionment available for storage under this 
part, the water must first be offered to all entitlement holders within 
the Storing State for purposes other than interstate transactions under 
proposed Storage and Interstate Release Agreements.
    (3) The agreement must specify whether the water to be stored will 
be within the unused basic apportionment or unused surplus apportionment 
of the Consuming State. If the water to be stored will be unused 
apportionment of the Consuming State, the agreement must acknowledge 
that any unused apportionment of the Consuming State may be made 
available from the Consuming State by the Secretary to the Storing State 
only in accordance with Article II(B)(6) of the Decree. If unused 
apportionment from the Consuming State is to be stored under a Storage 
and Interstate Release Agreement, the Secretary will make the unused 
apportionment of the Consuming State available to the storing entity in 
accordance with the terms of a Storage and Interstate Release Agreement 
and will not make that water available to other entitlement holders.
    (4) The agreement must specify the maximum quantity of ICUA that 
will be developed and made available for release to the consuming 
entity.
    (5) The agreement must specify that ICUA may not be requested by the 
consuming entity in a quantity that exceeds the quantity of water that 
had been stored under a Storage and Interstate Release Agreement in the 
Storing State.
    (6) The agreement must specify a procedure to verify and account for 
the quantity of water stored in the Storing State under a Storage and 
Interstate Release Agreement.
    (7) The agreement must specify that, by a date certain, the 
consuming entity will:
    (i) Notify the storing entity to develop a specific quantity of ICUA 
in the following calendar year;
    (ii) Ask the Secretary to release that ICUA; and
    (iii) Provide a copy of the notice or request to each Lower Division 
State.
    (8) The agreement must specify that when the storing entity receives 
a request to develop a specific quantity of ICUA:
    (i) It will ensure that the Storing State's consumptive use of 
Colorado River water will be decreased by a quantity sufficient to 
develop the requested quantity of ICUA; and
    (ii) Any actions that the storing entity takes will be consistent 
with its State's laws.
    (9) The agreement must include a description of:
    (i) The actions the authorized entity will take to develop ICUA;
    (ii) Potential actions to decrease the authorized entity's 
consumptive use of Colorado River water;
    (iii) The means by which the development of the ICUA will be 
enforceable by the storing entity; and
    (iv) The notice given to entitlement holders, including Indian 
tribes, of opportunities to participate in development of this ICUA.
    (10) The agreement must specify that the storing entity will certify 
to the

[[Page 555]]

Secretary that ICUA has been or will be developed that otherwise would 
not have existed. The certification must:
    (i) Identify the quantity, the means, and the entity by which ICUA 
has been or will be developed; and
    (ii) Ask the Secretary to make the ICUA available to the consuming 
entity under Article II(B)(6) of the Decree and the Storage and 
Interstate Release Agreement.
    (11) The agreement must specify a procedure for verifying 
development of the ICUA appropriate to the manner in which it is 
developed.
    (12) The agreement must specify that the Secretary will release ICUA 
developed by the storing entity:
    (i) In accordance with a request of the consuming entity;
    (ii) In accordance with the terms of the Storage and Interstate 
Release Agreement;
    (iii) Only for use by the consuming entity and not for use by other 
entitlement holders; and
    (iv) In accordance with the terms of the Storage and Interstate 
Release Agreement, the BCPA, Article II(B)(6) of the Decree and all 
other applicable laws and executive orders.
    (13) The agreement must specify that ICUA shall be released to the 
consuming entity only in the year and to the extent that ICUA is 
developed by the storing entity by reducing Colorado River water use 
within the Storing State.
    (14) The agreement must specify that the Secretary will release ICUA 
only after the Secretary has determined that all necessary actions have 
been taken under this part.
    (15) The agreement must specify that before releasing ICUA the 
Secretary must first determine that the storing entity:
    (i) Stored water in accordance with the Storage and Interstate 
Release Agreement in quantities sufficient to support the development of 
the ICUA requested by the consuming entity; and
    (ii) Certified to the satisfaction of the Secretary that the 
quantity of ICUA requested by the consuming entity has been developed in 
that year or will be developed in that year under Sec. 414.3(f).
    (16) The agreement must specify that the non-Federal parties to the 
Storage and Interstate Release Agreement will indemnify the United 
States, its employees, agents, subcontractors, successors, or assigns 
from loss or claim for damages and from liability to persons or 
property, direct or indirect, and loss or claim of any nature whatsoever 
arising by reason of the actions taken by the non-federal parties to the 
Storage and Interstate Release Agreement under this part.
    (17) The agreement must specify the extent to which facilities 
constructed or financed by the United States will be used to store, 
convey, or distribute water associated with a Storage and Interstate 
Release Agreement.
    (18) The agreement must include any other provisions that the 
parties deem appropriate.
    (b) How to address financial considerations. The Secretary will not 
execute an agreement that has adverse impacts on the financial interests 
of the United States. Financial details between and among the non-
Federal parties need not be included in the Storage and Interstate 
Release Agreement but instead can be the subject of separate agreements. 
The Secretary need not be a party to the separate agreements.
    (c) How the Secretary will execute storage and interstate release 
agreements. The Regional Director for the Bureau of Reclamation's Lower 
Colorado Region (Regional Director) may execute and administer a Storage 
and Interstate Release Agreement on behalf of the Secretary. The 
Secretary will notify the public of his/her intent to participate in 
negotiations to develop a Storage and Interstate Release Agreement and 
provide a means for public input. In considering whether to execute a 
Storage and Interstate Release Agreement, the Secretary may request, and 
the non-Federal parties must provide, any additional supporting data 
necessary to clearly set forth both the details of the proposed 
transaction and the eligibility of the parties to participate as State-
authorized entities in the proposed transaction. The Secretary will also 
consider: applicable law and executive orders; applicable contracts; 
potential effects on trust resources; potential effects on entitlement 
holders,

[[Page 556]]

including Indian tribes; potential impacts on the Upper Division States; 
potential effects on third parties; potential environmental impacts and 
potential effects on threatened and endangered species; comments from 
interested parties, particularly parties who may be affected by the 
proposed action; comments from the State agencies responsible for 
consulting with the Secretary on matters related to the Colorado River; 
and other relevant factors, including the direct or indirect 
consequences of the proposed Storage and Interstate Release Agreement on 
the financial interests of the United States. Based on the consideration 
of the factors in this section, the Secretary may execute or decide not 
to execute a Storage and Interstate Release Agreement.
    (d) Assigning interests to an authorized entity. Non-Federal parties 
to a Storage and Interstate Release Agreement may assign their interests 
in the Agreement to authorized entities. The assignment can be in whole 
or in part. The assignment can only be made if all parties to the 
agreement approve.
    (e) Requirement for contracts under the Boulder Canyon Project Act. 
Release or diversion of Colorado River water for storage under this part 
must be supported by a water delivery contract with the Secretary in 
accordance with Section 5 of the BCPA. The only exception to this 
requirement is storage of Article II(D) (of the Decree) water by Federal 
or tribal entitlement holders. The release or diversion of Colorado 
River water that has been developed or will be developed as ICUA under 
this part also must be supported by a Section 5 water delivery contract.
    (1) An authorized entity may satisfy the requirement of this section 
through a direct contract with the Secretary. An authorized entity also 
may satisfy the Section 5 requirement of the BCPA, for purposes of this 
part, through a valid subcontract with an entitlement holder that is 
authorized by the Secretary to subcontract for the delivery of all or a 
portion of its entitlement.
    (2) For storing entities that do not otherwise hold a contract or 
valid subcontract for the delivery of the water to be stored, the 
Storage and Interstate Release Agreement will serve as the vehicle for 
satisfying the Section 5 requirement for the release or diversion of 
that water.
    (3) For consuming entities that do not otherwise hold a contract or 
valid subcontract for the delivery of the water to be released by the 
Secretary as ICUA, the Storage and Interstate Release Agreement will 
serve as the vehicle for satisfying the Section 5 requirement for the 
release or diversion of that water.
    (f) Anticipatory release of ICUA. The Secretary may release ICUA to 
a consuming entity before the actual development of ICUA by the storing 
entity if the storing entity certifies to the Secretary that ICUA will 
be developed during that same year that otherwise would not have 
existed.
    (1) These anticipatory releases will only be made in the same year 
that the ICUA is developed.
    (2) Before an anticipatory release, the Secretary must be satisfied 
that the storing entity will develop the necessary ICUA in the same year 
that the ICUA is to be released.
    (g) Treaty obligations. Prior to executing any specific Storage and 
Interstate Release Agreements, the United States will consult with 
Mexico through the International Boundary and Water Commission under the 
boundary water treaties and other applicable international agreements in 
force between the two countries.



Sec. 414.4  Reporting requirements and accounting under Storage and Interstate Release Agreements.

    (a) Annual report to the Secretary. Each storing entity will submit 
an annual report to the Secretary containing the material required by 
this section. The report will be due on a date to be agreed upon by the 
parties to the Storage and Interstate Release Agreement. The report must 
include:
    (1) The quantity of water diverted and stored during the prior year 
under all Storage and Interstate Release Agreements; and
    (2) The total quantity of stored water available to support the 
development of ICUA under each Storage and Interstate Release Agreement 
to which the

[[Page 557]]

storing entity is a party as of December 31 of the prior calendar year.
    (b) How the Secretary accounts for diverted and stored water. The 
Secretary will account for water diverted and stored under Storage and 
Interstate Release Agreements in the records maintained under Article V 
of the Decree.
    (1) The Secretary will account for the water that is diverted and 
stored by a storing entity as a consumptive use in the Storing State for 
the year in which it is stored.
    (2) The Secretary will account for the diversion and consumptive use 
of ICUA by a consuming entity as a consumptive use in the Consuming 
State of unused apportionment under Article II(B)(6) of the Decree in 
the year the water is released in the same manner as any other unused 
apportionment taken by that State.
    (3) The Secretary will maintain individual balances of the 
quantities of water stored under a Storage and Interstate Release 
Agreement and available to support the development of ICUA. The 
appropriate balances will be reduced when ICUA is developed by the 
storing entity and released by the Secretary for use by a consuming 
entity.



          Subpart C--Water Quality and Environmental Compliance



Sec. 414.5  Water quality.

    (a) Water Quality is not guaranteed. The Secretary does not warrant 
the quality of water released or delivered under Storage and Interstate 
Release Agreements, and the United States will not be liable for damages 
of any kind resulting from water quality problems. The United States is 
not under any obligation to construct or furnish water treatment 
facilities to maintain or improve water quality except as may otherwise 
be provided in relevant Federal law.
    (b) Required water quality standards. All entities, in diverting, 
using, and returning Colorado River water, must:
    (1) Comply with all applicable water pollution laws and regulations 
of the United States, the Storing State, and the Consuming State; and
    (2) Obtain all applicable permits or licenses from the appropriate 
Federal, State, or local authorities regarding water quality and water 
pollution matters.



Sec. 414.6  Environmental compliance and funding of Federal costs.

    (a) Ensuring environmental compliance. The Secretary will complete 
environmental compliance documentation, compliance with the National 
Environmental Policy Act of 1969, as amended, and the Endangered Species 
Act of 1973, as amended; and will integrate the requirements of other 
statutes, laws, and executive orders as required for Federal actions to 
be taken under this part.
    (b) Responsibility for environmental compliance work. Authorized 
entities seeking to enter into a Storage and Interstate Release 
Agreement under this part may prepare the appropriate documentation and 
compliance document for a proposed Federal action, such as execution of 
a proposed Storage and Interstate Release Agreement. The compliance 
documents must meet the standards set forth in Reclamation's national 
environmental policy guidance before they can be adopted.
    (c) Responsibility for funding of Federal costs. All costs incurred 
by the United States in evaluating, processing, and/or executing a 
Storage and Interstate Release Agreement under this part must be funded 
in advance by the authorized entities that are party to that agreement.



PART 417--PROCEDURAL METHODS FOR IMPLEMENTING COLORADO RIVER WATER CONSERVATION MEASURES WITH LOWER BASIN CONTRACTORS AND OTHERS--Table of Contents




Sec.
417.1  Scope of part.
417.2  Consultation with contractors.
417.3  Notice of recommendations and determinations.
417.4  Changed conditions, emergency, or hardship modifications.
417.5  Duties of the Commissioner of Indian Affairs with respect to 
          Indian reservations.
417.6  General regulations.


[[Page 558]]


    Authority: 45 Stat. 1057, 1060; 43 U.S.C. 617; and Supreme Court 
Decree in ``Arizona v. California,'' 376 U.S. 340.

    Source: 37 FR 18076, Sept. 7, 1972, unless otherwise noted.



Sec. 417.1  Scope of part.

    The procedures established in this part shall apply to every public 
or private organization (herein termed ``Contractor'') in Arizona, 
California, or Nevada which, pursuant to the Boulder Canyon Project Act 
or to provisions of other Reclamation Laws, has a valid contract for the 
delivery of Colorado River water, and to Federal establishments other 
than Indian Reservations enumerated in Article II(D) of the March 9, 
1964, Decree of the Supreme Court of the United States in the case of 
``Arizona v. California et al.'', 376 U.S. 340 (for purposes of this 
part each such Federal establishment is considered as a ``Contractor''), 
except that (a) neither this part nor the term ``Contractor'' as used 
herein shall apply to any person or entity which has a contract for the 
delivery or use of Colorado River water made pursuant to the Warren Act 
of February 21, 1911 (36 Stat. 925) or the Miscellaneous Purposes Act of 
February 25, 1920 (41 Stat. 451), (b) Contractors and permittees for 
small quantities of water, as determined by the Regional Director, 
Bureau of Reclamation, Boulder City, Nev. (herein termed ``Regional 
Director''), and Contractors for municipal and industrial water may be 
excluded from the application of these procedures at the discretion of 
the Regional Director, and (c) procedural methods for implementing 
Colorado River water conservation measures on Indian Reservations will 
be in accordance with Sec. 417.5 of this part.



Sec. 417.2  Consultation with contractors.

    The Regional Director or his representative will, prior to the 
beginning of each calendar year, arrange for and conduct such 
consultations with each Contractor as the Regional Director may deem 
appropriate as to the making by the Regional Director of annual 
recommendations relating to water conservation measures and operating 
practices in the diversion, delivery, distribution and use of Colorado 
River water, and to the making by the Regional Director of annual 
determinations of each Contractor's estimated water requirements for the 
ensuing calendar year to the end that deliveries of Colorado River water 
to each Contractor will not exceed those reasonably required for 
beneficial use under the respective Boulder Canyon Project Act contract 
or other authorization for use of Colorado River water.



Sec. 417.3  Notice of recommendations and determinations.

    Following consultation with each Contractor and after consideration 
of all relevant comments and suggestions advanced by the Contractors in 
such consultations, the Regional Director will formulate his 
recommendations and determinations relating to the matters specified in 
Sec. 417.2. The recommendations and determinations shall, with respect 
to each Contractor, be based upon but not necessarily limited to such 
factors as the area to be irrigated, climatic conditions, location, land 
classifications, the kinds of crops raised, cropping practices, the type 
of irrigation system in use, the condition of water carriage and 
distribution facilities, record of water orders, and rejections of 
ordered water, general operating practices, the operating efficiencies 
and methods of irrigation of the water users, amount and rate of return 
flows to the river, municipal water requirements and the pertinent 
provisions of the Contractor's Boulder Canyon Project Act water delivery 
contract. The Regional Director shall give each Contractor written 
notice by registered or certified mail, return receipt requested, of his 
recommendations and determinations. If the recommendations and 
determinations include a reduction in the amount of water to be 
delivered, as compared to the calendar year immediately preceding, the 
notice shall be delivered to the Contractor or timely sent by registered 
or certified mail, return receipt requested, so that it may reasonably 
be delivered at least 30 days prior to the first date water delivery 
would be affected thereby, and shall specify the basis for such 
reduction including any pertinent factual determinations. The 
recommendations

[[Page 559]]

and determinations of the Regional Director shall be final and 
conclusive unless, within 30 days of the date of receipt of the notice, 
the Contractor submits his written comments and objections to the 
Regional Director and requests further consultation. If, after such 
further consultation, timely taken, the Regional Director does not 
modify his recommendations and determinations and so advises the 
Contractor in writing, or if modifications are made but the Contractor 
still feels aggrieved thereby after notification in writing of such 
modified recommendations and determinations, the Contractor may, before 
30 days after receipt of said notice, appeal to the Secretary of the 
Interior. During the pendency of such appeal, and until disposition 
thereof by the Secretary, the recommendations and determinations 
formulated by the Regional Director shall be of no force or effect. In 
the event delivery of water is scheduled prior to the new 
recommendations and determinations becoming final, said delivery shall 
be made according to the Contractor's currently proposed schedule or to 
the schedules approved for the previous calendar year, whichever is 
less.



Sec. 417.4  Changed conditions, emergency, or hardship modifications.

    A Contractor may at any time apply in writing to the Regional 
Director for modification of recommendations or determinations deemed 
necessary because of changed conditions, emergency, or hardship. Upon 
receipt of such written application identifying the reason for such 
requested modification, the Regional Director shall arrange for 
consultation with the Contractor with the objective of making such 
modifications as he may deem appropriate under the then existing 
conditions. The Regional Director may initiate efforts for further 
consultation with any Contractor on his own motion with the objective of 
modifying previous recommendations and determinations, but in the event 
such modifications are made, the Contractor shall have the same 
opportunity to object and appeal as provided in Sec. 417.3 of this part 
for the initial recommendations and determinations. The Regional 
Director shall afford the fullest practicable opportunity for 
consultation with a Contractor when acting under this section. Each 
modification under this section shall be transmitted to the Contractor 
by letter.



Sec. 417.5  Duties of the Commissioner of Indian Affairs with respect to Indian reservations.

    (a) The Commissioner of Indian Affairs (herein termed 
``Commissioner'') will engage in consultations with various tribes and 
other water users on the Indian Reservations listed in Article II (D) of 
said Supreme Court Decree, similar to those engaged in by the Regional 
Director with regard to Contractors as provided in Sec. 417.2 of this 
part. After consideration of all comments and suggestions advanced by 
said tribes and other water users on said Indian Reservations concerning 
water conservation measures and operating practices in the diversion, 
delivery, distribution and use of Colorado River water, the Commissioner 
shall, within the limits prescribed in said decree, make a determination 
as to the estimated amount of water to be diverted for use on each 
Indian Reservation covered by the above decree. Said determination shall 
be made prior to the beginning of each calendar year. That determination 
shall be based upon, but not necessarily limited to, such factors as: 
The area to be irrigated, climatic conditions, location, land 
classifications, the kinds of crops raised, cropping practices, the type 
of irrigation system in use, the condition of water carriage and 
distribution facilities, record of water orders, and rejections of 
ordered water, general operating practices, the operating efficiencies 
and methods of irrigation of the tribes and water users on each 
reservation, the amount and rate of return flows to the river, municipal 
water requirements, and other uses on the reservation. The Commissioner 
of Indian Affairs shall deliver to the Regional Director written notice 
of the amount of water to be diverted for use upon each Indian 
Reservation for each year 60 days prior to the beginning of each 
calendar year and the basis for said determination. The determination of 
the Commissioner shall be final and

[[Page 560]]

conclusive unless within 30 days of the date of receipt of such notice 
the Regional Director submits his written comments and objections to the 
Commissioner of Indian Affairs and requests further consultation. If 
after such further consultation, timely taken, the Commissioner does not 
modify his determination and so advises the Regional Director in writing 
or if modifications are made by the Commissioner but the Regional 
Director still does not agree therewith, the Regional Director may, 
within 30 days after receipt of the Commissioner's response, appeal to 
the Secretary of the Interior for a decision on the matter. During the 
pendency of such appeal and until disposition thereof by the Secretary, 
water deliveries will be made to the extent legally and physically 
available according to the Commissioner's determination or according to 
the Commissioner's determination for the preceding calendar year, 
whichever is less.
    (b) Modifications of said determinations due to changed conditions, 
emergency or hardship may be made by the Commissioner, subject, however, 
to the right of the Regional Director to appeal to the Secretary, as 
provided in the case of an initial determination by the Commissioner. 
During the pendency of such an appeal, water deliveries will be made on 
the basis of the initial determination.



Sec. 417.6  General regulations.

    In addition to the recommendations and determinations formulated 
according to the procedures set out above, the right is reserved to 
issue regulations of general applicability to the topics dealt with 
herein.



PART 418--OPERATING CRITERIA AND PROCEDURES FOR THE NEWLANDS RECLAMATION PROJECT, NEVADA--Table of Contents




                           General Provisions

Sec.
418.1  Definitions.
418.2  How Project water may be used.
418.3  Effect of these regulations on water rights.
418.4  Prohibited deliveries.
418.5  Responsibility for violations.
418.6  Fallon Paiute-Shoshone Indian Reservation.

                      Conditions of Water Delivery

418.7  Who may receive irrigation deliveries.
418.8  Types of eligible land.
418.9  Reporting changes in eligible land.
418.10  Determining the amount of water duty to be paid.
418.11  Valid headgate deliveries.
418.12  Project efficiency.
418.13  Maximum allowable limits.

                          Monitoring Diversions

418.14  Recordkeeping requirements.
418.15  Operations monitoring.

                        Operations and Management

418.16  Using water for power generation.
418.17  Truckee and Carson River water use.
418.18  Diversions at Derby Dam.
418.19  Diversions from the Truckee River to the Truckee Division.
418.20  Diversions from the Truckee River to Lahontan Reservoir, January 
          through June.
418.21  Diversion of Truckee River water to Lahontan Reservoir, July 
          through December.
418.22  Future adjustments to Lahontan Reservoir storage targets.
418.23  Diversion of Rock Dam Ditch water.
418.24  Precautionary drawdown and spills from Lahontan Reservoir.
418.25  Water use for other than Newlands Project.
418.26  Charges for water use.
418.27  Distribution system operation.

                               Enforcement

418.28  Conditions of delivery.
418.29  Project management.
418.30  Provisions required in future contracts.

                    Water Management and Conservation

418.31  Conservation measures.
418.32  Cooperative programs.

                             Implementation

418.33  Purpose of the implementation strategy.
418.34  Valid headgate deliveries.
418.35  Efficiencies.
418.36  Incentives for additional long term conservation.
418.37  Disincentives for lower efficiency.
418.38  Maximum allowable diversion.

       Appendix A to Part 418--Calculation of Efficiency Equation

    Authority: 43 U.S.C. 391, et seq.; 43 U.S.C. 373; 43 U.S.C. 614, et 
seq.; 104 Stat. 3289, Pub. L. 101-618.

[[Page 561]]


    Source: 62 FR 66467, Dec. 18, 1997, unless otherwise noted.

                           General Provisions



Sec. 418.1  Definitions.

    Bureau means the Bureau of Reclamation.
    Decrees means the Alpine decree (United States v. Alpine Land and 
Reservoir Co., 503 F. Supp. 877 (D. Nev. 1980)) and the Orr Ditch decree 
(United States v. Orr Water Ditch Co., Equity No. A-3 (D. Nev.))
    District means the Truckee-Carson Irrigation District or any other 
approved Newlands Project operator.
    Eligible land means Project land which at the time of delivery has a 
valid water right and either:
    (1) Is classified as irrigable under Bureau land classification 
standards (Reclamation Instruction Series 510); or
    (2) Has a paid out Project water right.
    Full reservoir means 295,500 acre-feet in Lahontan Reservoir using 
Truckee River diversions. The Reservoir can fill above 295,500 acre-feet 
to 316,500 acre-feet with Carson River inflow and the use of flash 
boards. Intentional storage on the flash boards will occur only after 
the peak runoff.
    Project means the Newlands Irrigation Project in western Nevada.



Sec. 418.2  How Project water may be used.

    Project water may be delivered only to serve valid water rights used 
for:
    (a) Maintenance of wetlands and fish and wildlife including 
endangered and threatened species;
    (b) Recreation;
    (c) Irrigation of eligible land; and
    (d) Domestic and other uses of Project water as defined by the 
decrees.



Sec. 418.3  Effect of these regulations on water rights.

    This part governs water uses within existing rights. This part does 
not in any way change, amend, modify, abandon, diminish, or extend 
existing rights. Water rights transfers will be determined by the Nevada 
State Engineer under the provisions of the Alpine decree.



Sec. 418.4  Prohibited deliveries.

    The District must not deliver Project water or permit its use except 
as provided in this part. No Project water will be released in excess of 
the maximum allowable diversion or delivered to ineligible lands. 
Delivery of water to land in excess of established water duties is 
prohibited.



Sec. 418.5  Responsibility for violations.

    Violations of the terms and provisions of this part must be reported 
immediately to the Bureau. The District or individual water users will 
be responsible for any shortages to water users occasioned by waste or 
excess delivery or delivery of water to ineligible land as provided in 
this part.



Sec. 418.6  Fallon Paiute-Shoshone Indian Reservation.

    Nothing in this part affects:
    (a) The authority of the Fallon Paiute-Shoshone Tribe to use water 
on the Tribe's reservation which was delivered to the Reservation in 
accordance with this part; or
    (b) The Secretary's trust responsibility with respect to the Fallon 
Paiute-Shoshone Tribe.

                      Conditions of Water Delivery



Sec. 418.7  Who may receive irrigation deliveries.

    Project irrigation water deliveries may be made only to eligible 
land to be irrigated. The District must maintain records for each 
individual water right holder indicating the number of eligible acres 
irrigated and the amount of water ordered and delivered.



Sec. 418.8  Types of eligible land.

    (a) Eligible land actually irrigated. During each year, the 
District, in cooperation with the Bureau, must identify and report to 
the Bureau the location and number of acres of eligible land irrigated 
in the Project. Possible irrigation of ineligible land will also be 
identified. The Bureau will review data to ensure compliance with this 
part. The District, in cooperation with the Bureau, will be responsible 
for field checking potential violations and immediately stopping 
delivery of Project

[[Page 562]]

water to any ineligible land. The Bureau may also audit as appropriate.
    (b) Eligible land with transferred water rights. The District water 
rights maps dated August 1981 through January 1983 will be used as the 
basis for determining which lands have a valid water right. The original 
maps will be maintained by the District. The District must provide 
copies of the maps to the Bureau. The District will alter the maps and 
the copies to account for water right transfers as the transfers are 
approved by the Nevada State Engineer.
    (c) Other eligible land. The Bureau will also identify eligible land 
that was not irrigated during the prior irrigation season.



Sec. 418.9  Reporting changes in eligible land.

    (a) Eligible land anticipated to be irrigated. (1) Anticipated 
changes in irrigated eligible land from the prior year will be reported 
to the Bureau's Lahontan Area Office by the District by March 1 of each 
year. The District will adjust the acreage of the eligible land 
anticipated to be irrigated to correct for inaccuracies, water right 
transfers that have been finally approved by the Nevada State Engineer, 
and any other action that affects the number of eligible acres, acres 
anticipated to be irrigated, or water deliveries.
    (2) As the adjustments are made, the District will provide updated 
information to the Bureau for review and approval. The District must 
adjust anticipated water allocations to individual water users 
accordingly. The allocations will at all times be based on a maximum 
annual entitlement of 3.5 acre-feet (AF) per acre of bottom land, 4.5 AF 
per acre of bench land, and 1.5 AF per acre of pasture land that is 
anticipated to be irrigated and not on the number of water-righted 
acres.
    (3) The District will provide the individual water users with the 
approved data regarding the anticipated acreage to be irrigated and 
water allocations for each water user that year.
    (i) Any adjustments based on changes in lands anticipated to be 
irrigated during the irrigation season must be reported by the 
individual water user to the District.
    (ii) The District will, in turn, notify the Bureau of any changes in 
irrigated acreage which must be accounted for.
    (iii) Each landowner's anticipated acreage must be less than or 
equal to the landowner's eligible acreage.
    (4) Should a landowner believe that the number of acres of eligible 
land he or she is entitled to irrigate is different from the number of 
acres as approved by the Bureau, the landowner must notify the District 
and present appropriate documentation regarding the subject acreage. The 
District must record the information and present the claim to the Bureau 
for further consideration.
    (i) If the Bureau determines there is sufficient support for the 
landowner's claim, then adjustments will be made to accommodate the 
changes requested by the landowner.
    (ii) If the Bureau disallows the landowner's claim, the Bureau must 
notify the District in writing. The District will, in turn, inform the 
landowner of the disposition of the claim and the reasons therefore, and 
will further instruct the landowner that he or she may seek judicial 
review of the Bureau's determination under the decrees. If the dispute 
affects the current year, then the Bureau and the District will seek to 
expedite any court proceeding.
    (b) Changes in domestic and other uses. By March 1 of each year, the 
District must report to the Bureau all anticipated domestic and other 
water uses. This notification must include a detailed explanation of the 
criteria used in allowing the use and sufficient documentation on the 
type and amount of use by each water user to demonstrate to the 
satisfaction of the Bureau that each water user is in compliance with 
the criteria. With adequate documentation, the District may notify the 
Bureau of any changes in domestic water requirements at any time during 
the year.



Sec. 418.10  Determining the amount of water duty to be delivered.

    (a) Eligible land may receive no more than the amount of water in 
acre-feet per year established as maximum farm

[[Page 563]]

headgate delivery allowances by the decrees. All water use is limited to 
that amount reasonably necessary for economical and beneficial use under 
the decrees.
    (b) The annual water duty as assigned by the decrees is a maximum of 
4.5 AF per acre for bench lands and a maximum of 3.5 AF per acre for 
bottom lands. The water duty for fields with a mixture of bench and 
bottom lands must be the water duty of the majority acreage. Bench and 
bottom land designations as finally approved by the United States 
District Court for the District of Nevada will be used in determining 
the maximum water duty for any parcel of eligible land. The annual water 
duty for pasture land established by contract is 1.5 AF per acre.



Sec. 418.11  Valid headgate deliveries.

    The valid water deliveries at the headgate are set by the product of 
eligible land actually irrigated multiplied by the appropriate water 
duty in accordance with Secs. 418.8 and 418.10. The District will 
regularly monitor all water deliveries and report in accordance with 
Sec. 418.9. No amount of water will be delivered in excess of the 
individual water user's headgate entitlement. In the event excess 
deliveries should occur, such amount will be automatically reflected in 
the efficiency deficit adjustment to the Lahontan storage. Water 
delivered in excess of entitlements must not be considered valid for 
purposes of computing project efficiency.



Sec. 418.12  Project efficiency.

    (a) The principal feature of this part is to obtain a reasonable 
level of efficiency in supplying water to the headgate by the District. 
The efficiency targets established by this part are the cornerstone of 
the enforcement and the incentive provisions and when implemented will 
aid other competing uses.
    (b) The efficiency is readily calculable at the year's end, readily 
applicable to water appropriate to that year, able to be compared to 
other irrigation systems even though there may be many dissimilarities, 
appropriate for long term averaging, adjustable to any headgate delivery 
level including droughts or allocations, automatically adjusts to 
changes during the year and accurately accounts for misappropriated 
water. Efficiency also can be achieved through any number of measures 
from operations to changes in the facilities and can be measured as an 
end product without regard to the approach. Thus it is flexible enough 
to allow local decision making and yet is fact based to minimize 
disputes.
    (c) Assuming the headgate deliveries are valid and enforceable, 
conveyance efficiency is the only remaining variable in determining the 
quantity of water needed to be supplied to the District. Conveyance 
efficiency is a measure of how much water is released into the 
irrigation system relative to actual headgate deliveries. Differences in 
efficiency, therefore, are directly convertible to acre-feet. The 
differences in efficiency, expressed as a quantity in acre-feet, may be 
added to or subtracted from the actual Lahontan Reservoir storage level 
before it is compared to the monthly storage objective. Thus, the 
diversions from the Truckee River, operation of other facilities (e.g., 
Stampede Reservoir) and decisions related to Lahontan Reservoir are made 
after the efficiency storage adjustments have been made. Operating 
decisions are made as if the adjusted storage reflected actual 
conditions.
    (1) Efficiency incentive credits. In any year that the District's 
actual efficiency exceeds the target efficiency for the actual headgate 
delivery, two-thirds of the resultant savings, in water, will be 
credited to the District as storage in Lahontan. This storage amount 
will remain in Lahontan Reservoir as water available to the District to 
use at its discretion consistent with Nevada and Federal law. Such uses 
may include wetlands (directly or incidentally), power production, 
recreation, a hedge against future shortages or whatever else the 
District determines. The storage is credited at the end of the 
irrigation season from which it was earned. This storage ``floats'' on 
top of the reservoir so that if it is unused it will be spilled first if 
the reservoir spills. The District may use all capacity of Lahontan 
Reservoir not needed for project purposes to store credits.

[[Page 564]]

    (2) Efficiency disincentive debits. In any year that the District's 
actual efficiency falls short of the target appropriate to the actual 
headgate deliveries, then the resultant excess water that was used is 
considered borrowed from the future. Thus it becomes a storage debit 
adjustment to the actual Lahontan Reservoir storage level for 
determining all operational decisions. The debit may accumulate but may 
not exceed a maximum as defined in Sec. 418.13(b). The debit must be 
offset by an existing incentive credit or, if none is available, by a 
subsequent incentive at a full credit (not a 2/3 credit), or finally by 
a restriction of actual headgate deliveries by the District. This would 
only be done prospectively (a subsequent year) so the District and the 
water users can prepare accordingly. Since the debit does not 
immediately affect other competing uses or the District (except in a 
real drought), it allows for future planning and averaging over time.
    (3) Efficiency targets. To determine the efficiency target, the 
system delivery losses were divided into categories such as seepage, 
evaporation and operational losses. The ``reasonable'' level of savings 
for each category was then determined by starting with current operating 
experience and applying the added knowledge from several measures. Means 
of achieving the efficiency targets, including the specific conservation 
measures and amounts, are identified in the table Possible Water 
Conservation Measures for the Newlands Project. Applicable target 
efficiencies will be determined each year as described in Sec. 418.13 
(a)(4).
    (4) Available conservation measures. The water conservation measures 
referred to in paragraph (c)(3) of this section and others currently 
available to the District are listed in the following table. The table 
has been revised based upon the Bureau of Reclamation's Final Report to 
Congress of the Newlands Project Efficiency Study, 1994.

      Possible Water Conservation Measures for the Newlands Project
------------------------------------------------------------------------
                              Expected savings
  Conservation measures\1\    in acre-feet (AF)           Notes
                                 per year\2\
------------------------------------------------------------------------
1. Water ordering            1,000               Require 48-hour advance
                                                  notice.
2. Adjust Lahontan Dam       ++\3\               Match releases to
 releases frequently                              demand with daily
                                                  adjustments.
3. Increase accuracy of      12,000              Account for deliveries
 delivery records and                             to nearest cfs and to
 measurement devices                              nearest minute.
4. Change operation of       ??\4\               Eliminate use of all or
 regulating reservoirs                            parts of regulating
                                                  reservoirs; drain at
                                                  end of season.
5. Shorten irrigation        4,000               Reduce by 2 weeks.
 season
6. Control delivery system   ++                  Eliminate spills,
                                                  better scheduling,
                                                  grouping deliveries.
7. System improvements       ??                  O&M activity: repair
                                                  leaky gates, reshape
                                                  canals, improve
                                                  measuring devices.
8. Dike off 2/3 S-Line       2,720               500 ft. dike; (5'
 Reservoir                                        evaporation, 0.75'
                                                  seepage).
9. Dike off south half of    2,130               5,000 ft. dike; large
 Harmon Reservoir                                 savings considering
                                                  canal losses (5'
                                                  evap., 1.8' seepage).
10. Dike off west half of    2,400               6,000 ft. dike.
 Sheckler Reservoir
11. Eliminate use of         4,000               Use for Lahontan spill
 Sheckler Reservoir                               capture only; restore
                                                  200 ft. of E-Canal; A-
                                                  Canal is OK.
12. Line 20 miles of         20,000              Reduces O&M.
 Truckee Canal\5\
13. Line large canals        26,100-31,000       Line large net losers
                                                  first.
14. Line regulatory          2.3 AF/acre
 reservoirs
15. Reuse drain water for    7,100               Assuming blended water
 irrigation                                       quality would be
                                                  adequate
16. Ditch rider training     ??
 each year
17. Canal automation         ??                  Reduced canal
                                                  fluctuations.
18. Community rotation       ??                  Grouping deliveries by
 system                                           area.
19. Reclamation Reform Act   ??                  District implementation
 water conservation plan:                         of water conservation
                                                  plan.
    a. Weed and
     phreatophyte control
    b. Fix gate leaks
    c. Water measurement
    d. Automation
    e. Communication
20. Pumps and wells for      400
 small diverters
21. Water pricing by amount  ++                  Incurs administrative
 used                                             costs to implement.
22. Incentive programs       ??                  For District personnel
                                                  and/or water users.
23. Drain canals             1,065               At the end of each
                                                  irrigation season.

[[Page 565]]

 
24. Acquire parcels with     22,280              Acquire and retire
 inefficient delivery\6\                          water rights from
                                                  irrigated acreage with
                                                  particularly
                                                  inefficient delivery.
                                                  Lesser savings from
                                                  transferring water
                                                  rights to lands with
                                                  more efficient
                                                  delivery.
------------------------------------------------------------------------
\1\The first seven measures were considered in developing the water
  budget in Table 1 for the 1988 OCAP. Additional measures could be
  implemented by the District to help achieve efficiency requirements.
\2\Water savings have been updated in accordance with Bureau of
  Reclamation's Report to Congress on Newlands Project Efficiency, April
  1994.
\3\++ indicates a positive number for savings but not quantifiable at
  this time.
\4\?? indicates uncertainty as to savings.
\5\This measure was included in the 1988 OCAP and effects overall
  Project efficiency; it is recognized that savings from this measure
  are not accounted for in the OCAP.
\6\Identified in the 1994 BOR Efficiency Study: 31 Corporation, below
  Sagouspe Dam, and N Canal.

    (5) The measures in paragraph (c)(4) of this section are 
discretionary choices for the District. The range of measures available 
to the District provides a level of assurance that the target efficiency 
is reasonably achievable. The resultant efficiency targets were also 
compared to the range of efficiencies actually experienced by other 
irrigation systems that were considered comparable in order to provide a 
further check on ``reasonable.'' Most of the delivery losses are 
relatively constant regardless of the amount of deliveries. The 
efficiency will necessarily vary with the amount of headgate deliveries.
    (6) The target efficiency for any annual valid headgate delivery can 
be derived from the table in Appendix A to this part.



Sec. 418.13  Maximum allowable limits.

    (a) Maximum allowable diversions. (1) A provisional water budget in 
the Newlands Project Water Budget table must be recalculated for each 
irrigation season to reflect anticipated water-righted acres to be 
irrigated. At the start of the irrigation season, the maximum allowable 
diversion (MAD) for each year must be determined by revising the first 
10 lines of the Newlands Project Water Budget table based on acres of 
eligible land anticipated to actually be irrigated in that year 
(Sec. 418.9(a)) and the water duties for those lands (Sec. 418.10 ). At 
the end of the irrigation season, the required target efficiency must be 
recalculated for the irrigation season based on the actual irrigated 
acres and percent use of headgate entitlements.

[[Page 566]]

[GRAPHIC] [TIFF OMITTED] TR18DE97.004

    (2) The MAD will be calculated annually to ensure an adequate water 
supply for all water right holders whose water use complies with their 
decreed entitlement and this part. The MAD is the maximum amount of 
water permitted to be diverted for irrigation use on the Project in that 
year. It is calculated to ensure full entitlements can be provided, but 
is expected to significantly exceed Project requirements. The MAD will 
be established by the Bureau at least 2 weeks before the start of each 
irrigation season. All releases of water from Lahontan Reservoir and 
diversions from the Truckee Canal (including any diversions from the 
Truckee Canal to Rock Dam Ditch) must be charged to the MAD except as 
provided in Secs. 418.23 and 418.35 of this part.
    (3) On the basis of the methodology adopted in this part (i.e., 
actual irrigated acres multiplied by appropriate water duties divided by 
established project efficiency) an example of the MAD calculated for the 
projected irrigated acreage as shown in the Newlands Project Water 
Budget table would be 308,319 acre-feet for the 1995 Example. The sample 
MAD corresponds

[[Page 567]]

to a system efficiency for full deliveries at 66.9 percent for 1995 
actual acres. Target efficiencies must be based on the percentage of 
maximum headgate entitlement delivered and not on the percent of water 
supply available.
    (4) The table Expected Project Distribution System Efficiency shows 
the target efficiencies which will be used over the range of irrigated 
acreage and percent use of entitlement expected in the future. At the 
beginning of the irrigation season, the target efficiencies from the 
Expected Project Distribution System Efficiency table used to calculate 
the MAD will be based on the expected irrigated acreage and expected 
percent use of entitlement. At the end of the irrigation season, the 
actual acreage irrigated and actual percent use of entitlement will be 
used to determine the required efficiency from the Expected Project 
Distribution System Efficiency. The target efficiencies are read 
directly from the table if the acreage and use of entitlement values are 
shown, otherwise the target efficiency must be extrapolated from the 
table or calculated using the Efficiency Equation. Appendix A of this 
part shows the calculations used to derive the Efficiency Equation and 
the efficiency targets.

[[Page 568]]

[GRAPHIC] [TIFF OMITTED] TR18DE97.005

    (5) Adjustments in the MAD must be made by the Bureau each year 
based on changes in irrigated eligible land from the prior year and 
subsequent decisions concerning transfers of Project water rights, using 
the methodology established in this section.

[[Page 569]]

    (6) If the MAD for a given year will not meet the water delivery 
requirements for the eligible land to be irrigated due to weather 
conditions, canal breaks, or some other unusual or unforeseen condition, 
the District must ask the Bureau for additional water.
    (i) The District's request must include a written statement 
containing a detailed explanation of the reasons for the request.
    (ii) The Bureau must promptly review the request and after 
consultation with the Federal Water Master and other interested parties, 
will determine if the request or any portion of it should be approved. 
The Bureau will make reasonable adjustments for unforeseen causes or 
events but will not make adjustments to accommodate waste or Project 
inefficiency or other uses of water not in accordance with this part or 
with State and Federal law.
    (iii) The Bureau will then notify the District of its determination. 
If the District does not agree with the Bureau's decision, it may seek 
judicial review. The Bureau and the District will seek to expedite the 
court proceeding in order to minimize any potential adverse effects.
    (b) Maximum allowable efficiency debits (MED). The debits in 
Lahontan Reservoir storage from the District's actual conveyance 
efficiency not achieving the target efficiency can accumulate over time. 
If these amounts of borrowed storage get too large they may not be 
offset later by increased efficiencies and may severely affect the 
District's water users by imposing an added ``drought'' on top of a real 
one. Therefore, the maximum efficiency debit cushion is set at 26,000 
acre-feet. However, unlike the MAD, it only applies to the subsequent 
year's operation. The MED is approximately 9 percent of the headgate 
entitlements.

                          Monitoring Diversions



Sec. 418.14  Recordkeeping requirements.

    (a) By the end of each month, the District must submit to the 
Bureau's Lahontan Area Office reports for the previous month which 
document monthly inflow and outflow in acre-feet from the Truckee and 
Carson divisions of the Project for that month. Reports must include any 
data the Bureau may reasonably require to monitor compliance with this 
part.
    (b) Accounting for farm headgate deliveries must be based on the 
amount of water actually delivered to the water user. Project operations 
must provide for the amount of water ordered and the distribution system 
losses.
    (c) The District must keep records of all domestic and other water 
uses showing the purpose and amount of water usage for each entity. The 
District must make the records available for review by the Bureau upon 
request. The Bureau may audit all records kept by the District.



