[Title 25 CFR IV]
[Code of Federal Regulations (annual edition) - April 1, 2004 Edition]
[Title 25 - INDIANS]
[Chapter IV - THE OFFICE OF NAVAJO AND HOPI INDIAN RELOCATION]
[From the U.S. Government Publishing Office]
25INDIANS12004-04-012004-04-01falseTHE OFFICE OF NAVAJO AND HOPI INDIAN RELOCATIONIVCHAPTER IVINDIANS
CHAPTER IV--THE OFFICE OF NAVAJO AND HOPI INDIAN RELOCATION
--------------------------------------------------------------------
Part Page
700 Commission operations and relocation
procedures.............................. 895
720 Enforcement of nondiscrimination on the
basis of handicap in programs or
activities conducted by the Navajo and
Hopi Indian Relocation Commission....... 973
721-899
[Reserved]
[[Page 895]]
PART 700_COMMISSION OPERATIONS AND RELOCATION PROCEDURES--Table of Contents
Subpart A_General Policies and Instructions
Sec.
700.1 Purpose.
700.3 Assurances with respect to acquisition and displacement.
700.5 Supersedure of regulations.
700.11 Manner of notice.
700.13 Waiver of regulations.
700.15 Waiver of rights by owner.
Definitions
700.31 Applicability of definitions.
700.33 Act (The Act).
700.35 Applicant.
700.37 Application for relocation assistance benefits and agreement to
move.
700.39 Appraisal.
700.41 Appraiser.
700.43 Assistance payment.
700.45 Business.
700.47 Commission.
700.49 Certified eligible head of household.
700.51 Custodial parent.
700.53 Dwelling, replacement.
700.55 Decent, safe, and sanitary dwelling.
700.57 Dependent.
700.59 Displaced person.
700.61 Fair market value.
700.65 Farm operation.
700.67 Habitation.
700.69 Head of household.
700.71 Improvements.
700.77 Livestock.
700.79 Marriage.
700.81 Monthly housing cost.
700.83 Nonprofit organization.
700.85 Owner.
700.87 Person.
700.89 Relocation contract.
700.91 Relocation report.
700.93 Relocation plan.
700.95 Replacement housing funds.
700.97 Residence.
700.99 Salvage value.
700.101 Single person.
700.103 Uniform Act.
700.105 Utility charges.
Subpart B_Acquisition and Disposal of Habitations and/or Improvements
700.111 Applicability of acquisition requirements.
700.113 Basic acquisition policies.
700.115 Preliminary acquisition notice.
700.117 Criteria for appraisals.
700.119 Establishment of fair market value.
700.121 Statement of the basis for the determination of fair market
value.
700.123 Expenses incidental to transfer of ownership to the Commission.
700.125 Disposal of property.
700.127 Payments for acquisition of improvements.
Subpart C_General Relocation Requirements
700.131 Purpose and applicability.
700.133 Notice of displacement.
700.135 Relocation assistance advisory services.
700.137 Final date for voluntary relocation application.
700.138 Persons who have not applied for voluntary relocation by July 7,
1986.
700.139 Referral for action.
700.141 General requirements--claims for relocation payments.
700.143 Payments for divorced or separated relocatees.
700.145 Payments to estates.
700.147 Eligibility.
Subpart D_Moving and Related Expenses, Temporary Emergency Moves
700.151 Eligibility.
700.153 Actual reasonable moving and related expenses--residential
moves.
700.155 Expenses in searching for replacement dwelling--residential
move.
700.157 Actual reasonable moving and related expenses--nonresidential
moves.
700.159 Payment for direct loss of personal property--nonresidential
moves.
700.161 Substitute personal property--nonresidential moves.
700.163 Expenses in searching for replacement location--nonresidential
moves.
700.165 Ineligible moving and related expenses.
700.167 Moving and related expenses--fixed payment.
700.169 Fixed payment for moving expenses--residential moves.
700.171 Fixed payment for moving expenses--nonresidential moves.
700.173 Average net earnings of business or farm.
700.175 Temporary emergency moves.
Subpart E_Replacement Housing Payments
700.181 Eligibility.
700.183 Determination of replacement housing benefit.
700.187 Utilization of replacement home benefits.
700.189 Expenditure of replacement home benefits.
Subpart F_Incidental Expenses
700.195 General.
[[Page 896]]
700.197 Basic eligibility requirements.
700.199 Incidental expenses.
Subpart G_Assistance Payments (Incentive Bonus)
700.205 Eligibility requirements.
Subpart H_Last Resort Replacement Housing
700.209 Applicability.
700.211 Basic rights and rules.
700.213 Methods of providing last resort replacement housing.
Subpart I_Commission Operations
700.219 General.
Subpart J_Inspection of Records
700.235 Purpose and scope.
700.237 Definitions.
700.239 Records available.
700.241 Request for records.
700.243 Action on initial requests.
700.245 Time limits on processing of initial requests.
700.247 Appeals.
700.249 Action on appeals.
700.251 Fees.
Subpart K_Privacy Act
700.255 Purpose and scope.
700.257 Definitions.
700.259 Records subject to Privacy Act.
700.261 Standards for maintenance of rec ords subject to the Act.
700.263 Assuring integrity of records.
700.265 Conduct of employees.
700.267 Disclosure of records.
700.269 Accounting for disclosures.
700.271 Requests for notification of existence of records: Submission.
700.273 Request for notification of existence of records: Action on.
700.275 Requests for access to records.
700.277 Requests for access to records: Submission.
700.279 Requests for access to records: Initial decision.
700.281 Requests for notification of existence of records and for access
to records: Appeals.
700.283 Requests for access to records: Special situations.
700.285 Amendment of records.
700.287 Petitions for amendment: Submission and form.
700.289 Petitions for amendment: Processing and initial decision.
700.291 Petitions for amendment: Time limits for processing.
700.293 Petitions for amendment: Appeals.
700.295 Petitions for amendment: Action on appeals.
700.297 Statements of disagreement.
Subpart L_Determination of Eligibility, Hearing and Administrative
Review (Appeals)
700.301 Definitions.
700.303 Initial Commission determinations.
700.305 Availability of hearings.
700.307 Request for hearings.
700.309 Presiding officers.
700.311 Hearing scheduling and documents.
700.313 Evidence and procedure.
700.315 Post-hearing briefs.
700.317 Presiding officer decisions.
700.319 Final agency action.
700.321 Direct appeal to Commissioners.
Subpart M_Life Estate Leases
700.331 Application for life estate leases.
700.333 Determination of disability.
700.335 Grouping and granting of applications for life estate leases.
700.337 Establishment of boundaries of life estate leases.
700.339 Residency on life estate leases.
700.341 Access to life estate leases.
700.343 Life estate leases.
Subpart N_Discretionary Funds
700.451 Purpose.
700.453 Definitions.
700.455 Financial assistance.
700.457 Assistance to match or pay 30% of grants, contracts or other
expenditures.
700.459 Assistance for demonstration projects and for provision of
related facilities and services.
700.461 Method for soliciting applications.
700.463 Requirements for applications.
700.465 Technical feasibility.
700.467 Construction costs.
700.469 Unallowable program and project costs.
700.471 Review and approval.
700.473 Administrative expenditures of the Commission.
700.475 Reports.
700.477 Administration of financial assistance and recordkeeping
requirements.
700.479 Administrative review.
Subpart O_Employee Responsibility and Conduct
700.501 Statement of purpose.
700.503 Definitions.
700.505 Coverage.
700.507 Responsibilities.
700.509 Duties of the designated agency ethics official.
700.511 Statements of employment and financial interests.
700.513 Business dealings on behalf of the government.
[[Page 897]]
700.515 Conflicts of interest.
700.517 Affiliations and financial interests.
700.519 Gifts, entertainment and favors.
700.521 Outside work and interests.
700.523 Business relationships among employees.
700.525 Use of government information or expertise.
700.527 Endorsements.
700.529 Negotiations for employment.
700.531 Government property.
700.533 Restrictions affecting travel and travel expense reimbursement.
700.535 Nepotism.
700.537 Indebtedness.
700.539 Soliciting contributions.
700.541 Fraud or false statement in a Government matter.
700.543 Gambling.
700.545 Alcoholism and drug abuse.
700.547 Consuming intoxicants on Government premises or during duty
hours.
700.549 Employee organizations.
700.551 Franking privilege and official stationery.
700.553 Use of official titles.
700.555 Notary services.
700.557 Political activity.
700.559 Equal opportunity.
700.561 Sexual harassment.
700.563 Statutory restrictions from 18 U.S.C. 207, which are applicable
to former Government employees.
700.565 Miscellaneous statutory provisions.
Subpart P_Hopi Reservation Evictees
700.601 Definitions.
700.603 Eligibility.
700.605 Relocation assistance.
700.607 Dual eligibility.
700.609 Appeals.
700.611 Application deadline.
Subpart Q_New Lands Grazing
700.701 Definitions.
700.703 Authority.
700.705 Objectives.
700.707 Regulations; scope.
700.709 Grazing privileges.
700.711 Grazing permits.
700.713 Tenure of grazing permits.
700.715 Assignment, modification, and cancellation of grazing permits.
700.717 Stocking rate.
700.719 Establishment of grazing fees.
700.721 Range management plans.
700.722 Grazing associations.
700.723 Control of livestock disease and parasites.
700.725 Livestock trespass.
700.727 Impoundment and disposal of unauthorized livestock.
700.729 Amendments.
700.731 Appeals.
Subpart R_Protection of Archaeological Resources
700.801 Purpose.
700.803 Authority.
700.805 Definitions.
700.807 Prohibited Acts.
700.809 Permit requirements and exceptions.
700.811 Application for permits and information collection.
700.813 Notification of Indian Tribes of possible harm to, or
destruction of, sites on public lands having religious or
cultural importance.
700.815 Issuance of permits.
700.817 Terms and conditions of permits.
700.819 Suspension and revocation of permits.
700.821 Appeals relating to permits.
700.823 Permit reviews and disputes.
700.825 Relationship to section 106 of the National Historic
Preservation Act.
700.827 Custody of Archaeological resources.
700.829 Determination of archaeological or commercial value and cost of
restoration and repair.
700.831 Assessment of civil penalties.
700.833 Civil penalty amounts.
700.835 Other penalties and rewards.
700.837 Confidentiality of archaeological resource information.
700.839 Report.
700.841 Determination of loss or absence of archaeological interest.
700.843 Permitting procedures for Navajo Nation Lands.
Authority: Pub. L. 99-590; Pub. L. 93-531, 88 Stat. 1712 as amended
by Pub. L. 96-305, 94 Stat. 929, Pub. L. 100-666, 102 Stat. 3929 (25
U.S.C. 640d).
Source: 47 FR 2092, Jan. 14, 1982, unless otherwise noted.
Subpart A_General Policies and Instructions
Sec. 700.1 Purpose.
The purpose of this part is to implement provisions of the Act of
December 22, 1974 (Pub. L. 93-531, 88 Stat. 1712 as amended by Pub. L.
96-305, 94 Stat. 929), hereinafter referred to as the Act, in accordance
with the following objectives--
(a) To insure that persons displaced as a result of the Act are
treated fairly, consistently, and equitably so that these persons will
not suffer the disproportionate adverse, social, economic, cultural and
other impacts of relocation.
(b) To set forth the regulations and procedures by which the
Commission
[[Page 898]]
shall operate; and implement the provisions of the Act.
(c) To establish standards consistent with those established in the
implementation of the Uniform Relocation Assistance and Real Property
Acquisition Policies Act of 1970 (84 Stat. 1894, 42 U.S.C. 4601 et.
seq., Pub. L. 91-646), hereinafter referred to as the Uniform Act.
(d) To insure that owners of habitations and other improvements to
be acquired pursuant to the Act are treated fairly and consistently, to
encourage and expedite acquisition by agreements with such owners, to
minimize litigation, relieve congestion in the courts and to promote
public confidence in the Commission's relocation program.
(e) To facilitate development of a relocation plan according to the
Act and carry out the directed relocation as promptly and fairly as
possible, with a minimum of hardship and discomfort to the relocation,
in accordance with the Act.
Sec. 700.3 Assurances with respect to acquisition and displacement.
The Commission will not approve any programs or projects which may
result in the acquisition of habitations and/or improvements, or in the
displacement of any person, until such time as written assurances are
submitted to the Commission that such projects or programs are in
accordance with the Act. It will--
(a) Assure that, within a reasonable period of time prior to
displacement, adequate, decent, safe and sanitary replacement dwellings
(defined at Sec. 700.55) will be available to all certified eligible
heads of households.
(b) Carry out relocation services in a manner that will promote
maximum quality in housing.
(c) Inform affected persons of their rights under the policies and
procedures set forth under the regulations in this part.
Sec. 700.5 Supersedure of regulations.
These regulations supersede the regulations formerly appearing in
this part. However, any acquisition of property or displacement of a
person occurring prior to the effective date of these regulations shall
continue to be governed by the regulations at 25 CFR part 700 in effect
at the time of the acquisition or displacement.
Sec. 700.11 Manner of notice.
Each notice which the Commission is required to provide under these
regulations shall be personally served, receipt documented, or sent by
certified or registered first-class mail, return receipt requested. Each
notice shall be written in plain understandable language. Recipients who
notify the Commission that they are unable to read and understand the
notice will be provided with appropriate translation and counseling.
Each notice shall indicate the name and telephone number of a person who
may be contacted for answers to questions or other needed help.
Sec. 700.13 Waiver of regulations.
(a) Any time limit specified for the filing of a claim or an appeal
under the regulations in this part may, on a case by case basis, be
extended by the Commission.
(b) The Commission may waive any requirement of these regulations in
this part if such requirement is not required by law and if the
Commission finds such waiver or exception to be in the best interest of
individual Indian applicants, the Commission, and the United States. Any
request for a Commission waiver shall be submitted in writing to the
Commission and shall be justified on a case by case basis.
Sec. 700.15 Waiver of rights by owner.
Nothing in these regulations shall prevent a fully informed
applicant from voluntarily waiving any of his/her rights under the
regulations in this part. A waiver of rights shall in no way constitute
an exemption from the requirement to relocate pursuant to the Act.
Definitions
Sec. 700.31 Applicability of definitions.
Except where otherwise noted, the definitions appearing in this
subpart A apply to the regulations in this part.
[[Page 899]]
Sec. 700.33 Act (The Act).
(a) The Act. The Act is Pub. L. 93-531, (88 Stat. 1712, 25 U.S.C.
640d.) as amended by Pub. L. 96-305 (94 Stat. 929).
Sec. 700.35 Applicant.
A person who applies for relocation assistance benefits and agrees
to relocate as required by the Act.
Sec. 700.37 Application for relocation assistance benefits and agreement
to move.
The application for relocation assistance benefits and agreement to
move is Commission Form 69-R0001, completion of which is used
for establishing the date upon which a person shall be deemed to have a
contract with the Commission to relocate pursuant to section 14(b) of
the Act.
Sec. 700.39 Appraisal.
The appraisal is an estimate of the fair market value which is
placed on the habitation and other improvements owned by a relocatee.
Sec. 700.41 Appraiser.
An appraiser is a person appointed or hired by the Commission to
make an appraisal of the habitation and other improvements on the land
owned by the relocatees. All compensation for the appraiser shall be
paid by the Commission.
Sec. 700.43 Assistance payment.
An assistance payment is the additional payment made to the
certified eligible head of household pursuant to section 14(b) of the
Act. This term is synonymous with ``incentive bonus''.
Sec. 700.45 Business.
The term business means any lawful activity, except a nonprofit
organization or a farm operation, that is--
(a) Conducted primarily for the purchase, sale, lease and or rental
of personal and/or real property, and/or for the manufacture,
processing, and/or marketing of products, commodities, and/or any other
personal property; or
(b) Conducted primarily for the sale of services to the public; or
(c) Solely for the purpose of subpart D of this part, conducted
primarily for outdoor advertising display purposes, when the display(s)
must be moved as a result of the Act.
Sec. 700.47 Commission.
The Navajo and Hopi Indian Relocation Commission is that entity
established pursuant to 25 U.S.C. 640d-11 (section 12(a) of the Act).
Sec. 700.49 Certified eligible head of household.
A certified eligible head of household is a person who has received
notice from the Commission that he/she has been certified as eligible to
receive certain relocation assistance benefits.
Sec. 700.51 Custodial parent.
A custodial parent is a person who has the immediate personal care,
charge, and control of a minor child who resides in his/her household,
or a person who fills the parental role but who is not necessarily
blood-related.
Sec. 700.53 Dwelling, replacement.
The term replacement dwelling means a dwelling selected by the head
of a household as a replacement dwelling that meets the criteria of this
section. A replacement dwelling is a dwelling that:
(a) Is decent, safe, and sanitary as described in Sec. 700.55.
(b) May include existing dwellings for resale, new construction,
modular homes, mobile homes, mutual self-help housing or other federally
assisted housing programs.
(c) Is in an area not subjected to unreasonable adverse
environmental conditions from either natural or man-made sources and in
an area not generally less desirable than that of the acquired dwelling
with respect to public utilities, public and commercial facilities, and
schools.
(d) Is available at a purchase price within the ability-to-pay of
the displaced person. A replacement dwelling shall be considered within
the ability-to-pay of the displaced person if, after he receives a
replacement housing payment and any available housing assistance
payments, his new monthly housing cost (defined at Sec. 700.81) for the
replacement dwelling does not exceed twenty-five percent (25%) of the
[[Page 900]]
monthly gross income of all adult members of the household, including
supplemental income payments received from public agencies. If the
person's monthly income pattern is irregular, the Commission shall base
its determination of average gross monthly income on the period of time,
actual and/or projected, that most fairly and equitable represents the
person's ability-to-pay.
(e) Is actually available to the displaced person on the private
market, other federally sponsored housing projects, tribal-sponsored
housing projects and/or Commission-sponsored housing projects.
Sec. 700.55 Decent, safe, and sanitary dwelling.
(a) General. The term decent, safe, and sanitary dwelling means a
dwelling which--
(1) Meets applicable federal, state and local housing and occupancy
codes; including but not limited to the Uniform Building Code, National
Electrical Code, ICBO Plumbing Code, the Uniform Mechanical Code, HUD
Minimum Property Standards, and HUD Mobile Home Construction and Safety
Standards (24 CFR part 4080).
(2) Is structurally sound, clean, weathertight and in good repair
and has adequate living space and number of rooms.
(3) Has an adequate and safe electrical wiring system for lighting
and other electrical services where economically feasible.
(4) Meets the requirements of the HUD lead-based paint regulations
(24 CFR part 42) issued under the Lead-Based Paint Poisoning Prevention
Act (42 U.S.C. 4831 et seq.);
(5) In the case of a physically handicapped person, is free of any
architectural barriers. To the extent that standards prescribed by the
American National Standards Institute, Inc., in publication ANSI A117.1-
1961 (R 1971), are pertinent, this provision will be considered met if
it meets those standards;
(6) Has heating as required by climatic conditions;
(7) Has habitable sleeping area that is adequately ventilated and
sufficient to accommodate the occupants;
(8) Has a separate well-lighted and ventilated bathroom, affording
privacy to the user, that contains a sink and bathtub or shower stall,
properly connected to hot and cold water, and a flush toilet, all in
good working order and properly connected to a sewage drainage system;
and
(9) In the case of new construction or modular housing, complies
with the energy performance standards for new buildings set forth by the
U.S. Department of Energy.
(10) The Commission may waive paragraph (a)(3) or (8) of this
section on a case-by-case basis if it is determined that it is in the
best interest of the individual relocatee to do so.
Sec. 700.57 Dependent.
A dependent is a person who either derives more than one-half of
his/her support from another or is under the custody, control and care
of another. In instances where there are conflicting claims for the
dependent status of a person in more than one household, the household
of the person having custody, control and care shall be determined to be
the household wherein the person is a dependent.
Sec. 700.59 Displaced person.
Displaced person means a member of the Hopi Tribe residing within
the area partitioned to the Navajo Tribe or a member of the Navajo Tribe
residing within the area partitioned to the Hopi Tribe who must be
relocated pursuant to the Act. This term is synonymous with the term
``relocatee''.
Sec. 700.61 Fair market value.
Fair market value shall mean the value placed on the habitation and
improvements owned by each head of household as determined pursuant to
Sec. Sec. 700.117 through 700.121.
Sec. 700.65 Farm operation.
Farm operation means any activity conducted for the production of
one or more agricultural products or commodities including livestock,
crops and timber for sale or home use, and customarily producing such
products or commodities in sufficient quantity to be capable of
contributing materially
[[Page 901]]
to the operator's support as determined in Sec. 700.171(b)(3).
Sec. 700.67 Habitation.
The term habitation means the dwelling(s) of each household required
to relocate under the term of the Act.
Sec. 700.69 Head of household.
(a) Household. A household is:
(1) A group of two or more persons living together at a specific
location who form a unit of permanent and domestic character.
(2) A single person who at the time his/her residence on land
partitioned to the Tribe of which he/she is not a member actually
maintained and supported him/herself or was legally married and is now
legally divorced.
(b) Head of household. The head of household is that individual who
speaks on behalf of the members of the household and who is designated
by the household members to act as such.
(c) In order to qualify as a head of household, the individual must
have been a head of household as of the time he/she moved from the land
partitioned to a tribe of which they were not a member.
[49 FR 22278, May 29, 1984]
Sec. 700.71 Improvements.
Improvements are structures and attached fixtures to the land owned
by a member of a household required to relocate under the terms of the
Act, in addition to the habitation which improvements cannot readily be
moved without substantial damage, or whose movement would require
unreasonable cost.
Sec. 700.77 Livestock.
The term livestock shall mean all domesticated animals of every type
owned by the displaced person.
Sec. 700.79 Marriage.
Marriage is a legally recorded marriage or a traditional commitment
between a man or woman recognized by the law of the Hopi Tribe or the
Navajo Tribe.
Sec. 700.81 Monthly housing cost.
(a) General. The term monthly housing cost for a replacement
dwelling purchased by a certified eligible head of household is the
average monthly cost for all mortgage payments, real property taxes,
reasonable utility charges, and insurance.
(b) Computation of monthly housing cost for replacement dwelling. A
person's monthly housing cost for a replacement dwelling shall be a
projected amount that includes one-twelfth of the estimated reasonable
annual cost for utility charges.
Sec. 700.83 Nonprofit organization.
The term nonprofit organization means a corporation, individual, or
other public or private entity that is engaged in a lawful business,
professional, or instructional activity on a nonprofit basis and that
has established its nonprofit status under applicable Federal, State, or
Tribal law.
Sec. 700.85 Owner.
The term owner means the person who holds any interest in
habitations and improvements to be acquired by the Commission pursuant
to section 15(a) of the Act, which the Commission determines warrants
consideration of ownership.
Sec. 700.87 Person.
The term person means any individual, partnership, corporation, or
association.
Sec. 700.89 Relocation contract.
The Relocation Contract is that contract signed by the head of
household in which he/she agrees to purchase an existing house or to
construct a new house, the owner of such existing house or the builder
of the proposed new house agrees to sell or perform the construction,
and the Commission agrees to make payments according to such agreement.
[47 FR 17988, Apr. 27, 1982]
Sec. 700.91 Relocation report.
The relocation report shall be the report prepared by the Commission
and submitted to Congress pursuant to section 13(a) of the Act.
[[Page 902]]
Sec. 700.93 Relocation plan.
The relocation plan shall be the plan prepared by the Commission and
submitted to Congress pursuant to section 13(c) of the Act.
Sec. 700.95 Replacement housing funds.
Replacement housing funds means those funds authorized to be
appropriated pursuant to section 25(a)(1) of the Act.
Sec. 700.97 Residence.
(a) Residence is established by proving that the head of household
and/or his/her immediate family were legal residents as of December 22,
1974, of the lands partitioned to the Tribe of which they are not
members.
[49 FR 22278, May 29, 1984]
Sec. 700.99 Salvage value.
Salvage value means the probable sale price of an item, if offered
for sale on the condition that it will be removed from the property at
the buyer's expense, allowing a reasonable period of time to find a
person buying with knowledge of the uses and purposes for which it is
adaptable and capable of being used, including separate use of
serviceable components and scrap when there is no reasonable prospect of
sale except on that basis.
Sec. 700.101 Single person.
A single person is a widow, widower, unmarried or divorced person.
Sec. 700.103 Uniform Act.
The term Uniform Act means the Uniform Relocation Assistance and
Real Property Acquisition Policies Act of 1970 (84 Stat. 1894; 42 U.S.C.
4601 et seq.; Pub. L. 91-646).
Sec. 700.105 Utility charges.
Utility charges means the cost for heat, lighting, hot water,
electricity, natural gas, butane, propane, wood, coal or other fuels
water, sewer and trash removal.
Subpart B_Acquisition and Disposal of Habitations and/or Improvements
Sec. 700.111 Applicability of acquisition requirements.
General. The requirements of this subpart B apply to all Commission
acquisition of habitations and/or improvements that occur on or after
the effective date of these regulations.
Sec. 700.113 Basic acquisition policies.
(a) Appraisal and invitation to owner. Before the initiation of
negotiations, the Commission shall have the habitations and/or
improvements appraised to its satisfaction and will attempt to assure
that the owner or his designated representative is contacted in advance
of the appraisal(s) and given an opportunity to accompany each appraiser
during the appraiser's inspection of the property.
