[Title 43 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2010 Edition]
[From the U.S. Government Printing Office]



[[Page 1]]

          

          43


          Parts 1 to 999

                         Revised as of October 1, 2010


          Public Lands: Interior
          



________________________

          Containing a codification of documents of general 
          applicability and future effect

          As of October 1, 2010
          With Ancillaries
                    Published by
                    Office of the Federal Register
                    National Archives and Records
                    Administration
                    A Special Edition of the Federal Register

[[Page ii]]

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                            Table of Contents



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

  Title 43:
          SUBTITLE A--Office of the Secretary of the Interior        3
          SUBTITLE B--Regulations Relating to Public Lands         603
          Chapter I--Bureau of Reclamation, Department of the 
          Interior                                                 605
  Finding Aids:
      Table of CFR Titles and Chapters........................     741
      Alphabetical List of Agencies Appearing in the CFR......     761
      List of CFR Sections Affected...........................     771

[[Page iv]]





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

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

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

[[Page v]]



                               EXPLANATION

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

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

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

LEGAL STATUS

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

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, October 1, 2010), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

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

OMB CONTROL NUMBERS

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

[[Page vi]]

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

OBSOLETE PROVISIONS

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

``[RESERVED]'' TERMINOLOGY

    The term ``[Reserved]'' is used as a place holder within the Code of 
Federal Regulations. An agency may add regulatory information at a 
``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used 
editorially to indicate that a portion of the CFR was left vacant and 
not accidentally dropped due to a printing or computer error.

INCORPORATION BY REFERENCE

    What is incorporation by reference? Incorporation by reference was 
established by statute and allows Federal agencies to meet the 
requirement to publish regulations in the Federal Register by referring 
to materials already published elsewhere. For an incorporation to be 
valid, the Director of the Federal Register must approve it. The legal 
effect of incorporation by reference is that the material is treated as 
if it were published in full in the Federal Register (5 U.S.C. 552(a)). 
This material, like any other properly issued regulation, has the force 
of law.
    What is a proper incorporation by reference? The Director of the 
Federal Register will approve an incorporation by reference only when 
the requirements of 1 CFR part 51 are met. Some of the elements on which 
approval is based are:
    (a) The incorporation will substantially reduce the volume of 
material published in the Federal Register.
    (b) The matter incorporated is in fact available to the extent 
necessary to afford fairness and uniformity in the administrative 
process.
    (c) The incorporating document is drafted and submitted for 
publication in accordance with 1 CFR part 51.
    What if the material incorporated by reference cannot be found? If 
you have any problem locating or obtaining a copy of material listed as 
an approved incorporation by reference, please contact the agency that 
issued the regulation containing that incorporation. If, after 
contacting the agency, you find the material is not available, please 
notify the Director of the Federal Register, National Archives and 
Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001, 
or call 202-741-6010.

CFR INDEXES AND TABULAR GUIDES

    A subject index to the Code of Federal Regulations is contained in a 
separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Authorities 
and Rules. A list of CFR titles, chapters, subchapters, and parts and an 
alphabetical list of agencies publishing in the CFR are also included in 
this volume.
    An index to the text of ``Title 3--The President'' is carried within 
that volume.

[[Page vii]]

    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
the daily Federal Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

REPUBLICATION OF MATERIAL

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

INQUIRIES

    For a legal interpretation or explanation of any regulation in this 
volume, contact the issuing agency. The issuing agency's name appears at 
the top of odd-numbered pages.
    For inquiries concerning CFR reference assistance, call 202-741-6000 
or write to the Director, Office of the Federal Register, National 
Archives and Records Administration, 8601 Adelphi Road, College Park, MD 
20740-6001 or e-mail [email protected].

SALES

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ELECTRONIC SERVICES

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

    Raymond A. Mosley,
    Director,
    Office of the Federal Register.
    October 1, 2010.







[[Page ix]]



                               THIS TITLE

    Title 43--Public Lands: Interior is composed of two volumes. Volume 
one (parts 1-999) contains all current regulations issued under subtitle 
A--Office of the Secretary of the Interior and chapter I--Bureau of 
Reclamation, Department of the Interior. Volume two (part 1000 to end) 
includes all regulations issued under chapter II--Bureau of Land 
Management, Department of the Interior, and Chapter III--Utah 
Reclamation Mitigation and Conservation Commission. The contents of 
these volumes represent all current regulations codified under this 
title of the CFR as of October 1, 2010.

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

    For this volume, Bonnie Fritts was Chief Editor. The Code of Federal 
Regulations publication program is under the direction of Michael L. 
White, assisted by Ann Worley.

[[Page 1]]



                    TITLE 43--PUBLIC LANDS: INTERIOR




                   (This book contains parts 1 to 999)

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

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

            SUBTITLE B--Regulations Relating to Public Lands

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

[[Page 3]]

           Subtitle A--Office of the Secretary of the Interior

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

Part                                                                Page
1               Practices before the Department of the 
                    Interior................................           5
2               Records and testimony; Freedom of 
                    Information Act.........................           6
3               Preservation of American antiquities........          49
4               Department hearings and appeals procedures..          51
5               Making pictures, television productions or 
                    sound tracks on certain areas under the 
                    jurisdiction of the Department of the 
                    Interior................................         163
6               Patent regulations..........................         164
7               Protection of archaeological resources......         173
8               Joint policies of the Departments of the 
                    Interior and of the Army relative to 
                    reservoir project lands.................         190
9               Intergovernmental review of Department of 
                    the Interior programs and activities....         191
10              Native American graves protection and 
                    repatriation regulations................         194
11              Natural resource damage assessments.........         224
12              Administrative and audit requirements and 
                    cost principles for assistance programs.         285
13              Vending facilities operated by blind persons         346
14              Petitions for rulemaking....................         349
15              Key Largo Coral Reef Preserve...............         349
16              Conservation of helium......................         351
17              Nondiscrimination in federally assisted 
                    programs of the Department of the 
                    Interior................................         352
18              New restrictions on lobbying................         390
19              Wilderness preservation.....................         402
20              Employee responsibilities and conduct.......         405
21              Occupancy of cabin sites on public 
                    conservation and recreation areas.......         416

[[Page 4]]

22              Administrative claims under the Federal Tort 
                    Claims Act and indemnification of 
                    Department of the Interior employees....         420
23              Surface exploration, mining and reclamation 
                    of lands................................         422
24              Department of the Interior fish and wildlife 
                    policy: State-Federal relationships.....         430
26              Grants to States for establishing Youth 
                    Conservation Corps programs.............         435
27              Nondiscrimination in activities conducted 
                    under permits, rights-of-way, public 
                    land orders, and other Federal 
                    authorizations granted or issued under 
                    Title II of Public Law 93-153...........         440
28              Fire protection emergency assistance........         452
29              Trans-Alaska Pipeline Liability Fund........         452
30              Indian probate hearings procedures..........         459
32              Grants to States for establishing Young 
                    Adult Conservation Corps (YACC) program.         488
33              Allocation of duty-free watches from the 
                    Virgin Islands, Guam, and American Samoa 
                    [Note]..................................         498
34              Requirements for equal opportunity during 
                    construction and operation of the Alaska 
                    Natural Gas Transportation System.......         498
35              Administrative remedies for fraudulent 
                    claims and statements...................         508
36              Transportation and utility systems in and 
                    across, and access into, conservation 
                    system units in Alaska..................         524
37              Cave management.............................         534
38              Pay of U.S. Park Police--interim geographic 
                    adjustments.............................         537
39              Collection of debts by administrative wage 
                    garnishment.............................         538
41              Nondiscrimination on the basis of sex in 
                    education programs or activities 
                    receiving Federal financial assistance..         538
43              Governmentwide requirements for drug-free 
                    workplace (financial assistance)........         555
44              Financial assistance, local governments.....         560
45              Conditions and prescriptions in FERC 
                    hydropower licenses.....................         566
46              Implementation of the National Environmental 
                    Policy Act of 1969......................         586

[[Page 5]]



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



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

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

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



Sec. 1.1  Purpose.

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



Sec. 1.2  Definitions.

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



Sec. 1.3  Who may practice.

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



Sec. 1.4  Disqualifications.

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

[[Page 6]]



Sec. 1.5  Signature to constitute certificate.

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



Sec. 1.6  Disciplinary proceedings.

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



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



                      Subpart A_General Information

Sec.
2.1 What do the regulations cover?
2.2 What is DOI's policy regarding release of records under the FOIA?
2.3 What terms do I need to know?

Subpart B_Information Routinely Available to the Public Without Filing a 
                              FOIA Request

2.4 How do I obtain information routinely available to the public?
2.5 Does DOI maintain an index of its reading room materials?

[[Page 7]]

2.6 Will the Department accept written requests, including fax, e-mail, 
          or telephone requests, for routinely available information?

              Subpart C_Requests for Records Under the FOIA

2.7 What do I need to know before filing a FOIA request?
2.8 What information do I include in my request?
2.9 May I specify the form or format of disclosure?
2.10 Where do I send my request?
2.11 Why is it important to send my request to the right office?
2.12 When can I expect the response?
2.13 When may the bureau take a time extension to respond to my request?
2.14 When can I get expedited processing?
2.15 Will I be charged fees?
2.16 How are fees determined?
2.17 How will my requester category affect the fees that I am charged?
2.18 How are fees assessed and collected?
2.19 When will bureaus waive fees?
2.20 When will bureaus grant discretionary fee waivers?
2.21 How will the bureau respond to my request?
2.22 What happens if a bureau receives a request for records it does not 
          have or did not create?
2.23 How will a bureau handle a request for commercial or financial 
          information that it has obtained from a person or entity 
          outside the Federal Government?
2.24 Is a submitter required to designate information that is 
          commercially or financially sensitive?
2.25 How will a bureau handle a request for Federally-funded research 
          data in the possession of a private entity?
2.26 Does the bureau provide multitrack processing of FOIA requests?
2.27 How will a bureau handle a request for information that is 
          contained in a Privacy Act system of records? (See DOI's 
          Privacy Act regulations (Subpart G of this part) for 
          additional information)

                         Subpart D_FOIA Appeals

2.28 When may I file an appeal?
2.29 How long do I have to file an appeal?
2.30 How do I file an appeal?
2.31 How will DOI respond to my appeal?
2.32 How long does DOI have to respond to my appeal?
2.33 How will the Department notify you and the submitter of commercial 
          or financial information when it makes an appeal decision 
          concerning such information?

                      Subpart E_FOIA Annual Report

2.34 Where can I get a copy of DOI's FOIA annual report?

           Subpart F_Declassification of Classified Documents

2.41 Declassification of classified documents.

                          Subpart G_Privacy Act

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

   Subpart H_Legal Process: Testimony by Employees and Production of 
                                 Records

                           General Information

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

[[Page 8]]

                     Responsibilities of Requesters

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

                   Responsibilities of the Department

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

                      Responsibilities of Employees

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

Appendix A to Part 2--Department of the Interior FOIA and Public Affairs 
          Contacts, and Reading Rooms
Appendix B to Part 2--Internet Addresses
Appendix C to Part 2--Fee Schedule
Appendix D to Part 2--Fee Waiver Criteria
Appendix E to Part 2--FOIA Exemptions
Appendix F to Part 2--Mineral Leasing Act and Mineral Leasing Act for 
          Acquired Lands--Special Rules

    Authority: 5 U.S.C. 301, 552 and 552a; 31 U.S.C. 9701 and 43 U.S.C. 
1460-1461. Appendix F to Part 2 also is issued under 30 U.S.C. 201-209; 
30 U.S.C. 351-360.

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



                      Subpart A_General Information

    Source: 67 FR 64530, Oct. 21, 2002, unless otherwise noted.



Sec. 2.1  What do the regulations cover?

    (a) The regulations implement the Freedom of Information Act (FOIA), 
5 U.S.C. 552, and contain the procedures by which the public may inspect 
and obtain copies of Department of the Interior (DOI or Department) 
records through the FOIA or by other means.
    (b) They apply to all agency records as defined in Sec. 2.3(c).
    (c) The policy and procedures set forth in these regulations apply 
to all bureaus and offices of the Department.
    (d) Nothing in the regulations will entitle you to any service or 
any record that is not required to be provided under the FOIA.
    (e) These regulations do not apply to records that fall under the 
law enforcement exclusions contained in 5 U.S.C. 552(c).



Sec. 2.2  What is DOI's policy regarding release of records under the FOIA?

    It is our policy to make records of the Department available to the 
public consistent with the spirit of the FOIA and the Privacy Act.



Sec. 2.3  What terms do I need to know?

    For the purposes of this part, the following definitions apply:
    (a) Act and FOIA mean the Freedom of Information Act, 5 U.S.C. 552, 
as amended.
    (b) Agency means any executive department, military department, 
Government corporation, Government-controlled corporation, or other 
establishment in the executive branch of the Federal Government, or any 
independent regulatory agency.
    (c) Agency record means any documentary material which is either 
created or obtained by an agency in the transaction of agency business 
and under agency control. See Sec. Sec. 2.21 and 2.25.
    (1) Agency records include:
    (i) Books, papers, maps, charts, plats, plans, architectural 
drawings, photographs, and microfilm;
    (ii) Machine-readable materials such as magnetic tape and disks;
    (iii) Electronic records (including e-mail messages);
    (iv) Audiovisual material such as still pictures, sound and video 
recordings; and
    (v) All other documentary materials, regardless of physical form, 
format or characteristics.
    (2) This definition generally does not cover records of an 
individual which are:
    (i) Created and maintained primarily for an individual's 
convenience;
    (ii) Not subject to agency creation or retention requirements; and
    (iii) Not distributed to other agency employees for their official 
use.
    (d) Bureau means any major component of the Department administering 
its own FOIA program. A list of these

[[Page 9]]

components is contained in Appendix A to this part.
    (e) Commercial-use request means a request from or on behalf of a 
person who seeks information for a use or purpose that furthers the 
commercial, trade or profit interests of the requester or the person on 
whose behalf the request is made. In determining whether a requester 
falls into this category, the bureau will consider the identity of the 
requester and intended use of the records in addition to any other 
available information about the requester.
    (f) Direct costs means those expenses that a bureau actually incurs 
in searching for and duplicating (and in the case of commercial-use 
requests, reviewing) records to respond to a FOIA request. Direct costs 
include, for example, the salary and benefits of the employee performing 
the work and the cost of operating duplicating equipment. Not included 
in direct costs are overhead expenses such as the costs of space and 
heating or lighting of the facility in which the records are kept.
    (g) Duplication means making a copy of a record, or the information 
contained in it, to respond to a FOIA request. Copies can take the form 
of paper, microform, photographs, audiovisual materials, or electronic 
records (for example, magnetic tape or disk), among others.
    (h) Educational institution means a preschool, a public or private 
elementary or secondary school, or an institution of undergraduate 
higher education, an institution of graduate higher education, an 
institution of professional education, or an institution of vocational 
education, which operates a program of scholarly research. To be in this 
category, a requester must show that the request is authorized by and is 
made under the auspices of a qualifying institution and that the records 
are not sought for a commercial use but are sought to further scholarly 
research.
    (i) Expedited processing means giving a FOIA request priority, and 
processing it ahead of other requests pending in the bureau because a 
requester has shown a compelling need for the records (see Sec. 2.14).
    (j) FOIA request means a written request (this includes facsimile 
(fax) and electronic mail (e-mail)) made by any member of the public for 
Federal agency records.
    (k) Free-lance journalist means an individual who is regarded as 
working for a news-media entity because he/she can demonstrate a solid 
basis for expecting publication through that entity, whether or not the 
journalist is actually employed by that entity. A publication contract 
would present a solid basis for such an expectation; the Government may 
also consider the past publication record of the requester in making 
such a determination.
    (l) Frequently requested documents means documents that have been 
requested at least three times under the FOIA. It also includes 
documents the agency anticipates would likely be the subject of three or 
more requests.
    (m) Multitrack processing means placing simple requests, requiring 
relatively minimal review, in one processing track and more voluminous 
and complex requests in one or more other tracks. Requests in each track 
are processed on a first-in/first-out basis.
    (n) Noncommercial scientific institution means an institution that 
is not operated for commerce, trade or profit, and that is operated 
solely for the purpose of conducting scientific research the results of 
which are not intended to promote any particular product or industry. To 
be in this category, a requester must show that the request is 
authorized by and is made under the auspices of a qualifying institution 
and that the records are not sought for a commercial use but are sought 
to further scientific research.
    (o) Privacy Act request means a written request (paper copy with an 
original signature) made by an individual for information about himself 
or herself that is contained in a Privacy Act system of records. The 
Privacy Act applies only to U.S. citizens and aliens lawfully admitted 
for permanent residence. Therefore, only those individuals may make 
Privacy Act requests.
    (p) Published research findings means research findings that are 
either:
    (1) Published in a peer-reviewed scientific or technical journal; or
    (2) Publicly and officially cited by a Federal agency in support of 
an agency action that has the force and effect of law.

[[Page 10]]

    (q) Reading room materials means records (paper or electronic) that 
are required to be made available to the public under 5 U.S.C. 
552(a)(2), as well as other records that a bureau, at its discretion, 
makes available to the public for inspection and copying without 
requiring the filing of a FOIA request.
    (r) Representative of the news media means any person or entity that 
gathers information of potential interest to a segment of the public, 
uses its editorial skills to turn the raw materials into a distinct 
work, and distributes that work to an audience. The term `news' means 
information that is about current events or that would be of current 
interest to the public. Examples of news-media entities are newspapers, 
television or radio stations broadcasting to the public at large, and 
publishers of periodicals (but only if such entities qualify as 
disseminators of `news') who make their products available for purchase 
by or subscription by or free distribution to the general public. These 
examples are not all inclusive. As methods of news delivery evolve (for 
example, the adoption of the electronic dissemination of newspapers 
through telecommunication services), such alternative media will be 
considered to be news-media entities.
    (s) Research data means the recorded factual material commonly 
accepted in the scientific community as necessary to validate research 
findings, but not such things as trade secrets, commercial information, 
personnel and medical information and any similar information which is 
protected under law.
    (t) Review means the examination of a record located in response to 
a request in order to determine whether any portion of it is exempt from 
disclosure. It also includes the deletion of exempt material or other 
processing necessary to prepare the record(s) for disclosure, including 
routine consultation among bureau staff and attorneys regarding the 
applicability of exemptions; and time spent considering any formal 
objection to disclosure made by a submitter under Sec. 2.23(f).
    (u) Search means the process of looking for and retrieving agency 
records and information responsive to a request (manually or by 
automated means).
    (v) Submitter means any person or entity outside the Federal 
Government from whom the Department directly or indirectly obtains 
commercial or financial information. The term includes, but is not 
limited to individuals, corporations, and state, local, tribal, and 
foreign governments.
    (w) Workday means a regular Federal workday. It does not include 
Saturdays, Sundays, or Federal legal public holidays.

[67 FR 64530, Oct. 21, 2002, as amended at 74 FR 17091, Apr. 14, 2009]



Subpart B_Information Routinely Available to the Public without Filing a 
                              FOIA Request

    Source: 67 FR 64530, Oct. 21, 2002, unless otherwise noted.



Sec. 2.4  How do I obtain information routinely available to the public?

    A great deal of information is available to the public without 
filing a FOIA request. Examples are Departmental policies, procedures, 
and organizational descriptions. The following guidance will help you 
obtain this information. [Note: For copies of records that are not 
routinely available, you must submit a FOIA request to the DOI office 
where the records are located. Procedures for requesting records under 
the FOIA are provided in subpart C of this part.]
    (a) General. (1) General information about DOI or one of its bureaus 
may be obtained by visiting DOI's home page (see appendix B to this part 
for a list of Internet addresses) or by contacting the Office of Public 
Affairs/Communications for the appropriate bureau (see appendix A to 
this part for a list of DOI contacts). Many documents are made available 
to the public through DOI's reading rooms. Some documents also may be 
available in DOI's electronic reading rooms on the Internet.
    (2) Information on DOI's FOIA Program and a Reference Guide to 
assist you in obtaining various types of information are available in 
DOI's reading rooms, through the FOIA home page,

[[Page 11]]

or by contacting the Departmental FOIA Officer.
    (3) To obtain information about specific records in DOI, you also 
may refer to:
    (i) The index of documents frequently requested under the FOIA, 
which is available in DOI's reading rooms, through the FOIA home page, 
or by contacting one of the bureau FOIA Officers; and
    (ii) The index and description of DOI's major information and record 
locator systems, which are available in DOI's reading rooms, through the 
FOIA home page, or by contacting one of the bureau FOIA Officers.
    (4) Another source of information is DOI's Library, which contains 
over one million holdings dealing with a broad range of matters 
pertaining to the Department's mission. You may wish to visit the 
Library, which is located at the C Street entrance of the Main Interior 
Building, 1849 C Street, NW., Washington, DC 20240 (see appendix A to 
this part). The Library is open to the public for on-site reference use 
from 7:45 a.m.-5:00 p.m., Monday-Friday (excluding Federal legal public 
holidays). Additional information regarding the Library's holdings and 
services may be obtained by visiting its home page (see appendix B to 
this part).
    (b) Published information and rules. Under 5 U.S.C. 552(a)(1), 
bureaus are required to publish certain information in the Federal 
Register for the guidance of the public, such as descriptions of their 
central and field organizations, functions, procedures, substantive 
rules, and statements of general policy.
    (c) Reading room materials. (1) Under 5 U.S.C. 552(a)(2), each 
bureau is responsible for making the information listed in paragraphs 
(c)(1)(i) through (v) of this section available for public inspection 
and copying unless the materials are promptly published and copies 
offered for sale. Bureaus must make any such records created on or after 
November 1, 1996, available by the Internet or by other computer 
telecommunication methods or electronic means as quickly as practicable.
    (i) Final opinions rendered in the adjudication of cases.
    (ii) Policy statements and interpretations which have been adopted 
by DOI and are not published in the Federal Register.
    (iii) Administrative staff manuals and instructions affecting the 
public.
    (iv) Copies of records that have been or are likely to become the 
subject of frequent FOIA requests and an index of those documents.
    (v) A subject-matter index of its reading room records (see Sec. 
2.5).
    (2) Bureaus may, at their discretion, make other records available 
for inspection and copying in reading rooms or via their home pages.
    (d) Inspection and copying of reading room materials. (1) Reading 
room materials are available for inspection and copying at the locations 
listed in Appendix A to this part and, in some cases, through the 
Internet; however, not all records may be available in all locations.
    (i) If you need assistance in determining the location and 
availability of the records you are seeking, contact the appropriate 
reading room or FOIA Contact listed in appendix A to this part.
    (ii) If you file a FOIA request for reading room materials and the 
information you request is available on the Internet, the FOIA Contact 
should refer you to the appropriate Web site. If the reading room 
materials are not available electronically, the FOIA Contact may either 
send you the materials, or forward your request to the appropriate 
reading room and provide the name and telephone number of a staff member 
you may contact. You may, nevertheless, ask the bureau to process your 
request as any other FOIA request.
    (2) A bureau may delete exempt information from some records before 
making them available for inspection and copying in a reading room. (See 
Sec. 2.21(c)). You may not appeal a bureau's decision to delete exempt 
information from a document it places in a public reading room. If you 
would like access to the entire record, you must submit a FOIA request 
under the procedures in subpart C of this part. However, this does not 
guarantee that the entire record will be released. If you submit such a 
FOIA request and are not satisfied with the response, you may file an 
appeal as described in Sec. 2.28.

[[Page 12]]

    (3) There is no charge to inspect reading room materials. Copying 
services will be provided at the fees specified in appendix C to this 
part. However, other fees may apply where a bureau has a statute that 
specifically requires the bureau to set fees for particular types of 
records.
    (4) If you submit a fee waiver request for information in a reading 
room, it will be processed under the procedures in Sec. 2.19.



Sec. 2.5  Does DOI maintain an index of its reading room materials?

    Each bureau will maintain and make available for public inspection 
and copying a current subject-matter index of its reading room materials 
(5 U.S.C. 552(a)(2)). The index will be available in the bureau's 
reading room(s) and in their electronic reading rooms on the Internet. 
Each index will be updated regularly.



Sec. 2.6  Will the Department accept written requests, including fax, e-mail, or telephone requests, for routinely available information?

    Yes. Although a request for this type of information is not a FOIA 
request, the bureau will send you the requested information and charge 
you for the copies, according to the fee schedule in appendix C to this 
part. While the bureau will attempt to respond to oral requests (those 
made by telephone or otherwise) for routinely available information, you 
should submit complex requests in writing to avoid any risk of 
misunderstanding.



              Subpart C_Requests for Records under the FOIA

    Source: 67 FR 64530, Oct. 21, 2002, unless otherwise noted.



Sec. 2.7  What do I need to know before filing a FOIA request?

    (a) If the records you are seeking are not routinely available as 
described in Subpart B of this part, you must submit a FOIA request to 
the FOIA Contact at the bureau office where you believe the records are 
maintained (see appendix A to this part). FOIA requests must be 
submitted in writing (this includes fax and e-mail)--DOI does not accept 
oral FOIA requests. Before submitting a request, you may find it useful 
to contact the appropriate bureau FOIA Contact or the Departmental FOIA 
Officer for additional information concerning DOI's FOIA Program. You 
may find the Department's Reference Guide, which is available 
electronically through the FOIA home page and in paper form as well, 
helpful in making your request.
    (b) The FOIA requires that we release records unless they are 
protected by one of nine exemptions (see appendix E to this part).
    (c) The Act does not require a bureau to answer questions that may 
be asked in a FOIA request.
    (d)(1) In order for a record to be considered subject to your FOIA 
request, it must be in the bureau's possession and control at the time 
the bureau begins its search for responsive records. There is no 
obligation for the bureau to create or compile a record to satisfy a 
FOIA request (for example, by combining or compiling selected items from 
manual files, preparing a new computer program, calculating proportions, 
percentages, frequency distributions, trends and comparisons, or 
creating maps). Normally if a bureau is extracting information from an 
existing computer database, this would not constitute the creation of a 
new record. However, a bureau has the option of creating a new record 
if--
    (i) Doing so will provide a more useful response to the requester,
    (ii) It is less burdensome than providing the existing records, and
    (iii) The newly created record is fully responsive to the request.
    (2) The fee in this case will not be more than the fee for the 
individual records. Fees will be charged consistent with the schedule in 
appendix C to this part.