Sec. 418.15  Operations monitoring.

    (a) The Bureau will work with the District to monitor Project 
operations and will perform field inspections of water distribution 
during the irrigation season.
    (1) Staff members of the Bureau's Lahontan Area Office and the 
District will meet as often as necessary during the irrigation season 
after each water distribution report has been prepared to examine the 
amounts of water used to that point in the season.
    (2) On the basis of the information obtained from field 
observations, water use records, and consultations with District staff, 
the Bureau will determine at monthly intervals whether the rate of 
diversion is consistent with this part for that year.
    (3) The District will be informed in writing of suggested 
adjustments that may be made in management of diversions and releases as 
necessary to achieve target efficiencies and stay within the MAD.
    (b) Project operations will be monitored in part by measuring flows 
at key locations. Specifically, Project diversions (used in the 
calculations under Sec. 418.18 below) will be determined by:
    (1) Adding flows measured at:
    (i) Truckee Canal near Wadsworth--U.S. Geological Survey (USGS) 
gauge number 10351300;
    (ii) Carson River below Lahontan Dam--USGS gauge number 10312150;

[[Page 570]]

    (iii) Rock Dam Ditch near the end of the concrete lining; and
    (2) Subtracting:
    (i) Flows measured at the Truckee Canal near Hazen--USGS gauge 
number 10351400;
    (ii) The Carson River at Tarzyn Road near Fallon (below Sagouspe 
Dam) for satisfying water rights outside of the Project boundaries as 
described in Sec. 418.25, USGS gauge number 10312275;
    (iii) Estimated losses in the Truckee Canal; and
    (iv) Spills, precautionary drawdown, and incentive water released at 
Lahontan Dam under Secs. 418.24 and 418.36.

                        Operations and Management



Sec. 418.16  Using water for power generation.

    All use of Project water for power generation must be incidental to 
releases charged against Project diversions, precautionary drawdown, 
incentive water (Sec. 418.35 ), or spills.



Sec. 418.17  Truckee and Carson River water use.

    Project water must be managed to make maximum use of Carson River 
water and to minimize diversions of Truckee River water through the 
Truckee Canal. This will make available as much Truckee River water as 
possible for use in the lower Truckee River and Pyramid Lake.



Sec. 418.18  Diversions at Derby Dam.

    (a) Diversions of Truckee River water at Derby Dam must be managed 
to maintain minimum terminal flow to Lahontan Reservoir or the Carson 
River except where this part specifically permits diversions.
    (b) Diversions to the Truckee Canal must be managed to achieve an 
average terminal flow of 20 cfs or less during times when diversions to 
Lahontan Reservoir are not allowed (the flows must be averaged over the 
total time diversions are not allowed in that calendar year; i.e., if 
flows are not allowed in July and August and then are allowed in 
September then not allowed in October and November, the average flow 
will be averaged over the four months of July, August, October, and 
November).
    (c) The Bureau will work cooperatively with the District on 
monitoring the flows at the USGS gage on the Truckee Canal near Hazen to 
determine if and when flows are in excess of those needed in accord with 
this part and bringing the flows back into compliance when excessive.
    (d) Increases in canal diversions which would reduce Truckee River 
flows below Derby Dam by more than 20 percent in a 24-hour period will 
not be allowed when Truckee River flow, as measured by the gauge below 
Derby Dam, is less than or equal to 100 cfs.
    (e) Diversions to the Truckee Canal will be coordinated with 
releases from Stampede Reservoir and other reservoirs, in cooperation 
with the Federal Water Master, to minimize fluctuations in the Truckee 
River below Derby Dam in order to meet annual flow regimes established 
by the United States Fish and Wildlife Service for listed species in the 
lower Truckee River.



Sec. 418.19  Diversions from the Truckee River to the Truckee Division.

    Sufficient water, if available, will be diverted from the Truckee 
River through the Truckee Canal to meet the direct irrigation, domestic 
and other entitlements of the Truckee Division.



Sec. 418.20  Diversions from the Truckee River to Lahontan Reservoir, January through June.

    (a) Truckee River diversions through the Truckee Canal will be made 
to meet Lahontan Reservoir end-of-month storage objectives for the 
months of January through June. The current month storage objective will 
be based, in part, on the monthly Natural Resources Conservation Service 
(NRCS) April through July runoff forecast for the Carson River near Fort 
Churchill. The forecast will be used to determine the target storage for 
Lahontan Reservoir and anticipated diversion requirements for the Carson 
Division. The Bureau, in consultation with the District, Federal Water 
Master, Fish and Wildlife Service, the Pyramid Lake

[[Page 571]]

Paiute Tribe, and other affected parties, will determine the exceedance 
levels and predicted Carson River inflows based on the reliability of 
the NRCS forecast and other available information such as river 
forecasts from other sources. The end-of-month storage objectives may be 
adjusted any time during the month as new forecasts or other information 
become available.
    (b) The January through June storage objective will be calculated 
using the following formula:
LSOCM=TSM/J-(C1* AJ)+L+(C2* CDT)

Where:

(1) LSOCM=current end-of-month storage objectives for Lahontan 
Reservoir.
(2) TSM/J=current end-of-month May/June Lahontan Reservoir target 
storage.
(3) C1* AJ=forecasted Carson River inflow for the period from the end of 
the current month through May or June, with AJ being the Bureau's April 
through July runoff forecast for the Carson River at Fort Churchill and 
C1 being an adjustment coefficient.
(4) L=an average Lahontan Reservoir seepage and evaporation loss from 
the end of the current month through May or June.
(5) C2* CDT=projected Carson Division demand from the end of the current 
month through May or June, with CDT being the total Carson Division 
diversion requirement (based on eligible acres anticipated to be 
irrigated times the appropriate duty times a 95 percent usage rate), and 
C2 being the estimate of the portion of the total diversion requirement 
to be delivered during this period.
(6) Values for TSM/J will vary with the Carson Division water demand as 
shown in Sec. 418.22 and the Adjustments to Lahontan Reservoir Storage 
Targets table. Values C1, L and C2 are defined in the following table 
along with an example of TSM/J for Carson River water demand of 271,000 
acre-feet.

                                Monthly Values for Lahontan Storage Computations
----------------------------------------------------------------------------------------------------------------
                                             January    February      March       April        May        June
----------------------------------------------------------------------------------------------------------------
TSM/J....................................     174.0       174.0       174.0       174.0       174.0        190.0
C1/MAY...................................       0.863       0.734       0.591       0.394
C1/JUNE..................................       1.190       1.061       0.918       0.721       0.327
L/MAY....................................      13.9        12.5         9.9         7.1
L/JUNE...................................      18.2        16.8        14.2        11.4         4.3
C2/MAY...................................       0.30        0.30        0.28        0.18
C2/JUNE..................................       0.47        0.47        0.45        0.35        0.17
----------------------------------------------------------------------------------------------------------------

    (c) The Lahontan Reservoir storage objective for each month is 
contained in the following table.

                  Lahontan Reservoir Storage Objectives
------------------------------------------------------------------------
            Period                     Monthly storage objective
------------------------------------------------------------------------
January through April........  Lowest of the May calculation, the June
                                calculation, or full reservoir.
May..........................  Lower of the June calculation or full
                                reservoir.
June.........................  June storage target.
------------------------------------------------------------------------

    (d) Once the monthly Lahontan Reservoir storage objective has been 
determined, the monthly diversion to the Project from the Truckee River 
will be based upon water availability and Project demand as expressed in 
the following relationship:

TRD=TDD+ TCL+CDD+LRL+ LSOCM-ALRS-CRI

Where:

(1) TRD=current month Truckee River diversion in acre-feet to the 
Project.
(2) TDD=current month Truckee Division demand.

[[Page 572]]

(3) TCL = current month Truckee Canal conveyance loss.
(4) CDD = current month Carson Division demand.
(5) LRL = current month Lahontan Reservoir seepage and evaporation 
losses.
(6) LSOCM = current month end-of-month storage objective for Lahontan 
Reservoir.
(7) ALRS = current month beginning-of-month storage in Lahontan 
Reservoir. (Includes accumulated Stampede credit described below and 
further adjusted for the net efficiency penalty or efficiency credit 
described in Secs. 418.12, 418.36, and 418.37).
(8) CRI = current month anticipated Carson River inflow to Lahontan 
Reservoir (as determined by Reclamation in consultation with other 
interested parties).

    (e) The following procedure is intended to ensure that monthly 
storage objectives are not exceeded. It may be implemented only if the 
following conditions are met:
    (1) Diversions from the Truckee River are required to achieve the 
current month Lahontan Reservoir storage objective (LSOCM);
    (2) Truckee River runoff above Derby Dam is available for diversion 
to Lahontan Reservoir;
    (3) Sufficient Stampede Reservoir storage capacity is available.
    (f) The Bureau, in consultation with the Federal Water Master, the 
District, Fish and Wildlife Service, the Bureau of Indian Affairs, and 
the Pyramid Lake Paiute Tribe will determine whether the calculated 
current month Truckee River diversion to Lahontan Reservoir (TRD-TDD-
TCL) may be reduced during that month and the amount of reduction credit 
stored in Stampede Reservoir.
    (1) Reductions in diversions may begin in November and continue 
until the end of June.
    (2) Reductions in diversions to Lahontan Reservoir with credit 
storage in Stampede Reservoir may be implemented to the extent that:
    (i) The reduction is in lieu of a scheduled release from Stampede 
Reservoir for the purpose of supplementing flows to Pyramid Lake; and/or
    (ii) Water is captured in Stampede Reservoir that is scheduled to be 
passed through and diverted to the Truckee Canal.
    (3) The Fish and Wildlife Service must approve any proposal to 
reduce diversions to Lahontan Reservoir for Newlands Project credit 
purposes without a comparable reduction in release from Stampede 
Reservoir or any conversion of Stampede Reservoir project water to 
Newlands Project credit water.
    (4) The diversion to Lahontan Reservoir may be adjusted any time 
during the month as revised runoff forecasts become available. The 
accumulated credit will be added to current Lahontan Reservoir storage 
(ALRS) in calculating TRD. If the sum of accumulated credit and Lahontan 
Reservoir storage exceeds 295,000 acre-feet, credit will be reduced by 
the amount in excess of 295,000 acre-feet. Credit will also be reduced 
by the amount of precautionary drawdown or spills in that month. If the 
end-of-month storage in Lahontan Reservoir plus the accumulated credit 
in Stampede Reservoir at the end of June exceeds the end-of-month 
storage objective for Lahontan, the credit will be reduced by the amount 
exceeding the end-of-month storage objective.
    (5) Following consultation with the District, the Federal Water 
Master, and other interested parties as appropriate, the Bureau will 
release credit water as needed for Project purposes from July 1 through 
the end of the irrigation season in which the credit accrues with timing 
priority given to meeting current year Project irrigation demands.
    (6) Conveyance of credit water in the Truckee Canal must be in 
addition to regularly scheduled diversions for the Project and will be 
measured at the USGS gauge number 10351300 near Wadsworth.
    (7) Newlands credit water in Stampede Reservoir storage will be 
subject to spill and will not carry over to subsequent years. Newlands 
credit water in Stampede can be exchanged to other reservoirs and retain 
its priority. The credit must be reduced to the extent that Lahontan 
Reservoir storage plus accumulated credit at the end of the

[[Page 573]]

previous month exceeds the storage objectives for that month. If 
Newlands credit water is spilled, it may be diverted to Lahontan 
Reservoir subject to applicable storage targets.
    (i) The Bureau, in consultation with the District, the Federal Water 
Master, and other interested parties, may release Newlands Project 
credit water before July 1.
    (ii) If any Newlands credit water remains in Stampede Reservoir 
storage after the end of the current irrigation season in which it 
accumulated, it will convert to water for cui-ui recovery and will no 
longer be available for Newlands credit water.
    (iii) Newlands credit water stored in Stampede Reservoir will be 
available for use only on the Carson Division of the Newlands Project.
    (g) Subject to the provisions of Sec. 418.20 (b), LSOCM may be 
adjusted as frequently as necessary when new information indicates the 
need and diversions from the Truckee River to the Truckee Canal must be 
adjusted daily or otherwise as frequently as necessary to meet the 
monthly storage objective.



Sec. 418.21  Diversion of Truckee River water to Lahontan Reservoir, July through December.

    Truckee River diversions through the Truckee Canal to Lahontan 
Reservoir from July through December must be made only in accordance 
with the Adjustments to Lahontan Reservoir Storage Targets table and 
Sec. 418.22. Diversions shall be started to achieve the end-of-month 
storage targets listed in the table in Sec. 418.22 and will be 
discontinued when storage is forecast to meet or exceed the end-of-month 
storage targets at the end of the month. Diversions may be adjusted any 
time during the month as conditions warrant (i.e., new forecasts, 
information from other forecasts becoming available, or any other new 
information that may impact stream forecasts).



Sec. 418.22  Future adjustments to Lahontan Reservoir storage targets.

    (a) The Lahontan Reservoir storage targets must be adjusted to 
accommodate changes in water demand in the Carson Division. Using the 
information reported by the District by March 1 of each year on eligible 
land expected to be irrigated and end-of-year data on eligible land 
actually irrigated (Sec. 418.9(b)), the Bureau will determine if the 
Lahontan Reservoir storage targets need to be changed. If no change is 
needed, the storage targets currently in effect will remain in effect.
    (1) Only the actual water demand reported for full water years (100 
percent water supply) will be considered. Targets will not be changed 
based on water demand reported for less than full water years.
    (2) All changes in storage targets must start on October 1 of any 
year. If information provided by March 1 and other available information 
indicates that the Lahontan Reservoir storage targets must be changed, 
the new set of storage targets must be applied starting October 1 of the 
same year and remain in effect until changed according to this section.
    (b) All changes to storage targets will be made according to the 
table in this section. The table of storage targets has been developed 
to provide a consistent Project water supply over a range of demands.
    (1) A storage target adjustment must be made in increments of 
thousands of acre-feet for the change as indicated in the column listing 
Carson Division Demand and the complete set of monthly targets must be 
applied.
    (2) If the change in reported water demand is above or below the 
values in the table of storage targets, the adjustment to the storage 
targets can be calculated. The calculated adjustment is the number that 
would appear in the column Target Adjustment in the table. The 
calculated Target Adjustment is then added or subtracted to the base 
storage target for each month. Target Adjustments must be made in whole 
increments of 1,000 acre-feet and calculated values will be rounded to 
the nearest 1,000 acre-feet.
    (i) For demands greater than those set forth on the table, the 
formula for the Target Adjustment is: Target Adjustment = 0.00208 
(Demand in acre-feet--271,000 acre-feet). For example, if water demand 
increased to 292,635 acre-feet per year, the Target Adjustment 
calculation would be = 0.00208x(292,535-271,000). The result

[[Page 574]]

would be a Target Adjustment of 45 or 45,000 acre-feet. This would be 
added to the base monthly storage target values so, the January-May 
target would be 219,000 acre-feet, June would be 235,000 acre-feet, and 
so on.
    (ii) For demands less than those set forth on the table, the formula 
for the Target Adjustment is: Target Adjustment = 0.00174 (Demand in 
acre-feet--271,000 acre-feet). For example, if water demand decreased to 
248,011 acre-feet per year, the Target Adjustment calculation would be = 
0.00174x(248,011-271,000). The result would be a Target Adjustment of -
40 or -40,000 acre-feet. This would be subtracted from the base monthly 
storage target values so, the January-May target would be 134,000 acre-
feet, June would be 150,000 acre-feet, and so on.


[[Page 575]]


[GRAPHIC] [TIFF OMITTED] TR18DE97.006


[[Page 576]]


[GRAPHIC] [TIFF OMITTED] TR18DE97.007



Sec. 418.23  Diversion of Rock Dam Ditch water.

    Project water may be diverted directly to Rock Dam Ditch from the 
Truckee Canal only when diversions cannot be made from the outlet works 
of Lahontan Reservoir. Such diversions will require the prior written 
approval of the Bureau and be used in calculating Project diversions.



Sec. 418.24  Precautionary drawdown and spills from Lahontan Reservoir.

    (a) Even though flood control is not a specifically authorized 
purpose of the Project, at the request of the District

[[Page 577]]

and in consultation with other interested parties and the approval of 
the Bureau, precautionary drawdown of Lahontan Reservoir may be made to 
limit potential flood damage along the Carson River. The Bureau will 
develop criteria for precautionary drawdown in consultation with the 
District and other interested parties.
    (1) The drawdown must be scheduled sufficiently in advance and at 
such a rate of flow in order to divert as much water as possible into 
the Project irrigation system for delivery to eligible land or storage 
in reregulating reservoirs for later use on eligible land.
    (2) During periods of precautionary drawdown, or when water is 
spilled from Lahontan Reservoir, Project diversions will be determined 
by comparison with other years' data and normalized by comparison of 
differences in climatological data. The Bureau will estimate the 
normalization in consultation with the District and other interested 
parties.
    (3) Spills from Lahontan Reservoir and precautionary drawdown of the 
reservoir to create space for storing flood waters from the Carson River 
Basin that are in excess of the normalized diversions will not be used 
in calculating Project diversions.
    (4) Water captured in Project facilities as a result of a 
precautionary drawdown or spill will not be counted as storage in 
Lahontan Reservoir for the purpose of calculating Truckee River 
Diversions. Such water will not be counted as diversions to the Project 
unless such water is beneficially applied as described in (a)(5) of this 
section.
    (5) Water from precautionary drawdowns or spills that is captured in 
Project facilities must be used to the maximum extent possible, and 
counted as deliveries to eligible lands in the year of the drawdown. If 
all the drawdown water captured in Project facilities cannot be used in 
the year of capture for delivery to eligible lands, then that water must 
be delivered to eligible lands in subsequent years to the maximum extent 
possible and counted against the water users' annual allocation.
    (b) If a precautionary drawdown in one month results in a failure to 
meet the Lahontan Reservoir storage objective for that month, the 
storage objective in subsequent months will be reduced by one-half of 
the difference between that month's storage objective and actual end-of-
month storage. The Bureau is not liable for any damage or water shortage 
resulting from a precautionary drawdown.



Sec. 418.25  Water use for other than Newlands Project purposes.

    The District will release sufficient water to meet the vested water 
rights below Sagouspe Dam as specified in the Alpine decree. These water 
rights are usually met by return flows. Releases for these water rights 
will in no case exceed the portion of 1,300 acre-feet per year not 
supplied by return flows. This water must be accounted for at the USGS 
gauge number 10312275 (the Carson River at Tarzyn Road near Fallon). 
Releases for this purpose will not be considered in determining Project 
diversions since the lands to which the water is being delivered are not 
part of the Project. (See Sec. 418.15(b)(2)(ii).) Any flow past this 
gage in excess of the amount specified in this part will be absorbed by 
the District as an efficiency loss.



Sec. 418.26  Charges for water use.

    The District must maintain a financing and accounting system which 
produces revenue sufficient to repay its operation and maintenance costs 
and to discharge any debt to the United States. The District should give 
consideration to adopting a system which provides reasonable financial 
incentives for the economical and efficient use of water.



Sec. 418.27  Distribution system operation.

    (a) The District must permit only its authorized employees or agents 
to open and close individual turnouts and operate the distribution 
system facilities. After obtaining Bureau approval, the District may 
appoint agents to operate individual headgates on a specific lateral if 
it can be shown that the water introduced to the lateral by a District 
employee is completely scheduled and can be fully accounted for with a 
reasonable allowance for seepage and evaporation losses.

[[Page 578]]

    (b) If agents need to adjust the scheduled delivery of water to the 
lateral to accommodate variable field conditions, weather, etc., they 
must immediately notify the District so proper adjustments can be made 
in the distribution system. Each agent must keep an accurate record of 
start and stop times for each delivery and the flow during delivery. 
This record will be given to the District for proper accounting of water 
delivered.
    (c) The program of using agents to operate individual headgates will 
be reviewed on a regular basis by the District and the Bureau. If it is 
found that problems such as higher than normal losses, water not 
accounted for, etc., have developed on an individual lateral, the 
program will be suspended and the system operated by District employees 
until the problems are resolved.

                               Enforcement



Sec. 418.28  Conditions of delivery.

    There are four basic elements for enforcement with all necessary 
quantities and review determined in accordance with the relevant 
sections of this part.
    (a) Valid headgate deliveries. If water is delivered to ineligible 
land or in excess of the appropriate water duty then:
    (1) The District will stop the illegal delivery immediately;
    (2) The District will notify the Bureau of the particulars including 
the known or estimated location and amounts;
    (3) The amount will not be included as a valid headgate delivery for 
purposes of computing the Project efficiency and resultant incentive 
credit or debit to Lahontan storage; and
    (4) If the amount applies to a prior year, then the amount will be 
treated directly as a debit to Lahontan storage in the same manner as an 
efficiency debit.
    (b) District efficiency. To the extent that the actual District 
efficiency determined for an irrigation season is greater or less than 
the established target efficiency, as determined for the corresponding 
actual valid headgate deliveries, then the difference in efficiency, 
expressed as a quantity in acre-feet, may be added to or subtracted from 
the actual Lahontan Reservoir storage level before it is compared to the 
monthly storage objective as follows:
    (1) Greater efficiency--Credited to the District as storage in 
Lahontan or subtracted from any accumulated debit, or two-thirds as 
storage in Lahontan for their discretionary use in accordance with state 
law.
    (2) Less efficient--Debited or added to Lahontan storage as an 
adjustment to the actual storage level.
    (c) Maximum Allowable Diversion (MAD). The MAD must be computed each 
year to determine the amount of water required to enable the delivery of 
full entitlements at established Project efficiencies. Project 
diversions must not exceed the MAD. Within the operating year, the 
Bureau will notify the District in writing of any expected imminent 
violations of the MAD. The District will take prompt action to avoid 
such violations. The Bureau will exercise reasonable latitude from month 
to month to accommodate the District's efforts to avoid exceeding the 
MAD.
    (d) Maximum Efficiency Debit (MED). If the MED exceeds 26,000 AF at 
the end of any given year, the District must prepare and submit to the 
Bureau for review and approval, a plan detailing the actions the 
District will take to either earn adequate incentive credits or to 
restrict deliveries to reduce the MED to less than 26,000 AF by the end 
of the next year. The plan must be submitted to the Bureau in writing 
before the date of March 1 immediately subsequent to the exceeding of 
the MED. If the District fails to submit an approvable plan, Project 
allocations will be reduced by an amount equal to the MED in excess of 
26,000 plus 13,000 (one-half the allowable MED). Nominally this will 
mean a forced reduction of approximately five percent of entitlements. 
The Bureau will notify the District in writing of the specific 
allocation and method of derivation in sufficient time for the District 
to implement the allocation. Liabilities arising from shortages 
occasioned by operation of this provision must be the responsibility of 
the District or individual water users.

[[Page 579]]



Sec. 418.29  Project management.

    In addition to the provisions of Sec. 418.28, if the District is 
found to be operating Project facilities or any part thereof in 
substantial violation of this part, then, upon the determination by the 
Bureau, the Bureau may take over from the District the care, operation, 
maintenance, and management of the diversion and outlet works (Derby Dam 
and Lahontan Dam/Reservoir) or any or all of the transferred works by 
giving written notice to the District of the determination and its 
effective date. Following written notification from the Bureau, the 
care, operation, and maintenance of the works may be retransferred to 
the District.



Sec. 418.30  Provisions required in future contracts.

    The Bureau must provide in new, amended, or replacement contracts 
for the operation and maintenance of Project works, for the reservation 
by the Secretary of rights and options to enforce this part.

                    Water Management and Conservation



Sec. 418.31  Conservation measures.

    (a) Specific conservation actions will be needed for the District 
and its members to achieve a reasonable efficiency of operation as 
required by this part. The District is best able to determine the 
particular conservation measures that meet the needs of its water users. 
This ensures that the measures reflect the priorities and collective 
judgment of the water users; and will be practical, understandable and 
supported. The District also has the discretion to make changes in the 
measures they adopt as conditions or results dictate.
    (b) The District will keep the Bureau informed of the measures they 
expect to utilize during each year. This will enable the Bureau to stay 
apprised of any helpful information that may, in turn, help the Bureau 
assist other irrigation districts. The Bureau will work cooperatively in 
support of the District's selection of measures and methods of 
implementation.



Sec. 418.32  Cooperative programs.

    (a) The Bureau and the District will work cooperatively to develop a 
water management and conservation program to promote efficient 
management of water in the Project. The program will emphasize 
developing methods, including computerization and automation, to improve 
the District's operations and procedures for greater water delivery 
conservation.
    (b) The Bureau will provide technical assistance to the District and 
cooperatively assist the District in their obligations and efforts to:
    (1) Document and evaluate existing water delivery and measurement 
practices:
    (2) Implement improvements to these practices; and
    (3) Evaluate and, where practical, implement physical changes to 
Project facilities.

                             Implementation



Sec. 418.33  Purpose of the implementation strategy.

    The intent of the implementation strategy for this part is to ensure 
that the District delivers water within entitlements at a reasonable 
level of efficiency as a long term average.
    (a) The incentives and disincentives provided in this part are 
designed to encourage local officials with responsibilities for Project 
operations to select and implement through their discretionary actions, 
operating strategies which achieve the principles of this part.
    (b) The specified efficiencies in the Expected Project Distribution 
System Efficiency table (Sec. 418.13 (a)(4)) were developed considering 
implementation of reasonable conservation measures, historic project 
operations, economics, and environmental effects.
    (c) The efficiency target will be used as a performance standard to 
establish at the end of each year on the basis of actual operations, 
whether the District is entitled to a performance bonus in the form of 
incentive water or a reduction in storage for the amount borrowed ahead.

[[Page 580]]



Sec. 418.34  Valid headgate deliveries.

    Project water may be delivered to headgates only as provided in 
Secs. 418.8 and 418.10. Water delivered to lands that are not entitled 
to be irrigated or not in accord with decreed water duties is difficult 
to quantify at best because it is not typically measured. Since it is 
not likely to be a part of the total actual headgate deliveries, yet is 
a part of the total deliveries to the Project, it will manifest itself 
directly as a lower efficiency. Thus, it will either reduce the 
District's incentive credit or increase the storage debit by the amount 
improperly diverted. All other users outside the Project are thereby 
held harmless but the District incurs the consequence. This approach 
should eliminate any potential disputes between the District and the 
Bureau regarding the quantity of water misappropriated.



Sec. 418.35  Efficiencies.

    The established target efficiencies under this part are shown in the 
Expected Project Distribution System Efficiency table (Sec. 418.13 
(a)(4)). The efficiency of the Project will vary with the amount of 
entitlement water actually delivered at the headgates. Since most of the 
distribution system losses such as evaporation and seepage do not change 
significantly with the amount of water delivered (i.e., these losses are 
principally a function of water surface area and the wetted perimeter of 
the canals), the Project efficiency requirement is higher as the percent 
of entitlement water actually delivered at the headgates increases. The 
actual efficiency is calculated each year after the close of the 
irrigation season based on actual measured amounts. The application of 
any adjustments to Lahontan Reservoir storage or Truckee River 
diversions resulting from the efficiency is always prospective.



Sec. 418.36  Incentives for additional long term conservation.

    (a) As an incentive for the District to increase the efficiency of 
the delivery system beyond the expected efficiency of 65.7 percent (66.9 
percent with full delivery) as shown in the Newlands Project Water 
Budget table, 1995 Example, the District will be allowed to store and 
use the Carson River portion of the saved water at its discretion, in 
accordance with Nevada State Law and this part.
    (1) If the District is able to exceed its expected efficiency, the 
District may store in Lahontan Reservoir two-thirds (2/3) of the 
additional water saved. (The remaining one-third (1/3) of the water 
saved will remain in the Truckee River through reduced diversions to 
Lahontan Reservoir). This water will be considered incentive water saved 
from the Carson River and will not be counted as storage in determining 
diversions from the Truckee River or computing the target storage levels 
for Lahontan Reservoir under this part.
    (2) For purposes of this part, incentive water is no longer 
considered Project water. The District may use the water for any purpose 
(e.g., wetlands, storage for recreation, power generation, shortage 
reduction) that is consistent with Nevada State Law and Federal Law. The 
water will be managed under the District's discretion and may be stored 
in Lahontan Reservoir until needed subject to the limitations in (a)(3) 
of this section.
    (3) The amount of incentive water stored in Lahontan Reservoir will 
be reduced under the following conditions:
    (i) There is a deficit created and remaining in Lahontan Reservoir 
from operations penalties in a prior year;
    (ii) The District releases the water from the reservoir for its 
designated use;
    (iii) During a spill of the reservoir, the amount of incentive water 
must be reduced by the amount of spill; and
    (iv) At the discretion of the District, incentive water may be used 
to offset the precautionary drawdown adjustment to the Lahontan storage 
objective.
    (v) At the end of each year, the amount of incentive water will be 
reduced by the incremental amount of evaporation which occurs as a 
result of the increased surface area of the reservoir due to the 
additional storage. The evaporation rate used will be either the net 
evaporation measured or the net historical average after precipitation 
is taken into account. The method of calculation will be agreed to

[[Page 581]]

by the District and the Bureau in advance of any storage credit.
    (b) An example of this concept is:
    Example: Incentive Operation--
    (1) At the end of the 1996 irrigation season, the Bureau and the 
District audit the District's water records for 1996. The District's 
water delivery records show that 194,703 acre-feet of water were 
delivered to farm headgates. On the basis of their irrigated acreage 
that year (59,075) the farm headgate entitlement would have been 216,337 
acre-feet. On the basis of 90 percent deliveries for 59,075 acres 
(194,203 divided by 216,337 = 0.90) the established Project efficiency 
requirement was 65.1 percent.
    (2) On the basis of the established Project efficiency (66.1 
percent), the Project diversion required to make the headgate deliveries 
would be expected to be 291,909 acre-feet (194,703 divided by 0.651 = 
291,909). An examination of Project records reveals that the District 
only diverted 286,328 acre-feet which demonstrated actual Project 
efficiency was 68 percent and exceeded requirements of this part.
    (3) The 5,581 acre-feet of savings (291,909-286,328 = 5,581) 
constitutes the savings achieved through efficiency improvements and the 
District would then be credited two-thirds (3,721 acre-feet = 5,581 x 2/
3) of this water (deemed to be Carson River water savings) as incentive 
water.
    (4) This incentive water may be stored in Lahontan Reservoir or 
otherwise used by the District in its discretion consistent with State 
and Federal Law (e.g., power generation, recreation storage, wildlife, 
drought protection, etc.).



Sec. 418.37  Disincentives for lower efficiency.

    (a) If the District fails to meet the efficiencies established by 
this part, then, in effect, the District has borrowed from a subsequent 
year. The amount borrowed will be accounted for in the form of a deficit 
in Lahontan Reservoir storage. This deficit amount will be added to the 
actual Lahontan Reservoir storage quantity for the purpose of 
determining the Truckee River diversions to meet storage objectives as 
well as all other operating decisions.
    (b) The amount of the deficit will be cumulative from year to year 
but will not be allowed to exceed 26,000 acre-feet (the expected 
variance between the MAD and actual water use). This limit is expected 
to avoid increasing the severity of drought and yet still allow for 
variations in efficiency over time due to weather and other factors. 
This approach should allow the District to plan its operation to correct 
for any deficiencies.
    (c) The deficit can be reduced by crediting incentive water earned 
by the District or reducing the percentage of headgate entitlement 
delivered either through a natural drought or by the District and its 
water users administratively limiting deliveries while maintaining an 
efficiency greater than or equal to the target efficiency.
    (d) If there is a natural drought and the shortage to the headgates 
is equal to or greater than the deficit, then the deficit is reduced to 
zero. If the shortage to headgates is less than the deficit then the 
deficit is reduced by an amount equal to the headgate shortage. During a 
natural drought, if the percentage of maximum headgate entitlement 
delivered is 75 percent or more then the District will be subject to the 
target efficiencies and resultant deficits or credits.
    (e) If the District has a deficit in Lahontan Reservoir and earns 
incentive water, the incentive water must be used to eliminate the 
deficit before it can be used for any other purpose. The deficit must be 
credited on a 1 to 1 basis (i.e., actual efficiency savings rather than 
\1/3\-\2/3\ for incentive water).
    (f) An example of the penalty concept is:
    Example: Penalty--
    In 1996 the District delivers 90 percent of the maximum headgate 
entitlement or 194,703 acre-feet 216,337 x .90) but actually diverts 
308,000 acre-feet. The efficiency of the Project is 63.2 percent 
(194,703 divided by 308,000). Since the established efficiency of 65.1 
percent would have required a diversion of only 299,083 acre-feet 
(194,703 divided by .651) the District has operated the system with 
8,917 acre-feet of excess losses. Therefore, 8,917 acre-feet was 
borrowed and must be added to the actual storage quantities of Lahontan 
Reservoir for calculating target storage levels and Truckee River 
diversions.



Sec. 418.38  Maximum allowable diversion.

    (a) The MAD established in this part is based on the premise that 
the Project should be operated to ensure that it is capable of 
delivering to the headgate of each water right holder the full water 
entitlement for irrigable eligible acres and includes distribution 
system losses. The MAD will be established (and is likely to vary) each 
year.

[[Page 582]]

The annual MAD will be calculated each year based on the actual acreage 
to be irrigated that year.
    (b) Historically, actual deliveries at farm headgates have been 
approximately 90 percent of entitlements. This practice is expected to 
continue but the percentage is expected to change. This variance between 
headgate deliveries and headgate entitlements will be calculated 
annually under this part and is allowed to be diverted if needed and 
thereby provides an assurance that full headgate deliveries can be made. 
The expected diversion and associated efficiency target for the examples 
shown in the Newlands Project Water Budget table would be: 285,243 AF 
and 65.1 percent in 1996 and beyond. These are well below the MAD 
limits; however, the District may divert up to the MAD if it is needed 
to meet valid headgate entitlements.

       Appendix A to Part 418--Calculation of Efficiency Equation

[[Page 583]]

[GRAPHIC] [TIFF OMITTED] TR18DE97.008


[[Page 584]]


[GRAPHIC] [TIFF OMITTED] TR18DE97.009



PART 420--OFF-ROAD VEHICLE USE--Table of Contents




Sec.
420.1  Objectives.
420.2  General closure.
420.3  Adjacent lands.
420.4  Enforcement.
420.5  Definitions.

[[Page 585]]

                      Subpart A--Operating Criteria

420.11  Requirements--vehicles.
420.12  Requirements--operators.

            Subpart B--Designated Areas and Permitted Events

420.21  Procedure for designating areas for off-road vehicle use.
420.22  Criteria for off-road vehicle areas.
420.23  Public notice and information.
420.24  Permits for organized events.
420.25  Reclamation lands administered by other agencies.

    Authority: 32 Stat. 388 (43 U.S.C. 391 et seq.) and acts amendatory 
thereof and supplementary thereto; EO 11644 (37 FR 2877).

    Source: 39 FR 26893, July 24, 1974, unless otherwise noted.



Sec. 420.1  Objectives.

    The provisions of this part establish regulations for off-road 
vehicle use on reclamation lands to protect the land resources, to 
promote the safety of all users, to minimize conflicts among the various 
uses, and to ensure that any permitted use will not result in 
significant adverse environmental impact or cause irreversible damage to 
existing ecological balances.



Sec. 420.2  General closure.

    Reclamation lands are closed to off- road vehicle use, except for an 
area or trail specifically opened to use of off- road vehicles in 
accordance with Sec. 420.21.



Sec. 420.3  Adjacent lands.

    When administratively feasible, the regulation of off-road vehicle 
use on Reclamation lands will be compatible with such use as permitted 
by recreation-managing agencies on adjacent lands (both public and 
private).



Sec. 420.4  Enforcement.

    The provisions of this part will be enforced to the extent of Bureau 
authority, including entering into cooperative agreements with Federal, 
State, county, or local law enforcement officials.



Sec. 420.5  Definitions.

    As used in this part, the term:
    (a) Off-road vehicle means any motorized vehicle (including the 
standard automobile) designed for or capable of cross-country travel on 
or immediately over land, water, sand, snow, ice, marsh, swampland, or 
natural terrain. The term excludes: (1) Nonamphibious registered 
motorboats; (2) military, fire, emergency, or law enforcement vehicles 
when used for emergency purpose; (3) self-propelled lawnmowers, 
snowblowers, garden or lawn tractors, and golf carts while being used 
for their designed purpose; (4) agricultural, timbering, construction, 
exploratory, and development equipment and vehicles while being used 
exclusively as authorized by permit, lease, license, agreement, or 
contract with the Bureau; (5) any combat or combat support vehicle when 
used in times of national defense emergencies; and (6) ``official use'' 
vehicles.
    (b) Bureau means the Bureau of Reclamation.
    (c) Reclamation lands mean all lands under the custody and control 
of the Commissioner, Bureau of Reclamation.
    (d) Off-road vehicle area means a portion or all of a specifically 
designated parcel of Reclamation lands opened to off-road vehicle use in 
accordance with the procedure in section 420.21.
    (e) Off-road vehicle trail means a specifically delineated path or 
way varying in width which is designated to be used by and maintained 
for hikers, horsemen, snow travelers, bicyclists and for motorized 
vehicles.
    (f) Official use means use of a vehicle by an employee, agent, or 
designated representative of the Federal Government who, with special 
permission from the Bureau of Reclamation, uses a vehicle for an 
officially authorized purpose.
    (g) Organized Event means a structured, or consolidated, or 
scheduled meeting involving 15 or more vehicles for the purpose of 
recreational use of Reclamation lands involving the use of off-road 
vehicles. The term does not include family groups participating in 
informal recreational activities.

[39 FR 26893, July 24, 1974, as amended at 44 FR 34909, June 15, 1979]

[[Page 586]]



                      Subpart A--Operating Criteria



Sec. 420.11  Requirements--vehicles.

    Each off-road vehicle that is operated on Reclamation lands shall 
meet the following requirements:
    (a) It shall conform to applicable State laws and vehicle 
registration requirements.
    (b) It shall be equipped with a proper muffler and spark arrestor in 
good working order and in constant operation. The spark arrestor must 
conform to Forest Service Spark Arrestor Standard 5100-1a, and there 
shall be no muffler cutout, bypass, or similar device.
    (c) It shall have adequate brakes and, for operation from dusk to 
dawn, working headlights and taillights.



Sec. 420.12  Requirements--operators.

    (a) In addition to the regulation of part 420, operators shall 
comply with any applicable State laws pertaining to off-road vehicles; 
if State laws are lacking or less stringent than the regulations 
established in this part, then the regulations in part 420 are minimum 
standards and are controlling.
    (b) Each operator of an off-road vehicle operated on Reclamation 
lands shall possess a valid motor vehicle operator's permit or license; 
or, if no permit or license is held, he/she shall be accompanied by or 
under the immediate supervision of a person holding a valid permit or 
license.
    (c) During the operation of snowmobiles, trail bikes, and any other 
off road vehicle the operator shall wear safety equipment, generally 
accepted or prescribed by applicable State law or local ordinance for 
use of the particular activity in which he/she is participating.
    (d) No person may operate an off-road vehicle:
    (1) In a reckless, careless or negligent manner;
    (2) In excess of established speed limits;
    (3) While under the influence of alcohol or drugs;
    (4) In a manner likely to cause irreparable damage or disturbance of 
the land, wildlife, vegetative resources, or archeological and historic 
values of resources; or
    (5) In a manner likely to become an unreasonable nuisance to other 
users of Reclamation or adjacent lands.



            Subpart B--Designated Areas and Permitted Events



Sec. 420.21  Procedure for designating areas for off-road vehicle use.

    The Regional Director shall, to the extent practicable, hold public 
hearings to obtain interested user groups, local populace, and affected 
Federal, State, and county agencies' opinions for opening or closing an 
area or trail in a manner that provides an opportunity for the public to 
express themselves and have their views taken into account. The Regional 
Director may act independently if he/she deems emergency action to open 
or close or restrict areas and trails is necessary to attain the 
objectives of the regulations of this part.
    (a) Regional Directors shall designate and publicize those areas and 
trails which are open to off-road vehicle use in accordance with 
Sec. 420.23.
    (b) Before any area or trail is opened to off-road vehicle use, the 
Regional Director will establish specific regulations which are 
consistent with the criteria in these regulations.
    (c) The Regional Director will inspect designated areas and trails 
periodically to determine conditions resulting from off-road vehicle 
use. If he determines that the use of off-road vehicles will cause or is 
causing considerable adverse effects on the soil, vegetation, wildlife, 
wildlife habitat, or cultural or historic resources of particular areas 
or trails of the public lands, he shall immediately close such areas or 
trails to the type of off-road vehicle causing such effects. No area or 
trail shall be reopened until the Regional Director determines that 
adverse effects have been eliminated and that measures have been 
implemented to prevent future recurrence. The public shall be notified 
of restrictions or closure in accordance with Sec. 420.23.

[39 FR 26893, July 24, 1974, as amended at 44 FR 34909, June 15, 1979]

[[Page 587]]



Sec. 420.22  Criteria for off-road vehicle areas.

    (a) Areas and trails to be opened to off-road vehicle use shall be 
located:
    (1) To minimize the potential hazards to public health and safety, 
other than the normal risks involved in off-road vehicle use.
    (2) To minimize damage to soil watershed, vegetation, or other 
resources of the public lands.
    (3) To minimize harassment of wildlife or significant disruption of 
wildlife habitats.
    (4) To minimize conflicts between off-road vehicle use and other 
existing or proposed recreational uses of the same or neighboring public 
lands, and to ensure compatibility of uses with existing conditions in 
populated areas, taking into account noise and other factors.
    (5) In furtherance of the purposes and policy of the National 
Environmental Policy Act of 1969 (Pub. L. 91-190, 83 Stat. 852).
    (b) Areas and trails shall not be located in areas possessing unique 
natural, wildlife, historic, cultural, archeological, or recreational 
values unless the Commissioner determines that these unique values will 
not be adversely affected.



Sec. 420.23  Public notice and information.

    Areas and trails may be marked with appropriate signs to permit, 
control or prohibit off-road vehicle use on Reclamation lands. All 
notices concerning the regulation of off-road vehicles shall be posted 
in a manner that will reasonably bring them to the attention of the 
public. A copy of any notice shall be made available to the public in 
the regional office and field offices where appropriate. Such notice, 
and the reasons therefore, shall be published in the Federal Register 
together with such other forms of public notice or news release as may 
be appropriate and necessary to adequately describe the conditions of 
use and the time periods when the areas involved in an action under 
these regulations are to be (a) opened to off-road vehicle use, (b) 
restricted to certain types of off-road vehicle use and (c) closed to 
off-road vehicle use.



Sec. 420.24  Permits for organized events.

    Regional Directors may issue permits for the operation of off-road 
vehicles in organized races, rallies, meets, endurance contests, and 
other events on areas designed for each event. The application for such 
an event shall:
    (a) Be received by the Regional Director at least 60 days before the 
event;
    (b) Provide a plan for restoration and rehabilitation of trails and 
areas used, and demonstrate that the prospective permittee can be bonded 
for or deposit the amount that may be required to cover the cost;
    (c) Demonstrate that special precautions will be taken to:
    (1) Protect the health, safety, and welfare of the public; and
    (2) Minimize damage to the land and related resources.
    (d) Application fees (in amounts to be determined) as authorized by 
section 2 of the Land and Water Conservation Fund Act of 1965 (78 Stat. 
897), as amended, shall accompany all applications.