(b) Determination and offer of fair market value. Before the
initiation of negotiations, the Commission shall establish an amount
which it believes is fair market value for improvements. This amount
shall be based on a current appraisal at the time negotations commence
for the Relocation Contract between the NHIRC and the relocatee. The
appraisal will be adjusted according to the Boeckh Building Cost
Modifier for time or any physical changes in the improvements. If any
changes are necessary the appraisal will be corrected to reflect a
current dollar value. The amount of the current appraisal will be
offered as just compensation for the improvements acquired, except as
provided in paragraph (d) of this section. A copy of the initial
appraisal will be sent to the owner as soon as possible after the
appraisal program is completed.
(c) Basic negotiation procedures. The Commission will attempt to
meet with the owner or his/her representative to discuss its offer to
purchase his/her property including the basis for the determination of
fair market value and explain acquisition policies and procedures,
including payment of incidental expenses. The owner shall be given
reasonable opportunity to present material which he/she believes is
relevant to determining the value of the property
[[Page 903]]
and to suggest modification in the proposed terms and conditions of the
purchase. The Commission shall consider the owner's presentation.
(d) If the condition of the property indicates the need for a new
appraisal or if a significant delay has occurred since the time of the
latest appraisal of the property, the Commission shall have the
appraisal updated or obtain a new appraisal. If a new appraisal is for a
lesser value than the previous appraisal and said lesser value is due to
damage done to the property during the time between the two appraisals,
and such damage was not caused by the owner of the improvement, the
owner shall be entitled to the higher appraisal value.
(e) [Reserved]
(f) Objection to determination of fair market value. If the owner
objects to the Commission's determination of fair market value, the
owner may request a hearing pursuant to the Commission's Hearing and
Administrative Review procedures;
(g) Payment before taking possession. Before requiring an owner to
surrender possession of his habitations and/or improvements, the
Commission shall--
(1) Apply the agreed purchase price towards the acquisition price of
the replacement dwelling or;
(2) Deposit with the court in an appropriate proceeding, such as
divorce or probate, for the benefit of the owner, an amount not less
than the Commission's determination of fair market value for the
property or the court award of compensation for the property up to the
maximum benefit allowed under the then existing replacement housing
benefit.
Sec. 700.115 Preliminary acquisition notice.
As soon as feasible in the acquisition process, the Commission shall
issue a preliminary acquisition notice to the owner. The notice shall--
(a) Inform the owner of the Commission's interest in acquiring his/
her habitations and/or improvements.
(b) Explain that such preliminary acquisition notice is not a notice
to vacate and that it does not establish eligibility for relocation
payments or other relocation assistance under these regulations.
Sec. 700.117 Criteria for appraisals.
(a) Appraisal standards. The Commission's appraisals shall be based
upon nationally recognized appraisal standards and techniques to the
extent that such principles are consistent with the concepts of value
that the Commission may establish.
(b) Documentation. Appraisal reports must contain sufficient
documentation, including supporting valuation data and the appraiser's
analyses of that data, to demonstrate the reasonableness of the
appraiser's opinion(s) of value.
(c) Conflict of interest. No appraiser shall have any interest,
direct or indirect, in the habitations and/or improvements which he
appraisers for the Commission that would in any way conflict with his
performance of the appraisal.
Sec. 700.119 Establishment of fair market value.
(a) General. The Commission shall establish the amount of fair
market value to be offered to the owner for the habitations and/or
improvements. Such amount shall not be less than--
(1) The appraiser's recommendations as to the fair market value of
the habitations and/or improvements; or
(2) The fair market value estimate set forth in the agency's
approved appraisal, if the property is valued at $2,000 or less.
(b) Owner retention of improvements. If the owner of a habitation
and/or improvement is permitted to retain it for removal off-site, the
amount determined to be just compensation for the interest in
habitations and/or improvements to be acquired from him shall not be
less than the amount determined by subtracting the salvage value of the
improvements he retains for off-site removal from the amount determined
to be fair market value for his entire interest in the habitation and
improvement. Retention of improvements by the owner shall not change,
alter or abrogate the requirement of the Act that the owner must move
from land partitioned to the tribe of which he/she is not a member.
[[Page 904]]
Sec. 700.121 Statement of the basis for the determination of fair
market value.
At the time of the initiation of negotiations to acquire the
habitations and/or improvements, the Commission shall furnish the owner,
along with the initial written purchase offer, a written statement of
the basis for the determination of fair market value. To the extent
permitted by the Commission, the statement shall include the following--
(a) A description and location identification of the habitations
and/or improvements to be acquired.
(b) An inventory identifying the buildings, structures, fixtures,
and other improvements, including appurtenant removable building
equipment, which are considered to be part of the habitations and/or
improvements for which the offer of fair market value is made.
(c) A recital of the amount of the offer and a declaration that such
amount--
(1) Is the full amount believed by the Commission to be just
compensation for the property and is not less than the fair market value
of the property as determined on the basis of the appraisal(s);
(2) Does not reflect any relocation payments or other relocation
assistance which the owner is entitled to receive.
(d) If only a portion of a habitation and/or improvement is to be
acquired, an apportionment of the total estimated just compensation for
the partial acquisition will be made. In the event that the Commission
determines that partial acquisitions are necessary, all portions so
acquired will be acquired simultaneously.
Sec. 700.123 Expenses incidental to transfer of ownership to the
Commission.
Eligible costs. The Commission shall reimburse the owner for
reasonable expenses he/she necessarily incurred incidental to the
transfer of habitations and/or improvements to the Commission. The
Commission is not required to pay costs solely required to perfect the
owner's interest in the habitations and/or improvements.
Sec. 700.125 Disposal of property.
Property acquired by the Commission pursuant to the Act shall be
disposed of in one of the following manners:
(a) If the Commission determines that the property acquired
constitutes a substantial risk to public health and safety, the
Commission may remove or destroy the property.
(b) The Commission may transfer the property acquired by gratuitous
conveyance to the tribe exercising jurisdiction over the area. Notice of
such transfer shall be in writing and shall be completed within sixty
(60) days from the finalization of all property acquisition procedures,
unless the tribe notifies the Commission in writing within that time
that the property transfer is refused. In the event of a refusal by the
tribe, the Commission shall remove the property.
Sec. 700.127 Payments for acquisition of improvements.
Payments for acquisition of improvements shall be made in the
following situations:
(a) To individuals who have been denied benefits under these rules
and who can prove ownership of habitations and improvements on land
partitioned to the tribe of which they are not members. If the owner is
deceased the payment shall be made to his or her estate. Payments under
this subsection are further limited by 25 U.S.C. 640d-14(c), Pub. L. 93-
531, sec. 15(c).
(b) To individuals who have been certified as eligible for
relocation benefits but who at the time of certification, own a decent,
safe and sanitary dwelling as determined by the Commission pursuant to
Sec. 700.187 and who own habitation and improvements on land
partitioned to the tribe of which they are not members.
Ownership shall be determined on the basis of Commission appraisal
records at the time of the initial eligibility determination.
(25 U.S.C. 640d, Pub. L. 93-531, 25 U.S.C. 640d-14, Pub. L. 96-305)
[49 FR 35379, Sept. 7, 1984]
[[Page 905]]
Subpart C_General Relocation Requirements
Sec. 700.131 Purpose and applicability.
This subpart prescribes general requirements governing the provision
of relocation payments and other relocation assistance under the
regulations in this part. The relocation requirements of the regulations
in this part apply to the relocation of any displaced person.
Sec. 700.133 Notice of displacement.
After the Commission's Relocation Report and Plan is in effect
pursuant to the Act, the Commission shall issue a preliminary relocation
notice to each person identified by the Commission as potentially
subject to relocation. This notice shall--
(a) Be published in a newspaper of general circulation in the area
of the former Joint Use Area at least two times, and shall be sent to
each Chapter House on the former Joint Use Area for posting.
(b) Inform the person that he/she will be required to relocate
permanently in the future unless the person has applied for and is
determined to be eligible for a Life Estate.
(c) Generally describe the relocation assistance program for which
the person may become eligible, including the maximum allowable dollar
amounts and basic conditions of eligibility for the payments.
Sec. 700.135 Relocation assistance advisory services.
(a) General. The Commission may carry out a relocation assistance
advisory program which offers the services described in paragraph (b) of
this section. If the Commission determines that a person occupying
habitations and/or improvements adjacent to the habitations and/or
improvements acquired pursuant to the Act is caused substantial social,
economic cultural or other injury because of such acquisition, it may
offer such services to such person.
(b) Services to be provided. The advisory program will include such
measures, facilities, and services as may be necessary or appropriate in
order to--
(1) Personally interview where possible each certified eligible head
of household to determine his/her relocation needs and preferences, and
explain to him/her the relocation payments and other assistance for
which he/she may be eligible, the related eligibility requirements, and
the procedures for obtaining such payments and assistance;
(2) Provide current and continuing information on the availability,
purchase prices, and rental costs of replacement dwellings and
commercial and farm properties and locations, as the case may be.
(3) Assure that replacement dwellings are available to all certified
eligible heads of households.
(4) Assist any persons displaced from a business or farm operation
to obtain and become established in a suitable replacement location;
(5) Supply persons to be displaced with appropriate information
concerning Tribal, Federal, State or local housing programs, disaster
loans and other programs administered by the Small Business
Administration, and other Federal or State programs offering assistance
to persons to be displaced;
(6) Endeavor to minimize the adverse social, economic, cultural and
other hardships and impacts of relocation on persons involved in
adjusting to such relocation.
(c) Coordination of relocation activities. The Commission shall, to
the maximum extent feasible, coordinate its relocation assistance
advisory services activities with existing local, state, federal and
Tribal agencies to the extent necessary to enable it to carry out its
program. Referrals of displaced persons for services to existing
services providers will be utilized whenever possible.
(d) Policy. The Commission shall continue to provide assistance to a
family, individual, business concern, non-profit organization, or farm
operation until relocation has been achieved unless section Sec.
700.139 becomes applicable.
(e) Reasons for terminating assistance. In general, the
circumstances under which the Commission's relocation obligations cease
are the following:
[[Page 906]]
(1) Two years have elapsed since the family or individual has moved
to a decent, safe and sanitary replacement dwelling and has received all
assistance payments to which entitled.
(2) All reasonable efforts to trace a family or individual have
failed.
(3) The family or individual on his/her own initiative moves to
substand ard housing and has refused reasonable offers of additional
assistance in moving to a decent, safe and sanitary replacement
dwelling.
(4) The business concern, farm operation, or non-profit organization
has received all assistance and payments to which it is entitled, and
has either been successfully relocated or ceased operations.
(5) Other relevant reasons as determined by the Commission.
Sec. 700.137 Final date for voluntary relocation application.
(a) In order to be considered for voluntary relocation assistance
benefits, an applicant must have filed a completed application form with
the Commission by the close of business on July 7, 1986.
(b) To qualify for relocation assistance, individuals must meet the
eligibility requirements as of July 7, 1986.
[51 FR 19170, May 28, 1986]
Sec. 700.138 Persons who have not applied for voluntary relocation by
July 7, 1986.
(a) Pursuant to 25 U.S.C. 640d-14 (d)(3) heads-of-household who do
not make timely arrangements for relocation by filing an application by
July 7, 1986, shall be provided a replacement home by the Commission. To
be eligible for benefits (Housing and Moving Expenses), such persons
must be, as of July 7, 1986, physically residing full time on land
partitioned to a tribe of which they are not members and they must also
otherwise meet all other current eligibility criteria.
(b) The Commission shall utilize amounts payable with respect to
such households pursuant to 25 U.S.C. 640d-14(b)(2) and 25 U.S.C. 640d-
34(a) for the construction or acquisition of a home and related
facilities for such households.
(c) Persons identified by the Commission as potentially subject to
relocation who have not applied for relocation assistance shall be
contacted by the Commission as soon as practicable after July 7, 1986.
At such time, the Commission shall--
(1) Request that the head-of-household choose an available area for
relocation, and contract with the Commission for relocation; and
(2) Offer the relocatee suitable housing; and
(3) Offer to purchase from the head-of-household the habitation and
improvements; and
(4) Offer provisions for the head-of-household and his family to be
moved (e.g., moving expenses, etc.).
(d) If a person so identified fails to agree to move after the
actions outlined in this section are taken by the Commission and
suitable housing is available (or sufficient funds are available to
assure the relocation assistance to which the relocatee may be
entitled), the Commission will issue a ninety-day notice stating the
date by which the person will be required to vacate the area partitioned
to the Tribe of which he is not a member.
[51 FR 19170, May 28, 1986]
Sec. 700.139 Referral for action.
Upon the expiration of all notice periods and upon the failure or
refusal of any relocatees to make timely arrangements to move, the
Commission shall forward the names and addresses of such relocatees to
the Secretary of the Interior and to the U.S. Attorney for the District
of Arizona for such action as they deem appropriate. The Commission will
assure the availability of relocation assistance to which the relocatees
may be entitled.
Sec. 700.141 General requirements--claims for relocation payments.
(a) Documentation. Any claim for a relocation payment under subpart
D, E, F, G, or H of this part shall be submitted to the Commission on
the appropriate Commission form and supported by such documentation as
may reasonably be required by the Commission to demonstrate expenses
incurred, such as bills and receipts.
[[Page 907]]
(b) Time for filing. All claims for a relocation payment shall be
filed with the Commission within sixty (60) days after the family
occupies the replacement home unless this time period is extended by the
Commission.
(c) Direct payment of claim. Relocation payments shall be made in
accordance with the terms of the Relocation Contracts and are not
subject to claims of creditors or assignments.
Sec. 700.143 Payments for divorced or separated relocatees.
General. The following considerations apply to certified eligible
heads of household who are legally separated or divorced and intend to
establish separate eligibility.
(a) Determination of benefits. Eligibility for relocation benefits
is determined as of the time that the Relocation Contract is signed.
(1) If the divorce or separation took place before benefits were
first applied for, the spouse who vacated the habitation will not be
eligibile for benefits and all relocation benefits will accrue to the
spouse remaining in occupancy as head of the household remaining to be
relocated.
(2) If both husband and wife are in possession of the habitation at
the time that benefits are first applied for, and are divorced or
separated prior to signing of a Relocation Contract, both husband and
wife may qualify separately for benefits if each meets the requirements
of eligibility under these regulations.
(3) If both husband and wife are in possession of the habitation at
the time a Relocation Contract is signed but are divorced or separated
prior to occupancy of the replacement dwelling, only one benefit will be
paid to the household. Such benefits (including the assistance payment,
moving expenses and replacement dwelling benefit) and the purchase price
of the habitation and improvements may be prorated between husband and
wife in such manner as they may agree in writing so long as such
proration is consistent with the terms of the Relocation Contract. Such
proration may also be made by a court of competent jurisdiction. In the
absence of an agreement between the parties or a court order, any
necessary prorations shall be made by the Commission.
(b) For purposes of this section, a head of household shall be
considered as married even though living apart from his or her spouse
unless legally separated under a decree or separate maintenance.
[47 FR 17988, Apr. 27, 1982]
Sec. 700.145 Payments to estates.
(a) Relocation benefits can be paid to the estate of a deceased
Certified Eligible Head of Household under the following circumstances:
(1) If there is no household requiring relocation pursuant to the
Act surviving the deceased head of household:
(i) Compensation for the habitation and other improvements owned by
the deceased head of household and the cost of removing personal
property from the acquired habitation and other improvements shall be
paid to the estate of a deceased head of household, or as otherwise
directed by a court of competent jurisdiction.
(ii) No replacement housing benefit or assistance payment (bonus)
shall be paid under this circumstance.
(2) Replacement housing benefits may be paid to an estate only when
a certified eligible head of household was qualified for such a housing
payment pursuant to the Act and signed a Relocation Contract but died
before the replacement housing was occupied. The estate of a certified
eligible head of household who had not signed a Relocation Contract at
the time of his/her death is not eligible for payment of a replacement
housing benefit.
(b) If one of a married couple who was a certified eligible head of
household dies, the surviving spouse may be paid the same relocation
assistance benefits, including replacement housing payments, which the
couple would have received had death not occurred. If there is no
surviving spouse, a court of competent jurisdiction may appoint a
guardian to act for minor members of the household. The Commission shall
deal with such guardian and any members of the household who have
attained their majority in a manner to
[[Page 908]]
effect relocation of the remaining household under these regulations.
[47 FR 17988, Apr. 27, 1982]
Sec. 700.147 Eligibility.
(a) To be eligible for services provided for under the Act, and
these regulations, the head of household and/or immediate family must
have been residents on December 22, 1974, of an area partitioned to the
Tribe of which they were not members.
(b) The burden of proving residence and head of household status is
on the applicant.
(c) Eligibility for benefits is further restricted by 25 U.S.C.
640d-13(c) and 14(c).
(d) Individuals are not entitled to receive separate benefits if it
is determined that they are members of a household which has received
benefits.
(e) Relocation benefits are restricted to those who qualify as
heads-of-household as of July 7, 1986.
[49 FR 22278, May 29, 1984, as amended at 51 FR 19170, May 28, 1986]
Subpart D_Moving and Related Expenses, Temporary Emergency Moves
Sec. 700.151 Eligibility.
(a) General. All certified eligible heads of household are eligible
for moving and related expenses as prescribed in this subpart. A
certified eligible head of household who lives on his/her business or
farm property may be eligible for both a payment as a dwelling occupant
and a payment with respect to the business or farm operation.
(b) Least costly approach. The amount of payment for an eligible
expense under this subpart shall not exceed the least costly method, as
determined by the Commission, of accomplishing the objective of the
payment without causing undue hardship to the certified eligible heads
of household.
(c) Prior approval. Written approval of the Commission must be
obtained for all moving and search expenses in this subpart. Such
approval shall be obtained by each certified eligible head of household
prior to incurring any expense from the real estate specialist to whom
the case is assigned. If prior approval and the amount thereof is not
obtained from the Commission, the Commission thereafter will determine:
(1) Whether the travel was required and the expenses reasonable and;
(2) The amount of reimbursement to be paid, if any.
Sec. 700.153 Actual reasonable moving and related expenses--residential
moves.
Subject to the limitations contained in this subpart, a certified
eligible head of household is entitled to actual reasonable expenses
for--
(a) Transportation computed at prevailing federal per diem and
mileage allowance schedules, meals and lodging away from home required
by the Commission.
(b) Transportation computed at prevailing federal per diem and
mileage allowance schedules of the household and personal property from
the acquired site to the replacement site.
(c) Packing, crating, unpacking and uncrating of the personal
property.
(d) Disconnecting, dismantling, removing, reassembling and
reinstalling relocated household appliances, and other personal
property;
(e) Storage of the personal property, not to exceed one year unless
extended by the Commission.
(f) Insurance of the personal property in connection with the move
and necessary storage; and
(g) Other moving related expenses that are not listed as ineligible
under Sec. 700.165, as the Commission determines to be reasonable and
necessary.
Sec. 700.155 Expenses in searching for replacement dwelling--residential
move.
(a) A certified eligible head of household is entitled to actual
reasonable expenses incurred in the search for a replacement dwelling.
(b) Transportation, meals and lodging when required to be away from
home by the Commission, computed at prevailing federal per diem and
mileage allowance schedules.
[[Page 909]]
Sec. 700.157 Actual reasonable moving and related expenses--nonresidential
moves.
(a) Eligible costs. Subject to the limitations of Sec. 700.151(c) a
certified eligible business, farm operation or nonprofit organization is
entitled to payment for actual reasonable expenses for:
(1) Transportation of personal property from the acquired site to
the replacement site.
(2) Packing, crating, unpacking, and uncrating the personal
property.
(3) Disconnecting, dismantling, removing, reassembling and
installing relocated and substitute machinery, equipment, and other
personal property. This includes connection to utilities available
nearby and modifications necessary to adapt such property to the
replacement structure or to the utilities or to adapt the utilities to
the personal property;
(4) Storage of the personal property;
(5) Insurance of personal property in connection with the move and
necessary storage;
(6) Any license, permit or certification required by the displaced
person, to the extent such cost is (i) necessary to its re-establishment
at the replacement location and (ii) does not exceed either the cost for
one year or for the remaining useful life of the existing license,
permit, or certification, whichever is less;
(7) Professional services, including architect's, attorney's and
engineer's fees, and consultant's charges, necessary for (i) planning
the move of the personal property, (ii) moving the personal property, or
(iii) installing the relocation personal property at the replacement
location.
(8) Relettering signs and printing replacement stationery made
obsolete as a result of the move;
(9) Actual direct loss of personal property;
(10) Purchase of substitute personal property;
(11) Searching for a replacement location;
(12) Other moving-related expenses that are not listed as ineligible
under Sec. 700.165.
(b) Self-move. If the displaced person self-moves his business, farm
operation, or nonprofit organization, the Commission may approve a
payment for his moving expenses in an amount not to exceed the lowest
acceptable bid or estimate obtained by the Commission, without
submission of documentation of moving expenses actually incurred.
(c) Notification to Commission and inspection. To be eligible for a
payment under this section, the displaced person shall permit the
Commission to make reasonable and timely inspections of the personal
property at the displacement and replacement sites.
Sec. 700.159 Payment for direct loss of personal property--nonresidential
moves.
(a) General. A certified eligible business is entitled to payment
for actual direct loss of an item of tangible personal property incurred
as a result of moving or discontinuing his business, farm operation, or
nonprofit organization. The payment shall consist of the reasonable
costs incurred in attempting to sell the item plus the less of--
(1) The fair market value of the item for continued use at the
acquired site, less the proceeds from its sale. (When payment for
property loss is claimed for goods held for sale, the fair market value
shall be based on the cost of the goods to the business, not the
potential selling price); or
(2) The estimated cost of moving the item, but with no allowance for
storage. (If the business, farm operation or nonprofit organization is
discontinued, the estimated cost shall be based on a moving distance of
50 (fifty) miles.)
(b) Advertising sign. The amount of a payment for direct loss of an
advertising sign, which is personal property, shall be the lesser of--
(1) The depreciated reproduction cost of the sign as determined by
the Commission, less the proceeds from its sale; or
(2) The estimated cost of moving the sign.
(c) Sales effort. To be eligible for payment for direct loss of
personal property, the claimant must make good faith effort to sell the
personal property, unless the Commission determines that no such effort
is necessary.
[[Page 910]]
(d) Transfer of ownership. To be eligible for payment for direct
loss of personal property, the claimant shall transfer to the Commission
ownership of the unsold personal property.
Sec. 700.161 Substitute personal property--nonresidential moves.
(a) General. If an item of personal property, which is used as part
of a business, farm operation or nonprofit organization, is not moved
but is promptly replaced with a comparable substitute item at the
replacement site, the displaced person is entitled to payment of the
lesser of--
(1) The cost of the substitute item, including installation cost at
the replacement site, minus any proceeds from the sale or trade-in of
the replaced item, if any; or
(2) The estimated cost of moving the replaced item, based on the
lowest acceptable bid or estimate obtained by the Commission for
eligible moving and related expenses, but with no allowance for storage.
(b) Transfer of ownership. To be eligible for a payment under this
section, the claimant shall transfer to the Commission ownership of the
personal property that has not been sold or traded in.
Sec. 700.163 Expenses in searching for replacement location--nonresidential
moves.
A displaced business, farm or nonprofit organization is entitled to
an amount not to exceed $500 (five-hundred dollars), as determined by
the Commission, for actual reasonable expenses incurred in searching for
a replacement location, including--
(a) Transportation computed at prevailing federal per diem and
mileage allowance schedules; meals and lodging away from home;
(b) Time spent searching, based on reasonable earnings;
(c) Fees paid to a real estate agent or broker to locate a
replacement site.
Sec. 700.165 Ineligible moving and related expenses.
A displaced person is not entitled to payment for--
(a) The cost of moving any structure or other improvement in which
the displaced person reserved ownership; or
(b) Interest on a loan to cover moving expenses; or
(c) Loss of goodwill; or
(d) Loss of profits; or
(e) Loss of trained employees; or
(f) Physical changes at replacement location of business, farm or
nonprofit organization, except as provided at Sec. 700.157; or
(g) Any additional expense of a business, farm, or nonprofit
organization incurred because of operating in a new location.
Sec. 700.167 Moving and related expenses--fixed payment.
A displaced person (other than an outdoor advertising display
business who is eligible for a payment for his actual moving and related
expenses under subpart D of these regulations) is entitled to receive a
fixed payment in lieu of a payment for such actual moving and related
expenses.
Sec. 700.169 Fixed payment for moving expenses--residential moves.
The fixed payment for moving and related expenses of a certified
eligible head of household from a dwelling consists of--
(a) A moving expense allowance not to exceed $300 (three hundred
dollars).
(b) A dislocation allowance of $200 (two hundred dollars).
Sec. 700.171 Fixed payment for moving expenses--nonresidential moves.
(a) General. The fixed payment for moving and related expenses of a
displaced business or farm operation that meets applicable requirements
under this section is an amount equal to its average annual net earnings
as computed in accordance with Sec. 700.173, but not less than $2,500
nor more than $10,000. A nonprofit organization which meets the
applicable requirements under this section is entitled to a payment of
$2,500.
(b) Business. A business qualifies for payment under this section if
the Commission determines that--
(1) The business cannot be relocated without a substantial loss of
its existing patronage.