Sec. 2.8  What information do I include in my request?

    (a) Description of records.
    (1) You must describe the requested records in enough detail to 
enable an employee familiar with the subject area of the request to 
locate the record(s) with a reasonable amount of

[[Page 13]]

effort. Be as specific as possible in describing the records you are 
seeking. For example, whenever possible:
    (i) Identify the date, title or name, author, recipient, and the 
subject of the record; the office that created it, the present custodian 
of the record and the geographical location (e.g., headquarters or a 
regional/field office); the timeframe for which you are seeking records; 
and any other information that will assist the bureau in locating the 
material.
    (ii) If the request involves a matter in litigation, state the case 
name and docket number as well as the court in which the case was filed.
    (2) The bureau will not begin processing your request until any 
issues regarding the scope or nature of your request are resolved. When 
a request is overly broad, unclear, involves an extremely voluminous 
amount of records, or a burdensome search, the bureau will contact you 
to identify and clarify the records you are seeking. It will work with 
you to define the subject matter, clarify terms that are used, or narrow 
the scope of your request.
    (3) The time limit for responding to your request will not start 
until the bureau receives a request reasonably describing the records or 
clarifying the initial request. If the bureau asks you for additional 
clarification and does not hear from you within 20 workdays, it will 
assume that you are no longer interested in pursuing your request and 
will close the file on your request.
    (b) Fee information.
    (1) Unless you request a fee waiver (see paragraph (b)(2) of this 
section), you should state that you are willing to pay all fees 
associated with processing your request or that you are willing to pay 
up to a specified amount. The bureau will not begin processing your 
request until this written assurance has been received. If the bureau 
anticipates that the fees for processing your request exceed the amount 
you have indicated you are willing to pay, the bureau will notify you 
that it needs your assurance of payment of fees as high as are 
anticipated, or an advance payment (see Sec. 2.18(b) and (c)). If the 
bureau does not hear from you within 20 workdays, it will assume that 
you are no longer interested in this matter and will close the file on 
your request.
    (2) You may request a fee waiver. If you are seeking a fee waiver, 
you must provide sufficient justification to support your fee waiver 
request (see the criteria in Sec. 2.19 and in appendix D to this part). 
Failure to provide adequate justification will result in a denial of 
your fee waiver request. Remember that if you are requesting a fee 
waiver, the burden is on you to demonstrate in your request that you are 
entitled to it. The bureau will not begin processing your request until 
the fee issues are resolved. As an option, at the same time you request 
a fee waiver you may state your willingness to pay regardless of whether 
a fee waiver is granted. This will permit the bureau to process your 
request for records at the same time it is considering the fee waiver 
request. If you are required to pay a fee, and it is later determined on 
appeal that you are entitled to a full or partial fee waiver, an 
appropriate refund will be made.
    (3) You should indicate what fee category you are in, i.e., if you 
are a commercial-use requester, news media, educational institution/
noncommercial scientific institution, or other requester (see Sec. Sec. 
2.3 and 2.17(a)). If you submit a FOIA request on behalf of another 
person or organization (for example, if you are an attorney submitting a 
request on behalf of a client), it is the underlying requester's 
identity and intended use that determines the fee category. If your fee 
category is unclear to the bureau, the 20-workday statutory time limit 
for processing your request will not begin to run (see Sec. 2.12(b)) 
until this matter has been resolved. If the bureau requests additional 
clarification and does not hear from you within 20 workdays, it will 
assume that you are no longer interested in this matter and will close 
the file on your request.
    (c) Mailing address information: Your postal address is required for 
the bureau to mail any responsive documents to you.
    (d) The following information will assist the bureau in processing 
your request:
    (1) The words ``FOIA REQUEST'' (prominently displayed) on the 
request

[[Page 14]]

letter and the envelope, or subject line of a request sent via e-mail or 
fax, or ``PRIVACY ACT REQUEST'' when requesting records pertaining to 
yourself that you believe are covered by the Privacy Act, as well as 
citing the appropriate act in your letter;
    (2) Your telephone number (where you can be reached during normal 
business hours), e-mail address and fax number, if available, in case 
the bureau, or the Department needs to communicate with you about your 
request. This information is very important.
    (3) A list of all the bureau FOIA Contacts to which you are sending 
your request. For the quickest possible handling, you should address a 
separate copy of your request to each bureau FOIA Contact where you 
believe the records are maintained.
    (4) When making a request for personal records about another 
individual, a written authorization from that individual and any other 
information required by the Privacy Act system of records notice; or 
proof that the individual is deceased (for example, a copy of a death 
certificate or an obituary) as the Privacy Act does not apply to a 
deceased individual. (Note: Information about a deceased individual may 
be subject to protection under exemption (6) of the FOIA if the release 
of the information could result in an invasion of the privacy of a 
living individual.)



Sec. 2.9  May I specify the form or format of disclosure?

    Generally, you may choose the form or format of disclosure for 
records that you request under the FOIA (5 U.S.C. 552(a)(3)(B)). Bureaus 
must provide the record in the requested form/format if the office 
responding to the request can readily reproduce the record in that form/
format with reasonable efforts. However, if the process of providing the 
information in the requested format would damage or destroy an original 
document, it may not be possible to honor your format request. Bureaus 
must make reasonable efforts to maintain their records in forms or 
formats that are reproducible. You may be charged the direct costs 
involved in converting information to the requested format if the bureau 
normally does not maintain the information in that format.



Sec. 2.10  Where do I send my request?

    (a) DOI does not have a central location where you may submit your 
FOIA request nor does it maintain a central index or database of 
documents in its possession. DOI's files are decentralized and are 
maintained by various bureau offices throughout the country.
    (b) Submit your request in writing to the FOIA Contact at the bureau 
office where you believe the records are maintained. If it is unclear 
where to send your request, seek assistance from the FOIA Contact of the 
bureau that manages the programs whose records you are requesting or the 
Departmental FOIA Officer. You may have to do a little research to find 
the proper office to handle your inquiry, but you will save time in the 
long run if you send your request directly to the FOIA Contact at the 
appropriate bureau office. The bureau will process your request as 
follows:
    (1) A request to a bureau headquarters office may be presumed to 
seek only records from the headquarters office, unless the request 
specifies otherwise.
    (2) A request to a regional/field office of a bureau may be presumed 
to seek only records at that office, unless the request specifies 
otherwise.
    (3) If a request to a bureau states that it seeks records located at 
another specific office of the same bureau, the appropriate FOIA Contact 
will refer the request to the other office. If the request states that 
it seeks records from other unspecified offices within the same bureau, 
the FOIA Contact will send the request to the Bureau FOIA Officer who 
will refer it to those offices that, to the best of his/her knowledge, 
have or are likely to have responsive records.
    (4) If a request to a bureau states that it seeks records of another 
specified bureau, the bureau will refer the request to the appropriate 
bureau for response. If the request states that it seeks records from 
other unspecified bureaus, the FOIA Contact will send the request to the 
Bureau FOIA Officer who will ensure that the request is referred to 
those bureaus which, to the

[[Page 15]]

best of his/her knowledge, have or are likely to have responsive 
records. In either case, the Bureau FOIA Officer will notify you of the 
referral in writing and provide the name of a contact in the other 
bureau(s) to which the referral was made.



Sec. 2.11  Why is it important to send my request to the right office?

    The bureau and office FOIA Contacts listed in appendix A to this 
part have primary responsibility for responding to FOIA requests. 
Failure to send your request to the FOIA Contact at the appropriate 
bureau office may delay processing, because the time limit for the 
bureau to respond will not begin to run until a request complying with 
Sec. Sec. 2.8 and 2.10 is received by the bureau office where the 
records are maintained. The processing of your request may be delayed if 
you send it to the Secretary of the Interior (or other high-level 
officials), the Office of Public Affairs/Communications, the DOI FOIA 
Officer, or the Department/bureau's webmaster.



Sec. 2.12  When can I expect the response?

    (a) Basic time limit. Ordinarily, a bureau has 20 workdays from the 
date of receipt to determine whether to grant or deny your FOIA request 
(see paragraph (b) of this section). The bureau will notify you 
immediately upon reaching its decision. If you have not received a 
response within 20 workdays, or 30 workdays if an extension has been 
taken (see Sec. 2.13) (be sure to allow for mailing time), you may 
contact the bureau to ask about the delay (see appendix A to this part). 
You also have the right to consider any nonresponse within these time 
limits as a denial of records and file a formal appeal (see Sec. 
2.28(a)(3)) or lawsuit. These time limits do not apply to requests for 
expedited processing (see Sec. 2.14).
    (b) Running of basic time limit. The 20 workday time limit begins to 
run when a request complying with the procedures in Sec. Sec. 2.8 and 
2.10 is received by the FOIA contact at the bureau office that has the 
records you are seeking. This means that all issues regarding fees and 
the scope of your request must be resolved before the bureau will begin 
processing your request.
    (c) Determining the status of your request. To determine the status 
of your request, you should call, fax, or email the point of contact 
provided in the bureau/office's acknowledgment letter to you, 
referencing the FOIA control number assigned to your request. You may 
also contact the appropriate FOIA Requester Service Center. If you are 
dissatisfied with the FOIA Requester Service Center's response, you may 
contact the bureau/office's FOIA Public Liaison to resolve the issue. 
(The relevant names and telephone numbers are listed at http://
www.doi.gov/foia/liaison.html).

[67 FR 64530, Oct. 21, 2002, as amended at 74 FR 17092, Apr. 14, 2009]



Sec. 2.13  When may the bureau take a time extension to respond to my request?

    (a) The bureau may extend the 20-workday time limit for 10 more 
workdays when it needs to:
    (1) Search for and collect the requested records from multiple 
offices; or
    (2) Search for, collect, and examine a voluminous amount of separate 
and distinct records sought in a single request; or
    (3) Consult with another agency having a substantial interest in the 
determination of the request or with one or more bureaus of the 
Department having substantial subject-matter interest in the request.
    (b) If the bureau intends to take an extension under this 
subsection, it will notify you in writing and provide the reason for the 
extension and the date it expects to make a determination on your 
request.
    (c) If an extension is necessary and the bureau is unable to respond 
to your request within 30 workdays, it will notify you in writing when 
you may expect a final response and advise you of your appeal rights. If 
an extension is taken and you have not received a response in 30 
workdays, you may consider the request denied and file an appeal under 
Sec. 2.28(a)(3) or file a lawsuit.
    (d) A bureau may not take an extension of time to decide whether to 
grant a request for a fee waiver.

[[Page 16]]



Sec. 2.14  When can I get expedited processing?

    (a) A bureau will provide expedited processing when you request it 
if you demonstrate to the satisfaction of the bureau that there is a 
compelling need for the records. The following circumstances demonstrate 
a compelling need:
    (1) Where failure to expedite the request could reasonably be 
expected to pose an imminent threat to the life or physical safety of an 
individual; or
    (2) An urgency to inform the public about an actual or alleged 
Federal Government activity if the request is made by a person primarily 
engaged in disseminating information. In most situations, a person 
primarily engaged in disseminating information will be a representative 
of the news media. The requested information must be the type of 
information which has particular value that will be lost if not 
disseminated quickly, and ordinarily refers to a breaking news story of 
general public interest. Therefore, information of historical interest 
only, or information sought for litigation or commercial activities, 
would not qualify, nor would a news media deadline unrelated to breaking 
news.
    (b) A request for expedited processing should be submitted with your 
FOIA request. For a prompt determination, you must submit a request 
complying with the requirements of Sec. Sec. 2.8 and 2.10 to the FOIA 
Contact at the bureau office that maintains the records you are seeking.
    (c) If you are seeking expedited processing, you must submit a 
statement explaining in detail the basis for your request. You must 
certify in your letter that your need for expedited processing is true 
and correct to the best of your knowledge and belief. For example, a 
requester within the category of paragraph (a)(2) of this section, if 
not a full time member of the news media, must establish that he or she 
is a person whose main professional activity or occupation is 
information dissemination, though it need not be his/her sole 
occupation.
    (d) Within 10 calendar days of receipt of your request, the bureau 
will notify you whether it will grant expedited processing. If expedited 
processing is granted, the bureau will give priority to that FOIA 
request and process the request as soon as practicable. If expedited 
processing is denied, the bureau will notify you of your right to appeal 
the decision on expedited processing. Appeals of denials of requests for 
expedited processing will be processed ahead of other appeals (see Sec. 
2.32(b)). If the bureau has not responded to your request for expedited 
processing within 10 calendar days, you have a right to file an appeal 
for nonresponse (see Sec. 2.28(a)(7)).

[67 FR 64530, Oct. 21, 2002, as amended at 74 FR 17092, Apr. 14, 2009]



Sec. 2.15  Will I be charged fees?

    Bureaus will charge fees consistent with the provisions in 
Sec. Sec. 2.16 and 2.17. The fee schedule in appendix C to this part 
applies to all bureaus of the Department.



Sec. 2.16  How are fees determined?

    (a) Authority. Bureaus are authorized to charge fees to recover the 
direct costs of searching for, reviewing (commercial-use requesters 
only) and duplicating documents to respond to a FOIA request. However, 
nothing in this subsection will supersede any statutory authority which 
requires the bureau to charge specific fees for certain types of 
records.
    (b) Policy. (1) Unless waived under the criteria in Sec. 2.19 or 
Sec. 2.20, bureaus will charge fees for responding to FOIA requests 
consistent with the provisions of this section and the fee schedule in 
appendix C.
    (2) A bureau normally will not charge a fee where the fee would be 
$30 or less. However, if the bureau has a reasonable basis to conclude 
that a requester or group of requesters has divided a request into a 
series of requests on a single subject or related subjects to avoid 
fees, the requests may be aggregated and fees charged accordingly. 
Bureaus may presume that multiple requests of this type that are made 
within a 30-day period have been made in order to avoid fees. Where 
requests are separated by a longer period, bureaus will aggregate them 
only where there exists a solid basis for determining that aggregation 
is warranted under all the

[[Page 17]]

circumstances involved. Multiple requests involving unrelated matters 
will not be aggregated.
    (3) Where a bureau responds to a request on behalf of more than one 
bureau, the fees that would be chargeable by all bureaus involved will 
be considered in determining whether the total FOIA processing fee is 
$30 or less. If a bureau is responding on behalf of more than one 
bureau, and you fall under one of the fee categories in Sec. 2.17(a)(2) 
or (a)(3), you will be entitled to receive up to a total of 100 pages of 
duplication without charge (there is no charge for searching for 
responsive records). If a bureau is responding on behalf of more than 
one bureau, and you fall under the fee category in Sec. 2.17(a)(4), you 
will be entitled to receive up to a total of 100 pages of duplication 
and two hours of search time without charge.
    (4) If a bureau obtains research data solely in response to your 
FOIA request, it may charge you a reasonable fee equaling the full cost 
of obtaining the research data from the recipient.
    (c) Searches. Searches will be conducted in the most efficient and 
least expensive manner, so as to minimize costs for both you and the 
bureau. Except where provided in Sec. Sec. 2.17(a)(2) and (a)(3), 
bureaus will charge for time spent in the following search activities:
    (1) Time spent in trying to locate records which come within the 
scope of the request, whether or not documents responsive to the request 
are located or the records located are exempt from disclosure; and
    (2) Direct costs involving the use of computer time to locate 
requested records.
    (d) Reviews (Commercial-use requests only). (1) Bureaus will charge 
commercial-use requesters (see Sec. 2.17(a)(1)) for time spent by 
bureau staff and attorneys in reviewing requested records for 
releasability. (See Sec. 2.3(e).)
    (2) Review costs will be assessed even if a record ultimately is not 
disclosed.
    (e) Duplication. Bureaus will charge duplication fees according to 
the fee schedule in appendix C to this part.
    (f) Categories of requesters. There are four categories of 
requesters for the purposes of determining fees--commercial-use, 
educational and noncommercial scientific institutions, news media, and 
all others. (See Sec. Sec. 2.3 and 2.17.)



Sec. 2.17  How will my requester category affect the fees that I am charged?

    (a) When you submit a FOIA request, you must specify your fee 
category. Based on the information you provide, the bureau office 
processing your request will decide your fee category and charge as 
follows:
    (1) Commercial-use requesters are charged fees for costs incurred in 
document search, review, and duplication.
    (2) Educational/noncommercial scientific institutions are charged 
for document duplication, except that the first 100 pages of paper 
copies (or the equivalent cost thereof if the records are in some other 
form) will be provided without charge. The bureau will not charge such 
requesters for document search and review.
    (3) News media requesters are charged for document duplication, 
except that the first 100 pages of paper copies (or the equivalent cost 
thereof if the records are in some other form) will be provided without 
charge. The bureau will not charge such requesters for document search 
and review.
    (4) Requesters not covered by paragraphs (a)(1) through (a)(3) of 
this section--``other requesters'' are charged fees for document search 
and duplication, except that they are entitled to the first two hours of 
search time and the first 100 pages of paper copies without charge (or 
the equivalent cost thereof if the records are in some other form). The 
bureau will not charge such requesters for document review.
    (b) If you do not submit sufficient information in your FOIA request 
for the bureau to determine your fee category (see paragraphs (a)(1) 
through (a)(4) of this section), the bureau may ask you to provide 
additional clarification. This applies to all requesters. The bureau 
will notify you promptly when additional information is needed. In these 
circumstances, the 20-workday statutory time limit for responding to 
your request will not begin to run until you provide sufficient 
information. If the bureau requests additional clarification and does 
not hear from you within 20 workdays, it will assume that you

[[Page 18]]

are no longer interested in this matter and will close the file on your 
request.
    (c) The following table summarizes the chargeable fees for each 
category of requester.

----------------------------------------------------------------------------------------------------------------
            Category                     Search fees               Review fees             Duplication fees
----------------------------------------------------------------------------------------------------------------
Commercial Use..................  Yes.....................  Yes.....................  Yes.
Educational Institution.........  No......................  No......................  Yes (100 pages free).
Non-Commercial Scientific         No......................  No......................  Yes (100 pages free).
 Institution.
News Media......................  No......................  No......................  Yes (100 pages free).
All other.......................  Yes (2 hours free)......  No......................  Yes (100 pages free).
----------------------------------------------------------------------------------------------------------------


[67 FR 64530, Oct. 21, 2002, as amended at 69 FR 58324, Sept. 30, 2004]



Sec. 2.18  How are fees assessed and collected?

    (a) Threshold for charging fees. Except in those situations covered 
by Sec. 2.16(b)(2), the bureau will not charge you if the fee is $30 or 
less.
    (b) Notice of anticipated fees. (1) Unless you have been granted a 
fee waiver or have previously agreed to pay all the fees associated with 
your request, or the anticipated fee is $30 or less, the bureau will:
    (i) Promptly notify you of the estimated costs and ask you to 
provide written assurance of payment of all fees or fees up to a 
designated amount; and
    (ii) Give you an opportunity to modify your request at that time to 
reduce the fee.
    (2) After the bureau begins processing your request, if it finds 
that the actual cost will exceed the amount you previously agreed to 
pay, the bureau will:
    (i) Stop processing your request;
    (ii) Promptly notify you of the higher amount and ask you to provide 
written assurance of payment; and
    (iii) Give you an opportunity to modify your request to reduce the 
fee.
    (c) Advance payment. (1) The bureau will require advance payment 
when the estimated fee is over $250 and--
    (i) You have never made a FOIA request to DOI requiring you to pay 
fees; or
    (ii) You did not pay a previous FOIA fee promptly.
    (2) If you have previously failed to pay a fee within 30 calendar 
days of the date of billing, the bureau will require you to:
    (i) Pay the full amount owed plus any applicable interest penalties 
(see paragraph (g) of this section) and to make an advance payment of 
the full amount of the estimated fee of the new request; or
    (ii) Demonstrate that you have, in fact, paid the prior fee.
    (3) At the same time the bureau notifies you that an advance payment 
is due, it will give you an opportunity to modify your request to reduce 
the fee.
    (d) Resolving the fee issue. The bureau will not start processing 
your request until the fee issue has been resolved (see Sec. Sec. 
2.8(b) and 2.12(b)). If the bureau seeks clarification from you about a 
fee issue and does not hear from you within 20 workdays, it will assume 
that you are no longer interested in this matter and will close the file 
on your request.
    (e) Billing procedures. If you are required to pay a fee associated 
with your request, the bureau that processes your request will send you 
a bill for collection.
    (f) Form of payment. You should submit a check or money order made 
payable to the ``Department of the Interior'' or the bureau furnishing 
the information. The term United States or the initials ``U.S.'' should 
not be included on the check or money order. Where appropriate, the 
official responsible for handling a request may require that payment by 
check be made in the form of a certified check. Some bureaus accept 
payment by credit card. Contact the bureau to determine what forms of 
payment it accepts.
    (g) Failure to pay fees. The bill for collection or the response 
letter will include a statement that interest will be charged in 
accordance with 31 U.S.C. 3717 and implementing regulations, if the fees 
are not paid within 30 calendar

[[Page 19]]

days of the date of the bill. This requirement does not apply if the 
requester is a State, local, or tribal government. The Debt Collection 
Improvement Act of 1996 will be used, as appropriate, to collect the 
fees (see Public Law 104-134).

[67 FR 64530, Oct. 21, 2002, as amended at 69 FR 58324, Sept. 30, 2004]



Sec. 2.19  When will bureaus waive fees?

    (a) Fees for processing your request may be waived if you meet the 
criteria listed in paragraph (b) of this section and appendix D to this 
part. The burden is on you to justify entitlement to a fee waiver. 
Requests for fee waivers are decided on a case-by-case basis. The fact 
that you have received a fee waiver in the past does not mean you are 
automatically entitled to a fee waiver for every request you may submit, 
because the essential element of any fee waiver determination is whether 
the release of the particular documents sought in the request will 
likely contribute significantly to public understanding of the 
operations or activities of the Government. The bureau will rely on the 
fee waiver justification you have submitted in your request letter. If 
you do not submit sufficient justification, your fee waiver request will 
be denied. The bureau may, at its discretion, communicate with you to 
request additional information if necessary. However the bureau must 
make a determination on the fee waiver request within the statutory time 
limit, even if the agency has not received such additional information. 
In certain circumstances, a partial fee waiver may be appropriate, if 
some, but not all, of the requested records are likely to contribute 
significantly to public understanding of the operations and activities 
of the Government.
    (b) Bureaus will waive fees (in whole or part) if disclosure of all 
or part of the information is in the public interest because its 
release--
    (1) Is likely to contribute significantly to public understanding of 
the operations or activities of the Government; and
    (2) Is not primarily in the commercial interest of the requester.
    (c) If a bureau denies your request for a fee waiver, it will notify 
you, in writing, of the following:
    (1) The basis for the denial, including a full explanation of why 
your fee waiver request did not meet DOI's fee waiver criteria (see 
paragraph (b) of this section and appendix D to this part);
    (2) The name(s) and title(s) or position(s) of each person 
responsible for the denial;
    (3) The name and title of the Office of the Solicitor attorney 
consulted; and
    (4) A statement that the denial may be appealed within 30 workdays 
after the date of the denial letter to the FOIA Appeals Officer (see 
appendix A to this part) under the procedures in Sec. 2.30.



Sec. 2.20  When will bureaus grant discretionary fee waivers?

    (a) A bureau may waive fees at its discretion if a request involves:
    (1) Furnishing a copy of a document that the bureau has reproduced 
for free distribution;
    (2) Furnishing one copy of a personal document (e.g., a birth 
certificate) to a person who has been required to furnish it for 
retention by the Department;
    (3) Furnishing one copy of the transcript of a hearing before a 
hearing officer in a grievance or similar proceeding to the employee for 
whom the hearing was held;
    (4) Furnishing records to donors with respect to their gifts;
    (5) Furnishing records to individuals or private nonprofit 
organizations having an official, voluntary or cooperative relationship 
with the Department to assist the individual or organization in working 
with the Department;
    (6) Furnishing a reasonable number records to members of the U.S. 
Congress, state, local, and foreign governments, public international 
organizations, and Indian tribes, when to do so without charge is an 
appropriate courtesy, or when the recipient is carrying on a function 
related to that of the Department and to do so will help to accomplish 
the work of the Department;
    (7) Furnishing records when to do so is in conformance with 
generally established business custom (e.g., furnishing

[[Page 20]]

personal reference data to prospective employers of former Department 
employees); or
    (8) Furnishing one copy of a single record in order to assist the 
requester in obtaining financial benefits to which he or she may be 
entitled (e.g., veterans or their dependents, employees with Government 
employee compensation claims).
    (b) You cannot appeal the denial of a discretionary fee waiver.



Sec. 2.21  How will the bureau respond to my request?