Sec. 420.25  Reclamation lands administered by other agencies.

    (a) Off-road vehicle use will be administered in accordance with 
Executive Order 11644, by those Federal and non-Federal agencies which 
have assumed responsibility for management of Reclamation lands for 
recreation purposes.
    Specifically:
    (1) Reclamation lands managed by the National Park Service, the 
Bureau of Sport Fisheries and Wildlife, the Bureau of Land Management, 
the Forest Service, and other Federal agencies will be administered in 
accordance with regulations of those agencies.
    (2) Reclamation lands managed by non-Federal entities will be 
administered in a manner consistent with both part 420 and applicable 
non-Federal laws and regulations.
    (b) Public lands withdrawn, but not yet utilized for Reclamation 
purposes, will be administered by the Forest Service or by the Bureau of 
Land Management in accordance with regulations of those agencies, but 
consistent with Reclamation requirements for retaining the land.

[[Page 588]]



PART 421--RULES OF CONDUCT AT HOOVER DAM--Table of Contents




Sec.
421.1  Applicability.
421.2  Preservation of property.
421.3  Conformity with signs and emergency directions.
421.4  Disturbances.
421.5  Vehicular and pedestrian traffic.
421.6  Gambling.
421.7  Alcoholic beverages and narcotics.
421.8  Soliciting, vending, advertising, and distribution of handbills.
421.9  Photography and motion pictures.
421.10  Weapons and explosives.
421.11  Audio devices.
421.12  Abandoned and unattended property.
421.13  Closing of areas.
421.14  Nondiscrimination.
421.15  Penalties and other laws.

    Authority: 62 Stat. 281, as amended (40 U.S.C. 318; 63 Stat. 377, as 
amended; 38 FR 23838 and 38 FR 27945).

    Source: 39 FR 4755, Feb. 7, 1974, unless otherwise noted.



Sec. 421.1  Applicability.

    These rules and regulations apply to Hoover Dam and all structures, 
buildings, and grounds appurtenant thereto which are situated on lands 
over which the United States has concurrent legislative jurisdiction, 
and to all persons entering in or on such property.



Sec. 421.2  Preservation of property.

    The following are prohibited: The improper disposal of rubbish; the 
creation of any hazard to persons or things; the throwing of articles of 
any kind from the roadway, walks, or guardrails across the top of the 
dam, from the parking areas or visitor observation points, or from any 
other structure or building; the climbing upon the guardrails of the dam 
or upon the roof or any part of any building or structure; and the 
willful destruction, damage, or removal of property or any part thereof.



Sec. 421.3  Conformity with signs and emergency directions.

    Official signs of a prohibitory or directory nature and the 
directions of uniformed police officers shall be complied with.



Sec. 421.4  Disturbances.

    The following conduct is prohibited: That which is disorderly; which 
creates loud and unusual noise; which obstructs the usual use of 
roadways, parking lots, observation points, entrances, foyers, 
corridors, walkways, elevators, stairways, offices, and other work 
areas; which otherwise tends to impede or disturb the general public in 
viewing the property or obtaining the services available thereon; or 
which tends to impede or disturb public or contractor employees in the 
performance of their duties.



Sec. 421.5  Vehicular and pedestrian traffic.

    (a) Vehicle operators shall drive in a careful and safe manner at 
all times and shall comply with the signals and directions of uniformed 
police officers and all posted traffic signs.
    (b) Vehicles shall not block entrances, driveways, walks, loading 
platforms, or fire hydrants.
    (c) Vehicles shall not be parked in unauthorized locations, in 
locations reserved for specific uses, continuously in excess of 25 hours 
without permission, or contrary to the direction of posted signs (see 43 
CFR 421.12), or contrary to the direction of uniformed police officers.
    (d) Pedestrians shall use the walkways on the dam and designated 
crosswalks, and shall not walk in the vehicle lanes.

This paragraph may be supplemented from time to time by the issuance and 
posting of specific traffic directives as may be required and when so 
issued and posted such directives shall have the same force and effect 
as if made a part hereof.



Sec. 421.6  Gambling.

    Participating in games for money or other personal property, the 
operation of gambling devices, the conduct of lottery or pool, and the 
selling or purchasing of numbers tickets are prohibited.

[[Page 589]]



Sec. 421.7  Alcoholic beverages and narcotics.

    Operating a motor vehicle on property by a person under influence of 
alcoholic beverages, narcotic drugs, hallucinogens, marijuana, 
barbiturates, or amphetamines is prohibited. Entering property under the 
influence of any narcotic drug, hallucinogen, marijuana, barbiturate, 
amphetamine, or alcoholic beverage is prohibited (unless prescribed by a 
physician). The use or possession of any narcotic drug, hallucinogen, 
marijuana, barbiturate, amphetamine, or alcoholic beverage on property 
is prohibited (unless prescribed by a physician).



Sec. 421.8  Soliciting, vending, advertising, and distribution of handbills.

    All soliciting, vending, or advertising is prohibited. The 
distribution of material such as handbills, pamphlets, and flyers is 
prohibited. This rule does not apply to national or local drives for 
funds for welfare, health and other purposes sponsored or approved by 
the Bureau of Reclamation.



Sec. 421.9  Photography and motion pictures.

    Photographs may be taken in or from any area open to the public. Use 
of photographic equipment in any manner or from any position which may 
create a hazard to persons or property is prohibited. Written permission 
by the Bureau of Reclamation is required for the filming of any 
professional or commercial motion or sound pictures except by bona fide 
newsreel and news television photographers and soundmen. Cameras and 
other equipment carried on guided tours within the dam and powerplant 
are subject to inspection.



Sec. 421.10  Weapons and explosives.

    The carrying of firearms, other dangerous or deadly weapons, or 
explosives, either openly or concealed, except for official purposes, is 
prohibited.



Sec. 421.11  Audio devices.

    The operation or use of a public address system is prohibited, 
except when specifically authorized by the Bureau of Reclamation.



Sec. 421.12  Abandoned and unattended property.

    (a) Abandonment of any vehicle or other personal property is 
prohibited, and such property may be impounded by the Bureau of 
Reclamation.
    (b) Leaving any vehicle or other personal property unattended for 
longer than 25 hours, without prior permission of the Bureau of 
Reclamation, is prohibited and such property may be impounded by the 
Bureau of Reclamation. In the event unattended property interferes with 
the safe and orderly management of the Hoover Dam facilities, it may be 
impounded by the Bureau of Reclamation at any time.



Sec. 421.13  Closing of areas.

    The Project Manager may establish a reasonable schedule of visiting 
hours for all or portions of the area. He may close or restrict the 
public use of all or any portion of the property when necessary for 
protection of the property or the safety and welfare of persons. All 
persons shall obey signs designating closed areas and visiting hours.



Sec. 421.14  Nondiscrimination.

    There shall be no discrimination by segregation or otherwise against 
any persons because of race, color, religion, sex, or national origin in 
furnishing or refusing to furnish the use of any facility of a public 
nature, including all services, privileges, accommodations, and 
activities provided.



Sec. 421.15  Penalties and other laws.

    Whoever shall be found guilty of violating these rules and 
regulations while on property over which the United States exercises 
exclusive or concurrent legislative jurisdiction, is subject to fine of 
not to exceed $50 or imprisonment of not more than 30 days, or both (see 
40 U.S.C. 318c). Nothing contained in these rules and regulations shall 
be construed to abrogate any other Federal laws or regulations, or any 
State or local laws and regulations, applicable to any area in which 
property is situated.

[[Page 590]]



PART 422--LAW ENFORCEMENT AUTHORITY AT BUREAU OF RECLAMATION PROJECTS--Table of Contents




Sec.
422.1  Purpose of this part.
422.2  Definitions.
422.3  Reclamation law enforcement policy.

                            Responsibilities

422.4  Responsibilities of the Commissioner of Reclamation.
422.5  Responsibilities of the Law Enforcement Administrator.
422.6  Responsibilities of the Chief Law Enforcement Officer.

                          Program Requirements

422.7  Authorization to perform law enforcement duties.
422.8  Requirements for law enforcement functions and programs.
422.9  Reclamation law enforcement contracts and cooperative agreements.
422.10  Requirements for authorizing officers to exercise Reclamation 
          law enforcement authority.
422.11  Position sensitivity and investigations.
422.12  Required standards of conduct.
422.13  Reporting an injury or property damage or loss.

    Authority: 16 U.S.C. 460l-31; 43 U.S.C. 373b, 373c

    Source: 67 FR 38420, June 4, 2002, unless otherwise noted.



422.1  Purpose of this part.

    (a) This part implements Public Law No. 107-69, 115 Stat. 593 
(November 12, 2001), an Act to Amend the Reclamation Recreation 
Management Act of 1992, by:
    (1) Establishing eligibility criteria, such as fitness and training 
requirements, for Federal, State, local, and tribal law enforcement 
personnel to protect Bureau of Reclamation (Reclamation) facilities and 
lands; and
    (2) Ensuring that Federal, State, local, and tribal law enforcement 
programs comply with applicable laws and regulations when they discharge 
the Secretary of the Interior's authority.
    (b) This part does not apply to, or limit or restrict in any way, 
the investigative jurisdiction or exercise of law enforcement authority 
of any Federal law enforcement agency, under Federal law, within a 
Reclamation project or on Reclamation lands. The provisions of this part 
apply to non-Department of the Interior Federal law enforcement agents 
only where Reclamation has entered into a cooperative agreement or 
contract with a Federal law enforcement agency, pursuant to Public Law 
107-69, for the services of specified individual Federal law enforcement 
agents.
    (c) Nothing in this part shall be construed or applied to affect any 
existing right of a State or local government, or an Indian tribe, or 
their law enforcement officers, to exercise concurrent civil and 
criminal jurisdiction within a Reclamation project or on Reclamation 
lands.



422.2  Definitions.

    (a) Department means the United States Department of the Interior.
    (b) Reclamation means the Bureau of Reclamation of the United States 
Department of the Interior.
    (c) Law Enforcement Program means Reclamation's program to provide 
law enforcement and protective services at Reclamation project 
facilities and on Federal project lands. The activity is directed toward 
the preservation of public order, safety, and protection of resources 
and facilities, and their occupants.
    (d) Law Enforcement Administrator (LEA) means the person designated 
by the Commissioner of Reclamation to:
    (1) Direct the law enforcement program and units;
    (2) Develop the policy, procedures, and standards for the law 
enforcement program within Reclamation; and
    (3) Provide for inspection and oversight to control enforcement 
activity.
    (e) Chief Law Enforcement Officer (CLEO) means the highest level 
duly authorized law enforcement officer for a non-Department law 
enforcement agency.
    (f) Law Enforcement Officer means:
    (1) A duly authorized Federal law enforcement officer, as that term 
is defined in Public Law 107-69, from any non-Department Federal agency 
who is authorized to act as a law enforcement officer on Reclamation 
projects and lands; or
    (2) Law enforcement personnel of any State, local government, or 
tribal law enforcement agency.

[[Page 591]]



Sec. 422.3  Reclamation law enforcement policy.

    The law enforcement policy of Reclamation is:
    (a) To maintain an accountable, professional law enforcement program 
on Reclamation project facilities, and to protect Federal project lands 
and their occupants. Reclamation will meet its law enforcement 
responsibilities by establishing and promoting a law enforcement program 
which maintains law and order, and protects persons and property within 
Reclamation property and on Reclamation lands;
    (b) To entrust law enforcement authority only to persons deemed to 
be qualified, competent law enforcement professionals;
    (c) To maintain a continuing review and evaluation of Reclamation's 
law enforcement programs and operations to ensure compliance with 
applicable Federal laws, regulations, and policies of the Department;
    (d) To ensure that approved standards are attained and maintained by 
each law enforcement unit undertaking a contract or cooperative 
agreement;
    (e) To increase the effectiveness of law enforcement through the 
efficient handling and exchange of criminal and intelligence information 
with other Federal, State, local, and tribal agencies, as appropriate;
    (f) To provide the public prompt access to information concerning 
its law enforcement program in accordance with the spirit and intent of 
the Freedom of Information Act, 5 U.S.C. 552; Department FOIA 
Regulations, 43 CFR 2; and 383 DM 15, Freedom of Information Act 
Handbook (see www.doi.gov);
    (g) To ensure that the use of force by agency personnel under 
contracts or cooperative agreements with Reclamation complies with the 
Constitution and the law of the United States; and
    (h) To negotiate contracts and cooperative agreements under this 
part to ensure that:
    (1) Reclamation retains flexibility to meet its law enforcement 
needs; and
    (2) Entities entering into contracts and cooperative agreements are 
appropriately reimbursed.

                            Responsibilities



422.4  Responsibilities of the Commissioner of Reclamation.

    (a) The Secretary of the Interior has designated the Commissioner of 
Reclamation to implement law enforcement authority at Reclamation 
facilities. The Commissioner is responsible for:
    (1) Implementing the provisions of Public Law 107-69;
    (2) Ensuring consistency with applicable Departmental and 
Reclamation requirements for law enforcement officers;
    (3) Carrying out the specific responsibilities listed in paragraph 
(b) of this section; and
    (4) Developing any additional policies necessary for the successful 
accomplishment of Reclamation's law enforcement responsibilities.
    (b) The Commissioner's specific responsibilities include the 
following:
    (1) Designating Reclamation's Law Enforcement Administrator (LEA), 
with authority to discharge the responsibilities assigned by these 
regulations;
    (2) Overseeing the LEA's ability to ensure that all law enforcement 
officers under contract or cooperative agreement for law enforcement 
services to Reclamation are properly trained and receive necessary 
authorizations; and
    (3) Overseeing the LEA's development of policy, procedures, and 
standards for directing the law enforcement units, and the installation 
of management controls for proper implementation of the law enforcement 
program.



422.5  Responsibilities of the Law Enforcement Administrator.

    (a) The Law Enforcement Administrator (LEA):
    (1) Reports directly to the Commissioner;
    (2) Oversees the law enforcement program; and
    (3) Is responsible for promulgating mission-oriented policy, 
procedures, and standards to ensure the effective implementation of 
Reclamation's law enforcement authority.

[[Page 592]]

    (b) The chain of command for law enforcement will run from the 
Commissioner through the LEA to other positions designated as part of 
the Reclamation law enforcement managerial structure, which may include 
a Chief Law Enforcement Officer. The units will be staffed through 
cooperative agreements or contracts with law enforcement personnel from 
Department and non-Department Federal agencies or State, local, or 
tribal law enforcement organizations, with unit command being provided 
as part of the cooperative agreement or contract.
    (c) Within the chain of command specified in paragraph (b) of this 
section, the LEA provides policy direction, inspection, and oversight 
for the law enforcement functions of Reclamation.



Sec. 422.6  Responsibilities of the Chief Law Enforcement Officer.

    The Chief Law Enforcement Officer's (CLEO) responsibilities are to 
ensure that:
    (a) Law enforcement officers working at Reclamation facilities and 
on Federal project lands are duly authorized under Sec. 422.7;
    (b) Law enforcement officers authorized under a contract or 
cooperative agreement meet training and fitness requirements established 
in this part and abide by standards of conduct and performance 
established in this part and in the contract or cooperative agreement;
    (c) Law enforcement officers are under the immediate supervision of 
a commanding officer who is part of each law enforcement unit for which 
Reclamation enters into a contract or cooperative agreement; and
    (d) Required reports are made to the LEA, or to another person 
designated by Reclamation, for purposes of carrying out the law 
enforcement functions for which Reclamation has a contract or 
cooperative agreement.

                          Program Requirements



Sec. 422.7  Authorization to perform law enforcement duties.

    (a) The CLEO must issue written authorization to each officer who is 
authorized to perform Reclamation law enforcement duties.
    (b) Before issuing an authorization under paragraph (a) of this 
section, the CLEO must ensure that the officer meets:
    (1) All the requirements for officers authorized under the law 
enforcement contract or cooperative agreement with Reclamation; and
    (2) All requirements in Secs. 422.10, 422.11, and 422.12.
    (c) The CLEO must terminate an officer's authorization under 
paragraph (a) of this section and must notify the issuing Reclamation 
official when the officer:
    (1) Terminates employment as a full-time police officer for any 
reason;
    (2) Is transferred to another area of jurisdiction, where the 
continued performance of Reclamation duties would be impractical;
    (3) Is suspended for any offense that would impair his/her fitness 
to perform law enforcement duties; or
    (4) Is under indictment or has been charged with a crime.
    (d) The LEA can, upon showing just cause, revoke the authorization 
of an individual officer to perform law enforcement services under 
Reclamation's law enforcement authority after providing written notice 
to the CLEO.



Sec. 422.8  Requirements for law enforcement functions and programs.

    The requirements in this section apply to Reclamation and to each 
law enforcement unit exercising Reclamation's law enforcement authority.
    (a) The law enforcement program must provide for control, 
accountability, coordination, and clear lines of authority and 
communication. This organizational structure must apply both within the 
law enforcement units, and between the law enforcement units and the LEA 
or other personnel designated as responsible under the law enforcement 
contract or cooperative agreement.
    (b) Only duly authorized law enforcement officers may discharge law 
enforcement duties.
    (c) Each law enforcement contract or cooperative agreement must 
specifically name those individuals within

[[Page 593]]

the contracting agency who are authorized to exercise Reclamation law 
enforcement authority consistent with applicable laws, regulations, and 
the requirements of this part. A CLEO can authorize only duly authorized 
officers who meet the standards in Sec. 422.7 to exercise law 
enforcement authority.
    (d) Any uniform worn by law enforcement officers must display 
distinctive identification to ensure that the officer is:
    (1) Distinguishable from non-law enforcement personnel; and
    (2) Easily recognized by the public as a law enforcement officer.
    (e) Officers investigating a violation of Federal law under a law 
enforcement contract or cooperative agreement with Reclamation will 
notify applicable Federal law enforcement authorities, as appropriate, 
pursuant to 43 U.S.C. 373b(d)(4).
    (f) The LEA must:
    (1) Establish an incident reporting system for incidents that occur 
on Reclamation lands; and
    (2) Include the reporting requirements for incidents as an element 
of each contract or cooperative agreement.



Sec. 422.9  Reclamation law enforcement contracts and cooperative agreements.

    (a) The LEA, or a person that the LEA designates, may enter into 
contracts or cooperative agreements with Federal, State, local, or 
tribal law enforcement agencies to aid in enforcing or carrying out 
Federal laws and regulations on Reclamation facilities or Reclamation-
managed property. Reclamation will rescind the contract or cooperative 
agreement if an elected governing body with jurisdiction over the local 
law enforcement agency adopts a resolution objecting to the use of that 
agency's personnel to enforce Federal laws.
    (b) Each contract and cooperative agreement authorizing the exercise 
of Reclamation law enforcement authority:
    (1) Must expire no later than 3 years from its effective date;
    (2) May be revoked earlier by either party with written notice;
    (3) May be revised or amended with the written consent of both 
parties;
    (4) Must expressly include the requirements for exercise of 
Reclamation law enforcement authority listed in Sec. 422.10;
    (5) Must expressly state that the officer has completed the Federal 
Bureau of Investigation criminal history review as required by 
Sec. 422.11; and
    (6) Must expressly include the standards of conduct listed in 
section 422.12.



Sec. 422.10  Requirements for authorizing officers to exercise Reclamation law enforcement authority.

    (a) The CLEO must ensure that each officer receiving an 
authorization under Sec. 422.7(a):
    (1) Is at least 21 years old;
    (2) Is certified as a bona fide full-time peace officer under State 
Peace Officer Standards and Training (POST) requirements, or its 
functional equivalent or is certified as a Federal law enforcement 
officer;
    (3) Has passed his/her agency's firearms qualifications (which must 
be consistent with Federal policy) within the 6-month period immediately 
preceding the granting of the authority;
    (4) Re-qualifies to use firearms with all issued service weapons at 
least semi-annually;
    (5) Has neither been convicted of a felony offense, nor convicted of 
a misdemeanor offense for domestic violence, preventing him/her from 
possessing a firearm in compliance with section 658 of Public Law 104-
208 (the 1996 amendment of the Gun Control Act of 1968);
    (6) Is not the subject of a court order preventing him/her from 
possessing a firearm;
    (7) Has no physical impairments that will hinder performance as an 
active duty law enforcement officer; and
    (8) Attends and successfully completes a mandatory orientation 
session developed by Reclamation to become familiar with Federal laws 
and procedures and with all pertinent provisions of statutes, 
ordinances, regulations, and Departmental and Reclamation rules and 
policies.

[[Page 594]]

    (b) Qualification standards for guards as provided in the 
Departmental Manual or other Department or Reclamation guidance may only 
be used for those persons hired exclusively to perform guard duties.



Sec. 422.11  Position sensitivity and investigations.

    Each law enforcement contract or cooperative agreement must include 
a provision requiring the CLEO to certify that each officer who 
exercises authority under the Act has completed an FBI criminal history 
check and is satisfactorily cleared.



Sec. 422.12  Required standards of conduct.

    All law enforcement officers authorized to exercise Reclamation 
authority must adhere to the following standards of conduct:
    (a) Be punctual in reporting for duty at the time and place 
designated by superior officers;
    (b) Be mindful at all times and under all circumstances of their 
responsibility to be courteous, considerate, patient and not use harsh, 
violent, profane, or insolent language;
    (c) Make required reports of appropriate incidents coming to their 
attention;
    (d) When in uniform and requested to do so, provide their name and 
identification/badge number orally or in writing;
    (e) Immediately report any personal injury or any loss, damage, or 
theft of Federal government property as required by Sec. 422.13;
    (f) Not be found guilty in any court of competent jurisdiction of an 
offense that has a tendency to bring discredit upon the Department or 
Reclamation;
    (g) Not engage in any conduct that is prejudicial to the reputation 
and good order of the Department or Reclamation; and
    (h) Obey all regulations or orders relating to the performance of 
the unit's duties under the Reclamation contract or cooperative 
agreement.



Sec. 422.13  Reporting an injury or property damage or loss.

    (a) An officer must immediately report orally and in writing to his/
her supervisor any:
    (1) Injury suffered while on duty; and
    (2) Any loss, damage, or theft of government property.
    (b) The written report must be in detail and must include names and 
addresses of all witnesses.
    (c) When an officer's injuries prevent him/her from preparing a 
report at the time of injury, the officer's immediate supervisor must 
prepare the report.
    (d) The supervisor must submit all reports made under this section 
to the Reclamation official designated to receive them, as soon as 
possible after the incident occurs.



PART 423--PUBLIC CONDUCT ON RECLAMATION LANDS AND PROJECTS--Table of Contents




Sec.
423.1  Purpose and applicability of this part.
423.2  Definitions of terms used in this part
423.3  Prohibition of trespassing, tampering, and vandalism.
423.4  Restrictions on water vessel operation.
423.5  Applicability of State law to vehicle operation.
423.6  Restrictions on weapons.
423.7  Prohibition of disorderly conduct.
423.8  Prohibition on interfering with agency functions.
423.9  Prohibition of explosives.
423.10  Criminal penalty for violations of this part.

    Authority: 43 U.S.C. 373b, 16 U.S.C. 460 l-31

    Source: 67 FR 19093, Apr. 17, 2002, unless otherwise noted.



Sec. 423.1  Purpose and applicability of this part.

    The purpose of this part is to maintain law and order and protect 
persons and property on Reclamation lands, as defined in this part and 
at Reclamation projects as defined in this part. This part shall not 
apply where the Federal government has no ownership interest.

[[Page 595]]



Sec. 423.2  Definitions of terms used in this part.

    Disorderly conduct means committing any of the following acts with 
the intent to cause or create a risk of public alarm, nuisance, jeopardy 
or violence:
    (1) Fighting or threatening, or violent behavior;
    (2) Language, utterance, gesture, or display or act that is obscene, 
physically threatening or menacing, or that is likely to inflict injury 
or incite an immediate breach of the peace;
    (3) Unreasonable noise, considering the nature and purpose of the 
person's conduct, location, time of day or night, and other factors that 
would govern the conduct of a reasonably prudent person under the 
circumstances; or
    (4) Creating or maintaining a hazardous or physically offensive 
condition.
    Reclamation means the Bureau of Reclamation of the United States 
Department of the Interior.
    Reclamation lands means all real property administered by the 
Commissioner of Reclamation, and includes all acquired and withdrawn 
lands and water areas under the jurisdiction of Reclamation.
    Reclamation projects means any water supply projects or water 
delivery projects constructed or administered by Reclamation under the 
Federal reclamation laws, and Acts supplementary thereto and amendatory 
thereof.
    Vehicle means every device in, upon, or by which a person or 
property is or may be transported or drawn on land, except devices moved 
by human power or used exclusively upon stationary rails or track.
    Vessel means every type or description of craft that is used or 
capable of being used as a means of transportation on water. Any buoyant 
device that permits or is capable of free flotation is a vessel. A 
seaplane is not a vessel.
    Weapon means any of the following:
    (1) A firearm, which is a loaded or unloaded pistol, rifle, shotgun 
or other device which is designed to, or may be readily converted to 
expel a projectile by the ignition of a propellant;
    (2) A compressed gas or spring-powered pistol or rifle, irritant gas 
device, explosive device; or
    (3) Any other implement designed to discharge missiles.



Sec. 423.3  Prohibition of trespassing, tampering, and vandalism.

    (a) The following activities are prohibited:
    (1) Trespassing, entering, or remaining in or upon property or real 
property not open to the public (closed area), except with the express 
invitation or consent of the person having lawful control of the 
property, real property, or water;
    (2) Tampering or attempting to tamper with property or real 
property, or moving, manipulating, or setting in motion any of the parts 
thereof, except when such property is under one's lawful control or 
possession; and
    (3) Vandalism or destroying, injuring, defacing, or damaging 
property or real property that is not under one's lawful control or 
possession.
    (b) Reclamation reserves the right to close and restrict public 
access to Reclamation lands and Reclamation projects subject to this 
part for security or public safety reasons. Each closure order or order 
restricting public access must:
    (1) Identify the facilities, lands or waters that are closed or 
restricted as to public use;
    (2) Specify the uses that are restricted;
    (3) Specify the period of time during which the closure or 
restriction shall apply (including indefinite periods, if necessary); 
and
    (4) Be posted at places near or within the area to which the closure 
or restriction applies, in such manner and location as is reasonable to 
bring prohibitions to the attention of the public.
    (c) Within 15 days of the beginning of the closure or restriction, 
Reclamation will publish the closure or restriction in the Federal 
Register, unless the Commissioner determines that publication is 
contrary to national security or the public interest.



Sec. 423.4  Restrictions on water vessel operation.

    The following are prohibited:
    (a) Operating a vessel in a closed area;

[[Page 596]]

    (b) Failing to observe restrictions established by a regulatory 
marker (i.e., signs, buoys);
    (c) Operating a vessel, or knowingly allowing another person to 
operate a vessel, in a reckless or negligent manner, or in a manner that 
endangers or is likely to endanger a person or property; and
    (d) Operating a vessel when under the influence of alcohol or 
legally-used controlled substance that may endanger life or property.



Sec. 423.5  Applicability of State law to vehicle operation.

    Any person operating a vehicle within Reclamation lands or 
Reclamation projects is subject to State laws in effect at the time.



Sec. 423.6  Restrictions on weapons.

    (a) Carrying or possessing a weapon in violation of applicable 
Federal or State law is prohibited.
    (b) Discharge of a weapon, except where allowed by State law, is 
prohibited.
    (c) Authorized Federal, State, local and tribal law enforcement 
officers may carry and use weapons in the performance of their official 
duties.



Sec. 423.7  Prohibition of disorderly conduct.

    Disorderly conduct is prohibited.



Sec. 423.8  Prohibition on interfering with agency functions.

    The following are prohibited:
    (a) Threatening, resisting, intimidating, or intentionally 
interfering with a government employee or agent engaged in an official 
duty, or on account of the performance of an official duty;
    (b) Violating the lawful order of a government employee or agent 
authorized to maintain order and control public access and movement 
during law enforcement actions, and emergency operations that involve a 
threat to public safety or Reclamation resources, or other activities 
where the control of public movement and activities is necessary to 
maintain order and public safety;
    (c) Knowingly giving a false or fictitious report or other false 
information to an authorized person investigating an accident or 
violation of law or regulation; and
    (d) Knowingly giving a false report or false information for the 
purpose of misleading a government employee or agent in the conduct of 
official duties.



Sec. 423.9  Prohibition of explosives.

    Using, possessing, storing, or transporting explosives, blasting 
agents, or explosive materials is prohibited except as allowed by State 
and Federal law and as authorized by Reclamation.



Sec. 423.10  Criminal penalty for violations of this part.

    In accordance with Section 1(b) of Public Law 107-69, anyone 
responsible for violation of the provisions of this part is subject to a 
fine under subchapter 227, subchapter C of title 18 United States Code, 
can be imprisoned for not more than 6 months, or both.



PART 424--REGULATIONS PERTAINING TO STANDARDS FOR THE PREVENTION, CONTROL, AND ABATEMENT OF ENVIRONMENTAL POLLUTION OF CONCONULLY LAKE AND CONCONULLY RESERVOIR, 
OKANOGAN COUNTY, WASH.--Table of Contents






Sec. 424.1  Regulations.

    Pursuant to the provisions of Article 34 and 25 of repayment 
contract I1r-1534, dated September 20, 1948, between the United States 
and the Okanogan Irrigation District, it is ordered as follows:

    The Okanogan Irrigation District shall require that all recipients 
of cabinsite and recreation resort leases on Federal lands situated on 
Conconully Lake (formerly Salmon Lake) and Conconully Reservoir, 
Okanogan County, Wash., comply with applicable Federal, state and local 
laws, rules and regulations pertaining to water quality standards and 
effluent limitations for the discharge of pollutants into said 
reservoirs, including

[[Page 597]]

county regulations governing subsurface waste disposal systems.

(The Reclamation Act of June 17, 1902, as amended and supplemented, 
Articles 34, and 25 of the Repayment Contract I1r-1534 dated Sept. 20, 
1948, between the United States and the Okanagon Irrigation District)

[42 FR 60144, Nov. 25, 1977]



PART 426--ACREAGE LIMITATION RULES AND REGULATIONS (Eff. 1-1-98)--Table of Contents




Sec.
426.1  Purpose.
426.2  Definitions.
426.3  Conformance to the discretionary provisions.
426.4  Attribution of land.
426.5  Ownership entitlement.
426.6  Leasing and full-cost pricing.
426.7  Trusts.
426.8  Nonresident aliens and foreign entities.
426.9  Religious or charitable organizations.
426.10  Public entities.
426.11  Class 1 equivalency.
426.12  Excess land.
426.13  Excess land appraisals.
426.14  Involuntary acquisition of land.
426.15  Commingling.
426.16  Exemptions and exclusions.
426.17  Small reclamation projects.
426.18  Landholder information requirements.
426.19  District responsibilities.
426.20  Assessment of administrative costs.
426.21  Interest on underpayments.
426.22  Public participation.
426.23  Recovery of operation and maintenance (O&M) costs.
426.24  Reclamation decisions and appeals.
426.25  Reclamation audits.
426.26  Severability.

    Authority: 5 U.S.C. 301; 5 U.S.C. 553; 16 U.S.C. 590z-11; 31 U.S.C. 
9701; and 32 Stat. 388 and all acts amendatory thereof or supplementary 
thereto including, but not limited to, 43 U.S.C. 390aa to 390zz-1, 43 
U.S.C. 418, 43 U.S.C. 423 to 425b, 43 U.S.C. 431, 434, 440, 43 U.S.C. 
451 to 451k, 43 U.S.C. 462, 43 U.S.C. 485 to 485k, 43 U.S.C. 491 to 505, 
43 U.S.C. 511 to 513, and 43 U.S.C. 544.

    Source: 61 FR 66805, Dec. 18, 1996, unless otherwise noted.



Sec. 426.1  Purpose.

    These rules and regulations implement certain provisions of Federal 
reclamation law that address the ownership and leasing of land on 
Federal Reclamation irrigation projects and the pricing of Federal 
Reclamation project irrigation water, and establish terms and conditions 
for the delivery of Federal Reclamation project irrigation water.



Sec. 426.2  Definitions.

    As used in these rules:
    Acreage limitation entitlements mean the ownership and nonfull-cost 
entitlements.
    Acreage limitation provisions mean the ownership limitations and 
pricing restrictions specified in Federal reclamation law, including but 
not limited to, Sections 203(b), 204, and 205 of the Reclamation Reform 
Act of 1982 (43 U.S.C. 390aa et seq.).
    Acreage limitation status means whether a landholder is a qualified 
recipient, limited recipient, or prior law recipient.
    Commissioner means the Commissioner of the Bureau of Reclamation, 
U.S. Department of the Interior.
    Compensation rate means a water rate applied, in certain situations, 
to water delivery to ineligible land that is not discovered until after 
the delivery has taken place. The compensation rate is equal to the 
established full-cost rate that would apply to the landholder if the 
landholder was to receive irrigation water on land that exceeded a 
nonfull-cost entitlement.
    Contract means any repayment or water service contract or agreement 
between the United States and a district providing for the payment to 
the United States of construction charges and normal operation, 
maintenance, and replacement costs under Federal reclamation law, even 
if the contract does not specifically identify the portion of the 
payment that is to be attributed to operation and maintenance and that 
portion that is to be attributed to construction. This definition 
includes contracts made in accordance with the Distribution System Loans 
Act, as amended (43 U.S.C. 421).
    Contract rate means the assessment, as set forth in a contract, that 
is to be paid by a district to the United States, and recomputed if 
necessary on a per acre or per acre foot basis.
    Dependent means any natural person within the meaning of the term 
dependent in the Internal Revenue Code

[[Page 598]]

of 1954 (26 U.S.C. 152) and any subsequent amendments.
    Direct when used in connection with the terms landholder, landowner, 
lessee, lessor, or owner, means that the party is the owner of record or 
holder of title, or the lessee of a land parcel, as appropriate. 
However, landholdings of joint tenants and tenants-in-common will not be 
considered direct under these regulations.
    Discretionary provisions refer to Sections 390cc through 390hh, 
except for 390cc(b), of the Reclamation Reform Act of 1982 (43 U.S.C. 
390aa et seq.).
    District means any individual or any legal entity established under 
State law that has entered into a contract or can potentially enter into 
a contract with the United States for irrigation water service through 
federally developed or improved water storage and/or distribution 
facilities.
    Eligible, except where otherwise provided, means permitted to 
receive an irrigation water supply from a Reclamation project under 
applicable Federal reclamation law.
    Entity, see definition of legal entity.
    Excess land means nonexempt land that is in excess of a landowner's 
maximum ownership entitlement under the applicable provisions of Federal 
reclamation law.
    Exempt, except where otherwise provided, means not subject to the 
acreage limitation provisions.
    Extended recordable contract means a recordable contract whose term 
was extended due to moratoriums established in 1976 and 1977 on the sale 
of excess land.
    Full cost or full-cost rate means an annual rate established by 
Reclamation that amortizes the expenditures for construction properly 
allocable to irrigation facilities in service, including all operation 
and maintenance deficits funded, less payments, over such periods as may 
be required under Federal reclamation law, or applicable contract 
provisions. Interest will accrue on both the construction expenditures 
and funded operation and maintenance deficits from October 12, 1982, on 
costs outstanding at that date, or from the date incurred in the case of 
costs arising subsequent to October 12, 1982. The full-cost rate 
includes actual operation, maintenance, and replacement costs required 
under Federal reclamation law.
    Full-cost charge means the full-cost rate less the actual operation, 
maintenance, and replacement costs required under Federal reclamation 
law.
    Indirect, when used in connection with the terms landholder, 
landowner, lessee, lessor or owner, means that such party is not the 
owner of record or holder of title, or the lessee of a land parcel, but 
that such party has a beneficial interest in the legal entity that is 
the owner of record or holder of title, or the lessee of a land parcel. 
Landholdings of joint tenants and tenants-in-common will be considered 
indirect under these regulations. A security interest held by lenders, 
who are not otherwise considered a landholder of the land in question, 
in a legal entity or in a land parcel will not be considered an indirect 
interest or a beneficial interest for purposes of these regulations.
    Individual means any natural person, including his or her spouse, 
and including other dependents; provided that, under prior law, the term 
individual does not include a natural person's spouse or dependents.
    Ineligible, except where otherwise provided, means not permitted to 
receive an irrigation water supply under applicable Federal reclamation 
law regardless of the rate paid for such water.
    Intermediate entity means an entity that is a part owner of another 
entity and in turn is owned by others, either another entity or 
individuals.
    Involuntary acquisition means land that is acquired through an 
involuntary foreclosure or similar involuntary process of law, 
conveyance in satisfaction of a debt (including, but not limited to, a 
mortgage, real estate contract or deed of trust), inheritance, or 
devise.
    Irrevocable election means the execution of the legal instrument 
that a landholder subject to prior law provisions submits to become 
subject to the discretionary provisions of Federal reclamation law.
    Irrevocable elector means a landholder who makes an irrevocable 
election to conform to the discretionary provisions of Federal 
reclamation law.

[[Page 599]]

    Irrigable land means land so classified by Reclamation under a 
specific project plan for which irrigation water is, can be, or is 
planned to be provided, and for which facilities necessary for sustained 
irrigation are provided or are planned to be provided.
    Irrigation land means any land receiving water from a Reclamation 
project facility for irrigation purposes in a given water year, except 
for land that has been specifically exempted by statute or 
administrative action from the acreage limitation provisions of Federal 
reclamation law.
    Irrigation water means water made available for agricultural 
purposes from the operation of Reclamation project facilities pursuant 
to a contract with Reclamation.
    Landholder means a party that directly or indirectly owns or leases 
nonexempt land.
    Landholding means the total acreage of nonexempt land directly or 
indirectly owned or leased by a landholder.
    Lease means any arrangement between a landholder (the lessor) and 
another party (the lessee) under which the economic risk and the use or 
possession of the lessor's land is partially or wholly transferred to 
the lessee. If a management arrangement or consulting agreement is one 
in which the manager or consultant performs a service for the landholder 
for a fee, but does not assume the economic risk in the farming 
operation, and the landholder retains the right to the use and 
possession of the land, is responsible for payment of the operating 
expenses, and is entitled to receive the profits from the farming 
operation, then the agreement or arrangement will not be considered to 
be a lease.
    Legal entity or entity for the purpose of establishing application 
of the acreage limitation entitlements means, but is not limited to, 
corporations, partnerships, organizations, and any business or property 
ownership arrangements such as joint tenancies and tenancies-in-common. 
For purposes of the information requirements specified in Sec. 426.18 
only, trusts will be considered to be legal entities.
    Limited recipient means any legal entity established under State or 
Federal law benefiting more than 25 natural persons. In order to become 
limited recipients, legal entities must be subject to the discretionary 
provisions through either district contract action or irrevocable 
election.
    Nondiscretionary provisions means sections 390cc(b) and 390ii 
through 390zz 1 of the RRA.
    Nonexempt land means either irrigation land or irrigable land that 
is subject to the acreage limitation provisions. Areas used for field 
roads, farm ditches and drains, tailwater ponds, temporary equipment 
storage, and other improvements subject to change at will by the 
landowner, are included in the nonexempt acreage. Areas occupied by and 
currently used for homesites, farmstead buildings, and corollary 
permanent structures such as feedlots, equipment storage yards, 
permanent roads, permanent ponds, and similar facilities, together with 
roads open for unrestricted use by the public are excluded from 
nonexempt acreage.
    Nonfull-cost entitlement means the maximum acreage a landholder may 
irrigate with irrigation water at a nonfull-cost rate.
    Nonfull-cost ratemeans any water rate other than the full-cost rate. 
Nonfull-cost rates are paid for irrigation water made available to land 
in a landholder's nonfull-cost entitlement.
    Nonproject water means water from sources other than Reclamation 
project facilities.
    Nonresident alien means any natural person who is neither a citizen 
nor a resident alien of the United States.
    Operation and maintenance costs or O&M costs mean all direct charges 
and overhead costs incurred by the United States after the date that 
Reclamation has declared a project, or a part thereof, substantially 
complete to operate, maintain, provide replacements of, administer, 
manage, and oversee project facilities and lands.
    Ownership entitlement means the maximum acreage a landholder may 
directly or indirectly own and irrigate with irrigation water.
    Part owner means an individual or legal entity that has a beneficial 
interest in a legal entity, but does not own 100 percent of that legal 
entity. A lender, who is not otherwise considered a landholder of the 
land in question, with

[[Page 600]]

a security interest in a legal entity or land owned by a legal entity 
shall not be considered a part owner under these regulations.
    Prior law means the Reclamation Act of 1902, and acts amendatory and 
supplementary thereto (43 U.S.C. 371 et seq.) that were in effect prior 
to the enactment of the RRA, and as amended by the RRA.
    Prior law recipient means an individual or legal entity that has not 
become subject to the discretionary provisions.
    Project means any irrigation project authorized by Federal 
reclamation law, or constructed by the United States pursuant to such 
law, or in connection with a repayment or water service contract 
executed by the United States pursuant to such law, or any project 
constructed by the United States through Reclamation for the reclamation 
of lands. The term project includes any incidental features of an 
irrigation project.
    Public entity means States, political subdivisions or agencies 
thereof, and agencies of the Federal Government.
    Qualified recipient means an individual who is a citizen or a 
resident alien of the United States or any legal entity established 
under State or Federal law that benefits 25 natural persons or less. A 
married couple may become a qualified recipient if either spouse is a 
United States citizen or resident alien. In order to become qualified 
recipients, individuals and legal entities must be subject to the 
discretionary provisions through either district contract action or 
irrevocable election.
    Reclamation means the Bureau of Reclamation, U.S. Department of the 
Interior.
    Reclamation fund means a special fund established by the Congress 
under the Reclamation Act of 1902, as amended, for the receipts from the 
sale of public lands and timber, proceeds from the Mineral Leasing Act, 
and certain other revenues.
    Recordable contract means a written contract between Reclamation and 
a landowner capable of being recorded under State law, providing for the 
disposition of land held by that landowner in excess of the ownership 
limitations of Federal reclamation law.
    Resident alien means any natural person within the meaning of the 
term as defined in the Internal Revenue Act of 1954 (26 U.S.C. 7701) as 
it may be amended.
    RRA means the Reclamation Reform Act of 1982, Public Law 97-09293, 
Title II, 96 Stat. 1263, (43 U.S.C. 390aa et seq.) as amended.
    Secretary means Secretary of the U.S. Department of the Interior.
    Standard certification or reporting forms mean forms on which 
landholders provide complete information about the directly and 
indirectly owned and leased nonexempt lands in their landholdings.
    Water year means a 365-day period (or 366 days during leap years) 
whose start date is specified within a contract between Reclamation and 
the district or through some other agreement between Reclamation and the 
district.
    Westwide means the 17 Western States where Reclamation projects are 
located, namely: Arizona, California, Colorado, Idaho, Kansas, Montana, 
Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, South 
Dakota, Texas, Utah, Washington, and Wyoming.



Sec. 426.3  Conformance to the discretionary provisions.