[[Page 911]]
(2) The business is not part of a commercial enterprise having
another establishment, which is not being acquired by the Commission,
and which is under the same ownership and engaged in the same or similar
business activities. For purposes of this rule, no remaining business
facility which had average annual gross receipts of less than $1,000 and
average annual net earnings of less than $500, during the two taxable
years prior to displacement, shall be considered ``another
establishment''; and
(3) The business had (i) average annual gross receipts of at least
$1,000 during the two taxable years prior to displacement, or (ii)
average annual net earnings of at least $500 as determined in accordance
with Sec. 700.173. However, the Commission may waive this test in any
case in which it determines that its use would cause a substantial
hardship.
(c) Determining number of businesses acquired. In determining
whether two or more legal entities, all of which have been acquired,
constitute a single business, which is entitled to only one fixed
payment, all pertinent factors shall be considered, including the extent
to which--
(1) The same premises and equipment are shared;
(2) Substantially identical or interrelated business functions are
carried out and business and financial affairs are commingled;
(3) The entities are held out to the public, and to those
customarily dealing with them, as one business, and
(4) The same person or closely related persons own, control or
manage the affairs of the entities.
(d) Farm operation. A farm operation qualifies for a payment under
this section if the Commission determines that it meets the criteria set
forth in Sec. 700.171(b)(3). In the case of a partial acquisition, the
fixed payment shall be made only if the Commission determines that--
(1) The part acquired was a farm operation before the acquisition;
or
(2) The partial acquisition caused the operator to be displaced from
the farm operation; or
(3) The partial acquisition caused a substantial change in the
nature of the farm operation.
(e) Nonprofit organization. A nonprofit organization qualifies for a
$2,500 payment under this section, if the Commission determines that
it--
(1) Cannot be relocated without a substantial loss of existing
patronage (membership and clientele). A nonprofit organization is
assumed to meet this test, unless the Commission demonstrates otherwise;
and
(2) Is not part of an enterprise having at least one other
establishment engaged in the same or similar activity which is not being
acquired by the Commission.
Sec. 700.173 Average net earnings of business or farm.
(a) Computing net earnings. For purposes of this subpart, the
average annual net earnings of a business or farm operation is one-half
of its net earnings before Federal, State and local income taxes, during
the two taxable years immediately prior to the taxable year in which it
was displaced. However, if the business or farm was not in operation for
the full two taxable years prior to displacement, net earnings shall be
computed on the basis of the actual period of operation on the acquired
site, projected to an annual rate. Also, average annual net earnings may
be based upon a different period of time when the Commission determines
it to be more equitable. Net earnings include any compensation obtained
from the business or farm operation by its owner, his spouse, or
dependents.
(b) Documentation. A displaced person who elects to receive a fixed
payment in lieu of actual expenses incurred in moving his business or
farm shall furnish the Commission proof of his net earnings through
income tax returns, certified financial statements or other reasonable
evidence.
Sec. 700.175 Temporary emergency moves.
(a) General. An eligible household may be granted temporary
relocation resources, at the Commission's discretion, provided:
[[Page 912]]
(1) That the move is for a limited time period not to exceed 12
months unless extended by the Commission.
(2) That permanent relocation resources are not available at the
time of displacement.
(3) Prior approval of the Commission is obtained.
(4) That a Relocation Contract providing for permanent relocation
has been executed.
(5) The head of household actually remained domiciled on lands
partitioned to the tribe of which he is not a member as of December 22,
1974, and continuously thereafter.
(6) The head of household shall vacate all improvements owned by him
on lands partitioned to the tribe of which he is not a member and shall
transfer title to said improvements to the Commission.
Temporary relocation shall in no way diminish the responsibility of the
Commission to offer relocation assistance and services designed to
achieve permanent and suitable facilities.
(b) Conditions under which move to temporary housing accommodations
may be approved. The move of a family or individual into temporary
housing accommodations may be approved by the Commission only if the
following conditions are met.
(1) The move will be undertaken because:
(i) It is necessary because of an emergency as determined by the
Commission; or
(ii) The individual or family is subject to conditions hazardous to
his or his family's health or safety.
(2) The temporary housing is decent, safe, and sanitary.
(3) The Commission shall have determined that within twelve (12)
months of the date of the temporary move, replacement housing meeting
Commission-approved standards will be available for occupancy by the
persons temporarily rehoused.
(4) Prior to the move, the Commission shall provide in writing
assurance to each head of household that:
(i) Replacement housing will be available at the earliest possible
time but in any event no later than twelve (12) months from the date of
the move to temporary housing.
(ii) Replacement housing will be made available on a priority basis,
to the individual or family who has been temporarily rehoused.
(iii) The move to temporary rehousing will not, in any way, affect a
claimant's eligibility for a replacement housing payment nor deprive him
of the same choice or replacement housing units that would have been
made available had the temporary move not been made.
(iv) The Commission will pay all costs in connection with the move
to temporary housing, including any increased housing costs.
(c) Agency documentation. To request Commission approval for a
temporary move of a family, the following information shall be submitted
to the Commission (additional information may be required on a case-by-
case basis):
(1) An explanation of the necessity for the temporary move, based
upon the criteria set forth by the Commission.
(2) The estimated duration of the temporary occupancy.
(3) In the case of the family or individual, (i) a copy of the
written assurance which will be provided to the person explaining his
rights and the continuing obligation of the agency to provide relocation
assistance, and (ii) evidence that the family or individual agrees to
make the temporary move.
(d) Costs in connection with temporary move--(1) Costs included.
Costs included in a temporary move may cover the following:
(i) Actual reasonable moving costs and related expenses for the move
to temporary accommodations.
(ii) For the family or individual moved from a rental unit the
difference, if any, between the rental cost of the dwelling vacated and
the rental cost of the temporary unit.
(iii) For a homeowner who retains ownership of his dwelling the
reasonable cost of renting the temporary dwelling.
(iv) For a homeowner whose dwelling has been acquired the
difference, if any, between his housing costs for the acquired dwelling
and the rental cost of the temporary unit.
(2) Costs not a replacement home benefit. Costs in connection with a
move to
[[Page 913]]
temporary accommodations are not to be considered as relocation payments
under the Act. (See paragraph (e) of this section.)
(e) Distinguishing between cost of temporary move and relocation
payment. The costs of a temporary move, as decribed in the foregoing
subparagraphs, are not to be considered as all or a part of the
relocation payment to which a displaced person is entitled under the
Act. Thus, when a family is moved to temporary accommodations, a
relocation payment is not made and the election or choice of type of
payments that would ordinarily be made upon displacement must be delayed
until the final move is made. When the move out of temporary
accommodations is made, the displaced person shall receive the full
relocation payments to which he/she is entitled pursuant to Commission
regulations.
Subpart E_Replacement Housing Payments
Sec. 700.181 Eligibility.
(a) Basic eligibility requirements. A certified eligible head of
household who established his/her residency requirements in the area
partitioned to the tribe of which he/she is not a member, is eligible
for the replacement housing payment specified at Sec. 700.183(a).
(b) Other rules and requirements. A payment under this subpart E is
subject to the other applicable rules and requirements of these
regulations.
Sec. 700.183 Determination of replacement housing benefit.
(a) Amount of benefit. The replacement housing benefit for a
certified eligible head-of-household is an amount not to exceed fifty-
five thousand dollars ($55,000) for a household of three or less and not
to exceed sixty-six thousand dollars ($66,000) for a household of four
or more. Subject to such other requirements of these regulations as may
apply, the replacement housing benefit shall be calculated as follows;
(1) The amount of the fair market value of the habitation and
improvements purchased from an eligible head-of-household pursuant to
subpart B of this part shall be applied first toward the cost of a
replacement dwelling.
(2) An additional amount shall be added to the value of the
habitation and improvements to equal the cost of a decent, safe, and
sanitary replacement dwelling.
(3) The total value of the replacement dwelling shall not exceed the
amount of the replacement housing benefit specified in paragraph (a) of
this section.
(4) In the event the cost of providing a decent, safe, and sanitary
replacement dwelling is less than the fair market value of the
habitation and improvements purchased from an eligible head-of-household
pursuant to subpart B of this part, the difference shall be paid to that
head-of-household.
(b) The Commission shall, on or before the first Friday in April of
each fiscal year, after consultation with the Secretary of the
Department of Housing and Urban Development, annually increase, decrease
or leave unadjusted the above limitations on replacement housing
benefits to reflect changes in housing or development and construction
costs, other than costs of land, during the preceding year. In
determining whether to increase or decrease the replacement housing
benefit limitations set forth above, the Commission shall consider the
following:
(1) The most recent percentage rate of increase or decrease in
single family housing construction costs reported by HUD. (General
Prototype Housing Costs For One to Four Family Dwelling Units).
(2) The most recent Boecht Building Cost Modifier.
(3) The experience of relocatee families in obtaining replacement
housing within the current benefits.
(4) The cost of available replacement housing which meets Commission
standards as set forth in these regulations.
(5) Such other available information which the Commission deems
appropriate and which is relevant to a determination of whether
replacement housing benefits should be increased or decreased to reflect
change in housing or development and construction costs during the
preceding year.
[[Page 914]]
(c) If the owner retains ownership of his dwelling, moves it from
the acquired site, and reoccupies it on a replacement site, the purchase
price of the replacement dwelling shall be considered to be the sum of--
(1) The cost of the replacement site, if any; plus
(2) The moving and restoration expenses; plus
(3) The costs, if any, incurred to make the unit a decent, safe, and
sanitary replacement dwelling; but not to exceed the above limitation on
total replacement home benefits.
[47 FR 17988, Apr. 27, 1982, as amended at 52 FR 21951, June 10, 1987]
Sec. 700.187 Utilization of replacement home benefits.
The Commission shall assure that all eligible heads of household
receive a decent, safe and sanitary replacement dwelling in the
following manner:
(a) If the eligible head of household owns no dwelling other than
that on the area from which he or she must move pursuant to the Act, the
Commission will make funds available to the head of household as
provided in these regulations for the acquisition of a replacement home
in one of the following manners:
(1) Purchase of an existing home, by the head of household,
(2) Construction of a home by the head of household,
(3) Participation or purchase by the head of household in a mutual
help housing or other home ownership project under the U.S. Housing Act
of 1937 (50 Stat. 888, as amended; 42 U.S.C. 1401) or in any other
federally assisted housing program.
(b) If the eligible head of household owns or is buying or building
a home in an area other than the area from which he or she must move
pursuant to the Act, the Commission will expend relocation benefits in
one of the following manners:
(1) If the home is decent, safe, and sanitary, but is encumbered by
a mortgage, such mortgage existing as of the effective date of these
regulations, the Commission will expend replacement housing benefits up
to the maximum then existing benefit to accelerate to the maximum extent
possible the achievement by that household of debt-free home ownership.
(2) If the home is owned free and clear but does not meet Commission
decent, safe, and sanitary standards, the Commission will, at its
discretion, either:
(i) Expend replacement home benefits for improvements to assure the
home meets decent, safe, and sanitary standards, or
(ii) Expend replacement home benefits for the acquisition of a
replacement dwelling as if the eligible head of household or spouse did
not own a home as in paragraph (a) of this section.
(3) If the home is neither owned free and clear nor decent, safe,
and sanitary, the Commission will, at its discretion, either:
(i) Expend replacement home benefits for improvements to assure that
the home meets decent, safe, and sanitary standards, and to accelerate
to the maximium extent possible the achievement of debt-free home
ownership, or
(ii) Expend replacement home benefits for the acquisition of a
replacement dwelling as if the eligible head of household or spouse did
not own a home as in paragraph (a) of this section.
(4) If the home is decent, safe, and sanitary, and is owned free and
clear, no replacement home benefits will be paid.
(c) Home improvements shall include the following: General repairs,
painting and texturing, fencing--including corrals, landscaping,
grading, room additions, re-modeling, roofing, insulating, repair or
improvements to the water, sewerage, cooling, heating, or electrical
systems, storage buildings, energy conservation measures, and other home
improvements as determined and defined by the Commission.
(d) In implementing these regulations the Commission will encourage
the use of innovative energy or other technologies in order to achieve
the minimum monthly housing cost feasible for each replacement house.
[[Page 915]]
Sec. 700.189 Expenditure of replacement home benefits.
Replacement home benefits shall be expended or obligated in full at
or before the time of original acquisition except as stated below. It is
not anticipated that such exceptions would be common and each such
instance shall be reviewed and a determination will be made by the
Certification Officer.
(a) Under unusual circumstances such as: Unknown (latent) defects in
the replacement dwellings, significant change of circumstances and
extreme hardship, benefits may be expended after the time of original
acquisition up to the the existing maximum replacement home benefit.
(b) All replacement home benefits shall be expended not later than
one (1) year after the date of payment of the incentive bonus, except
under unusual circumstances as stated above, up to the statutory
maximum.
(c) Replacement home benefits shall not be expended for maintenance
except under unusual circumstances as stated above, up to the statutory
maximum.
(d) For purposes of this paragraph, the time of original acquisition
shall be defined as the date of execution of the Commission's Relocation
Contract.
Subpart F_Incidental Expenses
Sec. 700.195 General.
Incidental expenses are those reasonable expenses, as determined by
the Commission, to be incidental to the purchase of the replacement
dwelling, but not prepaid.
Sec. 700.197 Basic eligibility requirements.
A certified eligible head of household is eligible for reimbursement
of expenses that are incidental to the purchase of a replacement
dwelling, as provided in Sec. 700.199 hereof.
Sec. 700.199 Incidental expenses.
(a) Eligible costs. Subject to the limitations in paragraphs (b) and
(c) of this section, the incidental expenses to be paid are those
actually incurred by the displaced person incident to the purchase of
the replacement dwelling, including--
(1) Legal, closing, and related costs, including those for title
search, preparing conveyance instruments, notary fees, preparing plats,
recording fees; and title insurance;
(2) Lender, FHA or VA appraisal fees;
(3) FHA or VA application fee;
(4) Certification of structural soundness when required by the
lender;
(5) Credit report;
(6) Owner's and mortgagee's evidence or assurance of title;
(7) Escrow agent's fee;
(8) State revenue or documentary stamps, sales or transfer taxes;
(9) Such administrative costs as are necessary to secure and acquire
homesite leases and/or allotments on tribal lands. These costs may
include survey fees, appropriate tribal fees and other conveyance
instruments as may be appropriate;
(10) Costs, such as advertising charges, incurred incident to the
purchase of the improvements owned by the head of household.
(11) Cost related to fee inspector's inspections of the replacement
dwelling.
(12) Such other costs as the Commission determines to be incidental
to the purchase.
(b) Truth in lending charge. Any expense, which is determined to be
part of the debt service or finance charge under 15 U.S.C. 131-1641 and
Regulation Z (12 CFR part 226) issued thereunder by the Board of
Governors of the Federal Reserve System, is not eligible for
reimbursement as an incidental expense.
Subpart G_Assistance Payments (Incentive Bonus)
Sec. 700.205 Eligibility requirements.
A certified eligible head of household is eligible for the
assistance payment pursuant to section 14(b) of the Act.
(a) Amount of payment. The amount of payment shall be computed in
accordance with the schedule provided for in section 14(b) of the Act.
(b) Date for determination of amount of assistance payment. The date
of completion and filing with the Commission of the Application for
Relocation Assistance and Agreement to Relocate shall
[[Page 916]]
be the date used for determination of the amount of the assistance
payment.
(c) Time of payment. Assistance payments provided for in this
section shall only be paid upon actual occupancy of the replacement
dwelling and vacation of the acquired habitation and/or improvement, if
any, in the area partitioned to the Tribe of which he/she is not a
member.
Subpart H_Last Resort Replacement Housing
Sec. 700.209 Applicability.
The provisions of this subpart apply only when the Commission
determines that, unless it acts under the provisions of this subpart,
there is a reasonable likelihood that replacement dwelling(s) will not
be available on a timely basis to person(s) to be displaced.
Sec. 700.211 Basic rights and rules.
The provisions of this subpart do not deprive any displaced person
of any rights described elsewhere in these regulations. The Commission
may meet its obligation to provide persons with reasonable opportunities
to relocate to a replacement dwelling by offering such opportunities
developed or to be developed under this subpart.
Sec. 700.213 Methods of providing last resort replacement housing.
(a) General. The methods of providing last resort housing include,
but are not limited to--
(1) Rehabilitation of, and/or additions to, an existing replacement
dwelling;
(2) A replacement housing payment in excess of the limits set forth
in subparts E and F of this part or the provision of direct Commission
mortgage financing;
(3) The construction of a new replacement dwelling;
(4) The relocation and, if necessary, rehabilitation of a
replacement dwelling;
(5) The purchase of land and/or a replacement dwelling by the
Commission and subsequent sale or lease to, or exchange with, a
displaced person; and
(6) The removal of barriers to the handicapped as may be necessary.
Subpart I_Commission Operations
Sec. 700.219 General.
(a) The operation of the Commission shall be governed by a
Management Manual passed, amended or repealed by a majority of the
Commission at any regular or special meeting. The Management Manual is
the prescribed medium for publication of policies, procedures and
instructions which are necessary to facilitate the day-to-day operations
and administration of the Commission.
(b) Meetings. The Commission shall hold a regular monthly meeting on
the first Friday of each month at a time and place designated by public
notice unless said Friday falls on a legal holiday, in that event, the
meeting shall begin on the next regular workday. The monthly meeting may
continue for as many days thereafter as is necessary to complete the
regular affairs of the Commission, and may be recessed from time to time
and reconvened at times designated by the Chairperson.
(c) Special public meetings. May be called by any Commissioner with
ten (10) working days written notice given to the other Commissioners.
Written notice may be waived by a release bearing the signatures of all
three Commissioners.
(d) Executive Session. During a regular or special meeting, any
Commissioner may request an Executive Session for purposes of personnel
and administrative matters.
(e) Compliance with other laws and regulations. As a federal agency,
the Commission will conduct its activities in conformance with
applicable federal statutes and administrative procedures.
Subpart J_Inspection of Records
Sec. 700.235 Purpose and scope.
(a) This subpart contains the regulations of the Commission
implementing the requirement of subsection (a)(3) of the Freedom of
Information Act, 5 U.S.C. 552(a)(3), which provides that the Commission
``upon any request for records which (1) Reasonably describes
[[Page 917]]
such records and (2) is made in accordance with published rules stating
the time, place, fees (if any), and procedures to be followed, shall
make the records promptly available to any person.'' This subpart
describes the procedures by which records may be obtained from the
Commission. The procedures in this subpart are not applicable to
requests for records published in the Federal Register or opinions in
the adjudication of cases, statements of policy and interpretations and
administrative staff manuals which have been published or made available
under subpart A of this part.
Sec. 700.237 Definitions.
Act. As used in this subpart, ``Act'' means the ``Freedom of
Information Act,'' 5 U.S.C. 552.
Sec. 700.239 Records available.
(a) Commission policy. It is the policy of the Commission to make
the records of the Commission 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 Freedom of Information Act
requires that the Commission, on a request from a member of the public
to inspect or copy records made in accordance with the procedures in
this subpart, shall promptly make the rec ords available.
(c) Statutory exemptions. The Act exempts nine categories of records
from this disclosure requirement. The Act provides that disclosure is
not required of matters that are:
(1) Specifically authorized under criteria established by an
Executive order to be kept secret in the interest of national defense or
foreign policy and in fact properly classified pursuant to such
Executive Order;
(2) Related solely to the internal personnel rules and practices of
an agency;
(3) Specifically exempt from disclosure by statute;
(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) Investigatory records compiled for law enforcement purposes, but
only to the extent that production of such records would
(i) Interfere with enforcement proceedings;
(ii) Deprive a person of a right to a fair trial or an impartial
adjudication,
(iii) Constitute an unwarranted invasion of personal privacy,
(iv) Disclose the indentity of a confidential source and, in the
case of a record compiled by a criminal law enforcement authority in the
course of a criminal investigation, or by an agency conducting a lawful
national security intelligence investigation, confidential information
furnished only by the confidential source,
(v) Disclose investigative techniques and procedures, or
(vi) Endanger the life or physical safety of law enforcement
personnel;
(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 Commission 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) Deletion of portions of records. If a requested record contains
material within an exemption together with material not within an
exemption and it is determined under the regulations in this subpart to
withhold the exempt material, any reasonably segregable nonexempt
material shall be separated from the exempt material.
(f) Creation of records. This subpart applies only to records which
exist at the time a request for records is made. Records are not
required to be created in response to a request by combining
[[Page 918]]
or compiling selected items from the files or by preparing a new
computer program, nor are records required to be created to provide the
requester with such data as proportions, percentages, frequency
distributions, trends, or comparisons.
(g) Records of concern to other departments and agencies. (1) If the
release of a record would be of concern to both the Commission and
another Federal agency, the record will be made available by the
Commission only if the interest of the Commission is the primary
interest. If the Commission's interest is not the primary interest, the
requester shall be referred in writing to the agency having the primary
interest. The Commission has the primary interest in a record if the
record was developed pursuant to Commission regulations, directives, or
request even though the record originated outside of the Commission.
(2) If the release of a record in which the Commission has a primary
interest would be of substantial concern to another agency, the official
processing the request, should, if administratively feasible and
appropriate, consult with that agency before releasing the record.
(h) Records obtained from the public. If a requested record was
obtained by the Commission from a person or entity outside of the
Government, the official responsible for processing the request shall,
when it is administratively feasible to do so, seek the views of that
person or entity on whether the record should be released before making
a decision on the request.
Sec. 700.241 Request for records.
(a) Submission of requests. 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 person wishing to inspect or
copy the records, he may direct his request to the head of the
appropriate bureau, or the bureau's chief public information officer, if
any.
(b) Form of request. (1) Requests invoking the Freedom of
Information Act shall be in writing.
(2)(i) A request must reasonably describe the records requested. A
request reasonably describes the records requested if it will enable an
employee of the Commission 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,
and the person or office that made it, the present custodian of the
record, and any other information which will assist in location of the
requested records. 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.
(ii) If the description of a record sought is insufficient to allow
identification and location of the record, the response denying the
request on this ground shall so state and, to the extent possible,
indicate what additional descriptive information, if any, would assist
in location of the record.
(3) A request shall state the maximum amount of fees which the
requester is willing to pay. Requesters are notified that under Sec.
700.251, the failure to state willingness to pay fees as high as are
anticipated by the Commission will delay running of the time limit and
delay processing of the request, if the responsible official anticipates
that the fees chargeable may exceed $25.00.
(4)(i) To insure expeditious handling, requests shall be prominently
marked, both on the envelope and on the face of the request, with the
legend ``FREEDOM OF INFORMATION REQUEST.'' The failure of a request to
bear such a legend will not disqualify a request from processing under
the procedures in this subpart if the request otherwise meets the
requirments of this section. A request not bearing the legend ``FREEDOM
OF INFORMATION REQUEST'' will not, however, be deemed to have been
received for purposes of the running of the time limit set out in Sec.
700.245 until it has been identified by bureau personnel as a Freedom of
Information request and marked by them with this legend.
[[Page 919]]
(ii) Commission personnel identifying a communication from the
public not bearing the legend ``FREEDOM OF INFORMATION REQUEST'' as a
request otherwise meeting the requirements of this section shall
immediately (A) mark the communication with the legend ``FREEDOM OF
INFORMATION REQUEST.'' (B) date the request to reflect the date on which
it was identified, and (C) take steps to assure proper processing of the
request under the procedures in this subpart.
(d) Categorical requests. (1) A request for all records falling
within a reasonably specific category shall be regarded as conforming to
the statutory requirement that records be reasonably described if (i) it
can be determined which particular records are covered by the request
and (ii) the rec ords can be searched for, collected and produced
without unduly burdening or interfering with Commission operations
because of the staff time consumed or the resulting disruption of the
files.
(2) If a categorical request is determined under paragraph (d)(1) of
this section not to reasonably describe the records requested, the
response denying the request on that ground shall specify the reasons
why and shall extend to the requester an opportunity to confer with
knowledgeable Commission personnel in an attempt to reduce the request
to manageable proportions by reformulation and by agreeing on an orderly
procedure for the production of the records.
Sec. 700.243 Action on initial requests.
(a) Granting of requests. (1) A requested record shall be made
available if (i) the record is not exempt from disclosure or (ii) the
record is exempt from disclosure, but its withholding is neither
required by statute or Executive order nor supported by sound grounds.
(b) Form of grant. (1) When a requested record has been determined
to be available, the official processing the request shall immediately
notify the person 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. 700.251, the responsible
official shall also state the amount or, if the exact amount cannot be
determined, the approximate amount of fees due.
(2) If the record was obtained by the Commission from a person or
entity outside of the Government, the responsible official shall, when
it is administratively feasible to do so, notify that person or entity
that the record has been made available.
(c) Denial of requests. (1) A request for a record may be denied
only if it is determined that (i) the record is exempt from disclosure
and (ii) that withholding of the record is required by statute or
Executive order or supported by sound grounds.
(2) A request to inspect or copy a record shall be denied only by
the Freedom of Information Act Officer or by an official whom the
Executive Director has in writing designated.
(d) Form of denial. A reply denying a request shall be in writing
and shall include:
(1) A reference to the specific exemption or exemptions under the
Freedom of Information Act authorizing the withholding of the record;
(2) The sound ground for withholding;
(3) A listing of the names and titles or positions of each person
responsible for the denial;
(4) A statement that the denial may be appealed to the Commission
pursuant to Sec. 700.247 and that such appeal must be in writing and be
received by this official within twenty (20) days (Saturdays, Sundays,
and public legal holidays excepted) after the date of the denial, in the
case of the denial of an entire request, or within twenty (20) days
(Saturdays, Sundays, and public legal holidays excepted) of rec ords
being made available, in the case of a partial denial, by writing to the
Freedom of Information Act Officer, Navajo-Hopi Indian Relocation
Commission, P.O. Box KK, Flagstaff, Arizona 86002.