    (a) After all the criteria in Sec. Sec. 2.8 and 2.10 have been met, 
the bureau will make a reasonable effort to search for records 
responsive to your request. In determining which records are responsive 
to your request, the bureau will include any records in its possession 
and control as of the date it begins its search. This will include 
searching for records in an electronic form/format, except where it 
would interfere significantly with the bureau's automated information 
systems.
    (b) In response to your request, the bureau will do one of two 
things:
    (1) Include the requested records with the response letter or notify 
you of how, when, and where the records will be made available; or
    (2) Deny part or all of your request, except that the bureau may, 
consistent with Departmental policy, determine that a discretionary 
release is appropriate under the particular circumstances. Your request 
will be denied or partially denied only if one of the nine statutory 
exemptions listed in appendix E to this part applies to all or part of 
the records you have requested.
    (c) Where a document contains both exempt and nonexempt material, 
the bureau will generally separate and release the nonexempt 
information. When disclosing a record in part, the bureau will indicate 
on the released portion of the record how much information was deleted, 
unless doing so would harm an interest protected by the exemption used 
to withhold the information. Further, if technically feasible, the 
amount of information deleted and the exemption used to withhold the 
information will be indicated where the deletion is made. If the 
nonexempt material is so intertwined with the exempt material that 
disclosure of it would leave only meaningless words and phrases, the 
entire portion may be withheld.
    (d) If a bureau denies your request for records in whole or in part, 
the bureau's response will include:
    (1) A reference to the specific exemption or exemptions authorizing 
the withholding;
    (2) An explanation of the reason(s) for the denial;
    (3) An estimate of the volume of information being withheld. The 
bureau will make a reasonable effort to estimate the volume of any 
records denied, or portions of records (e.g., 100 pages, 4 Federal 
Record Center boxes, 1,000 kilobytes, etc.), unless such an estimate 
would harm an interest protected by the exemption used to withhold the 
information.
    (4) The name(s) and title(s) of the person(s) responsible for the 
denial;
    (5) The name and title of the Office of the Solicitor attorney 
consulted; and
    (6) A statement that the denial may be appealed to the FOIA Appeals 
Officer (see appendix A to this part), in accordance with the 
requirements in Sec. 2.29.
    (e) If records do not exist within DOI, cannot be located, are not 
reasonably described, or if a procedural issue remains unresolved (e.g., 
a fee issue), the bureau will respond to you in writing, including the 
following information, as applicable:
    (1) An explanation of the basis of the decision;
    (2) The name(s) and title(s) of the person(s) responsible for the 
decision; and
    (3) A statement that the matter may be appealed within 30 workdays 
of the date of the response, to the FOIA Appeals Officer under the 
procedures in Sec. 2.30.
    (f) The bureau must consult with the Office of the Solicitor if it 
is considering withholding a requested record or denying a fee waiver.
    (g) If any fees are due, the bureau will notify you in writing of 
the amount.
    (h) All bureau responses will include the name and telephone number 
of a

[[Page 21]]

contact person in case you have questions concerning the response.
    (i) Requests for information concerning coal under the Mineral 
Leasing Act or the Mineral Leasing Act for Acquired Lands are subject to 
special rules (see appendix F to this part).

[67 FR 64530, Oct. 21, 2002, as amended at 74 FR 17092, Apr. 14, 2009]



Sec. 2.22  What happens if a bureau receives a request for records it does not have or did not create?

    (a) Consultations/referrals within DOI. If a bureau (other than the 
Office of Inspector General) receives a request for records in its 
possession that another bureau created or is substantially concerned 
with, it will consult with the other bureau before deciding whether to 
release or withhold the records. Alternatively, the bureau may refer the 
request, along with the records, to that bureau for direct response. The 
bureau that received the request will notify you of the referral in 
writing, along with the name of a contact in the other bureau(s) to 
which the referral was made. A referral does not restart the statutory 
time limit for responding to your request.
    (b) Consultations/referrals with agencies outside DOI. (1) If a 
bureau receives a request for records not in its possession, but which 
the bureau believes may be in the possession of another Federal agency, 
the bureau will return your request and advise you to submit it directly 
to the other agency. If you still believe that the records exist within 
DOI, you should notify the bureau FOIA contact of any additional 
information which leads you to believe the records exist and where they 
might be found. Alternatively, you may treat such a response as a denial 
of records and file an appeal.
    (2) If, in response to a request, a bureau locates documents that 
originated with another Federal agency, it will refer the request, along 
with any responsive document(s), to that agency for a release 
determination and direct response. If the bureau refers the documents to 
another agency, it will notify you of the referral in writing and 
provide the name of a contact at the other agency. You may treat such a 
response as a denial of records and file an appeal. However, in the 
following situations, the bureau will make the release determination, 
after consulting with the originating agency.
    (i) When the record is of primary interest to DOI (a record is of 
primary interest to DOI if it was developed or prepared according to DOI 
regulations or directives, or in response to a DOI request);
    (ii) If DOI is in a better position than the originating agency to 
assess whether the record is exempt from disclosure;
    (iii) If the originating agency is not subject to the FOIA; or
    (iv) When it is more efficient or practical depending on the 
circumstances.
    (3) If a bureau receives a request for records which have been 
classified by another agency under Executive Order 12958, Classified 
National Security Information, or superseding Executive order, it must 
refer the request to that agency for response.

[67 FR 64530, Oct. 21, 2002, as amended at 69 FR 58324, Sept. 30, 2004; 
74 FR 17092, Apr. 14, 2009]



Sec. 2.23  How will a bureau handle a request for commercial or 

financial information that it has obtained from a person or entity outside the Federal 
          Government?

    (a) If a bureau receives a FOIA request for records containing 
commercial or financial information submitted by a person or entity 
outside the Federal Government, under Executive Order 12600, 
Predisclosure Notification Procedures for Confidential Commercial 
Information, or superseding Executive order, the bureau must provide the 
submitter with prompt written notice of the request, except as provided 
in paragraph (h) of this section, whenever:
    (1) The submitter has designated the information as confidential 
commercial or financial information, or
    (2) The bureau has reason to believe that the information may be 
protected under exemption (4).
    (b) The notice to the submitter will--
    (1) Include a copy of the FOIA request.
    (2) Describe the information requested or include copies of the 
pertinent records.

[[Page 22]]

    (3) Advise the submitter of the procedures for objecting to the 
release of the requested material and specify the time limit for 
responding.
    (4) Give the submitter no less than 10 workdays, from receipt (or 
publication as set forth in paragraph (c) of this section) of the 
bureau's notice, to object to the release and to explain the basis for 
the objection, if any.
    (5) Advise the submitter that:
    (i) Information contained in his/her objections may be subject to 
disclosure under the FOIA if the bureau receives a FOIA request for it; 
and
    (ii) If the submitter's objections contain commercial or financial 
information and a requester asks for the objections under the FOIA, the 
notification procedures of this subsection will apply.
    (6) Advise the submitter that it is the bureau, rather than the 
submitter, that is responsible for deciding whether the information will 
be released or withheld.
    (7) If the submitter designated the material as confidential 
commercial or financial information 10 or more years before the request, 
request the submitter's views on whether he/she still considers the 
information to be confidential.
    (c) Where a large number of submitters is involved, the bureau may, 
rather than providing written notice to each submitter, publish a notice 
in a manner reasonably calculated to reach the attention of the 
submitters (e.g., in newspapers/newsletters, the bureau's Web site, or 
the Federal Register).
    (d) Whenever a bureau notifies a submitter that it may be required 
to disclose information in response to a FOIA request, the bureau also 
will notify you that it is giving the submitter an opportunity to review 
and comment on the material.
    (e) If the submitter has any objection to disclosure he/she must 
submit a detailed written statement including the following:
    (1) The justification for withholding any portion of the information 
under any exemption of the FOIA. In the case of exemption (4), there 
must be a specific and detailed discussion of:
    (i) Whether the Government required the information in question to 
be submitted, and if so, how substantial competitive or other business 
harm would likely result from release; or
    (ii) Whether the submitter provided the information voluntarily and, 
if so, how the information in question fits into a category of 
information that the submitter customarily does not release to the 
public.
    (2) A certification that the information is confidential, has not 
been disclosed to the public by the submitter, and is essentially non-
public because it is not routinely available to the public from other 
sources.
    (3) If not already provided, a telephone number (where the submitter 
can be reached during normal business hours), an e-mail address, and a 
fax number (if available) is important information that will help the 
bureau or Department communicate with the submitter.
    (f) The bureau will review and consider all objections to release 
that are received within the time specified in the notice to the 
submitter. However, it is the bureau, rather than the submitter, that is 
responsible for deciding whether the information should be released or 
withheld. If a submitter fails to respond to the bureau within the time 
limits specified in the notice, the bureau will presume that the 
submitter has no objection to disclosure of the information.
    (g) If the bureau decides to release records over the submitter's 
objections, it will inform the submitter and you in writing. The notice 
to the submitter will be sent by certified mail, return receipt 
requested, to the submitter's last known address and will include copies 
of the records the bureau intends to release and the bureau's reasons 
for deciding to release them. The notice also will inform the submitter 
that it intends to release the records 10 workdays after receipt of the 
notice by the submitter.
    (h) The bureau will not consult with the submitter if:
    (1) The bureau responsible for the decision determines that the 
information is exempt from disclosure;
    (2) The information has been lawfully published or otherwise made 
available to the public, such as in response to an

[[Page 23]]

earlier FOIA request or if the submitter has made the information 
public;
    (3) Disclosure of the information is required by statute (other than 
the FOIA) or regulation (other than this subpart);
    (4) Disclosure of the information is prohibited by statute; or
    (5) The designation of confidentiality made by the submitter appears 
obviously frivolous. However, the bureau will notify the submitter of 
any final decision to disclose the information 15 workdays prior to 
releasing it.
    (i) The bureau will inform the submitter within 10 workdays of the 
Department's receipt of a court complaint if you file a lawsuit for 
access to any of the withheld records. Similarly, the bureau will notify 
you within 10 workdays of the Department's receipt of a court complaint 
if the submitter files a lawsuit to prohibit the bureau from disclosing 
the records.
    (j) If the bureau determines that the requested information is 
protected from release by exemption (4) of the FOIA, the bureau has no 
discretion to release the information as doing so would violate the 
Trade Secrets Act, a criminal provision found at 18 U.S.C. 1905.

[67 FR 64530, Oct. 21, 2002, as amended at 69 FR 58325, Sept. 30, 2004]



Sec. 2.24  Is a submitter required to designate information that is commercially or financially sensitive?

    No. If in the course of responding to a FOIA request, a bureau 
cannot readily determine whether the information obtained from a person 
is commercially or financially sensitive information, the bureau will 
obtain and consider the views of the submitter of the information and 
provide the submitter an opportunity to object to any decision to 
disclose the information.



Sec. 2.25  How will a bureau handle a request for Federally-funded research data in the possession of a private entity?

    In accordance with OMB Circular A-110, when published research 
findings are produced under a grant or other Federal assistance awarded 
to institutions of higher education, public and private hospitals, and 
other quasi-public and private nonprofit organizations, and the findings 
are used by a bureau in developing an agency action, e.g., a policy or 
regulation, research data related to such findings are considered agency 
records. This applies even if the bureau's data are in the possession of 
the recipient of the Federal financial assistance (recipient).
    (a) If you submit a FOIA request for such research data, the bureau 
will require the recipient to provide the information to it within a 
reasonable amount of time, so the bureau can consider the data for 
release to the public under the FOIA.
    (b) The bureau will notify you that it may charge you for any 
additional fees incurred as a result of obtaining the research data from 
the recipient. This fee is in addition to any fees the bureau may charge 
to process your request under the FOIA.
    (c) The bureau will forward a copy of the request to the recipient, 
who is responsible for searching for and reviewing the requested 
information in accordance with DOI's FOIA regulations (43 CFR part 2). 
The recipient will forward a copy of any responsive records that are 
located, along with his/her recommendations concerning the releasability 
of the data, and the total cost incurred in searching for, reviewing, 
and providing the data to the appropriate bureau FOIA contact.
    (d) The bureau will review and consider the recommendations of the 
recipient regarding the releasability of the requested data. However, it 
is the bureau, rather than the recipient, that is responsible for 
deciding whether the information will be released or withheld.

[67 FR 64530, Oct. 21, 2002, as amended at 69 FR 58325, Sept. 30, 2004]



Sec. 2.26  Does the bureau provide multitrack processing of FOIA requests?

    (a) All bureaus will use three processing tracks to distinguish 
between simple, normal, and complex requests based on the amount of time 
needed to process the request. FOIA requests will be placed in one of 
the following tracks:
    (1) Simple: 1-5 workdays;
    (2) Normal: 20 workdays; or

[[Page 24]]

    (3) Complex: Over 20 workdays.
    (b) Bureaus will exercise due diligence in processing requests in 
accordance with the requirements of the FOIA. Requesters should assume, 
unless notified by the bureau, that their request is in the ``Normal'' 
track.
    (c) A bureau should, if possible, give requesters in its ``Complex'' 
track the opportunity to limit the scope of their request in order to 
qualify for faster processing. A bureau doing so will contact the 
requester by telephone (which should be promptly followed up by a 
written communication) or in writing, whichever is more efficient in 
each case.
    (d) See the Department's FOIA home page at http://www.doi.gov/foia/
policy.html for details.

[74 FR 17092, Apr. 14, 2009]



Sec. 2.27  How will a bureau handle a request for information that is

contained in a Privacy Act system of records? (See DOI's Privacy Act regulations (Subpart 
          G of this part) for additional information.)

    (a) When you request information pertaining to yourself that is 
contained in a Privacy Act system of records applicable to you (i.e., 
the information contained in the system of records is retrieved by the 
bureau using your name or other personal identifier), the request will 
be processed under both the FOIA and the Privacy Act. If you request 
information about yourself, you must submit certain identifying 
information, usually an original signature (see the appropriate Privacy 
Act system notice and, subpart G of this part) before the bureau will 
process your request. (Note: If you request information about yourself 
that is not covered by the Privacy Act, e.g., the information may be 
filed under another subject, such as an organization, activity, event, 
or an investigation not retrievable by a name or personal identifier, 
the request will be treated only as a FOIA request.)
    (b) The Privacy Act never prohibits disclosure of material that the 
FOIA requires to be released. Both a Privacy Act and a FOIA exemption 
must apply to withhold information from you if the information you seek 
is contained in a Privacy Act system of records applicable to you.
    (c) Sometimes a request for Privacy Act information is submitted by 
a ``third party'' (an individual other than the person who is the 
subject of the Privacy Act record). If you request Privacy Act 
information about another individual, the material will not be disclosed 
without prior written approval by that individual unless--
    (1) The release is provided for under one of the Privacy Act 
conditions of disclosure (5 U.S.C. 552a(b)), one of which is that 
Privacy Act information is releasable if it is required to be released 
under the FOIA, or
    (2) In most circumstances, if the individual is deceased. See Sec. 
2.8(d)(4).
    (d) In handling a request covered by paragraph (a) of this section, 
the fee provisions and time limits under the FOIA will apply, except 
that with regard to information that is subject to the Privacy Act, the 
bureau will charge only for duplication and not for search and review 
time (see appendix C to this part). There will be no charge if the fee 
for processing the request is $30 or less.



                         Subpart D_FOIA Appeals

    Source: 67 FR 64530, Oct. 21, 2002, unless otherwise noted.



Sec. 2.28  When may I file an appeal?

    (a) You may file an appeal when:
    (1) Records or parts of records have been withheld;
    (2) The bureau informs you that you have not adequately described 
the records you are seeking, or that it does not possess responsive 
records and you have reason to believe it does or you question the 
adequacy of the bureau's search for responsive records;
    (3) A decision has not been made on your request within the time 
limits provided in Sec. 2.12;
    (4) The bureau did not address all aspects of your request for 
records;
    (5) You believe there is a procedural deficiency (e.g., fees are 
improperly calculated);
    (6) A fee waiver has been denied; or
    (7) A request for expedited processing has been denied or not 
responded to on time. (Special procedures apply to this type of appeal 
(see Sec. Sec. 2.14, 2.29(c), and

[[Page 25]]

2.32(b)). An appeal of this type relates only to the request for 
expedited processing and does not constitute an appeal of your 
underlying request for records.
    (b) Before filing an appeal, you may wish to communicate with the 
contact person listed in the FOIA response or the bureau's FOIA Officer 
to see if the issue can be resolved informally. Informal resolution of 
your concerns may be appropriate where the bureau has not responded to 
your request or where you believe the search conducted was not adequate. 
In this latter instance, you may be able to provide additional 
information that may assist the bureau in locating records. However, if 
you wish to file an appeal, it must be received by the FOIA Appeals 
Officer within the time limits in Sec. 2.29.



Sec. 2.29  How long do I have to file an appeal?

    (a) Appeals covered by Sec. 2.28(a)(1), (2), (4), and (5). Your 
FOIA appeal must be received by the FOIA Appeals Officer no later than 
30 workdays from the date of the final response.
    (b) Appeals covered by Sec. 2.28(a)(3). You may file an appeal any 
time after the time limit for responding to your request has passed.
    (c) Appeals covered by Sec. 2.28(a)(6). Your FOIA appeal must be 
received by the FOIA Appeals Officer no later than 30 workdays from the 
date of the letter denying the fee waiver.
    (d) Appeals covered by Sec. 2.28(a)(7). You should file an appeal 
as soon as possible.
    (e) Appeals arriving or delivered after 5 p.m. E.T., Monday through 
Friday, will be deemed received on the next workday.

[74 FR 17092, Apr. 14, 2009]



Sec. 2.30  How do I file an appeal?

    (a) You must submit your appeal in writing, i.e., by mail, fax or e-
mail, to the FOIA Appeals Officer, U.S. Department of the Interior (see 
appendix A for the address). Your appeal must include the information 
specified in paragraph (b) of this section. Failure to send your appeal 
directly to the FOIA Appeals Officer may result in a delay in 
processing.
    (b) You must include with your appeal copies of all correspondence 
between you and the bureau concerning your FOIA request, including your 
request and the bureau's response (if there is one). Failure to include 
with your appeal all correspondence between you and the bureau will 
result in the Department's rejection of your appeal, unless the FOIA 
Appeals Officer determines, in the FOIA Appeal Officer's sole 
discretion, that good cause exists to accept the defective appeal. The 
time limits for responding to your appeal will not begin to run until 
the documents are received.
    (c) You also should include in as much detail as possible any 
reason(s) why you believe the bureau's response was in error.
    (d) Include your name and daytime telephone number (or the name and 
telephone number of an appropriate contact), e-mail address and fax 
number (if available), in case DOI needs additional information or 
clarification of your appeal.
    (e) If you file an appeal concerning a fee waiver denial or a denial 
of expedited processing, you should, in addition to complying with 
paragraph (b) of this section, demonstrate fully how the criteria in 
Sec. 2.19(b) (see appendix D) or Sec. 2.14(a) are met. You also should 
state in as much detail as possible why you believe the initial decision 
was incorrect.
    (f) All communications concerning your appeal should be clearly 
marked with the words: ``FREEDOM OF INFORMATION APPEAL.''

[67 FR 64530, Oct. 21, 2002, as amended at 74 FR 17092, Apr. 14, 2009]



Sec. 2.31  How will DOI respond to my appeal?

    (a) Appeals will be decided by the FOIA Appeals Officer. When 
necessary, the FOIA Appeals Officer will consult other appropriate 
offices, including the Office of the Solicitor (in the case of all 
denials of information and fee waivers, and other technical issues as 
necessary).
    (b) The final decision on an appeal will be in writing and will 
state the basis for DOI's decision as follows:
    (1) Decision to release or withhold records. (i) If the FOIA Appeals 
Officer

[[Page 26]]

decides to release the withheld records or portions thereof, he/she will 
make the records available or instruct the appropriate bureau to make 
them available as soon as possible.
    (ii) If the FOIA Appeals Officer decides to uphold in whole or part 
the denial of a request for records, he/she will advise you of your 
right to obtain judicial review.
    (2) Non-possession of records. If the FOIA Appeals Officer decides 
that the requested records exist, the bureau that has the records will 
issue a response to you promptly and the FOIA Appeals Officer will close 
the file on your appeal. If the FOIA Appeals Officer decides that the 
requested records cannot be located or do not exist, he/she will advise 
you of your right to treat the decision as a denial and seek judicial 
review.
    (3) Non-response to a FOIA request. If a bureau has not issued an 
appropriate response to your FOIA request within the 20-workday 
statutory time limit, the FOIA Appeals Officer will direct the bureau to 
issue a response directly to you as soon as possible. If the bureau 
responds to your request within 20-workdays after receipt of the appeal, 
the FOIA Appeals Officer will close the file on your appeal. Otherwise, 
the FOIA Appeals Officer will advise you that you may treat the lack of 
a response by the bureau as a denial of your appeal and seek judicial 
review.
    (4) Incomplete response to a FOIA request. If a bureau has not 
issued a complete response to your FOIA request, the FOIA Appeals 
Officer will direct the bureau to issue a complete response directly to 
you as soon as possible, and provide you with the name and telephone 
number of a contact person. The FOIA Appeals Officer will close your 
FOIA appeal and advise you that you may treat the incomplete response by 
the bureau as a denial of your appeal and seek judicial review.
    (5) Procedural deficiencies. If the FOIA Appeals Officer decides 
that the bureau was in error, he/she will instruct the bureau to correct 
the error and advise you accordingly. If the FOIA Appeals Officer 
decides that the bureau acted properly, he/she will deny your appeal and 
advise you of your right to seek judicial review.
    (6) Fee waiver denials. If the decision is to grant your request for 
a fee waiver, the FOIA Appeals Officer will advise the appropriate 
bureau of the Department's decision and instruct the bureau to proceed 
with processing the request or to refund any monies you have paid. If 
the decision is to deny the fee waiver request, the Department will 
advise you of your right to seek judicial review. You also should 
contact the bureau office to make further arrangements to process your 
request if you still wish to obtain the records.
    (7) Denial of expedited processing. If the FOIA Appeals Officer 
decides to grant expedited processing, he/she will direct the bureau to 
process your request as soon as practicable. If your request for 
expedited processing is denied on appeal, the FOIA Appeals Officer will 
advise you of your right to seek judicial review of the denial of 
expedited processing.



Sec. 2.32  How long does DOI have to respond to my appeal?

    (a) The statutory time limit for responding to an appeal is 20 
workdays after receipt of an appeal meeting the requirements of Sec. 
2.30.
    (b) If you request expedited processing of your appeal, you must 
demonstrate to the Department's satisfaction that the appeal meets one 
of the criteria under Sec. 2.14(a). The FOIA Appeals Officer will 
advise you whether the Department will grant expedited processing within 
10 calendar days of its receipt of your appeal. If the FOIA Appeals 
Officer decides to grant expedited processing, he/she will give your 
appeal priority and process it ahead of other pending appeals.
    (c) If you have not received a decision on your appeal within 20 
workdays, you have the right to seek review in a District Court of the 
United States (see 5 U.S.C. 552(a)(4) and (6)). In the event that the 
Department is unable to reach a decision within the given time limits, 
the FOIA Appeals Officer will notify you of the reason for the delay and 
the right to seek judicial review.

[[Page 27]]



Sec. 2.33  How will the Department notify you and the submitter of 

commercial or financial information when it makes an appeal decision concerning such 
          information?

    (a) Notice of appeal decision. If the Department decides on appeal 
to release records over the objections of a submitter who has advised 
DOI that the information is protected from release by exemption (4), the 
Department will advise you and the submitter that it intends to release 
the records 10 workdays after the notice to the submitter regarding the 
appeal decision.
    (b) Notice of litigation. (1) The Department will notify the 
submitter within 10 workdays of receipt of the court complaint if you 
file a lawsuit seeking access to any records found on appeal to be 
protected from release by exemption (4).
    (2) The Department will notify you within 10 workdays of receipt of 
the court complaint if the submitter files a lawsuit requesting the 
court to prohibit the Department from releasing information it alleges 
qualifies for protection under exemption (4).



                      Subpart E_FOIA Annual Report

    Source: 67 FR 64530, Oct. 21, 2002, unless otherwise noted.



Sec. 2.34  Where can I get a copy of DOI's FOIA annual report?

    Under 5 U.S.C. 552(e), DOI is required to prepare an annual report 
regarding its FOIA activities. The report includes information about 
FOIA requests, appeals, and litigation against the Department. Copies of 
DOI's annual FOIA report may be obtained from the Departmental FOIA 
Officer or by contacting DOI's Library which is located at the C Street 
entrance of the Main Interior Building (MIB), 1849 C Street, NW., 
Washington, DC 20240 (see appendix A to this part). You may access the 
annual reports electronically by visiting DOI's FOIA home page (see 
appendix B to this part for the Internet address).



           Subpart F_Declassification of Classified Documents

    Source: 40 FR 7305, Feb. 19, 1975, unless otherwise noted. 
Redesignated at 67 FR 64530, Oct. 21, 2002.



Sec. 2.41  Declassification of classified documents.