    (a) Districts that are subject to the discretionary provisions. 
Unless an exemption in Sec. 426.16 applies, a district is subject to the 
discretionary provisions if:
    (1) The district executes a new or renewed contract with Reclamation 
after October 12, 1982. The discretionary provisions apply as of the 
execution date of the new or renewed contract;
    (2) The district amends its contract to conform to the discretionary 
provisions:
    (i) A district may ask Reclamation to amend its contract to conform 
to the discretionary provisions;
    (ii) The district's request to Reclamation must be accompanied by a 
duly adopted resolution dated and signed by the governing board of the 
district obligating the district to take, in a timely manner, actions 
required by applicable State law to amend its contract; and

[[Page 601]]

    (iii) If the requirements of paragraphs (a)(2)(i) and (ii) of this 
section are met, then Reclamation will amend the contract, and the 
district becomes subject to the discretionary provisions from the date 
the district's request was submitted to Reclamation;
    (iv) If the district only wants to amend its contracts to become 
subject to the discretionary provisions, the amendments need only be to 
the extent required to conform to the discretionary provisions; or
    (3) The district amends its contract after October 12, 1982, to 
provide the district with additional or supplemental benefits. The 
amendment must also include the district's conformance to the 
discretionary provisions:
    (i) The discretionary provisions apply as of the date that 
Reclamation executes the contract amendment;
    (ii) For purposes of application of the acreage limitation 
provisions Reclamation considers a contract amendment as providing 
additional or supplemental benefits if that amendment:
    (A) Requires the United States to expend significant funds;
    (B) Requires the United States to commit significant additional 
water supplies; or
    (C) Substantially modifies contract payments due the United States; 
and
    (iii) For purposes of application of the acreage limitation 
provisions Reclamation does not consider the following contract actions 
as providing additional or supplemental benefits:
    (A) The construction of facilities for conveyance of irrigation 
water for which districts contracted on or before October 12, 1982;
    (B) Minor drainage and construction work contracted under a prior 
repayment or water service contract;
    (C) Operation and maintenance (O&M) amendments;
    (D) The deferral of payments provided the deferral is for a period 
of 12 months or less;
    (E) A temporary supply of irrigation water as set forth in 
Sec. 426.16(d);
    (F) The transfer of water on an annual basis from one district to 
another, provided that:
    (1) Both districts have contracts with the United States;
    (2) The rate paid by the district receiving the transferred water:
    (i) Is the higher of the applicable water rate for either district;
    (ii) Does not result in any increased operating losses to the United 
States above those that would have existed in the absence of the 
transfer; and
    (iii) Does not result in any decrease in capital repayment to the 
United States below what would have existed in the absence of the 
transfer; and
    (3) The recipients of the transferred water pay a rate for the water 
that is at least equal to the actual O&M costs or the full-cost rate in 
those cases where, for whatever reason, the recipients would have been 
subject to such costs had the water not been considered transferred 
water;
    (G) Contract actions pursuant to the Reclamation Safety of Dams Act 
of 1978, as amended (43 U.S.C. 506); or
    (H) Other contract actions that Reclamation determines do not 
provide additional or supplemental benefits.
    (b) Districts that are subject to prior law. Any district which had 
a contract in force on October 12, 1982, that required landholders to 
comply with the ownership limitations of Federal reclamation law remains 
subject to prior law unless and until the district:
    (1) Enters into a new or renewed contract requiring it to conform to 
the discretionary provisions, as provided in paragraph (a)(1) of this 
section;
    (2) Makes a contract action requiring conformance to the 
discretionary provisions, as provided in paragraphs (a)(2) or (3) of 
this section; or
    (3) Becomes exempt, as provided in Sec. 426.16.
    (c) Standard RRA contract article. (1) New or renewed contracts 
executed after October 12, 1982, or contracts that are amended to 
conform to the discretionary provisions before or on the effective date 
of these rules must include the following clause:

    The parties agree that the delivery of irrigation water or use of 
Federal facilities pursuant to this contract is subject to reclamation 
law, as amended and supplemented, including but not limited to the 
Reclamation Reform Act of 1982 (43 U.S.C. 390aa et seq..

    (2) New or renewed contracts executed after the effective date of 
these rules, or contracts that are amended to

[[Page 602]]

conform to the discretionary provisions after the effective date of 
these rules must include the following clause:

    The parties agree that the delivery of irrigation water or use of 
Federal facilities pursuant to this contract is subject to Federal 
reclamation law, including but not limited to the Reclamation Reform Act 
of 1982 (43 U.S.C. 390aa et seq.), as amended and supplemented, and the 
rules and regulations promulgated by the Secretary of the Interior under 
Federal reclamation law.

    (d) The effect of a master contractor's and subcontractor's actions 
to conform to the discretionary provisions. If a district provides 
irrigation water to other districts through subcontracts and the master 
contracting district is subject to:
    (1) The discretionary provisions, then all subcontracting districts 
who are entitled to receive irrigation water must also conform to the 
discretionary provisions; or
    (2) Prior law, then the subcontracting district can amend its 
subcontract to conform to the discretionary provisions without 
subjecting the master contractor or any other subcontractor of the 
master contractor to the discretionary provisions. If a subcontract that 
does not include the United States as a party is amended to conform to 
the discretionary provisions, or the subcontract is a new or renewed 
contract executed after October 12, 1982, then the amended, new, or 
renewed subcontract must include the United States as a party.
    (e) The effect on a landholder's status when a district becomes 
subject to the discretionary provisions. If a district conforms to the 
discretionary provisions and the landholder is:
    (1) Other than a nonresident alien or a legal entity that is not 
established under State or Federal law, and is:
    (i) A direct landholder in that district, then the landholder 
becomes subject to the discretionary provisions and the associated 
acreage limitation status will apply in any district in which the 
landholder holds land; or
    (ii) Only an indirect landholder in that and all other discretionary 
provisions districts, then the landholder's acreage limitation status is 
not affected. Such a landholder can receive irrigation water as a prior 
law recipient on indirectly held lands in districts that conform to the 
discretionary provisions.
    (2) A nonresident alien, or legal entity not established under State 
or Federal law, and the landholder is:
    (i) A direct landholder, then since such a landholder cannot become 
subject to, and has no eligibility under the discretionary provisions:
    (A) All direct landholdings in districts that conform to the 
discretionary provisions become ineligible; and
    (B) Directly held land that becomes ineligible as a result of the 
district's action to conform to the discretionary provisions may be 
placed under recordable contract as subject to the conditions specified 
in Sec. 426.12; or
    (ii) An indirect landholder, then such a landholder may receive 
irrigation water on land indirectly held in districts conforming to the 
discretionary provisions, with the entitlements for such landholder 
determined as specified in Sec. 426.8.
    (f) Landholder actions to conform to the discretionary provisions. 
(1) In the absence of a district's action to conform to the 
discretionary provisions, United States citizens, resident aliens, or 
legal entities established under State or Federal law, can elect to 
conform to the discretionary provisions by executing an irrevocable 
election. Upon execution of an irrevocable election:
    (i) The elector's entire landholding in all districts shall be 
subject to the discretionary provisions;
    (ii) The election shall be binding on the elector and his or her 
landholding, but will not be binding on subsequent landholders of that 
land;
    (iii) An irrevocable election by a legal entity is binding only upon 
that entity and not on the part owners of that entity;
    (iv) An irrevocable election by a part owner of a legal entity binds 
only the part owner making the election and not the entity or other part 
owners of the entity; and
    (v) An irrevocable election by a lessor does not affect the status 
of a lessee, and vice versa. However, the eligibility and entitlement of 
neither a lessor nor a lessee may be enhanced through leasing.

[[Page 603]]

    (2) A landholder makes an irrevocable election by completing a 
Reclamation issued irrevocable election form:
    (i) The elector's original irrevocable election form must be filed 
by the district with Reclamation and must be accompanied by a completed 
certification form, as specified in Sec. 426.18;
    (ii) The elector must file copies of the irrevocable election and 
certification forms concurrently with each district where the elector 
holds nonexempt land;
    (iii) Reclamation will prepare a letter advising the recipient of 
the approval or disapproval of the election. Reclamation will base 
approval upon whether the election form and the accompanying 
certification form(s) indicate the elector's satisfaction of the various 
requirements of Federal reclamation law and these regulations;
    (iv) If the election is approved, the letter of approval, with a 
copy of the irrevocable election form and the original certification 
form(s), will be sent by Reclamation to each district where the elector 
holds land;
    (v) The district(s) shall retain the forms; and
    (vi) If the irrevocable election is disapproved, the landholder and 
the district will be advised by letter along with the reasons for 
disapproval.
    (3) A landholder that only holds land indirectly in a district that 
has conformed to the discretionary provisions, other than a nonresident 
alien or a legal entity not established under State or Federal law, may 
make an irrevocable election also by simply submitting certification 
forms to all districts where the landholder holds land subject to the 
acreage limitation provisions. An election made in this manner is 
binding in all districts in which such elector holds land.
    (g) District reliance on irrevocable election form information. The 
district is entitled to rely on the information contained in the 
irrevocable election form. The district does not need to make an 
independent investigation of the information.
    (h) Time limits for amendments or elections to conform to the 
discretionary provisions. Reclamation will allow at anytime a landholder 
to elect or a district to amend its contract to conform to the 
discretionary provisions. An irrevocable election that was made after 
April 12, 1987, but on or before May 13, 1987, shall be considered 
effective as of April 12, 1987.



Sec. 426.4  Attribution of land.

    (a) Prohibition on increasing acreage limitation entitlements. 
Except as specifically provided in these rules, a landholder cannot 
increase acreage limitation entitlements or eligibility by acquiring or 
holding a beneficial interest in a legal entity. Similarly, the acreage 
limitation status of an individual or legal entity that holds or has 
acquired a beneficial interest in another legal entity will not be 
permitted to enlarge the latter legal entity's acreage limitation 
entitlements or eligibility.
    (b) Attribution of owned land. For purposes of determining acreage 
to be counted against acreage limitation entitlements, acreage will be 
attributed to all:
    (1) Direct landowners in proportion to the direct beneficial 
interest the landowners own in the land; and
    (2) Indirect landowners in proportion to the indirect beneficial 
interest they own in the land.
    (c) Attribution of leased land. Leased land will be attributed to 
the direct and indirect landowners as well as to the direct and indirect 
lessees in the same manner as described in paragraphs (b) and (d) of 
this section.
    (d) Attribution of land held through intermediate entities. If land 
is held by a direct landholder and a series of indirect landholders, 
Reclamation will attribute that land to the acreage limitation 
entitlements of the direct landholder and each indirect landholder in 
proportion to each landholder's beneficial interest in the entity that 
directly holds the land.
    (e) Leasebacks. Any land a landholder directly or indirectly owns 
and that is directly or indirectly leased back will only count once 
against that particular landholder's nonfull-cost entitlement.

[[Page 604]]

    (f) Effect on an entity of attribution to part owners. For purposes 
of determining eligibility, the entire landholding will be attributed to 
all the direct and indirect landholders. If the interests in a legal 
entity are:
    (1) Undivided, then all of the indirect part owners must be eligible 
in order for the entity to be eligible; or
    (2) Divided, in such a manner that specific parcels are attributable 
to each indirect landholder, then the entity may qualify for eligibility 
on those portions of the landholding not attributable to any part owner 
who is ineligible.



Sec. 426.5  Ownership entitlement.

    (a) General. Except as provided in Secs. 426.12 and 426.14, all 
nonexempt land directly or indirectly owned by a landholder counts 
against that landholder's ownership entitlement. In addition, land owned 
or controlled by a public entity that is leased to another party counts 
against the lessee's ownership entitlement, as specified in Sec. 426.10.
    (b) Qualified recipient ownership entitlement. A qualified recipient 
is entitled to receive irrigation water on a maximum of 960 acres of 
owned nonexempt land, or the Class 1 equivalent thereof. This 
entitlement applies on a westwide basis.
    (c) Limited recipient ownership entitlement. A limited recipient is 
entitled to receive irrigation water on a maximum of 640 acres of owned 
nonexempt land, or the Class 1 equivalent thereof. This entitlement 
applies on a westwide basis.
    (d) Prior law recipient ownership entitlement. (1) Ownership 
entitlements for prior law recipients are determined by whether the 
recipient is one individual or a married couple, and for entities by the 
type of entity, as follows:
    (i) An individual subject to prior law is entitled to receive 
irrigation water on a maximum of 160 acres of owned nonexempt land;
    (ii) Married couples who hold equal interests are entitled to 
receive irrigation water on a maximum of 320 acres of jointly owned 
nonexempt land;
    (iii) Surviving spouses until remarriage are entitled to receive 
irrigation water on that land owned jointly in marriage up to a maximum 
of 320 acres of owned nonexempt land. If any of that land should be 
sold, the applicable ownership entitlement would be reduced accordingly, 
but not to less than 160 acres of owned nonexempt land;
    (iv) Children are each entitled to receive irrigation water on a 
maximum of 160 acres of owned nonexempt land, regardless of whether they 
are independent or dependent;
    (v) Joint tenancies and tenancies-in-common subject to prior law are 
entitled to receive irrigation water on a maximum of 160 acres of owned 
nonexempt land per tenant, provided each tenant holds an equal interest 
in the tenancy;
    (vi) Partnerships subject to prior law are entitled to receive 
irrigation water on a maximum of 160 acres of owned nonexempt land per 
partner if the partners have separable and equal interests in the 
partnership and the right to alienate that interest. Partnerships where 
each partner does not have a separable interest and the right to 
alienate that interest are entitled to receive irrigation water on a 
maximum of 160 acres of nonexempt land owned by the partnership; and
    (vii) All corporations subject to prior law are entitled to receive 
irrigation water on a maximum of 160 acres of owned nonexempt land.
    (2) Prior law recipient ownership entitlements specified in this 
section apply on a westwide basis unless the land was acquired by the 
current owner on or before December 6, 1979. For land acquired by the 
current owner on or before that date, prior law ownership entitlements 
apply on a district-by-district basis.
    (3) For those entities where an equal interest held by the part 
owners would result in a 160-acre per part owner entitlement for the 
entity, if the part owners interests are not equal then the entitlement 
of the entity will be determined by the relative interest held in the 
entity by each part owner.



Sec. 426.6  Leasing and full-cost pricing.

    (a) Conditions that a lease must meet. Districts can make irrigation 
water available to leased land only if the lease meets the following 
requirements. Land that is leased under a lease instrument that does not 
meet

[[Page 605]]

the following requirements will be ineligible to receive irrigation 
water until the lease agreement is terminated or modified to satisfy 
these requirements.
    (1) The lease is in writing;
    (2) The lease includes the effective date and term of the lease, the 
length of which must be:
    (i) 10 years or less, including any exercisable options; however, 
for perennial crops with an average life longer than 10 years, the term 
may be equal to the average life of the crop as determined by 
Reclamation, and
    (ii) In no case may the term of a lease exceed 25 years, including 
any exercisable options;
    (3) The lease includes a legal description, that is at least as 
detailed as what is required on the standard certification and reporting 
forms, of the land subject to the lease;
    (4) Signatures of all parties to the lease are included;
    (5) The lease includes the date(s) or conditions when lease payments 
are due and the amounts or the method of computing the payments due;
    (6) The lease is available for Reclamation's inspection and 
Reclamation reviews and approves all leases for terms longer than 10 
years; and
    (7) If either the lessor or the lessee is subject to the 
discretionary provisions, the lease provides for agreed upon payments 
that reflect the reasonable value of the irrigation water to the 
productivity of the land; except
    (8) Leases in effect as of the effective date of these regulations 
do not need to meet the criteria specified under paragraphs (a) (3) and 
(4) of this section, unless and until such leases are renewed.
    (b) Nonfull-cost entitlements. (1) The nonfull-cost entitlement for 
qualified recipients is 960 acres, or the Class 1 equivalent thereof.
    (2) The nonfull-cost entitlement for limited recipients that 
received irrigation water on or before October 1, 1981, is 320 acres or 
the Class 1 equivalent thereof. The nonfull-cost entitlement for limited 
recipients that did not receive irrigation water on or prior to October 
1, 1981, is zero.
    (3) The nonfull-cost entitlement for prior law recipients is equal 
to the recipient's maximum ownership entitlement as set forth in 
Sec. 426.5(d). However, for the purpose of computing the acreage subject 
to full cost, all owned and leased irrigation land westwide must be 
included in the computation.
    (c) Application of the nonfull-cost and full-cost rates. (1) A 
landholder may irrigate at the nonfull-cost rate directly and indirectly 
held acreage equal to his or her nonfull-cost entitlement.
    (2) If a landholding exceeds the landholder's nonfull-cost 
entitlement, the landholder must pay the appropriate full-cost rate for 
irrigation water delivered to acreage that equals the amount of leased 
land that exceeds that entitlement.
    (3) In the case of limited recipients, a landholder does not have to 
lease land to exceed a nonfull-cost entitlement, since the nonfull-cost 
entitlement is less than the ownership entitlement. Therefore, limited 
recipients must pay the appropriate full-cost rate for irrigation water 
delivered to any acreage that exceeds their nonfull-cost entitlement.
    (d) Types of lands that count against the nonfull-cost entitlement. 
(1) All directly and indirectly owned irrigation land and irrigation 
land directly or indirectly leased for any period of time during 1-water 
year counts towards a landholder's nonfull-cost entitlement, except:
    (i) Involuntarily acquired land, as provided in Secs. 426.12 and 
426.14; and
    (ii) Land that is leased for incidental grazing or similar purposes 
during periods when the land is not receiving irrigation water.
    (2) Reclamation's process for determining if a nonfull-cost 
entitlement has been exceeded is as follows:
    (i) All land counted toward a landholder's nonfull-cost entitlement 
will be counted on a cumulative basis during any 1-water year;
    (ii) Once a landholder's nonfull-cost entitlement is met in a given 
water year, any additional eligible land may be irrigated only at the 
full-cost rate; and
    (iii) Irrigation land will be counted towards nonfull-cost 
entitlements on a westwide basis, even for prior law recipients, 
regardless of the date of acquisition.

[[Page 606]]

    (e) Selection of nonfull-cost land. (1) A landholder that has 
exceeded his or her nonfull-cost entitlement may select in each water 
year, from his or her directly held irrigation land, the land that can 
be irrigated at a nonfull-cost rate and the land that can be irrigated 
only at the full-cost rate. Selections for full-cost or nonfull-cost 
land may include:
    (i) Leased land;
    (ii) Nonexcess owned land;
    (iii) Land under recordable contract, unless that land is already 
subject to application of the full-cost rate under an extended 
recordable contract; or
    (iv) A combination of all three.
    (2) Once a landholder has received irrigation water on a given land 
parcel during a water year, the selection of that parcel as full cost or 
nonfull-cost is binding until the landholder has completed receiving 
irrigation water westwide for that water year.
    (f) Applicability of a full-cost selection to an owner or lessee. If 
a landowner or lessee should select land as subject to full-cost 
pricing, then that land can receive irrigation water only at the full-
cost rate, regardless of eligibility of the other party to receive the 
irrigation water at the nonfull-cost rate.
    (g) Subleased land. Land that is subleased (the lessee transfers 
possession of the land to a sublessee) will be attributed to the 
landholding of the sublessee and not to the lessee.
    (h) Calculating full-cost charges. Reclamation will calculate a 
district's full-cost charge using accepted accounting procedures and 
under the following conditions.
    (1) The full-cost charge does not recover interest retroactively 
before October 12, 1982. But, interest on the unpaid balance does accrue 
from October 12, 1982, where the unpaid balance equals the irrigation 
allocated construction costs for facilities in service plus cumulative 
federally funded O&M deficits, less payments.
    (2) The full-cost charge will be determined:
    (i) As of October 12, 1982, for contracts entered into before that 
date regardless of amendments to conform to the discretionary 
provisions; and
    (ii) At the time of contract execution for new and renewed contracts 
entered into on or after October 12, 1982.
    (3) For repayment contracts, the full-cost charge will fix equal 
annual payments over the amortization period. For water service 
contracts, the full-cost charge will fix equal payments per acre-foot of 
projected water deliveries over the amortization period.
    (4) If there are additional construction expenditures, or if the 
cost allocated to irrigation changes, then a new full-cost charge will 
be determined.
    (5) Reclamation will notify the respective districts of changes in 
the full-cost charge at the time the district is notified of other 
payments due the United States.
    (6) In determining full-cost charges, the following factors will be 
considered:
    (i) Amortization period. The amortization period for calculating the 
full-cost charge is the remaining balance of:
    (A) For contracts entered into before October 12, 1982, the contract 
repayment period as of October 12, 1982;
    (B) For contracts entered into on or after October 12, 1982, the 
contract repayment period;
    (C) For water service contracts, the period from October 12, 1982, 
or the execution date of the contract, whichever is later, to the 
anticipated date of project repayment; and
    (D) In cases where water services rates are designed to completely 
repay applicable Federal expenditures in a specific time period, that 
time period may be used as the amortization period for full-cost 
calculations related to these expenditures; but, in no case will the 
amortization period exceed the project payback period authorized by the 
Congress;
    (ii) Construction costs. For determining full cost, construction 
costs properly allocable to irrigation are those Federal project costs 
for facilities in service that have been assigned to irrigation within 
the overall allocation of total project construction costs. Total 
project construction costs include all direct expenditures necessary to 
install or implement a project, such as:
    (A) Planning;
    (B) Design;

[[Page 607]]

    (C) Land;
    (D) Rights-of-way;
    (E) Water-rights acquisitions;
    (F) Construction expenditures;
    (G) Interest during construction; and
    (H) When appropriate, transfer costs associated with services 
provided from other projects;
    (iii) Facilities in service. Facilities in service are those 
facilities that are in operation and providing irrigation services;
    (iv) Operation and maintenance (O&M) deficits funded. O&M deficits 
funded are the annual O&M costs including project-use pumping power 
allocated to irrigation that have been federally funded and that have 
not been paid by the district;
    (v) Payments received. In calculating the payments that have been 
received, all receipts and credits applied to repay or reduce allocated 
irrigation construction costs in accordance with Federal reclamation 
law, policy, and applicable contract provisions will be considered. 
These may include:
    (A) Direct repayment contract revenues;
    (B) Net water service contract income;
    (C) Contributions;
    (D) Ad valorem taxes; and
    (E) Other miscellaneous revenues and credits excluding power and 
municipal and industrial (M&I) revenues;
    (vi) Interest rates. Interest rates to be used in calculating full-
cost charges will be determined by the Secretary of the Treasury as 
follows:
    (A) For irrigation water delivered to qualified recipients, limited 
recipients receiving water on or before October 1, 1981, and extended 
recordable contract land owned by prior law recipients, the interest 
rate for expenditures made on or before October 12, 1982, will be the 
greater of 7.5 percent per annum or the weighted average yield of all 
interest-bearing marketable issues sold by the Treasury during the 
fiscal year when the expenditures were made by the United States. The 
interest rate for expenditures made after October 12, 1982, will be the 
arithmetic average of:
    (1) The computed average interest rate payable by the Treasury upon 
its outstanding marketable public obligations that are neither due nor 
callable for redemption for 15 years from the date of issuance at the 
beginning of the fiscal year when the expenditures are made; and
    (2) The weighted average yield on all interest-bearing marketable 
issues sold by the Treasury during the fiscal year preceding the fiscal 
year the expenditures are made;
    (B) For irrigation water delivered to limited recipients not 
receiving irrigation water on or before October 1, 1981, and prior law 
recipients, except for land owned subject to extended recordable 
contract, the interest rate will be determined as of the fiscal year 
preceding the fiscal year the expenditures are made, except that the 
interest rate for expenditures made before October 12, 1982, will be 
determined as of October 12, 1982. The interest rate will be based on 
the arithmetic average of:
    (1) The computed average interest rate payable by the Treasury upon 
its outstanding marketable public obligations that are neither due nor 
callable for redemption for 15 years from the date of issuance; and
    (2) The weighted average yield on all interest-bearing marketable 
issues sold by the Treasury.
    (C) Landholders who were prior law recipients and become subject to 
the discretionary provisions after April 12, 1987, are eligible for the 
full-cost interest rate specified in paragraph (h)(6)(vi)(A) of this 
section, unless they are limited recipients that did not receive 
irrigation water on or before October 1, 1981, in that case they remain 
subject to the full-cost interest rate specified in paragraph 
(h)(6)(vi)(B) of this section.
    (i) Direct and proportional charges for full-cost water. In 
situations where water delivery charges are contractually or customarily 
levied on a per-acre basis, full-cost assessments will be made on a per-
acre basis. In situations where water delivery charges are contractually 
or customarily levied on a per acre-foot basis, one of the following 
methods must be used to make full-cost assessments:
    (1) Assessments will be based on the actual amounts of water used in 
situations where measuring devices are in use, to the satisfaction of 
Reclamation, to reasonably determine the amounts

[[Page 608]]

of irrigation water being delivered to full-cost and nonfull-cost land; 
or
    (2) In situations where, as determined by Reclamation, measuring 
devices are not a reliable method for determining the amounts of water 
being delivered to full-cost and nonfull-cost land, then water charges 
must be based on the assumption that equal amounts of water per acre are 
being delivered to both types of land during periods when both types of 
land are actually being irrigated.
    (j) Disposition of revenues obtained through full-cost water 
pricing--(1) Legal deliveries. If irrigation water has been delivered in 
compliance with Federal reclamation law and these regulations, then:
    (i) That portion of the full-cost rate that would have been 
collected if the land had not been subject to full cost will be credited 
to the annual payments due under the district's contractual obligation;
    (ii) Any O&M revenues collected over and above those required under 
the district's contract will be credited to the project O&M account; and
    (iii) The remaining full-cost revenues will be credited to the 
Reclamation fund unless otherwise provided by law, with any capital 
component of the full-cost rate credited to project repayment, if 
applicable.
    (2) Illegal deliveries. Revenues resulting from the assessment of 
compensation charges for illegal deliveries of irrigation water will be 
deposited into the Reclamation fund in their entirety, and will not be 
credited toward any contractual obligation, or O&M or repayment account 
of the district or project. For purposes of these regulations only, this 
does not include revenues from any charges that may be assessed by the 
district to cover district operation, maintenance, and administrative 
expenses.



Sec. 426.7  Trusts.

    (a) Definitions for purposes of this section:
    Grantor revocable trust means a trust that holds irrigable land or 
irrigation land that may be revoked at the discretion of the grantor(s), 
or terminated by the terms of the trust, and revocation or termination 
results in title to the land held in trust reverting either directly or 
indirectly to the grantor(s).
    Irrevocable trust means a trust that holds irrigable land or 
irrigation land and does not allow any individual, including the grantor 
or beneficiaries, the discretion to decide when or under what conditions 
the trust terminates, and that upon termination the title to the land 
held in trust transfers either directly or indirectly to a person(s) or 
entity(ies) other than the grantor(s).
    Otherwise revocable trust means a trust that holds irrigable land or 
irrigation land and that may be revoked at the discretion of the 
grantor(s) or other parties, or terminated by the terms of the trust, 
and revocation or termination results in the title to the land held in 
trust transferring either directly or indirectly to a person(s) or 
entity(ies) other than the grantor(s).
    (b) Attribution of land held by a trust. The acreage limitation 
entitlements of a trust are only limited by the acreage limitation 
entitlements of the trustees, grantors, or beneficiaries to whom land 
held by the trust must be attributed as provided for in Sec. 426.4. The 
entitlements of the parties to whom trusted land is attributed are 
determined according to Secs. 426.5, 426.6, and 426.8, and other 
applicable provisions of Federal reclamation law and these regulations. 
Reclamation attributes nonexempt land held by a trust to the following 
parties:
    (1) For land held in an irrevocable trust, the land is attributed to 
the beneficiaries in proportion to their beneficial interest in the 
trust. However, this attribution is only made if the criteria listed in 
paragraphs (b)(1) (i) and (ii) of this section are met. If the trust 
fails to meet any portion of these criteria, Reclamation attributes the 
land held in the trust to the trustee.
    (i) The trust is in written form and approved by Reclamation; and
    (ii) The beneficiaries of the trust and the beneficiaries' 
respective interests are identified within the trust document.
    (2) For land held in a grantor revocable trust, the land is 
attributed to the grantor according to the grantor's acreage limitation 
status and the land's eligibility immediately prior to its transfer to 
the trust. However, this

[[Page 609]]

attribution is only made if the criteria listed in paragraphs (b)(2) 
(i), (ii), (iii), and (iv) of this section are met. If the trust fails 
to meet any portion of these criteria, the land held in trust will be 
ineligible to receive irrigation water until all of the criteria are 
met. The only exception is if the trust's and grantor's standard 
certification or reporting forms indicate that the land held by the 
trust has been attributed to the trust's grantor(s).
    (i) The trust meets the criteria specified in paragraph (b)(1) of 
this section;
    (ii) The grantor(s) of all land held by the trust is (are) 
identified within the trust document;
    (iii) The conditions under which the trust may be revoked or 
terminated are identified within the trust document; and
    (iv) The recipient(s) of the trust land upon revocation or 
termination is (are) identified within the trust document.
    (3) For land held in an otherwise revocable trust, the land is 
attributed to the beneficiaries in proportion to their beneficial 
interests in the trust. However, this attribution is only made if the 
trust meets the criteria specified in paragraph (b)(1) of this section 
and the trust meets the additional criteria specified in paragraph 
(b)(2) of this section.
    (i) If Reclamation cannot determine who will hold the land in trust 
upon termination or revocation of the trust, or who is the grantor(s) of 
the land held in trust, then irrigation water will not be made available 
to the land held in trust until the trust satisfies the additional 
criteria listed in paragraph (b)(2) of this section.
    (ii) If the trust fails to meet the criteria listed in paragraph 
(b)(1) of this section, but does meet the additional criteria listed in 
paragraphs (b)(2) (ii) through (iv) of this section, then the land is 
attributed to the trustee.
    (c) Class beneficiaries. For purposes of identifying beneficiaries, 
a class of beneficiaries specified within the trust document will be 
acceptable, as long as the trust document is specific as to the 
beneficial interest to which each member of the class will be entitled 
and the members of the class are identifiable.
    (1) Attribution during any given water year will be provided only to 
class beneficiaries that are natural persons and established legal 
entities. For purposes of administering the acreage limitation 
provisions, attribution to unborn or deceased persons, or entities not 
yet established, will not be allowed.
    (2) If a trust includes a class of beneficiaries to which land 
subject to the acreage limitation provisions will be attributed, the 
trustee and each of the beneficiaries will be required to submit 
standard certification or reporting forms annually. The submittal of 
verification forms, as provided in Sec. 426.18(l), will not be 
applicable to such trusts.
    (d) Application of full-cost rate to land held by grantor revocable 
trusts. If a grantor revocable trust that meets the criteria specified 
in paragraph (b)(2) of this section is revised by the grantor in a 
manner that precludes attribution of the land held in trust to the 
grantor:
    (1) Before April 20, 1988, Reclamation will not assess full-cost 
rates for the land held by the revised trust for the period before it 
was revised; or
    (2) On or after April 20, 1988, Reclamation will charge the full-
cost rate for irrigation water delivered to any land held by the trust 
that exceeds the grantor's nonfull-cost entitlement, commencing December 
23, 1987, until the trust agreement is revised to make it an irrevocable 
trust or an otherwise revocable trust.



Sec. 426.8  Nonresident aliens and foreign entities.

    (a) Definitions for purposes of this section:
    Domestic entity means a legal entity established under State or 
Federal law.
    Foreign entity means a legal entity not established under State or 
Federal law.
    (b) Restriction on receiving irrigation water. Notwithstanding any 
other provision of Federal reclamation law or these regulations, a 
nonresident alien or foreign entity that directly holds land in a 
district that is subject to the discretionary provisions is not eligible 
to receive irrigation water on such land. Nonresident aliens and foreign 
entities may hold land indirectly in

[[Page 610]]

discretionary districts and both directly and indirectly in prior law 
districts and receive irrigation water on such land, subject to their 
acreage limitation entitlements.
    (c) Entitlements for nonresident aliens and foreign entities. Except 
as provided in paragraph (d) of this section, all nonresident aliens and 
foreign entities will be considered prior law recipients, and shall have 
entitlements and eligibility only as prior law recipients as specified 
in Secs. 426.5(d) and 426.6(b)(3).
    (d) Exception to prior law entitlement application. (1) If a 
nonresident alien is a citizen of or a foreign entity is established in 
a country that has one of the following treaties with the United States 
or is a member of the listed organization, then that nonresident alien 
or foreign entity will not be restricted to prior law entitlements, 
provided the eligible landholding subject to the acreage limitation 
provisions is held indirectly:
    (i) Friendship, Commerce and Navigation Treaty;
    (ii) Bilateral Investment Treaty;
    (iii) North American Free Trade Agreement;
    (iv) Canada-United States Free Trade Agreement; or
    (v) Organization for Economic Cooperation and Development.
    (2) Nonresident aliens and foreign entities that meet the criteria 
listed in paragraph (d)(1) of this section will be required to provide 
proof of citizenship or documentation certifying the country in which 
the entity in question was established. Districts will retain such 
documentation in the landholder's file.
    (3) If a nonresident alien or foreign entity meets the criteria 
listed in paragraph (d)(1) of this section, and only holds eligible land 
subject to the acreage limitation provisions indirectly, then the 
nonresident alien may be treated as a United States citizen or the 
foreign entity may be treated as a domestic entity for purposes of 
application of the acreage limitation provisions for the land held 
indirectly.
    (i) The nonresident alien or foreign entity may submit an 
irrevocable election to conform to the discretionary provisions as 
provided for in Sec. 426.3(f). Conformance to the discretionary 
provisions through the submittal of a certification form will not be 
allowed as specified in Sec. 426.3(f)(3).
    (ii) Upon Reclamation's approval of the irrevocable election, a 
nonresident alien will be treated as having the ownership entitlement of 
a qualified recipient as described in Sec. 426.5(b), for any land held 
indirectly. A foreign entity will be treated as a qualified recipient or 
a limited recipient as determined by the number of natural persons who 
are beneficiaries of the entity as specified by the definitions found in 
Sec. 426.2, and the subsequent entitlement as provided in Sec. 426.5(b) 
or (c), for any land held indirectly. The applicable nonfull-cost 
entitlements will be determined as described in Sec. 426.6(b).
    (iii) Reclamation will not approve irrevocable elections submitted 
by a nonresident alien or a foreign entity that holds any land directly 
in any prior law district.
    (iv) Reclamation will not approve irrevocable elections submitted by 
a nonresident alien that is not a citizen of or foreign entity that has 
not been established in a country that has a treaty or international 
membership as specified in paragraph (d)(1) of this section.



Sec. 426.9  Religious or charitable organizations.

    (a) Definitions for purposes of this section:
    Central organization means the organization to which all 
subdivisions, such as parishes, congregations, chapters, etc., 
ultimately report.
    Religious or charitable organization means an organization or each 
congregation, chapter, parish, school, ward, or similar subdivision of a 
religious or charitable organization that is exempt from paying Federal 
taxes under Sec. 501 of the Internal Revenue Code of 1954, as amended.
    (b) Acreage limitation status of religious or charitable 
organizations that are subject to the discretionary provisions. (1) 
Religious or charitable organizations or their subdivisions that are 
subject to the discretionary provisions have qualified recipient status, 
if:
    (i) The organization's or subdivision's agricultural produce and 
proceeds from the sales of such produce are used only for charitable 
purposes;

[[Page 611]]

    (ii) The organization or subdivision, itself, operates the land; and
    (iii) No part of the net earnings of the organization or subdivision 
accrues to the benefit of any private shareholder or individual.
    (2) If Reclamation determines that a religious or charitable 
organization or any of its subdivisions does not meet the criteria 
listed in paragraph (b)(1) of this section, then:
    (i) If the central organization has not met the criteria, 
Reclamation will treat the entire organization, including all 
subdivisions, as a single entity; or
    (ii) If a subdivision has not met the criteria, only that 
subdivision and any subdivisions of it will be treated as a single 
entity and not the central organization or other subdivisions of the 
central organization; and
    (iii) In order to ascertain the acreage limitation status, 
Reclamation determines the total number of members in both the 
organization that has not met the criteria and in any subdivisions that 
are under that organization. If Reclamation determines that total number 
equals:
    (A) More than 25 members, then Reclamation treats that organization 
and every subdivision under that organization as a single legal entity 
with a limited recipient status; or
    (B) 25 members or less, then Reclamation treats that organization 
and every subdivision under that organization as a single legal entity 
with a qualified recipient status.
    (c) Acreage limitation status of prior law religious or charitable 
organizations or subdivisions. (1) Religious or charitable organizations 
and each of their subdivisions are treated as separate prior law 
corporations, if neither the district nor that religious or charitable 
organization or its subdivisions elect to conform to the discretionary 
provisions.
    (2) Reclamation will treat the entire organization, including all 
subdivisions, as a single prior law corporation, if the central 
organization or any subdivisions do not meet the criteria specified in 
paragraph (b)(1) of this section.
    (d) Affiliated farm management between a religious or charitable 
organization and a more central organization of the same affiliation. 
Reclamation permits a subdivision of a religious or charitable 
organization to retain its status as an individual entity while 
cooperating with a more central organization of the same affiliation in 
farm operation and management. Reclamation permits affiliated farm 
management regardless of whether the subdivision is the owner of the 
land being operated.



Sec. 426.10  Public entities.

    (a) Application of the acreage limitation provisions to public 
entities. Reclamation does not subject public entities to the acreage 
limitation provisions of Federal reclamation law with respect to land 
that Reclamation determines public entities farm primarily for 
nonrevenue producing functions. However, public entities are required to 
meet certification and reporting requirements as specified in 
Sec. 426.18.
    (b) Sale of public land. Reclamation does not require public 
entities to seek price approval before they sell nonexempt lands. Once 
sold, Reclamation can make irrigation water available to such land if 
the purchaser meets RRA eligibility requirements.
    (c) Leasing of public land. Public entities can lease irrigation 
land that they own or control to eligible landholders. Land leased from 
a public entity counts towards the lessee's ownership and nonfull-cost 
entitlement.



Sec. 426.11  Class 1 equivalency.

    (a) General application. Class 1 equivalency determinations will 
establish, on a district-wide basis, the acreage of land with lower 
productive potential (Classes 2, 3, and 4) that would be equivalent in 
productive potential to the most suitable land (Class 1) in the local 
agricultural economic setting.
    (1) Reclamation establishes equivalency factors by comparing the 
weighted average farm size required to produce a given level of income 
on each of the lower classes of land with the farm size required to 
produce that income level on Class 1 land.
    (2) For equivalency purposes, Reclamation will classify all 
irrigable land as Class 1, 2, or 3; no other classifications are 
permissible for irrigable land. Class 4 and special-use land classes 
will be allocated to one of these three classes on a case-by-case basis.

[[Page 612]]

    (3) Once the Class 1 equivalency determinations have been made, 
individual landowners with land classified as 2 or 3 for equivalency 
purposes will have the right to adjust their actual landholding acreage 
to its Class 1 equivalent acreage.
    (4) In a district subject to prior law, Class 1 equivalency can be 
applied only to landholders who are subject to the discretionary 
provisions.
    (5) Requests for equivalency determinations will be scheduled by 
region, with the regional director of each Reclamation region having 
responsibility for such scheduling. Generally, requests will be honored 
on a first-come-first-served basis. However, if requests exceed the 
region's ability to fulfill them expeditiously, priority will be given 
on the basis of greatest immediate need.
    (b) Who may request a Class 1 equivalency determination? Only 
districts may request Class 1 equivalency determinations. Upon the 
request of any district subject to the acreage limitation provisions, 
Reclamation will make a Class 1 equivalency determination for that 
district. Equivalency determinations can be made only on a district-wide 
basis.
    (c) Definition of Class 1 land. Class 1 land is defined and will be 
classified as that irrigable land within a particular agricultural 
economic setting that:
    (i) Most completely meets the various parameters and specifications 
established by Reclamation for irrigable land classes;
    (ii) Has the relatively highest level of suitability for continuous, 
successful irrigation farming; and
    (iii) Is estimated to have the highest relative productive potential 
measured in terms of net income per acre (reflecting both productivity 
and costs of production). The equivalency analysis will establish the 
acreage of each of the lower classes of land which is equal in 
productive potential (measured in terms of net farm income) to 1 acre of 
Class 1 land.
    (2) All land that Reclamation has not classified, or for which 
Reclamation has not yet performed the necessary economic studies, will 
be considered Class 1 land for the purposes of determining entitlements 
under these rules until such time as the necessary classifications or 
studies have been completed.
    (d) Determination of land classes. The extent and location of Class 
1 land and land in lower land classes in a district have been, or will 
be, determined by Reclamation.
    (1) Reclamation will take into account the influence of economic and 
physical factors upon the productive potential of the land lying within 
the district. These factors will include, but are not limited to the 
following and their effect on agricultural practices:
    (i) The physical and chemical characteristics of the soil;
    (ii) Topography;
    (iii) Drainage status;
    (iv) Costs of production;
    (v) Land development costs;
    (vi) Water quality and adequacy;
    (vii) Elevation;
    (viii) Crop adaptability; and
    (ix) Length of growing season.
    (2) Acceptable levels of detail for land classification studies to 
be utilized in making Class 1 equivalency determinations for a given 
district will be evaluated on the basis of the physical and agricultural 
economic characteristics of the area. For districts where the sole 
purpose of the land classification study is for a Class 1 equivalency 
determination, the level of detail of the land classification to be made 
will never be greater than that required to make a Class 1 equivalency 
determination.
    (3) Reclamation will pay for at least a portion of the costs 
associated with the land classification study. The amount to be paid by 
Reclamation will be determined as follows:
    (i) Reclamation has provided basic land classification data as part 
of the project development process since 1924. Accordingly, if 
Reclamation determines that acceptable land classification data are not 
available for making requested Class 1 equivalency determinations and if 
the project was authorized for construction since 1924, such data will 
be made available at Reclamation's expense; or
    (ii) For each district located in projects authorized for 
construction prior to 1924, Reclamation will pay 50 percent of the costs 
and the district must pay 50 percent of the costs of new

[[Page 613]]

land classification studies required to make accurate Class 1 
equivalency determinations.
    (4) When basic land classification data are available for a 
district, but the district does not agree with the accuracy or asserts 
that the data have become outdated, the district may request, and 
Reclamation may perform, a reclassification under the authority 
contained in the Reclamation Project Act of 1939 (43 U.S.C. 485), with 
the following conditions:
    (i) The requesting district will pay 50 percent of the costs of 
performing such reclassifications and 100 percent of the costs of all 
other studies involved in the equivalency process; and
    (ii) The results of such reclassifications will be binding upon the 
requesting district and Reclamation.
    (e) Additional studies required for Class 1 equivalency 
determinations. Economic studies related to Class 1 equivalency 
determinations will measure net farm income by land classes within the 
district.
    (1) Net farm income will be determined by considering the disposable 
income accruing to the farm operator's labor, management, and equity 
from the sale of farm crops and livestock produced on irrigated land, 
after all fixed and variable costs of production, including costs of 
irrigation service, are accounted for.
    (2) Net farm income will be the measure of productivity to establish 
equivalency factors reflecting the acreage of each of the lower classes 
of land which is equal in productive potential to 1 acre of Class 1 
land.
    (3) The cost of performing new or additional economic studies and 
computations inherent in the equivalency process will be the 
responsibility of the requesting district.
    (f) Use of Class 1 equivalency with the acreage limitation 
provisions. Class 1 land and land in lower classes will be identified on 
a district basis by Reclamation using a standard approach in which the 
land classification for the entire district is considered. Equivalency 
factors will then be computed for the district and applied to specific 
tracts within individual landholdings. If adequate land classification 
data are not available, they will be developed as specified in paragraph 
(d) of this section using standard procedures established by 
Reclamation.
    (1) For purposes of ownership entitlement, Class 1 equivalency will 
not be applied until a final determination has been made by Reclamation 
concerning the district's request for equivalency.
    (i) Reclamation will protect excess landowners' property interests 
by ensuring that equivalency determinations are completed in advance of 
maturity dates on recordable contracts, provided the district requests 
an equivalency determination at least 6 months prior to the maturity of 
the recordable contract, the district fulfills its obligations under 
this section, and the district notifies Reclamation 6 months in advance 
of the maturity dates for the need for an expedited review.
    (ii) Once the determination has been made, owners of land subject to 
recordable contracts may withdraw land from such recordable contracts in 
order to reach their ownership entitlement in Class 1 equivalent 
acreage.
    (iii) The requirement that land under recordable contract be sold at 
a price approved by Reclamation does not apply to land which is 
withdrawn from a recordable contract and included as part of a 
landowner's nonexcess landholding as a result of an equivalency 
determination.
    (iv) In cases of equivalency determination disputes, Reclamation 
will not undertake the sale of the reasonable increment of the excess 
land under a matured recordable contract which could be affected by a 
reclassification, provided the dispute is determined by Reclamation not 
to be an attempt to thwart the sale of excess land.
    (2) For purposes of nonfull-cost entitlement, Class 1 equivalency 
will not be applied until a final determination has been made by 
Reclamation on a district's request for equivalency.
    (i) During the time when such determinations are pending, the full-
cost rate will be assessed based on a landholder's nonfull-cost 
entitlement as determined in the absence of Class 1 equivalency.
    (ii) Following Reclamation's final determination, Reclamation will 
reimburse the district for any full-cost

[[Page 614]]

charges that would not have been assessed had Class 1 equivalency been 
in place from the date of the district's request. Districts will return 
such reimbursements to the appropriate landholders.
    (3) A landholder with holdings in more than one district is entitled 
to equivalency only in those districts which have requested equivalency 
(or are already subject to equivalency). That part of the landholding in 
a district or districts not requesting equivalency will be counted as 
Class 1 land for purposes of overall entitlement.
    (g) Prior equivalency determinations. In districts where equivalency 
was a provision of project authorization, those equivalency factor 
determinations will be honored as originally calculated unless the 
district requests a reclassification.