(e) Exception. The requirements of paragraphs (c), (d), and (e) of
this section do not apply to requests denied under Sec. 2.14 on the
ground that the request did not reasonably describe the records
requested or to requests for rec ords which do not exist.
[[Page 920]]
(f) Filing of denials. Copies of all replies denying, in whole or
part, a request for a record which are issued under this section of
Sec. 700.243 shall be promptly submitted by the Freedom of Information
Act Officer, denials to the Executive Director and the Commission's
legal counsel.
Sec. 700.245 Time limits on processing of 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 ten (10) days (excepting Saturdays, Sundays, and legal public
holidays) after receipt of a request. This determination shall be
communicated immediately to the requester.
(b) Running of basic time limit. For purposes of paragraph (a) of
this section, the time limit commences to run when a request is received
at the Commission's office in Flagstaff, Arizona.
(c) Extensions of time. In the following unusual circumstances, the
time limit for acting upon an initial request may be extended to the
extent reasonably necessary to the proper processing of the particular
request, but in no case may the time limit be extended for more than ten
(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
office processing the request;
(2) The need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records which are 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
agency having substantial subject-matter interest therein.
(d) Authority to make extensions. (1) An extension of time under
paragraph (c) of this section may be made only by the Freedom of
Information Act Officer or such higher authority as the Commission has
in writing designated.
(2) The person requesting the rec ords shall be notified in writing
of the extension. The written notice shall state the reason for the
extension and the date on which a determination on the request is
expected to be dispatched.
(3) The Freedom of Information Act Officer shall be responsible for
promptly furnishing copies of such notices to the Executive Director and
the Commission's legal counsel.
(e) Treatment of delay as denial. (1) If no determination has been
reached at the end of the ten (10) day period for deciding an initial
request, or the last extension thereof, the requester may deem his
request denied and may exercise a right of appeal in accordance with the
provisions of Sec. 700.247.
(2) When no determination can be reached within the applicable time
limit, the responsible official shall nevertheless continue to process
the request. On expiration of the time limit, the responsible official
shall inform the requester of the reason for the delay, of the date on
which a determination may be expected to be dispatched, and of his right
to treat the delay as a denial for purposes of appeal to the Commission
in accordance with Sec. 700.247. The requester may be asked to consider
delaying use of his right to appeal until the date on which the
determination is expected to be dispatched. If the requester so agrees,
he is deemed not to have treated the failure to respond within the
applicable time limit as a denial for purposes of the running of the
twenty (20) working-day appeal period set out in Sec. 700.247. If a
determination of the request is not issued by the new agreed upon date,
or if the request is denied in whole or part, the requester will have
available his full right of appeal under Sec. 700.247, including the
entire twenty (20) working-day period for filing of the appeal.
Sec. 700.247 Appeals.
(a) Right of appeal. Where a request for records has been denied, in
whole or part, the person submitting the request may appeal the denial
to the Commission.
(b) Time for appeal. An appeal must be received no later than twenty
(20) days (Saturdays, Sundays, and public legal holidays excepted) after
the date of the initial denial, in the case of a denial of an entire
request, or twenty (20) days
[[Page 921]]
(Saturdays, Sundays, and public legal holidays excepted) 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 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 Freedom of Information Act
Officer, Navajo-Hopi Indian Relocation Commission, P.O. Box KK,
Flagstaff, Arizona 86002.
(3)(i) Both the envelope containing the notice of appeal and the
face of the notice shall bear the legend ``FREEDOM OF INFORMATION
APPEAL''. The failure of an appeal to bear such a legend will not
disqualify an appeal from processing under Sec. 2.18 if the appeal
otherwise meets the requirements of this section. An appeal not bearing
the legend ``FREEDOM OF INFORMATION APPEAL'' will not, however, be
deemed to have been received for purposes of the running of the time
limit set out in Sec. 700.249 until it has been identified by
Commission personnel as a Freedom of Information appeal and marked by
them with this legend.
(ii) Commission personnel identifying a communication from the
public not bearing the legend ``FREEDOM OF INFORMATION APPEAL'' as an
appeal otherwise meeting the requirements of this section shall
immediately (A) mark the communication with the legend ``FREEDOM OF
INFORMATION APPEAL,'' (B) date the appeal to reflect the date on which
it was identified, and (C) take steps to assure proper processing of the
appeal under the procedures in this subpart.
(4) The Freedom of Information Act Officer shall be responsible for
promptly furnishing copies of such notices to the Executive Director and
the Commission's legal counsel.
Sec. 700.249 Action on appeals.
(a) Authority. Appeals from initial denials of requests for records
shall be decided for the Commission by the Executive Director after
consultation with the Commission's legal counsel.
(b) Time limit. A final determination on any appeal shall be made
within twenty (20) days (excepting Saturdays, Sundays, and public legal
holidays) after receipt of the appeal.
(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. 700.245 or was extended for fewer than ten (10) working days, the
time for processing of the appeal may be extended by the Executive
Director 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 ten
(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.
700.245(c) requires an extension.
(2) The Executive Director shall, in writing, advise the appellant
of the reasons for the extension and the date on which a final
determination of the appeal is expected to be dispatched.
(3) If no determination on the appeal has been reached at the end of
the twenty (20) working-day period for deciding an appeal, or the last
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 expected to be dispatched,
and of his right to seek judicial review. The requester may be asked to
consider delaying resort to his right to judicial review until the date
on which the determination on his appeal is expected to be dispatched.
[[Page 922]]
(d) Form of decision. 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 Freedom of Information Act Officer shall immediately make the
records available or instruct the appropriate bureau official 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 his 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 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.
(e) Distribution of copies. Copies of final determinations issued by
the Commission shall be provided to the Commission's legal counsel.
Sec. 700.251 Fees.
(a) Services for which fees may be charged. (1) Unless waived
pursuant to the provisions of paragraph (c) of this section, user fees
shall be charged for document search and duplication costs incurred in
responding to requests for records. User fees also shall be charged for
the formal certification of verification attached to authenticated
copies of records under the seal of the Commission.
(2) Unless waived or reduced pursuant to paragraph (c) of this
section, user fees shall be charged in accordance with the schedule of
charges contained in the Commission's Management Manual.
(b) Services for which fees may not be charged. No fee may be
charged for any services required by the Freedom of Information Act to
be performed in responding to a request for records other than those
services for which fees may be charged under paragraph (a) of this
section. Services for which no fees may be charged include, but are not
limited to,
(1) Examining requested records to determine whether they are exempt
from mandatory disclosure or whether, even if exempt, they should
nevertheless be made available in whole or part,
(2) Deleting exempt matter from records so that the remaining
portions of the records may be made available,
(3) Monitoring a requester's inspection of agency rec ords made
available to him for inspection, and
(4) Resolving legal and policy issues affecting access to requested
records.
(c) Waiver or reduction of fees. (1) Fees otherwise chargeable for
document search and duplication costs incurred in responding to requests
for records may be waived or reduced, as appropriate, if the official
making the records available determines that furnishing the records can
be considered as primarily benefiting the public as opposed to the
requester.
(2) Fees otherwise applicable for document research and duplication
costs incurred in responding to requests may be waived and not charged
if the request involves:
(i) Furnishing unauthenticated copies of any documents reproduced
for gratuitous distribution;
(ii) 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 Commission;
(iii) 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.
(3) Fees otherwise chargeable for document search and duplication
costs incurred in responding to requests may be waived or reduced if the
cost of collecting the fee would exceed the amount of the fee or if the
request involves:
(i) Furnishing records to press, radio and television
representatives for dissemination through the media to the general
public;
(ii) Furnishing records to donors with respect to their gifts;
(iii) Furnishing records to individuals or private non-profit
organizations having an official voluntary or cooperative relationship
with the Commission to assist the individual or organization in its work
with the Commission;
(iv) Furnishing records to state, local and tribal governments and
public
[[Page 923]]
international organizations when to do so without charge is an
appropriate courtesy, or when the recipient is carrying on a function
related to that of the Commission and to do so will help to accomplish
the work of the Commission;
(v) Furnishing records when to do so saves costs and yields income
equal to the direct cost of providing the records (e.g., where the
Commission's fee for the service would be included in a billing against
the Commission);
(vi) 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 Commission employees);
(vii) Furnishing one copy of a record in order to assist the
requester to obtain financial benefits to which he is entitled (e.g.,
veterans or their dependents, employees with Government employee
compensation claims or persons insured by the Government).
(d) Notice of anticipated fees and prepayment. (1) Where it is
anticipated that fees chargeable under this section may amount to more
than $25.00 and the requester has not indicated in advance his
willingness to pay fees as high as are anticipated, the request shall be
deemed not to have been received for purposes of the time limits
established by Sec. 700.245 until the requester is advised of the fees
which are anticipated and has agreed to pay these fees. Advice to
requesters with respect to anticipated fees shall be provided promptly.
(2) The appropriate cases, advance payment of fees may be required
before requested records are made available to the requester.
(3) A notice of anticipated fees or notice of request for advance
payment shall extend an offer to the requester to confer with
appropriate personnel in an attempt to reformulate the request in a
manner which will reduce the anticipated fees and meet the needs of the
requester.
(e) Form of payment. Payment of fees shall be made by check or money
order payable to the Navajo-Hopi Indian Relocation Commission. The term
United States or the initials ``U.S.'' shall 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.
Subpart K_Privacy Act
Sec. 700.255 Purpose and scope.
This subpart contains the regulations of the Navajo and Hopi Indian
Relocation Commission implementing section 3 of the Privacy Act.
Sec. 700.257 Definitions.
(a) Act. As used in this subpart, ``Act'' means section 3 of the
Privacy Act, 5 U.S.C. 552a.
(b) Individual. As used in this subpart, ``individual'' means a
citizen of the United States or an alien lawfully admitted for permanent
residence.
(c) Maintain. As used in this subpart, the term ``maintain''
includes maintain, collect, use or disseminate.
(d) Record. As used in this subpart, ``record'' means any item,
collection, or grouping of information about an individual that is
maintained by the Commission including, but not limited to, education,
financial transactions, medical history, 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.
(e) System of records. As used in this subpart, ``System of
records'' means a group of any records under the control of the
Commission 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.
(f) Medical records. As used in this subpart, ``medical records''
means rec ords which relate to the identification, prevention, cure or
alleviation of any disease, illness or injury including psychological
disorders, alcoholism and drug addiction.
(g) Civil Service Commission personnel records. As used in this
subpart, ``Civil Service Commission personnel records'' means records
maintained for the Civil Service Commission by the Commission and used
for personnel management programs or processes such as
[[Page 924]]
staffing, employee development, retirement, and grievances and appeals.
(h) 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.
(i) 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.
(j) 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 annually in the Federal Register.
(k) 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.
(l) Commission Privacy Act Officer. As used in the subpart,
``Commission Privacy Act Officer'' means the official in the Commission
charged with responsibility for assisting the Commission in carrying out
the functions which he is assigned in this subpart and for coordinating
the activities of the divisions of the Commission in carrying out the
functions which they are assigned in this subpart.
Sec. 700.259 Records subject to Privacy Act.
The Privacy Act applies to all ``rec ords'' as that term is defined
in Sec. 700.257(d), which the Commission maintains in a ``system of
records,'' as that term is defined in Sec. 700.257(e).
Sec. 700.261 Standards for maintenance of records subject to the Act.
(a) Content of records. Records subject to the Privacy 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 Privacy 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 determination about an individual's rights, benefits, and
privileges under Federal programs shall, to the greatest extent
practicable, be collected directly from that individual.
(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 individual concerning uses of information. (1) Each
individual who is asked to supply information about himself 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
[[Page 925]]
(iv) The effects on him, 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 on the form or 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 provide 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
that a copy be mailed to him.
(iii) An individual may be asked to acknowledge, in writing, that he
has been afforded the notice required by this section.
(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 (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.
Sec. 700.263 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 which could result in
substantial harm, embarassment, inconvenience, or unfairness to any
individual on whom information is maintained, 5 U.S.C. 522a(e)(10).
(b) Records maintained in manual form. When maintained in manual
form, records subject to the Privacy Act shall be maintained, at a
minimum, subject to the following safeguards, or safeguards affording
comparable protection:
(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 shall also
summarize the requirements of Sec. 700.265 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.
(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 Standards 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) Civil Service Commission personnel records. A system of records
made up of Civil Service Commission personnel records shall be
maintained under the security requirements set out in 5 CFR 293.108.
Sec. 700.265 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 Commission may
disclose rec ords subject to the Privacy Act unless disclosure is
permitted under Sec. 700.267 or is to the individual to whom the record
pertains.
(c) Alteration of records. No employee of the Commission 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 Sec. Sec. 700.287-
[[Page 926]]
700.295 or the decision of a court of competent jurisdiction.
Sec. 700.267 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)
of this section does not apply where disclosure of the record would be:
(1) To those officers or employees of the Commission 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. 522.
(c) Specific exceptions. The prohibition contained in paragraph (a)
does not apply where disclosure of the record would be:
(1) For a routine use as defined in Sec. 700.257(i) which has been
described in a systems 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 of the United States 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
Administrator of General Services or his designee 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; or
(9) Pursuant to the order of a court of competent jurisdiction.
(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 rec ords 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 Commission indicating that
the record may not be fully accurate, complete, or timely.
Sec. 700.269 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. 700.267(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.
[[Page 927]]
(b) Access to accountings. (1) Except for accountings of disclosures
made under Sec. 700.267(c)(5), accountings of all disclosures of a
record shall be made available to the individual to whom the record
relates at his request.
(2) An individual desiring access to accountings of disclosures of a
record pertaining to him shall submit his request by following the
procedures of Sec. 700.277.
(c) Notification of disclosure. When a record is disclosed pursuant
to Sec. 700.267(c)(9) as the result of the order of a court of
competent juridiction, 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.
Sec. 700.271 Requests for notification of existence of records: Submission.
(a) Submission of requests. (1)(i) An individual desiring to
determine under the Privacy Act whether a system of records contains
records pertaining to him shall address his inquiry 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 that an
individual contact more than two officials concerning the existence of
records in the system, an individual desiring to determine whether the
system contains rec ords pertaining to him may contact the system
manager for assistance in determining which official is most likely to
be in possession of records pertaining to that individual.
(2) If an individual desires to determine whether records pertaining
to him are maintained in two or more systems, he 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 himself and shall supply
such additional identifying information, if any, as is called for in the
system notice describing the system.
(4) If an individual has reason to believe that information
pertaining to him or her may be filed under a name other than the name
he or she is currently using (e.g., a maiden name), he or she shall
include this information in the request.
Sec. 700.273 Request for notification of existence of records: Action on.
(a) Decisions on request. (1) An individual inquiring to determine
whether a system of records contains records pertaining to him shall be
advised within ten (10) days (excepting Saturdays, Sundays and legal
public holidays) whether or not the system does contain records
pertaining to him 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.
(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 individual will be promptly notified that his is not
entitled to notification of whether the system contains records
pertaining to him.
(b) Authority to deny requests. A decision to deny a request for
notification of the existence of records shall be made by the Privacy
Act Officer.
(c) Form of decision. (1) No particular form is required for a
decision informing an individual whether or not a system of records
contains records pertaining to him.
(2) A decision declining to inform an individual whether or not a
system of records contains records pertaining to him shall be in writing
and shall state the basis for denial of the request and shall advise the
individual that he may appeal the declination to the Executive Director
pursuant to Sec. 700.285 by writing to the Privacy Act Officer, Navajo
and Hopi Indian Relocation Commission, P.O. Box KK, Flagstaff, Arizona
[[Page 928]]
86002, and that the appeal must be received by this official within
twenty (20) days (Saturdays, Sundays and public legal holidays excepted)
of the date of the decision.
Sec. 700.275 Requests for access to records.
The Privacy Act permits an individual, upon his request, to gain
access to his record or to any information pertaining to him which is
contained in a system and to review the record and have a copy made of
all or any portion thereof in a form comprehensive to him, 5 U.S.C.
552a(d)(1). A request for access shall be submitted in accordance with
the procedures in this subpart.
Sec. 700.277 Requests for access to records: Submission.
(a) Submission of requests. (1) 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.
(2) If an individual desires access to records maintained in two or
more separate systems, he 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) The request shall specify whether the requester seeks all of the
rec ords contained in the system which relate to him or only some
portion thereof. If the requester seeks only a portion of the records
which relate to him, the request shall reasonably describe the specific
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. 700.279(d) the failure to state willingness to
pay fees as high as are anticipated by the Commission 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
request of the deficiency in the request.
Sec. 700.279 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.
(b) Authority to deny requests. A decision to deny a request for
access under this subpart shall be made by the Privacy Act Officer.
(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. 700.279(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 state the basis for denial of the request. The
decision shall also contain a statement that the denial may be appealed
to the Executive Director pursuant to Sec. 700.281 by writing to
Privacy Act Officer, Navajo and Hopi Indian Relocation Commission, P.O.
Box KK, Flagstaff, Arizona 86002, and that the appeal must be received
by this official within twenty (20) days (Saturdays, Sundays and public
legal
[[Page 929]]
holidays excepted) of the date of the decision.
(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. 700.271.
(2) Fees for copying a record in response to a request made under
Sec. 700.271 shall be charged in accordance with the schedule of
charges contained in the Commission's Management Manual, unless the
official responsible for processing the request determines that, in his/
her opinion, 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 he/she is willing 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.
Sec. 700.281 Requests for notification of existence of records and for
access to records: Appeals.
(a) Right of appeal. If an individual has been notified that he/she
is not entitled to notification of whether a system of records contains
records pertaining to him or has been denied access, in whole or part,
to a requested record that individual may appeal to the Executive
Director.
(b) Time for appeal. (1) An appeal must be received by the Privacy
Act Officer no later than twenty (20) days (Saturdays, Sundays and
public legal holidays excepted) after the date of the initial decision
on a request.
(2) The Executive Director 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) days (Saturdays, Sundays and public
legal holidays excepted) of the date of the initial decision of 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, Navajo and
Hopi Indian Relocation Commission, Box KK, Flagstaff, Arizona 86002.
(d) Action on appeals. (1) Appeals from decisions on initial
requests made pursuant to Sec. Sec. 700.273 and 700.277 shall be
decided for the Commission by the Executive Director after consultation
with the Commission's legal counsel.
(2) The decision on an appeal shall be in writing and shall state
the basis for the decision.
Sec. 700.283 Requests for access to records: Special situations.
(a) Medical records. (1) Medical rec ords 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 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) An individual wishing
to inspect records pertaining to him which have been opened for his
inspection may, during the inspection, be accompanied by a person of his
own choosing.
(2) When such a procedure is deemed appropriate, the individual to
whom the records pertain may be required to furnish a written statement
authorizing discussion of his record in the accompanying person's
presence.
Sec. 700.285 Amendment of records.
The Privacy Act permits an individual to request amendment of a
record pertaining to him if be believes the record is 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.
Sec. 700.287 Petitions for amendment: Submission and form.
(a) Submission of petitions for amendment. (1) A request for
amendment of a
[[Page 930]]
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 whose amendment is
sought.
(2) The petition shall state, in detail, the reasons why the
petitioner believes the record, or the portion thereof objectionable to
him, 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 of the
record or portions thereof or involve adding new language to the record,
the petition shall propose specific language to implement the changes.
Sec. 700.289 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. 700.261. In addition, personnel records shall be assessed
against the criteria for determining record quality published in the
Federal Personnel Manual and the Commission Manual addition thereto.
(b) Authority to decide. An initial decision on a petition for
amendment may be made only by the Privacy Act Officer.
(c) Acknowledgement of receipt. Unless processing of a petition is
completed within ten (10) days (Saturdays, Sundays and public legal
holidays excepted), 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. 700.287, the petitioner shall be so advised and
shall be told what additional information must be submitted to meet the
requirements of Sec. 700.287.
(2) If the petitioner fails to submit the additional information
within a reasonable time, his 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 petitioned for amendment is rejected, in whole or part,
the decision shall advise the petitioner that the rejection may be
appealed to the Executive Director by writing to the Privacy Act
Officer, Navajo and Hopi Indian Relocation Commission, Box KK,
Flagstaff, Arizona 86002, and that the appeal must be received by this
official within twenty (20) days (Saturdays, Sundays and public legal
holidays excepted) of the date of the decision.
(f) Implementation of initial decision. If a petitioned for
amendment is accepted, in whole or part, the appropriate Commission
Division maintaining the record shall:
(1) Correct the record accordingly and,
(2) Where an accounting of disclosures has been made pursuant to
Sec. 700.269 advise all previous recipients of the record that the
correction was made and the substance of the correction.
Sec. 700.291 Petitions for amendment: Time limits for processing.
(a) Acknowledgement of receipt. The acknowledgement of receipt of a
petition required by Sec. 700.289(c) shall be dispatched not later than
ten (10) days (Saturdays, Sundays and public legal holidays excepted)
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.
[[Page 931]]
(b) Decision on petition. A petition for amendment shall be
processed promptly. A determination whether to accept or reject the
petitioned for amendment shall be made within no more than thirty (30)
days (Saturdays, Sundays, and public legal holidays excepted) 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. 700.289(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 rec ords must be collected from
facilities other than the facility at which the official responsible for
making the decision is located.
(2) If the official responsible for making a decision on the
petition determines that an extension is necessary, he shall promptly
inform the petitioner of the extension and the date on which a decision
is expected to be dispatched.
Sec. 700.293 Petitions for amendment: Appeals.
(a) Right of appeal. Where a petitioned-for amendment has been
rejected, in whole or part, the individual submitting the petition may
appeal the denial to the Executive Director.
(b) Time for appeal. (1) An appeal must be received no later than
twenty (20) days (Saturdays, Sundays and public legal holidays excepted)
after the date of the decision on a petition.
(2) The Executive Director 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) days (Saturdays, Sundays and public
legal holidays excepted) 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, Navajo and
Hopi Indian Relocation Commission, Box KK, Flagstaff, Arizona 86002.
Sec. 700.295 Petitions for amendment: Action on appeals.
(a) Authority. Appeals from decisions on initial petitions for
amendment shall be decided for the Commission by the Executive Director
after consultation with the Commission's legal counsel unless the record
challenged by the initial petition is a Civil Service Commission
personnel record maintained for the Commission by the Navajo and Hopi
Indian Relocation Commission. Appeals from decisions on initial
petitions requesting amendment of Civil Service Commission rec ords
maintained for the Commission by the Navajo and Hopi Indian Relocation
Commission shall be transmitted by the Executive Director, for decision.
(b) Time limit. (1) A final determination on any appeal shall be
made within thirty (30) days (Saturdays, Sundays and legal public
holidays excepted) 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 Commission. 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 petitioned for amendment, the determination shall
also advise the individual submitting the appeal:
[[Page 932]]
(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. 700.297 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 Commission, a brief statement by the Commission
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 Commission's
refusal to amend the record.
(3) If the determination reverses, in whole or in part, the initial
decision rejecting the petitioned for amendment, the system manager
responsible for the system containing the challenged record shall be
directed to:
(i) Amend the challenged record accordingly; and
(ii) If an accounting of disclosure has been made, advise all
previous recipients of the record which was amended of the amendment and
its substance.
Sec. 700.297 Statements of disagreement.
(a) Filing of statements. If the determination of the Executive
Director under Sec. 700.295 rejects in whole or part, a petitioned 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 his 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 occurring 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 Commission for
not making the requested amendments may also be provided to recipient.
Subpart L_Determination of Eligibility, Hearing and Administrative
Review (Appeals)
Source: 46 FR 46801, Sept. 22, 1981; 47 FR 15774, Apr. 13, 1982,
unless otherwise noted.
Sec. 700.301 Definitions.
(a) Certifying Officer, as used in this subpart, means that member
of the Commission staff who certifies eligibility for relocation
assistance benefits and/or for life estate leases.
(b) An aggrieved person, as used in this subpart, means a person who
has been denied any relocation assistance benefits for which he/she has
applied.
Sec. 700.303 Initial Commission determinations.
(a) Initial Commission Determination concerning individual
eligibility or benefits for any person who has filed a claim for
benefits or for granting of life estate leases shall be made by the
Certifying Officer. The Determination shall include the amount, if any,
to which the individual is entitled, and shall state the reasons
therefor. Such Determination shall be communicated to the Applicant by
certified letter or in person by Commission staff. A record of personal
notice shall be maintained by the Commission.
(b) An explanatory conference shall be scheduled by and with the
Certifying Officer, if requested by the Applicant or the Certifying
Officer, within thirty days of the communication of the Determination;
the right to a hearing is not dependent on the holding of such a
conference. The Certifying Officer may reverse, amend, or leave standing
the Initial Determination as a result of such conference: Provided,
however, his/her decision shall be communicated in writing to the
Applicant by certified letter or in person by Commission staff within
five days after such conference.
(c) Communications of Determinations to the Applicant as provided
for in Sec. 700.303(a) shall include an explanation of the availability
of grievance
[[Page 933]]
procedures, including hearings and representation of counsel and the
fact that a hearing must be requested within 30 (thirty) days of receipt
of the determination.