    (a) Request for classification review. (1) Requests for a 
classification review of a document of the Department of the Interior 
pursuant to section 5(c) of Executive Order 11652 (37 FR 5209, March 10, 
1972) and section III B of the National Security Council Directive 
Governing Classification, Downgrading, Declassification and Safeguarding 
of National Security Information (37 FR 10053, May 1972) shall be made 
in accordance with the procedures established by this section.
    (2) Any person desiring a classification review of a document of the 
Department of the Interior containing information classified as National 
Security Information by reason of the provisions of Executive Order 
12065 (or any predecessor executive order) and which is more than 10 
years old, should address such request to the Chief, Division of 
Enforcement and Security Management, Office of Administrative Services, 
U.S. Department of the Interior, Washington, DC 20240.
    (3) Requests need not be made on any special form, but shall, as 
specified in the executive order, describe the document with sufficient 
particularity to enable identification of the document requested with 
expenditure of no more than a reasonable amount of effort.
    (4) Charges for locating and reproducing copies of records will be 
made when deemed applicable in accordance with appendix A to this part 
and the requester will be notified.
    (b) Action on requests for classification review. (1) The Chief, 
Division of Enforcement and Security Management, shall, unless the 
request is for a document over 30 years old, assign the request to the 
bureau having custody of the requested records for action. In the case 
of requests for declassification of records in the custody of the Office 
of the Secretary and less than 30 years old, the request shall be 
processed by the Chief, Division of Enforcement and

[[Page 28]]

Security Management. Requests for declassification of documents over 30 
years shall be referred directly to the Archivist of the United States. 
The bureau which has been assigned the request, or the Chief, Division 
of Enforcement and Security Management, in the case of requests assigned 
to him, shall immediately acknowledge the request in writing. Every 
effort will be made to complete action on each request within thirty 
(30) days of its receipt. If action cannot be completed within thirty 
(30) days, the requester shall be so advised.
    (2) If the requester does not receive a decision on his request 
within sixty (60) days from the date of receipt of his request, or from 
the date of his most recent response to a request for more particulars, 
he may apply to the Department of the Interior Oversight Committee for 
Security, U.S. Department of the Interior, Washington, DC 20240, for a 
decision on his request. The Committee must render a decision within 
thirty (30) days.
    (c) Form of decision and appeal to Oversight Committee for Security. 
In the event that the bureau to which a request is assigned or the 
Chief, Division of Enforcement and Security Management, in the case of a 
request assigned to him, determines that the requested information must 
remain classified by reason of the provisions of Executive Order 11652, 
the requester shall be given prompt notification of that decision and, 
whenever possible, shall be provided with a brief statement as to why 
the information or material cannot be declassified. He shall also be 
advised that if he desires he may appeal the determination to the 
Chairman, Department of the Interior Oversight Committee for Security, 
U.S. Department of the Interior, Washington, DC 20240. An appeal shall 
include a brief statement as to why the requester disagrees with the 
decision which he is appealing. The Department Oversight Committee for 
Security shall render its decision within thirty (30) days of receipt of 
an appeal. The Departmental Committee shall be authorized to over-rule 
previous determinations in whole or in part when, in its judgement, 
continued protection is no longer required.
    (d) Appeal to Interagency Classification Review Committee. Whenever 
the Department of the Interior Oversight Committee for Security confirms 
a determination for continued classification, it shall so notify the 
requester and advise him that he is entitled to appeal the decision to 
the Interagency Classification Review Committee established under 
section 8(A) of the Executive Order 11652. Such appeals shall be 
addressed to the Interagency Classification Review Committee, the 
Executive Office Building, Washington, DC 20500.
    (e) Suggestions and complaints. Any person may also direct 
suggestions or complaints with respect to the administration of the 
other provisions of Executive Order 11652 and the NSC Directive by the 
Department of the Interior to the Department of the Interior Oversight 
Committee for Security, U.S. Department of the Interior, Washington, DC 
20240.

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



                          Subpart G_Privacy Act

    Source: 40 FR 44505, Sept. 26, 1975, unless otherwise noted. 
Redesignated at 67 FR 64530, Oct. 21, 2002.



Sec. 2.45  Purpose and scope.

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

[48 FR 56583, Dec. 22, 1983]

[[Page 29]]



Sec. 2.46  Definitions.

    (a) Act. As used in this subpart, ``Act'' means section 3 of the 
Privacy Act, 5 U.S.C. 552a.
    (b) Bureau. For purposes of this subpart, a ``bureau'' is any 
constituent bureau or office of the Department, including the Office of 
the Secretary and any other Departmental office.
    (c) Individual. As used in this subpart, ``individual'' means a 
citizen of the United States or an alien lawfully admitted for permanent 
residence.
    (d) Maintain. As used in this subpart, the term ``maintain'' 
includes maintain, collect, use or disseminate.
    (e) Record. As used in this subpart, ``record'' means any item, 
collection, or grouping of information about an individual that is 
maintained by the Department or a bureau thereof, including, but not 
limited to, education, financial transactions, medical history, and 
criminal or employment history and that contains the individual's name, 
or the identifying number, symbol, or other identifying particular 
assigned to the individual, such as a finger or voice print, or a 
photograph.
    (f) System of records. As used in this subpart, ``System of 
records'' means a group of any records under the control of the 
Department or a bureau thereof from which information is retrieved by 
the name of the individual or by some identifying number, symbol, or 
other identifying particular assigned to the individual.
    (g) Medical records. As used in this subpart, ``medical records'' 
means records which relate to the identification, prevention, cure or 
alleviation of any disease, illness or injury including psychological 
disorders, alcoholism and drug addiction.
    (h) Office of Personnel Management personnel records. As used in the 
subpart, ``Office of Personnel Management personnel records'' means 
records maintained for the Office of Personnel Management by the 
Department and used for personnel management programs or processes such 
as staffing, employee development, retirement, and grievances and 
appeals.
    (i) Statistical records. As used in this subpart, ``statistical 
records'' means records in a system of records maintained for 
statistical research or reporting purposes only and not used in whole or 
in part in making any determination about an identifiable individual.
    (j) Routine use. As used in this subpart, ``routine use'' means a 
use of a record for a purpose which is compatible with the purpose for 
which it was collected.
    (k) System notice. As used in this subpart, ``system notice'' means 
the notice describing a system of records required by 5 U.S.C. 
552a(e)(4) to be published in the Federal Register upon establishment or 
revision of the system of records.
    (l) System manager. As used in this subpart, ``system manager'' 
means the official designated in a system notice as having 
administrative responsibility for a system of records.
    (m) Departmental Privacy Act Officer. As used in this subpart, 
``Departmental Privacy Act Officer'' means the official in the Office of 
the Assistant Secretary--Policy, Budget and Administration charged with 
responsibility for assisting the Assistant Secretary--Policy, Budget and 
Administration in carrying out the functions assigned in this subpart 
and for coordinating the activities of the bureaus of the Department in 
carrying out the functions which they are assigned in this subpart.
    (n) Bureau Privacy Act Officer. As used in this subpart, ``Bureau 
Privacy Act Officer'' means the official within each bureau assigned 
responsibility for bureau implementation of the Act and the regulations 
of this subpart.
    (o) Working day. As used in this subpart, ``working day'' means a 
regular Federal work day. It does not include Saturdays, Sundays or 
public legal holidays.

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



Sec. 2.47  Records subject to Privacy Act.

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

[[Page 30]]



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

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

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



Sec. 2.49  [Reserved]



Sec. 2.50  Federal Register notices describing systems of records.

    (a) The Privacy Act requires publication of a notice in the Federal 
Register describing each system of records subject to the Act. Such 
notice will be published prior to the establishment or a revision of the 
system of records. 5 U.S.C. 552a(e)(4).

[[Page 31]]

    (b) Each bureau shall notify the Departmental Privacy Act Officer 
promptly of any modifications or amendments which are required in the 
then-current notice describing a system of records for which it is 
responsible.
    (c) A bureau desiring to establish a new system of records or a new 
use for an existing system of records shall notify the Departmental 
Privacy Act Officer, no fewer than ninety (90) calendar days in advance.

[48 FR 56583, Dec. 22, 1983]



Sec. 2.51  Assuring integrity of records.

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

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



Sec. 2.52  Conduct of employees.

    (a) Handling of records subject to the Act. Employees whose duties 
require handling of records subject to the Privacy Act shall, at all 
times, take care

[[Page 32]]

to protect the integrity, security and confidentiality of these records.
    (b) Disclosure of records. No employee of the Department may 
disclose records subject to the Privacy Act unless disclosure is 
permitted under Sec. 2.56 or is to the individual to whom the record 
pertains.
    (c) Alteration of records. No employee of the Department may alter 
or destroy a record subject to the Privacy Act unless (1) such 
alteration or destruction is properly undertaken in the course of the 
employee's regular duties or (2) such alteration or destruction is 
required by a decision under Sec. Sec. 2.70 through 2.75 or the 
decision of a court of competent jurisdiction.
    (d) Bureau responsibility. The bureau responsible for a system of 
records shall be responsible for assuring that employees with access to 
the system are made aware of the requirements of this section and of 5 
U.S.C. 552a(i)(1), which imposes criminal penalties for knowingly and 
willfully disclosing a record about an individual without the written 
request or consent of that individual unless disclosure is permitted 
under one of the exceptions listed in Sec. 2.56 (b) and (c).



Sec. 2.53  Government contracts.

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



Sec. Sec. 2.54-2.55  [Reserved]



Sec. 2.56  Disclosure of records.

    (a) Prohibition of disclosure. No record contained in a system of 
records may be disclosed by any means of communication to any person, or 
to another agency, except pursuant to a written request by, or with the 
prior written consent of, the individual to whom the record pertains.
    (b) General exceptions. The prohibition contained in paragraph (a) 
does not apply where disclosure of the record would be:
    (1) To those officers or employees of the Department who have a need 
for the record in the performance of their duties; or
    (2) Required by the Freedom of Information Act, 5 U.S.C. 552.
    (c) Specific exceptions. The prohibition contained in paragraph (a) 
of this section does not apply where disclosure of the record would be:
    (1) For a routine use as defined in Sec. 2.46(j) which has been 
described in a system notice published in the Federal Register;
    (2) To the Bureau of the Census for purposes of planning or carrying 
out a census or survey or related activity pursuant to the provisions of 
Title 13, U.S. Code.
    (3) To a recipient who has provided the system manager responsible 
for the system in which the record is maintained with advance adequate 
written assurance that the record will be used solely as a statistical 
research or reporting record, and the record is to be transferred in a 
form that is not individually identifiable;
    (4) To the National Archives and Records Administration as a record 
which has sufficient historical or other value to warrant its continued 
preservation by the U.S. Government, or for evaluation by the Archivist 
of the United States or the designee of the Archivist to determine 
whether the record has such value;
    (5) To another agency or to an instrumentality of any governmental 
jurisdiction within or under the control of the United States for a 
civil or criminal law enforcement activity if the activity is authorized 
by law, and if the head of the agency or instrumentality has made a 
written request to the Department specifying the particular portion 
desired and the law enforcement activity for which the record is sought;
    (6) To a person pursuant to a showing of compelling circumstances 
affecting the health or safety of an individual if upon such disclosure 
notification is

[[Page 33]]

transmitted to the last known address of such individual;
    (7) To either House of Congress, or, to the extent of matter within 
its jurisdiction, any committee or subcommittee thereof, any joint 
committee of Congress or subcommittee of any such joint committee;
    (8) To the Comptroller General, or any of his authorized 
representatives, in the course of the performance of the duties of the 
General Accounting Office;
    (9) Pursuant to the order of a court of competent jurisdiction; or
    (10) To a consumer reporting agency in accordance with section 3(d) 
of the Federal Claims Collection Act of 1966, as amended (31 U.S.C. 
3711(f)).
    (d) Reviewing records prior to disclosure. (1) Prior to any 
disclosure of a record about an individual, unless disclosure is 
required by the Freedom of Information Act, reasonable efforts shall be 
made to assure that the records are accurate, complete, timely and 
relevant for agency purposes.
    (2) When a record is disclosed in connection with a Freedom of 
Information request made under subpart B of this part and it is 
appropriate and administratively feasible to do so, the requester shall 
be informed of any information known to the Department indicating that 
the record may not be fully accurate, complete, or timely.

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



Sec. 2.57  Accounting for disclosures.

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

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



Sec. Sec. 2.58-2.59  [Reserved]



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

    (a) Submission of requests. (1)(i) Individuals desiring to determine 
under the Privacy Act whether a system of records contains records 
pertaining to them shall address inquiries to the system manager having 
responsibility for the system unless the system notice describing the 
system prescribes or permits submission to some other official or 
officials.
    (ii) If a system notice describing a system requires individuals to 
contact more than two officials concerning the existence of records in 
the system, individuals desiring to determine whether the system 
contains records pertaining to them may contact the system manager for 
assistance in determining which official is most likely to be in 
possession of records pertaining to those individuals.
    (2) Individuals desiring to determine whether records pertaining to 
them are maintained in two or more systems shall make a separate inquiry 
concerning each system.
    (b) Form of request. (1) An inquiry to determine whether a system of 
records contains records pertaining to an individual shall be in 
writing.
    (2) To insure expeditious handling, the request shall be prominently 
marked, both on the envelope and on

[[Page 34]]

the face of the request, with the legend ``PRIVACY ACT INQUIRY.''
    (3) The request shall state that the individual is seeking 
information concerning records pertaining to him or herself and shall 
supply such additional identifying information, if any, as is called for 
in the system notice describing the system.
    (4) Individuals who have reason to believe that information 
pertaining to them may be filed under a name other than the name they 
are currently using (e.g., maiden name), shall include such information 
in the request.

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



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

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

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



Sec. 2.62  Requests for access to records.

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

[[Page 35]]

access shall be submitted in accordance with the procedures in this 
subpart.

[48 FR 56584, Dec. 22, 1983]



Sec. 2.63  Requests for access to records: Submission.

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

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



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

    (a) Decisions on requests. A request made under this subpart for 
access to a record shall be granted promptly unless (1) the record was 
compiled in reasonable anticipation of a civil action or proceeding or 
(2) the record is contained in a system of records which has been 
excepted from the access provisions of the Privacy Act by rulemaking 
(Sec. 2.79).
    (b) Authority to deny requests. A decision to deny a request for 
access under this subpart shall be made by the system manager 
responsible for the system of records in which the requested record is 
located and shall be concurred in by the bureau Privacy Act officer for 
the bureau which maintains the system, provided, however, that the head 
of a bureau may, in writing, require (1) that the decision be made by 
the bureau Privacy Act officer and/or (2) that the bureau head's own 
concurrence in the decision be obtained.
    (c) Form of decision. (1) No particular form is required for a 
decision granting access to a record. The decision shall, however, 
advise the individual requesting the record as to where and when the 
record is available for inspection or, as the case may be, where and 
when copies will be available. If fees are due under Sec. 2.64(d), the 
individual requesting the record shall also be notified of the amount of 
fees due or, if the exact amount has not been determined, the 
approximate amount of fees due.
    (2) A decision denying a request for access, in whole or part, shall 
be in writing and shall:
    (i) State the basis for denial of the request.

[[Page 36]]

    (ii) Contain a statement that the denial may be appealed to the 
Assistant Secretary--Policy, Budget and Administration pursuant to Sec. 
2.65 by writing to the Privacy Act Officer, Office of the Assistant 
Secretary--Policy, Budget and Administration, U.S. Department of the 
Interior, Washington, DC 20240.
    (iii) State that the appeal must be received by the foregoing 
official within twenty (20) working days of the date of the decision.
    (3) If the decision denying a request for access involves Department 
employee records which fall under the jurisdiction of the Office of 
Personnel Management, the individual shall be informed in a written 
response which shall:
    (i) State the reasons for the denial.
    (ii) Include the name, position title, and address of the official 
responsible for the denial.
    (iii) Advise the individual that an appeal of the denial may be made 
only to the Assistant Director for Workforce Information, Personnel 
Systems and Oversight Group, Office of Personnel Management, 1900 E 
Street NW., Washington, DC 20415.
    (4) Copies of decisions denying requests for access made pursuant to 
paragraphs (c)(2) and (c)(3) of this section will be provided to the 
Departmental and Bureau Privacy Act Officers.
    (d) Fees. (1) No fees may be charged for the cost of searching for 
or reviewing a record in response to a request made under Sec. 2.63.
    (2) Fees for copying a record in response to a request made under 
Sec. 2.63 shall be charged in accordance with the schedule of charges 
contained in Appendix A to this part, unless the official responsible 
for processing the request determines that reduction or waiver of fees 
is appropriate.
    (3) Where it is anticipated that fees chargeable in connection with 
a request will exceed the amount the person submitting the request has 
indicated a willingness to pay, the official processing the request 
shall notify the requester and shall not complete processing of the 
request until the requester has agreed, in writing, to pay fees as high 
as are anticipated.

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



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

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

[[Page 37]]

    (2) The decision on an appeal shall be in writing and shall state 
the basis for the decision.

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



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

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

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



Sec. Sec. 2.67-2.69  [Reserved]



Sec. 2.70  Amendment of records.

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

[48 FR 56585, Dec. 22, 1983]



Sec. 2.71  Petitions for amendment: Submission and form.

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

[48 FR 56585, Dec. 22, 1983]



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

    (a) Decisions on petitions. In reviewing a record in response to a 
petition for amendment, the accuracy, relevance, timeliness and 
completeness of the record shall be assessed against the criteria set 
out in Sec. 2.48. In addition, personnel records shall be assessed 
against the criteria for determining record quality published in the 
Federal Personnel Manual and the Departmental Manual addition thereto.
    (b) Authority to decide. An initial decision on a petition for 
amendment may be made only by the system manager responsible for the 
system of records containing the challenged record. If the system 
manager declines to amend the record as requested, the bureau Privacy 
Act officer for the bureau which maintains the system must concur in the 
decision, provided, however, that

[[Page 38]]

the head of a bureau may, in writing, require (1) that the decision be 
made by the bureau Privacy Act officer and/or (2) that the bureau head's 
own concurrence in the decision be obtained.
    (c) Acknowledgement of receipt. Unless processing of a petition is 
completed within ten (10) working days, the receipt of the petition for 
amendment shall be acknowledged in writing by the system manager to whom 
it is directed.
    (d) Inadequate petitions. (1) If a petition does not meet the 
requirements of Sec. 2.71, the petitioner shall be so advised and shall 
be told what additional information must be submitted to meet the 
requirements of Sec. 2.71.
    (2) If the petitioner fails to submit the additional information 
within a reasonable time, the petition may be rejected. The rejection 
shall be in writing and shall meet the requirements of paragraph (e) of 
this section.
    (e) Form of decision. (1) A decision on a petition for amendment 
shall be in writing and shall state concisely the basis for the 
decision.
    (2) If the petition for amendment is rejected, in whole or part, the 
petitioner shall be informed in a written response which shall:
    (i) State concisely the basis for the decision.
    (ii) Advise the petitioner that the rejection may be appealed to the 
Assistant Secretary--Policy, Budget and Administration by writing to the 
Privacy Act Officer, Office of the Assistant Secretary--Policy, Budget 
and Administration, U.S. Department of the Interior, Washington, DC 
20240.
    (iii) State that the appeal must be received by the foregoing 
official within twenty (20) working days of the decision.
    (3) If the petition for amendment involves Department employee 
records which fall under the jurisdiction of the Office of Personnel 
Management and is rejected, in whole or part, the petitioner shall be 
informed in a written response which shall:
    (i) State concisely the basis for the decision.
    (ii) Advise the petitioner that an appeal of the rejection may be 
made pursuant to 5 CFR 297.306 only to the Assistant Director for 
Workforce Information, Personnel Systems and Oversight Group, Office of 
Personnel Management, 1900 E Street NW., Washington, DC 20415.
    (4) Copies of rejections of petitions for amendment made pursuant to 
paragraphs (e)(2) and (e)(3) of this section will be provided to the 
Departmental and Bureau Privacy Act Officers.
    (f) Implementation of initial decision. If a petition for amendment 
is accepted, in whole or part, the bureau maintaining the record shall:
    (1) Correct the record accordingly and,
    (2) Where an accounting of disclosures has been made pursuant to 
Sec. 2.57, advise all previous recipients of the record that the 
correction was made and the substance of the correction.

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



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

    (a) Acknowledgement of receipt. The acknowledgement of receipt of a 
petition required by Sec. 2.72(c) shall be dispatched not later than 
ten (10) working days after receipt of the petition by the system 
manager responsible for the system containing the challenged record, 
unless a decision on the petition has been previously dispatched.
    (b) Decision on petition. A petition for amendment shall be 
processed promptly. A determination whether to accept or reject the 
petition for amendment shall be made within thirty (30) working days 
after receipt of the petition by the system manager responsible for the 
system containing the challenged record.
    (c) Suspension of time limit. The thirty (30) day time limit for a 
decision on a petition shall be suspended if it is necessary to notify 
the petitioner, pursuant to Sec. 2.72(d), that additional information 
in support of the petition is required. Running of the thirty (30) day 
time limit shall resume on receipt of the additional information by the 
system manager responsible for the system containing the challenged 
record.
    (d) Extensions of time. (1) The thirty (30) day time limit for a 
decision on a petition may be extended if the official responsible for 
making a decision on

[[Page 39]]

the petition determines that an extension is necessary for one of the 
following reasons:
    (i) A decision on the petition requires analysis of voluminous 
record or records;
    (ii) Some or all of the challenged records must be collected from 
facilities other than the facility at which the official responsible for 
making the decision is located.
    (iii) Some or all of the challenged records are of concern to 
another bureau of the Department or another agency of the Federal 
Government whose assistance and views are being sought in processing the 
request.
    (2) If the official responsible for making a decision on the 
petition determines that an extension is necessary, the official shall 
promptly inform the petitioner of the extension and the date on which a 
decision is expected to be dispatched.

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



Sec. 2.74  Petitions for amendment: Appeals.

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

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



Sec. 2.75  Petitions for amendment: Action on appeals.

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

[[Page 40]]

    (v) Of his or her right to seek judicial review of the Department's 
refusal to amend the record.
    (3) If the determination reverses, in whole or in part, the initial 
decision rejecting the petition for amendment, the system manager 
responsible for the system containing the challenged record shall be 
directed to:
    (i) Amend the challenged record accordingly; and
    (ii) If an accounting of disclosures has been made, advise all 
previous recipients of the record of the amendment and its substance.

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



Sec. 2.76  [Reserved]



Sec. 2.77  Statements of disagreement.

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

[48 FR 56586, Dec. 22, 1983]



Sec. 2.78  [Reserved]



Sec. 2.79  Exemptions.

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

[[Page 41]]

systems of records have been exempted from subsections (c)(3), (d), 
(e)(1), (e)(4) (G), (H), and (I) and (f) of 5 U.S.C. 552a and the 
provisions of the regulations in this subpart implementing these 
subsections:
    (1) [Reserved]
    (2) National Research Council Grants Program, Interior/GS-9
    (3) Committee Management Files, Interior/Office of the Secretary--
68.

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

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



   Subpart H_Legal Process: Testimony by Employees and Production of 
                                 Records

    Source: 65 FR 46369, July 28, 2000, unless otherwise noted. 
Redesignated at 67 FR 64530, Oct. 21, 2002.

                           General Information



Sec. 2.80  What does this subpart cover?

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



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

    (a) Except for proceedings covered by Sec. 2.80(c) and (d), it is 
the Department's general policy not to allow its employees to testify or 
to produce Department records either upon request or by subpoena. 
However, if you request in writing, the Department will consider whether 
to allow testimony or production of records under this subpart. The

[[Page 42]]

Department's policy ensures the orderly execution of its mission and 
programs while not impeding any proceeding inappropriately.
    (b) No Department employee may testify or produce records in any 
proceeding to which this subpart applies unless authorized by the 
Department under Sec. Sec. 2.80 through 2.90 United States ex rel. 
Touhy v. Ragen, 340 U.S. 462 (1951).

                     Responsibilities of Requesters



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

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



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

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



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

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



Sec. 2.85  How much will I be charged?

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



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

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

[[Page 43]]

                    Responsibility of the Department



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

    (a) The appropriate Department official will decide whether to grant 
or deny your Touhy Request. Our Solicitor's Office or, in the case of 
the Office of Inspector General, its General Counsel, may negotiate with 
you or your attorney to refine or limit both the timing and content of 
your Touhy Request. When necessary, the Solicitor's Office or, in the 
case of the Office of Inspector General, its General Counsel, also will 
coordinate with the Department of Justice to file appropriate motions, 
including motions to remove the matter to Federal court, to quash, or to 
obtain a protective order.
    (b) We will limit our decision to allow employee testimony to the 
scope of your Touhy Request.
    (c) If you fail to follow the requirements of this Subpart, we will 
not allow the testimony or produce the records.
    (d) If your Touhy Request is complete, we will consider the request 
under Sec. 2.88.



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

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

                      Responsibilities of Employees



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

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



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

    (a) You must comply with 5 CFR 2635.805(c), which details the 
authorization procedure for an employee to testify as an expert witness, 
not on behalf of the United States, in any judicial or administrative 
proceeding in which the United States is a party or has a direct

[[Page 44]]

and substantial interest. This procedure means:
    (1) You must obtain the written approval of your Deputy Ethics 
Official;
    (2) You must be in an approved leave status if you testify during 
duty hours; and
    (3) You must state for the record that you are appearing as a 
private individual and that your testimony does not represent the 
official views of the Department.
    (b) If you testify as an expert witness on a matter outside the 
scope of your official duties, and which is not covered by paragraph (a) 
of this section, you must comply with 5 CFR 2635.802 and 5 CFR 3501.105.