Sec. 426.12  Excess land.

    (a) The process of designating excess and nonexcess land. If a 
landowner owns more land than the landowner's ownership entitlement, all 
of the landowner's nonexempt land must be designated as excess and 
nonexcess as follows:
    (1) The landowner designates which land is excess and which is 
nonexcess in accordance with the instructions on the appropriate 
certification or reporting forms; or
    (2) If a landowner fails to designate his or her land as excess or 
nonexcess on the appropriate certification or reporting forms:
    (i) And all of the landowner's nonexempt land is in only one 
district:
    (A) If the district's contract with Reclamation includes designation 
procedures, then the land is designated according to those procedures; 
or
    (B) If the district's contract with Reclamation does not include 
designation procedures, then:
    (1) Reclamation will notify the landowner and the district that the 
landowner must designate the land as excess and nonexcess on the 
appropriate certification or reporting forms within 30-calendar days of 
the notification;
    (2) If the landowner fails to make the designation within 30-
calendar days of notification, the district will make the designation 
within 30-calendar days thereafter; or
    (3) If the district does not make the designation within its 30-
calendar days, Reclamation will make the designation; or
    (ii) If the landowner owns nonexempt land in more than one district, 
then Reclamation will notify the landowner and the districts that the 
landowner has 60-calendar days from the date of notification to make the 
designation. If the landowner does not make the designation in the 60-
calendar days, Reclamation will make the designation.
    (b) Changing excess and nonexcess land designations. (1) Landowners 
must file with the district(s) in which the land is located and with 
Reclamation the designation of excess and nonexcess land. The 
designation of land as excess is binding on the land. However, the 
landowner may change the designation under the following circumstances 
without Reclamation's approval if:
    (i) The excess land becomes eligible to receive irrigation water 
because the landowner becomes subject to the discretionary provisions as 
provided in Sec. 426.3;
    (ii) A recordable contract is amended to remove excess land when the 
landowner's entitlement increases because the landowner becomes subject 
to the discretionary provisions as provided in paragraph (j)(5) of this 
section; or
    (iii) The excess land becomes eligible to receive irrigation water 
as a result of Class 1 equivalency determinations, as provided in 
Sec. 426.11.
    (2) No other redesignation of excess land is allowable without the 
approval of Reclamation in accordance with established Reclamation 
procedures. Reclamation will not approve a redesignation request if:
    (i) The purpose of the redesignation is for achieving, through 
repeated redesignation, an effective farm size in excess of that 
permitted by Federal reclamation law; or
    (ii) The landowner sells some or all of his or her land that is 
currently classified as nonexcess.
    (3) When a redesignation involves an exchange of nonexcess land for 
excess land, a landowner must make an equal exchange of acreage (or 
Class 1 equivalent acreage) through the redesignation.

[[Page 615]]

    (c) Land that becomes excess when a district first contracts with 
Reclamation. (1) If a landowner owned irrigable land on the execution 
date of the district's first water service or repayment contract, and 
the execution date was on or before October 12, 1982, the landowner's 
excess land is ineligible until the landowner:
    (i) Becomes subject to the discretionary provisions and the 
landowner designates the excess land, up to his or her ownership 
entitlement, as nonexcess as provided for in paragraph (b)(1)(i) of this 
section;
    (ii) Places such excess land under a recordable contract, provided 
the period for executing recordable contracts under the district's 
contract has not expired;
    (iii) Sells or transfers such excess land to an eligible buyer at a 
price and on terms approved by Reclamation; or
    (iv) Redesignates the land as nonexcess with Reclamation's approval 
as provided for in paragraph (b)(2) of this section.
    (2) If the landowner owned irrigable land on the execution date of 
the district's first water service or repayment contract and the 
execution date is after October 12, 1982, the landowner's excess land is 
ineligible until the landowner:
    (i) Places such excess land under a recordable contract, provided 
the period for executing recordable contracts under the district's 
contract has not expired;
    (ii) Sells or transfers such excess land to an eligible buyer at a 
price and on terms approved by Reclamation; or
    (iii) Redesignates the land as nonexcess with Reclamation's approval 
as provided for in paragraph (b)(2) of this section.
    (d) Land acquired into excess after the district has already 
contracted with Reclamation. (1) If a landowner acquires land after the 
date the district first entered into a repayment or water service 
contract that was nonexcess to the previous owner and is excess to the 
acquiring landowner, the first repayment or water service contract was 
executed on or before October 12, 1982, and:
    (i) Irrigation water was physically available when the landowner 
acquires such land, then the land is ineligible to receive such water 
until:
    (A) The landowner becomes subject to the discretionary provisions 
and the landowner designates the excess land, up to his or her ownership 
entitlement, as nonexcess as provided for in paragraph (b)(1)(i) of this 
section;
    (B) The landowner sells or transfers such land to an eligible buyer 
at a price and on terms approved by Reclamation;
    (C) The sale from the previous landowner is canceled; or
    (D) The landowner redesignates the land as nonexcess with 
Reclamation's approval as provided for in paragraph (b)(2) of this 
section; or
    (ii) Irrigation water was not physically available when the 
landowner acquired the land, then the land is ineligible to receive 
water until:
    (A) The landowner becomes subject to the discretionary provisions 
and the landowner designates the excess land, up to his or her ownership 
entitlement, as nonexcess as provided for in paragraph (b)(1)(i) of this 
section;
    (B) The landowner sells or transfers the land to an eligible buyer 
at a price and on terms approved by Reclamation;
    (C) The sale from the previous landowner is canceled;
    (D) The landowner places the land under recordable contract when 
water becomes available; or
    (E) The landowner redesignates the land as nonexcess with 
Reclamation's approval as provided for in paragraph (b)(2) of this 
section.
    (2) If a landowner acquires land after the date the district first 
entered into a repayment or water service contract that was nonexcess to 
the previous owner and is excess to the acquiring landowner, the first 
repayment or water service contract was executed after October 12, 1982, 
and:
    (i) Irrigation water was physically available when the landowner 
acquired such land, then the land is ineligible until:
    (A) The landowner sells or transfers the land to an eligible buyer 
at a price and on terms approved by Reclamation;
    (B) The sale from the previous landowner is canceled; or

[[Page 616]]

    (C) The landowner redesignates the land as nonexcess with 
Reclamation's approval as provided for in paragraph (b)(2) of this 
section; or
    (ii) Irrigation water was not physically available when the 
landowner acquired such land, then the land is ineligible to receive 
water until:
    (A) The landowner sells or transfers the land to an eligible buyer 
at a price and on terms approved by Reclamation;
    (B) The sale from the previous landowner is canceled;
    (C) The landowner redesignates the land as nonexcess with 
Reclamation's approval as provided for in paragraph (b)(2) of this 
section; or
    (D) The landowner places the land under recordable contract when 
water becomes available.
    (e) If the status of land is changed by law or regulations. (1) If 
the district had a contract with Reclamation on or before October 12, 
1982, and eligible land became excess because the landowner's 
entitlement changed from being based on a district-by-district basis to 
a westwide basis, then such formerly eligible land is ineligible until:
    (i) The landowner places such land under recordable contract. The 
recordable contract does not need to include the sales price approval 
clause and application of the deed covenant provision will not be 
required; or
    (ii) The landowner sells or transfers such land to an eligible 
buyer. The sales price does not need Reclamation's approval.
    (2) If the district had a contract with Reclamation on or before 
October 12, 1982, and the landowner was a nonresident alien or a legal 
entity not established under State or Federal law, who directly held 
eligible land and such land is no longer eligible to receive water, then 
such formerly eligible land is ineligible until:
    (i) The landowner places such land under recordable contract. The 
recordable contract does not need to include the sales price approval 
clause and application of the deed covenant provision will not be 
required; or
    (ii) The landowner sells or transfers such land to an eligible 
buyer. The sales price does not need Reclamation's approval.
    (3) If the district first entered a contract with Reclamation after 
October 12, 1982, and land would have been eligible before October 12, 
1982, but is now ineligible because the landowner is a direct landholder 
and either a nonresident alien or a legal entity not established under 
State or Federal law, then such land that would have been eligible 
remains ineligible until:
    (i) If the landowner acquired such land before the date of the 
district's contract:
    (A) The landowner places such land under a recordable contract 
requiring Reclamation sales price approval; or
    (B) Sells or transfers the land to an eligible buyer subject to 
Reclamation sales price approval; or
    (ii) If the landowner acquired such land after the date of the 
district's contract, the landowner sells or transfers such land to an 
eligible buyer subject to Reclamation sales price approval.
    (4) Eligible nonexcess land that is indirectly owned on or before 
December 18, 1996 by a nonresident alien or a legal entity not 
established under State or Federal law, and that becomes ineligible 
because of Sec. 426.8 is ineligible until:
    (i) The landowner places such land under recordable contract. The 
recordable contract does not need to include the sales price approval 
clause and application of the deed covenant provision will not be 
required; or
    (ii) The landowner sells or transfers such land to an eligible 
buyer. The sales price does not need Reclamation's approval.
    (f) Excess land that is acquired without price approval. If a 
landowner acquires land that is subject to Reclamation price approval, 
without obtaining such approval, the land is ineligible to receive water 
until:
    (1) The sales price is reformed to conform to the price approved by 
Reclamation and is eligible to receive irrigation water in the 
landowner's ownership entitlement; or
    (2) Such landowner sells or transfers the land to an eligible buyer 
at a price approved by Reclamation.
    (g) Excess land that is disposed of and subsequently reacquired. 
Districts may not make available irrigation water to excess land 
disposed of by a landholder

[[Page 617]]

at a price approved by Reclamation, whether or not under a recordable 
contract, if the landholder subsequently becomes a direct or indirect 
landholder of that land through either a voluntary or involuntary 
action, unless:
    (1) The landholder became or contracted to become a direct or 
indirect landholder of that land prior to December 18, 1996, and the 
land in question is otherwise eligible to receive irrigation water;
    (2) Such land becomes exempt from the acreage limitations of Federal 
reclamation law;
    (3) The landholder pays the full-cost rate for any irrigation water 
delivered to the landholder's formerly excess land that is otherwise 
eligible to receive irrigation water. If a landholder is a part owner of 
a legal entity that becomes the direct or indirect landholder of the 
land in question, then the full-cost rate will be applicable to the 
proportional share of irrigation water delivered to the land that 
reflects the part owner's interest in that legal entity; or
    (4) The deed covenant associated with the sale has expired as 
provided for in paragraph (i) of this section.
    (h) Application of the compensation rate for irrigating ineligible 
excess land with irrigation water. Reclamation will charge the following 
for irrigation water delivered to ineligible excess land in violation of 
Federal reclamation law and these regulations:
    (1) The appropriate compensation rate for irrigation water 
delivered; and
    (2) any other applicable fees as specified in Sec. 426.20.
    (i) Deed covenants. (1) All land that is acquired from excess status 
after October 12, 1982, must have the following covenant (that runs with 
the land) placed in the deed transferring the land to the acquiring 
party in order for the land to be eligible to receive irrigation water 
except as otherwise specified in these regulations. The covenant must be 
in the deed regardless of whether or not the land was under recordable 
contract.

    This covenant is to satisfy the requirements in 209(f)(2) of Pub. L. 
97-293 (43 U.S.C 390, et seq.). This covenant expires on (date) . Until 
the expiration date specified herein, sale price approval is required on 
this land. Sale by the landowner and his or her assigns of these lands 
for any value that exceeds the sum of the value of newly added 
improvements plus the value of the land as increased by the market 
appreciation unrelated to the delivery of irrigation water will result 
in the ineligibility of this land to receive Federal project water, 
provided however:
    (i) The terms of this covenant requiring price approval shall not 
apply to this land if it is acquired into excess status pursuant to a 
bona fide involuntary foreclosure or similar involuntary process of law, 
conveyance in satisfaction of a debt (including, but not limited to, a 
mortgage, real estate contract, or deed of trust), inheritance, or 
devise (hereinafter Involuntary Conveyance). Thereafter, this land may 
be sold to a landholder at its fair market value without regard to any 
other provision of the Reclamation Reform Act of 1982 enacted on October 
12, 1982, (43 U.S.C. 390aa et seq.), or to Section 46 of the Act 
entitled ``an Act to adjust water rights charges, to grant certain 
relief on the Federal irrigation projects, and for other purposes,'' 
enacted May 25, 1926 (43 U.S.C. 423e);
    (ii) If the status of this land changes from nonexcess into excess 
after a mortgage or deed of trust in favor of a lender is recorded and 
the land is subsequently acquired by a bona fide Involuntary Conveyance 
by reason of a default under that loan, this land may thereupon or 
thereafter be sold to a landholder at its fair market value;
    (iii) The terms of this covenant requiring price approval shall not 
apply to the sales price obtained at the time of the Involuntary 
Conveyances described in subparagraphs (i) and (ii), nor to any 
subsequent voluntary sales by a landholder of this land after the 
Involuntary Conveyances or any subsequent Involuntary Conveyance;
    (iv) Upon the completion of an Involuntary Conveyance, Reclamation 
shall reconvey or otherwise terminate this covenant of record;
    (v) However, the deed covenant shall not be reconveyed or otherwise 
terminated if the involuntarily acquiring landowner is the landowner who 
sold this land from excess status, unless that landowner is a financial 
institution as defined in Sec. 426.14(a) of the Acreage Limitation Rules 
and Regulations (43 CFR Part 426); and
    (vi) The party whose excess ownership originally required the 
placement of this covenant may not receive Federal reclamation project 
irrigation water on the land subject to this covenant as a direct or 
indirect landowner or lessee, unless an exception provided for in 
Sec. 426.12(g) is met.

    Note 1 Clauses (v) and (vi) of this covenant shall only be required 
on those covenants placed in deeds transferring land after January 1, 
1998.
    Note 2 The date that the covenant expires shall be 10 years from the 
date the land was

[[Page 618]]

first transferred from excess to nonexcess status.

    (2) A landholder may purchase or otherwise voluntarily acquire into 
nonexcess status, land subject to a deed covenant, at a price approved 
by Reclamation if the land is within the landholder's ownership 
entitlement.
    (3) Upon expiration of the terms of the deed covenant, a landowner 
may resell such land at fair market value. A landowner may not sell more 
of such land in his or her lifetime than an amount equal to his or her 
ownership entitlement. Once the landowner reaches this limit, any 
additional excess land or land subject to a deed covenant the landowner 
acquires is ineligible to receive irrigation water, until such land is 
sold to an eligible buyer at a price approved by Reclamation.
    (4) If a landholder acquires land burdened by such a deed covenant 
through involuntary foreclosure or similar involuntary process of law, 
conveyance in satisfaction of a debt, including, but not limited to, a 
mortgage, real estate contract, or deed of trust, inheritance, or 
devise, and is not the party whose excess ownership originally required 
placement of the deed covenant, then Reclamation must terminate the deed 
covenant upon the landholder's request. The provisions in paragraph 
(i)(1)(v) of this section and Sec. 426.14(e) address termination of deed 
covenants for landholders whose excess ownership originally required 
placement of the deed covenant.
    (j) Recordable contracts--(1) Qualifications for recordable 
contracts. A landowner can make excess land eligible to receive 
irrigation water by entering into a recordable contract with the United 
States if the landowner qualifies under applicable provisions of:
    (i) The district's contract with Reclamation;
    (ii) Federal reclamation law; and
    (iii) These regulations.
    (2) Clauses to be included in recordable contracts. A recordable 
contract must include:
    (i) A clause whereby the landowner agrees to dispose of the excess 
land to an eligible buyer, excluding mineral rights and easements, under 
terms and conditions of the sale, in accordance with Sec. 426.13; and 
within the period allowed for the disposition of excess land, that must 
be within 5 years from the date that the recordable contract is executed 
by Reclamation (except for the Central Arizona Project wherein the time 
period is 10 years from the date water becomes available to the land); 
and
    (ii) A clause granting power of attorney to Reclamation to sell the 
land held under the recordable contract, if the landholder has not 
already sold the land by the recordable contract's maturation.
    (3) Date Reclamation can make irrigation water available. 
Reclamation can make available irrigation water to land that the 
landowner plans to place under a recordable contract on the day that 
Reclamation receives the landowner's written request to execute a 
recordable contract. The landowner has 20-working days in which to 
execute the recordable contract from the date Reclamation sends the 
recordable contract to the landowner. Reclamation, in its discretion, 
may extend this period upon the landowner's request.
    (4) Water rate. The rate for irrigation water delivered to land 
placed under recordable contract will be determined as follows:
    (i) If both the landowner and any lessee are prior law recipients, 
land placed under a recordable contract can receive irrigation water at 
a contract rate that does not cover full operation and maintenance (O&M) 
costs;
    (ii) If either landowner or any lessee is subject to the 
discretionary provisions, the water rate applicable to the recordable 
contract must cover, at a minimum, all O&M costs; or
    (iii) If a landholder leases land subject to a recordable contract 
and is in excess of his or her nonfull-cost entitlement, the lessee may 
select such land as the land on which the full-cost rate will be charged 
for the delivery of irrigation water, unless the land is already subject 
to the full-cost rate because of an extended recordable contract.
    (5) Amending a recordable contract to include less acreage. (i) 
Reclamation permits a landowner to amend a recordable contract to 
transfer land out of a recordable contract to nonexcess status, if:

[[Page 619]]

    (A) The landowner has an increased ownership entitlement because of 
becoming subject to the discretionary provisions; or
    (B) Land becomes eligible by implementation of Class 1 equivalency, 
if the landowner amends the recordable contract prior to performance of 
appraisal.
    (ii) Landholders must receive Reclamation's approval to amend 
recordable contracts.
    (A) The disposition period for any land remaining under a recordable 
contract will not change because of an amendment to remove some land.
    (B) For land removed from a recordable contract based on paragraph 
(j)(5)(i) of this section, any requirement for application of a deed 
covenant will no longer be applicable.
    (6) Sale of land by Reclamation. If the landowner does not dispose 
of the excess land held under recordable contract within the period 
specified in the recordable contract, Reclamation will sell that land. 
Reclamation will not sell the land if the landowner complies with all 
requirements for sale of excess land under these rules within the period 
specified, regardless if Reclamation gives final approval of the sale 
within that period or after.
    (7) Delivery of water when a recordable contract has matured. 
Reclamation can make available irrigation water at the current 
applicable rate, pursuant to paragraph (j)(4) of this section, to excess 
land held under a matured recordable contract until Reclamation sells 
the land.
    (8) Procedures Reclamation follows in selling excess land. If 
Reclamation must sell excess land, the following procedures will be 
used:
    (i) If Reclamation determines it to be necessary, a qualified 
surveyor will make a land survey. The United States will pay for the 
survey initially, but such costs will be added to the approved sales 
price for the land. The United States will be reimbursed for these costs 
from the sale of the land;
    (ii) Reclamation will appraise the value of the excess land, in the 
manner prescribed by Sec. 426.13, to determine the appropriate sales 
price. The United States will pay for the appraisal initially, but such 
costs will be added to the approved sales price for the land. The United 
States will be reimbursed for these costs from the sale of the land; and
    (iii) Reclamation will advertise the sale of the property in farm 
journals and in newspapers within the county in which the land lies, and 
by other public notices as deemed advisable. The United States will pay 
for the advertisements and notices initially, but such costs will be 
added to the approved sales price for the land. The United States will 
be reimbursed for these costs from the sale of the land. The notices 
must state:
    (A) The minimum acceptable sales price for the property (which 
equals the appraised value plus the cost of the appraisal, survey, and 
advertising);
    (B) That Reclamation will sell the land by auction for cash, or on 
terms acceptable to the landowner, to the highest eligible bidder whose 
bid equals or exceeds the minimum acceptable sales price; and
    (C) The date of the sale (which must not exceed 90 calendar days 
from the date of the advertisement and notices);
    (iv) The proceeds from the sale of the land will be paid:
    (A) First, to the landowner in the amount of the appraised value;
    (B) Second, to the United States for costs of the survey, appraisal, 
advertising, etc.; and
    (C) Third, any remaining proceeds will be credited to the 
Reclamation fund or other funds as prescribed by law; and
    (v) Reclamation will close the sale of the excess land when parties 
complete all sales arrangements. Reclamation will execute a deed 
conveying the land to the purchaser. Reclamation will not require the 
purchaser to include a covenant in the deed, as specified in paragraph 
(i) of this section, that restricts any further resale of the land.



Sec. 426.13  Excess land appraisals.

    (a) When does Reclamation appraise the value of a landowner's land? 
Reclamation appraises excess land or land burdened by a deed covenant 
upon a landowner's request or when required by Reclamation. If a 
landowner does not request an appraisal within 6 months of

[[Page 620]]

the maturity date of a recordable contract, Reclamation, in its 
discretion, can initiate the appraisal.
    (b) Procedures Reclamation uses to determine the sale price of 
excess land or land burdened by a deed covenant. Reclamation complies 
with the following procedures to determine the sale price of excess land 
and land burdened by a deed covenant, except if a landholder owns land 
subject to a recordable contract that was in force on October 12, 1982, 
or other pertinent contract that was in force on that date, and these 
regulations would be inconsistent with provisions in such a contract:
    (1) Appraisals of land. Reclamation will base all appraisals of land 
on the fair market value of the land at the time of appraisal without 
reference to the construction of the irrigation works. Reclamation must 
use standard appraisal procedures including: the income, comparable 
sales, and cost methods, as applicable. Reclamation will consider 
nonproject water supply factors as provided in paragraph (c)(1) of this 
section as appropriate; and
    (2) Appraisal of improvements to land. Reclamation will assess the 
contributory fair market value of improvements to land, as of the date 
of appraisal, using standard appraisal procedures.
    (c) Appraisals of nonproject water supplies. (1) The appraiser will 
consider nonproject water supply factors, where appropriate, including:
    (i) Ground water pumping lift;
    (ii) Surface water supply;
    (iii) Water quality; and
    (iv) Trends associated with paragraphs (c)(1) (i) through (iii) of 
this section, where appropriate.
    (2) Reclamation will develop the nonproject water supply and trend 
information with the assistance of:
    (i) The district in which the land is located, if the district 
desires to participate;
    (ii) Landowners of excess land or land burdened by a deed covenant 
and prospective buyers who submit information either to the district or 
Reclamation; and
    (iii) Public meetings and forums, at the discretion of Reclamation.
    (3) Data submitted may include:
    (i) Historic geologic data;
    (ii) Changing crops and cropping patterns; and
    (iii) Other factors associated with the nonproject water supply.
    (4) If Reclamation and the district cannot reach agreement on the 
nonproject water supply information within 60-calendar days, Reclamation 
will review and update the trend information as it deems necessary and 
make all final determinations considering the data provided by 
Reclamation and the district. Reclamation will provide these data to the 
appraisers who must consider the data in the appraisal process, and 
clearly explain how they used the data in the valuation of the land.
    (d) The date of the appraisal. The date of the appraisal will be the 
date of last inspection by the appraiser(s) unless there is a prior 
signed instrument, such as an option, contract for sale, agreement for 
sale, etc., affecting the property. In those cases, the date of 
appraisal will be the date of such instrument.
    (e) Cost of appraisal. If the appraisal is:
    (1) The land's first appraisal, the United States will initially pay 
the costs of appraising the value of the land, but such costs will be 
added to the approved sale price for the land. The United States will 
reimburse itself for these costs from the sale of the land;
    (2) Not the land's first appraisal, the landowner requesting the 
appraisal must pay any costs associated with the reappraisal, unless the 
value set by the reappraisal differs by more than 10 percent, in which 
case the United States will pay for the reappraisal; or
    (3) Associated with a sales price reformation as specified in 
Sec. 426.12(f)(1), the landowner requesting the appraisal must pay any 
costs associated with the appraisal.
    (f) Appraiser selection. Reclamation will select a qualified 
appraiser to appraise the excess land or land burdened by a deed 
covenant, except as specified within paragraph (g) of this section.
    (g) Appraisal dispute resolution. The landowner who requested the 
appraisal may request that the United States conduct a second appraisal 
of the excess land or land burdened by a deed covenant if the landowner 
disagrees

[[Page 621]]

with the first appraisal. The second appraisal will be prepared by a 
panel of three qualified appraisers, one designated by the United 
States, one designated by the district, and the third designated jointly 
by the first two. The appraisal made by the panel will fix the maximum 
value of the excess land and will be binding on both parties after 
review and approval as provided in paragraph (h) of this section.
    (h) Review of appraisals of excess land or land burdened by a deed 
covenant. Reclamation will review all appraisals of excess land or land 
burdened by a deed covenant for:
    (1) Technical accuracy and compliance with these rules and 
regulations;
    (2) Applicable portions of the ``Uniform Appraisal Standards for 
Federal Land Acquisition-Interagency Land Acquisition Conference 1973,'' 
as revised in 1992;
    (3) Reclamation policy; and
    (4) Any detailed instructions provided by Reclamation setting 
conditions applicable to an individual appraisal.



Sec. 426.14  Involuntary acquisition of land.

    (a) Definitions for purposes of this section.
    Financial institution means a commercial bank or trust company, a 
private bank, an agency or branch of a foreign bank in the United 
States, a thrift institution, an insurance company, a loan or finance 
company, or the Farm Credit System.
    Involuntarily acquired land means land that is acquired through an 
involuntary foreclosure or similar involuntary process of law, 
conveyance in satisfaction of a debt (including, but not limited to, a 
mortgage, real estate contract or deed of trust), inheritance, or 
devise.
    (b) Ineligible excess land that is involuntarily acquired. 
Reclamation cannot make available irrigation water to land that was 
ineligible excess land before the new landowner involuntarily acquired 
it, unless:
    (1) The land becomes nonexcess in the new landowner's ownership; and
    (2) The deed to the land contains the 10-year covenant requiring 
Reclamation sale price approval, and that deed commences when the land 
becomes eligible to receive irrigation water.
    (3) If either of these conditions is not met, the land remains 
ineligible excess until sold to an eligible buyer at an approved price, 
and the seller places the 10-year covenant requiring Reclamation price 
approval, as specified in Sec. 426.12(i), in the deed transferring title 
to the land to the buyer.
    (c) Land that was held under a recordable contract and is acquired 
involuntarily. Reclamation can make available irrigation water to land 
held under a recordable contract that is involuntarily acquired under 
the terms of the recordable contract to the extent the land continues to 
be excess in his or her landholding, if the landowner:
    (1) Assumes the recordable contract; and
    (2) Executes an assumption agreement provided by Reclamation.
    (3) This land will remain eligible to receive irrigation water for 
the longer of 5 years from the date that the land was involuntarily 
acquired, or for the remainder of the recordable contract period. The 
sale of this land shall be under terms and conditions set forth in the 
recordable contract and must be satisfactory to and at a price approved 
by Reclamation.
    (d) Mortgaged land. Reclamation treats mortgaged land that changed 
from nonexcess status to excess status after the mortgage was recorded, 
and which is subsequently acquired by a lender through an involuntary 
foreclosure or similar process of law, or by a bona fide conveyance in 
satisfaction of a mortgage, in the following manner:
    (1) If the new landowner designates the land as excess in his or her 
holding, then:
    (i) The land is eligible to receive irrigation water for a period of 
5 years or until transferred to an eligible landowner, whichever occurs 
first;
    (ii) During the 5-year period Reclamation will charge a rate for 
irrigation water equal to the rate paid by the former owner, unless the 
land becomes subject to full-cost pricing through leasing; and

[[Page 622]]

    (iii) The land is eligible for sale at its fair market value without 
a deed covenant restricting its future sales price; or
    (2) If the new landowner is eligible to designate the land as 
nonexcess and he or she designates the land as nonexcess, the land will 
be treated in the same manner as any other nonexcess land and will be 
eligible for sale at its fair market value without a deed covenant 
restricting its future sales price.
    (e) Nonexcess land that becomes excess when acquired involuntarily. 
(1) Reclamation can make irrigation water available for a period of 5 
years to a landowner who involuntarily acquires land that becomes excess 
in the involuntarily acquiring landowner's holding provided the land was 
nonexcess to the previous owner and:
    (i) The acquiring landowner never previously held such land as 
ineligible excess land or under a recordable contract;
    (ii) The acquiring landholder is a financial institution; or
    (iii) The acquiring landowner previously held the land as ineligible 
excess or under a recordable contract and Sec. 426.12(g)(1), (3), or (4) 
applies.
    (2) The following will be applicable in situations that meet the 
criteria specified under paragraph (e)(1) of this section:
    (i) Reclamation will charge a rate for irrigation water delivered to 
such land equal to the rate paid by the former owner, except Reclamation 
will charge the full-cost rate if:
    (A) The land becomes subject to full-cost pricing through leasing; 
or
    (B) If the involuntarily acquired land is eligible to receive 
irrigation water only because Sec. 426.12(g)(3) applies and the deed 
covenant has not expired;
    (ii) The new landowner may not place such land under a recordable 
contract;
    (iii) The new landowner may request that Reclamation remove a deed 
covenant as provided in Sec. 426.12(i)(4), and may sell such land at any 
time without price approval and without the deed covenant. However, the 
deed covenant will not be removed and the terms of the deed covenant 
will be fully applied if the new landowner is the landowner who sold the 
land in question from excess status, except for:
    (A) Financial institutions; or
    (B) Landowners for which Sec. 426.12(g) (1) or (2) apply; and
    (iv) Such land will become ineligible to receive irrigation water 5 
years after it was acquired and will remain ineligible until sold to an 
eligible buyer or redesignated as provided for in paragraph (f) of this 
section.
    (f) Redesignation of excess land to nonexcess. Landholders who 
designate involuntarily acquired land as excess as provided for in 
paragraphs (d)(1) and (e)(1) of this section and want to redesignate the 
land as nonexcess, must utilize the redesignation process specified 
under Sec. 426.12(b)(2).
    (1) However, such redesignations will not be approved if the water 
rate specified in paragraphs (d)(1)(ii) or (e)(2)(i) of this section is 
less than what would have been charged for water deliveries to the land 
in question if the landholder that involuntarily acquired the land had 
originally designated the land as nonexcess.
    (2) Such landholders may utilize the redesignation process, if they 
remit to Reclamation the difference between the rate paid and the rate 
that would have been paid, if the land had been designated as nonexcess 
when involuntarily acquired, for all irrigation water delivered to the 
land in question while the land was designated as excess.
    (g) Effect of involuntarily acquiring land subject to the 
discretionary provisions. A landowner does not automatically become 
subject to the discretionary provisions if the landowner acquires 
irrigation land involuntarily which was formerly subject to the 
discretionary provisions. However, a landholder that is subject to the 
prior law provisions will become subject to the discretionary provisions 
upon involuntarily acquiring land if:
    (1) The land is located in a district that is subject to the 
discretionary provisions;
    (2) The landholder in question will be the direct landowner of the 
land; and
    (3) The landholder in question declares the land as nonexcess.
    (h) Land acquired by inheritance or devise. If a landowner receives 
irrigation land through inheritance or devise, the 5-year eligibility 
period for receiving irrigation water on the newly acquired

[[Page 623]]

land per paragraphs (c)(3) and (e) of this section begins on the date of 
the previous landowner's death.



Sec. 426.15  Commingling.

    (a) Definition for purposes of this section:
    Commingled water means irrigation water and nonproject water that 
use the same facilities.
    (b) Application of Federal reclamation law and these regulations to 
prior commingling provisions in contracts. If a district entered into a 
contract with Reclamation prior to October 1, 1981, and that contract 
has provisions addressing commingled water situations, those provisions 
stay in effect for the term of that contract and any renewals of it.
    (c) Establishment of new commingling provision in contracts. New, 
amended, or renewed contracts may provide that irrigation water can be 
commingled with nonproject water as follows:
    (1) If the facilities used for the commingling of irrigation water 
and nonproject water are constructed without funds made available 
pursuant to Federal reclamation law, the provisions of Federal 
reclamation law and these regulations will apply only to the landholders 
who receive irrigation water, provided:
    (i) That the water requirements for eligible lands can be 
established; and
    (ii) The quantity of irrigation water to be used is less than or 
equal to the quantity necessary to irrigate eligible lands.
    (2) If the facilities used for commingling irrigation water and 
nonproject water are funded with monies made available pursuant to 
Federal reclamation law, landholders who receive nonproject water will 
be subject to Federal reclamation law and these regulations unless:
    (i) The district collects and pays to the United States an 
incremental fee which reasonably reflects an appropriate share of the 
cost to the Federal Government, including interest, of storing or 
delivering the nonproject water; and
    (ii) The fee will be established by Reclamation and will be in 
addition to the district's obligation to pay for capital, operation, 
maintenance, and replacement costs associated with the facilities 
required to provide the service.
    (3) If paragraphs (c)(2) (i) and (ii) of this section are met, the 
provisions of Federal reclamation law and these regulations will be 
applicable to only those landholders who receive irrigation water. 
Accordingly, the provisions of Federal reclamation law and these 
regulations will not be applicable to landholders who receive nonproject 
water delivered through facilities funded with monies made available 
pursuant to Federal reclamation law if those paragraphs are met.
    (d) When Federal reclamation law and these regulations do not apply. 
Federal reclamation law and these regulations do not apply to 
landholders receiving irrigation water from federally financed 
facilities if the irrigation water is acquired by an exchange and that 
exchange results in no material benefit to the recipient of the 
irrigation water.



Sec. 426.16  Exemptions and exclusions.

    (a) Army Corps of Engineers (Corps) projects. (1) If Reclamation 
determines that land receives its agricultural water from a Corps 
project, Reclamation will exempt that land from specific provisions of 
Federal reclamation law, including the RRA, unless:
    (i) Federal law explicitly designates, integrates, or incorporates 
that land into a Federal Reclamation project; or
    (ii) Reclamation provides project works for the control or 
conveyance of the agricultural water supply from the Corps project to 
that land.
    (2) Upon such determination, Reclamation will:
    (i) Notify the district of its exemption status;
    (ii) Require the district's agricultural water users to continue, 
under contracts made with Reclamation, to repay their share of 
construction, operation and maintenance, and contract administration 
costs of the Corps project allocated to conservation or irrigation 
storage; and
    (iii) At the request of the district delete provisions of the 
district's repayment or water service contract that imposes acreage 
limitation for those lands served by Corps projects.

[[Page 624]]

    (b) Repayment of construction obligations. The acreage limitation 
provisions do not apply to land in a district after the district has 
repaid, in accordance with the district's contract with Reclamation, all 
obligated construction costs for project facilities.
    (1) Payments by periodic installments over the contract repayment 
term, as well as lump-sum and accelerated payments, if allowed by the 
district's contract with Reclamation, will qualify the district to 
become exempt.
    (2) If a district has a contract with the United States providing 
for individual landowner repayment of construction charges allocated to 
land, and the landowner has repaid all obligated construction costs 
allocated for that landowner's land, that landowner will become exempt 
from the acreage limitation provisions.
    (3) Upon payout Reclamation will:
    (i) Notify the district, and individual landowner in cases of 
individual landowner payout, of the exemption from the acreage 
limitation provisions;
    (ii) Notify the district or individual landowner that the exemption 
does not relieve the district or individual landowner of the obligation 
to continue to pay, on an annual basis, O&M costs applicable to the 
district or landowner;
    (iii) Upon request by the owner of land for which repayment has 
occurred, provide a certificate from Reclamation acknowledging that the 
land is free of the acreage limitation provisions of Federal reclamation 
law;
    (iv) Except as provided for in Sec. 426.19(e), no longer apply the 
certification and reporting requirements to the district, if the entire 
district is exempt, or to exempt landowners as specified in paragraph 
(b)(2) of this section; and
    (v) Consider on a case-by-case basis continuation of the exemption 
if additional construction funds for the project are requested.
    (c) Rehabilitation and Betterment loans. If Reclamation makes a 
Rehabilitation and Betterment loan (pursuant to the Rehabilitation and 
Betterment Act of October 7, 1949, as amended, 43 U.S.C. 504) to a 
project that was authorized under Federal reclamation law prior to the 
submittal of the loan request, by or for the district, Reclamation:
    (1) Considers the loan as a loan for maintenance, including 
replacements that cannot be financed currently;
    (2) Does not consider the loan in determining whether the district 
has discharged its obligation to repay the construction cost of project 
facilities used to make irrigation water available for delivery to land 
in the district; and
    (3) Will not allow such a loan to serve as the basis for reinstating 
acreage limitation provisions in a district that has completed payment 
of its construction obligation, nor serve as the basis for increasing 
the construction obligation of the district and thereby extending the 
period during which acreage limitation provisions will apply.
    (d) Temporary supplies of water. If Reclamation announces 
availability of temporary supplies of water resulting from an unusually 
large water supply, not otherwise storable for project purposes, or from 
infrequent and otherwise unmanaged floodflows of short duration a 
district may request that Reclamation make such supplies available to 
excess land. However, such water deliveries must not have an adverse 
effect on other authorized project purposes. Upon approval of the 
district's request, Reclamation will notify the requesting district of 
the availability of the temporary supply of water under the following 
conditions:
    (1) The contract for the temporary supply of water will be for 1 
year or less in accordance with prior policies and practices;
    (2) The acreage limitation provisions will not be applicable to the 
temporary supply of water;
    (3) An applicable price for the water, if any, will be established; 
and
    (4) Such other conditions as Reclamation may include.
    (e) Isolated tracts. If a landowner requests that Reclamation 
determine that portions of his or her owned land are isolated tracts 
that can be farmed economically only if included in a farming operation 
that already exceeds the landowners ownership entitlement, and 
Reclamation makes such a determination, then Reclamation:

[[Page 625]]

    (1) Will exempt such land from the ownership limitations of Federal 
reclamation law; and
    (2) Will assess the full-cost rate for any irrigation water 
delivered to the isolated tract that exceeds the landowner's nonfull-
cost entitlement.
    (f) Indian trust or restricted lands. (1) Indian trust or restricted 
lands are excluded from application of the acreage limitation 
provisions.
    (2) Indian tribes and tribal entities operating on Indian trust or 
restricted lands are excluded from application of the water conservation 
provisions.



Sec. 426.17  Small reclamation projects.

    (a) Effect of the RRA on loan contracts made under the Small 
Reclamation Projects Act. (1) If a district entered into a loan contract 
under the Small Reclamation Projects Act of 1956 (43 U.S.C. 422) (SRPA) 
on or after October 12, 1982, the contract is subject to the provisions 
of the SRPA, as amended by Section 223 of the RRA and as amended by 
Title III of Pub. L. 99-546.
    (2) If a district entered into an SRPA loan contract prior to 
October 12, 1982, and the district:
    (i) Did not amend the loan contract to conform to the SRPA, as 
amended by Section 223 of the RRA, prior to October 27, 1986, then the 
acreage provisions of the contract continue in effect, unless the 
contract is amended to conform to the SRPA as amended by section 307 of 
Pub. L. 99-546.
    (ii) Amended the loan contract to conform to the SRPA, as amended by 
Section 223 of the RRA, prior to October 27, 1986, the contract is 
subject to the increased acreage provisions provided in Section 223 of 
the RRA. Reclamation cannot alter, modify or amend any other provision 
of the SRPA loan contract without the consent of the non-Federal party.
    (b) Other sections of these regulations that apply to SRPA loans. No 
other sections of these regulations apply to SRPA loans, except as 
specified in Sec. 426.3(a)(3)(ii) and paragraph (d) of this section.
    (c) Effect of SRPA loans in determining whether a district has 
repaid its construction obligations on a water service or repayment 
contract. If a district has a water service or repayment contract in 
addition to an SRPA contract, Reclamation does not consider the SRPA 
loan:
    (1) In determining whether the district has discharged its 
construction cost obligation for the project facilities;
    (2) As a basis for reinstating acreage limitation provisions in a 
district that has completed payment of its construction cost 
obligation(s); or
    (3) As a basis for increasing the construction obligation of the 
district and extending the period during which acreage limitation 
provisions will apply to that district.
    (d) Districts that have an SRPA loan contract and a contract as 
defined in Sec. 426.2. If a district has an SRPA loan contract and a 
contract as defined in Sec. 426.2, the SRPA contract does not supersede 
the RRA requirements applicable to such contracts.



Sec. 426.18  Landholder information requirements.