(d) No decision which at the time of its rendition is subject to
appeal to the Commission shall be considered final agency action subject
to judicial review under 5 U.S.C. 704, Provided that in the event of a
whole or partial denial, no benefits shall be paid unless and until said
Determination is reversed or modified as provided for herein.
Sec. 700.305 Availability of hearings.
All persons aggrieved by Initial Commission Determinations
concerning eligibility, benefits, or for granting of life estate leases
may have a Hearing to present evidence and argument concerning the
Determination. Parties seeking such relief from the Commission's Initial
Determination shall be known as ``Applicants.'' When multiple Applicants
claim interest in one benefit, determination, or question of
eligibility, their hearings may be consolidated at the Presiding
Officer's discretion.
Sec. 700.307 Request for hearings.
Hearing requests shall be made in person or by letter and must be
received by the Commission within thirty days after the notice letter
was received, the personal notice was given, or if an explanatory
conference is held, after the decision of the Certifying Officer. The
request shall also contain a specific statement indicating the basis for
the request.
Sec. 700.309 Presiding officers.
The hearing shall be presided over and conducted by one of the
Commissioners appointed pursuant to 25 U.S.C. 640d-11(b) or by such
other person as the Commission may designate.
Sec. 700.311 Hearing scheduling and documents.
(a) Hearings shall be held as scheduled by the Presiding Officer.
(b) Notice of the hearing shall be communicated in writing to the
applicant at least thirty days prior to the hearing and shall include
the time, date, place, and nature of the hearing.
(c) Written notice of the Applicant's objections, if any, to the
time, date, or place fixed for the hearing must be filed with the
Presiding Officer at least five days before the date set for the
hearing. Such notice of objections shall state the reasons therefor and
suggested alternatives. Discretion as to any changes in the date, time,
or place of the hearing lies entirely with the Presiding Officer,
Provided, that the 30 (thirty) day notice period as provided in
paragraph (b) of this section shall be observed unless waived in writing
by the applicant or his representative.
(d) All hearings shall be held within thirty days after Commission
receipt of the applicant's request therefor unless this limit is
extended by the Presiding Officer.
(e) All hearings shall be conducted at the Commission office in
Flagstaff, Arizona, unless otherwise designated by the Presiding
Officer.
(f) All time periods in this regulation include Saturdays, Sundays
and holidays. If any time period would end on a Saturday, Sunday, or
holiday, it will be extended to the next consecutive day which is not a
Saturday, Sunday, or holiday.
(g) A copy of each document filed in a proceeding under this section
must be filed with the Commission and may be served by the filing party
by mail on any other party or parties in the case. In all cases where a
party is represented by an attorney or representative, such attorney or
representative will be recognized as fully controlling the case on
behalf of his client, and service of any document relating to the
proceeding shall be made upon such attorney or representative, which
service shall suffice as if made upon the Applicant. Where a party is
represented by more than one attorney or representative, service upon
one of the attorneys or representatives shall be sufficient.
(h) Hearings will be recorded verbatim and transcripts thereof shall
be made when requested by any parties; costs of transcripts shall be
borne by the requesting parties unless waived according to Sec.
700.313(a)(5).
(i) Applicants may be represented by a licensed attorney or by an
advocate
[[Page 934]]
licensed to practice in any Hopi or Navajo Tribal Court.
Sec. 700.313 Evidence and procedure.
(a) At the hearing and taking of evidence the Applicant shall have
an opportunity to:
(1) Submit and have considered facts, witnesses, arguments, offers
of settlement, or proposals of adjustment;
(2) Be represented by a lawyer or other representative as provided
herein;
(3) Have produced Commission evidence relative to the determination,
Provided, that the scope of pre-hearing discovery of evidence shall be
limited to relevant matters as determined by the Presiding Officer;
(4) Examine and cross-examine witnesses;
(5) Receive a transcript of the hearing on request and upon payment
of appropriate Commission fees as published by the Commission, which may
be waived in cases of indigency.
(b) The Presiding Officer is empowered to:
(1) Administer oaths and afffirmations;
(2) Rule on offers of proof;
(3) Receive relevant evidence;
(4) Take depositions or have depositions taken when the ends of
justice would be served and to permit other pre-hearing discovery within
his/her discretion;
(5) Regulate the course and conduct of the hearings; including pre-
hearing procedures;
(6) Hold pre-hearing or post-hearing conferences for the settlement
or simplification of the issues;
(7) Dispose of procedural requests or similar matters;
(8) Make a record of the proceedings;
(9) Hold the record open for submission of evidence no longer than
fourteen days after completion of the hearings;
(10) Make or recommend a decision in the case based upon evidence,
testimony, and argument presented;
(11) Enforce the provisions of 5 USCA section 557(d) in the event of
a violation thereof;
(12) Issue subpoenas authorized by law; and
(13) Extend any time period of this subpart upon his/her own motion
or upon motion of the applicant, for good cause shown.
Sec. 700.315 Post-hearing briefs.
Applicants may submit post-hearing briefs or written comments to the
Presiding Officer within fourteen days after conclusion of the hearings.
In the event of multiple applicants or parties to a hearing, such briefs
shall be served on all such applicants by the applicant submitting the
brief.
Sec. 700.317 Presiding officer decisions.
(a) The Presiding Officer shall submit to the Commission a written
decision based upon the evidence and argument presented, within sixty
days, not including any period the record is held open, if any, after
conclusion of the hearing, unless otherwise extended by the Presiding
Officer.
(b) Copies of the Presiding Officer's decision shall be mailed to
the Applicant. The Applicant may submit briefs or other written argument
to the Commission within fourteen days of the date the Presiding
Officer's determination was mailed to the Applicant.
Sec. 700.319 Final agency action.
Within 30 (thirty) days after receipt of the Presiding Officer's
decision, the Commission shall affirm or reverse the decision and issue
its final agency action upon the application in writing; Provided, that
in the event one Commissioner sits as the Presiding Officer, the final
agency action shall be determined by the remaining Commissioners and
such other person as they may designate who did not so preside over the
hearing. Such decisions shall be communicated in writing to the
Applicant by certified mail.
Sec. 700.321 Direct appeal to Commissioners.
Commission determinations concerning issues other than individual
eligibility or benefits which do not require a hearing may be appealed
directly to the Commission in writing. The Commission decision will
constitute final agency action on such issues.
[[Page 935]]
Subpart M_Life Estate Leases
Authority: Sec. 30(b), Pub. L. 96-305, 94 Stat. 929 (25 U.S.C.
640d).
Source: 46 FR 27921, May 22, 1981; 47 FR 15774, Apr. 13, 1982,
unless otherwise noted.
Sec. 700.331 Application for life estate leases.
The following standards and procedures shall govern the application
for life estate leases:
(a) Filing of application. Applications for life estate leases shall
be filed at the Commission's office in Flagstaff, AZ, not later than
July 1, 1981, unless extended for good cause. Application should be made
on an approved Commission form known as ``Application for Life Estate
Lease'' and should contain the following information:
(1) Name, address, birthdate, social security number, census number,
spouse, and date of marriage, if married. The head of household who
applies for a life estate lease shall be known as the ``applicant''.
(2) Applicant's Quad Map location in the Former Joint Use Area.
(3) Information listing any other places of Applicant's residence
since December 22, 1974.
(4) Name, birthdate, census number, and social security number, if
any, of the applicant's minor dependent children.
(5) A statement by the applicant setting forth the nature of the
applicant's disability, if any.
(6) Applications should be accompanied, wherever possible, with
documentation such as Birth Certificates, Baptismal Records, Tribal
Records, Family Census Cards, Marriage Certificates, Tax Returns, and
such other documentation required by the Commission.
(b) Extensions of time for filing of applications for life estate
leases. Extensions of time for filing of applications for life estate
leases shall be governed by the following procedures:
(1) The Commission shall, on a case-by-case basis, determine whether
good cause exists to warrent a time extension for the receipt of
applications.
(2) Initial Commission determinations concerning the time extension
for receipt of applications shall be made by the Certification Officer.
Any extensions granted shall be in writing and shall state the length of
the extensions and the reasons therefore.
(3) In no event shall an extension be granted for more than eighty-
nine (89) days after July 1, 1981.
(4) In the event an extension of time is denied or an application is
refused for filing, the Certification Officer shall state the reasons
therefore and such determination shall be communicated to the applicant
by certified letter or in person by Commission staff.
(5) All persons aggrieved by initial Commission determination may
have a hearing to present evidence and argument concerning the
determination. Such hearings shall be requested and governed by the
Commission's Hearings and Administrative Review Procedures contained in
Sec. 700.8 of the Commission's Operations and Relocation Procedures.
(6) For purpose of this subsection, ``good cause'' shall be defined
as follows:
(i) Lack of actual notice.
(ii) Lack of transportation or physical incapacity preventing timely
filing.
(iii) Acts of God.
(iv) Such other facts or reasons deemed sufficient in the discretion
of the Commission.
Sec. 700.333 Determination of disability.
The Commission shall determine disability pursuant to the following:
(a) An applicant shall be considered to be disabled if he/she is
unable to engage in any substantial gainful activity by reason of any
medically determined physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to last for a
continuous period of not less than twelve months. A physical or mental
impairment is an impairment that results from anatomical, physiological,
or psychological abnormalities which are demonstrable by medically
acceptable clinical and laboratory diagnostic techniques.
(b) Each applicant who claims entitlement to a life estate lease by
virture of a disability shall be examined by a physician selected by the
Commission
[[Page 936]]
or one selected by the applicant and approved by the Commission. The
reasonable costs of such examinations shall be paid by the Commission.
The examining physician shall submit a report of his/her examination to
the rating physician who shall be a physician selected by the
Commission. The rating physician shall submit to the Commission a report
stating his/her opinion as to whether or not the applicant is a least
50% (fifty percent) disabled and if so, the percent of disability. In
addition, the rating physician shall state in his/her report the
conditions or conditions of the applicant upon which the rating is
based.
(c) In performing examinations and in making ratings, the physician
shall follow the procedures and adopt the standards set forth in subpart
I--Determination of Disability or Blindness, of the Social Security
Administration, contained in title 20, Code of Federal Regulations,
Sec. Sec. 416.901 through 416.985, including the appendices, etc., to
the extent that such procedures and standards are appropriate to this
examination and rating.
(d) In making its determination as to the disability and the
percentage thereof of an applicant who claims disability, the Commission
shall consider the report of the rating physician and such other matters
as the Commission deems relevant.
Sec. 700.335 Grouping and granting of applications for life estate leases.
Upon receipt of applications filed pursuant to this section, the
Commission shall group and award life estate leases in the following
manner:
(a) Applicants who are determined to be at least 50% (fifty percent)
disabled as certified by a physician approved by the Commission. Such
applicants shall be ranked in the order of the severity of their
disability.
(b) Applicants who are not at least 50% (fifty percent) disabled
shall be ranked in order of their age with the oldest listed first and
the youngest listed last; provided that, if any applicant physically
resides in Quarter Quad Numbers 78 NW, 77NE, 55SW, or 54 SE, as
designated on the Quarter Quad Maps of the Former Joint Use Area
prepared by the Bureau of Indian Affairs Field Administrative Office,
such applicant shall be given priority over another applicant of equal
age.
(c) Applicants who did not, as of December 22, 1974, and
continuously thereafter, maintain a separate place of abode and actually
remain domiciled on Hopi Partitioned Lands, and who, but for this
subsection would be required to relocate, shall be rejected by the
Commission.
(d) Applicants who were not at least forty-nine (49) years of age on
December 22, 1974, or are not at least 50% (fifty percent) disabled
shall also be rejected by the Commission.
(e) The Commission shall award life estate leases to not more than
one hundred and twenty (120) Navajo applicants with first priority being
given to applicants listed pursuant to Sec. 700.335(a) and the next
priority being given to applicants listed pursuant to Sec. 700.335(b),
in order of such listing.
(f) The Commission shall award life estate leases to not more than
ten (10) Hopi applicants with first priority being given to applicants
listed pursuant to Sec. 700.335(a) and the next priority being given to
applicants listed pursuant to Sec. 700.335(b) in order of such listing
except that the portion of Sec. 700.335(b) concerning residency in
Quarter Quad Numbers 78 NW, 77NE, 77NW, 55 SW, 54SE, etc., shall not
apply to Hopi applicants.
Sec. 700.337 Establishment of boundaries of life estate leases.
(a) Prior to the issuance of a life estate lease, the Commission
shall, after consultation with the Tribe upon whose land the life estate
lease will be located, establish the actual configuration, shape and
boundaries of the land area of the life estate lease. The present
residence of the life tenant shall be within the boundaries of the life
estate lease and the area of the life estate lease shall not exceed
ninety (90) acres.
(b) The following factors will be considered in establishing the
configuration, shape, and boundaries of a life estate lease:
(1) The location of the present residence of the applicant and the
traditional land use area associated with such residence.
[[Page 937]]
(2) The topography and soil conditions of the land in the immediate
vicinity of the applicant's present residence.
(3) The location of the nearest source of water.
(4) The proximity of roads.
(5) Such other factors may be necessary or appropriate.
Sec. 700.339 Residency on life estate leases.
(a) No person may reside on a life estate lease other than the life
tenant, his or her spouse, and minor dependents and such persons who are
necessarily present, as determined by the Commission, to provide for the
care of the life tenant.
(b) In determining who is necessarily present for the care of the
life tenant, the Commission shall consider the following criteria:
(1) The age of the life tenant.
(2) The nature and extent of the life tenant's disability, if any.
(3) The location of the life estate lease, including but not limited
to, the following factors:
(i) Topography,
(ii) Proximity to water,
(iii) Proximity to fuel,
(iv) Proximity to shopping and medical services, and
(v) Any other factors deemed relevant to the Commission.
(4) The nature and extent of care to be provided to a disabled life
tenant.
(5) Any other factors deemed relevant by the Commission.
(c) In the event it becomes necessary to change the identity of the
person(s) or number of persons identified as necessarily present for the
care of the life tenant, the life tenant shall make such request for
change to the Commission. The Commission, upon review of the request,
may grant an amended life estate lease to reflect the requested change.
Sec. 700.341 Access to life estate leases.
(a) Family members and other persons may enter upon the life estate
lease premises for the purpose of visiting the life estate lease
residents so long as such visit does not exceed thirty (30) consecutive
days in any one visit or ninety (90) days total of all visits within any
lease year, except that grandchildren and their descendants who are not
minor dependents of the life tenant and who have not attained the age of
18 (eighteen) years may visit for ninety (90) consecutive days in any
lease year, the first of which shall commence on the date of issuance of
the life estate lease. There shall be no limitation on visits which do
not extend overnight.
(b) Visitors and residents shall use the existing road systems and
access rights of way when traveling to and from life estate lease
premises.
Sec. 700.343 Life estate leases.
The Commission shall execute a life estate lease to each applicant
to whom a life estate lease is granted, which lease shall contain the
following:
(a) The names of the persons entitled to reside on the life estate
lease which shall be the life tenant, his or her spouse, and minor
dependents and/or such persons who are necessarily present to provide
for the care of life tenant.
(b) A description of the exterior boundaries of the land included in
said lease.
(c) The term of the life estate lease which shall end either upon
voluntary relinquishment or upon the death of the life tenant or his/her
spouse, whichever occurs last.
(d) That the life tenant may feed not to exceed twenty-five (25)
sheep units per year or equivalent livestock on the life estate lease
premises.
(e) That no person may reside on a life estate lease other than the
life tenant, his or her spouse, and minor dependents, and/or such
persons who are necessarily present to provide for the care of the life
tenant.
(f) That the Secretary of Interior shall pay, pursuant to 25 U.S.C.
640d-28(i), Pub. L. 96-305, section 30(i), on an annual basis, the fair
market rental value of such life estate lease to the tribe to whom the
lands leased were partitioned. Rental payments shall be made within
thirty (30) days of the execution date of the life estate lease.
(g) That the life tenant may make reasonable improvements on the
life estate lease which are related to the residence and agricultural
purposes of
[[Page 938]]
the life tenancy as determined by the Commission. Such improvements:
(1) May include the renovation or replacement of existing dwelling
structures and privies or outhouses so as to improve their utility,
safety or level of modern utilities or amenities, but
(2) Shall not increase the number, size, or capacity of dwelling
structures on the leased area except with the express written approval
of the Commission based upon a showing of actual need, or to reasonably
accommodate a resident care provider for whom there is not adequate
existing residential capacity.
(3) May include not more than one shed or barn to be used in
connection with livestock and/or agricultural activities permitted.
(4) May include one ceremonial hogan and one traditional ramada type
structure.
(5) May include a garden of reasonable size.
(6) May include such other improvements as the Commission finds to
be reasonable under the circumstances of each lease.
(h) That no person may visit on a life estate lease for more than
thirty (30) consecutive days in any one visit or ninety (90) days total
of all visits within any lease year the first of which shall commence on
the date of issuance of the life estate lease, except that grandchildren
and their descendants who are not minor dependents of the life tenant
and who have not attained the age of eighteen (18) years may visit for
ninety (90) consecutive days in any lease year. There shall be no
limitation on visits which do not extend overnight.
(i) That said life tenant or his or her surviving spouse may
relinquish said life estate lease at any time and may receive relocation
benefits from the Secretary at the time of relinquishment as provided in
25 U.S.C. 640d-28(h), (Pub. L. 96-305, section 30(h)).
(j) The purposes for which the life estate lease may be used.
(k) The life estate tenure shall end by voluntary relinquishment, or
at the death of the life tenant or the death of his or her spouse,
whichever occurs last, all as provided in 25 U.S.C. 640d-28(g) (Pub. L.
96-305, section 30(g)).
(l) No livestock shall be allowed in the lease area until the
perimeter of the lease area is fenced.
(m) Such other terms and conditions deemed necessary or appropriate
by the Commission.
Subpart N_Discretionary Funds
Source: 47 FR 57916, Dec 29, 1982, unless otherwise noted.
Sec. 700.451 Purpose.
(a) The purpose of this subpart is to establish procedures for the
submission, review and approval, and administration of applications for
financial assistance from the discretionary fund established by Pub. L.
93-531, as amended.
(b) The purpose of the discretionary fund is to provide financial
assistance to activities which will facilitate and expedite the
relocation and resettlement of individuals under the Act and ease the
hardship incurred by these individuals.
Sec. 700.453 Definitions.
(a) Act means Pub. L. 93-531 (88 Stat. 1712, 25 U.S.C. 640d), as
amended.
(b) Applicant means with respect to this subpart, any applicant as
defined under Sec. 700.457(c) or Sec. 700.459(b).
(c) Business means any lawful activity, except a nonprofit
organization, that is--
(1) Conducted primarily for the purchase, sale, lease and/or rental
of personal and/or real property, and/or for the manufacture,
processing, and/or marketing of products, commodities, and/or any other
personal property; or
(2) Conducted primarily for the sale of services to the public.
(d) Commissioners means the three Commissioners of the Navajo and
Hopi Indian Relocation Commission.
(e) In-kind contribution means a noncash contribution as described
in attachment F of OMB Circular A-102.
(f) Local government means a local unit of government including
specifically a county, municipality, city, town, township, local public
authority, special district, council of governments, and other regional
or interstate entity, or any agency or instrumentality of a local
government.
[[Page 939]]
(g) Nonprofit organization means a corporation, partnership,
individual, or other public or private entity that is engaged in a
lawful business, professional, or instructional activity on a nonprofit
basis and that has established its nonprofit status under applicable
Federal, State, or Tribal law.
(h) Related facilities means any building or structure normally
found in a community and includes but is not limited to water, sewer and
electrical lines, community centers, health centers and clinics, roads,
and business establishments.
(i) Services means activities relating to human development
including, but not limited to, educational and job training, mental
health counseling, health care, and technical assistance in business
administration, agriculture, and home economics.
(j) Tribe means the Navajo Chapter or the Hopi Village.
(k) Tribal subdivision means a Navajo Chapter or a Hopi Village.
Sec. 700.455 Financial assistance.
(a) The Commission may provide financial assistance to applicants
eligible under this subpart from funds available for any fiscal year.
(b) To obtain financial assistance, an applicant shall submit an
application in accordance with Sec. 700.463.
(c) The Commission may make funding decisions throughout the year as
applications are approved. The Commission shall, to the extent possible,
make funds available throughout the year for approved applications.
Based upon the merit of applications received under this subpart, the
Commission shall determine how funds available under this subpart shall
be apportioned among the activities described in Sec. Sec. 700.457 and
700.459.
Sec. 700.457 Assistance to match or pay 30% of grants, contracts or
other expenditures.
(a) The purpose of applications for financial assistance under this
section shall be to aid individuals subject to relocation under the Act
and to assist the host communities, towns, cities, or other entities in
adjusting to and meeting the needs of the relocatees. For this purpose,
the discretionary fund may be used to match or pay not to exceed 30%
(thirty percent) of any grant, contract, or other expenditure of the
Federal Government, State or local government, tribal government or
chapter, or private organization for the benefit of the Navajo or Hopi
Tribe, if the Commission determines that such grant, contract, or
expenditure would significantly assist the Commission in carrying out
its responsibility or assist either tribe in meeting the burdens imposed
by this Act.
(b) An ``other expenditure'' under this subsection is defined as
cooperative agreements, direct provision of services, or in-kind
contributions. The Commission may match or pay not to exceed 30% (thirty
percent) of another expenditure through a grant, contract, or
cooperative agreement.
(c) Eligible applicants under this section for a grant, contract, or
cooperative agreement are defined as States, local government, the
Navajo and Hopi Tribes, tribal chapters or villages and profit and
nonprofit organizations.
(d) Total Federal financial assistance under this section may reach
100% (one hundred percent) if the applicant receives 70% (seventy
percent) Federal funding from Federal agencies other than the
Commission.
(e) When another Federal agency is a primary source of financial
assistance for an applicant, the Commission may, pursuant to an
interagency agreement, transfer funds to the primary Federal agency
providing financial assistance to the applicant.
(f) The Commission may, pursuant to an interagency agreement,
transfer not to exceed 10% (ten percent) of the funds available under
this subpart to another Federal agency directly assisting relocatees if
such agency's activities would accomplish the purpose of paragraph (a)
of this section. Financial assistance transferred to accomplish an
eligible activity under paragraph (a) of this section may not exceed the
funding limitation of paragraph (a) of this section.
(g) An applicant may apply for financial assistance under this
section in accordance with the funding limitations described in
paragraph (a) for the purpose of undertaking a technical feasibility
study of a construction project
[[Page 940]]
or any major project with a total funding of over $200,000 (two hundred
thousand dollars) or any dollar amount which the Commission may
prescribe at some future time.
Sec. 700.459 Assistance for demonstration projects and for provision
of related facilities and services.
(a) The purpose of applications for financial assistance under this
section shall be to aid individuals subject to relocation under the Act.
For this purpose, the discretionary fund may be used by the Commission
to engage or participate either directly through Federal activities, or
by cooperative agreement, grant, or contract in demonstration efforts to
employ innovative energy or other technologies in providing housing and
related facilities and services in the relocation and resettlement of
individuals under this Act.
(b) Applicants eligible under this section to receive grants,
cooperative agreements or contracts are: states, local governments, the
Navajo and Hopi Tribes, tribal chapters, profit and nonprofit
organizations, and individuals.
(c) Applicants for assistance under this section may receive up to
100% (one hundred percent) project or program funding from the
Commission, however, the Commission may specify whether applications for
certain types of programs or projects under this section require
matching funding from the applicant.
(d) Activities described in Sec. 700.457(a) and paragraph (a) of
this section may be provided by the Commission through in-house
activities which receive financial assistance under this section.
(e) The Commission may, pursuant to an interagency agreement,
transfer not to exceed 10% (ten percent) of the funds available under
this subpart to another Federal agency directly assisting relocatees if
such agency's activities would accomplish the purpose of Sec. Sec.
700.457(a) and 700.459(a).
(f) An applicant may apply for financial assistance under this
section for the purpose of undertaking a technical feasibility study of
a construction project, or any major project with a total planned
funding of over $200,000, (two hundred thousand dollars) or any dollar
amount which the Commission may prescribe at some future time.
Sec. 700.461 Method for soliciting applications.
(a) The Commission shall utilize two methods to solicit applications
for funding:
(1) The Commission shall issue an annual announcement of the
availability of funds for programs which will most effectively meet the
purposes of Sec. 700.457(a) or 700.459(a). Applicants submitting
applications under this announcement must demonstrate that the proposed
project or program will effectively facilitate and expedite the
relocation effort of the Commission.
(2) As priority needs are identified by the Commission, calls shall
be issued during the fiscal year for specific proposals. Requests for
proposal shall define the need to be addressed and the scope of work
required.
(b) The annual announcements of the availability of funds and
periodic requests for proposals shall be issued through the Commerce
Business Daily and media which has regional and local circulation. The
Commission may fund approved applications through grant, contract, or
direct provision of services, pursuant to Pub. L. 93-531, as amended.
Sec. 700.463 Requirements for applications.
(a) Applicants shall submit preapplications for funding assistance.
The preapplication shall be due by the closing date published by the
Commission, and shall consist of:
(1) Standard Form 424;
(2) A brief narrative not to exceed one page describing how the
program or project will meet the priorities established by the
Commission pursuant to Sec. 700.457 or Sec. 700.459.
(b) The Commission shall respond to each preapplication, and shall
request each person submitting an acceptable preapplication to submit an
application.