 Sec. Appendix A to Part 2--Department of the Interior FOIA and Public 
                   Affairs Contacts, and Reading Rooms

----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
                                                  Departmental
----------------------------------------------------------------------------------------------------------------
Departmental FOIA Officer                   Departmental FOIA/Privacy Act     Departmental Privacy Officer
Senior FOIA Program Officer                  Appeals Officer                  MS-7438-MIB
``Policy Only-No Requests''                 MS-6556-MIB                       1849 C St., NW.
MS-7438-MIB                                 1849 C St., NW.                   Washington, DC 20240
1849 C St., NW.                             Washington, DC 20240              Telephone No. (202) 208-3909
Washington, DC 20240                        Telephone No. (202) 208-5339      Fax No. (202) 208-6867
Telephone No. (202) 208-5342                Fax No. (202) 208-6677
(202) 208-5412
Fax No. (202) 208-6867, (202) 501-2622
----------------------------------------------------------------------------------------------------------------


Public Affairs Office                Reading Room--DOI's Library
Office of Communications             MIB (C Street Entrance)
MS-6013, MIB                         1849 C St., NW.
1849 C St., NW.                      Washington, DC 20240
Washington, DC 20240                 Telephone No. (202) 208-5815
Telephone No. (202) 208-6416         Fax No. (202) 208-6773
Fax No. (202) 208-5133
------------------------------------------------------------------------


                                             Office of the Secretary
----------------------------------------------------------------------------------------------------------------
FOIA Officer                          Public Affairs Office                 Reading Room--DOI's Library
MS-116, SIB                           Office of Communications              MIB (C Street Entrance)
1951 Constitution Ave., NW.           MS-6013, MIB                          1849 C St., NW.
Washington, DC 20240                  1849 C St., NW.                       Washington, DC 20240
Telephone No. (202) 565-1076          Washington, DC 20240                  Telephone No. (202) 208-5815
Fax No. (202) 219-2374                Telephone No. (202) 208-6416          Fax No. (202) 208-6773
                                      Fax No. (202) 208-5133
----------------------------------------------------------------------------------------------------------------
                                           Office of Inspector General
----------------------------------------------------------------------------------------------------------------
FOIA Officer                          Public Affairs Office                 Reading Room
MS-4428, MIB                          MS-4428, MIB                          Room 4428, MIB
1849 C St., NW.                       1849 C St., NW.                       1849 C St., NW.
Washington, DC 20240                  Washington, DC 20240                  Washington, DC 20240
Telephone No. (703) 487-5436          Telephone No. (202) 513-0326          Telephone No. (703) 487-5443
Fax No. (703) 487-5406                Fax No. (202) 219-3856                Fax No. (703) 487-5400
----------------------------------------------------------------------------------------------------------------
                                   Office of the Solicitor (SOL) Headquarters
----------------------------------------------------------------------------------------------------------------
FOIA Officer                          Public Affairs Office                 Reading Room
MS-6556, MIB                          Office of Communications              Room 2328, MIB
1849 C St., NW.                       MS-6013, MIB                          1849 C St., NW.
Washington, DC 20240                  1849 C St., NW.                       Washington, DC 20240
Telephone No. (202) 208-6221          Washington, DC 20240                  Telephone No. (202) 208-6505
Fax No. (202) 208-5206                Telephone No. (202) 208-6416          Fax No. (202) 208-5206
                                      Fax No. (202) 208-3231
----------------------------------------------------------------------------------------------------------------

[[Page 45]]

 
                                   Fish & Wildlife Service (FWS) Headquarters
----------------------------------------------------------------------------------------------------------------
FOIA Officer                          Public Affairs Office                 Reading Room
Arlington Square, Room 380            Arlington Square, MS-330              Arlington Square, MS-380
4401 North Fairfax Dr.                4401 North Fairfax Dr.                4401 North Fairfax Dr.
Arlington, VA 22203                   Arlington, VA 22203                   Arlington, VA 22203
Telephone No. (703) 358-2504          Telephone No. (703) 358-2220          Telephone No. (703) 358-2504
Fax No. (703) 358-2251                Fax No. (703) 358-1930                Fax No. (703) 358-2251
----------------------------------------------------------------------------------------------------------------
                                    National Park Service (NPS) Headquarters
----------------------------------------------------------------------------------------------------------------
FOIA Officer                          Public Affairs Office                 Reading Room
Office of the CIO                     P.O. Box 37127                        Contact: NPS FOIA Officer
Org Code 2550                         Washington, DC 20013-7127             1201 Eye St., NW.
1849 C St., NW.                       Telephone No. (202) 208-6843          8th Floor
Washington, DC 20240                  Fax No. (202) 219-0910                Washington, DC 20005
Telephone No. (202) 354-1925                                                Telephone No. (202) 354-1925
Fax No. (202) 371-5584                                                      Fax No. (202) 371-5584
----------------------------------------------------------------------------------------------------------------
                                  Bureau of Land Management (BLM) Headquarters
----------------------------------------------------------------------------------------------------------------
FOIA Officer                          Public Affairs Office                 Reading Room
MS-WO-560                             MS-WO-610                             1620 L St., NW.--Room 750
1620 L St., NW., Room 750             1620 L St., NW., Room 406             Washington, DC 20240
Washington, DC 20240                  Washington, DC 20240                  Telephone No. (202) 452-5193
Telephone No. (202) 452-5013          Telephone No. (202) 452-5125          Fax No. (202) 452-0395
Fax No. (202) 452-5002                Fax No. (202) 452-5124
----------------------------------------------------------------------------------------------------------------
                                 Minerals Management Service (MMS) Headquarters
----------------------------------------------------------------------------------------------------------------
FOIA Officer                          Public Affairs Office                 Reading Room
381 Elden St. MS-2200                 Office of Communications              Public Information Office
Herndon, VA 20170-4817                1849 C St., NW., MS-4230              1201 Elmwood Park Blvd.
Telephone No. (703) 787-1689          Washington, DC 20240                  New Orleans, LA 70123-2394
Fax No. (703) 787-1207                Telephone No. (202) 208-3985          Telephone No. (800) 200-GULF
                                      Fax No. (202) 208-3968                Fax No. (504) 736-2620
----------------------------------------------------------------------------------------------------------------
                                   Office of Surface Mining (OSM) Headquarters
----------------------------------------------------------------------------------------------------------------
FOIA Officer                          Office of Communications              Reading Room
MS-130, SIB                           MS-262, SIB                           Contact: OSM FOIA Officer
1951 Constitution Ave., NW.           1951 Constitution Ave., NW.           Room 263, SIB
Washington, DC 20240                  Washington, DC 20240                  1951 Constitution Ave., NW.
Telephone No. (202) 208-2961          Telephone No. (202) 208-2565          Washington, DC 20240
Fax No. (202) 219-3092                Fax No. (202) 501-0549                Telephone No. (202) 208-2961
                                                                            Fax No. (202) 501-4734
----------------------------------------------------------------------------------------------------------------
                                   U.S. Geological Survey (USGS) Headquarters
----------------------------------------------------------------------------------------------------------------
FOIA Officer                          Office of Communications              Reading Room
12201 Sunrise Valley Dr., MS-807      12201 Sunrise Valley Dr., MS-119      USGS Library
Reston, VA 20192                      Reston, VA 20192                      12201 Sunrise Valley Dr.
Telephone No. (703) 648-7158          Telephone No. (703) 648-4460          Reston, VA 20192
Fax No. (703) 648-6853                Fax No. (703) 648-4466                Telephone No. (703) 648-4302
                                                                            Fax No. (703) 648-6373
----------------------------------------------------------------------------------------------------------------
                                    Bureau of Reclamation (BOR) Headquarters
----------------------------------------------------------------------------------------------------------------
FOIA Officer                          Public Affairs Office                 Reading Room
P.O. Box 25007, 84-21300              P.O. Box 25007, 82-40000              Reclamation Library
Denver, CO 80225-0007                 Denver, CO 80225-0007                 P.O. Box 25007, 84-27960
Telephone No. (303) 445-2048          Telephone No. (303) 236-7000          Denver, CO 80225-0007
Fax No. (303) 445-6575                Fax No. (303) 236-9235                Telephone No. (303) 445-2072
                                                                            Fax No. (303) 445-6303
----------------------------------------------------------------------------------------------------------------

[[Page 46]]

 
                                   Bureau of Indian Affairs (BIA) Headquarters
----------------------------------------------------------------------------------------------------------------
FOIA Officer                          Public Affairs Office                 Reading Room
MS-3071, MIB                          MS-3658, MIB                          Room 3071, MIB
1849 C St., NW.                       1849 C St., NW.                       1849 C St., NW.
Washington, DC 20240                  Washington, DC 20240                  Washington, DC 20240
Telephone No. (202) 208-4542          Telephone No. (202) 208-3710          Telephone No. (202) 513-0883
Fax No. (202) 208-6597                Fax No. (202) 501-1516                Fax No. (202) 208-6597
----------------------------------------------------------------------------------------------------------------

    Note: For more information on FOIA, including the most current 
listing of FOIA Contacts and reading rooms, visit DOI's FOIA Web site at 
http://www.doi.gov/foia/. Henceforth, contact information will be 
maintained and updated on DOI's FOIA Web site. If you do not have access 
to the Web, please contact the appropriate bureau FOIA Officer or the 
Departmental FOIA Office.

[74 FR 17093, Apr. 14, 2009]



              Sec. Appendix B to Part 2--Internet Addresses

    1. Department of the Interior (DOI) Home Page: http://www.doi.gov
    2. DOI FOIA Home Page: http://www.doi.gov/foia/
    3. DOI Reference Guide for Obtaining Information: http://
www.doi.gov/foia/foitabl.htm
    4. List of DOI Public Affairs Offices: http://www.doi.gov/foia/
list.html
    5. DOI FOIA Contacts: http://www.doi.gov/foia/contacts.html
    6. DOI FOIA Regulations (43 CFR, Part 2, Subparts A and B): http://
www.doi.gov/foia/foiaregs.html
    7. DOI FOIA Policy and Guidance: http://www.doi.gov/foia/policy.html
    8. Electronic Reading Room: http://www.doi.gov/foia/readroom.html
    9. Index of Frequently Requested Documents: http://www.doi.gov/foia/
freq.html
    10. DOI's Frequently Requested Documents: http://www.doi.gov/foia/
frrindex.html
    11. FOIA Annual Reports to Congress: http://www.doi.gov/foia/
report.html
    12. DOI's Library: http://library.doi.gov
    13. General Records Schedule 14, Information Services Records: 
http://ardor.nara.gov/grs/grs14.html
    14. DOI Records Management Program: http://www.doi.gov/ocio/records/
    15. DOI Privacy Act Program: http://www.doi.gov/ocio/privacy/
    16. DOI Privacy Act Officers: http://www.doi.gov/ocio/privacy/doi--
privacy--act--officers.htm
    17. DOI Privacy Act Regulations: http://www.doi.gov/foia/
43cfrsub.html
    18. DOI Privacy Act Systems of Records Notices: http://
www.access.gpo.gov/su--docs/aces/1999--pa.html
    19. FirstGov Portal: http://www.firstgov.gov
    Note: See DOI's FOIA home page at http://www.doi.gov/foia/ for the 
most current listing of FOIA-related website addresses.

[67 FR 64541, Oct. 21, 2002]



                 Sec. Appendix C to Part 2--Fee Schedule

    If you submit a FOIA request, the bureau will charge you to search 
for, review, and duplicate the requested records according to your fee 
category (see Sec. Sec. 2.16 and 2.17) and the following fee schedule. 
In addition, the bureau will charge you for any special handling or 
services performed in connection with processing your request and/or 
appeal under Subparts C and D of this part. The following fees will be 
used by all bureaus of the Department; these fees apply to services 
performed in making documents available for public inspection and 
copying under Subpart B of this part as well. The duplicating fees also 
are applicable to records provided in response to requests made under 
the Privacy Act. Fees will not be charged under either the FOIA or the 
Privacy Act where the total amount of fees for processing the request is 
$30 or less (see Sec. 2.16(b)(2)), where the requester has met the 
requirements for a statutory fee waiver, or where the bureau has granted 
a discretionary fee waiver (see Sec. Sec. 2.19 and 2.20).
    (1) Search and review (review applies to commercial-use requesters 
only). Fees are based on: the average hourly salary (base salary plus DC 
locality payment), plus 16 percent for benefits, of employees in the 
following three categories. The average grade was established by 
surveying the bureaus to obtain the average grade of employees 
conducting FOIA searches and reviews. Fees will be increased annually 
consistent with Congressionally approved pay increases. Fees are charged 
in quarter hour increments.
    (a) Clerical--Based on GS-6, Step 5, pay (all employees at GS-7 and 
below)
    (b) Professional--Based on GS-11, Step 7, pay (all employees at GS-8 
through GS-12)
    (c) Managerial--Based on GS-14, Step 2, pay (all employees at GS-13 
and above)


[[Page 47]]


    Note: Fees for the current fiscal year are posted on DOI's FOIA home 
page (see Appendix B). If you do not have access to the Internet, please 
call the Departmental FOIA Officer (see Appendix A) for a copy of the 
fee schedule.

------------------------------------------------------------------------
                                                         Fee
------------------------------------------------------------------------
(2) Duplication:
Pages no larger than 8.5 x 14 inches, when  $.13 per page ($.26 for
 reproduced by standard office copying       double-sided copying)
 machines.
Color copies of pages no larger than 8.5 x  $.90 per page
 11 inches.
Pages larger than 8.5 x 14 inches.........  Direct cost to DOI
Color copies of pages no larger than 11 x   $1.50 per page
 17 inches.
Photographs and records requiring special   Direct cost to DOI
 handling (e.g., because of age, size, or
 format).
(3) Electronic records:
Charges for services related to processing  Direct cost to DOI
 requests for electronic records.
(4) Certification.........................  Fee
Each certificate of verification attached   $.25
 to authenticate copies of records.
(5) Postage/Mailing:
Charges that exceed the cost of first       Postage or Delivery charge
 class postage. Examples of such charges
 are express mail or overnight delivery.
(6) Other Services:
Cost of special services or materials,      Direct cost to DOI
 other than those provided for by this fee
 schedule, when requester is notified of
 such costs in advance and agrees to pay
 them.
------------------------------------------------------------------------


[67 FR 64541, Oct. 21, 2002]



             Sec. Appendix D to Part 2--Fee Waiver Criteria

    If you are seeking a fee waiver, it is your responsibility to 
provide detailed information to support your request. You must submit 
this information with your FOIA request. You should explain the 
significance of the release of the information to the public's 
understanding of the Government's operations and activities based on 
your understanding of the type of information that you are requesting. 
Each fee waiver request is judged on its own merit--we do not grant 
``blanket'' fee waivers, i.e., obtaining a fee waiver once does not mean 
you will obtain a subsequent fee waiver. Please note that inability to 
pay is not sufficient to justify a fee waiver.
    (a) The statutory requirement for granting a fee waiver is that 
release of the information must be in the public interest because it--
    (1) Is likely to contribute significantly to public understanding of 
the operations and activities of the Government; and
    (2) Is not primarily in your commercial interest.
    (b) In deciding whether you are entitled to a fee waiver, the bureau 
will consider the criteria in paragraphs (1) through (4), below. Your 
request for a fee waiver must address each of these criteria.
    (1) How do the records concern the operations or activities of the 
Government?
    (2) If the records concern the operations or activities of the 
Government, how will disclosure likely contribute to public 
understanding of these operations and activities?
    (i) How are the contents of the records you are seeking meaningfully 
informative on the Department's or a bureau's operations and activities? 
Is there a logical connection between the content of the records and the 
operations or activities you are interested in?
    (ii) Other than enhancing your knowledge, how will disclosure of the 
requested records contribute to the understanding of the public at large 
or a reasonably broad audience of persons interested in the subject?
    (iii) Your identity, vocation, qualifications, and expertise 
regarding the requested information (whether you are affiliated with a 
newspaper, college or university, have previously published articles, 
books, etc.) may be relevant factors. However, merely stating that you 
are going to write a book, research a particular subject, or perform 
doctoral dissertation work, is insufficient, without demonstrating how 
you plan to disclose the information in a manner which will be 
informative to a reasonably broad audience of persons interested in the 
subject.
    (iv) Do you have the ability and intention to disseminate the 
information to the general public or a reasonably broad audience of 
persons interested in the subject?
    (A) How and to whom do you intend to disseminate the information?
    (B) How do you plan to use the information to contribute to public 
understanding of the Government's operations or activities?
    (3) If there is likely to be a contribution to public understanding, 
will release of the requested records contribute significantly to public 
understanding?
    (i) Is the information being disclosed new?

[[Page 48]]

    (ii) Does the information being disclosed confirm or clarify data 
which has been released previously?
    (iii) How will disclosure increase the level of public understanding 
of the operations or activities of the Department or a bureau that 
existed prior to disclosure?
    (iv) Is the information already publicly available? If the 
Government previously has published the information you are seeking or 
it is routinely available to the public in a library, reading room, 
through the Internet, or as part of the administrative record for a 
particular issue (e.g., the listing of the spotted owl as an endangered 
species), it is less likely that there will be a significant 
contribution from release.
    (4) Would disclosure be primarily in your commercial interest?
    (i) Do you have a commercial interest that would be furthered by 
disclosure? A commercial interest is a commercial, trade, or profit 
interest as these terms are commonly understood. Your status as 
``profitmaking'' or ``non-profitmaking'' is not the deciding factor. Not 
only profitmaking entities, but other organizations or individuals may 
have a commercial interest to be served by disclosure, depending on the 
circumstances involved.
    (ii) If you do have a commercial interest that would be furthered by 
disclosure, would disclosure be primarily in that interest? Would the 
public interest in disclosure be greater than any commercial interest 
you or your organization may have in the documents? If so, how would it 
be greater?
    (iii) Your identity, vocation, and the circumstances surrounding 
your request are all factors to be considered in determining whether 
disclosure would be primarily in your commercial interest. For example:
    (A) If you are a representative of a news media organization seeking 
information as part of the news gathering process, we will presume that 
the public interest outweighs your commercial interest.
    (B) If you represent a business/corporation/association or you are 
an attorney representing such an organization, we will presume that your 
commercial interest outweighs the public interest unless you demonstrate 
otherwise.
    (c) If the bureau cannot make a determination based on the 
information you have provided, it may ask you for additional 
justification regarding your request.

[67 FR 64541, Oct. 21, 2002]



               Sec. Appendix E to Part 2--FOIA Exemptions

    Under the FOIA (5 U.S.C. 552(b)), there are nine exemptions which 
may be used to protect information from disclosure. The Department has 
paraphrased the exemptions, below, for your information. The paraphrases 
are not intended to be interpretations of the exemptions.
    (1) National security information concerning national defense or 
foreign policy, provided that such information has been properly 
classified, in accordance with an Executive Order;
    (2) Information related solely to the internal personnel rules and 
practices of an agency;
    (3) Information specifically exempted from disclosure by statute 
(other than the Privacy Act or the Trade Secrets Act), provided that 
such statute:
    (A) Requires that the matters be withheld from the public in such a 
manner as to leave no discretion on the issue; or
    (B) Establishes particular criteria for withholding or refers to 
particular types of matters to be withheld;
    (4) Trade secrets and commercial or financial information which is 
obtained from a person and is privileged or confidential;
    (5) Inter-agency or intra-agency memorandums or letters, which would 
not be available by law to a party other than an agency in litigation 
with the agency;
    (6) Personnel and medical files and similar files, the disclosure of 
which would constitute a clearly unwarranted invasion of personal 
privacy;
    (7) Records or information compiled for law enforcement purposes, 
the release of which:
    (A) Could reasonably be expected to interfere with enforcement 
proceedings;
    (B) Would deprive a person of a right to a fair trial or an 
impartial adjudication;
    (C) Could reasonably be expected to constitute an unwarranted 
invasion of personal privacy;
    (D) Could reasonably be expected to disclose the identity of a 
confidential source;
    (E) Would disclose techniques, procedures, or guidelines for law 
enforcement investigations or prosecutions if such disclosure could 
reasonably be expected to risk circumvention of the law; or
    (F) Could reasonably be expected to endanger the life or physical 
safety of any individual.
    (8) Information contained in or related to examination, operating, 
or condition reports, prepared by, or on behalf of, or for the use of an 
agency responsible for regulating or supervising financial institutions; 
and
    (9) Geological and geophysical information and data, including maps, 
concerning wells.

[67 FR 64541, Oct. 21, 2002]

[[Page 49]]



 Sec. Appendix F to Part 2--Mineral Leasing Act and Mineral Leasing Act 
                    for Acquired Lands--Special Rules

    (a) Definitions. As used in the section:
    (1) Exploration license means a license issued by the Secretary of 
the Interior to conduct coal exploration operations on land subject to 
the Mineral Leasing Act, under 30 U.S.C. 201(b), or subject to the 
Mineral Leasing Act for Acquired Lands, under 30 U.S.C. 351-360.
    (2) Fair-market value of coal to be leased means the minimum amount 
of a bid the Secretary is willing to accept in leasing coal within 
leasing tracts offered in general lease sales or reserved and offered 
for lease to public bodies, including Federal agencies, rural electric 
cooperatives, or non-profit corporations controlled by any of such 
entities, under 30 U.S.C. 201(a)(1) or 30 U.S.C. 351-360.
    (3) Information means data, statistics, samples and other facts, 
whether analyzed or processed or not, pertaining to Federal coal 
resources.
    (b) Applicability. This Appendix applies to the following categories 
of information:
    (1) Category A. Information provided to or obtained by a bureau 
under 30 U.S.C. 201(b)(3) (and corresponding information under 30 U.S.C. 
351-360) from the holder of an exploration license;
    (2) Category B. Information acquired from commercial or other 
sources under service contract with United States Geological Survey 
(USGS) under 30 U.S.C. 208-1(b) (and corresponding information under 30 
U.S.C. 351-360), and information developed by USGS under an exploratory 
program authorized by 30 U.S.C. 208-1 (and corresponding information 
under 30 U.S.C. 351-360);
    (3) Category C. Information obtained from commercial sources which 
the commercial source acquired while not under contract with the United 
States Government;
    (4) Category D. Information provided to the Secretary by a Federal 
department or agency under 30 U.S.C. 208-1(e) (and corresponding 
information under 30 U.S.C. 351-360); and
    (5) Category E. The fair-market value of coal to be leased and 
comments received by the Secretary with respect to such value.
    (c) Availability of information. Information obtained by the 
Department from various sources will be made available to the public as 
follows:
    (1) Category A--Information. Category A information must not be 
disclosed to the public until after the areas to which the information 
pertains have been leased by the Department, or until the Secretary 
determines that release of the information to the public would not 
damage the competitive position of the holder of the exploration 
license, whichever comes first.
    (2) Category B--Information. Category B information must not be 
withheld from the public; it will be made available by means of and at 
the time of open filing or publication by USGS.
    (3) Category C--Information. To the extent Category C information is 
proprietary, such information must not be made available to the public 
until after the areas to which the information pertains have been leased 
by the Department.
    (4) Category D--Information. To the extent Category D information is 
proprietary, the Department will withhold the information from the 
public for the length of time the department or agency providing the 
information agreed to when it obtained the information.
    (5) Category E--Information. Category E information must not be made 
public until the lands to which the information pertains have been 
leased, or until the Secretary has determined that its release prior to 
the issuance of a lease is in the public interest.

[67 FR 64541, Oct. 21, 2002]



PART 3_PRESERVATION OF AMERICAN ANTIQUITIES--Table of Contents



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

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

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



Sec. 3.1  Jurisdiction.

    Jurisdiction over ruins, archeological sites, historic and 
prehistoric monuments and structures, objects of antiquity, historic 
landmarks, and other objects of historic and scientific interest, shall 
be exercised under the act by the respective Departments as follows:

[[Page 50]]

    (a) By the Secretary of Agriculture over lands within the exterior 
limits of forest reserves;
    (b) By the Secretary of the Army over lands within the exterior 
limits of military reservations;
    (c) By the Secretary of the Interior over all other lands owned or 
controlled by the Government of the United States, Provided, The 
Secretaries of the Army and Agriculture may by agreement cooperate with 
the Secretary of the Interior in the supervision of such monuments and 
objects covered by the Act of June 8, 1906 (34 Stat. 225; 16 U.S.C. 431-
433), as may be located on lands near or adjacent to forest reserves and 
military reservations, respectively.



Sec. 3.2  Limitation on permits granted.

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



Sec. 3.3  Permits; to whom granted.

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



Sec. 3.4  No exclusive permits granted.

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



Sec. 3.5  Application.

    Each application for a permit should be filed with the Secretary 
having jurisdiction, and must be accompanied by a definite outline of 
the proposed work, indicating the name of the institution making the 
request, the date proposed for beginning the field work, the length of 
time proposed to be devoted to it, and the person who will have 
immediate charge of the work. The application must also contain an exact 
statement of the character of the work, whether examination, excavation, 
or gathering, and the public museum in which the collections made under 
the permit are to be permanently preserved. The application must be 
accompanied by a sketch plan or description of the particular site or 
area to be examined, excavated, or searched, so definite that it can be 
located on the map with reasonable accuracy.



Sec. 3.6  Time limit of permits granted.

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



Sec. 3.7  Permit to become void.

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



Sec. 3.8  Applications referred for recommendation.

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



Sec. 3.9  Form and reference of permit.

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



Sec. 3.10  Reports.

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



Sec. 3.11  Restoration of lands.

    Institutions and persons receiving permits for excavation shall, 
after the completion of the work, restore the lands upon which they have 
worked to

[[Page 51]]

their customary condition, to the satisfaction of the field officer in 
charge.



Sec. 3.12  Termination.

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



Sec. 3.13  Report of field officer.

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



Sec. 3.14  Examinations by field officer.

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



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

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



Sec. 3.16  Seizure.

    Any object of antiquity taken, or collection made, on lands owned or 
controlled by the United States, without a permit, as prescribed by the 
act and this part, or there taken or made, contrary to the terms of the 
permit, or contrary to the act and this part, may be seized wherever 
found and at any time, by the proper field officer or by any person duly 
authorized by the Secretary having jurisdiction, and disposed of as the 
Secretary shall determine, by deposit in the proper national depository 
or otherwise.



Sec. 3.17  Preservation of collection.

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



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



            Subpart A_General; Office of Hearings and Appeals

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

       Subpart B_General Rules Relating to Procedures and Practice

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

    Subpart C_Special Rules of Practice Before the Interior Board of 
                            Contract Appeals

4.100 General rules and guidelines.

                       Prehearing Procedure Rules

4.101 Who may appeal.
4.102 Appeals--how taken.

[[Page 52]]

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

                         Hearing Procedure Rules

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

                       Posthearing Procedure Rules

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

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

    Subpart D_Rules Applicable in Indian Affairs Hearings and Appeals

                      Scope of Subpart; Definitions

4.200 How to use this subpart.
4.201 Definitions.
4.202-4.308 [Reserved]

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

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

        Appeals to the Board of Indian Appeals in Probate Matters

4.320 Who may appeal a judge's decision or order?
4.321 How do I appeal a judge's decision or order?
4.322 What must an appeal contain?
4.323 Who receives service of the notice of appeal?
4.324 How is the record on appeal prepared?
4.325 How will the appeal be docketed?
4.326 What happens to the record after disposition?

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

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

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

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

 Subpart E_Special Rules Applicable to Public Land Hearings and Appeals

                           Appeals Procedures

                       Appeals Procedures; General

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

                  Appeals to the Board of Land Appeals

4.410 Who may appeal.
4.411 Appeal; how taken, mandatory time limit.

[[Page 53]]

4.412 Statement of reasons, statement of standing, written arguments, 
          briefs.
4.413 Service of notice of appeal and of other documents.
4.414 Answers.