    (a) Definition for purposes of this section:
    Irrigation season means the period of time between the district's 
first and last water delivery in any water year.
    (b) Who must provide information to Reclamation? All landholders and 
other parties involved in the ownership or operation of nonexempt land 
must provide Reclamation, as required by these regulations or upon 
request, any records or information, in a form suitable to Reclamation, 
deemed reasonably necessary to implement the RRA or other provisions of 
Federal reclamation law.
    (c) Required form submissions. (1) Landholders who are subject to 
the discretionary provisions must annually submit standard certification 
forms, except as provided in paragraph (l) of this section.
    (2) Landholders who make an irrevocable election must submit the 
standard certification forms with their irrevocable election in the year 
that they make the election.
    (3) Landholders who are subject to prior law must annually submit 
standard reporting forms, except as provided in paragraph (l) of this 
section.
    (4) Landholders who qualify under an exemption as specified in 
paragraph (g)

[[Page 626]]

of this section need not submit any forms.
    (d) Required information. Landholders must declare on the 
appropriate certification or reporting forms all nonexempt land that 
they hold directly or indirectly westwide and other information 
pertinent to their compliance with Federal reclamation law.
    (e) District receipt of forms and information. Landholders must 
submit the appropriate, completed form(s) to each district in which they 
directly or indirectly hold irrigation land.
    (f) Certification or reporting forms for wholly owned subsidiaries. 
The ultimate parent legal entity of a wholly owned subsidiary or of a 
series of wholly owned subsidiaries must file the required certification 
or reporting forms. The ultimate parent legal entity must disclose all 
direct and indirect landholdings of its subsidiaries as required on such 
forms.
    (g) Exemptions from submitting certification and reporting forms. 
(1) A landholder is exempt from submitting the certification and 
reporting forms only if:
    (i) The landholder's district has Category 1 status, as specified in 
paragraph (h) of this section, and the landholder is a:
    (A) Qualified recipient who holds a total of 240 acres westwide or 
less; or
    (B) Limited recipient or a prior law recipient who holds a total of 
40 acres westwide or less.
    (ii) The landholder's district has Category 2 status, as specified 
in paragraph (h) of this section, and the landholder is a:
    (A) Qualified recipient who holds a total of 80 acres westwide or 
less; or
    (B) Limited recipient or a prior law recipient who holds a total of 
40 acres westwide or less.
    (2) A wholly owned subsidiary is exempted from submitting 
certification or reporting forms, if its ultimate parent legal entity 
has properly filed such forms disclosing the landholdings of each of its 
subsidiaries.
    (3) In determining whether certification or reporting is required 
for purposes of this section:
    (i) Class 1 equivalency factors as determined in Sec. 426.11 shall 
not be used; and
    (ii) Indirect landholders need not count involuntarily acquired 
acreage designated as excess by the direct landowner.
    (h) District categorization. (1) For purposes of this section each 
district has Category 2 status, unless the following criteria have been 
met. If the district has met both criteria, it will be granted Category 
1 status.
    (i) The district has conformed by contract to the discretionary 
provisions; and
    (ii) The district is current in its financial obligations to 
Reclamation.
    (2) Reclamation considers a district current in its financial 
obligation if as of September 30, the district is current in its:
    (i) Financial obligations specified in its contract(s) with 
Reclamation; and
    (ii) Payment obligations established by the RRA, and these rules.
    (i) Application of Category 1 status. Once a district achieves 
Category 1 status, it will only be withdrawn if the Regional Director 
determines the district is not current in its financial obligations as 
specified in paragraph (h)(2) of this section. The withdrawal of 
Category 1 status will be effective at the end of the current water year 
and can be restored only as provided under paragraph (h) of this 
section. With the withdrawal of Category 1 status, the district will 
have a Category 2 status.
    (j) Submissions by landholders holding land in both a Category 1 
district and a Category 2 district. If a qualified recipient holds land 
in a Category 1 district, then the 240-acre forms threshold will be 
applicable in determining if the landholder must submit a certification 
form to that Category 1 district. If the same qualified recipient also 
holds land in a Category 2 district, then the 80-acre forms threshold 
will be applicable in determining if the landholder must submit a 
certification form to the Category 2 district.
    (k) Notification requirements for landholders whose ownership or 
leasing arrangements change after submitting forms. If a landholder's 
ownership or leasing arrangements change in any way:
    (1) During the irrigation season, the landholder must:

[[Page 627]]

    (i) Notify the district office, either verbally or in writing within 
30-calendar days of the change; and
    (ii) Submit new forms to all districts in which the landholder holds 
nonexempt land, within 60-calendar days of the change.
    (2) Outside of the irrigation season, then the landholder must 
submit new standard certification or reporting forms to all districts in 
which nonexempt land is held prior to any irrigation water deliveries 
following such changes.
    (l) Notification requirements for landholders whose ownership or 
leasing arrangements have not changed. If a landholder's ownership or 
leasing arrangements have not changed since last submitting a standard 
certification or reporting form, the landholder can satisfy the annual 
certification or reporting requirements by submitting a verification 
form instead of a standard form. On that form the landholder must verify 
that the information contained on the last submitted standard 
certification or reporting form remains accurate and complete.
    (m) Actions taken if required submission(s) is not made.
    (1) If a landholder does not submit required certification or 
reporting form(s), then:
    (i) The district must not deliver, and the landholder is not 
eligible to receive and must not accept delivery of, irrigation water in 
any water year prior to submission of the required certification or 
reporting form(s) for that water year; and
    (ii) Eligibility will be regained only after all required 
certification or reporting forms are submitted by the landholder to the 
district.
    (2) If one or more part owners of a legal entity do not submit 
certification or reporting forms as required:
    (i) The entire entity will be ineligible to receive irrigation water 
until such forms are submitted; or
    (ii) If the documents forming the entity provide for the part 
owners' interest to be separable and alienable, then only that portion 
of the land attributable to the noncomplying part owners will be 
ineligible to receive irrigation water.
    (n) Actions taken by Reclamation if a landholder makes false 
statements on the appropriate certification or reporting forms. If a 
landholder makes a false statement on the appropriate certification or 
reporting form(s) Reclamation can prosecute the landholder pursuant to 
the following statement which is included in all certification and 
reporting forms:

    Under the provisions of 18 U.S.C. 1001, it is a crime punishable by 
5 years imprisonment or a fine of up to $10,000, or both, for any person 
knowingly and willfully to submit or cause to be submitted to any agency 
of the United States any false or fraudulent statement(s) as to any 
matter within the agency's jurisdiction. False statements by the 
landowner or lessee will also result in loss of eligibility. Eligibility 
can only be regained upon the approval of the Commissioner.

    (o) Information requirements and Office of Management and Budget 
approval. The information collection requirements contained in this 
section have been approved by the Office of Management and Budget under 
44 U.S.C. 3501 et seq. and assigned control numbers 1006-0005 and 1006-
0006. The information is being collected to comply with Sections 206, 
224(c), and 228 of the RRA. These sections require that, as a condition 
to the receipt of irrigation water, each landholder in a district which 
is subject to the acreage limitation provisions of Federal reclamation 
law, as amended and supplemented by the RRA, will furnish to his or her 
district annually a certificate/report which indicates that he or she is 
in compliance with the provisions of Federal reclamation law. Completion 
of these forms is required to obtain the benefit of irrigation water. 
The information collected on each landholding will be summarized by the 
district and submitted to Reclamation in a form prescribed by 
Reclamation.
    (p) Protection of forms pursuant to the Privacy Act of 1974. The 
Privacy Act of 1974 (5 U.S.C. 552) protects the information submitted in 
accordance with certification and reporting requirements. As a condition 
to execution of a contract, Reclamation requires the inclusion of a 
standard contract article which provides for district compliance with 
the Privacy Act of 1974 and 43 CFR Part 2, Subpart D, in maintaining

[[Page 628]]

the landholder certification and reporting forms.



Sec. 426.19  District responsibilities.

    A district that delivers irrigation water to nonexempt land under a 
contract with the United States must:
    (a) Provide information to landholders concerning the requirements 
of Federal reclamation law and these regulations;
    (b) Provide Reclamation, as required by these regulations or upon 
request, and in a form suitable to Reclamation, records and information 
as Reclamation may deem reasonably necessary to implement the RRA and 
other provisions of Federal reclamation law;
    (c) Be responsible for payments to Reclamation of all appropriate 
charges specified in these regulations. Districts must collect the 
appropriate charges from each landholder based on the landholder's 
acreage limitation status, landholdings, and entitlements, and must not 
average the costs over the entire district, unless the charges prove 
uncollectible from the responsible landholders;
    (d) Distribute, collect, and review landholder certification and 
reporting forms;
    (e) File and retain landholder certification and reporting forms. 
Districts must retain superseded landholder certification and reporting 
forms for 6 years; thereafter, districts may destroy such superseded 
forms, except:
    (1) Districts must keep on file the last fully completed standard 
certification or reporting form, in addition to the current verification 
form; or
    (2) If Reclamation specifically requests a district to retain 
superseded forms beyond 6 years.
    (f) Comply with the requirements of the Privacy Act of 1974, with 
respect to landholder certification and reporting forms;
    (g) Annually summarize information provided on landholder 
certification and reporting forms on separate summary forms provided by 
Reclamation and submit these forms to Reclamation on or before the date 
established by the appropriate regional director;
    (h) Withhold deliveries of irrigation water to any landholder not 
eligible to receive irrigation water under the certification or 
reporting requirements or any other provision of Federal reclamation law 
and these regulations; and
    (i) Return to Reclamation, for deposit as a general credit to the 
Reclamation fund, all revenues received from the delivery of water to 
ineligible land. For purposes of these regulations only, this does not 
include revenues from any charges that may be assessed by the district 
to cover district operation, maintenance, and administrative expenses.



Sec. 426.20  Assessment of administrative costs.

    (a) Assessment of administrative costs for delivery of water to 
ineligible land. Reclamation will assess a district administrative costs 
as described in paragraph (e) of this section if the district delivers 
irrigation water to land that was ineligible because the landholders did 
not submit certification or reporting forms prior to the receipt of 
irrigation water in accordance with Sec. 426.18; or to ineligible excess 
land as provided in Sec. 426.12.
    (1) Reclamation will apply the assessment on a yearly basis in each 
district for each landholder that received irrigation water in violation 
of Sec. 426.18, or for each landholder that received irrigation water on 
ineligible land as specified above.
    (2) In applying the assessment to legal entities, compliance by an 
entity will be treated independently from compliance by its part owners 
or beneficiaries.
    (3) The assessment in paragraph (a) of this section will be applied 
independently of the assessment specified in paragraph (b) of this 
section.
    (b) Assessment of administrative costs when form corrections are not 
made. Reclamation will assess a district for the administrative costs 
described in paragraph (e) of this section, unless the district provides 
Reclamation with requested reporting or certification form corrections 
within 60-calendar days of the date of Reclamation's written request. If 
Reclamation receives the required corrections within this 60-calendar 
day time period, Reclamation will consider the requirements of 
Sec. 426.18 satisfied.

[[Page 629]]

    (1) Reclamation will apply the assessment on a yearly basis in each 
district for each landholder that received irrigation water and for whom 
the district does not provide corrected forms within the applicable 60-
calendar day time period.
    (2) In applying the assessment to legal entities, compliance by an 
entity will be treated independently from compliance by its part owners 
or beneficiaries.
    (3) The assessment in paragraph (b) of this section will be applied 
independently of the assessment specified in paragraph (a) of this 
section.
    (c) Party responsible for paying assessments. Districts are 
responsible for payment of Reclamation assessments described under 
paragraphs (a) and (b) of this section.
    (d) Disposition of assessments. Reclamation will deposit to the 
general fund of the United States Treasury, as miscellaneous receipts, 
administrative costs assessed and collected under paragraphs (a) and (b) 
of this section.
    (e) Amount of the assessment. The administrative costs assessment 
required under paragraphs (a) and (b) of this section is set at $260. 
Reclamation will review the associated costs at least once every 5 
years, and will adjust the assessment amount, if needed, to reflect new 
cost data. Notice of the revised assessment for administrative costs 
will be published in the Federal Register in December of the year the 
data are reviewed.



Sec. 426.21  Interest on underpayments.

    (a) Definition of underpayment. For the purposes of this section 
underpayment means the difference between what a landholder owed for the 
delivery of irrigation water under Federal reclamation law and what that 
landholder paid.
    (b) Collection of interest on underpayments. If a landholder has 
incurred an underpayment, Reclamation will collect from the appropriate 
district such underpayment with interest. Interest accrues from the 
original payment due date until the district pays the amount due. The 
original payment due date is the date the district should have paid the 
United States for water delivered to the landholder.
    (c) Underpayment interest rate. The Secretary of the Treasury 
determines the interest rate charged the district based on the weighted 
average yield of all interest-bearing marketable issues sold by the 
Department of the Treasury during the period of underpayment.



Sec. 426.22  Public participation.

    (a) Notification of contract actions. Except for proposed contracts 
having a duration of 1 year or less for the sale of surplus water or 
interim irrigation water, Reclamation will:
    (1) Provide notice of proposed irrigation or amendatory irrigation 
contract actions 60-calendar days prior to contract execution by 
publishing announcements in general circulation newspapers in the 
affected area;
    (2) Issue announcements in the form of news releases, legal notices, 
official letters, memoranda, or other forms of written material; and
    (3) Directly notify individuals and entities who made a timely 
written request for such notice to the appropriate Reclamation regional 
or local office.
    (b) Notification of modification of a proposed contract. In the 
event that modifications are made to a proposed contract the regional 
director must:
    (1) Provide copies of revised proposed contracts to all parties who 
requested copies of the proposed contract in response to the initial 
notice; and
    (2) Determine whether or not to republish the notice or to extend 
the comment period. The regional director must consider, among other 
factors:
    (i) The significance of the impact(s) of the modification to 
possible affected parties; and
    (ii) The interest expressed by the public over the course of 
contract negotiations.
    (c) Information that Reclamation will include in published 
announcements. Each published announcement will include, as appropriate:
    (1) A brief description of the proposed contract terms and 
conditions being negotiated;
    (2) Date, time, and place of meetings, workshops, or hearings;
    (3) The address and telephone number to which inquiries and comments 
may be addressed to Reclamation; and

[[Page 630]]

    (4) The period of time during which Reclamation will accept 
comments.
    (d) Public availability of proposed contracts. Anyone can get copies 
of a proposed contract from the appropriate regional director or his or 
her designated public contact when the proposed contracts become 
available for review and comment, as specified in the published 
announcement.
    (e) Opportunities for public participation. (1) Reclamation can 
provide, as appropriate: meetings, workshops, or hearings to provide 
local information. Advance notice of meetings, workshops, or hearings 
will be provided to those parties who make timely written request for 
such notice. Request for notice of meetings, workshops, or hearings 
should be sent to the appropriate Reclamation regional or local office.
    (2) Reclamation or the district can invite the public to observe any 
contract proceedings.
    (3) All public participation procedures will be coordinated with 
those involved with National Environmental Policy Act compliance, if 
Reclamation determines that the contract action may or will have 
``significant'' environmental effects.
    (f) Individuals authorized to negotiate the terms of contract 
proposals. Only persons authorized to act on behalf of the district may 
negotiate the terms and conditions of a specific contract proposal.
    (g) Agency use of comments submitted during the period provided for 
comment or made at hearings. (1) Reclamation will review and summarize 
for use by the contract approving authority, testimony presented at any 
public hearing or any written comments submitted to the appropriate 
Reclamation officials at locations and within the comment period, as 
specified in the advance published announcement.
    (2) Reclamation will make available to the public all written 
correspondence regarding proposed contracts under the terms and 
procedures of the Freedom of Information Act (5 U.S.C. 552), as amended.



Sec. 426.23  Recovery of operation and maintenance (O&M) costs.

    (a) General. All new, amended, and renewed contracts shall provide 
for payment of O&M costs as specified in this section.
    (b) Amount of O&M costs a district must pay if it executes a new or 
renewed contract. If a district executes a new or renewed contract after 
October 12, 1982, then that district must pay all of the O&M costs that 
Reclamation allocates to irrigation.
    (c) Amount of O&M costs a district must pay if it amends its 
contract to conform to the discretionary provisions. If a district has a 
contract executed prior to October 12, 1982, and the district amends the 
contract after October 12, 1982, as provided for in Sec. 426.3(a)(2) to 
conform to the discretionary provisions, then the following applies:
    (1) The district must pay all of the O&M costs that Reclamation 
allocates to irrigation;
    (2) If in the year the amendment is executed, the district's 
contract rate was more than the O&M costs allocated to the district in 
that year then that positive difference at the time of the contract 
amendment must continue to be factored into the contract rate and 
annually paid to the United States. This would be in addition to any 
adjusted O&M cost that results from paragraph (c)(1) of this section. 
The positive difference would be factored into the contract rate for the 
remainder of the term of the contract; and
    (3) The district will not be required to pay an increased amount 
toward the construction costs of a project as a condition of the 
district's agreeing to a contract amendment pursuant to paragraph (c) of 
this section.
    (d) Amount of O&M cost a district must pay if it amends its contract 
to provide supplemental or additional benefits. If a district amends its 
contract after October 12, 1982, to provide supplemental or additional 
benefits, as provided for in Sec. 426.3(a)(3), then the following must 
be complied with:
    (1) The district must pay all of the O&M costs that Reclamation 
allocates to irrigation;
    (2) If in the year the amendment is executed, the district's 
contract rate was more than the O&M costs allocated to the district in 
that year then that positive difference at the time of the contract 
amendment must continue to be factored into the contract rate and

[[Page 631]]

annually paid to the United States. This would be in addition to any 
adjusted O&M cost that results from paragraph (d)(1) of this section. 
The positive difference would be factored into the contract rate for the 
remainder of the term of the contract; and
    (3) The district must pay any increases in the amount paid annually 
toward the construction costs of a project that the United States 
requires the district to pay as a condition of agreeing to provide the 
district with supplemental and additional benefits.
    (e) Amount of O&M a district pays under a prior contract. For a 
district whose prior contract was executed prior to October 12, 1982, 
the district must pay all of the O&M costs allocated by Reclamation to 
irrigation unless the contract specifically provides contrary terms.
    (f) Amount of O&M that Reclamation charges an irrevocable elector. 
(1) Regardless of any terms to the contrary within a prior contract with 
a district, a landholder who makes an irrevocable election, as provided 
for in Sec. 426.3(f) must pay, annually, his or her proportionate share 
of all O&M costs allocated by Reclamation to irrigation. The irrevocable 
elector's proportionate share is based upon the ratio of:
    (i) The amount of land in the district held by the irrevocable 
elector that received irrigation water to the total amount of land in 
the district that received irrigation water; or
    (ii) The amount of irrigation water in the district received by the 
irrevocable elector to the total amount of irrigation water that the 
district delivered.
    (2) The district(s) where the irrevocable elector's landholding is 
located must collect from the irrevocable elector an amount equal to the 
irrevocable elector's proportionate share of all O&M costs allocated by 
Reclamation to irrigation and the following apply:
    (i) If in the year the election is executed, the district's contract 
rate was more than the O&M costs allocated to the district in that year, 
then that positive difference at the time of the contract amendment must 
continue to be factored into the contract rate. This would be in 
addition to any adjusted O&M cost that results from paragraph (f)(1) of 
this section. The positive difference would be factored into the 
contract rate for the remainder of the term of the contract; and
    (ii) Such collections must be forwarded annually to the United 
States.
    (g) Amount of O&M that Reclamation charges if a landholder is 
subject to full- cost pricing. In a district subject to prior law, if a 
landholder is subject to full-cost pricing the district must ensure that 
all O&M costs are included in any full-cost assessment, regardless of 
whether the landholder is subject to the discretionary provisions. The 
revenues from such full-cost assessments must be collected and submitted 
to the United States.



Sec. 426.24  Reclamation decisions and appeals.

    (a) Reclamation decisions. (1) Decisionmaker for Reclamation's final 
determinations. The appropriate regional director makes any final 
determination that these regulations require or authorize. If 
Reclamation's final determination is likely to involve districts, or 
landholders with landholdings located in more than one region, the 
Commissioner designates one regional director to make that final 
determination.
    (2) Notice to affected parties. The appropriate regional director 
will transmit any final determination to any district and landholder, as 
appropriate, whose rights and interests are directly affected.
    (3) Effective date for regional director's final determinations. A 
regional director's decisions will take effect the day after the 
expiration of the period during which a person adversely affected may 
file a notice of appeal unless a petition for stay is filed together 
with a timely notice of appeal.
    (b) Appeal of final determinations. (1) Appeal Submittal. Any 
district or landholder whose rights and interests are directly affected 
by a regional director's final determination can submit a written notice 
of appeal. Such notice of appeal must be submitted to the Commissioner 
of Reclamation within 30-calendar days from the date of the regional 
director's final determination.

[[Page 632]]

    (2) Submittal of supporting information. The affected party will 
have 60-calendar days from the date that the regional director issues a 
final determination to submit a supporting brief or memorandum to the 
Commissioner. The Commissioner may extend the time for submitting a 
supporting brief or memorandum, if:
    (i) The affected party submits a request to the Commissioner in a 
timely manner;
    (ii) The request includes the reason why additional time is needed; 
and
    (iii) The Commissioner determines the appellant has shown good cause 
for such an extension and the extension would not prejudice Reclamation.
    (3) Requests for stay of the final determination pending appeal. (i) 
The Commissioner will determine whether to stay a regional director's 
final determination within 30 days after receiving a properly filed 
petition for stay if the requesting party:
    (A) Submits a request for stay in writing to the Commissioner, with, 
or in advance of, the notice of appeal, and states the grounds upon 
which the party requests the stay; and
    (B) Demonstrates that the harm that a district or landholder would 
suffer if the Commissioner does not grant the stay outweighs the 
interest of the United States in having the final determination take 
effect pending appeal.
    (ii) A decision, or that portion of the decision, for which a stay 
is not granted will become effective immediately after the Commissioner 
denies or partially denies the petition for stay, or fails to act within 
30 days after receiving the request.
    (iii) A Commissioner's decision on a petition for a stay or any 
other Commissioner decision is appealable.
    (c) Appeal of Commissioner's decision. (1) Appeal to the Office of 
Hearing and Appeals. A party can appeal the Commissioner's decision to 
the Secretary by writing to the Director, Office of Hearings and Appeals 
(OHA), U.S. Department of the Interior. For an appeal to be timely, OHA 
must receive the appeal within 30-calendar days from the date of mailing 
of the Commissioner's decision.
    (2) Rules that govern appeals to OHA. 43 CFR part 4, subpart G, and 
other provisions of 43 CFR Part 4, where applicable, govern the OHA 
appeal process, except for the accrual of underpayment interest as 
specified in paragraph (e) of this section.
    (d) Effective date of an appeal decision. Reclamation will apply 
decisions made by the Commissioner or by OHA under paragraphs (b) and 
(c) of this section as of the date of the violation or other problem 
that was addressed in the regional director's final determination. If, 
during the appeal process, irrigation water has been delivered to land 
subsequently found to be ineligible, for other than RRA forms submittal 
violations, the compensation rate may be applied to such deliveries 
retroactively.
    (e) Accrual of interest on underpayments during appeal. Interest on 
any underpayments, as provided in Sec. 426.21, continues to accrue 
during an appeal of a regional director's final determination, an appeal 
of the Commissioner's decision, or judicial review of final agency 
action. Underpayment interest accrual will continue even during a stay 
under paragraphs (b)(4) or (c)(3) of this section.
    (f) Status of appeals made prior to the effective date of these 
regulations. (1) Appeals to the Commissioner of a regional director's 
final determination which were decided by the Commissioner or his or her 
delegate prior to the effective date of these regulations are hereby 
validated.
    (2) Appeals to the Commissioner of final determinations made by a 
regional director and appeals to OHA, which are pending on appeal as of 
the effective date of these regulations will be processed and decided in 
accordance with the regulations in effect immediately prior to the 
effective date of these regulations.
    (g) Addresses. All requests for stays, appeals, or other 
communications to the United States under this section must be addressed 
as follows:
    (1) Commissioner, Bureau of Reclamation, Office of Policy, 
Attention: D-5200, P.O. Box 25007, Denver, Colorado 80225.
    (2) Director, Office of Hearings and Appeals, Department of the 
Interior,

[[Page 633]]

801 North Quincy Street, Arlington, Virginia 22203.

[61 FR 66805, Dec. 18, 1996, as amended at 67 FR 13702, Mar. 25, 2002]



Sec. 426.25  Reclamation audits.

    Reclamation will conduct reviews of a district's administration and 
enforcement of and landholder compliance with Federal reclamation law 
and these regulations. These reviews may include, but are not limited 
to:
    (a) Water district reviews;
    (b) In-depth reviews; and
    (c) Audits.



Sec. 426.26  Severability.

    If any provision of these regulations or the application of these 
rules to any person or circumstance is held invalid, then the sections 
of these rules or their applications which are not held invalid will not 
be affected.



PART 427--WATER CONSERVATION RULES AND REGULATIONS--Table of Contents




    Authority: 5 U.S.C. 301; 5 U.S.C. 553; 16 U.S.C. 590y et seq.; 31 
U.S.C. 9701; and 32 Stat. 388 and all acts amendatory thereof or 
supplementary thereto including, but not limited to, 43 U.S.C. 390b, 43 
U.S.C. 390jj, 43 U.S.C. 422a et seq., and 43 U.S.C. 523.

    Source: 61 FR 66825, Dec. 18, 1996, unless otherwise noted.



Sec. 427.1  Water conservation.

    (a) In general. The Secretary shall encourage the full consideration 
and incorporation of prudent and responsible water conservation measures 
in all districts and for the operations by non-Federal recipients of 
irrigation and municipal and industrial (M&I) water from Federal 
Reclamation projects.
    (b) Development of a plan. Districts that have entered into 
repayment contracts or water service contracts according to Federal 
reclamation law or the Water Supply Act of 1958, as amended (43 U.S.C. 
390b), shall develop and submit to the Bureau of Reclamation a water 
conservation plan which contains definite objectives which are 
economically feasible and a time schedule for meeting those objectives. 
In the event the contractor also has provisions for the supply of M&I 
water under the authority of the Water Supply Act of 1958 or has invoked 
a provision of that act, the water conservation plan shall address both 
the irrigation and M&I water supply activities.
    (c) Federal assistance. The Bureau of Reclamation will cooperate 
with the district, to the extent possible, in studies to identify 
opportunities to augment, utilize, or conserve the available water 
supply.



PART 428--INFORMATION REQUIREMENTS FOR CERTAIN FARM OPERATIONS IN EXCESS OF 960 ACRES AND THE ELIGIBILITY OF CERTAIN FORMERLY EXCESS LAND--Table of Contents




Sec.
428.1  Purpose of this part.
428.2  Applicability of this part.
428.3  Definitions used in this part.
428.4  Who must submit forms under this part.
428.5  Required information.
428.6  Where to submit required forms and information.
428.7  What happens if a farm operator does not submit required forms.
428.8  What can happen if a farm operator makes false statements on the 
          required forms.
428.9  Farm operators who are former owners of excess land.
428.10  Districts' responsibilities concerning certain formerly excess 
          land.
428.11  Effective date.

    Authority: 5 U.S.C. 301; 5 U.S.C. 553; 16 U.S.C. 590z-11; 31 U.S.C. 
9701; 32 Stat. 388, as amended.

    Source: 65 FR 4324, Jan. 26, 2000, unless otherwise noted.



Sec. 428.1  Purpose of this part.

    This part addresses Reclamation Reform Act of 1982 (RRA) forms 
requirements for certain farm operators and the eligibility of formerly 
excess land that is operated by a farm operator who was the landowner of 
that land when it was excess.



Sec. 428.2  Applicability of this part.

    (a) This part applies to farm operators who provide services to:
    (1) More than 960 acres held (directly or indirectly owned or 
leased) by one trust or legal entity; or

[[Page 634]]

    (2) The holdings of any combination of trusts and legal entities 
that exceed 960 acres.
    (b) This part also applies to farm operators who provide services to 
formerly excess land held in trusts or by legal entities if the farm 
operator previously owned that land when the land was ineligible excess 
or under recordable contract.
    (c) This part supplements the regulations in part 426 of this 
chapter.



Sec. 428.3  Definitions used in this part.

    Custom service provider means an individual or legal entity that 
provides one specialized, farm-related service that a farm owner, 
lessee, sublessee, or farm operator employs for agreed-upon payments. 
This includes, for example, crop dusters, custom harvesters, grain 
haulers, and any other such services.
    Farm operator means an individual or legal entity other than the 
owner, lessee, or sublessee that performs any portion of the farming 
operation. This includes farm managers, but does not include spouses, 
minor children, employees for whom the employer pays social security 
taxes, or custom service providers.
    We or us means the Bureau of Reclamation.
    You means a farm operator.



Sec. 428.4  Who must submit forms under this part.

    (a) You must submit RRA forms to districts annually as specified in 
Sec. 428.6 if:
    (1) You provide services to more than 960 nonexempt acres westwide, 
held by a single trust or legal entity or any combination of trusts and 
legal entities; or
    (2) You are the ultimate parent legal entity of a wholly owned 
subsidiary or of a series of wholly owned subsidiaries that provide 
services in total to more than 960 nonexempt acres westwide, held by a 
single trust or legal entity or any combination of trusts and legal 
entities.
    (b) Anyone who is the indirect owner of a legal entity that is a 
farm operator meeting the criteria of paragraph (a) of this section must 
submit forms to us annually, if any of the land to which services are 
being provided by that legal entity is land that the part owner formerly 
owned as excess land and sold or transferred at an approved price.
    (c) If you must submit RRA forms due to the requirements of this 
section, then you may not use a verification form for your annual 
submittal as provided for in Sec. 426.18(l) of this chapter to meet the 
requirements of this section.
    (d) If you must submit RRA forms solely due to the requirements of 
this section, then once you have met the requirement found in paragraph 
(a) of this section you need not submit another RRA form during the 
current water year, even if you experience a change to your farm 
operating arrangements. Specifically, the requirements of 
Sec. 426.18(k)(1) of this chapter are not applicable.



Sec. 428.5  Required information.

    (a) We will determine which forms you must use to submit the 
information required by this section.
    (b) You must declare all nonexempt land to which you provide 
services westwide.
    (c) You must give us other information about your compliance with 
Federal reclamation law, including but not limited to:
    (1) Identifier information, such as your name, address, telephone 
number;
    (2) If you are a legal entity, information concerning your 
organizational structure and part owners;
    (3) Information about the land to which you provide services, such 
as a legal description, and the number of acres;
    (4) Information about whether you formerly owned, as ineligible 
excess land or under recordable contract, the land to which you are 
providing services;
    (5) Information about the services you provide, such as what they 
are, who decides when they are needed, and how much control you have 
over the daily operation of the land;
    (6) If you provide different services to different land parcels, a 
list of services that you provide to each parcel;
    (7) Whether you can use your agreement with a landholder as 
collateral in any loan;
    (8) Whether you can sue or be sued in the name of the landholding; 
and

[[Page 635]]

    (9) Whether you are authorized to apply for any Federal assistance 
from the United States Department of Agriculture in the name of the 
landholding.



Sec. 428.6  Where to submit required forms and information.

    You must submit the appropriate completed RRA form(s) to each 
district westwide that is subject to the acreage limitation provisions 
and in which you provide services.



Sec. 428.7  What happens if a farm operator does not submit required forms.

    (a) If you do not submit required RRA form(s) in any water year, 
then:
    (1) The district must not deliver irrigation water before you submit 
the required RRA form(s); and
    (2) You, the trustee, or the landholder(s) who holds the land 
(including to whom the land held in trust is attributed) must not accept 
delivery of irrigation water before you submit the required RRA form(s).
    (b) After you submit all required RRA forms to the district, we will 
restore eligibility.
    (c) If a district delivers irrigation water to land that is 
ineligible because you did not submit RRA forms as required by this 
part, we will assess administrative costs against the district as 
specified in Sec. 426.20(e) of this chapter. We will determine these 
costs in the same manner used to determine costs for landholders under 
Secs. 426.20(a)(1) through (3) of this chapter.



Sec. 428.8  What can happen if a farm operator makes false statements on the required forms.

    If you make a false statement on the required RRA form(s), 
Reclamation can prosecute you under the following statement:

    Under the provisions of 18 U.S.C. 1001, it is a crime punishable by 
5 years imprisonment or a fine of up to $10,000, or both, for any person 
knowingly and willfully to submit or cause to be submitted to any agency 
of the United States any false or fraudulent statement(s) as to any 
matter within the agency's jurisdiction. False statements by the farm 
operator will also result in loss of eligibility. Eligibility can only 
be regained upon the approval of the Commissioner.



Sec. 428.9  Farm operators who are former owners of excess land.

    (a) Land held in trust or by a legal entity may not receive 
irrigation water if:
    (1) You owned the land when the land was excess, whether or not 
under recordable contract;
    (2) You sold or transferred the land at a price approved by 
Reclamation; and
    (3) You are the direct or indirect farm operator of that land.
    (b) This section does not apply if:
    (1) The formerly excess land becomes exempt from the acreage 
limitations of Federal reclamation law; or
    (2) The full-cost rate is paid for any irrigation water delivered to 
your formerly excess land that is otherwise eligible to receive 
irrigation water. If you are a part owner of a legal entity that is the 
direct or indirect farm operator of the land in question, then the full-
cost rate will apply to the proportional share of the land that reflects 
your interest in that legal entity.



Sec. 428.10  Districts' responsibilities concerning certain formerly excess land.

    Districts must not make irrigation water available to formerly 
excess land that meets the criteria under Sec. 428.9(a), unless an 
exception provided in Sec. 428.9(b) applies.



Sec. 428.11  Effective date.

    (a) All provisions of this part apply on January 1, 2001, except:
    (1) For those districts whose 2001 water year commences prior to 
January 1, 2001, the applicability date of Secs. 428.1 through 428.8 is 
October 1, 2000.
    (b) On January 1, 2001, this part applies to all farm operating 
arrangements between farm operators and trusts or legal entities that:
    (1) Are then in effect; or
    (2) Are initiated on, or after, January 1, 2001.

[[Page 636]]



PART 429--PROCEDURE TO PROCESS AND RECOVER THE VALUE OF RIGHTS-OF-USE AND ADMINISTRATIVE COSTS INCURRED IN PERMITTING SUCH USE--Table of Contents




Sec.
429.1  Purpose.
429.2  Definitions.
429.3  Establishment of the value of rights-of-use.
429.4  Request by other governmental agencies and nonprofit 
          organizations for rights-of-use.
429.5  Request by others for assistance.
429.6  Applications for rights-of-use.
429.7  Terms and conditions of and for the rights-of-use.
429.8  Reclamation land-use stipulation.
429.9  Hold harmless clause.
429.10  Decisions and appeals.
429.11  Addresses.

    Authority: 43 U.S.C. 387 (53 Stat. 1196), as amended by 64 Stat. 
463, c. 752 (1950); Department of the Interior Manual Part 346, Chapters 
1, 2, 3, and 4; 43 U.S.C. 501; Independent Offices Appropriation Act (31 
U.S.C. 483a); and Budget Circular A-25, as amended by transmittal 
memorandums 1 and 2 of Oct. 22, 1963, and April 16, 1974.

    Source: 48 FR 56223, Dec. 20, 1983, unless otherwise noted.



Sec. 429.1  Purpose.

    The purpose of this part is to meet the requirements of the 
Independent Offices Appropriation Act (31 U.S.C. 483a) and Departmental 
Manual Part 346, Chapters 1.6 and 4.10, to set forth procedures for the 
Bureau of Reclamation (Reclamation) to recover the value of rights-of-
use interests granted to applicants, and for the collection of 
administrative costs associated with the issuing of rights-of-use over 
lands administered by Reclamation. This part also refers to costs 
incurred by Reclamation when, at the request of other agencies and 
parties, Reclamation gives aid and assistance in rights-of-use matters.

These regulations apply to uses of lands and interests in land under the 
jurisdiction of Reclamation granted to others by the Commissioner of the 
Bureau of Reclamation. Those interests issued or granted for the 
replacement or relocation of facilities belonging to others under 
section 14 of the Reclamation Project Act of August 4, 1939, 43 U.S.C. 
389 are excepted.



Sec. 429.2  Definitions.

    As used in this part:
    (a) Commissioner means the Commissioner of the Bureau of Reclamation 
or his designated representative.
    (b) Reclamation means the Bureau of Reclamation.
    (c) Regional Director means any one of the seven representatives of 
the Commissioner designated to act for the Commissioner in specified 
rights-of-use of actions. The Regional Directors may redelegate certain 
of their authorities for granting rights-of-use to the supervising heads 
of field offices.
    (d) Rights-of-use includes rights-of-way, easements, leases, 
permits, licenses, or agreements issued or granted by the Regional 
Directors to permit the occupying, using, or traversing of lands under 
the jurisdiction, administration or management of the Bureau of 
Reclamation, and issued under the authority granted to him for the 
purpose. The term ``rights-of-use'' does not include the leasing of land 
in the custody or under the control of Reclamation for grazing, 
agriculture, or any other purpose where a greater return will be 
realized by the United States through a competitive bidding process.
    (e) Other agencies or others means all Federal, State, private 
individuals, partnerships, firms or corporations, and local governments 
agencies not connected in any way with Reclamation, that request rights-
of-use either directly or indirectly from Reclamation.
    (f) Rights-of-use assistance means any assistance to obtain a use 
authorization given upon request to another party. Such assistance 
includes, but is not limited to, work in the processing of environmental 
requirements and the preparing, checking, and inspecting of engineering 
data and standards.
    (g) Value of rights-of-use means the value of the rights, 
privileges, and interests granted by Reclamation for the use of land 
under its custody and control, as determined by an appraisal by a 
qualified appraiser using approved methods, in accordance with 
Sec. 429.3 of this part.

[[Page 637]]

    (h) Administrative costs means all direct or indirect costs 
including appraisal costs if required, incurred by Reclamation in 
reviewing, issuing, and processing of rights-of-use requests or the 
assisting of others in their rights-of-use matters, calculated in 
accordance with the procedures established by Departmental Manual 346, 
``Cost Recovery,'' Chapters 1, 2, 3, and 4.
    (i) Grantor or Permitter means the Bureau of Reclamation, U.S. 
Department of the Interior.
    (j) Grantee or User means the agency, firm, partnership, or 
individual who requested and to whom is granted the right-of-use.
    (k) Documentation of administrative costs. This documentation shall 
mean documentation in accordance with the provisions of part 346, 
chapters 1, 2, 3, and 4 of the Departmental Manual. Administrative costs 
will be documented through the accurate recording and accounting of 
costs associated with a right-of-use. This documentation shall include 
both direct and indirect costs, such as:
    (1) Personnel costs.
    (i) Direct labor.
    (ii) Fringe benefits.
    (iii) Additional benefits.
    (2) Material costs, printing costs, and other costs related directly 
with a specific right-of-use.
    (3) Exclusions.
    (i) Management overhead.
    (ii) Normal costs not directly associated with the specific right-
of-use.
    (l) Secretary shall mean the Secretary of the Interior.



Sec. 429.3  Establishment of the value of rights-of-use.

    (a) The value of a right-of-use shall be determined by Reclamation. 
The appraised value of a right-of-use shall be established by a 
Reclamation staff or contract appraiser in accordance with Reclamation 
Instructions for Land Appraisal. The appraisal shall be for the fair 
market value for the requested right or privilege, and result from the 
diminution of value of the remainder using the before and after 
appraisal approach, or any other method generally approved within the 
real estate appraising profession for such valuation.
    (b) If the applicant has been or is currently using the right-of-use 
area without authorization, and if it can be determined that the 
unauthorized use of Federal Lands was unintentional and not due to 
carelessness or neglect on the part of the applicant, then the value of 
a right-of-use shall not include the value of any prior unauthorized use 
by the applicant of the Reclamation land.
    (c) If the applicant's prior unauthorized use can be determined to 
be intentional on his part or to be a result of his carelessness or 
neglect, then the value of such previous use shall be determined as 
assessed to the user in addition to the apprised value of the right-of-
use.



Sec. 429.4  Request by other governmental agencies and nonprofit organizations for rights-of-use.

    Rights-of-use requested by nonprofit organizations or nonprofit 
corporations may be provided with no charge being made for the value of 
these rights-of-use when it is determined that the use will not 
interfere with the authorized current or planned use of the land by 
Reclamation. Rights-of-use requested by other Federal or other 
governmental agencies will be granted with fair market value 
reimbursement unless, a reasonable opportunity exists for the exchange 
of rights-of-use privileges, and there exists an interagency agreement 
providing for such exchange. Other agencies and nonprofit organizations 
will be required to reimburse Reclamation for all administrative costs 
which are deemed to be excessive to normal costs for granting similar 
rights-of-use request. All billings for administrative costs will be 
well documented (Sec. 429.2(k)). All requests will provide the 
information required in Sec. 429.6(a), and (b).



Sec. 429.5  Request by others for assistance.

    The agency requesting assistance from Reclamation in acquiring a 
right-of-use shall be required to reimburse Reclamation for any 
administrative costs deemed to be in excess of the average normal for 
the specific service or assistance (Sec. 429.2(h)) and would not 
normally be foreseen and covered in

[[Page 638]]

the Reclamation regular appropriation requests. Any billing for these 
excessive costs shall be well documented (Sec. 429.2(k)).



Sec. 429.6  Applications for rights-of-use.

    The applicant for a right-of-use over land or estate in land, in the 
custody and control of Reclamation, must make application to the 
Regional Director of the region in which the land is located or to the 
affected field office. The addresses for the seven Regional Directors 
are located in Sec. 429.11. A right-of-use will not be granted when it 
is determined that the proposed right-of-use will interfere with the 
functions of Reclamation or its ability to maintain its facilities.
    (a) The application does not have to be in any particular form but 
must be in writing. The application must contain at least the following 
items:
    (1) A detailed description of the proposed use of Reclamation's 
lands.
    (2) A legal description of either aliquot parts or metes and bounds, 
or as an absolute minimum, a description of the route or area of use 
desired on Reclamation's lands, and as accurate delineation of the use 
area on a map as it is possible to provide without making a survey.
    (3) A map or drawing showing the approximate location of the 
requested right-of-use.
    (b) An initial deposit fee of $200 must accompany the initial 
application. If, after a preliminary review of the application 
Reclamation determines the granting of a right-of-use is incompatible 
with present or future uses of the land and the right-of-use cannot be 
granted, $150 of the $200 fee will be returned. The remaining $50 of the 
$200 fee will be retained by Reclamation regardless of its disposition 
of the right-of-use request. No refund will be made for any deposits if 
the applicant refuses to accept the right-of-use after it is prepared 
and offered. Applicants will be required to pay any administrative costs 
which are in excess of the $200 deposit for the preparation of right-of-
use as well as the value to the right granted. Any administrative costs 
less than $150 will result in an appropriate refund to the applicant or 
may be applied to the value of the right-of-use at the discretion of the 
applicant. This shall apply equally to requested rights-of-use which are 
offered by Reclamation and are rejected by the applicant, as to those 
which the applicant accepts. Any billing for administrative costs shall 
be well documented. (Sec. 429.2(k).) At the discretion of the Regional 
Director, applications made by other Federal agencies need not be 
accompanied by either of the above deposits or fees.
    (c) All fees and costs may be waived or reduced at the discretion of 
the Regional Director, when:
    (1) It is determined that the applicant for the right-of-use will 
soon be, or is in the position of granting a right-of-use to the United 
States, and an opportunity for a reciprocal agreement exists, providing 
an agreement between Reclamation and the applicant is on file permitting 
such an exchange of uses.
    (2) The initial deposit and the administrative costs would exceed 
the value of the interests and rights to be granted. The $50 minimum fee 
will usually be retained.
    (3) The holder provides without charges, or at a reduced charge, a 
valuable service to the general public or to the programs of the 
Department of the Interior; or
    (4) The right-of-use is a result of a service requested by the 
Federal Government or a governmental agency.
    (d) The applicant also may, at the discretion of the Regional 
Director, be required to furnish, or agree to furnish, the following 
additional material before Reclamation grants a right-of-use:
    (1) A legal land description and/or a map or plat of the requested 
right-of-use. The description map or plat should relate to Reclamation's 
land boundaries.
    (2) Detailed construction details, construction specifications, 
engineering drawings, power flow diagrams, one-line diagrams, and any 
other plans and specifications which may be applicable.
    (3) Statements, reports, or other documents already prepared or 
which normally will be prepared by the applicant which may be used by 
Reclamation to satisfy the requirements of the National Environmental 
Policy Act (42 U.S.C. 4321 through 4347) or other legal

[[Page 639]]

requirements of Reclamation in granting the applications right-of-use 
request.
    (4) An agreement to complete or assist in completing Reclamation's 
requirements towards compliance with cultural resource policies.
    (e) The applicant shall pay any excess administrative costs which 
Reclamation incurs which are in excess to the initial deposit of $200 
required by paragraph (b) of this section prior to the issuance of the 
right-of-use. All billing for administrative costs shall be well 
documented by Reclamation.
    (f) Prior to the issuance of the right-of-use instrument the 
applicant shall also pay Reclamation a fair market value of the right 
and privilege requested for the use of Reclamation's lands.