(c) Applications for financial assistance for a project or program
may be submitted by the due date established by the Commission for a
particular
[[Page 941]]
funding cycle. Applications received after the due date will be
considered for the next funding cycle, although the Commission, at its
discretion, may select such a project for funding under the current
cycle. An original and 5 (five) copies of each application must be
submitted to the Commission. Applications shall be submitted on such
forms as the Commission may prescribe in conformity with OMB circulars
A102 or A110.
(d) Applications under Sec. 700.457 for matching financial
assistance not to exceed 30% of another expenditure, shall include:
(1) A detail sheet showing the sources of matching funds, including
both cash and in-kind contributions, and documentation that the
applicant has fulfilled all of the requirements of any Federal agency,
state or local government or chapter, or private organization from which
the financial assistance is also requested; and
(2) A narrative statement which includes an explanation of how the
application would aid relocatees and assist the host communities, towns,
cities, or other entities in adjusting to and meeting the needs of
relocatees.
(e) Applications for financial assistance under Sec. 700.459 must
justify the proposed project or program as a demonstration effort in
order to be eligible for 100% funding.
(f) Applications shall contain a statement of how the applicant
plans to comply with the provisions of the Indian Self-Determination Act
(25 U.S.C. 450e) and the Act of April 16, 1934 (48 Stat. 596) as amended
(25 U.S.C. 452-457).
Sec. 700.465 Technical feasibility.
Unless required by a non-Commission source of financial assistance,
completed plans and specifications are not required at the time an
application is submitted for construction, technology, or another
engineering project, however, an application for a construction,
technology or another engineering project shall:
(a) Include sufficient information to determine the nature and scope
of the project, its probable useful life, and a reasonable estimate of
cost;
(b) Fully show that the applicant will follow design and performance
criteria which conform to professionally recognized standards and which
adequately define the technical capability of the project to serve
current and foreseeable needs; and
(c) Justify any evidence or use of unorthodox design.
(d) Show that the applicant has a management plan for the facility
which identifies probable sources of operating funds.
(e) An applicant who is awarded a grant under Sec. 700.465 is
required to submit completed plans and specifications for the
construction, technology, or other engineering project prior to
construction. The Commission shall review the completed plans and
specifications for technical adequacy as part of its oversight function.
Sec. 700.467 Construction costs.
Construction costs and costs relating to construction such as
machinery and equipment, architect/engineer services, and administrative
services may be allowable as determined by the Commission.
Sec. 700.469 Unallowable program and project costs.
Costs for program or project operating expenses are not allowable
except in the following cases--
(a) An application for an annual contract for services under Sec.
700.457 or 700.459 may include necessary operating expenses; and
(b) An application for a demonstration effort under Sec. 700.459
may include costs relating to the operation of the demonstration.
Sec. 700.471 Review and approval.
(a) Upon receipt of an application for financial assistance under
this subpart, members of the Commission staff shall begin a preliminary
review of the application with the intent of submitting a recommendation
to the Commissioners of whether to accept or deny the application. The
Commission staff may inform the applicant before its recommendation to
the Commissioners, of any special problems or impediments which may
result in a recommendation for disapproval; may
[[Page 942]]
offer any available technical assistance required to overcome such
problems or impediments; and solicit the applicants written response.
(b) The Commission staff may solicit comments on an application from
technical specialists, community groups and others, when such advice is
needed to fully evaluate the application.
(c) The Commission staff shall forward the application with their
recommendation to the Commissioners. The Commissioners may approve
applications if they determine that:
(1) The application meets the requirements of this subpart;
(2) The application meets the intent of the Act;
(3) The application fully demonstrates that it will expedite the
relocation and resettlement of individuals under the Act and ease the
hardship incurred by these individuals or by the Tribes;
(4) The application is compatible with priorities identified by the
Commission;
(5) The applicant can carry out the activities described in the
application and can maintain proper financial controls on the activities
for which financial assistance is requested;
(6) The applicant can and will comply with requirements for Indian
preference in employment and training in connection with the
administration of the grant, and preference to Indian organizations and
Indian owned economic enterprises in the award of subcontracts or
subgrants; and
(7) Funds are available.
(d) All applicants shall be notified in writing of the Commission's
approval or disapproval of the grant applications.
Sec. 700.473 Administrative expenditures of the Commission.
The Commission may use funds in an amount not to exceed 5 percent of
the funds authorized under this subpart for expenses relating to the
administration of the discretionary fund including--
(a) Personnel, whose time is expended directly in support of such
administration;
(b) Supplies which are expended directly in support of such
administration;
(c) Contracts, where the work performed is directly related to such
administration;
(d) Printing, directly in support of such administration; and
(e) Travel, directly related to such administration.
Sec. 700.475 Reports.
Reports shall be furnished by any recipient of financial assistance
under this subpart, in such manner as may be required by the Commission.
Sec. 700.477 Administration of financial assistance and recordkeeping
requirements.
(a) A State or local government (except an institution of higher
education or a hospital since they are governed by paragraph (b) of this
section), or the Navajo or Hopi Tribe receiving a grant or cooperative
agreement under this subpart shall comply with applicable law including
the following requirements--
(1) Office of Management and Budget Circular A-102, entitled
``Uniform Administrative Requirements for Grants-in-Aid to State and
Local Governments'' including attachment C describing recordkeeping
requirements; and
(2) Federal Management Circular 74-4 5 CFR part 1310, entitled
``Cost Principles Applicable to Grants and Contracts with State and
Local Governments.''
(b) A nonprofit organization, institution of higher education, or
hospital receiving a grant or cooperative agreement under this subpart
shall comply with applicable law including the following requirements--
(1) Office of Management and Budget Circular A-110, entitled
``Grants and Agreements with Institutions of Higher Education, Hospitals
and Other Nonprofit Organizations'' including attachment C describing
recordkeeping requirements; and
(2) Office of Management and Budget Circular A-122, entitled ``Cost
Principles for Nonprofit Organizations.''
(c) A profit organization receiving a grant or cooperative agreement
under this subpart shall comply with applicable law including Federal
Procurement Regulations (41 CFR subpart 1-15.2) for
[[Page 943]]
determining the reasonableness, allowability, and allocability of costs.
(d) A profit organization, tribal chapter, or individual receiving a
grant or cooperative agreement under this subpart shall--
(1) Follow sound and proper procedures for the administration of the
financial assistance including any procedures established by the
Commission; and
(2) Retain records as required by the Commission.
(e) A State, local government, the Navajo or Hopi Tribe, a tribal
chapter or an individual receiving a contract under this subpart shall
comply with applicable law including Federal Procurement Regulations (41
CFR parts 1-1 through 1-30). Recordkeeping requirements for contracts
are described in Sec. Sec. 1-3.814-2, 1-7.103-3, 1-7.103-18, 1-7.603-
20, and 1-7.603-7 of the Federal Procurement Regulations.
(f) A State, local government, profit or nonprofit organization, or
an individual residing off of the Navajo or Hopi reservation applying
for a grant or cooperative agreement under this subpart shall comply
with Office of Management and Budget Circular A-95, entitled
``Evaluation, Review and Coordination of Federal and Federally Assisted
Programs and Projects'' unless exempted under Part I, section 8.b. of
this circular.
(g) Recipients of financial assistance under this subpart shall
comply with other procedures which the Commission may from time to time
prescribe for the administration of financial assistance provided under
this subpart.
(h) A state or local government, nonprofit organization, institution
of higher education, hospital, profit organization or individual
receiving a grant, subgrant, contract or subcontract under this part
shall comply with the provisions of the Indian Self-Determination Act
(25 U.S.C. 450e) and the Act of April 16, 1934 (48 Stat. 596) as amended
(25 U.S.C. 452-457) which require that to the greatest extent feasible:
(1) Preferences and opportunities for training and employment in
connection with the administration of such contracts or grants shall be
given to Indians; and
(2) Preference in the award of subcontracts and subgrants in
connection with the administration of such contracts or grants shall be
given to Indian organization and to Indian owned economic enterprises as
defined in section 3 of the Indian Financing Act of 1974 (88 Stat. 77)
(25 U.S.C. 1452).
Sec. 700.479 Administrative review.
(a) If the Commissioners determine that implementation of an
application approved according to Sec. 700.471 fails to meet the
requirements of this subpart, the Commissioners shall give notice to the
recipient of their intent to terminate or suspend financial assistance
to the recipient.
(b) The Commission shall issue such notice in written form sent by
registered mail, return receipt requested, which notice shall include a
statement of the reasons for the findings referred to in paragraph (a)
of this section, and an explanation whether any amendments or actions
would result in compliance with grant terms and conditions.
(c) Any person whose approved financial assistance is terminated or
suspended under paragraph (b) of this section may request a review of
such action by the Commission. Such request for review shall be in
writing and must be mailed or delivered to the Commission not later than
thirty (30) days after receipt of the notice from the Commission by the
applicant. Such request for review shall state the reasons for the
request and shall include any additional matters not before the
Commission which the applicant deems appropriate. The Commission may
grant or deny a review at its discretion and shall inform the applicant
of its decision in writing.
Subpart O_Employee Responsibility and Conduct
Source: 47 FR 11858, Mar. 19, 1982, unless otherwise noted.
Sec. 700.501 Statement of purpose.
This part prescribes appropriate standards of conduct and
responsibilites, financial disclosure reports, and rules of ethics in
the conduct of Government business that are
[[Page 944]]
mandatory for all who serve with the Navajo and Hopi Indian Relocation
Commission, and in order to implement the requirements of law, Executive
Order 11222 and 5 CFR part 905. The rules promulgated by the Commission
as essential to agency operations are in addition to the criminal laws
and other laws governing conduct of Federal employees. Like the laws,
they will be strictly interpreted and firmly enforced. Ignorance of
these rules or laxity in observance or enforcement of them will not be
condoned. They are the prime responsibility of all Commission personnel.
Sec. 700.503 Definitions.
(a) Special Government Employee: An officer or employee who has been
employed to perform temporary duties, with or without compensation, for
not more than 130 days during any period of 365 consecutive days, either
on a full-time or intermittent basis (18 U.S.C. 202(a)).
(b) Employee: Any officer or employee of the Commission who is not a
special government employee.
(c) Commission personnel: All officers and employees of the
Commission, including special Government employees.
(d) Persons: An individual, corporation, company, association, firm,
partnership, society, joint stock company, or any other organization or
institution.
(e) Gratuity: Any gift, honorarium, favor, entertainment,
hospitality, transportation, loan, or any other tangible thing, and any
other intangible benefit (i.e., discounts) given to or on behalf of
Commission employees or their spouses or dependent children for which
fair market value is not paid by the recipient or by the Government.
Sec. 700.505 Coverage.
The regulations contained in this part apply to all Commission
personnel. Exceptions applicable to special Government employees and
members of the Senior Executive Service are noted in the body of this
part.
Sec. 700.507 Responsibilities.
(a) Office of the Commission and Office of Executive Direction. (1)
The Chairman of the Commission shall prepare and submit to the Office of
Personnel Management for approval, standards of employee conduct which
implement requirements of law, Executive Order 11222 and provisions of 5
CFR part 905; and prescribe additional standards of ethical and other
conduct and reporting requirements that are appropriate to the agency.
After OPM approval, the Chairman shall submit the agency's regulations
to the Federal Register for publication. These requirements also apply
to any amendments to agency regulations.
(2) The Commissioners shall appoint a Designated Agency Ethics
Official and Deputy Ethics Official in accordance with 5 CFR 738.202(b).
Responsibilities of these officials are described below in Sec. 735.15.
(3) The Executive Director shall ensure that the regulations
published under this part are disseminated to all Commission personnel
and that staff are familiar with and understand the standards of conduct
and statutes governing conflicts of interest and post Federal employment
restrictions.
(4) The Executive Director shall ensure that disciplinary or
remedial action is taken in the case of all agency personnel who violate
these standards or related laws and regulations, and against supervisors
who fail to carry out their responsibilities in taking disciplinary or
remedial action in such cases.
(b) Managers and supervisors. Managers and supervisors shall ensure
that all Commission personnel under their supervision are familiar with
and understand these regulations governing standards of conduct,
conflict of interest, and referenced statutory restrictions, and adhere
to them at all times. Issues and problems which cannot be resolved
through the discussion process inherent in the supervisor-employee
relationship shall be referred to the Designated Agency Ethics Official.
Managers and supervisors shall ensure that disciplinary or remedial
action is taken with all agency personnel who violate these regulations,
and against subordinate supervisors who fail to carry out their
responsibilities for effecting or recommending disciplinary or remedial
action in these cases.
[[Page 945]]
(c) Employees. All Commission personnel shall be familiar with the
standards of conduct governed in this directive and the laws governing
conflicts of interest and post employment restrictions, and shall comply
with them. When in doubt as to the permissibility of an action under the
terms of this directive, the employee shall not act without first
consulting the immediate supervisor and as appropriate seeking the
advice of the Designated Agency Ethics Official.
(d) Office of Management Operations. (1) The Office of Management
Operations shall give each employee a copy of these regulations and
shall conduct an oral briefing on their contents, within 30 days of
approval. New personnel shall receive a copy and oral briefing promptly
upon assuming their duties. Additions and amendments shall be similarly
communicated upon approval.
(2) The Office shall conduct annual review sessions of these
standards for all personnel.
(3) The Office shall provide the Designated Agency Ethics Official
with necessary administrative and clerical staff support.
Sec. 700.509 Duties of the designated agency ethics official.
The Designated Agency Ethics Official shall coordinate and manage
the agency's ethics program. The Deputy Ethics Official shall serve as
alternate Agency Ethics Official in the absence of the Designated Agency
Ethics Official, or upon his or her express delegation. Specific duties
of the Officer include:
(a) Liaison with Office of Government Ethics (OGE). The Designated
Agency Ethics Official shall establish and maintain close working
relations with the OGE, and shall coordinate communications between the
Commission and OGE through the Agency Liaison Division and Office of
Ethics of the General Services Administration. If the Designated Agency
Ethics Official receives a request which he or she believes should be
answered by the Office of Government Ethics, a referral procedure is
available. Requests for advisory opinions shall be submitted as
specified in 5 CFR 738.304. The Designated Agency Ethics Official shall
provide the OGE with records, reports and any other information which
may be required under the Ethics in Government Act (Pub. L. 95-521, as
amended) or requested by the OGE.
(b) Review of statements. The Designated Agency Ethics Official
shall review the statements of employment and financial interest
submitted by agency personnel assessing the application of conflict of
interest laws and regulations to the information reported. When the
review discloses a conflict, or the appearance of a conflict, between
the private interests of an employee and the performance of his or her
duties as a Commission employee, the Designated Agency Ethics Official
shall bring the conflict to the attention of the employee, grant the
individual an opportunity to explain the conflict, and attempt to
resolve it. If the conflict is not resolved at this point, the
Designated Agency Ethics Official shall forward a written report on the
conflict to the Chairman of the Commission recommending appropriate
action. In developing the recommendation the Designated Agency Ethics
Official may consult, as appropriate, with the agency General Counsel
and the GSA Ethics Office.
(c) Education and counseling program. The Designated Agency Ethics
Official shall design and conduct an education and counseling program
for supervisors and employees on all ethics and standards of conduct
matters, including post-employment matters. Records shall be kept as
appropriate on the advice rendered.
(d) Administrative systems review. The Designated Agency Ethics
Official shall ensure that these regulations and implementing
administrative systems are evaluated annually to determine their
adequacy and effectiveness in relation to current agency
responsibilities. Amendments shall be developed and approved pursuant to
the results of systems review.
Sec. 700.511 Statements of employment and financial interests.
(a) Employees required to file statements. (1) Members of the
Commission shall submit Financial Disclosure Reports (SF-278) to the
Deputy Ethics
[[Page 946]]
Counselor of the Department of Interior, according to instructions
received from that office. Issues of real or apparent conflict of
interest which involve employees of the Senior Executive Service shall
be resolved by the Ethics Officer of the Department of the Interior.
(2) The Designated Agency Ethics Official shall submit SF-278 to the
Office of Government Ethics for review.
(3) The employee appointed as Deputy Ethics Official and incumbents
of the positions listed below shall file NHIRC form 738.1F with the
Designated Agency Ethics Official:
(i) Executive Director.
(ii) General Counsel.
(iii) Assistant Director for Management Operations.
(iv) Assistant Director for Relocation Operations.
(v) Chief, Technical Services Division.
(vi) Chief, Realty Division.
(vii) Chief, Advisory Services Division.
(viii) Chief, Office of Research, Planning and Evaluation.
(ix) Procurement/Fiscal Officer.
(x) Realty Specialists.
(xi) Construction Inspectors.
(4) The Designated Agency Ethics Official may require Statements of
Employment and Financial Interest from employees in other specified
positions, if analysis of duties and responsibilities shows the
positions meet the criteria listed in paragraph (b) of this section.
(5) Special Government Employees shall file NHIRC form 738.2F with
the Designated Agency Ethics Official prior to beginning employment or
service with the Commission. The Designated Agency Ethics Official may
waive this requirement if the duties of the position held by the special
Government employee are of a nature or at such a level of responsibility
that the submission of the statement by the incumbent is not necessary
to protect the integrity of the Commission or the Government.
(b) Criteria for selection of positions subject to filing
requirements. The following criteria govern selection of employees who
must also file statements of Employment and Financial Interest (NHIRC
Form 738.1F) with the Designated Agency Ethics Official.
(1) Statements of Employment and Financial Interest shall be
required of employees holding positions which are responsible for:
(i) Contracting or procurement.
(ii) Administering or monitoring grants and subcontracts.
(iii) Other activities where the decision or action has an economic
impact on the interests of any person or non-Federal enterprise.
(2) When a new position is established or the duties of an existing
position are materially changed, the position shall be evaluated
pursuant to the criteria of this section to determine whether or not it
should be designated as one requiring the incumbent to submit a
Statement of Employment and Financial Interests.
(c) Interests of relatives. The interest of a spouse, minor child,
or other member of an employee's immediate household is considered to be
an interest of the employee. Reports must include but are not limited to
identification of such an individual's employer, financial holdings and
debts. These provisions also apply to special Government employees.
(d) Employee complaint against filing requirements. An employee who
believes that his or her position has been improperly included among
those requiring the submission of a Statement of Employment and
Financial Interests may obtain review through the Commission's
administrative grievance procedure.
(e) Procedures for obtaining statements. Following approval of these
regulations, the Designated Agency Ethics Official shall give each
employee and special Government employee required to file under this
part, a copy of the appropriate NHIRC form. An enclosure with the form
shall advise that:
(1) The completed form shall be returned in a sealed envelope marked
``personal-in confidence'' to the Designated Agency Ethics Official
within 30 days.
(2) The services of the Designated Agency Ethics Official are
available to assist and advise in preparation of the statement.
[[Page 947]]
(3) Any additions or deletions to the information furnished must be
reported within 30 days of the time they occur, or in the case of a
special Government employee, at the time the change occurs, and
(4) No later than June 1 of each year all employees and special
Government employees required to file under paragraph (a)(3) of this
section shall file an annual supplementary statement to update the
information previously filed.
(5) New employees required to file under paragraph (a)(3) of this
section shall submit a statement within 30 days of beginning employment
with the Commission.
(e) Confidentiality of statements. Statements of employment and
financial interest shall be held in confidence. Access to information
from the statements shall not be disclosed except to carry out the
purpose of this directive.
(f) Resolving conflicts of interest. When the Designated Agency
Ethics Official determines from review of the statement that a conflict
of interest may exist, the submitter shall have the opportunity to
provide additional information, which shall become part of the record.
The Designated Agency Ethics Official and the concerned employee shall
make every effort to resolve the conflict in a manner that is mutually
acceptable. If these efforts are not successful the Designated Agency
Ethics Official shall forward a report and recommendation to the
Chairman of the Commission for final action. Remedial action directed by
the Chairman may include but is not limited to:
(1) Disqualification for a particular assignment.
(2) Change in assigned duties.
(3) Divestment of the employee or special Government employee of the
conflicting interests.
(4) Disciplinary action, including removal.
Sec. 700.513 Business dealings on behalf of the government.
(a) All employees shall conduct themselves on the job so as to
efficiently discharge the work of the Commission. Employees shall
observe courtesy, consideration and promptness in dealing with clients,
other governmental agencies, and members of the public.
(b) Commission personnel conducting business with contractors,
realtors, vendors, service providers and other public and private
agencies, organizations, business and individuals shall maintain strict
impartiality in their business dealings. Commission employees shall not
allow themselves to be placed in a position in which a conflict of
interest might arise or might justifiably be suspected. Such a conflict
may arise or appear to arise by the acceptance of gratuities or by any
action which could reasonably be interpreted as influencing the strict
impartiality that must prevail in all business relationships involving
the Commission. However, this requirement of impartiality is not
intended to prohibit advocacy of client interests, as is required as a
stated duty of certain agency positions. Such advocacy may occur for
example during warrantee representation or during technical
representation with builders.
Sec. 700.515 Conflicts of interest.
(a) A conflict of interest may exist when an employee uses, or
appears to use, his or her official position to obtain benefits for
himself or herself, close friends, relatives, or business associates. A
conflict of interest may also exist if an employee's private activities
interfere with the proper discharge of his or her official duties. If an
employee has any doubt about whether or not a particular situation is,
or gives the appearance of being a conflict of interest, the situation
should be discussed with the immediate supervisor. Should further review
be required, the Designated Agency Ethics Official shall be consulted.
(b) Principal situations where conflict of interest may develop are
regulated by the sections which follow. However, these regulations do
not preclude other conflict of interest situations which may arise in
connection with the work of the Commission.
(c) These prohibitions apply to all Commission employees, whether or
not they are required to file financial and employment disclosure
statements.
[[Page 948]]
Sec. 700.517 Affiliations and financial interests.
(a) Commission personnel shall not engage in any personal, business,
or professional activity, or receive or retain any direct or indirect
financial interest, which places them in a position of conflict or
apparent conflict between their private interests and the public
interests of the United States as related to the duties of their
Commission positions.
(b) Employees are prohibited from accepting money, goods or services
other than official compensation for any act performed by the employee
as part of his or her official duties.
(c) Commission personnel shall not use, directly or indirectly,
inside information for private gain for themselves, family members, or
others if that information is not generally available to the public and
was obtained as a result of Commission employment.
(d) Commission personnel are prohibited from using their official
positions to induce, coerce, or in any manner influence any person,
including subordinates, to provide any improper benefit, financial or
otherwise, to themselves or others.
(e) Employees may not have any personal interest in transactions
which are directed, regulated, or effected by the Commission pursuant to
the authorities vested in the agency by Pub. L. 93-531 and Pub. L. 96-
395. Specifically:
(1) No Commission employee shall have a personal interest in a
contract, subcontract, memorandum of understanding or agreement, or
other arrangement resulting in payment for the delivery of goods,
services, or supplies to the Commission, to the Navajo or Hopi tribal
governments, or to individual relocatees or groups of relocatees.
(2) No Commission employee shall have or seek an interest in real or
personal property acquired for transfer to the Navajo or Hopi Tribes.
(3) No Commission employee shall have or seek an interest in any
activity supported financially by the Commission through the award of
Discretionary Funds.
(4) During the process of acquiring replacement housing for
relocatees no employee may have a personal interest in the activities of
a contractor, realtor, or other business entity selected by the
relocatee to furnish replacement housing; nor may the employee influence
the relocatee to select any realtor, contractor or other business entity
with which the employee has personal or business affiliations.
(5) Nothing in this section shall restrict a relocatee's right to
exercise free and independent judgment in selecting a realtor,
contractor, or other vendor or service provider; regardless of any
personal or business relationship of that entity to a Commission
employee, provided the employee has not influenced the choice of the
relocatee in any manner.
(6) Nothing in this section shall restrict a Commission employee who
is eligible for relocation benefits from applying for and obtaining such
benefits according to published criteria; nor to prevent the Commission
from employing a member of the Hopi or Navajo Tribe who has been, or is
in the process, of being relocated pursuant to the law.
(7) Commission employees shall disqualify themselves from
investigating and preparing recommendations regarding eligibility
determination for applicants to whom they are closely related by blood
or marriage.
Sec. 700.519 Gifts, entertainment and favors.
(a) Acceptance of gratuities, including gifts, entertainment and
favors, (no matter how innocently tendered or received) from those who
have or seek business dealings with the Commission, is prohibited as it
may be a source of embarrassment to the recipient, and may impair public
confidence in the integrity of the conduct of the Government's business.
It is emphasized that prohibited conflicts and apparent conficts of
interest can sometimes arise even from relationships and transactions
that the persons concerned perceive as inconsequential.
(b) Except as provided in paragraphs (c) and (d) of this section,
Commission personnel and their spouses, minor children and members of
their households shall not solicit nor accept, either directly or
indirectly, any gift,
[[Page 949]]
gratuity, favor, entertainment loan or any other thing of monetary value
from any person who:
(1) Has, or is seeking to obtain, contractual or other business or
financial relations with the Commission,
(2) Conducts operations or activities that are regulated by the
Commission or significantly affected by Commission decisions, or
(3) Has interests that may be substantially affected by the
performance or non-performance of the employee's official duty.
(c) Employees are specifically prohibited from accepting gifts or
favors from vendors, contractors, builders, realtors, tribal officials
or other individuals with whom Commission employees do business. This
prohibition extends to the acceptance of meals and refreshments offered
by individuals conducting or seeking business with the Commission
whether during duty or non-duty hours.