                    Actions by Board of Land Appeals

4.415 Request for hearings on appeals involving questions of fact.
4.416 Appeals of wildfire management decisions.

                           Hearings Procedures

                      Hearings Procedures; General

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

             Hearings on Appeals Involving Questions of Fact

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

                     Contest and Protest Proceedings

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

        Grazing Procedures (Inside and Outside Grazing Districts)

4.470 How to appeal a final BLM grazing decision to an administrative 
          law judge.
4.471 How to petition for a stay of a final BLM grazing decision.
4.472 Action on an appeal and petition for a stay.
4.473 Time and place of hearing; notice; intervenors.
4.474 Authority of administrative law judge.
4.475 Service.
4.476 Conduct of hearing; reporter's fees; transcript.
4.477 Findings of fact and decision by administrative law judge: Notice; 
          submission to Board of Land Appeals for decision.
4.478 Appeals to the Board of Land Appeals; judicial review.
4.479 Effectiveness of decision during appeal.
4.480 Conditions of decision action.

 Subpart F_Implementation of the Equal Access to Justice Act in Agency 
                               Proceedings

                           General Provisions

4.601 What is the purpose of this subpart?
4.602 What definitions apply to this subpart?
4.603 What proceedings are covered by this subpart?
4.604 When am I eligible for an award?
4.605 Under what circumstances may I receive an award?
4.606 What fees and expenses may be allowed?

                  Information Required from Applicants

4.610 What information must my application for an award contain?
4.611 What information must I include in my net worth exhibit?
4.612 What documentation of fees and expenses must I provide?
4.613 When may I file an application for an award?

                 Procedures for Considering Applications

4.620 How must I file and serve documents?
4.621 When may the Department or other agency file an answer?
4.622 When may I file a reply?
4.623 When may other parties file comments?
4.624 When may further proceedings be held?
4.625 How will my application be decided?
4.626 How will my appeal from a decision be handled?
4.627 May I seek judicial review of a final decision?
4.628 How will I obtain payment of an award?

[[Page 54]]

    Subpart G_Special Rules Applicable to Other Appeals and Hearings

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

Subpart H [Reserved]

Subpart I_Special Procedural Rules Applicable to Practice and Procedure 
for Hearings, Decisions, and Administrative Review Under Part 17 of This 
Title_Nondiscrimination in Federally Assisted Programs of the Department 
of the Interior_Effectuation of Title VI of the Civil Rights Act of 1964

                                 General

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

      Designation and Responsibilities of Administrative Law Judge

4.806 Designation.
4.807 Authority and responsibilities.

                         Appearance and Practice

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

                      Form and Filing of Documents

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

                               Procedures

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

                               Prehearing

4.833 Prehearing conferences.

                                 Hearing

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

                         Posthearing Procedures

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

Subpart J_Special Rules Applicable to Appeals Concerning Federal Oil and 
                    Gas Royalties and Related Matters

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

Subpart K [Reserved]

 Subpart L_Special Rules Applicable to Surface Coal Mining Hearings and 
                                 Appeals

                           General Provisions

4.1100 Definitions.
4.1101 Jurisdiction of the Board.
4.1102 Construction.
4.1103 Eligibility to practice.
4.1104 General rules relating to procedure and practice.
4.1105 Parties.
4.1106 Hearing sites.
4.1107 Filing of documents.
4.1108 Form of documents.

[[Page 55]]

4.1109 Service.
4.1110 Intervention.
4.1111 Voluntary dismissal.
4.1112 Motions.
4.1113 Consolidation of proceedings.
4.1114 Advancement of proceedings.
4.1115 Waiver of right to hearing.
4.1116 Status of notices of violation and orders of cessation pending 
          review by the Office of Hearings and Appeals.

                          Evidentiary Hearings

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

                                Discovery

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

     Petitions for Review of Proposed Assessments of Civil Penalties

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

   Review of Section 521 Notices of Violation and Orders of Cessation

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

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

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

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

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

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

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

                    Applications for Temporary Relief

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

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

4.1270 Petition for discretionary review of a proposed civil penalty.
4.1271 Notice of appeal.

[[Page 56]]

4.1272 Interlocutory appeals.
4.1273 Briefs.
4.1274 Remand.
4.1275 Final decisions.
4.1276 Reconsideration.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[[Page 57]]

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

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

 Subpart M_Special Procedural Rules Applicable to Appeals of Decisions 
                      Made Under OMB Circular A	76

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

    Authority: 5 U.S.C. 301, 503-504; 25 U.S.C. 9, 372-74, 410, 2201 et 
seq.; 43 U.S.C. 1201, 1457; Pub. L. 99-264, 100 Stat. 61, as amended.

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



            Subpart A_General; Office of Hearings and Appeals



Sec. 4.1  Scope of authority; applicable regulations.

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

[[Page 58]]

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

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

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



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

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

[39 FR 7931, Mar. 1, 1974]



Sec. 4.3  Representation before appeals boards.

    (a) Appearances generally. Representation of parties in proceedings 
before Appeals Boards of the Office of Hearings and Appeals is governed 
by Part 1 of this subtitle, which regulates practice before the 
Department of the Interior.
    (b) Representation of the Government. Department counsel designated 
by the Solicitor of the Department to represent agencies, bureaus, and 
offices of the Department of the Interior in proceedings before the 
Office of Hearings and Appeals, and Government counsel for other 
agencies, bureaus or offices of

[[Page 59]]

the Federal Government involved in any proceeding before the Office of 
Hearings and Appeals, shall represent the Government agency in the same 
manner as a private advocate represents a client.
    (c) Appearances as amicus curiae. Any person desiring to appear as 
amicus curiae in any proceeding shall make timely request stating the 
grounds for such request. Permission to appear, if granted, will be for 
such purposes as established by the Director or the Appeals Board in the 
proceeding.



Sec. 4.4  Public records; locations of field offices.

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



Sec. 4.5  Power of the Secretary and Director.

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

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



       Subpart B_General Rules Relating to Procedures and Practice



Sec. 4.20  Purpose.

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



Sec. 4.21  General provisions.

    (a) Effect of decision pending appeal. Except as otherwise provided 
by law or other pertinent regulation:
    (1) A decision will not be effective during the time in which a 
person adversely affected may file a notice of appeal; when the public 
interest requires, however, the Director or an Appeals Board may provide 
that a decision, or any part of a decision, shall be in full force and 
effective immediately;
    (2) A decision will become effective on the day after the expiration 
of the time during which a person adversely affected may file a notice 
of appeal unless a petition for a stay pending appeal is filed together 
with a timely notice of appeal; a petition for a stay may be filed only 
by a party who may properly maintain an appeal;
    (3) A decision, or that portion of a decision, for which a stay is 
not granted will become effective immediately after the Director or an 
Appeals Board denies or partially denies the petition for a stay, or 
fails to act on the petition within the time specified in paragraph 
(b)(4) of this section.

[[Page 60]]

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

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



Sec. 4.22  Documents.

    (a) Filing of documents. A document is filed in the Office where the 
filing is required only when the document is received in that office 
during the office hours when filing is permitted and the document is 
received by a person authorized to receive it.
    (b) Service generally. A copy of each document filed in a proceeding 
before the Office of Hearings and Appeals must be served by the filing 
party on the other party or parties in the case, except as otherwise 
provided by Sec. 4.31. In all cases where a party is represented by an 
attorney, such attorney will be recognized as fully controlling the case 
on behalf of his/her client, and service of any document relating to the 
proceeding shall be made upon such attorney in addition to any other 
service specifically required by law or by order of a presiding official 
or an appeals board. Where a party is represented by more than one 
attorney, service upon one of the attorneys shall be sufficient.
    (c) Retention of documents. All documents, books, records, papers, 
etc., received in evidence in a hearing or submitted for the record in 
any proceeding

[[Page 61]]

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

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



Sec. 4.23  Transcript of hearings.

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



Sec. 4.24  Basis of decision.

    (a) Record. (1) The record of a hearing shall consist of the 
transcript of testimony or summary of testimony and exhibits together 
with all papers and requests filed in the hearing.
    (2) If a hearing has been held on an appeal pursuant to instructions 
of an Appeals Board, this record shall be the sole basis for decision 
insofar as the referred issues of fact are involved except to the extent 
that official notice may be taken of a fact as provided in paragraph (b) 
of this section.
    (3) Where a hearing has been held in other proceedings, the record 
made

[[Page 62]]

shall be the sole basis for decision except to the extent that official 
notice may be taken of a fact as provided in paragraph (b) of this 
section.
    (4) In any case, no decision after a hearing or on appeal shall be 
based upon any record, statement, file, or similar document which is not 
open to inspection by the parties to the hearing or appeal, except for 
documents or other evidence received or reviewed pursuant to Sec. 
4.31(d).
    (b) Official notice. Official notice may be taken of the public 
records of the Department of the Interior and of any matter of which the 
courts may take judicial notice.

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



Sec. 4.25  Oral argument.

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



Sec. 4.26  Subpoena power and witness provisions generally.

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



Sec. 4.27  Standards of conduct.

    (a) Inquiries. All inquiries with respect to any matter pending 
before the Office of Hearings and Appeals shall be directed to the 
Director, the Chief Administrative Law Judge, or the Chairman of the 
appropriate Board.
    (b) Ex parte communication--(1) Prohibition. Except to the extent 
required for the disposition of ex parte matters as authorized by law, 
there shall be no communication concerning the merits of a proceeding 
between any party to the proceeding or any person interested in the 
proceeding or any representative of a party or interested person and any 
Office personnel involved or who may reasonably be expected to become 
involved in the decisionmaking process on that proceeding, unless the 
communication, if oral, is made in the presence of all other parties or 
their representatives, or, if written, is furnished to all other 
parties. Proceedings include cases pending before the Office, 
rulemakings amending this Part 4 that might affect a pending case, 
requests for reconsideration or review by the Director, and any other 
related action pending before the Office. The terms ``interested 
person'' and ``person interested in the proceeding'' include any 
individual or other person with an interest in the agency proceeding 
that is greater than the interest that the public as a whole may have. 
This regulation does not prohibit communications concerning case status 
or advice concerning compliance with procedural requirements unless the 
area of inquiry

[[Page 63]]

is in fact an area of controversy in the proceeding. Any oral 
communication made in violation of this regulation shall be reduced to 
writing in a memorandum to the file by the person receiving the 
communication and shall be included in the record. Any written 
communication made in violation of this regulation shall be included in 
the record. In proceedings other than informal rulemakings copies of the 
memorandum or communication shall be provided to all parties, who shall 
be given an opportunity to respond in writing.
    (2) Sanctions. The administrative law judge, board, or Director who 
has responsibility for the matter with respect to which a prohibited 
communication has been knowingly made may impose appropriate sanctions 
on the offending person or persons, which may include requiring an 
offending party to show cause why its claim, motion, or interest should 
not be dismissed, denied, or otherwise adversely affected; disciplining 
offending Office personnel pursuant to the Department's standards of 
conduct (43 CFR part 20); and invoking such sanctions against other 
offending persons as may be appropriate under the circumstances.
    (c) Disqualification. (1) An Office of Hearings and Appeals deciding 
official must withdraw from a case if circumstances exist that would 
disqualify a judge in such circumstances under the recognized canons of 
judicial ethics.
    (2) A party may file a motion seeking the disqualification of a 
deciding official, setting forth in detail the circumstances that the 
party believes require disqualification. Any supporting facts must be 
established by affidavit or other sufficient evidence. A copy of the 
motion should be sent to the Director.
    (3) The head of the appropriate unit within the Office or the 
Director may decide whether disqualification is required if the deciding 
official does not withdraw under paragraph (c)(1) of this section or in 
response to a motion under paragraph (c)(2) of this section.
    (4) For purposes of this section, ``deciding official'' includes an 
attorney decision maker or Indian probate judge as defined in Sec. 
4.201, an administrative law judge, an administrative judge, or a member 
of any Board.

[36 FR 7186, Apr. 15, 1971, as amended at 50 FR 43705, Oct. 29, 1985; 53 
FR 49660, Dec. 9, 1988; 70 FR 11812, Mar. 9, 2005]



Sec. 4.28  Interlocutory appeals.

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



Sec. 4.29  Remands from courts.

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



Sec. 4.30  Information required by forms.

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



Sec. 4.31  Request for limiting disclosure of confidential information.

    (a) If any person submitting a document in a proceeding under this 
part claims that some or all of the information contained in that 
document is exempt from the mandatory public disclosure requirements of 
the Freedom of Information Act (5 U.S.C. 552), is information referred 
to in section 1905 of

[[Page 64]]

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

[[Page 65]]

the public record or disclosed to all parties, the decision shall so 
state, specifying the nature of the evidence and the provision of law 
under which disclosure was denied, and the evidence so considered shall 
be retained under seal as part of the official record.

[53 FR 49661, Dec. 9, 1988]



    Subpart C_Special Rules of Practice Before the Interior Board of 
                            Contract Appeals

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

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



Sec. 4.100  General rules and guidelines.

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

[[Page 66]]

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

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

                       Prehearing Procedure Rules



Sec. 4.101  Who may appeal.

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



Sec. 4.102  Appeals--how taken.

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

[[Page 67]]

within such period of time as is determined by the Board. (See Sec. 
4.100(a)(2).)



Sec. 4.103  Forwarding and docketing of appeals.

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



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

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



Sec. 4.105  Dismissal for lack of jurisdiction.

    Any motion challenging the jurisdiction of the Board shall be filed 
promptly. Hearing on the motion shall be afforded on application of 
either party, unless the Board determines that its decision on the 
motion will be deferred pending hearing on both the merits and

[[Page 68]]

the motion. The Board has authority to raise at any time and on its own 
motion the issue of its jurisdiction to conduct a proceeding and may 
afford the parties an opportunity to be heard thereon.



Sec. 4.106  Representation and appearances.

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



Sec. 4.107  Pleadings.

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



Sec. 4.108  Amendments of pleadings or record.

    (a) The Board may, in its discretion, upon its own initiative or 
upon application by a party, order a party to make a more definite 
statement of the complaint or answer, or to reply to an answer.
    (b) The Board may, in its discretion, and within the proper scope of 
the appeal, permit either party to amend his pleading upon conditions 
just to both parties. When issues within the proper scope of the appeal, 
but not raised by the pleadings or the appeal file, are tried by express 
or implied consent of the parties, or by permission of the Board, they 
shall be treated in all respects as if they had been raised therein. In 
such circumstances motions to amend the pleadings to conform to the 
proof may be entered, but are not required. If evidence is objected to 
at a hearing on the ground that it is not within the issues raised by 
the pleadings or said appeal file (which shall be deemed part of the 
pleadings for this purpose), it may be admitted within

[[Page 69]]

the proper scope of the appeal: Provided, however, That the objecting 
party may be granted a continuance if necessary to enable him to meet 
such evidence.



Sec. 4.109  Hearing--election.

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



Sec. 4.110  Prehearing briefs.

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



Sec. 4.111  Prehearing or presubmission conference.

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

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



Sec. 4.112  Submission without a hearing.

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



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

    (a) The procedures set forth in this rule are available solely at 
the election of the appellant.
    (b) Elections to utilize small claims (expedited) and accelerated 
procedure. (1) In appeals where the amount in dispute is $10,000 or 
less, the appellant may elect to have the appeal processed under a SMALL 
CLAIMS (EXPEDITED) procedure requiring a decision of the appeal, 
whenever possible, within 120 days after the Board receives written 
notice of the appellant's election to utilize this procedure. The 
details of this procedure appear in paragraph (c) of this section. An 
appellant may elect the ACCELERATED procedure rather than the SMALL 
CLAIMS (EXPEDITED)

[[Page 70]]

procedure for any appeal eligible for the SMALL CLAIMS (EXPEDITED) 
procedure.
    (2) In appeals where the amount in dispute is $50,000 or less, the 
appellant may elect to have the appeal processed under an ACCELERATED 
procedure requiring decision of the appeal, whenever possible, within 
180 days after the Board receives written notice of the appellant's 
election to utilize this procedure. The details of this procedure appear 
in paragraph (d) of this section.
    (3) The appellant's election of either the SMALL CLAIMS (EXPEDITED) 
procedure or the ACCELERATED procedure may be made either in the notice 
of appeal or by other written notice at any time thereafter.
    (4) In deciding whether the SMALL CLAIMS (EXPEDITED) procedure or 
the ACCELERATED procedure is applicable to a given appeal the Board 
shall determine the amount in dispute by adding the amount claimed by 
the appellant against the respondent to the amount claimed by respondent 
against the appellant. If either party making a claim against the other 
party does not otherwise state in writing the amount of its claim, the 
amount claimed by such party shall be the maximum amount which such 
party represents in writing to the Board that it can reasonably expect 
to recover against the other.
    (c) The SMALL CLAIMS (EXPEDITED) procedure. (1) This procedure shall 
apply only to appeals where the amount in dispute is $10,000 or less as 
to which the appellant has elected the SMALL CLAIMS (EXPEDITED) 
procedure.
    (2) In cases proceeding under the SMALL CLAIMS (EXPEDITED) 
procedure, the following time periods shall apply (i) within 10 days 
from the respondent's first receipt from either the appellant or the 
Board of a copy of the appellant's notice of election of the SMALL 
CLAIMS (EXPEDITED) procedure, the respondent shall send the Board a copy 
of the contract, the contracting officer's final decision, and the 
appellant's claim letter or letters, if any; (ii) within 15 days after 
the Board has acknowledged receipt of the notice of election, either 
party desiring an oral hearing shall so inform the Board. If either 
party requests an oral hearing, the Board shall promptly schedule such a 
hearing for a mutually convenient time consistent with administrative 
due process and the 120-day limit for a decision, at a place determined 
under Sec. 4.118. If a hearing is not requested by either party within 
the time prescribed by this Rule, the appeal shall be deemed to have 
been submitted under Sec. 4.112 without a hearing.
    (3) In cases proceeding under the SMALL CLAIMS (EXPEDITED) 
procedure, pleadings, discovery, and other prehearing activity will be 
allowed only as consistent with the requirement to conduct the hearing 
on the date scheduled or, if no hearing is scheduled, to close the 
record on a date that will allow decision within the 120-day limit. The 
Board, in its discretion, may shorten time periods prescribed elsewhere 
in these Rules as necessary to enable the Board to decide the appeal 
within 120 days after the Board has received the appellant's notice of 
elections of the SMALL CLAIMS (EXPEDITED) procedure. In so doing the 
Board may reserve whatever time up to 30 days it considers necessary for 
preparation of the decision.
    (4) Written decision by the Board in cases processed under the SMALL 
CLAIMS (EXPEDITED) procedure will be short and contain only summary 
findings of fact and conclusions. Decisions will be rendered for the 
Board by a single Administrative Judge. If there has been a hearing, the 
Administrative Judge presiding at the hearing may, in his discretion, at 
the conclusion of the hearing and after entertaining such oral arguments 
as he deems appropriate, render on the record oral summary findings of 
fact, conclusions, and a decision of the Appeal. Whenever such an oral 
decision is rendered, the Board will subsequently furnish the parties a 
typed copy of such oral decision for the record and payment purposes and 
to establish the date of commencement of the period for filing a motion 
for reconsideration under Sec. 4.126.
    (5) Decisions of the Board under the SMALL CLAIMS (EXPEDITED) 
procedure will not be published, will have no

[[Page 71]]

value as precedents, and in the absence of fraud, cannot be appealed.
    (d) The ACCELERATED procedure. (1) This procedure shall apply only 
to appeals where the amount in dispute is $50,000 or less as to which 
the appellant has made the requisite election.
    (2) In cases proceeding under the ACCELERATED procedure, the parties 
are encouraged, to the extent possible consistent with adequate 
presentation of their factual and legal positions, to waive pleadings, 
discovery, and briefs. The Board, in its discretion, may shorten time 
periods prescribed elsewhere in these Rules as necessary to enable the 
Board to decide the appeal within 180 days after the Board has received 
the appellant's notice of election of the ACCELERATED procedure, and may 
reserve 30 days for the preparation of the decision.
    (3) Written decisions by the Board in cases processed under the 
ACCELERATED procedure will normally be short and contain only summary 
findings of fact and conclusions. Decisions will be rendered for the 
Board by a single Administrative Judge with the concurrence of the 
Chairman or Vice Chairman or other designated Administrative Judge, or 
by a majority among these two and an additional designated member in 
case of disagreement. Alternatively, in cases where the amount in 
dispute is $10,000 or less as to which the ACCELERATED procedure has 
been elected and in which there has been a hearing, the single 
Administrative Judge presiding at the hearing may, with the concurrence 
of both parties, at the conclusion of the hearing and after entertaining 
such oral arguments as he deems appropriate, render on the record oral 
summary findings of fact, conclusions, and a decision of the appeal. 
Whenever such an oral decision is rendered, the Board will subsequently 
furnish the parties a typed copy of such oral decision for record and 
payment purposes and to establish the date of commencement of the period 
for filing a motion for reconsideration under Sec. 4.126.
    (e) Motions for reconsideration in cases arising under Sec. 4.113. 
Motions for reconsideration of cases decided under either the SMALL 
CLAIMS (EXPEDITED) procedure or the ACCELERATED procedure need not be 
decided within the time period prescribed by this Sec. 4.113 for the 
initial decision of the appeal, but all such motions shall be processed 
and decided rapidly so as to fulfill the intent of this rule.



Sec. 4.114  Settling of the record.

    (a) A case submitted on the record pursuant to Sec. 4.112 shall be 
ready for decision when the parties are so notified by the Board. A case 
which is heard shall be ready for decision upon receipt of transcript, 
or upon receipt of briefs when briefs are to be submitted. At any time 
prior to the date that a case is ready for decision, either party, upon 
notice to the other, may supplement the record with documents and 
exhibits deemed relevant and material by the Board. The Board upon its 
own initiative may call upon either party, with appropriate notice to 
the other, for evidence deemed by it to be relevant and material. The 
weight to be attached to any evidence of record will rest within the 
sound discretion of the Board. Either party at any stage of the 
proceeding, on notice to the other party, may object to the relevancy or 
materiality of documents in the record or offered into the record.
    (b) The Board record shall consist of the appeal file described in 
Sec. 4.104(b) and any additional material, pleadings, prehearing 
briefs, record of prehearing, or presubmission conferences, depositions, 
interrogatories, admissions, transcripts of hearing, hearing exhibits, 
and posthearing briefs, as may thereafter be developed pursuant to these 
rules. In deciding appeals the Board, in addition to considering the 
Board record, may take official notice of facts within general 
knowledge.
    (c) This record will at all times be available for inspection by the 
parties at an appropriate time and place. In the interest of 
convenience, prior arrangements for inspection of the file should be 
made with the Recorder of the Board. Copies of material in the record 
may be furnished to appellant as provided in part 2 of this subtitle.



Sec. 4.115  Discovery--depositions.

    (a) General policy and protective orders. The parties are encouraged 
to engage in voluntary discovery procedures. In

[[Page 72]]

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



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

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



Sec. 4.117  Service of papers.

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

                         Hearing Procedure Rules



Sec. 4.118  Hearings--where and when held.

    Hearings may be held in Arlington, Virginia, or upon timely request 
and for good cause shown, the Board may in its discretion set the 
hearing on an appeal at a location other than Arlington, Virginia. 
Hearings will be scheduled at the discretion of the Board with due 
consideration to the regular order of appeals and other pertinent 
factors. However, where it is apparent that no issue of fact is 
presented in an appeal proceeding, the Board may deny a request for 
hearing. On request or motion by either party and for good cause shown, 
the Board may in its discretion adjust the date of a hearing.



Sec. 4.119  Notice of hearings.

    The parties shall be given at least 15 days' notice of the time and 
place set for hearings. In scheduling hearings, the Board will give due 
regard to the

[[Page 73]]

desires of the parties, and to the requirement for just and prompt 
determination of appeals. Receipt of a notice of hearing shall be 
promptly acknowledged by the parties. A party failing to acknowledge a 
notice of hearing shall be deemed to have consented to the indicated 
time and place of hearing.



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

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

In its discretion the Board may honor requests for subpoenas not made 
within these time limitations.
    (2) A request for a subpoena shall state the reasonable scope and 
general relevance to the case of the testimony and of any books and 
papers sought.
    (d) Request to quash or modify. Upon written request by the person 
subpoenaed or by a party, made within 10 days after service but in any 
event not later than the time specified in the subpoena for compliance, 
the Board may (1) quash or modify the subpoena if it is unreasonable and 
oppressive or for other good cause shown, or (2) require the person in 
whose behalf the subpoena was issued to advance the reasonable cost of 
producing subpoenaed books and papers. Where circumstances require, the 
Board may act upon such a request at any time after a copy has been 
served upon the opposing party.
    (e) Forms--issuance. (1) Every subpoena shall state the name of the 
Board and the title of the appeal and shall command each person to whom 
it is directed to attend and give testimony, and if appropriate, to 
produce specified books and papers at a time and place therein 
specified. In issuing a subpoena to a requesting party, the 
Administrative Judge shall sign the subpoena and may in his discretion, 
enter the name of the witness and otherwise leave it blank. The party to 
whom the subpoena is issued shall complete the subpoena before service.
    (2) Where the witness is located in a foreign country, a letter 
rogatory or subpoena may be issued and served under the circumstances 
and in the manner provided in 28 U.S.C. 1781-1784.
    (f) Service. (1) The party requesting issuance of subpoena shall 
arrange for service.
    (2) A subpoena requiring the attendance of a witness at a deposition 
or hearing may be served at any place. A subpoena may be served by a 
U.S. marshal or deputy marshal, or by any other person who is not a 
party and not less than 18 years of age. Service of a subpoena upon a 
person named therein shall be made by personally delivering a copy to 
that person and tendering the fees for 1 day's attendance and the 
mileage provided by 28 U.S.C. 1821 or other applicable law.
    (3) The party at whose instance a subpoena is issued shall be 
responsible for the payment of fees and mileage of the witness and of 
the officer who serves the subpoena. The failure to make payment of such 
charges on demand may be deemed by the Board as

[[Page 74]]

a sufficient ground for striking the testimony of the witness and the 
evidence the witness has produced.
    (g) Contumacy or refusal to obey a subpoena. In a case of contumacy 
or refusal to obey a subpoena by a person who resides, is found, or 
transacts business within the jurisdiction of a U.S. District Court, the 
Board will apply to the Court through the Attorney General of the United 
States for an order requiring the person to appear before the Board or a 
member thereof to give testimony or produce evidence or both. Any 
failure of any such person to obey the order of the Court may be 
punished by the Court as a contempt thereof.