This value shall be determined by an appraisal made, as prescribed in 
Sec. 429.3 of this regulation. Those applicants meeting the provisions 
of Sec. 429.4 may be excepted from this provision. The decision to grant 
an exemption under Sec. 429.4 will have the justification well 
documented.
    (g) Information Collection: The information collection requirements 
contained in Sec. 429.6 have been approved by the Office of Management 
and Budget under 44 U.S.C. 3501 et seq., OMB 1006-003. The information 
is being collected to assist in the determination for the granting of a 
right-of-use. The information will be used to assure the appropriateness 
of such a grant and that the technical and financial resources of the 
applicant are sufficient to complete the project. Response is required 
to obtain the right-of-use.



Sec. 429.7  Terms and conditions of and for the rights-of-use.

    (a) The right-of-use granting document shall contain all special 
conditions or requirements which are determined by the Regional Director 
to be necessary to protect the interest of the United States.
    (b) Any grant of a right-of-use for a term of 25 years or longer 
must have the consent of any involved water user organization pursuant 
to the legal requirements of 43 U.S.C. 387. Concurrence in and approval 
of uses for less than a 25-year period may be requested of the water 
users organization at the discretion of the responsible Regional 
Director. As a minimum, the water user's organization shall be notified 
of the right-of-use application prior to its being granted.
    (c) Reclamation's land-use stipulation appearing in Sec. 429.8 shall 
be included in all perpetual right-of-way easements granted, excepting 
grants to other Federal agencies.
    (d) Temporary rights-of-use instruments shall contain a termination 
clause in the event the applicants use becomes, or may become, an 
interference with the Reclamation's use of the land.
    (e) Except for grants of rights-of-use to Federal agencies, the use 
instruments shall contain a hold harmless clause found in Sec. 429.9.
    (f) The applicant must show that any legally required permits to 
construct power transmission lines in excess of 100 kilovolt have been 
secured by the applicant from the appropriate power marketing authority 
prior to Reclamation's granting a right-of-way for such line.



Sec. 429.8  Reclamation land-use stipulation.

    There is reserved from the rights herein granted, the prior rights 
of the United States acting through the Bureau of Reclamation, 
Department of the Interior, to construct, operate, and maintain public 
works now or hereafter authorized by the Congress without liability for 
severance or other damage to the grantee's work; provided, however, that 
if such reserved rights are not identified in at least general terms in 
this grant and exercised for works authorized by the Congress within 10 
years following the date of this grant, they will not be exercised 
unless the grantee, or grantee's successor in interest is notified of 
the need, and grants an extension or waiver. If no extension or waiver 
is granted, the Government will compensate, or institute mitigation 
measures for any resultant damages to works placed on said lands 
pursuant to the rights herein granted. Compensation shall be in the 
amount of the cost of reconstruction of grantee's works to accommodate 
the exercise of the Government's

[[Page 640]]

reserved rights. As alternatives to such compensation, the United 
States, at its option and at its own expense, may mitigate the damages 
by reconstructing the grantee's works to accommodate the Government 
facilities, or may provide other adequate mitigation measures for any 
damage to the grantee's property or right. The decision to compensate or 
mitigate is that of the appropriate Regional Director.



Sec. 429.9  Hold harmless clause.

    (a) The following clause shall be a part of every land-use document 
issued by Reclamation:

The grantee hereby agrees to indemnify and hold harmless the United 
States, its employees, agents, and assigns from any loss or damage and 
from any liability on account of personal injury, property damage, or 
claims for personal injury or death arising out of the grantee's 
activities under this agreement.
    (b) To meet local and special conditions, the Regional Director, 
upon advice of the Solicitor, may modify this or any other provision of 
these rules with respect to the contents of the right-of-use instrument.



Sec. 429.10  Decisions and appeals.

    (a) The Regional Director, acting as designee of the Commissioner, 
shall make the determinations required under these rules and 
regulations. A party directly affected by such determinations may appeal 
in writing to the Commissioner, Bureau of Reclamation, within 30 days of 
receipt of the Regional Director's determinations. The affected party 
shall have an additional 30 days thereafter within which to submit a 
supporting brief memorandum to the Commissioner. The Regional Director's 
determinations will be held in abeyance until the Commissioner has 
reviewed the matter and rendered a decision.
    (b) Any party to a case adversely affected by final decision of the 
Commissioner of the Bureau of Reclamation, under this part, shall have a 
right of appeal to the Director, Office of Hearing and Appeals, Office 
of the Secretary, in accordance with the procedures in title 43 CFR part 
4, subpart G.



Sec. 429.11  Addresses.

    Regional Director,
    Pacific Northwest Region,
    Bureau of Reclamation,
    Federal Building, U.S. Court House,
    550 W. Fort Street,
    Boise, Idaho 83724

    Regional Director,
    Lower Colorado Region,
    Bureau of Reclamation,
    Nevada Highway and Park Street,
    Boulder City, Nevada 89005

    Regional Director,
    Southwest Region,
    Bureau of Reclamation,
    Commerce Building,
    714 S. Tyler, Suite 201,
    Amarillo, Texas 79101

    Regional Director,
    Lower Missouri Region,
    Bureau of Reclamation,
    Building 20, Denver Federal Center,
    Denver, Colorado 80225

    Regional Director,
    Mid-Pacific Region,
    Bureau of Reclamation,
    Federal Office Building,
    2800 Cottage Way,
    Sacramento, California 95825

    Regional Director,
    Upper Colorado Region,
    Bureau of Reclamation,
    125 S. State Street,
    Salt Lake City, Utah 84147

    Regional Director,
    Upper Missouri Region,
    Bureau of Reclamation,
    Federal Office Building,
    316 N. 26th Street,
    Billings, Montana 59103



PART 430--RULES FOR MANAGEMENT OF LAKE BERRYESSA--Table of Contents




    Authority: Title VII, Pub. L. 93-493, 88 Stat. 1494.



Sec. 430.1  Concessioners' appeal procedures.

    The procedures detailed in title 43 CFR part 4, subpart G, are made 
applicable to the concessioners at Lake Berryessa, Napa County, 
California, as the procedure to follow in appealing decisions of the 
contracting officer of the Bureau of Reclamation, Department of the 
Interior, or his authorized representatives on disputed questions 
concerning termination for default or

[[Page 641]]

unsatisfactory performance under the concession contracts.

[40 FR 27658, July 1, 1975]



PART 431--GENERAL REGULATIONS FOR POWER GENERATION, OPERATION, MAINTENANCE, AND REPLACEMENT AT THE BOULDER CANYON PROJECT, ARIZONA/NEVADA--Table of Contents




Sec.
431.1  Purpose.
431.2  Scope.
431.3  Definitions.
431.4  Power generation responsibilities.
431.5  Cost data and fund requirements.
431.6  Power generation estimates.
431.7  Administration and management of the Colorado River Dam Fund.
431.8  Disputes.
431.9  Future regulations.

    Authority: Reclamation Act of 1902 (32 Stat. 388), Boulder Canyon 
Project Act of 1928 (43 U.S.C. 617 et seq.), Boulder Canyon Project 
Adjustment Act of 1940 (43 U.S.C. 618 et seq.), Colorado River Storage 
Project Act of 1956 (43 U.S.C. 620 et seq.), Colorado River Basin 
Project Act of 1968 (43 U.S.C. 1501 et seq.), and Hoover Power Plant Act 
of 1984 (98 Stat. 1333).

    Source: 51 FR 23962, July 1, 1986, unless otherwise noted.



Sec. 431.1  Purpose.

    (a) The Secretary of the Interior (Secretary), acting through the 
Commissioner of Reclamation (Commissioner), is authorized and directed 
to operate, maintain, and replace the facilities at the Hoover 
Powerplant, and also to promulgate regulations as the Secretary finds 
necessary and appropriate in accordance with the authorities in the 
Reclamation Act of 1902, and all acts amendatory thereof and 
supplementary thereto.
    (b) In accordance with the Boulder Canyon Project Act of 1928, as 
amended and supplemented (Project Act), the Boulder Canyon Project 
Adjustment Act of 1940, as amended and supplemented (Adjustment Act), 
and the Hoover Power Plant Act of 1984 (Hoover Power Plant Act), the 
Bureau of Reclamation (Reclamation) promulgates these ``General 
Regulations for Power Generation, Operation, Maintenance, and 
Replacement at the Boulder Canyon Project, Arizona/Nevada'' (General 
Regulations) which include procedures to be used in providing 
Contractors and the Western Area Power Administration (Western) with 
cost data and power generation estimates, a statement of the 
requirements for administration and management of the Colorado River Dam 
Fund (Fund), and methods for resolving disputes.



Sec. 431.2  Scope.

    These General Regulations shall be effective on June 1, 1987, and 
shall apply to power generation, operation, maintenance, and replacement 
activities at the Boulder Canyon Project after May 31, 1987. ``General 
Regulations for the Charges for the Sale of Power from the Boulder 
Canyon Project'' are the subject of a separate rule, under 10 CFR part 
904, by the Secretary of Energy, acting by and through the Administrator 
of Western. The ``General Regulations for Generation and Sale of Power 
in Accordance with the Boulder Canyon Project Adjustment Act,'' dated 
May 20, 1941, and the ``General Regulations for Lease of Power,'' dated 
April 25, 1930, terminate May 31, 1987.



Sec. 431.3  Definitions.

    As used in this part:
    Additions and betterments shall mean such work, materials, 
equipment, or facilities which enhance or improve the Project and do 
more than restore the Project to a former good operating condition.
    Colorado River Dam Fund or Fund shall mean that special fund 
established by section 2 of the Project Act and which is to be used only 
for the purposes specified in the Project Act, the Adjustment Act, the 
Colorado River Basin Project Act, and the Hoover Power Plant Act.
    Contractor shall mean any entity which has a fully executed contract 
with Western for electric service pursuant to the Hoover Power Plant 
Act.
    Project or Boulder Canyon Project shall mean all works authorized by 
the Project Act, the Hoover Power Plant Act, and any future additions 
authorized by Congress, to be constructed and

[[Page 642]]

owned by the United States, but exclusive of the main canal and 
appurtenances authorized by the Project Act, now known as the All-
American Canal.
    Replacements shall mean such work, materials, equipment, or 
facilities as determined by the United States to be necessary to keep 
the Project in good operating condition, but shall not include (except 
where used in conjunction with the word ``emergency'' or the phrase 
``however necessitated'') work, materials, equipment, or facilities made 
necessary by any act of God, or of the public enemy, or by any major 
catastrophe.
    Uprating Program shall mean the program authorized by section 101(a) 
of the Hoover Power Plant Act for increasing the capacity of existing 
generating equipment and appurtenances at Hoover Powerplant, as 
generally described in the report of Reclamation, entitled ``Hoover 
Powerplant Uprating, Special Report,'' issued in May 1980, supplemented 
in January 1985, and further supplemented in September 1985.



Sec. 431.4  Power generation responsibilities.

    (a) Power generation, and the associated operation, maintenance, and 
making of replacements, however necessitated, of facilities and 
equipment at the Hoover Powerplant, are the responsibilities of 
Reclamation.
    (b) Subject to the statutory requirement that Hoover Dam and Lake 
Mead shall be used: First, for river regulation, improvement of 
navigation and flood control; second, for irrigation and domestic uses 
and satisfaction of present perfected rights mentioned in section 6 of 
the Project Act; and third, for power, Reclamation shall release water, 
make available generating capacity, and generate energy, in such 
quantities, and at such times, as are necessary for the delivery of the 
capacity and energy to which Contractors are entitled.
    (c) Reclamation reserves the right to reschedule, temporarily 
discontinue, reduce, or increase the delivery of water for the 
generation of electrical energy at any time for the purpose of 
maintenance, repairs, and/or replacements, and for investigations and 
inspections necessary thereto, or to allow for changing reservoir and 
river conditions, or for changes in kilowatthours generation per acre-
foot, or by reason of compliance with the statutory requirement as 
referred to in paragraph (b) of this section; Provided, however, That 
Reclamation shall, except in case of emergency, give Western reasonable 
notice in advance of any change in delivery of water, and that 
Reclamation shall make such inspections and perform such maintenance and 
repair work at such times and in such manner as to cause the least 
inconvenience possible to Contractors and that Reclamation shall 
prosecute such work with diligence and, without unnecessary delay, 
resume delivery of water as scheduled.
    (d) Should a Contractor have concerns regarding power generation and 
related matters and request a meeting in writing, including a 
description of areas of concern, Reclamation shall convene such meeting 
within 10 days of receipt of such request and shall notify all 
Contractors and Western of the date and location of the meeting, and the 
areas of concern to be discussed.

[51 FR 23962, July 1, 1986; 51 FR 24531, July 7, 1986]



Sec. 431.5  Cost data and fund requirements.

    Reclamation shall submit annually on or before April 15 to Western 
and Contractors, cost data, including one year of actual costs for the 
last completed fiscal year and estimated costs for the next 5 fiscal 
years, for operation, maintenance, replacements, additions and 
betterments, non-Federal funds advanced for the uprating program by non-
Federal purchasers, and interest on and amortization of the Federal 
investment. Such cost data shall identify major items. Upon 5 days prior 
written notice to Reclamation, any Contractor shall have the right, 
subject to applicable Federal laws and regulations, to review records 
used to prepare such cost data at Reclamation offices during regular 
business hours. Contractors shall have an opportunity to present written 
views within 30 days of the transmittal of the cost data. Reclamation 
responses to written views shall be provided within 60 days

[[Page 643]]

of transmittal of the cost data or 30 days after a meeting with 
Contractors convened pursuant to Sec. 431.4(d), whichever is later.



Sec. 431.6  Power generation estimates.

    Reclamation shall submit annually on or before April 15 to Western 
and Contractors, an estimated annual operation schedule for the Hoover 
Powerplant showing estimated power generation and estimated maintenance 
outages for review, and shall provide an opportunity to present written 
views within 30 days of the transmittal of the schedule. Reclamation 
responses to written views shall be provided within 60 days of the 
transmittal of the schedule or 30 days after a meeting with Contractors 
convened pursuant to Sec. 431.4(d), whichever is later. The estimated 
annual operation schedule of Hoover Powerplant shall be subject to 
necessary modifications, in accordance with Sec. 431.4(c). Upon 5 days 
prior written notice to Reclamation, any Contractor shall have the 
right, subject to applicable Federal laws and regulations, to review 
records used to prepare such power generation estimates at Reclamation 
offices during regular business hours.



Sec. 431.7  Administration and management of the Colorado River Dam Fund.

    Reclamation is responsible for the repayment of the Project and the 
administration of the Colorado River Dam Fund and the Lower Colorado 
River Basin Development Fund.
    (a) All receipts to the Project shall be deposited in the Fund along 
with electric service revenues deposited by Western and shall be 
available without further appropriation for:
    (1) Defraying the costs of operation (including purchase of 
supplemental energy to meet temporary deficiencies in firm energy which 
the Secretary of Energy is obligated by contract to supply), 
maintenance, and replacements of all Project facilities, including 
emergency replacements necessary to insure continuous operations;
    (2) Payment of annual interest on the unpaid investments in 
accordance with appropriate statutory authorities;
    (3) Repayment of capital investments including amounts readvanced 
from the Treasury;
    (4) Payments to the States of Arizona and Nevada as provided in 
section 2(c) of the Adjustment Act and section 403(c)(2) of the Colorado 
River Basin Project Act;
    (5) Transfers to the Lower Colorado River Basin Development Fund and 
subsequent transfers to the Upper Colorado River Basin Fund, as provided 
in section 403(c)(2) of the Colorado River Basin Project Act and section 
102(c) of the Hoover Power Plant Act, as reimbursement for the monies 
expended heretofore from the Upper Colorado River Basin Fund to meet 
deficiencies in generation at Hoover Dam during the filling period of 
storage units of the Colorado River Storage Project in accordance with 
the provisions of sections 403(g) and 502 of the Colorado River Basin 
Project Act, such transfers, totalling $27,591,621.25, to be effected by 
17 annual payments of $1,532,868.00 beginning in 1988 and a final 
payment of $1,532,865.25 in 2005; and
    (6) Any other purposes authorized by existing and future Federal 
law.
    (b) Appropriations for the visitor facilities program and any other 
purposes authorized by existing and future Federal law advanced or 
readvanced to the Fund shall be disbursed from the Fund for those 
purposes.
    (c) All funds advanced by non-Federal Contractors for the Uprating 
Program shall be deposited in the Fund, shall be available without 
further appropriation, and shall be disbursed from the Fund to 
accomplish the Uprating Program.
    (d) The Fund shall be administered and managed in accordance with 
applicable Federal laws and regulations, by the Secretary acting through 
the Commissioner.

[51 FR 23962, July 1, 1986; 51 FR 24531, July 7, 1986]



Sec. 431.8  Disputes.

    (a) All actions by Reclamation or the Secretary shall be binding 
unless and until reversed or modified in accordance with the provisions 
herein.
    (b) Any disputes or disagreements as to interpretation or 
performance of the

[[Page 644]]

provisions of these General Regulations under the responsibility of the 
Secretary shall first be presented to and decided by the Commissioner. 
The Commissioner shall be deemed to have denied the Contractor's 
contention or claim if it is not acted upon within 60 days of its having 
been presented. The decision of the Commissioner shall be subject to 
appeal to the Secretary by a notice of appeal accompanied by a statement 
of reasons filed with the Secretary within 30 days after such decision. 
The Secretary shall be deemed to have denied the appeal if it is not 
acted upon within 60 days of its having been presented.
    (c) The decision of the Secretary shall be final unless, within 30 
days from the date of such decision, a written request for arbitration 
is received by the Secretary. The Secretary shall have 90 days from the 
date of receipt of a request for arbitration either to concur in or deny 
in writing the request for such arbitration. Failure by the Secretary to 
take any action within the 90 day period shall be deemed a denial of the 
request for arbitration. In the event of a denial of a request for 
arbitration, the decision of the Secretary shall become final. Upon a 
decision becoming final, the disputing Contractor's remedy lies with the 
appropriate Federal court. Any claim that a final decision of the 
Secretary violates any right accorded the Contractor under the Project 
Act, the Adjustment Act, or title I of the Hoover Power Plant Act is 
barred unless suit asserting such claim is filed in a Federal court of 
competent jurisdiction within one year after final refusal by the 
Secretary to correct the action complained of, in accordance with 
section 105(h) of the Hoover Power Plant Act.
    (d) When a timely request for arbitration is received by the 
Secretary and the Secretary concurs in the request, the disputing 
Contractor and the Secretary shall, within 30 days of receipt of such 
notice of concurrence, each name one arbitrator to the panel of 
arbitrators which will decide the dispute. All arbitrators shall be 
skilled and experienced in the field pertaining to the dispute. In the 
event there is more than one disputing Contractor in addition to the 
Secretary, the disputing Contractors shall collectively name one 
arbitrator to the panel of arbitrators. In the event of their failure 
collectively to name such arbitrator within 15 days after their first 
meeting, that arbitrator shall be named as provided in the Commercial 
Arbitration Rules of the American Arbitration Association. The two 
arbitrators thus selected shall name a third arbitrator within 30 days 
of their first meeting. In the event of their failure to so name such 
third arbitrator, that arbitrator shall be named as provided in the 
Commercial Arbitration Rules of the American Arbitration Association. 
The third arbitrator shall act as chairperson of the panel. The 
arbitration shall be governed by the Commercial Arbitration Rules of the 
American Arbitration Association. The arbitration shall be limited to 
the issue submitted. The panel of arbitrators shall render a final 
decision in this dispute within 60 days after the date of the naming of 
the third arbitrator. A decision of any two of the three arbitrators 
named to the panel shall be final and binding on all parties involved in 
the dispute.



Sec. 431.9  Future regulations.

    (a) Reclamation may from time to time promulgate additional or 
amendatory regulations deemed necessary for the administration of the 
Project, in accordance with applicable law; Provided, That no right 
under any contract made under the Hoover Power Plant Act shall be 
impaired or obligation thereunder be extended thereby.
    (b) Any modification, extension, or waiver of any provision of these 
General Regulations granted for the benefit of any one or more 
Contractors shall not be denied to any other Contractor.

                        PARTS 432-999 [RESERVED]


[[Page 645]]



                              FINDING AIDS




  --------------------------------------------------------------------

  A list of CFR titles, subtitles, chapters, subchapters and parts and 
an alphabetical list of agencies publishing in the CFR are included in 
the CFR Index and Finding Aids volume to the Code of Federal Regulations 
which is published separately and revised annually.

  Material Approved for Incorporation by Reference
  Table of CFR Titles and Chapters
  Alphabetical List of Agencies Appearing in the CFR
  List of CFR Sections Affected

[[Page 647]]

            Material Approved for Incorporation by Reference

                     (Revised as of October 1, 2002)

  The Director of the Federal Register has approved under 5 U.S.C. 
552(a) and 1 CFR part 51 the incorporation by reference of the following 
publications. This list contains only those incorporations by reference 
effective as of the revision date of this volume. Incorporations by 
reference found within a regulation are effective upon the effective 
date of that regulation. For more information on incorporation by 
reference, see the preliminary pages of this volume.


43 CFR (PARTS 1-999)

OFFICE OF THE SECRETARY OF THE INTERIOR, DEPARTMENT OF THE INTERIOR
                                                                  43 CFR


American Fisheries Society

  5410 Grosvenor Lane, Bethesda, MD 20814
Monetary Values of Freshwater Fish and Fish-Kill                 11.18; 
  Counting Guidelines, Special Publication No. 13,   11.62(f)(4)(i)(B); 
  Part II, Fish-Kill Counting Guidelines.            11.71(1)(5)(iii)(A)


Department of the Interior

  1801 C St., N.W., Washington, DC 20240
  Also available from the National Technical 
  Information Service (NTIS, 5285 Port Royal Road, 
  Springfield, VA 22161 (703) 487-4650, FAX: (703) 
  487-4142
Economic and Environmental Principles and             11.18; 11.83(a)(3)
  Guidelines for Water and Related Land Resources 
  Implementation Studies, Chapter II, Section 
  VIII, Appendix 1 ``Travel Cost Method'', 
  Appendix 2 ``Contingent Value Method'', and 
  Appendix 3 ``Unit Day Value Method''.
The CERCLA Type A Natural Resource Damage                  11.18(a)(4); 
  Assessment Model for Coastal and Marine           11.34(a); 11.34(b); 
  Environments, Technical Documentation, Volumes    11.34(e); 11.35(a); 
  I-VI, dated April 1996 (NRDAM/CME technical       11.36(b); 11.40(a); 
  document), including Revision 1, dated October       11.42(a); App. II
  1997, and Revision II dated December 1999.
The CERCLA Type A Natural Resource Damage           11.18(a); 11.34(a); 
  Assessment Model for Great Lakes Environments,    11.34(b); 11.34(e); 
  Technical Documentation, Volumes I-IV, dated      11.35(a); 11.36(b); 
  April 1996 (NRDAM/GLE), including Revision 1,     11.40(a); 11.42(a); 
  dated October 1997, and Revision II dated                      App. II
  December 1999.


Interagency Land Acquisition Conference

  Washington, DC
  Available from the Superintendent of Documents, 
  U.S. Government Printing Office, Washington, DC 
  20402, Telephone 202-512-1800
Uniform Appraisal Standards for Federal Land       11.18; 11.83(c)(2)(i)
  Acquisition.



[[Page 649]]



                    Table of CFR Titles and Chapters




                     (Revised as of October 1, 2002)

                      Title 1--General Provisions

         I  Administrative Committee of the Federal Register 
                (Parts 1--49)
        II  Office of the Federal Register (Parts 50--299)
        IV  Miscellaneous Agencies (Parts 400--500)

                          Title 2  [Reserved]

                        Title 3--The President

         I  Executive Office of the President (Parts 100--199)

                           Title 4--Accounts

         I  General Accounting Office (Parts 1--99)

                   Title 5--Administrative Personnel

         I  Office of Personnel Management (Parts 1--1199)
        II  Merit Systems Protection Board (Parts 1200--1299)
       III  Office of Management and Budget (Parts 1300--1399)
         V  The International Organizations Employees Loyalty 
                Board (Parts 1500--1599)
        VI  Federal Retirement Thrift Investment Board (Parts 
                1600--1699)
      VIII  Office of Special Counsel (Parts 1800--1899)
        IX  Appalachian Regional Commission (Parts 1900--1999)
        XI  Armed Forces Retirement Home (Part 2100)
       XIV  Federal Labor Relations Authority, General Counsel of 
                the Federal Labor Relations Authority and Federal 
                Service Impasses Panel (Parts 2400--2499)
        XV  Office of Administration, Executive Office of the 
                President (Parts 2500--2599)
       XVI  Office of Government Ethics (Parts 2600--2699)
       XXI  Department of the Treasury (Parts 3100--3199)
      XXII  Federal Deposit Insurance Corporation (Part 3201)
     XXIII  Department of Energy (Part 3301)
      XXIV  Federal Energy Regulatory Commission (Part 3401)
       XXV  Department of the Interior (Part 3501)
      XXVI  Department of Defense (Part 3601)

[[Page 650]]

    XXVIII  Department of Justice (Part 3801)
      XXIX  Federal Communications Commission (Parts 3900--3999)
       XXX  Farm Credit System Insurance Corporation (Parts 4000--
                4099)
      XXXI  Farm Credit Administration (Parts 4100--4199)
    XXXIII  Overseas Private Investment Corporation (Part 4301)
      XXXV  Office of Personnel Management (Part 4501)
        XL  Interstate Commerce Commission (Part 5001)
       XLI  Commodity Futures Trading Commission (Part 5101)
      XLII  Department of Labor (Part 5201)
     XLIII  National Science Foundation (Part 5301)
       XLV  Department of Health and Human Services (Part 5501)
      XLVI  Postal Rate Commission (Part 5601)
     XLVII  Federal Trade Commission (Part 5701)
    XLVIII  Nuclear Regulatory Commission (Part 5801)
         L  Department of Transportation (Part 6001)
       LII  Export-Import Bank of the United States (Part 6201)
      LIII  Department of Education (Parts 6300--6399)
       LIV  Environmental Protection Agency (Part 6401)
      LVII  General Services Administration (Part 6701)
     LVIII  Board of Governors of the Federal Reserve System (Part 
                6801)
       LIX  National Aeronautics and Space Administration (Part 
                6901)
        LX  United States Postal Service (Part 7001)
       LXI  National Labor Relations Board (Part 7101)
      LXII  Equal Employment Opportunity Commission (Part 7201)
     LXIII  Inter-American Foundation (Part 7301)
       LXV  Department of Housing and Urban Development (Part 
                7501)
      LXVI  National Archives and Records Administration (Part 
                7601)
      LXIX  Tennessee Valley Authority (Part 7901)
      LXXI  Consumer Product Safety Commission (Part 8101)
    LXXIII  Department of Agriculture (Part 8301)
     LXXIV  Federal Mine Safety and Health Review Commission (Part 
                8401)
     LXXVI  Federal Retirement Thrift Investment Board (Part 8601)
    LXXVII  Office of Management and Budget (Part 8701)

                          Title 6  [Reserved]

              

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts 0--26)
            Subtitle B--Regulations of the Department of 
                Agriculture
         I  Agricultural Marketing Service (Standards, 
                Inspections, Marketing Practices), Department of 
                Agriculture (Parts 27--209)

[[Page 651]]

        II  Food and Nutrition Service, Department of Agriculture 
                (Parts 210--299)
       III  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 300--399)
        IV  Federal Crop Insurance Corporation, Department of 
                Agriculture (Parts 400--499)
         V  Agricultural Research Service, Department of 
                Agriculture (Parts 500--599)
        VI  Natural Resources Conservation Service, Department of 
                Agriculture (Parts 600--699)
       VII  Farm Service Agency, Department of Agriculture (Parts 
                700--799)
      VIII  Grain Inspection, Packers and Stockyards 
                Administration (Federal Grain Inspection Service), 
                Department of Agriculture (Parts 800--899)
        IX  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Fruits, Vegetables, Nuts), Department 
                of Agriculture (Parts 900--999)
         X  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Milk), Department of Agriculture 
                (Parts 1000--1199)
        XI  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Miscellaneous Commodities), Department 
                of Agriculture (Parts 1200--1299)
       XIV  Commodity Credit Corporation, Department of 
                Agriculture (Parts 1400--1499)
        XV  Foreign Agricultural Service, Department of 
                Agriculture (Parts 1500--1599)
       XVI  Rural Telephone Bank, Department of Agriculture (Parts 
                1600--1699)
      XVII  Rural Utilities Service, Department of Agriculture 
                (Parts 1700--1799)
     XVIII  Rural Housing Service, Rural Business-Cooperative 
                Service, Rural Utilities Service, and Farm Service 
                Agency, Department of Agriculture (Parts 1800--
                2099)
      XXVI  Office of Inspector General, Department of Agriculture 
                (Parts 2600--2699)
     XXVII  Office of Information Resources Management, Department 
                of Agriculture (Parts 2700--2799)
    XXVIII  Office of Operations, Department of Agriculture (Parts 
                2800--2899)
      XXIX  Office of Energy, Department of Agriculture (Parts 
                2900--2999)
       XXX  Office of the Chief Financial Officer, Department of 
                Agriculture (Parts 3000--3099)
      XXXI  Office of Environmental Quality, Department of 
                Agriculture (Parts 3100--3199)
     XXXII  Office of Procurement and Property Management, 
                Department of Agriculture (Parts 3200--3299)
    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts 3300--3399)
     XXXIV  Cooperative State Research, Education, and Extension 
                Service, Department of Agriculture (Parts 3400--
                3499)

[[Page 652]]

      XXXV  Rural Housing Service, Department of Agriculture 
                (Parts 3500--3599)
     XXXVI  National Agricultural Statistics Service, Department 
                of Agriculture (Parts 3600--3699)
    XXXVII  Economic Research Service, Department of Agriculture 
                (Parts 3700--3799)
   XXXVIII  World Agricultural Outlook Board, Department of 
                Agriculture (Parts 3800--3899)
       XLI  [Reserved]
      XLII  Rural Business-Cooperative Service and Rural Utilities 
                Service, Department of Agriculture (Parts 4200--
                4299)

                    Title 8--Aliens and Nationality

         I  Immigration and Naturalization Service, Department of 
                Justice (Parts 1--599)

                 Title 9--Animals and Animal Products

         I  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 1--199)
        II  Grain Inspection, Packers and Stockyards 
                Administration (Packers and Stockyards Programs), 
                Department of Agriculture (Parts 200--299)
       III  Food Safety and Inspection Service, Department of 
                Agriculture (Parts 300--599)

                           Title 10--Energy

         I  Nuclear Regulatory Commission (Parts 0--199)
        II  Department of Energy (Parts 200--699)
       III  Department of Energy (Parts 700--999)
         X  Department of Energy (General Provisions) (Parts 1000-
                -1099)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)
     XVIII  Northeast Interstate Low-Level Radioactive Waste 
                Commission (Part 1800)

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)

                      Title 12--Banks and Banking

         I  Comptroller of the Currency, Department of the 
                Treasury (Parts 1--199)
        II  Federal Reserve System (Parts 200--299)
       III  Federal Deposit Insurance Corporation (Parts 300--399)
        IV  Export-Import Bank of the United States (Parts 400--
                499)

[[Page 653]]

         V  Office of Thrift Supervision, Department of the 
                Treasury (Parts 500--599)
        VI  Farm Credit Administration (Parts 600--699)
       VII  National Credit Union Administration (Parts 700--799)
      VIII  Federal Financing Bank (Parts 800--899)
        IX  Federal Housing Finance Board (Parts 900--999)
        XI  Federal Financial Institutions Examination Council 
                (Parts 1100--1199)
       XIV  Farm Credit System Insurance Corporation (Parts 1400--
                1499)
        XV  Department of the Treasury (Parts 1500--1599)
      XVII  Office of Federal Housing Enterprise Oversight, 
                Department of Housing and Urban Development (Parts 
                1700--1799)
     XVIII  Community Development Financial Institutions Fund, 
                Department of the Treasury (Parts 1800--1899)

               Title 13--Business Credit and Assistance

         I  Small Business Administration (Parts 1--199)
       III  Economic Development Administration, Department of 
                Commerce (Parts 300--399)
        IV  Emergency Steel Guarantee Loan Board (Parts 400--499)
         V  Emergency Oil and Gas Guaranteed Loan Board (Parts 
                500--599)

                    Title 14--Aeronautics and Space

         I  Federal Aviation Administration, Department of 
                Transportation (Parts 1--199)
        II  Office of the Secretary, Department of Transportation 
                (Aviation Proceedings) (Parts 200--399)
       III  Commercial Space Transportation, Federal Aviation 
                Administration, Department of Transportation 
                (Parts 400--499)
         V  National Aeronautics and Space Administration (Parts 
                1200--1299)
        VI  Air Transportation System Stabilization (Parts 1300--
                1399)

                 Title 15--Commerce and Foreign Trade

            Subtitle A--Office of the Secretary of Commerce (Parts 
                0--29)
            Subtitle B--Regulations Relating to Commerce and 
                Foreign Trade
         I  Bureau of the Census, Department of Commerce (Parts 
                30--199)
        II  National Institute of Standards and Technology, 
                Department of Commerce (Parts 200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Foreign-Trade Zones Board, Department of Commerce 
                (Parts 400--499)

[[Page 654]]

       VII  Bureau of Industry and Security, Department of 
                Commerce (Parts 700--799)
      VIII  Bureau of Economic Analysis, Department of Commerce 
                (Parts 800--899)
        IX  National Oceanic and Atmospheric Administration, 
                Department of Commerce (Parts 900--999)
        XI  Technology Administration, Department of Commerce 
                (Parts 1100--1199)
      XIII  East-West Foreign Trade Board (Parts 1300--1399)
       XIV  Minority Business Development Agency (Parts 1400--
                1499)
            Subtitle C--Regulations Relating to Foreign Trade 
                Agreements
        XX  Office of the United States Trade Representative 
                (Parts 2000--2099)
            Subtitle D--Regulations Relating to Telecommunications 
                and Information
     XXIII  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                2300--2399)

                    Title 16--Commercial Practices

         I  Federal Trade Commission (Parts 0--999)
        II  Consumer Product Safety Commission (Parts 1000--1799)

             Title 17--Commodity and Securities Exchanges

         I  Commodity Futures Trading Commission (Parts 1--199)
        II  Securities and Exchange Commission (Parts 200--399)
        IV  Department of the Treasury (Parts 400--499)

          Title 18--Conservation of Power and Water Resources

         I  Federal Energy Regulatory Commission, Department of 
                Energy (Parts 1--399)
       III  Delaware River Basin Commission (Parts 400--499)
        VI  Water Resources Council (Parts 700--799)
      VIII  Susquehanna River Basin Commission (Parts 800--899)
      XIII  Tennessee Valley Authority (Parts 1300--1399)

                       Title 19--Customs Duties

         I  United States Customs Service, Department of the 
                Treasury (Parts 1--199)
        II  United States International Trade Commission (Parts 
                200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)

[[Page 655]]

                     Title 20--Employees' Benefits

         I  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 1--199)
        II  Railroad Retirement Board (Parts 200--399)
       III  Social Security Administration (Parts 400--499)
        IV  Employees' Compensation Appeals Board, Department of 
                Labor (Parts 500--599)
         V  Employment and Training Administration, Department of 
                Labor (Parts 600--699)
        VI  Employment Standards Administration, Department of 
                Labor (Parts 700--799)
       VII  Benefits Review Board, Department of Labor (Parts 800-
                -899)
      VIII  Joint Board for the Enrollment of Actuaries (Parts 
                900--999)
        IX  Office of the Assistant Secretary for Veterans' 
                Employment and Training, Department of Labor 
                (Parts 1000--1099)

                       Title 21--Food and Drugs

         I  Food and Drug Administration, Department of Health and 
                Human Services (Parts 1--1299)
        II  Drug Enforcement Administration, Department of Justice 
                (Parts 1300--1399)
       III  Office of National Drug Control Policy (Parts 1400--
                1499)

                      Title 22--Foreign Relations

         I  Department of State (Parts 1--199)
        II  Agency for International Development (Parts 200--299)
       III  Peace Corps (Parts 300--399)
        IV  International Joint Commission, United States and 
                Canada (Parts 400--499)
         V  Broadcasting Board of Governors (Parts 500--599)
       VII  Overseas Private Investment Corporation (Parts 700--
                799)
        IX  Foreign Service Grievance Board (Parts 900--999)
         X  Inter-American Foundation (Parts 1000--1099)
        XI  International Boundary and Water Commission, United 
                States and Mexico, United States Section (Parts 
                1100--1199)
       XII  United States International Development Cooperation 
                Agency (Parts 1200--1299)
       XIV  Foreign Service Labor Relations Board; Federal Labor 
                Relations Authority; General Counsel of the 
                Federal Labor Relations Authority; and the Foreign 
                Service Impasse Disputes Panel (Parts 1400--1499)
        XV  African Development Foundation (Parts 1500--1599)
       XVI  Japan-United States Friendship Commission (Parts 1600-
                -1699)
      XVII  United States Institute of Peace (Parts 1700--1799)

[[Page 656]]

                          Title 23--Highways

         I  Federal Highway Administration, Department of 
                Transportation (Parts 1--999)
        II  National Highway Traffic Safety Administration and 
                Federal Highway Administration, Department of 
                Transportation (Parts 1200--1299)
       III  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 1300--1399)

                Title 24--Housing and Urban Development

            Subtitle A--Office of the Secretary, Department of 
                Housing and Urban Development (Parts 0--99)
            Subtitle B--Regulations Relating to Housing and Urban 
                Development
         I  Office of Assistant Secretary for Equal Opportunity, 
                Department of Housing and Urban Development (Parts 
                100--199)
        II  Office of Assistant Secretary for Housing-Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 200--299)
       III  Government National Mortgage Association, Department 
                of Housing and Urban Development (Parts 300--399)
        IV  Office of Housing and Office of Multifamily Housing 
                Assistance Restructuring, Department of Housing 
                and Urban Development (Parts 400--499)
         V  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 500--599)
        VI  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 600--699) [Reserved]
       VII  Office of the Secretary, Department of Housing and 
                Urban Development (Housing Assistance Programs and 
                Public and Indian Housing Programs) (Parts 700--
                799)
      VIII  Office of the Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Section 8 Housing Assistance 
                Programs, Section 202 Direct Loan Program, Section 
                202 Supportive Housing for the Elderly Program and 
                Section 811 Supportive Housing for Persons With 
                Disabilities Program) (Parts 800--899)
        IX  Office of Assistant Secretary for Public and Indian 
                Housing, Department of Housing and Urban 
                Development (Parts 900--1699)
         X  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Interstate Land Sales 
                Registration Program) (Parts 1700--1799)
       XII  Office of Inspector General, Department of Housing and 
                Urban Development (Parts 2000--2099)
        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)
       XXV  Neighborhood Reinvestment Corporation (Parts 4100--
                4199)

[[Page 657]]

                           Title 25--Indians

         I  Bureau of Indian Affairs, Department of the Interior 
                (Parts 1--299)
        II  Indian Arts and Crafts Board, Department of the 
                Interior (Parts 300--399)
       III  National Indian Gaming Commission, Department of the 
                Interior (Parts 500--599)
        IV  Office of Navajo and Hopi Indian Relocation (Parts 
                700--799)
         V  Bureau of Indian Affairs, Department of the Interior, 
                and Indian Health Service, Department of Health 
                and Human Services (Part 900)
        VI  Office of the Assistant Secretary-Indian Affairs, 
                Department of the Interior (Parts 1000--1199)
       VII  Office of the Special Trustee for American Indians, 
                Department of the Interior (Part 1200)

                      Title 26--Internal Revenue

         I  Internal Revenue Service, Department of the Treasury 
                (Parts 1--899)

           Title 27--Alcohol, Tobacco Products and Firearms

         I  Bureau of Alcohol, Tobacco and Firearms, Department of 
                the Treasury (Parts 1--299)

                   Title 28--Judicial Administration

         I  Department of Justice (Parts 0--199)
       III  Federal Prison Industries, Inc., Department of Justice 
                (Parts 300--399)
         V  Bureau of Prisons, Department of Justice (Parts 500--
                599)
        VI  Offices of Independent Counsel, Department of Justice 
                (Parts 600--699)
       VII  Office of Independent Counsel (Parts 700--799)
      VIII  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 800--899)
        IX  National Crime Prevention and Privacy Compact Council 
                (Parts 900--999)
        XI  Department of Justice and Department of State (Parts 
                1100--1199)

                            Title 29--Labor

            Subtitle A--Office of the Secretary of Labor (Parts 0-
                -99)
            Subtitle B--Regulations Relating to Labor
         I  National Labor Relations Board (Parts 100--199)
        II  Office of Labor-Management Standards, Department of 
                Labor (Parts 200--299)
       III  National Railroad Adjustment Board (Parts 300--399)

[[Page 658]]

        IV  Office of Labor-Management Standards, Department of 
                Labor (Parts 400--499)
         V  Wage and Hour Division, Department of Labor (Parts 
                500--899)
        IX  Construction Industry Collective Bargaining Commission 
                (Parts 900--999)
         X  National Mediation Board (Parts 1200--1299)
       XII  Federal Mediation and Conciliation Service (Parts 
                1400--1499)
       XIV  Equal Employment Opportunity Commission (Parts 1600--
                1699)
      XVII  Occupational Safety and Health Administration, 
                Department of Labor (Parts 1900--1999)
        XX  Occupational Safety and Health Review Commission 
                (Parts 2200--2499)
       XXV  Pension and Welfare Benefits Administration, 
                Department of Labor (Parts 2500--2599)
     XXVII  Federal Mine Safety and Health Review Commission 
                (Parts 2700--2799)
        XL  Pension Benefit Guaranty Corporation (Parts 4000--
                4999)

                      Title 30--Mineral Resources

         I  Mine Safety and Health Administration, Department of 
                Labor (Parts 1--199)
        II  Minerals Management Service, Department of the 
                Interior (Parts 200--299)
       III  Board of Surface Mining and Reclamation Appeals, 
                Department of the Interior (Parts 300--399)
        IV  Geological Survey, Department of the Interior (Parts 
                400--499)
       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700--999)

                 Title 31--Money and Finance: Treasury

            Subtitle A--Office of the Secretary of the Treasury 
                (Parts 0--50)
            Subtitle B--Regulations Relating to Money and Finance
         I  Monetary Offices, Department of the Treasury (Parts 
                51--199)
        II  Fiscal Service, Department of the Treasury (Parts 200-
                -399)
        IV  Secret Service, Department of the Treasury (Parts 400-
                -499)
         V  Office of Foreign Assets Control, Department of the 
                Treasury (Parts 500--599)
        VI  Bureau of Engraving and Printing, Department of the 
                Treasury (Parts 600--699)
       VII  Federal Law Enforcement Training Center, Department of 
                the Treasury (Parts 700--799)
      VIII  Office of International Investment, Department of the 
                Treasury (Parts 800--899)
        IX  Federal Claims Collection Standards (Department of the 
                Treasury--Department of Justice) (Parts 900--999)