(d) The following circumstances are excepted from the prohibitions
listed above:
(1) An employee may accept unsolicited advertising or promotional
material with the name of the company imprinted, such as pencils,
calendars and similar items of nominal intrinsic value.
(2) An employee may accept transportation and meals provided by a
contractor in connection with official business when arrangements for
Government or commercial transportation or meals are clearly
impracticable and the supervisor has granted prior approval.
(3) An employee may accept an invitation extended by a relocatee to
attend a housewarming, potluck, accept a meal and refreshments while
traveling on the reservation, or similar social activity when
circumstances would make it rude for the employee to refuse.
(4) Other circumstances may arise in which it would be to the
Commission's advantage for an employee to participate in activities
ordinarily prohibited. In such cases, the employee shall consult with
his or her supervisor about the course of action to be followed. If
prior consultation is not possible, the employee shall exercise prudent
judgement and promptly inform the supervisor of the activity.
Sec. 700.521 Outside work and interests.
Commission employees may engage in outside work or other activity
which does not create a conflict between the employee's private
interests and official duties nor prevent employees from devoting their
talents and energies to the Commission. An employee's outside work shall
not reflect discredit upon the Commission.
(a) Employees engaged in or considering outside employment shall
inform their supervisor of the work, and supply such additional details
as may be required to determine whether the employment is compatible
with the full and proper discharge of the employee's official duties.
(b) Similarly, employees shall inform the supervisor and request
approval of other types of outside activities which may present an
actual or apparent conflict of interest between the employees' official
duties and their private lives. The supervisor shall determine if the
outside employment or activity is prohibited by these regulations, and
so inform the employee. The Designated Agency Ethics Official is
available to assist supervisors in making such determinations.
(c) Guidelines and limitations. Outside employment or other outside
activity is incompatible with the full and proper discharge of an
employee's duties and responsibilities and hence is prohibited if:
(1) It would involve the violation of a Federal or State statute, a
local ordinance, Executive Order, or regulation to which the employee is
subject.
(2) It would be of such extent or nature as to interfere with the
efficient performance of the employee's Government duties, or impair the
employee's mental or physical capacity to perform them in an acceptable
manner.
(3) It would tend to influence the exercise or impartial judgement
on any matters coming before the employee in the course of his or her
duties;
(4) It would involve work for contractors, subcontractors, realtors,
tribal offices, clients or other entities and individuals which have
business with or receive services from the Commission or
[[Page 950]]
conduct activities which are regulated by the Commission.
(5) Involves a person or enterprise that may be substantially
affected by the performance or nonperformance of the employee's official
duties.
(6) It involves the use of the employee's time during official
working hours.
(7) It involves the receipt of salary or anything of monetary value
from a private source as compensation for services to the Government.
(8) It involves acceptance of a fee, compensation, gift, payment of
expense, or any other thing of monetary value under circumstances in
which acceptance might result in, or create the appearance of, a
conflict of interest.
(9) It would be of a nature which might be construed by the general
public to be an official act of the Commission, or would give the
impression that a business or product which is involved in the
relocation project is officially endorsed or approved by the Commission.
(10) It would involve use by the employee of official facilities,
e.g., office space, office machines, or supplies, or the services of
other employees during duty hours.
(11) It might bring discredit upon, or cause unfavorable criticism
of, the Government or the Commission or lead to relationships which
might impair public confidence in the integrity of the Government or the
Commission.
(12) It would involve the use of information obtained as a result of
Government employment that is not freely available to the general public
in that it either has not been made available to the general public or
would not be made available upon request.
Sec. 700.523 Business relationships among employees.
Business relationships among Commission employees which take place
after working hours and away from Commission premises are not matters
for regulation, unless they violate the restrictions listed above.
Sec. 700.525 Use of government information or expertise.
(a) Commission personnel may engage in teaching, lecturing and
writing about the relocation program, provided the Information which
they present is public knowledge or would be made available to the
public upon request.
(b) Employees shall inform their supervisors in advance of any
teaching, writing, or lecturing activity which relates to the Commission
operations. The Commissioners may at their discretion exercise the right
of review and approval of materials to be presented.
(c) Employees must obtain supervisory approval for release of
information considered confidential, and release of information not
previously published as public information.
(d) Disclosure of information from records shall conform with the
provisions of the Freedom of information and the Privacy Acts (5 U.S.C.
552). An employee may not release confidential information maintained by
the Commission and available to the employee because of his position as
an employee of the Commission. Violation of this prohibition may result
in prosecution under the terms of the Privacy Act in addition to any
disciplinary penalties levied by the employee's supervisor.
(e) Commission personnel may not accept compensation for an article,
speech, consultant service, or other activity if it involves the use of
information obtained as the result of Government employment which is not
available to the general public as described in paragraph (a) of this
section, or results in an actual or appearance of conflict of interest.
(f) Unless there is a definite Commission position on a matter which
is the subject of an employee's writing or speech, and the individual
has been authorized by the Commissioners to present that position
officially, the employee shall expressly present his or her views on the
matter as his or her own and not as those of the Commission.
(g) The right of an employee to express personal opinions is
respected. However, once the Commission has established policy and
procedure, every employee is obligated to carry out all lawful
regulations, orders, and assignments, and to support the programs of the
Commission as long as they are part of recognized public policy.
(h) In dealing with the public and with relocatees, employees should
[[Page 951]]
avoid issuing opinions or decisions contrary to Commission policy which
can be mistaken as official Commission policy.
Sec. 700.527 Endorsements.
Employees are prohibited from endorsing in an official capacity
business products or processes or the services of commercial firms for
advertising publicity or sale purposes. Use of materials, products or
services, by the Commission does not constitute official endorsement.
Employees may not recommend for or against any particular builder,
supplier, realtor, contractor or other person or business seeking to
sell any product or service to relocatees.
Sec. 700.529 Negotiations for employment.
An employee shall inform the supervisor and seek the advice of the
Designated Agency Ethics Official if he or she wishes to negotiate for
future non-Federal employment with persons or organizations having
business with the Commission if the employee is involved in making
recommendations or decisions affecting those persons or organizations.
Sec. 700.531 Government property.
Employees shall be held accountable for Government property and
monies entrusted to their individual use or in connection with their
official duties. An employee has a positive duty to protect and conserve
Government property and to use it economically and for official purposes
only, for example:
(a) Only official documents and materials may be reproduced on
Government reproduction equipment.
(b) Government vehicles may be used only on official business and
may not be used for personal use or for travel to or from an employee's
place of residence, unless specifically authorized or assigned by the
supervisor.
(c) An employee may not use FTS to make personal phone calls at
Government expense.
(d) An employee may not use Government purchase authority for
personal acquisitions even though reimbursement is made.
Sec. 700.533 Restrictions affecting travel and travel expense reimbursement.
(a) When an employee is on officially authorized travel his or her
expenses are reimbursed by the Government. The employee may not request
nor accept reimbursement in cash or kind for travel expenses from any
other source, even when the employee's expenses exceed the maximum
Government allowance.
(b) An employee who is authorized to attend a convention, seminar,
or similar meeting while on official duty, whose travel is being paid by
the sponsoring association, may not also claim travel expenses from the
Government.
(c) An employee may accept accommodations and expense reimbursement
for attending meetings, functions, etc. in his or her private capacity
and on his or her own time, provided that such acceptance does not
produce an actual or apparent conflict of interest. This restriction
prohibits an employee from accepting accommodations or reimbursement
from anyone having or seeking business with the Commission.
(d) Commission employees traveling on official business, as well as
employees traveling on personal business, may not accept the use of
private airplanes, cars, or other means of transportation offered at no
expense by individuals conducting or seeking business dealings with the
Commission, nor from clients of the Commission.
Exception: An employee may accept transportation and meals of modest
value provided by a contractor or client in connection with official
business when it is not practical to make arrangements for Government or
commercial accommodations. The employee must receive prior approval of
the supervisor in such case. This might occur, for example, if an
employee were traveling to a remote area where no Government vehicle
were available, or where there are no nearby restaurants or eating
places. There is no prohibition against a contractor or private citizen
traveling as a passenger in a Government vehicle driven by a Commission
employee on official business, provided administrative procedures have
been followed in making the travel arrangements.
Sec. 700.535 Nepotism.
An employee may not appoint or advocate the appointment to any
position under his or her control, any individual
[[Page 952]]
who is a relative of the employee. No employee shall supervise a member
of his or her own family except in emergency situations.
Sec. 700.537 Indebtedness.
(a) Commission personnel shall pay their just financial obligations
in a timely manner, especially those imposed by law, such as Federal,
state, or local taxes. For the purposes of this paragraph, ``just
financial obligation'' means one acknowledged by the employee or reduced
to judgment by a court.
(b) Employees shall promptly refund any salary overpayments and
excess travel advances.
(c) An employee's debts to private creditors are his or her personal
concern. Any complaints or questions concerning such obligations will be
referred to the employee for handling. Creditors and collectors shall
not have access to employees on Agency premises during duty hours.
Sec. 700.539 Soliciting contributions.
(a) An employee shall not solicit a contribution from another
employee for a gift to an official superior, make a donation as a gift
to an official superior or accept a gift from an employee receiving less
pay than himself or herself. (5 U.S.C. 7351) However, this paragraph
does not preclude a voluntary gift of nominal value made on a special
occasion.
(b) If authorized by the supervisor, an employee may solicit
contributions for charitable causes. He or she may also be permitted to
collect small donations for gifts for fellow employees for special
occasions during slack moments.
Sec. 700.541 Fraud or false statement in a Government matter.
``Whoever, in any matter within the jurisdiction of any department
or agency of the United States, knowingly or wilfully falsifies,
conceals or covers up by a trick, scheme or device a material fact, or
makes or uses any false writing or document knowing the same to contain
false, fictitious or fraudulent statement or entry, shall be fined not
more than $10,000 or imprisoned not more than 5 years or both (18 U.S.C.
1001).'' Special attention is required in the certification of time and
attendance reports, applications for employment, personnel security
forms, requests for travel reimbursement, client certification
documents, and purchase orders and receiving forms.
Sec. 700.543 Gambling.
An employee shall not sponsor or participate in any gambling
activity during working hours on Government premises.
Sec. 700.545 Alcoholism and drug abuse.
An employee who habitually uses intoxicants to excess is subject to
removal (5 U.S.C. 7352). The Relocation Commission recognizes alcoholism
and drug abuse as serious and treatable illnesses. Excessive absence and
poor work performance are two of the specific problems resulting from
excessive use of alcohol and drugs. The Commission management will
assist any employee who has such a problem to obtain professional help
and will make reasonable allowance as permitted by work schedules to
allow an employee approved leave for professional treatment. Anyone who
seeks such assistance will be guaranteed confidential handling of his or
her case. Disciplinary action will be considered if an employee rejects
or ignores treatment or other appropriate assistance.
Sec. 700.547 Consuming intoxicants on Government premises or during
duty hours.
Consuming alcohol or non-prescription drugs on agency premises, or
while driving or riding in a Government vehicle, or during working hours
are prohibited conduct and employees violating this regulation are
subject to disciplinary acton, including discharge.
Sec. 700.549 Employee organizations.
An employee may not knowingly be a member of an organization of
Government employees that advocates the overthrow of the United States'
constitutional form of government (5 U.S.C. 7311). Employees are also
prohibited from striking against the Federal Government. With these
restrictions, an employee has the right to form, join, or assist lawful
employee organizations. Similarly, an employee has
[[Page 953]]
also the right to refrain from such activity. In either case, the
employee may exercise his or her right freely and without fear of
penalty or reprisal and shall be protected in the exercise of such
rights.
Sec. 700.551 Franking privilege and official stationery.
An employee is strictly prohibited from using Government franked
envelopes with or without applied postage, or official letterhead
stationery for personal business. (18 U.S.C. 1719)
Sec. 700.553 Use of official titles.
Employees are prohibited from using their official titles in
conducting private business or participation in private or public group
activities not concerned with official duties. Use is strictly limited
to those occasions and circumstances where representation is official.
Sec. 700.555 Notary services.
An employee may not charge a fee for performing notarial services as
part of his or her job duties (EO 977 Nov. 24, 1908).
Sec. 700.557 Political activity.
(a) Regulations on the political activity of Federal employees can
be found in 5 U.S.C. 73. In general, the law and the rules prohibit
using official authority or influence for the purpose of interfering
with an election or affecting its results, and taking an active part in
partisan political management or partisan political campaigns.
(b) Special Government employees of the Commission are subject to
the political activity restrictions contained in 5 U.S.C. 73 and 18
U.S.C. 602, 603, 607 and 608 while on an active duty status only.
(c) Pursuant to provisions of the regulations cited, employees may
take part in certain local elections. However, Commission employees are
restricted from taking an active role in political elections of the
Navajo and Hopi tribal governments, even though such elections are not
partisan in the usual meaning of the word. With respect to tribal
elections, employees may not:
(1) Run for tribal elective office.
(2) Organize, direct, nor actively participate in a tribal electoral
campaign.
(3) Solicit or attempt to coerce fellow employees to contribute
anything of value to an individual or group engaged in tribal political
activity.
(4) Circulate petitions, posters, or other political materials
during working hours or on Commission premises.
(5) Engage in any other type of tribal political activity which
produces a conflict of interest between the employee's job
responsibilities and the political activity.
Sec. 700.559 Equal opportunity.
Commission personnel shall scrupulously adhere to the Commission
program of equal opportunity regardless of race, color, religion, sex,
age, handicap, or national origin.
Sec. 700.561 Sexual harassment.
(a) Sexual harassment is a form of employee misconduct which
undermines the integrity of the employment relationship. All employees
must be allowed to work in an environment free from unsolicited and
unwelcome sexual overtures. Sexual harassment is defined by the Office
of Personnel Management as ``deliberate or repeated unsolicited verbal
comments, gestures, or physical contact of a sexual nature which are
unwelcome.'' Sexual harassment does not refer to occasional compliments.
It refers to behavior which is not welcome, which is personally
offensive and debilitates morale, interfering with the work
effectiveness of its victims and their co-workers.
(b) Sexual harassment is a prohibited personnel practice when it
results in discrimination for or against an employee on the basis of
conduct not related to performance.
For example:
--If submission to sexual advances is a condition of employment,
whether expressed in explicit or implicit terms;
--If employment decisions, such as promotion, training, salary
increases, rewards, etc., are based on an employee's submission to or
rejection of sexual advances;
--If the sexual conduct substantially interferes with an affected
person's work performance, or creates an intimidating, hostile or
offensive work environment.
[[Page 954]]
(c) Within the Federal Government, a supervisor who uses implicit or
explicit coercive sexual behavior to control, influence, or affect the
career, salary or job of an employee is engaging in sexual harassment.
Similarly, an employee of an agency who behaves in this manner in the
process of conducting agency business is engaging in sexual harassment.
Finally, any employee who participates in deliberate or repeated
unsolicited verbal comments, gestures, or physical contact of a sexual
nature which are unwelcome and interfere with work productivity is also
engaging in sexual harassment.
(d) It is the policy of the Relocation Commission that sexual
harassment is unacceptable conduct in the workplace and will not be
condoned. An employee who believes that he or she is subject to sexual
harassment may contact one or more of the following people within the
Commission for assistance:
(1) The immediate supervisor or second level supervisor.
(2) The EEO Counselor.
(3) The agency EEO Officer.
(4) The EEO Counselor at the Agency Liaison Division of the General
Services Administration.
Sec. 700.563 Statutory restrictions from 18 U.S.C. 207, which are
applicable to former Government employees.
(a) Restrictions applicable to all former officers and employees--
(1) Permanent bar. A former Government employee is permanently barred
from serving as agent or attorney for anyone other than the United
States before any Government office or agency on any particular matter
involving specific parties in which the former officer or employee had
participated personally and substantially while with the Government.
(2) Two year bar. A restriction similar to the one summarized above
prevents a former employee for two years from representational
activities on all particular matters which were actually pending under
the former employee's ``official responsibility'' during the one-year
period prior to the termination of such responsibility.
(b) Restrictions applicable only to ``senior employees.'' (1)
Members of the Senior Executive Service are considered senior employees.
(2) Two-year ban on assisting in representation by personal
presence. A former senior employee may not assist in the representation
of another person by personal presence at an appearance before the
Government on any particular matter in which the former employee
personally and substantially participated while with the Government.
(3) One-year on attempt to influence former agency. A former senior
employee may not represent another person or himself in attempting to
influence his own former agency on a matter pending before, or of
substantial interest to, such agency. Certain communications are
exempted from this provision. These include communications by former
senior employees who are employed by State or local governments or by
certain educational or medical institutions, other exempt communications
are those that are purely social or informational, communications on
matters that are personal, including any expression of personal views
where the former employee has no pecuniary interest, and response to a
former agency's requests for information.
(c) Implementing regulations. (1) Detailed regulations implementing
this law have been published by the Director, Office of Government
Ethics (see 5 CFR part 737). The Designated Agency Ethics Official
should be consulted for any additional information.
Sec. 700.565 Miscellaneous statutory provisions.
Commission personnel shall acquaint themselves with Federal statutes
which relate to their ethical and other conducts as employees of the
Commission and of the Government. The attention of Commission personnel
is directed to the following statutory provisions:
(a) House Concurrent Resolution 175, 85th Congress 2d Session, 72A
Stat. B12, the ``Code of Ethics for Government Service.''
(b) Chapter 11 of title 18, United States Code, relating to bribery,
graftm and conflicts of interest, as appropriate to the employees
concerned.
[[Page 955]]
(c) The prohibition against lobbying with appropriated funds (18
U.S.C. 1913).
(d) The prohibitions against disloyalty and striking (5 U.S.C. 7311,
18 U.S.C. 1918).
(e) The prohibition against the employment of a member of the
Communist organization (50 U.S.C. 784).
(f) The prohibitions against (1) the disclosures of classified
information (18 U.S.C. 798, 50 U.S.C. 783); and (2) the disclosure of
confidential information (18 U.S.C. 1905).
(g) The provision relating to the habitual use of intoxicants to
excess (5 U.S.C. 7352).
(h) The prohibition against the misuse of a Government vehicle (31
U.S.C. 638a(c)).
(i) The prohibition against the misuse of the franking privilege (18
U.S.C. 1719).
(j) The prohibition against the use of deceit in an examination or
personnel action in connection with Government employment (18 U.S.C.
1917).
(k) The prohibition against fraud or false statements in a
Government matter.
(l) The prohibition against mutilating or destroying a public record
(18 U.S.C. 2071).
(m) The prohibition against counterfeiting and forging
transportation requests (18 U.S.C. 508).
(n) The prohibitions against (1) embezzlement of Government money or
property (18 U.S.C. 641); (2) failing to account for public money (18
U.S.C. 643); and (3) embezzlement of the money or property of another
person in the possession of an employee by reason of his employment (18
U.S.C. 654).
(o) The prohibition against unauthorized use of documents relating
to claims from or by the Government (18 U.S.C. 285).
(p) The prohibitions against political activities in subchapter III
of chapter 73 of title 5, United States Code and 18 U.S.C. 602, 603, 607
and 608.
(q) The prohibition against an employee acting as the agent of a
foreign principal registered under the Foreign Agents Registration Act
(18 U.S.C. 219).
Subpart P_Hopi Reservation Evictees
Source: 48 FR 51771, Nov. 14, 1983, unless otherwise noted.
Sec. 700.601 Definitions.
(a) Hopi reservation evictees. Hopi reservation evictees are those
members of the Navajo Tribe who were evicted from the Hopi Indian
Reservation as a consequence of the decision in the case of United
States v. Kabinto (456 F. 2d 1087) (1972).
(b) Head of household. (1) A household is group of two or more
persons who live together at a specific location, who form a unit of
permanent and domestic character.
(2) The head of household is the individual who speaks on behalf of
the members of the household and who is determined by the Commission to
represent the household.
(3) In order to be eligible for benefits under this section, an
individual must be a head of household as of the date of certification
for benefits.
(4) Those single individuals who actually maintain and support
themselves as of the date of certification for benefits shall be
considered a head of household.
(c) Hopi reservation. For purposes of this subpart Hopi reservation
shall mean the lands in Land Management District No. Six as defined in
the September 28, 1962, Judgment in Healing v. Jones Civ. No. 579 pCT
(d), Ariz., and shall not include the Hopi Partitioned Lands.
(d) Equivalent assistance from federal agencies. Housing provided
for Hopi reservation evictees shall be considered equivalent assistance
if it meets the Commission's standards for a decent, safe and sanitary
dwelling under Sec. 700.55 of these rules.
Sec. 700.603 Eligibility.
(a) Those heads of household who were members of the Navajo Tribe
and were evicted from the Hopi reservation as a consequence of the
decision in the United States v. Kabinto shall be eligible to receive
relocation assistance on a preference basis.
(b) Proof of eviction shall be determined by one of the following
criteria:
[[Page 956]]
(1) Inclusion on the list of defendants in the case of United States
v. Kabinto (456 F. 2d 1087) (1972);
(2) Inclusion on the lists prepared by the BIA dated May 10, 1979,
and May 21, 1979, as a result of having provided services to those heads
of household.
(3) Inclusion on a list prepared by the Navajo Tribe and submitted
to the Commission on January 16, 1981;
(4) Inclusion on a list prepared by the Navajo Legal Aid Service
dated April 29, 1970;
(5) Other evidence furnished by the applicant which is sufficient to
prove their status as evictees from the Hopi reservation, as determined
by the Commission.
Sec. 700.605 Relocation assistance.
(a) Each eligible head of household of Hopi reservation evictees
shall be entitled to receive the following assistance:
(1) Relocation advisory services as provided in Sec. 700.135 of
this part;
(2) Moving and search expenses, as provided in Sec. 700.151 of this
part;
(3) Replacement housing payments as set forth below.
(b)(1) If the head of household owns no dwelling, the Commission
will make funds available to the head of household as provided in these
regulations for the acquisition of a replacement home in one of the
following manners:
(i) Purchase of an existing home by the head of household,
(ii) Contracting by the head of household for the construction of a
home,
(iii) Participation or purchase by the head of household in a mutual
help housing or other home ownership project under the U.S. Housing Act
of 1937 (50 Stat. 888, as amended; 42 U.S.C. 1401) or in any other
federally assisted housing program.
(2) If the eligible head of household owns or is buying or building
a home, the Commission will expend relocation benefits in one of the
following manners:
(i) If the home is decent, safe and sanitary, but is encumbered by a
mortgage, such mortgage existing as of the effective date of these
regulations, the Commission may expend replacement housing benefits up
to the maximum then existing replacement home benefit to accelerate to
the maximum extent possible the achievement by that household of debt-
free home ownership.
(ii) If the home is owned free and clear but does not meet
Commission decent, safe and sanitary standards; or the home is neither
owned free and clear, nor is decent, safe and sanitary, the Commission
will, at its discretion either:
(A) Expend replacement home benefits for improvements to assure the
home meets the Commission's decent, safe and sanitary standards, or
(B) Expend replacement home benefits for the acquisition of a
replacement dwelling as if the eligible head of household or spouse did
not own a home as in paragraph (b)(1) of this section.
(3) If the home is decent, safe and sanitary, and is owned free and
clear, no replacement housing benefits will be paid.
(4) The amount of the replacement housing payment shall be
calculated in accordance with Sec. 700.183 of these rules except that
no compensation will be paid for habitation and improvements.
(5) The determination of whether the head of household of Hopi
reservation evictees currently occupies a decent, safe and sanitary
dwelling shall be made in accordance with Sec. 700.55 of these rules.
(C) If the head of household has received equivalent assistance from
other federal agencies as defined in Sec. 700.601(d), they shall not be
entitled to additional assistance from the Commission.
Sec. 700.607 Dual eligibility.
Those individuals who moved from the Hopi reservation following
eviction to the Hopi partitioned Lands and who are eligible to receive
benefits under the general regulations shall not receive benefits under
this subpart but shall receive benefits under the general regulations on
a preferential basis.
Sec. 700.609 Appeals.
Appeals of eligibility, hearings and administrative review (appeals)
will be administered under subpart L of this part.
[[Page 957]]
Sec. 700.611 Application deadline.
The deadline for receipt of applications for benefits under this
subpart shall be 120 days following publication of these final rules.
Subpart Q_New Lands Grazing
Source: 56 FR 13397, Apr. 2, 1991, unless otherwise noted.
Sec. 700.701 Definitions.
(a) Act means Pub. L. 93-531 (88 Sat. 1712, 25 U.S.C. 640 et. seq.)
as amended by Pub. L. 96-305 and Pub. L. 100-666.
(b) New Lands means the land acquired for the use of relocatees
under the authority of Pub. L. 96-305, 25 U.S.C. 640d-10. These lands
include the 215,000 acres of lands acquired by the Navajo and Hopi
Indian Relocation Commission and added to the Navajo Reservation and
150,000 acres of private lands previously owned by the Navajo Nation in
fee and taken in trust by the United States pursuant to 25 U.S.C. 640d-
10.
(c) Commissioner means the Commissioner of The Office of Navajo and
Hopi Indian Relocation in Flagstaff, Arizona. Reference to approval or
other action by the Commissioner will also include approval or other
action by another Federal officer under delegated authority from the
Commissioner.
(d) Tribe means the Navajo Nation.
(e) Range unit means a tract of range land designated as a
management unit for administration of grazing.