Sec. 4.121  Unexcused absence of a party.

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



Sec. 4.122  Nature of hearings.

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



Sec. 4.123  Examination of witnesses.

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



Sec. 4.124  Submission of briefs.

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

                       posthearing procedure rules



Sec. 4.125  Decisions.

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



Sec. 4.126  Motions for reconsideration.

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



Sec. 4.127  Dismissals.

    (a) Dismissal without prejudice. In certain cases, appeals docketed 
before the Board are required to be placed in a suspense status and the 
Board is unable to proceed with the disposition thereof for reasons not 
within the control of the Board. Where the suspension has continued, or 
may continue, for an inordinate length of time, the board may, in its 
discretion, dismiss such an

[[Page 75]]

appeal from the docket without prejudice to its reinstatement when the 
cause of suspension has been removed. Unless either party or the Board 
acts within 3 years to reinstate any appeal dismissed without prejudice, 
the dismissal shall be deemed to have been made with prejudice.
    (b) Dismissal for failure to prosecute or defend. Whenever a record 
discloses the failure of either party to file documents required by 
these rules, respond to notices or correspondence from the Board, comply 
with orders of the Board, or otherwise indicates an intention not to 
continue the prosecution or defense of an appeal, the Board may issue an 
order requiring the offending party to show cause why the appeal should 
not be either dismissed or granted, as appropriate. If no cause is 
shown, the Board may take appropriate action.



Sec. 4.128  Remands from courts.

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



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

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

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



    Subpart D_Rules Applicable in Indian Affairs Hearings and Appeals

    Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 372-74, 410; Pub. L. 99-
264, 100 Stat. 61, as amended.

    Cross Reference: For regulations pertaining to the processing of 
Indian probate matters within the Bureau of Indian Affairs, see 25 CFR 
part 15. For regulations pertaining to the probate of Indian trust 
estates within the Probate Hearings Division, Office of Hearings and 
Appeals, see 43 CFR part 30. For regulations pertaining to the 
authority, jurisdiction, and membership of the Board of Indian Appeals, 
Office of Hearings and Appeals, see subpart A of this part. For 
regulations generally applicable to proceedings before the Hearings 
Divisions and Appeal Boards of the Office of Hearings and Appeals, see 
subpart B of this part.

                      Scope of Subpart; Definitions

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



Sec. 4.200  How to use this subpart.

    (a) The following table is a guide to the relevant contents of this 
subpart by subject matter.

------------------------------------------------------------------------
     For provisions relating to . . .               Consult . . .
------------------------------------------------------------------------
(1) Appeals to the Board of Indian Appeals  Sec. Sec.  4.310 through
 generally.                                  4.318.
(2) Appeals to the Board of Indian Appeals  Sec. Sec.  4.201 and 4.320
 from decisions of the Probate Hearings      through 4.326.
 Division in Indian probate matters.
(3) Appeals to the Board of Indian Appeals  Sec. Sec.  4.201 and 4.330
 from actions or decisions of BIA.           through 4.340.
(4) Review by the Board of Indian Appeals   Sec. Sec.  4.201 and 4.330
 of other matters referred to it by the      through 4.340.
 Secretary, Assistant Secretary-Indian
 Affairs, or Director-Office of Hearings
 and Appeals.
(5) Determinations under the White Earth    Sec. Sec.  4.350 through
 Reservation Land Settlement Act of 1985.    4.357.
------------------------------------------------------------------------

    (b) Except as limited by the provisions of this part, the 
regulations in subparts A and B of this part apply to these proceedings.

[73 FR 67287, Nov. 13, 2008]



Sec. 4.201  Definitions.

    Administrative law judge (ALJ) means an administrative law judge 
with OHA appointed under the Administrative Procedure Act, 5 U.S.C. 
3105.

[[Page 76]]

    Agency means:
    (1) The Bureau of Indian Affairs (BIA) agency office, or any other 
designated office in BIA, having jurisdiction over trust or restricted 
land and trust personalty; and
    (2) Any office of a tribe that has entered into a contract or 
compact to fulfill the probate function under 25 U.S.C. 450f or 458cc.
    BIA means the Bureau of Indian Affairs within the Department of the 
Interior.
    Board means the Interior Board of Indian Appeals within OHA.
    Day means a calendar day.
    Decedent means a person who is deceased.
    Decision or order (or decision and order) means:
    (1) A written document issued by a judge making determinations as to 
heirs, wills, devisees, and the claims of creditors, and ordering 
distribution of trust or restricted land or trust personalty;
    (2) The decision issued by an attorney decision maker in a summary 
probate proceeding; or
    (3) A decision issued by a judge finding that the evidence is 
insufficient to determine that a person is deceased by reason of 
unexplained absence.
    Devise means a gift of property by will. Also, to give property by 
will.
    Devisee means a person or entity that receives property under a 
will.
    Estate means the trust or restricted land and trust personalty owned 
by the decedent at the time of death.
    Formal probate proceeding means a proceeding, conducted by a judge, 
in which evidence is obtained through the testimony of witnesses and the 
receipt of relevant documents.
    Heir means any individual or entity eligible to receive property 
from a decedent in an intestate proceeding.
    Individual Indian Money (IIM) account means an interest-bearing 
account for trust funds held by the Secretary that belong to a person 
who has an interest in trust assets. These accounts are under the 
control and management of the Secretary.
    Indian probate judge (IPJ) means an attorney with OHA, other than an 
ALJ, to whom the Secretary has delegated the authority to hear and 
decide Indian probate cases.
    Interested party means any of the following:
    (1) Any potential or actual heir;
    (2) Any devisee under a will;
    (3) Any person or entity asserting a claim against a decedent's 
estate;
    (4) Any tribe having a statutory option to purchase the trust or 
restricted property interest of a decedent; or
    (5) Any co-owner exercising a purchase option.
    Intestate means that the decedent died without a valid will as 
determined in the probate proceeding.
    Judge, except as used in the term ``administrative judge,'' means an 
ALJ or IPJ.
    LTRO means the Land Titles and Records Office within BIA.
    Probate means the legal process by which applicable tribal, Federal, 
or State law that affects the distribution of a decedent's estate is 
applied in order to:
    (1) Determine the heirs;
    (2) Determine the validity of wills and determine devisees;
    (3) Determine whether claims against the estate will be paid from 
trust personalty; and
    (4) Order the transfer of any trust or restricted land or trust 
personalty to the heirs, devisees, or other persons or entities entitled 
by law to receive them.
    Restricted property means real property, the title to which is held 
by an Indian but which cannot be alienated or encumbered without the 
Secretary's consent. For the purposes of probate proceedings, restricted 
property is treated as if it were trust property. Except as the law may 
provide otherwise, the term ``restricted property'' as used in this part 
does not include the restricted lands of the Five Civilized Tribes of 
Oklahoma or the Osage Nation.
    Secretary means the Secretary of the Interior or an authorized 
representative.
    Trust personalty means all tangible personal property, funds, and 
securities of any kind that are held in trust in an IIM account or 
otherwise supervised by the Secretary.

[[Page 77]]

    Trust property means real or personal property, or an interest 
therein, the title to which is held in trust by the United States for 
the benefit of an individual Indian or tribe.
    Will means a written testamentary document that was executed by the 
decedent and attested to by two disinterested adult witnesses, and that 
states who will receive the decedent's trust or restricted property.

[73 FR 67287, Nov. 13, 2008]



Sec. Sec. 4.202-4.308  [Reserved]

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

    Source: 70 FR 11825, Mar. 9, 2005, unless otherwise noted.



Sec. 4.310  Documents.

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



Sec. 4.311  Briefs on appeal.

    (a) The appellant may file an opening brief within 30 days after 
receiving the notice of docketing. The appellant must serve copies of 
the opening brief upon all interested parties or counsel and file a 
certificate with the Board showing service upon the named parties. 
Opposing parties or counsel will have 30 days from receiving the 
appellant's brief to file answer briefs, copies of which must be served 
upon the appellant or counsel and all other interested parties. A 
certificate showing service of the answer brief upon all parties or 
counsel must be attached to the answer filed with the Board.

[[Page 78]]

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



Sec. 4.312  Board decisions.

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



Sec. 4.313  Amicus curiae; intervention; joinder motions.

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



Sec. 4.314  Exhaustion of administrative remedies.

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



Sec. 4.315  Reconsideration of a Board decision.

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



Sec. 4.316  Remands from courts.

    Whenever any matter is remanded from any Federal court to the Board 
for further proceedings, the Board will remand the matter to an 
administrative law judge, an Indian probate judge, or BIA. In the 
alternative, to the extent the court's directive and time limitations 
permit, the parties will be allowed an opportunity to submit to the 
Board a report recommending procedures for it to follow to comply with 
the court's order. The Board will enter special orders governing matters 
on remand.



Sec. 4.317  Standards of conduct.

    (a) Inquiries about cases. All inquiries about any matter pending 
before the Board must be made to the Chief Administrative Judge of the 
Board or the

[[Page 79]]

administrative judge assigned the matter.
    (b) Disqualification. An administrative judge may withdraw from a 
case in accordance with standards found in the recognized canons of 
judicial ethics if the judge deems this action appropriate. If, before a 
decision of the Board, a party files an affidavit of personal bias or 
disqualification with substantiating facts, and the administrative judge 
concerned does not withdraw, the OHA Director will determine the matter 
of disqualification.



Sec. 4.318  Scope of review.

    An appeal will be limited to those issues that were before the 
administrative law judge or Indian probate judge upon the petition for 
rehearing, reopening, or regarding tribal purchase of interests, or 
before the BIA official on review. However, except as specifically 
limited in this part or in title 25 of the Code of Federal Regulations, 
the Board will not be limited in its scope of review and may exercise 
the inherent authority of the Secretary to correct a manifest injustice 
or error where appropriate.

        Appeals to the Board of Indian Appeals in Probate Matters

    Source: 70 FR 11826, Mar. 9, 2005, unless otherwise noted.



Sec. 4.320  Who may appeal a judge's decision or order?

    Any interested party has a right to appeal to the Board if he or she 
is adversely affected by a decision or order of a judge under part 30 of 
this subtitle:
    (a) On a petition for rehearing;
    (b) On a petition for reopening;
    (c) Regarding purchase of interests in a deceased Indian's trust 
estate; or
    (d) Regarding modification of the inventory of a trust estate.

[73 FR 67288, Nov. 13, 2008]



Sec. 4.321  How do I appeal a judge's decision or order?

    (a) A person wishing to appeal a decision or order within the scope 
of Sec. 4.320 must file a written notice of appeal within 30 days after 
we have mailed the judge's decision or order and accurate appeal 
instructions. We will dismiss any appeal not filed by this deadline.
    (b) The notice of appeal must be signed by the appellant, the 
appellant's attorney, or other qualified representative as provided in 
Sec. 1.3 of this subtitle, and must be filed with the Board of Indian 
Appeals, Office of Hearings and Appeals, U.S. Department of the 
Interior, 801 North Quincy Street, Arlington, Virginia 22203.

[73 FR 67288, Nov. 13, 2008]



Sec. 4.322  What must an appeal contain?

    (a) Each appeal must contain a written statement of the errors of 
fact and law upon which the appeal is based. This statement may be 
included in either the notice of appeal filed under Sec. 4.321(a) or an 
opening brief filed under Sec. 4.311(a).
    (b) The notice of appeal must include the names and addresses of the 
parties served.

[73 FR 67288, Nov. 13, 2008]



Sec. 4.323  Who receives service of the notice of appeal?

    (a) The appellant must deliver or mail the original notice of appeal 
to the Board.
    (b) A copy of the notice of appeal must be served on the judge whose 
decision is being appealed, as well as on every other interested party.
    (c) The notice of appeal filed with the Board must include a 
certification that service was made as required by this section.

[73 FR 67288, Nov. 13, 2008]



Sec. 4.324  How is the record on appeal prepared?

    (a) On receiving a copy of the notice of appeal, the judge whose 
decision is being appealed must notify the agency concerned, which must 
return the duplicate record filed under subpart J of part 30 of this 
subtitle to the designated LTRO.
    (b) The LTRO must conform the duplicate record to the original. 
Thereafter, the duplicate record will be available for inspection either 
at the LTRO or at the agency.
    (c) If a transcript of the hearing was not prepared, the judge must 
have a transcript prepared and forwarded to

[[Page 80]]

the LTRO within 30 days after receiving a copy of the notice of appeal. 
The LTRO must include the original of the transcript in the record and 
make a copy of the transcript for the duplicate record.
    (d) Within 30 days of the receipt of the transcript, the LTRO must 
prepare a table of contents for the record, certify that the record is 
complete, and forward the certified original record on appeal, together 
with the table of contents, to the Board by certified mail.
    (e) Any party may file an objection to the record. The party must 
file his or her objection with the Board within 15 days after receiving 
the notice of docketing under Sec. 4.325.
    (f) For any of the following appeals, the judge must prepare an 
administrative record for the decision and a table of contents for the 
record and must forward them to the Board:
    (1) An interlocutory appeal under Sec. 4.28;
    (2) An appeal from a decision under Sec. Sec. 30.126 or 30.127 
regarding modification of an inventory of an estate; or
    (3) An appeal from a decision under Sec. 30.124 determining that a 
person for whom a probate proceeding is sought to be opened is not 
deceased.

[73 FR 67288, Nov. 13, 2008]



Sec. 4.325  How will the appeal be docketed?

    The Board will docket the appeal on receiving the probate record 
from the LTRO or the administrative record from the judge, and will 
provide a notice of the docketing and the table of contents for the 
record to all interested parties as shown by the record on appeal. The 
docketing notice will specify the deadline for filing briefs and will 
cite the procedural regulations governing the appeal.

[73 FR 67288, Nov. 13, 2008]



Sec. 4.326  What happens to the record after disposition?

    (a) After the Board makes a decision other than a remand, it must 
forward to the designated LTRO:
    (1) The record filed with the Board under Sec. 4.324(d) or (f); and
    (2) All documents added during the appeal proceedings, including any 
transcripts and the Board's decision.
    (b) The LTRO must conform the duplicate record retained under Sec. 
4.324(b) to the original sent under paragraph (a) of this section and 
forward the duplicate record to the agency concerned.

[73 FR 67288, Nov. 13, 2008]

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

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



Sec. 4.330  Scope.

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



Sec. 4.331  Who may appeal.

    Any interested party affected by a final administrative action or 
decision

[[Page 81]]

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



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

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

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



Sec. 4.333  Service of notice of appeal.

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



Sec. 4.334  Extensions of time.

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



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

    (a) Within 20 days after receipt of a notice of appeal, or upon 
notice from the Board, the official of the Bureau of

[[Page 82]]

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



Sec. 4.336  Docketing.

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



Sec. 4.337  Action by the Board.

    (a) The Board may make a final decision, or where the record 
indicates a need for further inquiry to resolve a genuine issue of 
material fact, the Board may require a hearing. All hearings shall be 
conducted by an administrative law judge of the Office of Hearings and 
Appeals. The Board may, in its discretion, grant oral argument before 
the Board.
    (b) Where the Board finds that one or more issues involved in an 
appeal or a matter referred to it were decided by the Bureau of Indian 
Affairs based upon the exercise of discretionary authority committed to 
the Bureau, and the Board has not otherwise been permitted to adjudicate 
the issue(s) pursuant to Sec. 4.330(b) of this part, the Board shall 
dismiss the appeal as to the issue(s) or refer the issue(s) to the 
Assistant Secretary--Indian Affairs for further consideration.



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

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



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

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



Sec. 4.340  Disposition of the record.

    Subsequent to a decision by the Board, the record filed with the 
Board and all documents added during the appeal proceedings, including 
the Board's

[[Page 83]]

decision, shall be forwarded to the official of the Bureau of Indian 
Affairs whose decision was appealed for proper disposition in accordance 
with rules and regulations concerning treatment of Federal records.

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

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



Sec. 4.350  Authority and scope.

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

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



Sec. 4.351  Commencement of the determination process.

    (a) Unless an heirship determination which is recognized by the Act 
already exists, the Project Director shall commence the determination of 
the heirs of those persons who died entitled to receive compensation by 
filing with the administrative judge all data, identifying the purpose 
for which they are being submitted, shown in the records relative to the 
family of the decedent.
    (b) The data shall include but are not limited to:
    (1) A copy of the death certificate if one exists. If there is no 
death certificate, then another form of official written evidence of the 
death such as a burial or transportation of remains permit, coroner's 
report, or church registry of death. Secondary forms of evidence of 
death such as an affidavit from someone with personal knowledge 
concerning the fact of death or an obituary or death notice from a 
newspaper may be used only in the absence of any official proof or 
evidence of death.
    (2) Data for heirship finding and family history, certified by the 
Project Director. Such data shall contain:
    (i) The facts and alleged facts of the decedent's marriages, 
separations and divorces, with copies of necessary supporting documents;

[[Page 84]]

    (ii) The names and last known addresses of probable heirs at law and 
other known parties in interest;
    (iii) Information on whether the relationships of the probable heirs 
at law to the decedent arose by marriage, blood, or adoption.
    (3) Known heirship determinations, including those recognized by the 
Act determining the heirs of relatives of the decedent, and including 
those rendered by courts from Minnesota or other states, by tribal 
courts, or by tribunals authorized by the laws of other countries.
    (4) A report of the compensation due the decedent, including 
interest calculated to the date of death of the decedent, and an outline 
of the derivation of such compensation, including its real property 
origins and the succession of the compensation to the deceased, citing 
all of the intervening heirs at law, their fractional shares, and the 
amount of compensation attributed to each of them.
    (5) A certification by the Project Director or his designee that the 
addresses provided for the parties in interest were furnished after 
having made a due and diligent search.

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



Sec. 4.352  Determination of administrative judge and notice thereof.

    (a) Upon review of all data submitted by the Project Director, the 
administrative judge will determine whether or not there are any 
apparent issues of fact that need to be resolved.
    (b) If there are no issues of fact requiring determination, the 
administrative judge will enter a preliminary determination of heirs 
based upon inheritance laws in accordance with the Act. Such preliminary 
determination will be entered without a hearing, and, when possible and 
based upon the data furnished and/or information supplementary thereto, 
shall include the names, birth dates, relationships to the decedent, and 
shares of the heirs, or the fact that the decedent died without heirs.
    (1) Upon issuing a preliminary determination, the administrative 
judge shall issue a notice of such action and shall mail a copy of said 
notice, together with a copy of the preliminary determination, to each 
party in interest allowing forty (40) days in which to show cause in 
writing why the determination should not become final. The 
administrative judge shall cause a certificate to be made as to the date 
and manner of such mailing.
    (2) The Project Director shall also cause, within seven (7) days of 
receipt of such notice, the notice of the preliminary determination to 
be posted in the following sites:

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


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

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

    The Project Director shall provide a certificate showing when the 
notice of the preliminary determination was forwarded for posting, and 
to which locations. A posting certificate showing the date and place of 
posting shall be signed by the person or official who performs the act 
and returned to the Project Director. The Project Director

[[Page 85]]

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

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



Sec. 4.353  Record.

    (a) The administrative judge shall lodge the original record with 
the Project Director.
    (b) The record shall contain, where applicable, the following 
materials:
    (1) A copy of the posted public notice of preliminary determination 
and/or hearing showing the posting certifications, the administrative 
judge's certificate of mailing, the posting certificates, and the 
Project Director's certificate of mailing.
    (2) A copy of each notice served on parties in interest, with proof 
of mailing;
    (3) The record of evidence received, including any transcript made 
of testimony;
    (4) Data for heirship finding and family history, and data 
supplementary thereto;
    (5) The final order determining the heirs of the decedent and the 
administrative judge's notices thereof; and
    (6) Any other material or documents deemed relevant by the 
administrative judge.



Sec. 4.354  Reconsideration or rehearing.

    (a) Any party aggrieved by the final order of the administrative 
judge may, within thirty (30) days after the date of mailing such 
decision, file with the administrative judge a written petition for 
reconsideration and/or rehearing. Such petition must be under oath and 
must state specifically and concisely the grounds upon which it is 
based. If it is based upon newly discovered evidence, it shall be 
accompanied by affidavits of witnesses stating fully what the new 
evidence or testimony is to be. It shall also state justifiable reasons 
for the prior failure to discover and present the evidence.
    (b) If proper grounds are not shown, or if the petition is not filed 
within the time prescribed in paragraph (a) of this section, the 
administrative judge shall issue an order denying the petition and shall 
set forth therein the reasons therefor. The administrative judge shall 
serve copies of such order on all parties in interest.
    (c) If the petition appears to show merit, or if the administrative 
judge becomes aware of sufficient additional evidence to justify 
correction of error even without the filing of a petition, or upon 
remand from the Board following an appeal resulting in vacating the 
final order, the administrative judge shall cause copies of the 
petition, supporting papers, and other data, or in the event of no 
petition an order to show cause or decision of the Board

[[Page 86]]

vacating the final order in appropriate cases, to be served on all 
parties in interest. The parties in interest will be allowed a 
reasonable, specified time within which to submit answers or legal 
briefs in opposition to the petition or order to show cause or Board 
decision. The administrative judge shall then reconsider, with or 
without hearing, the issues of fact and shall issue a final order upon 
reconsideration, affirming, modifying, or vacating the original final 
order and making such further orders as are deemed warranted. The final 
order upon reconsideration shall be served on all parties in interest 
and shall become final thirty (30) days from the date on which it is 
mailed.
    (d) Successive petitions for reconsideration and/or rehearing shall 
not be permitted. Nothing herein shall be considered as a bar to the 
remand of a case by the Board for further reconsideration, hearing, or 
rehearing after appeal.



Sec. 4.355  Omitted compensation.

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



Sec. 4.356  Appeals.

    (a) A party aggrieved by a final order of an administrative judge 
under Sec. 4.352, or by a final order upon reconsideration of an 
administrative judge under Sec. 4.354, may appeal to the Board 
(address: Board of Indian Appeals, Office of Hearings and Appeals, 801 
North Quincy Street, Arlington, Virginia 22203). A copy of the notice of 
appeal must also be sent to the Project Director and to the 
administrative judge whose decision is being appealed.
    (b) The notice of appeal must be filed with the Board no later than 
thirty (30) days from the date on which the final order of the 
administrative judge was mailed, or, if there has been a petition for 
reconsideration or rehearing filed, no later than thirty (30) days from 
the date on which the final order upon reconsideration of the 
administrative judge was mailed. A notice of appeal that is not timely 
filed will be dismissed.
    (c) The Project Director shall ensure that the record is 
expeditiously forwarded to the Board.
    (d) Within thirty (30) days after the notice of appeal is filed, the 
appellant shall file a statement of the reasons why the final order or 
final order upon reconsideration is in error. If the Board finds that 
the appellant has set forth sufficient reasons for questioning the final 
order or final order upon reconsideration, the Board will issue an order 
giving all parties in interest an opportunity to respond, following 
which a decision shall be issued. If the Board finds that the appellant 
has not set forth sufficient reasons for questioning the final order, 
the Board may issue a decision on the appeal without further briefing.
    (e) The Board may issue a decision affirming, modifying, or vacating 
the final order or final order upon reconsideration. A decision on 
appeal by the Board either affirming or modifying the final order or 
final order upon reconsideration shall be final for the Department of 
the Interior. In the event the final order or final order upon 
reconsideration is vacated, the proceeding shall be remanded to the 
appropriate administrative judge for reconsideration and/or rehearing.

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



Sec. 4.357  Guardians for minors and incompetents.

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



 Subpart E_Special Rules Applicable to Public Land Hearings and Appeals

    Authority: Sections 4.470 to 4.480 also issued under the authority 
of 43 U.S.C. 315a.

[[Page 87]]


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

                           Appeals Procedures

                       Appeals Procedures; General



Sec. 4.400  Definitions.

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



Sec. 4.401  Documents.

    (a) Grace period for filing. Whenever a document is required under 
this subpart to be filed within a certain time and it is not received in 
the proper office during that time, the delay in filing will be waived 
if the document is filed not later than 10 days after it was required to 
be filed and it is determined that the document was transmitted or 
probably transmitted to the office in which the filing is required 
before the end of the period in which it was required to be filed. 
Determinations under this paragraph shall be made by the officer before 
whom is pending the appeal in connection with which the document is 
required to be filed.
    (b) Transferees and encumbrancers. Transferees and encumbrancers of 
land the title to which is claimed or is in the process of acquisition 
under any public land law shall, upon filing notice of the transfer or 
encumbrance in the proper land office, become entitled to receive and be 
given the same notice of any appeal, or other proceeding thereafter 
initiated affecting such interest which is required to be given to a 
party to the proceeding. Every such notice of a transfer or encumbrance 
will be noted upon the records of the land office. Thereafter such 
transferee or encumbrancer must be made a party to any proceedings 
thereafter initiated adverse to the entry.
    (c) Service of documents. (1) Wherever the regulations in this 
subpart require that a copy of a document be served upon a person, 
service may be made by delivering the copy personally to him or by 
sending the document by registered or certified mail, return receipt 
requested, to his address of record in the Bureau.
    (2) At the conclusion of any document that a party must serve under 
the regulations in this part, the party must sign a written statement 
certifying that service has been or will be made in accordance with the 
applicable rules and specifying the date and manner of such service.
    (3) A document will be considered to have been served at the time of 
personal service, of delivery of a registered or certified letter, or of 
the return by post office of an undelivered registered or certified 
letter.