[[Page 659]]

                      Title 32--National Defense

            Subtitle A--Department of Defense
         I  Office of the Secretary of Defense (Parts 1--399)
         V  Department of the Army (Parts 400--699)
        VI  Department of the Navy (Parts 700--799)
       VII  Department of the Air Force (Parts 800--1099)
            Subtitle B--Other Regulations Relating to National 
                Defense
       XII  Defense Logistics Agency (Parts 1200--1299)
       XVI  Selective Service System (Parts 1600--1699)
     XVIII  National Counterintelligence Center (Parts 1800--1899)
       XIX  Central Intelligence Agency (Parts 1900--1999)
        XX  Information Security Oversight Office, National 
                Archives and Records Administration (Parts 2000--
                2099)
       XXI  National Security Council (Parts 2100--2199)
      XXIV  Office of Science and Technology Policy (Parts 2400--
                2499)
     XXVII  Office for Micronesian Status Negotiations (Parts 
                2700--2799)
    XXVIII  Office of the Vice President of the United States 
                (Parts 2800--2899)

               Title 33--Navigation and Navigable Waters

         I  Coast Guard, Department of Transportation (Parts 1--
                199)
        II  Corps of Engineers, Department of the Army (Parts 200-
                -399)
        IV  Saint Lawrence Seaway Development Corporation, 
                Department of Transportation (Parts 400--499)

                          Title 34--Education

            Subtitle A--Office of the Secretary, Department of 
                Education (Parts 1--99)
            Subtitle B--Regulations of the Offices of the 
                Department of Education
         I  Office for Civil Rights, Department of Education 
                (Parts 100--199)
        II  Office of Elementary and Secondary Education, 
                Department of Education (Parts 200--299)
       III  Office of Special Education and Rehabilitative 
                Services, Department of Education (Parts 300--399)
        IV  Office of Vocational and Adult Education, Department 
                of Education (Parts 400--499)
         V  Office of Bilingual Education and Minority Languages 
                Affairs, Department of Education (Parts 500--599)
        VI  Office of Postsecondary Education, Department of 
                Education (Parts 600--699)
       VII  Office of Educational Research and Improvement, 
                Department of Education (Parts 700--799)
        XI  National Institute for Literacy (Parts 1100--1199)
            Subtitle C--Regulations Relating to Education
       XII  National Council on Disability (Parts 1200--1299)

[[Page 660]]

                        Title 35--Panama Canal

         I  Panama Canal Regulations (Parts 1--299)

             Title 36--Parks, Forests, and Public Property

         I  National Park Service, Department of the Interior 
                (Parts 1--199)
        II  Forest Service, Department of Agriculture (Parts 200--
                299)
       III  Corps of Engineers, Department of the Army (Parts 300-
                -399)
        IV  American Battle Monuments Commission (Parts 400--499)
         V  Smithsonian Institution (Parts 500--599)
       VII  Library of Congress (Parts 700--799)
      VIII  Advisory Council on Historic Preservation (Parts 800--
                899)
        IX  Pennsylvania Avenue Development Corporation (Parts 
                900--999)
         X  Presidio Trust (Parts 1000--1099)
        XI  Architectural and Transportation Barriers Compliance 
                Board (Parts 1100--1199)
       XII  National Archives and Records Administration (Parts 
                1200--1299)
        XV  Oklahoma City National Memorial Trust (Part 1501)
       XVI  Morris K. Udall Scholarship and Excellence in National 
                Environmental Policy Foundation (Parts 1600--1699)

             Title 37--Patents, Trademarks, and Copyrights

         I  United States Patent and Trademark Office, Department 
                of Commerce (Parts 1--199)
        II  Copyright Office, Library of Congress (Parts 200--299)
        IV  Assistant Secretary for Technology Policy, Department 
                of Commerce (Parts 400--499)
         V  Under Secretary for Technology, Department of Commerce 
                (Parts 500--599)

           Title 38--Pensions, Bonuses, and Veterans' Relief

         I  Department of Veterans Affairs (Parts 0--99)

                       Title 39--Postal Service

         I  United States Postal Service (Parts 1--999)
       III  Postal Rate Commission (Parts 3000--3099)

                  Title 40--Protection of Environment

         I  Environmental Protection Agency (Parts 1--799)
        IV  Environmental Protection Agency and Department of 
                Justice (Parts 1400--1499)
         V  Council on Environmental Quality (Parts 1500--1599)
        VI  Chemical Safety and Hazard Investigation Board (Parts 
                1600--1699)

[[Page 661]]

       VII  Environmental Protection Agency and Department of 
                Defense; Uniform National Discharge Standards for 
                Vessels of the Armed Forces (Parts 1700--1799)

          Title 41--Public Contracts and Property Management

            Subtitle B--Other Provisions Relating to Public 
                Contracts
        50  Public Contracts, Department of Labor (Parts 50-1--50-
                999)
        51  Committee for Purchase From People Who Are Blind or 
                Severely Disabled (Parts 51-1--51-99)
        60  Office of Federal Contract Compliance Programs, Equal 
                Employment Opportunity, Department of Labor (Parts 
                60-1--60-999)
        61  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, Department of 
                Labor (Parts 61-1--61-999)
            Subtitle C--Federal Property Management Regulations 
                System
       101  Federal Property Management Regulations (Parts 101-1--
                101-99)
       102  Federal Management Regulation (Parts 102-1--102-299)
       105  General Services Administration (Parts 105-1--105-999)
       109  Department of Energy Property Management Regulations 
                (Parts 109-1--109-99)
       114  Department of the Interior (Parts 114-1--114-99)
       115  Environmental Protection Agency (Parts 115-1--115-99)
       128  Department of Justice (Parts 128-1--128-99)
            Subtitle D--Other Provisions Relating to Property 
                Management [Reserved]
            Subtitle E--Federal Information Resources Management 
                Regulations System
       201  Federal Information Resources Management Regulation 
                (Parts 201-1--201-99) [Reserved]
            Subtitle F--Federal Travel Regulation System
       300  General (Parts 300-1--300-99)
       301  Temporary Duty (TDY) Travel Allowances (Parts 301-1--
                301-99)
       302  Relocation Allowances (Parts 302-1--302-99)
       303  Payment of Expenses Connected with the Death of 
                Certain Employees (Part 303-70)
       304  Payment from a Non-Federal Source for Travel Expenses 
                (Parts 304-1--304-99)

                        Title 42--Public Health

         I  Public Health Service, Department of Health and Human 
                Services (Parts 1--199)
        IV  Centers for Medicare & Medicaid Services, Department 
                of Health and Human Services (Parts 400--499)
         V  Office of Inspector General-Health Care, Department of 
                Health and Human Services (Parts 1000--1999)

[[Page 662]]

                   Title 43--Public Lands: Interior

            Subtitle A--Office of the Secretary of the Interior 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Lands
         I  Bureau of Reclamation, Department of the Interior 
                (Parts 200--499)
        II  Bureau of Land Management, Department of the Interior 
                (Parts 1000--9999)
       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10005)

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency (Parts 0--399)
        IV  Department of Commerce and Department of 
                Transportation (Parts 400--499)

                       Title 45--Public Welfare

            Subtitle A--Department of Health and Human Services 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Welfare
        II  Office of Family Assistance (Assistance Programs), 
                Administration for Children and Families, 
                Department of Health and Human Services (Parts 
                200--299)
       III  Office of Child Support Enforcement (Child Support 
                Enforcement Program), Administration for Children 
                and Families, Department of Health and Human 
                Services (Parts 300--399)
        IV  Office of Refugee Resettlement, Administration for 
                Children and Families Department of Health and 
                Human Services (Parts 400--499)
         V  Foreign Claims Settlement Commission of the United 
                States, Department of Justice (Parts 500--599)
        VI  National Science Foundation (Parts 600--699)
       VII  Commission on Civil Rights (Parts 700--799)
      VIII  Office of Personnel Management (Parts 800--899)
         X  Office of Community Services, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 1000--1099)
        XI  National Foundation on the Arts and the Humanities 
                (Parts 1100--1199)
       XII  Corporation for National and Community Service (Parts 
                1200--1299)
      XIII  Office of Human Development Services, Department of 
                Health and Human Services (Parts 1300--1399)
       XVI  Legal Services Corporation (Parts 1600--1699)
      XVII  National Commission on Libraries and Information 
                Science (Parts 1700--1799)
     XVIII  Harry S. Truman Scholarship Foundation (Parts 1800--
                1899)
       XXI  Commission on Fine Arts (Parts 2100--2199)

[[Page 663]]

     XXIII  Arctic Research Commission (Part 2301)
      XXIV  James Madison Memorial Fellowship Foundation (Parts 
                2400--2499)
       XXV  Corporation for National and Community Service (Parts 
                2500--2599)

                          Title 46--Shipping

         I  Coast Guard, Department of Transportation (Parts 1--
                199)
        II  Maritime Administration, Department of Transportation 
                (Parts 200--399)
       III  Coast Guard (Great Lakes Pilotage), Department of 
                Transportation (Parts 400--499)
        IV  Federal Maritime Commission (Parts 500--599)

                      Title 47--Telecommunication

         I  Federal Communications Commission (Parts 0--199)
        II  Office of Science and Technology Policy and National 
                Security Council (Parts 200--299)
       III  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 300-
                -399)

           Title 48--Federal Acquisition Regulations System

         1  Federal Acquisition Regulation (Parts 1--99)
         2  Department of Defense (Parts 200--299)
         3  Department of Health and Human Services (Parts 300--
                399)
         4  Department of Agriculture (Parts 400--499)
         5  General Services Administration (Parts 500--599)
         6  Department of State (Parts 600--699)
         7  United States Agency for International Development 
                (Parts 700--799)
         8  Department of Veterans Affairs (Parts 800--899)
         9  Department of Energy (Parts 900--999)
        10  Department of the Treasury (Parts 1000--1099)
        12  Department of Transportation (Parts 1200--1299)
        13  Department of Commerce (Parts 1300--1399)
        14  Department of the Interior (Parts 1400--1499)
        15  Environmental Protection Agency (Parts 1500--1599)
        16  Office of Personnel Management Federal Employees 
                Health Benefits Acquisition Regulation (Parts 
                1600--1699)
        17  Office of Personnel Management (Parts 1700--1799)
        18  National Aeronautics and Space Administration (Parts 
                1800--1899)
        19  Broadcasting Board of Governors (Parts 1900--1999)
        20  Nuclear Regulatory Commission (Parts 2000--2099)

[[Page 664]]

        21  Office of Personnel Management, Federal Employees 
                Group Life Insurance Federal Acquisition 
                Regulation (Parts 2100--2199)
        23  Social Security Administration (Parts 2300--2399)
        24  Department of Housing and Urban Development (Parts 
                2400--2499)
        25  National Science Foundation (Parts 2500--2599)
        28  Department of Justice (Parts 2800--2899)
        29  Department of Labor (Parts 2900--2999)
        34  Department of Education Acquisition Regulation (Parts 
                3400--3499)
        35  Panama Canal Commission (Parts 3500--3599)
        44  Federal Emergency Management Agency (Parts 4400--4499)
        51  Department of the Army Acquisition Regulations (Parts 
                5100--5199)
        52  Department of the Navy Acquisition Regulations (Parts 
                5200--5299)
        53  Department of the Air Force Federal Acquisition 
                Regulation Supplement (Parts 5300--5399)
        54  Defense Logistics Agency, Department of Defense (Part 
                5452)
        57  African Development Foundation (Parts 5700--5799)
        61  General Services Administration Board of Contract 
                Appeals (Parts 6100--6199)
        63  Department of Transportation Board of Contract Appeals 
                (Parts 6300--6399)
        99  Cost Accounting Standards Board, Office of Federal 
                Procurement Policy, Office of Management and 
                Budget (Parts 9900--9999)

                       Title 49--Transportation

            Subtitle A--Office of the Secretary of Transportation 
                (Parts 1--99)
            Subtitle B--Other Regulations Relating to 
                Transportation
         I  Research and Special Programs Administration, 
                Department of Transportation (Parts 100--199)
        II  Federal Railroad Administration, Department of 
                Transportation (Parts 200--299)
       III  Federal Motor Carrier Safety Administration, 
                Department of Transportation (Parts 300--399)
        IV  Coast Guard, Department of Transportation (Parts 400--
                499)
         V  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 500--599)
        VI  Federal Transit Administration, Department of 
                Transportation (Parts 600--699)
       VII  National Railroad Passenger Corporation (AMTRAK) 
                (Parts 700--799)
      VIII  National Transportation Safety Board (Parts 800--999)
         X  Surface Transportation Board, Department of 
                Transportation (Parts 1000--1399)

[[Page 665]]

        XI  Bureau of Transportation Statistics, Department of 
                Transportation (Parts 1400--1499)
       XII  Transportation Security Administration, Department of 
                Transportation (Parts 1500--1599)

                   Title 50--Wildlife and Fisheries

         I  United States Fish and Wildlife Service, Department of 
                the Interior (Parts 1--199)
        II  National Marine Fisheries Service, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 200--299)
       III  International Fishing and Related Activities (Parts 
                300--399)
        IV  Joint Regulations (United States Fish and Wildlife 
                Service, Department of the Interior and National 
                Marine Fisheries Service, National Oceanic and 
                Atmospheric Administration, Department of 
                Commerce); Endangered Species Committee 
                Regulations (Parts 400--499)
         V  Marine Mammal Commission (Parts 500--599)
        VI  Fishery Conservation and Management, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 600--699)

                      CFR Index and Finding Aids

            Subject/Agency Index
            List of Agency Prepared Indexes
            Parallel Tables of Statutory Authorities and Rules
            List of CFR Titles, Chapters, Subchapters, and Parts
            Alphabetical List of Agencies Appearing in the CFR



[[Page 667]]





           Alphabetical List of Agencies Appearing in the CFR




                     (Revised as of October 1, 2002)

                                                  CFR Title, Subtitle or 
                     Agency                               Chapter

Administrative Committee of the Federal Register  1, I
Advanced Research Projects Agency                 32, I
Advisory Council on Historic Preservation         36, VIII
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development, United      22, II
     States
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, IX, X, XI
Agricultural Research Service                     7, V
Agriculture Department                            5, LXXIII
  Agricultural Marketing Service                  7, I, IX, X, XI
  Agricultural Research Service                   7, V
  Animal and Plant Health Inspection Service      7, III; 9, I
  Chief Financial Officer, Office of              7, XXX
  Commodity Credit Corporation                    7, XIV
  Cooperative State Research, Education, and      7, XXXIV
       Extension Service
  Economic Research Service                       7, XXXVII
  Energy, Office of                               7, XXIX
  Environmental Quality, Office of                7, XXXI
  Farm Service Agency                             7, VII, XVIII
  Federal Acquisition Regulation                  48, 4
  Federal Crop Insurance Corporation              7, IV
  Food and Nutrition Service                      7, II
  Food Safety and Inspection Service              9, III
  Foreign Agricultural Service                    7, XV
  Forest Service                                  36, II
  Grain Inspection, Packers and Stockyards        7, VIII; 9, II
       Administration
  Information Resources Management, Office of     7, XXVII
  Inspector General, Office of                    7, XXVI
  National Agricultural Library                   7, XLI
  National Agricultural Statistics Service        7, XXXVI
  Natural Resources Conservation Service          7, VI
  Operations, Office of                           7, XXVIII
  Procurement and Property Management, Office of  7, XXXII
  Rural Business-Cooperative Service              7, XVIII, XLII
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV
  Rural Telephone Bank                            7, XVI
  Rural Utilities Service                         7, XVII, XVIII, XLII
  Secretary of Agriculture, Office of             7, Subtitle A
  Transportation, Office of                       7, XXXIII
  World Agricultural Outlook Board                7, XXXVIII
Air Force Department                              32, VII
  Federal Acquisition Regulation Supplement       48, 53
Alcohol, Tobacco and Firearms, Bureau of          27, I
AMTRAK                                            49, VII
American Battle Monuments Commission              36, IV
American Indians, Office of the Special Trustee   25, VII
Animal and Plant Health Inspection Service        7, III; 9, I
Appalachian Regional Commission                   5, IX
Architectural and Transportation Barriers         36, XI
     Compliance Board
Arctic Research Commission                        45, XXIII

[[Page 668]]

Armed Forces Retirement Home                      5, XI
Army Department                                   32, V
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 51
Benefits Review Board                             20, VII
Bilingual Education and Minority Languages        34, V
     Affairs, Office of
Blind or Severely Disabled, Committee for         41, 51
     Purchase From People Who Are
Broadcasting Board of Governors                   22, V
  Federal Acquisition Regulation                  48, 19
Census Bureau                                     15, I
Centers for Medicare & Medicaid Services          42, IV
Central Intelligence Agency                       32, XIX
Chief Financial Officer, Office of                7, XXX
Child Support Enforcement, Office of              45, III
Children and Families, Administration for         45, II, III, IV, X
Civil Rights, Commission on                       45, VII
Civil Rights, Office for                          34, I
Coast Guard                                       33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage)                46, III
Commerce Department                               44, IV
  Census Bureau                                   15, I
  Economic Affairs, Under Secretary               37, V
  Economic Analysis, Bureau of                    15, VIII
  Economic Development Administration             13, III
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 13
  Fishery Conservation and Management             50, VI
  Foreign-Trade Zones Board                       15, IV
  Industry and Security, Bureau of                15, VII
  International Trade Administration              15, III; 19, III
  National Institute of Standards and Technology  15, II
  National Marine Fisheries Service               50, II, IV, VI
  National Oceanic and Atmospheric                15, IX; 50, II, III, IV, 
       Administration                             VI
  National Telecommunications and Information     15, XXIII; 47, III
       Administration
  National Weather Service                        15, IX
  Patent and Trademark Office, United States      37, I
  Productivity, Technology and Innovation,        37, IV
       Assistant Secretary for
  Secretary of Commerce, Office of                15, Subtitle A
  Technology, Under Secretary for                 37, V
  Technology Administration                       15, XI
  Technology Policy, Assistant Secretary for      37, IV
Commercial Space Transportation                   14, III
Commodity Credit Corporation                      7, XIV
Commodity Futures Trading Commission              5, XLI; 17, I
Community Planning and Development, Office of     24, V, VI
     Assistant Secretary for
Community Services, Office of                     45, X
Comptroller of the Currency                       12, I
Construction Industry Collective Bargaining       29, IX
     Commission
Consumer Product Safety Commission                5, LXXI; 16, II
Cooperative State Research, Education, and        7, XXXIV
     Extension Service
Copyright Office                                  37, II
Corporation for National and Community Service    45, XII, XXV
Cost Accounting Standards Board                   48, 99
Council on Environmental Quality                  40, V
Court Services and Offender Supervision Agency    28, VIII
     for the District of Columbia
Customs Service, United States                    19, I
Defense Contract Audit Agency                     32, I
Defense Department                                5, XXVI; 32, Subtitle A; 
                                                  40, VII
  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII

[[Page 669]]

  Army Department                                 32, V; 33, II; 36, III, 
                                                  48, 51
  Defense Intelligence Agency                     32, I
  Defense Logistics Agency                        32, I, XII; 48, 54
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 2
  National Imagery and Mapping Agency             32, I
  Navy Department                                 32, VI; 48, 52
  Secretary of Defense, Office of                 32, I
Defense Contract Audit Agency                     32, I
Defense Intelligence Agency                       32, I
Defense Logistics Agency                          32, XII; 48, 54
Defense Nuclear Facilities Safety Board           10, XVII
Delaware River Basin Commission                   18, III
District of Columbia, Court Services and          28, VIII
     Offender Supervision Agency for the
Drug Enforcement Administration                   21, II
East-West Foreign Trade Board                     15, XIII
Economic Affairs, Under Secretary                 37, V
Economic Analysis, Bureau of                      15, VIII
Economic Development Administration               13, III
Economic Research Service                         7, XXXVII
Education, Department of                          5, LIII
  Bilingual Education and Minority Languages      34, V
       Affairs, Office of
  Civil Rights, Office for                        34, I
  Educational Research and Improvement, Office    34, VII
       of
  Elementary and Secondary Education, Office of   34, II
  Federal Acquisition Regulation                  48, 34
  Postsecondary Education, Office of              34, VI
  Secretary of Education, Office of               34, Subtitle A
  Special Education and Rehabilitative Services,  34, III
       Office of
  Vocational and Adult Education, Office of       34, IV
Educational Research and Improvement, Office of   34, VII
Elementary and Secondary Education, Office of     34, II
Emergency Oil and Gas Guaranteed Loan Board       13, V
Emergency Steel Guarantee Loan Board              13, IV
Employees' Compensation Appeals Board             20, IV
Employees Loyalty Board                           5, V
Employment and Training Administration            20, V
Employment Standards Administration               20, VI
Endangered Species Committee                      50, IV
Energy, Department of                             5, XXIII; 10, II, III, X
  Federal Acquisition Regulation                  48, 9
  Federal Energy Regulatory Commission            5, XXIV; 18, I
  Property Management Regulations                 41, 109
Energy, Office of                                 7, XXIX
Engineers, Corps of                               33, II; 36, III
Engraving and Printing, Bureau of                 31, VI
Environmental Protection Agency                   5, LIV; 40, I, IV, VII
  Federal Acquisition Regulation                  48, 15
  Property Management Regulations                 41, 115
Environmental Quality, Office of                  7, XXXI
Equal Employment Opportunity Commission           5, LXII; 29, XIV
Equal Opportunity, Office of Assistant Secretary  24, I
     for
Executive Office of the President                 3, I
  Administration, Office of                       5, XV
  Environmental Quality, Council on               40, V
  Management and Budget, Office of                5, III, LXXVII; 14, VI; 
                                                  48, 99
  National Drug Control Policy, Office of         21, III
  National Security Council                       32, XXI; 47, 2
  Presidential Documents                          3
  Science and Technology Policy, Office of        32, XXIV; 47, II
  Trade Representative, Office of the United      15, XX
       States
Export-Import Bank of the United States           5, LII; 12, IV
Family Assistance, Office of                      45, II

[[Page 670]]

Farm Credit Administration                        5, XXXI; 12, VI
Farm Credit System Insurance Corporation          5, XXX; 12, XIV
Farm Service Agency                               7, VII, XVIII
Federal Acquisition Regulation                    48, 1
Federal Aviation Administration                   14, I
  Commercial Space Transportation                 14, III
Federal Claims Collection Standards               31, IX
Federal Communications Commission                 5, XXIX; 47, I
Federal Contract Compliance Programs, Office of   41, 60
Federal Crop Insurance Corporation                7, IV
Federal Deposit Insurance Corporation             5, XXII; 12, III
Federal Election Commission                       11, I
Federal Emergency Management Agency               44, I
  Federal Acquisition Regulation                  48, 44
Federal Employees Group Life Insurance Federal    48, 21
     Acquisition Regulation
Federal Employees Health Benefits Acquisition     48, 16
     Regulation
Federal Energy Regulatory Commission              5, XXIV; 18, I
Federal Financial Institutions Examination        12, XI
     Council
Federal Financing Bank                            12, VIII
Federal Highway Administration                    23, I, II
Federal Home Loan Mortgage Corporation            1, IV
Federal Housing Enterprise Oversight Office       12, XVII
Federal Housing Finance Board                     12, IX
Federal Labor Relations Authority, and General    5, XIV; 22, XIV
     Counsel of the Federal Labor Relations 
     Authority
Federal Law Enforcement Training Center           31, VII
Federal Management Regulation                     41, 102
Federal Maritime Commission                       46, IV
Federal Mediation and Conciliation Service        29, XII
Federal Mine Safety and Health Review Commission  5, LXXIV; 29, XXVII
Federal Motor Carrier Safety Administration       49, III
Federal Prison Industries, Inc.                   28, III
Federal Procurement Policy Office                 48, 99
Federal Property Management Regulations           41, 101
Federal Railroad Administration                   49, II
Federal Register, Administrative Committee of     1, I
Federal Register, Office of                       1, II
Federal Reserve System                            12, II
  Board of Governors                              5, LVIII
Federal Retirement Thrift Investment Board        5, VI, LXXVI
Federal Service Impasses Panel                    5, XIV
Federal Trade Commission                          5, XLVII; 16, I
Federal Transit Administration                    49, VI
Federal Travel Regulation System                  41, Subtitle F
Fine Arts, Commission on                          45, XXI
Fiscal Service                                    31, II
Fish and Wildlife Service, United States          50, I, IV
Fishery Conservation and Management               50, VI
Food and Drug Administration                      21, I
Food and Nutrition Service                        7, II
Food Safety and Inspection Service                9, III
Foreign Agricultural Service                      7, XV
Foreign Assets Control, Office of                 31, V
Foreign Claims Settlement Commission of the       45, V
     United States
Foreign Service Grievance Board                   22, IX
Foreign Service Impasse Disputes Panel            22, XIV
Foreign Service Labor Relations Board             22, XIV
Foreign-Trade Zones Board                         15, IV
Forest Service                                    36, II
General Accounting Office                         4, I
General Services Administration                   5, LVII; 41, 105
  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5
  Federal Management Regulation                   41, 102
  Federal Property Management Regulation          41, 101
  Federal Travel Regulation System                41, Subtitle F

[[Page 671]]

  General                                         41, 300
  Payment From a Non-Federal Source for Travel    41, 304
       Expenses
  Payment of Expenses Connected With the Death    41, 303
       of Certain Employees
  Relocation Allowances                           41, 302
  Temporary Duty (TDY) Travel Allowances          41, 301
Geological Survey                                 30, IV
Government Ethics, Office of                      5, XVI
Government National Mortgage Association          24, III
Grain Inspection, Packers and Stockyards          7, VIII; 9, II
     Administration
Harry S. Truman Scholarship Foundation            45, XVIII
Health and Human Services, Department of          5, XLV; 45, Subtitle A
  Centers for Medicare & Medicaid Services        42, IV
  Child Support Enforcement, Office of            45, III
  Children and Families, Administration for       45, II, III, IV, X
  Community Services, Office of                   45, X
  Family Assistance, Office of                    45, II
  Federal Acquisition Regulation                  48, 3
  Food and Drug Administration                    21, I
  Human Development Services, Office of           45, XIII
  Indian Health Service                           25, V
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
Housing and Urban Development, Department of      5, LXV; 24, Subtitle B
  Community Planning and Development, Office of   24, V, VI
       Assistant Secretary for
  Equal Opportunity, Office of Assistant          24, I
       Secretary for
  Federal Acquisition Regulation                  48, 24
  Federal Housing Enterprise Oversight, Office    12, XVII
       of
  Government National Mortgage Association        24, III
  Housing--Federal Housing Commissioner, Office   24, II, VIII, X, XX
       of Assistant Secretary for
  Housing, Office of, and Multifamily Housing     24, IV
       Assistance Restructuring, Office of
  Inspector General, Office of                    24, XII
  Public and Indian Housing, Office of Assistant  24, IX
       Secretary for
  Secretary, Office of                            24, Subtitle A, VII
Housing--Federal Housing Commissioner, Office of  24, II, VIII, X, XX
     Assistant Secretary for
Housing, Office of, and Multifamily Housing       24, IV
     Assistance Restructuring, Office of
Human Development Services, Office of             45, XIII
Immigration and Naturalization Service            8, I
Independent Counsel, Office of                    28, VII
Indian Affairs, Bureau of                         25, I, V
Indian Affairs, Office of the Assistant           25, VI
     Secretary
Indian Arts and Crafts Board                      25, II
Indian Health Service                             25, V
Industry and Security, Bureau of                  15, VII
Information Resources Management, Office of       7, XXVII
Information Security Oversight Office, National   32, XX
     Archives and Records Administration
Inspector General
  Agriculture Department                          7, XXVI
  Health and Human Services Department            42, V
  Housing and Urban Development Department        24, XII
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Interior Department
  American Indians, Office of the Special         25, VII
       Trustee
  Endangered Species Committee                    50, IV
  Federal Acquisition Regulation                  48, 14
  Federal Property Management Regulations System  41, 114
  Fish and Wildlife Service, United States        50, I, IV
  Geological Survey                               30, IV
  Indian Affairs, Bureau of                       25, I, V

[[Page 672]]

  Indian Affairs, Office of the Assistant         25, VI
       Secretary
  Indian Arts and Crafts Board                    25, II
  Land Management, Bureau of                      43, II
  Minerals Management Service                     30, II
  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Reclamation, Bureau of                          43, I
  Secretary of the Interior, Office of            43, Subtitle A
  Surface Mining and Reclamation Appeals, Board   30, III
       of
  Surface Mining Reclamation and Enforcement,     30, VII
       Office of
Internal Revenue Service                          26, I
International Boundary and Water Commission,      22, XI
     United States and Mexico, United States 
     Section
International Development, United States Agency   22, II
     for
  Federal Acquisition Regulation                  48, 7
International Development Cooperation Agency,     22, XII
     United States
International Fishing and Related Activities      50, III
International Investment, Office of               31, VIII
International Joint Commission, United States     22, IV
     and Canada
International Organizations Employees Loyalty     5, V
     Board
International Trade Administration                15, III; 19, III
International Trade Commission, United States     19, II
Interstate Commerce Commission                    5, XL
James Madison Memorial Fellowship Foundation      45, XXIV
Japan-United States Friendship Commission         22, XVI
Joint Board for the Enrollment of Actuaries       20, VIII
Justice Department                                5, XXVIII; 28, I, XI; 40, 
                                                  IV
  Drug Enforcement Administration                 21, II
  Federal Acquisition Regulation                  48, 28
  Federal Claims Collection Standards             31, IX
  Federal Prison Industries, Inc.                 28, III
  Foreign Claims Settlement Commission of the     45, V
       United States
  Immigration and Naturalization Service          8, I
  Offices of Independent Counsel                  28, VI
  Prisons, Bureau of                              28, V
  Property Management Regulations                 41, 128
Labor Department                                  5, XLII
  Benefits Review Board                           20, VII
  Employees' Compensation Appeals Board           20, IV
  Employment and Training Administration          20, V
  Employment Standards Administration             20, VI
  Federal Acquisition Regulation                  48, 29
  Federal Contract Compliance Programs, Office    41, 60
       of
  Federal Procurement Regulations System          41, 50
  Labor-Management Standards, Office of           29, II, IV
  Mine Safety and Health Administration           30, I
  Occupational Safety and Health Administration   29, XVII
  Pension and Welfare Benefits Administration     29, XXV
  Public Contracts                                41, 50
  Secretary of Labor, Office of                   29, Subtitle A
  Veterans' Employment and Training Service,      41, 61; 20, IX
       Office of the Assistant Secretary for
  Wage and Hour Division                          29, V
  Workers' Compensation Programs, Office of       20, I
Labor-Management Standards, Office of             29, II, IV
Land Management, Bureau of                        43, II
Legal Services Corporation                        45, XVI
Library of Congress                               36, VII
  Copyright Office                                37, II
Management and Budget, Office of                  5, III, LXXVII; 14, VI; 
                                                  48, 99
Marine Mammal Commission                          50, V
Maritime Administration                           46, II
Merit Systems Protection Board                    5, II

[[Page 673]]

Micronesian Status Negotiations, Office for       32, XXVII
Mine Safety and Health Administration             30, I
Minerals Management Service                       30, II
Minority Business Development Agency              15, XIV
Miscellaneous Agencies                            1, IV
Monetary Offices                                  31, I
Morris K. Udall Scholarship and Excellence in     36, XVI
     National Environmental Policy Foundation
National Aeronautics and Space Administration     5, LIX; 14, V
  Federal Acquisition Regulation                  48, 18
National Agricultural Library                     7, XLI
National Agricultural Statistics Service          7, XXXVI
National and Community Service, Corporation for   45, XII, XXV
National Archives and Records Administration      5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
National Bureau of Standards                      15, II
National Capital Planning Commission              1, IV
National Commission for Employment Policy         1, IV
National Commission on Libraries and Information  45, XVII
     Science
National Council on Disability                    34, XII
National Counterintelligence Center               32, XVIII
National Credit Union Administration              12, VII
National Crime Prevention and Privacy Compact     28, IX
     Council
National Drug Control Policy, Office of           21, III
National Foundation on the Arts and the           45, XI
     Humanities
National Highway Traffic Safety Administration    23, II, III; 49, V
National Imagery and Mapping Agency               32, I
National Indian Gaming Commission                 25, III
National Institute for Literacy                   34, XI
National Institute of Standards and Technology    15, II
National Labor Relations Board                    5, LXI; 29, I
National Marine Fisheries Service                 50, II, IV, VI
National Mediation Board                          29, X
National Oceanic and Atmospheric Administration   15, IX; 50, II, III, IV, 
                                                  VI
National Park Service                             36, I
National Railroad Adjustment Board                29, III
National Railroad Passenger Corporation (AMTRAK)  49, VII
National Science Foundation                       5, XLIII; 45, VI
  Federal Acquisition Regulation                  48, 25
National Security Council                         32, XXI
National Security Council and Office of Science   47, II
     and Technology Policy
National Telecommunications and Information       15, XXIII; 47, III
     Administration
National Transportation Safety Board              49, VIII
National Weather Service                          15, IX
Natural Resources Conservation Service            7, VI
Navajo and Hopi Indian Relocation, Office of      25, IV
Navy Department                                   32, VI
  Federal Acquisition Regulation                  48, 52
Neighborhood Reinvestment Corporation             24, XXV
Northeast Interstate Low-Level Radioactive Waste  10, XVIII
     Commission
Nuclear Regulatory Commission                     5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Offices of Independent Counsel                    28, VI
Oklahoma City National Memorial Trust             36, XV
Operations Office                                 7, XXVIII
Overseas Private Investment Corporation           5, XXXIII; 22, VII
Panama Canal Commission                           48, 35
Panama Canal Regulations                          35, I
Patent and Trademark Office, United States        37, I
Payment From a Non-Federal Source for Travel      41, 304
     Expenses
Payment of Expenses Connected With the Death of   41, 303
   Certain Employees
[[Page 674]]

Peace Corps                                       22, III
Pennsylvania Avenue Development Corporation       36, IX
Pension and Welfare Benefits Administration       29, XXV
Pension Benefit Guaranty Corporation              29, XL
Personnel Management, Office of                   5, I, XXXV; 45, VIII
  Federal Acquisition Regulation                  48, 17
  Federal Employees Group Life Insurance Federal  48, 21
       Acquisition Regulation
  Federal Employees Health Benefits Acquisition   48, 16
       Regulation
Postal Rate Commission                            5, XLVI; 39, III
Postal Service, United States                     5, LX; 39, I
Postsecondary Education, Office of                34, VI
President's Commission on White House             1, IV
     Fellowships
Presidential Documents                            3
Presidio Trust                                    36, X
Prisons, Bureau of                                28, V
Procurement and Property Management, Office of    7, XXXII
Productivity, Technology and Innovation,          37, IV
     Assistant Secretary
Public Contracts, Department of Labor             41, 50
Public and Indian Housing, Office of Assistant    24, IX
     Secretary for
Public Health Service                             42, I
Railroad Retirement Board                         20, II
Reclamation, Bureau of                            43, I
Refugee Resettlement, Office of                   45, IV
Regional Action Planning Commissions              13, V
Relocation Allowances                             41, 302
Research and Special Programs Administration      49, I
Rural Business-Cooperative Service                7, XVIII, XLII
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV
Rural Telephone Bank                              7, XVI
Rural Utilities Service                           7, XVII, XVIII, XLII
Saint Lawrence Seaway Development Corporation     33, IV
Science and Technology Policy, Office of          32, XXIV
Science and Technology Policy, Office of, and     47, II
     National Security Council
Secret Service                                    31, IV
Securities and Exchange Commission                17, II
Selective Service System                          32, XVI
Small Business Administration                     13, I
Smithsonian Institution                           36, V
Social Security Administration                    20, III; 48, 23
Soldiers' and Airmen's Home, United States        5, XI
Special Counsel, Office of                        5, VIII
Special Education and Rehabilitative Services,    34, III
     Office of
State Department                                  22, I; 28, XI
  Federal Acquisition Regulation                  48, 6
Surface Mining and Reclamation Appeals, Board of  30, III
Surface Mining Reclamation and Enforcement,       30, VII
     Office of
Surface Transportation Board                      49, X
Susquehanna River Basin Commission                18, VIII
Technology Administration                         15, XI
Technology Policy, Assistant Secretary for        37, IV
Technology, Under Secretary for                   37, V
Tennessee Valley Authority                        5, LXIX; 18, XIII
Thrift Supervision Office, Department of the      12, V
     Treasury
Trade Representative, United States, Office of    15, XX
Transportation, Department of                     5, L
  Coast Guard                                     33, I; 46, I; 49, IV
  Coast Guard (Great Lakes Pilotage)              46, III
  Commercial Space Transportation                 14, III
  Contract Appeals, Board of                      48, 63
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 12
  Federal Aviation Administration                 14, I
  Federal Highway Administration                  23, I, II

[[Page 675]]

  Federal Motor Carrier Safety Administration     49, III
  Federal Railroad Administration                 49, II
  Federal Transit Administration                  49, VI
  Maritime Administration                         46, II
  National Highway Traffic Safety Administration  23, II, III; 49, V
  Research and Special Programs Administration    49, I
  Saint Lawrence Seaway Development Corporation   33, IV
  Secretary of Transportation, Office of          14, II; 49, Subtitle A
  Surface Transportation Board                    49, X
  Transportation Security Administration          49, XII
  Transportation Statistics Bureau                49, XI
Transportation, Office of                         7, XXXIII
Transportation Security Administration            49, XII
Transportation Statistics Bureau                  49, XI
Travel Allowances, Temporary Duty (TDY)           41, 301
Treasury Department                               5, XXI; 12, XV; 17, IV; 
                                                  31, IX
  Alcohol, Tobacco and Firearms, Bureau of        27, I
  Community Development Financial Institutions    12, XVIII
       Fund
  Comptroller of the Currency                     12, I
  Customs Service, United States                  19, I
  Engraving and Printing, Bureau of               31, VI
  Federal Acquisition Regulation                  48, 10
  Federal Law Enforcement Training Center         31, VII
  Fiscal Service                                  31, II
  Foreign Assets Control, Office of               31, V
  Internal Revenue Service                        26, I
  International Investment, Office of             31, VIII
  Monetary Offices                                31, I
  Secret Service                                  31, IV
  Secretary of the Treasury, Office of            31, Subtitle A
  Thrift Supervision, Office of                   12, V
Truman, Harry S. Scholarship Foundation           45, XVIII
United States and Canada, International Joint     22, IV
     Commission
United States and Mexico, International Boundary  22, XI
     and Water Commission, United States Section
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs Department                       38, I
  Federal Acquisition Regulation                  48, 8
Veterans' Employment and Training Service,        41, 61; 20, IX
     Office of the Assistant Secretary for
Vice President of the United States, Office of    32, XXVIII
Vocational and Adult Education, Office of         34, IV
Wage and Hour Division                            29, V
Water Resources Council                           18, VI
Workers' Compensation Programs, Office of         20, I
World Agricultural Outlook Board                  7, XXXVIII

[[Page 677]]



List of CFR Sections Affected



All changes in this volume of the Code of Federal Regulations which were 
made by documents published in the Federal Register since January 1, 
2001, are enumerated in the following list. Entries indicate the nature 
of the changes effected. Page numbers refer to Federal Register pages. 
The user should consult the entries for chapters and parts as well as 
sections for revisions.
For the period before January 1, 2001, see the ``List of CFR Sections 
Affected, 1949-1963, 1964-1972, 1973-1985, 1986-2000'' published in 11 
separate volumes.

                                  2001

43 CFR
                                                                   66 FR
                                                                    Page
4.200--4.323  Undesignated center heading and sections revised.....67656
4.200--4.357 (Subpart D)  Authority citation revised...............32888
    Cross reference corrected......................................33740
4.201  Revised; interim............................................32888
    Corrected......................................................33740
4.202  Revised; interim............................................32888
    Corrected......................................................33740
4.210  Revised; interim............................................32889
4.234  Amended; interim............................................32889
4.241  Revised; interim............................................32889
4.243  Added; interim..............................................32889
4.250  (b) through (g) redesignated as (c) through (h); (a) 
        revised; (b) added; interim................................32889
4.251  Revised; interim............................................32889
    (a), (b)(4) and (d) corrected..................................33740
4.270  Revised; interim............................................32890
    Corrected......................................................33740
4.271  Removed; new 4.271 redesignated from 4.272; interim.........32890
4.272  Redesignated as 4.271; new 4.272 redesignated from 4.273; 
        interim....................................................32890
4.273  Redesignated as 4.272; new 4.273 redesignated from 4.274; 
        revised; interim...........................................32890
    (b) corrected..................................................33740
4.274  Redesignated as 4.273; interim..............................32890
4.320  Introductory text removed; (a), (b) and (c) redesignated as 
        (b), (c) and (d); new (a) added; interim...................32890
    (a) corrected..................................................33741

                                  2002

  (Regulations published from January 1, 2002, through October 1, 2002)

43 CFR
                                                                   67 FR
                                                                    Page
Subtitle A
2.2  Nomenclature change............................................4368
2.14  (a)(2)(i) amended.............................................4368
2  Appendix B amended...............................................4368
4.100--4.128 (Subpart C)  Nomenclature change.......................4368
4.200--4.357 (Subpart D)  Nomenclature change.......................4368
4.400--4.478 (Subpart E)  Nomenclature change.......................4368
4.909  (b)(1) amended...............................................4368
4.1100--4.1385 (Subpart L)  Nomenclature change.....................4368
4.1100  (e) revised................................................61509
4.1109  (a)(2) revised.............................................61510
4.1190  (a) revised................................................61510
4.1192  (a) revised................................................61510
4.1193  Redesignated as 4.1194; new 4.1193 added...................61510
4.1194  Redesignated as 4.1195; new 4.1194 redesignated from 
        4.1193.....................................................61510
4.1195  Redesignated as 4.1196; new 4.1195 redesignated from 
        4.1194; new (a) revised....................................61510
4.1196  Redesignated as 4.1197; new 4.1196 redesignated from 
        4.1195.....................................................61510

[[Page 678]]

4.1197  Redesignated from 4.1196...................................61510
4.1200  (a), (b)(2), (3) and (4) revised...........................61510
4.1204  Introductory text revised..................................61510
4.1266  Section heading and (b)(2) revised.........................61510
4.1270  (f) revised................................................61511
4.1276  (a) revised................................................61511
4.1350  Revised....................................................61511
4.1351  Revised....................................................61511
4.1352  Revised....................................................61511
4.1355  Revised....................................................61511
4.1360  (c) amended; (d) revised; (e) added........................61511
4.1370--4.1377  Undesignated center heading revised................61511
4.1370  Revised....................................................61511
4.1371  (a) revised................................................61511
4.1372  (a)(1) and (2) revised.....................................61511
4.1374  (a) revised................................................61512
4.1376  Section heading and (a) revised............................61512
4.1380--4.1387  Undesignated center heading revised................61512
4.1380  Revised....................................................61512
4.1381  (a) revised................................................61512
4.1390  Revised....................................................61512
4.1391  (a) and (b) revised........................................61512
4.1394  Revised....................................................61512
4.1604  Amended.....................................................4368
7.37  Amended.......................................................4368
10.12  Nomenclature change..........................................4368
13.6  Amended.......................................................4368
35.1  (g) amended...................................................4369
35.2  Corrected....................................................12885
Chapter I
422  Added.........................................................38420
423  Added; eff. to 4-17-03........................................19093
426.24  (g)(1) and (2) revised.....................................13702


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