(f) Range Management Plan means a land use plan for a specific range
unit that will provide for a sustained forage production consistent with
soil, watershed, wildlife, and other values.
(g) Stocking rate means the authorized stocking rate by range unit
as determined by the Commissioner. The stocking rate shall be based on
forage production, range utilization, land management applications being
applied, and range improvements in place to achieve uniformity of
grazing under sustained yield management principles.
(h) Grazing permit means a revocable privilege granted in writing
limited to entering on and utilizing forage by domestic livestock on a
specified tract of land. The term, as used herein, shall include written
authorization issued to enable the crossing or trailing of domestic
livestock across specified tracts or range.
(i) Animal unit (AU) means one adult cow with unweaned calf by her
side or equivalent thereof based on comparative forage consumption.
Accepted conversion factors are: Sheep and Goats--one ewe, doe, buck, or
ram equals 0.25 AU. Horses and Mules--one horse, mule, donkey or burro
equals 1.25 AU.
(j) Sheep unit means one ewe with lamb at side or a doe goat with
kid.
(k) SUYL means one sheep unit grazed yearlong.
(l) HPL means the area partitioned to the Hopi Tribe pursuant to
Pub. L. 93-531 known as the Hopi Partitioned Land.
Sec. 700.703 Authority.
It is within the authority of the Commissioner on Navajo and Hopi
Indian Relocation to administer the New Lands added to the Navajo
Reservation pursuant to 25 U.S.C. 6-10(d)-10.
Sec. 700.705 Objectives.
It is the purpose of the regulations in this part to aid the Navajo
Indians in achievement of the following objectives:
(a) The preservation of the forage, the land, and the water
resources on the New Lands.
(b) The resettlement of Navajo Indians physically residing on the
HPL to the New Lands.
Sec. 700.707 Regulations; scope.
The grazing regulations in this part apply to the New Lands within
the boundaries of the Navajo Reservation held in trust by the United
States for the Navajo Tribe which lands were added to the Navajo
Reservation pursuant to 25 U.S.C. 640(d)-10; 25 CFR parts 166 and 167
are not applicable to the New Lands.
Sec. 700.709 Grazing privileges.
(a) A list of permittees eligible to receive grazing permits is kept
at the Office of Navajo and Hopi Indian Relocation in Flagstaff,
Arizona. This list is composed of individuals eligible for New Lands
grazing permits who:
[[Page 958]]
(1) Have a current HPL grazing permit, or have had an HPL permit
issued since 1980, or are current HPL residents and can show
documentation of a past grazing permit issued in their name for grazing
on an area now on the HPL, and
(2) Who have not received relocation benefits under Pub. L. 93-531,
and who relocate from the HPL on to a New Lands range unit. Individuals
on this list will receive a commitment that a permit will be issued to
them.
(b) If such persons cannot relocate immediately because their chosen
relocation site is not ready for occupancy, the Office will issue a
commitment to them that a grazing permit will be granted upon their
relocation.
(c) If such persons are notified by the Office that their relocation
site is ready for occupancy and they fail or refuse to make timely
arrangements to relocate when requested by the Office to do so, the
commitment may be withdrawn.
(d) Persons on this list must file an application for a New Lands
Grazing Permit. The Commissioner will determine when the application
period will close and will publish notice of that date. After the close
of the period for application, the Commissioner, in his sole discretion,
may issue permits to individuals if it is determined that to do so will
facilitate relocation.
(e) Initial determinations on eligibility for grazing permits will
be made by the Range Supervisor.
[56 FR 13397, Apr. 2, 1991, as amended at 57 FR 24363, June 9, 1992]
Sec. 700.711 Grazing permits.
(a) All livestock grazed on the New Lands must be covered by a
grazing permit authorized and issued by the Commissioner on Navajo and
Hopi Indian Relocation.
(b) Permit holders must:
(1) Be enrolled Navajo Tribal members,
(2) Be over 18 years of age,
(3) Maintain a permanent residency on the New Lands Range Unit of
permit issue, and
(4) Own livestock which graze on the range unit of permit issue.
(c) Permits will be issued for a base of 80 SUYL (20 AU) and may not
be divided or transferred for less than 80 SUYL.
(d)(1) Temporary seasonal grazing permits for periods not to exceed
one year may be issued to permittees:
(i) To use extra forage made available under rotation grazing
management as regulated by a range unit management plan,
(ii) To use forage created by unusually favorable climatic
conditions,
(iii) To allow use of range while term permits are held in
suspension under Sec. 700.715(d).
(2) These temporary permits may be reissued prior to termination
provided:
(i) The permittee is managing grazing in compliance with grazing
regulations,
(ii) Livestock grazing is in compliance with the cooperative range
unit range management plan, and
(iii) Forage is available on the range to sustain the livestock
authorized under the temporary permit.
Sec. 700.713 Tenure of grazing permits.
(a) All active regular grazing permits shall be for five years and
shall be automatically reissued for another five-year period provided
the permittee is not in violation of Sec. 700.711 or 700.715 or 700.719
or 700.723 or 700.725 of the regulations. Permits will initially be
issued with an ending date of October 31 of the fifth year following the
date of initial issuance.
(b) Amendments to these regulations extending or limiting the tenure
of grazing permits are applicable and become a condition of all
previously granted permits.
Sec. 700.715 Assignment, modification, and cancellation of grazing permits.
(a) Grazing permits may be assigned or transferred with the written
consent of the contracting parties. The Commissioner will issue a new
permit provided the transferee meets qualifications under Sec.
700.711(b).
(b) Temporary permits issued under Sec. 700.711(d) are directly
tied to the term permit and may be transferred with the term permit if
the transferee signs the range unit management plan which provides the
management for continuation of the temporary grazing permit.
[[Page 959]]
Temporary permits will not be transferred and shall be null and void if
the term permit transferee does not sign the management plan agreeing to
practice conservation management.
(c) Grazing permits may be assigned for transfer through a notarized
document to an heir who meets the qualifications for a grazing permit
under Sec. 700.711.
(d) Grazing permits must be transferred in whole to a single
transferee--the transferor relinquishing all grazing privileges at the
time of transfer.
(e) The Commissioner may revoke or withdraw all or any part of a
grazing permit by cancellation or modification on a 30 day written
notice for violation of the permit or of the management plan, non-
payment of grazing fees, violation of these regulations, or because of
the termination of the trust status of the permitted land.
Sec. 700.717 Stocking rate.
The Commissioner will determine livestock carrying capacity for each
range unit and set the stocking rate and adjust that rate as conditions
warrant. The Commissioner may consult with the Tribe when making
adjustments to the stocking rate.
Sec. 700.719 Establishment of grazing fees.
The Commissioner may establish a minimum acceptable grazing fee per
SUYL. The Commissioner may consult with the Tribe prior to establishing
fees.
Sec. 700.721 Range management plans.
The Commissioner (or his designee) and the permittees of each range
unit will meet as a group and develop a Range Management Plan for the
common use of the range unit. The plan will include but will not be
limited to the following:
(a) Goals for improving vegetative productivity.
(b) Incentives for carrying out the goals.
(c) Stocking rate.
(d) Record of brands of livestock authorized to graze on the range
unit.
(e) Grazing plan and schedule.
(f) Range monitoring schedule.
(g) Wildlife management.
(h) Needs assessment for range and livestock improvements.
(i) Scheduling for operation and maintenance of existing range
improvements.
Sec. 700.722 Grazing associations.
(a) The Commissioner may recognize, cooperate with, and assist range
unit livestock associations in the management of livestock and range
resources.
(b) These associations will provide the means for the members:
(1) To jointly manage their permitted livestock and the range
resources,
(2) To meet jointly with the ONHIR range staff to discuss and
formulate range management plans,
(3) To express their wishes through designated officers or
committees,
(4) To share costs for handling livestock, construction of range
improvements, fence and livestock facilities maintenance, and other land
or livestock improvement projects agreed on, and
(5) To formulate association special rules needed to assure
cooperation and resource management.
(c) The requirements for receiving recognition by the Commissioner
are:
(1) The members of the association must be grazing permittees and
constitute a majority of the grazing permittees on the range unit
involved.
(2) The officers of the association must be elected by a majority of
the association members or of a quorum as specified by the association's
constitution and bylaws.
(3) The officers other than secretary and treasurer must be grazing
permittees on the range unit involved.
(4) The association's activities must be governed by a constitution
and bylaws acceptable to the Commissioner and signed by him.
(5) The association's constitution and bylaws must recognize
conservation management goals and the need to follow a range unit
management plan.
(d) The Commissioner may withdraw his recognition of the association
whenever:
(1) The majority of the grazing permittees request that the
association be dissolved.
(2) The association becomes inactive and does not meet in annual or
special
[[Page 960]]
meetings during a consecutive two-year period.
(e) A recognized association may hold a grazing permit to benefit
its members according to the rules of the association constitution and
bylaws. All of the association's livestock will be run under an
association brand properly registered with the Navajo Tribe and the
ONHIR.
(f) Associations may acquire permits from consenting permittees on
the range unit in accordance with Sec. 700.711 and may assign or
transfer these permits in accordance with Sec. 700.715.
Sec. 700.723 Control of livestock disease and parasites.
Whenever livestock within the New Lands become infected with
contagious or infectious disease or parasites or have been exposed
thereto, such livestock must be treated and the movement thereof
restricted by the responsible permittee in accordance with applicable
laws.
Sec. 700.725 Livestock trespass.
The following acts are prohibited:
(a) The grazing of livestock upon, or driving of livestock across,
any of the New Lands without a current approved grazing or crossing
permit.
(b) The grazing of livestock upon an area specifically rested from
the grazing of livestock according to the range unit Range Management
Plan.
(c) The grazing of livestock upon any land withdrawn from use for
grazing to protect it from damage after receipt of appropriate notice
from the Commissioner.
(d) The grazing of livestock in excess of those numbers authorized
on the livestock grazing permit approved by the Commissioner.
(e) Grazing of livestock whose brand is not recorded in the range
unit Range Management Plan.
The owner of any livestock grazing in trespass on the New Lands is
liable to a civil penalty of $1 per head per day for each cow, bull,
horse, mule or donkey and 25[cent] per head per day for each sheep or
goat in trespass and a reasonable value for damages to property injured
or destroyed. The Commissioner may take appropriate action to collect
all such penalties and damages and seek injunctive relief when
appropriate. All payments for such penalties and damages shall be paid
to the Commissioner for use as a range improvement fund.
Sec. 700.727 Impoundment and disposal of unauthorized livestock.
Unauthorized livestock within any range unit of the New Lands which
are not removed therefrom within the periods prescribed by the
regulation will be impounded and disposed of by the Commissioner as
provided herein.
(a) When the Commissioner determines that unauthorized livestock use
is occurring, and has definite knowledge of the kind of unauthorized
livestock and knows the name and address of the owners, the owner shall
be given written notice and a 10 day period shall be allowed for the
permittee to solve the unauthorized use without penalty. If after this
10 day period the unauthorized use is not resolved, such livestock may
be impounded at any time after five days after written Notice of Intent
to Impound Unauthorized Livestock is mailed by certified mail or
personally delivered to such owners or their agent.
(b) When the Commissioner determines that unauthorized livestock use
is occurring, but does not have complete knowledge of the number and
class of livestock, or if the name and address of the owner thereof are
unknown, such livestock may be impounded at anytime after 15 days after
the date a General Notice of Intent to Impound Unauthorized Livestock is
first published in a local newspaper, posted at the nearest chapter
house, and in one or more local trading posts.
(c) Unauthorized livestock on the New Lands which are owned by
persons given notice under paragraph (a) of this section and any
unauthorized livestock in areas for which notice has been posted and
published under paragraph (b) of this section, will be impounded without
further notice anytime within the 12-month period immediately following
the effective date of the notice.
(d) Following the impoundment of unauthorized livestock, a notice of
sale of impounded livestock or unauthorized livestock will be published
in a local newspaper, posted at the nearest
[[Page 961]]
chapter house, and in one or more local trading posts. The notice will
describe the livestock and specify the date, time, and place of sale.
The date set shall be at least five days after the publication and
posting of such notice.
(e) The owners or their agent may redeem the livestock anytime
before the time set for the sale by submitting proof of ownership and
paying for all expenses incurred in gathering, impounding, and feeding
or pasturing the livestock and any trespass fees and/or damages caused
by the animals.
(f) Livestock erroneously impounded shall be returned to the
rightful owner, and all expenses accruing thereto shall be waived.
(g) If the livestock are not redeemed before the time fixed for
their sale, they shall be sold at public sale to the highest bidder.
When livestock are sold pursuant to this regulation, the Commissioner
shall furnish the buyer a bill of sale or other written instrument
evidencing the sale.
(h) The proceeds of any sale of impounded livestock shall be applied
as follows:
(1) To the payment of all expenses incurred by the United States in
gathering, impounding, and feeding or pasturing the livestock.
(2) Trespass penalties assessed pursuant to Sec. 700.725 shall be
paid to a separate account to be administered by the Commissioner for
use as a range improvement fund for the New Lands.
(3) Any remaining amount shall be paid over to the owner of said
livestock upon his submitting proof of ownership.
Any proceeds remaining after payment of the first and second items noted
above, not claimed within one year from the date of sale, will be
credited to the United States.
Sec. 700.729 Amendments.
These regulations may be amended or superseded as needed.
Sec. 700.731 Appeals.
Persons who have filed a claim for a grazing permit and whose claim
has been denied by the Range Supervisor may appeal to the Commissioner.
Appeals must be made in writing and must be received by the Office not
more than 30 days after the date the claim was denied. The appeal shall
state with specificity why the decision being appealed is in error and
shall incorporate all supporting documents. The Commissioner will issue
a decision affirming or reversing the decision of the Range Supervisor
within 60 days of receipt of the appeal. Such decision will constitute
final action by the Office and will be communicated to the appellant by
certified mail.
Subpart R_Protection of Archaeological Resources
Source: 62 FR 35078, June 30, 1997, unless otherwise noted.
Sec. 700.801 Purpose.
(a) The regulations in this subpart implement provisions of the
Archaeological Resources Protection Act of 1979 (16 U.S.C. 470aa-11) by
establishing the uniform definitions, standards, and procedures to be
followed by the O.N.H.I.R. New Lands Manager in providing protection for
archaeological resources, located on the New Lands. The regulations
enable Federal land managers to protect archaeological resources, taking
into consideration provisions of the American Indian Religious Freedom
Act (92 Stat. 469; 43 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.
(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.
Sec. 700.803 Authority.
The regulations in this part are promulgated pursuant to section
10(b) of the Archaeological Resources Protection Act of 1979 (16 U.S.C.
470ii). Section 10(b) of the Act (16 U.S.C. 470ii)
[[Page 962]]
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. 700.805 Definitions.
As used for purposes of this part:
(a) Act means the Archaeological Resources Protection Act of 1979
(16 U.S.C. 470-aa-11).
(b) 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 following 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 glasseware, 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 described in this paragraph (a);
(ix) All portions of shipwrecks (including, but not limited to,
armaments, apparel, tackle, cargo);
(x) Any portion or piece of any material remains described in this
paragraph (a).
(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
paragraph (a)(5) shall be documented. Such determination shall in no way
affect the Federal Land Manager's obligations under other applicable
laws or regulations. Prior to making a determination that material
remains are not or are no longer archaeological resources, the Federal
Land Manager shall consult with the Navajo Nation to obtain their
concurrences.
[[Page 963]]
(c) Arrowhead means any projectile point which appears to have been
designed for use with an arrow.
(d) Commissioner means the Commissioner of the Office of Navajo and
Hopi Indian Relocation. Reference to approval of other action by the
Commissioner will also include approval or other action by another
Federal Officer under delegated authority from the Commissioner.
(e) Federal Land Manager means: With respect to the New Lands, the
Commissioner of Navajo and Hopi Indian Relocation, having primary
management authority over such lands, including persons to whom such
management authority has been officially delegated.
(f) Indian tribe or Tribe means the Navajo Nation.
(g) New Lands means the land acquired for the use of relocatees
under the authority of Pub. L. 96-305, 25 U.S.C., 640(d)-10. These lands
include the 250,000 acres of land acquired by the Navajo and Hopi Indian
Relocation Commission and added to the Navajo Reservation, 150,000 acres
of private lands previously owned by the Navajo Nation in fee and taken
in trust by the United States pursuant to 25 U.S.C. 640d-10 and up to
35,000 acres of land in the State of New Mexico to be acquired and added
to the Navajo Reservation.
(h) Office means the Office of Navajo and Hopi Indian Relocation.
(i) 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.
(j) State means any of the fifty states, the District of Columbia,
Puerto Rico, Guam, and the Virgin Islands.
(k) Tribe means the Navajo Nation.
Sec. 700.807 Prohibited Acts.
(a) No person may excavate, remove, damage or otherwise alter or
deface any archaeological resource located on the New Lands unless such
activity is pursuant to a permit issued under Sec. 700.815 or exempted
by Sec. 700.809(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.
Sec. 700.809 Permit requirements and exceptions.
(a) Any person proposing to excavate and/or remove archaeological
resources from the New 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. 700.815(a) of this part.
(b) Exceptions:
(1) No permit shall be required under this part for any person
conducting activities on the New 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
[[Page 964]]
part, provided that such collecting does not result in disturbance of
any archaeological 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 the Navajo Nation or member thereof of any archaeological
resource located on the New Lands, except that in the absence of tribal
law regulating the excavation or removal of archaeological resources, 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. 700.811. However, the Federal Land Manager shall
insure that provisions of Sec. Sec. 700.815 and 700.817 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.
(d) Upon the written request of the Governor of any State, on behalf
of the State or its educational institutions, the Federal Land Manager
with the concurrence of the Navajo Nation, shall issue a permit, subject
to the provisions of Sec. Sec. 700.809(b)(5), 700.815(a) (3), (4), (5),
(6), and (7), 700.817, 700.819, 700.823, 700.825(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 the New Lands, authorizations may be required for
activities which do not require a permit under this part. Any person
wishing to conduct on the New Lands any activity 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. 700.811 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 the New
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,
location 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. 700.815(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 the New Lands, the name of the university,
museum, or
[[Page 965]]
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, of
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 purpose of the information
collection under Sec. 700.811 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 New Lands involved. Response to the
information requirement is necessary in order for an applicant to obtain
a benefit.
Sec. 700.813 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 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. 700.817.
(4) When the Federal land manager determines that a permit applied
for under this part must be issued immediately because of an imminent
threat or 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
[[Page 966]]
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.
Sec. 700.815 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 the permit; and
(v) Applicants proposing to engage in historical archaeology should
have at least one year of experience in research concerning
archaelogoical 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 New
Lands;
(4) Where the proposed work consists of archaeological survey and/or
data recovery undertaken in accordance with other approved uses of the
New 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) of this
section shall be deemed satisfied by the prior approval.
(5) Written consent has been obtained, for work proposed on the New
Lands, from the Indian land owner and the Navajo Nation which is the
Indian Tribe having jurisdiction.
(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 Manger, 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.
(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.
[[Page 967]]
Sec. 700.817 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 institution 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 the New Lands such terms and conditions as may be
requested by the Indian landowner and the Navajo Nation.
(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. 700.819 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. 700.807. The
Federal Land Manager shall provide written notice to the permittee of
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. 700.831 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.
Sec. 700.821 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. 700.823 Permit reviews and disputes.
(a) Any affected person disputing the decision of the 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 or 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) Any disputant unsatisfied with the higher level review, and
desiring to appeal the decision, pursuant to Sec. 700.821 of this part,
should consult with the Federal Land Manager regarding the existence of
published appeal
[[Page 968]]
procedures. In the absence of published appeal procedures, the review by
the head of the Office will constitute the final decision.
(c) Any affected person may request a review by the Department of
Interior Consulting Archaeologist of any professional issues involved in
a permitting decision, such as professional qualifications, research
design, or other professional archaeological matters. The Departmental
Consulting Archaeologist shall make a final professional recommendation
to the head of the Office. The head of the Office 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.
Sec. 700.825 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, 1996 (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. 700.827 Custody of Archaeological resources.
(a) Archaeological resources excavated or removed from the New Lands
remain the property of the Navajo Nation.
(b) [Reserved]
Sec. 700.829 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. 700.807 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 obtained prior to the
violation. These costs may include, but need not be limited to, the cost
of preparing a research design, conducting filed 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. 700.807 of this part or conditions of a permit
issued pursuant to this part shall be for 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 damages as a
result of a violation or 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 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 Pub. L. 101-601,
the Native American Grave Protection and Repatriation Act.
(8) Preparation of reports relating to any of the above activities.
[[Page 969]]
Sec. 700.831 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. 700.807 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 the 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 Manger'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 or informal discussions, whichever is later.
(2) The Federal Land Manager shall take into consideration all
available 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. 700.831.
(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 the following 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. 700.831 for determining the penalty amount
assessed
[[Page 970]]
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 of 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 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. 700.833 Civil penalty amounts.
(a) Maximum amount of penalty. (1) Where the person being assessed a
civil penalty has not committed any previous violation of any
prohibition in Sec. 700.807 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 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. 700.807 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 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.
[[Page 971]]
(1) Determination of 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 and ultimately to the Navajo Nation
archaeological resources removed from the New 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 the New 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) The Federal Land Manager shall consult with and consider the
interests of the Navajo Nation prior to proposing to mitigate or remit
the penalty.
Sec. 700.835 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 tribal
government who furnish information or render services in the performance
of their official duties, and persons who have provided information
under Sec. 700.833(b)(1)(iii) shall not be certified eligible to
receive payment of rewards.
(c) All civil penalty monies and any item forfeited under the
provisions of this section shall be transferred to the Navajo Nation.
Sec. 700.837 Confidentiality of archaeological resource information.
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 provisions of law, information concerning the nature and
location of any archaeological resource, with the following exceptions:
(a) 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. 469-469c)
without risking harm to the archaeological resource or to the site in
which it is located.
(b) With the concurrence of the Navajo Nation, 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:
(1) The specific archaeological resource or area about which
information is sought.
(2) The purpose for which the information is sought; and
(3) The Governor's written commitment to adequately protect the
confidentiality of the information.
Sec. 700.839 Report.
Each Federal Land Manager, when requested by the Secretary of the
Interior, shall submit such information as is necessary to enable the
Secretary to comply with section 13 of the Act.
[[Page 972]]
Sec. 700.841 Determination of loss or absence of archaeological interest.
(a) Under certain circumstances, a Federal land manager may
determine, pursuant to Sec. 700.805(a)(5) of this part, that certain
material remains are not or are no longer of archaeological interest,
and therefore 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 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 Interior's Standards and
Guidelines for Archaeology and Historic Preservation and with the 36 CFR
parts 60, 63, and 65.
(2) The principal Office archaeologist or, in the absence of a
principal Office archaeologist, the Office Consulting Archaeologist,
shall establish whether the material remains under consideration
contribute to scientific or humanistic understandings of past human
behavior, cultural adaption and related topics. The principal Office
archaeologist or the Office Consulting Archaeologist, 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 Office
archaeologist or the Office Consulting Archaeologist, 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 manger 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 the purposes of this part.
(f) Any interested individual may request in writing that the Office
Consulting Archaeologist 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 Office Consulting Archaeologist, care of Land Use Manager, Office
of Navajo and Hopi Indian Relocation, PO Box KK, Flagstaff, AZ 86002,
and should document why the requestor disagrees with the determination
of the Federal land manger. The Office Consulting Archaeologist shall
review the request, and, if appropriate, shall review the Federal land
manager's determination and its supporting documentation. Based upon
this review, the Departmental Consulting Archaeologist 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 obligation under other applicable laws
or regulations.
Sec. 700.843 Permitting procedures for Navajo Nation Lands.
(a) Pursuant to the Act and this subpart, the written consent of the
Navajo Nation is required. Written consent shall consist of a Navajo
Nation permit issued in accordance with the Navajo Nation Code or a
resolution of the Navajo Nation Council or delegated committee of that
Council.
(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
[[Page 973]]
sufficient. For Indian allotted lands within reservation boundaries,
consent must be obtained from the Navajo Nation and the individual
landowner(s).
(c) The applicant should consult with the Office concerning
procedures for obtaining consent from the appropriate Indian tribal
authorities and submit the permit application to the Office. The Office
shall ensure that consultation with the Navajo Nation 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 Navajo Nation or Indian landowner
pursuant to Sec. 700.817 of this part.
(d) The issuance of a permit under this part does not remove the
requirement for any other permit by Indian tribal law.
PART 720_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP
IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE NAVAJO AND HOPI INDIAN
RELOCATION COMMISSION--Table of Contents
Sec.
720.101 Purpose.
720.102 Application.
720.103 Definitions.
720.104-720.109 [Reserved]
720.110 Self-evaluation.
720.111 Notice.
720.112-720.129 [Reserved]
720.130 General prohibitions against discrimination.
720.131-720.139 [Reserved]
720.140 Employment.
720.141-720.148 [Reserved]
720.149 Program accessibility: Discrimination prohibited.
720.150 Program accessibility: Existing facilities.
720.151 Program accessibility: New construction and alterations.
720.152-720.159 [Reserved]
720.160 Communications.
720.161-720.169 [Reserved]
720.170 Compliance procedures.
Authority: 29 U.S.C 794.
Source: 51 FR 22891, 22896, June 23, 1986, unless otherwise noted.
Sec. 720.101 Purpose.
This part effectuates 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. 720.102 Application.
This part applies to all programs or activities conducted by the
agency.