[36 FR 7186, Apr. 15, 1971, as amended at 36 FR 15117, Aug. 13, 1971; 68 
FR 33803, June 5, 2003]



Sec. 4.402  Summary dismissal.

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

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

[[Page 88]]



Sec. 4.403  Finality of decision; reconsideration.

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

[52 FR 21308, June 5, 1987]

                  appeals to the board of land appeals



Sec. 4.410  Who may appeal.

    (a) Any party to a case who is adversely affected by a decision of 
an officer of the Bureau of Land Management or of an administrative law 
judge shall have a right to appeal to the Board, except--
    (1) As otherwise provided in Group 2400 of chapter II of this title,
    (2) To the extent that decisions of Bureau of Land Management 
officers must first be appealed to an administrative law judge under 
Sec. 4.470 and part 4100 of this title,
    (3) Where a decision has been approved by the Secretary, and
    (4) As provided in paragraph (e) of this section.
    (b) A party to a case, as set forth in paragraph (a) of this 
section, is one who has taken action that is the subject of the decision 
on appeal, is the object of that decision, or has otherwise participated 
in the process leading to the decision under appeal, e.g., by filing a 
mining claim or application for use of public lands, by commenting on an 
environmental document, or by filing a protest to a proposed action.
    (c) Where BLM provided an opportunity for participation in its 
decisionmaking process, a party to the case, as set forth in paragraph 
(a) of this section, may raise on appeal only those issues:
    (1) Raised by the party in its prior participation; or
    (2) That arose after the close of the opportunity for such 
participation.
    (d) A party to a case is adversely affected, as set forth in 
paragraph (a) of this section, when that party has a legally cognizable 
interest, and the decision on appeal has caused or is substantially 
likely to cause injury to that interest.
    (e) For decisions rendered by Departmental officials relating to 
land selections under the Alaska Native Claims Settlement Act, as 
amended, any party who claims a property interest in land affected by 
the decision, an agency of the Federal Government or a regional 
corporation shall have a right to appeal to the Board.

[47 FR 26392, June 18, 1982, as amended at 68 FR 33803, June 5, 2003]



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

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

[[Page 89]]

grace period provided in Sec. 4.401(a), the notice of appeal will not 
be considered and the case will be closed by the officer from whose 
decision the appeal is taken. If the notice of appeal is filed during 
the grace period provided in Sec. 4.401(a) and the delay in filing is 
not waived, as provided in that section, the notice of appeal will not 
be considered and the appeal will be dismissed by the Board.

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

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



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

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

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



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

    (a) The appellant shall serve a copy of the notice of appeal and of 
any statement of reasons, written arguments, or briefs on each adverse 
party named in the decision from which the appeal is taken and on the 
Office of the Solicitor as identified in paragraph (c) of this section. 
Service must be accomplished in the manner prescribed in Sec. 4.401(c) 
of this title not later than 15 days after filing the document.
    (b) Failure to serve within the time required will subject the 
appeal to summary dismissal as provided in Sec. 4.402 of this title.
    (c)(1)(i) If the appeal is taken from a decision of the Director, 
Minerals Management Service, the appellant will serve the Associate 
Solicitor, Division of Mineral Resources, Office of the Solicitor, U.S. 
Department of the Interior, Washington, D.C. 20240.
    (ii) If the appeal is taken from a decision of the Director, Bureau 
of Land Management, the appellant will serve:
    (A) The Associate Solicitor, Division of Land and Water Resources, 
Office of the Solicitor, U.S. Department of the Interior, Washington, 
D.C. 20240, if the decision concerns the use and disposition of public 
lands, including land selections under the Alaska Native Claims 
Settlement Act, as amended;
    (B) The Associate Solicitor, Division of Mineral Resources, Office 
of the Solicitor, U.S. Department of the Interior, Washington, D.C. 
20240, if the decision concerns the use and disposition of mineral 
resources.
    (c)(2) If the appeal is taken from a decision of other Bureau of 
Land Management (BLM) offices listed below (see Sec. 1821.2-1(d) of 
this title), the appellant shall serve the appropriate official of the 
Office of the Solicitor as identified:
    (i) BLM Alaska State Office, including all District and Area Offices 
within its area of jurisdiction:

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

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


[[Page 90]]


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    (3) If the appeal is taken from the decision of an administrative 
law judge, the appellant shall serve the attorney from the Office of the 
Solicitor who represented the Bureau of Land Management or the Minerals 
Management Service at the hearing or, in the absence of a hearing, who 
was served with a copy of the decision by the administrative law judge. 
If the hearing involved a mining claim on national forest land, the 
appellant shall serve the attorney from the Office of General Counsel, 
U.S. Department of Agriculture, who represented the U.S. Forest Service 
at the hearing or, in the absence of a hearing, who was served with a 
copy of the decision by the administrative law judge.
    (4) Parties shall serve the Office of the Solicitor as identified in 
this paragraph until such time that a particular attorney of the Office 
of the Solicitor files and serves a Notice of Appearance or Substitution 
of Counsel. Thereafter,

[[Page 91]]

parties shall serve the Office of the Solicitor as indicated by the 
Notice of Appearance or Substitution of Counsel.
    (d) Proof of such service as required by Sec. 4.401(c) must be 
filed with the Board (address: Board of Land Appeals, Office of Hearings 
and Appeals, 801 North Quincy Street, Arlington, VA 22203), within 15 
days after service unless filed with the notice of appeal.

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



Sec. 4.414  Answers.

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

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

                    actions by board of land appeals



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

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



Sec. 4.416  Appeals of wildfire management decisions.

    The Board must decide appeals from decisions under Sec. 4190.1 and 
Sec. 5003.1(b) of this title within 60 days after all pleadings have 
been filed, and within 180 days after the appeal was filed.

[68 FR 33803, June 5, 2003]

                           Hearings Procedures



Hearings procedures; general--Table of Contents





Sec. 4.420  Applicability of general rules.

    To the extent they are not inconsistent with these special rules, 
the general rules of the Office of Hearings and Appeals in subpart B of 
this part are also applicable to hearings, procedures.



Sec. 4.421  Definitions.

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

[[Page 92]]

    (f) State Director means the supervising Bureau of Land Management 
officer for the State in which the particular range lies, or his 
authorized agent.
    (g) District manager means the supervising Bureau of Land Management 
officer of the grazing district in which the particular range lies, or 
his authorized agent.
    (h) Person named in the decision means any of the following persons 
identified in a final BLM grazing decision: an affected applicant, 
permittee, lessee, or agent or lienholder of record, or an interested 
public as defined in Sec. 4100.0-5 of this title.

[36 FR 7186, Apr. 15, 1971, as amended at 36 FR 15117, Aug. 13, 1971; 68 
FR 68770, Dec. 10, 2003]



Sec. 4.422  Documents.

    (a) Grace period for filing. Whenever a document is required under 
this subpart to be filed within a certain time and it is not received in 
the proper office during that time, the delay in filing will be waived 
if the document is filed not later than 10 days after it was required to 
be filed and it is determined that the document was transmitted or 
probably transmitted to the office in which the filing is required 
before the end of the period in which it was required to be filed. 
Determinations under this paragraph shall be made by the officer before 
whom is pending the appeal or contest in connection with which the 
document is required to be filed. This paragraph does not apply to 
requests for postponement of hearings under Sec. Sec. 4.452-1 and 
4.452-2.
    (b) Transferees and encumbrancers. Transferees and encumbrancers of 
land, the title to which is claimed or is in the process of acquisition 
under any public land law shall, upon filing notice of the transfer or 
encumbrance in the proper land office, become entitled to receive and be 
given the same notice of any contest, appeal, or other proceeding 
thereafter initiated affecting such interest which is required to be 
given to a party to the proceeding. Every such notice of a transfer or 
encumbrance will be noted upon the records of the land office. 
Thereafter such transferee or encumbrancer must be made a party to any 
proceedings thereafter initiated adverse to the entry.
    (c) Service of documents. (1) Wherever the regulations in this 
subpart require that a copy of a document be served upon a person, 
service may be made by delivering the copy personally to him or by 
sending the document by registered or certified mail, return receipt 
requested, to his address of record in the Bureau.
    (2) At the conclusion of any document that a party must serve under 
the regulations in this part, the party or its representative must sign 
a written statement certifying that service has been or will be made in 
accordance with the applicable rules and specifying the date and manner 
of such service.
    (3) A document will be considered to have been served at the time of 
personal service, of delivery of a registered or certified letter, or of 
the return by the post office of an undelivered registered or certified 
letter.
    (d) Extensions of time. The Manager or the administrative law judge, 
as the case may be, may extend the time for filing or serving any 
document in a contest.

[36 FR 7186, Apr. 15, 1971, as amended at 36 FR 15117, Aug. 13, 1971; 68 
FR 33803, June 5, 2003]



Sec. 4.423  Subpoena power and witness provisions.

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

             hearings on appeals involving questions of fact



Sec. 4.430  Prehearing conferences.

    (a) The administrative law judge may, in his discretion, on his own 
motion or motion of one of the parties or of the Bureau direct the 
parties or their representatives to appear at a

[[Page 93]]

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



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

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

[47 FR 26392, June 18, 1982]



Sec. 4.432  Postponements.

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



Sec. 4.433  Authority of the administrative law judge.

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



Sec. 4.434  Conduct of hearing.

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

[[Page 94]]



Sec. 4.435  Evidence.

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



Sec. 4.436  Reporter's fees.

    Reporter's fees shall be borne by the Bureau.



Sec. 4.437  Copies of transcript.

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



Sec. 4.438  Summary of evidence.

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



Sec. 4.439  Action by administrative law judge.

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

                     contest and protest proceedings



Sec. 4.450  Private contests and protests.



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

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



Sec. 4.450-2  Protests.

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



Sec. 4.450-3  Initiation of contest.

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



Sec. 4.450-4  Complaints.

    (a) Contents of complaint. The complaint shall contain the following 
information, under oath:

[[Page 95]]

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



Sec. 4.450-5  Service.

    The complaint must be served upon every contestee in the manner 
provided in Sec. 4.422(c)(1). Proof of service must be made in the 
manner provided in Sec. 4.422(c)(2). In certain circumstances, service 
may be made by publication as provided in paragraph (b)(1) of this 
section. When the contest is against the heirs of a deceased entryman, 
the notice must be served on each heir. If the person to be personally 
served is an infant or a person who has been legally adjudged 
incompetent, service of notice must be made by delivering a copy of the 
notice to the legal guardian or committee, if there is one, of such 
infant or incompetent person. If there is no guardian or committee, then 
service must be by delivering a copy of the notice to the person having 
the infant or incompetent person in charge.
    (a) Summary dismissal; waiver of defect in service. If a complaint 
when filed does not meet all the requirements of Sec. 4.450-4(a) and 
(c), or if the complaint is not served upon each contestee as required 
by this section, the complaint will be summarily dismissed by the 
manager and no answer need be filed. However, where prior to the summary 
dismissal of a complaint a contestee answers without questioning the 
service or proof of service of the complaint, any defect in service will 
be deemed waived as to such answering contestee.
    (b) Service by publication--(1) When service may be made by 
publication. When the contestant has made diligent search and inquiry to 
locate the contestee, and cannot locate him, the contestant may proceed 
with service

[[Page 96]]

by publication after first filing with the manager an affidavit which 
shall:
    (i) State that the contestee could not be located after diligent 
search and inquiry made within 15 days prior to the filing of the 
affidavit;
    (ii) Be corroborated by the affidavits of two persons who live in 
the vicinity of the land which state that they have no knowledge of the 
contestee's whereabouts or which give his last known address;
    (iii) State the last known address of the contestee; and
    (iv) State in detail the efforts and inquiries made to locate the 
party sought to be served.
    (2) Contents of published notice. The published notice must give the 
names of the parties to the contest, legal description of the land 
involved, the substance of the charges contained in the complaint, the 
office in which the contest is pending, and a statement that upon 
failure to file an answer in such office within 30 days after the 
completion of publication of such notice, the allegations of the 
complaint will be taken as confessed. The published notice shall also 
contain a statement of the dates of publication.
    (3) Publication, mailing and posting of notice. (i) Notice by 
publication shall be made by publishing notice at least once a week for 
5 successive weeks in some newspaper of general circulation in the 
county in which the land in contest lies.
    (ii) Within 15 days after the first publication of a notice, the 
contestant shall send a copy of the notice and the complaint by 
registered or certified mail, return receipt requested, to the contestee 
at his last known address and also to the contestee in care of the post 
office nearest the land. The return receipts shall be filed in the 
office in which the contest is pending.
    (iii) A copy of the notice as published shall be posted in the 
office where the contest is pending and also in a conspicuous place upon 
the land involved. Such postings shall be made within 15 days after the 
first publication of the notice.
    (c) Proof of service. (1) Proof of publication of the notice shall 
be made by filing in the office where the contest is pending a copy of 
the notice as published and the affidavit of the publisher or foreman of 
the newspaper publishing the same showing the publication of the notice 
in accordance with paragraph (b)(3) of this section.
    (2) Proof of posting of the notice shall be by affidavit of the 
person who posted the notice on the land and by the certificate of the 
manager or the Director of the Bureau of Land Management as to posting 
in his office.
    (3) Proof of the mailing of notice shall be by affidavit of the 
person who mailed the notice to which shall be attached the return 
receipt.

[36 FR 7186, Apr. 15, 1971, as amended at 68 FR 33803, June 5, 2003]



Sec. 4.450-6  Answer to complaint.

    Within 30 days after service of the complaint or after the last 
publication of the notice, the contestee must file in the office where 
the contest is pending an answer specifically meeting and responding to 
the allegations of the complaint, together with proof of service of a 
copy of the answer upon a contestant as provided in Sec. 4.450-5(b)(3). 
The answer shall contain or be accompanied by the address to which all 
notices or other papers shall be sent for service upon contestee.



Sec. 4.450-7  Action by manager.

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



Sec. 4.450-8  Amendment of answer.

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

[[Page 97]]



Sec. 4.451  Government contests.



Sec. 4.451-1  How initiated.

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



Sec. 4.451-2  Proceedings in Government contests.

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



Sec. 4.452  Proceedings before the administrative law judge.



Sec. 4.452-1  Prehearing conferences.

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



Sec. 4.452-2  Notice of hearing.

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

[47 FR 26392, June 18, 1982]

[[Page 98]]



Sec. 4.452-3  Postponements.

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



Sec. 4.452-4  Authority of administrative law judge.

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



Sec. 4.452-5  Conduct of hearing.

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



Sec. 4.452-6  Evidence.

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



Sec. 4.452-7  Reporter's fees.

    (a) The Government agency initiating the proceedings will pay all 
reporting fees in hearings in Government contest proceedings, in 
hearings under the Surface Resources Act of 1955, as amended, in 
hearings under the Multiple Mineral Development Act of 1954, as amended, 
where the United States is

[[Page 99]]

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



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

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



Sec. 4.452-9  Appeal to Board.

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

        Grazing Procedures (Inside and Outside Grazing Districts)

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

[[Page 100]]



Sec. 4.470  How to appeal a final BLM grazing decision to an administrative law judge.

    (a) Any applicant, permittee, lessee, or other person whose interest 
is adversely affected by a final BLM grazing decision may appeal the 
decision to an administrative law judge within 30 days after receiving 
it or within 30 days after a proposed decision becomes final as provided 
in Sec. 4160.3(a) of this title. To do so, the person must file an 
appeal with the BLM field office that issued the decision and serve a 
copy of the appeal on any person named in the decision.
    (b) The appeal must state clearly and concisely the reasons why the 
appellant thinks the BLM grazing decision is wrong.
    (c) Any ground for appeal not included in the appeal is waived. The 
appellant may not present a waived ground for appeal at the hearing 
unless permitted or ordered to do so by the administrative law judge.
    (d) Any person who, after proper notification, does not appeal a 
final BLM grazing decision within the period provided in paragraph (a) 
of this section may not later challenge the matters adjudicated in the 
final BLM decision.
    (e) Filing an appeal does not by itself stay the effectiveness of 
the final BLM decision. To request a stay of the final BLM decision 
pending appeal, see Sec. 4.471.

[68 FR 68770, Dec. 10, 2003]



Sec. 4.471  How to petition for a stay of a final BLM grazing decision.

    (a) An appellant under Sec. 4.470 may petition for a stay of the 
final BLM grazing decision pending appeal by filing a petition for a 
stay together with the appeal under Sec. 4.470 with the BLM field 
office that issued the decision.
    (b) Within 15 days after filing the appeal and petition for a stay, 
the appellant must serve copies on--
    (1) Any other person named in the decision from which the appeal is 
taken; and
    (2) The appropriate office of the Office of the Solicitor, in 
accordance with Sec. 4.413(a) and (c).
    (c) A petition for a stay of a final BLM grazing decision pending 
appeal under paragraph (a) of this section must show sufficient 
justification based on the following standards:
    (1) The relative harm to the parties if the stay is granted or 
denied;
    (2) The likelihood of the appellant's success on the merits;
    (3) The likelihood of immediate and irreparable harm if the stay is 
not granted; and
    (4) Whether the public interest favors granting the stay.
    (d) The appellant requesting a stay bears the burden of proof to 
demonstrate that a stay should be granted.

[68 FR 68770, Dec. 10, 2003]



Sec. 4.472  Action on an appeal and petition for a stay.

    (a) BLM must transmit any documents received under Sec. Sec. 4.470 
and 4.471, within 10 days after receipt, to the Hearings Division, 
Office of Hearings and Appeals, Salt Lake City, Utah. If a petition for 
a stay has been filed, the transmittal must also include any response 
BLM wishes to file to a petition for a stay and the following documents 
from the case file: the application, permit, lease, or notice of 
unauthorized use underlying the final BLM grazing decision; the proposed 
BLM grazing decision; any protest filed by the appellant under Sec. 
4160.2; the final BLM grazing decision; and any other documents that BLM 
wishes the administrative law judge to consider in deciding the petition 
for a stay. BLM must serve a copy of any such response on the appellant 
and any other person named in the decision from which the appeal is 
taken.
    (b) Any person named in the decision from which an appeal is taken 
(other than the appellant) who wishes to file a response to the petition 
for a stay may file with the Hearings Division a motion to intervene in 
the appeal, together with the response, within 10 days after receiving 
the petition. Within 15 days after filing the motion to intervene and 
response, the person must serve copies on the appellant, the appropriate 
office of the Office of the Solicitor in accordance with Sec. 4.413(a) 
and (c), and any other person named in the decision.
    (c) If a petition for a stay has not been filed, BLM must promptly 
transmit the following documents from the

[[Page 101]]

case file to the administrative law judge assigned to the appeal, once 
the appeal has been docketed by the Hearings Division: the application, 
permit, lease, or notice of unauthorized use underlying the final BLM 
grazing decision; the proposed BLM grazing decision; any protest filed 
by the appellant under Sec. 4160.2; and the final BLM grazing decision.
    (d) Within 45 days after the expiration of the time for filing a 
notice of appeal, an administrative law judge must grant or deny--
    (1) A petition for a stay filed under Sec. 4.471(a), in whole or in 
part; and
    (2) A motion to intervene filed with a response to the petition 
under paragraph (b) of this section.
    (e) Any final BLM grazing decision that is not already in effect and 
for which a stay is not granted will become effective immediately after 
the administrative law judge denies a petition for a stay or fails to 
act on the petition within the time set forth in paragraph (d) of this 
section.
    (f) At any appropriate time, any party may file with the Hearings 
Division a motion to dismiss the appeal or other appropriate motion. The 
appellant and any other party may file a response to the motion within 
30 days after receiving a copy.
    (g) Within 15 days after filing a motion or response under paragraph 
(f) of this section, any moving or responding party must serve a copy on 
every other party. Service on BLM must be made on the appropriate office 
of the Office of the Solicitor in accordance with Sec. 4.413(a) and 
(c).

[68 FR 68770, Dec. 10, 2003]



Sec. 4.473  Time and place of hearing; notice; intervenors.

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

[44 FR 41790, July 18, 1979. Redesignated at 68 FR 68770, Dec. 10, 2003]



Sec. 4.474  Authority of administrative law judge.

    (a) The administrative law judge is vested with the duty and general 
authority to conduct the hearing in an orderly, impartial, and judicial 
manner, including authority to subpoena witnesses, recognize 
intervenors, administer oaths and affirmations, call and question 
witnesses, regulate the course and order of the hearing, rule upon 
offers of proof and the relevancy of evidence, and to make findings of 
fact, conclusions of law, and a decision. The administrative law judge 
shall have authority to take or to cause depositions to be taken. 
Subpoenas, depositions, the attendance of witnesses, and witness and 
deposition fees shall be governed by Sec. 4.26 of the general rules in 
Subpart B of this part, to the extent such regulations are applicable.
    (b) The administrative law judge also may grant or order 
continuances, and set the times and places of further hearings. 
Continuances shall be granted in accordance with Sec. 4.452-3.
    (c) The administrative law judge may consider and rule on all 
motions and petitions, including a petition for a stay of a final BLM 
grazing decision.
    (d) An administrative law judge may consolidate two or more appeals 
for purposes of hearing and decision when they involve a common issue or 
issues.

[44 FR 41790, July 18, 1979. Redesignated and amended at 68 FR 68770, 
68771, Dec. 10, 2003]



Sec. 4.475  Service.

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

[44 FR 41790, July 18, 1979. Redesignated at 68 FR 68770, Dec. 10, 2003]

[[Page 102]]



Sec. 4.476  Conduct of hearing; reporter's fees; transcript.

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

[44 FR 41790, July 18, 1979. Redesignated at 68 FR 68770, Dec. 10, 2003]

[[Page 103]]



Sec. 4.477  Findings of fact and decision by administrative law judge: Notice; submission to Board of Land Appeals for decision.

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

[44 FR 41790, July 18, 1979. Redesignated at 68 FR 68770, Dec. 10, 2003]



Sec. 4.478  Appeals to the Board of Land Appeals; judicial review.

    (a) Any person who has a right of appeal under Sec. 4.410 or other 
applicable regulation may appeal to the Board from an order of an 
administrative law judge granting or denying a petition for a stay.
    (b) As an alternative to paragraph (a) of this section, any party 
other than BLM may seek judicial review under 5 U.S.C. 704 of a final 
BLM grazing decision if the administrative law judge denies a petition 
for a stay, either directly or by failing to meet the deadline in Sec. 
4.472(d).
    (c) If a party appeals under paragraph (a) of this section, the 
Board must issue an expedited briefing schedule and decide the appeal 
promptly.
    (d) Unless the Board or a court orders otherwise, an appeal under 
paragraph (a) of this section does not--
    (1) Suspend the effectiveness of the decision of the administrative 
law judge; or
    (2) Suspend further proceedings before the administrative law judge.
    (e) Any party adversely affected by the administrative law judge's 
decision on the merits has the right to appeal to the Board under the 
procedures in this part.

[68 FR 68771, Dec. 10, 2003]



Sec. 4.479  Effectiveness of decision during appeal.

    (a) Consistent with the provisions of Sec. Sec. 4.21(a) and 
4.472(e) and except as provided in paragraphs (b) and (c) of this 
section or other applicable regulation, a final BLM grazing decision 
will not be effective--
    (1) Until the expiration of the time for filing an appeal under 
Sec. 4.470(a); and
    (2) If a petition for a stay is filed under Sec. 4.471(a), until 
the administrative law judge denies the petition for a stay or fails to 
act on the petition within the time set forth in Sec. 4.472(d).
    (b) Consistent with the provisions of Sec. Sec. 4160.3 and 4190.1 
of this title and notwithstanding the provisions of Sec. 4.21(a), a 
final BLM grazing decision may provide that the decision will be 
effective immediately. Such a decision will remain effective pending a 
decision on an appeal, unless a stay is granted by an administrative law 
judge under Sec. 4.472 or by the Board under Sec. 4.478(a).
    (c) Notwithstanding the provisions of Sec. 4.21(a), when the public 
interest requires, an administrative law judge may provide that the 
final BLM grazing decision will be effective immediately.
    (d) An administrative law judge or the Board may change or revoke 
any action that BLM takes under a final BLM grazing decision on appeal.
    (e) In order to ensure exhaustion of administrative remedies before 
resort

[[Page 104]]

to court action, a BLM grazing decision is not final agency action 
subject to judicial review under 5 U.S.C. 704 unless--
    (1) A petition for a stay of the BLM decision has been timely filed 
and the BLM decision has been made effective under Sec. 4.472(e), or
    (2) The BLM decision has been made effective under paragraphs (b) or 
(c) of this section or other applicable regulation, and a stay has not 
been granted.
    (f) Exhaustion of administrative remedies is not required if a stay 
would not render the challenged portion of the BLM decision inoperative 
under subpart 4160 of this title.

[68 FR 68771, Dec. 10, 2003]



Sec. 4.480  Conditions of decision action.

    (a) Record as basis of decision; definition of record. No decision 
shall be rendered except on consideration of the whole record or such 
portions thereof as may be cited by any party or by the State Director 
and as supported by and in accordance with the reliable, probative, and 
substantial evidence. The transcript of testimony and exhibits, together 
with all papers and requests filed in the proceedings, shall constitute 
the exclusive record for decision.
    (b) Effect of substantial compliance. No adjudication of grazing 
preference will be set aside on appeal, if it appears that it is 
reasonable and that it represents a substantial compliance with the 
provisions of part 4100 of this title.

[44 FR 41790, July 18, 1979. Redesignated at 68 FR 68770, Dec. 10, 2003]



 Subpart F_Implementation of the Equal Access to Justice Act in Agency 
                               Proceedings

    Authority: 5 U.S.C. 504(c)(1).

    Source: 71 FR 6366, Feb. 8, 2006, unless otherwise noted.

                           General Provisions



Sec. 4.601  What is the purpose of this subpart?

    (a) The Equal Access to Justice Act provides for the award of 
attorney fees and other expenses to eligible individuals and entities 
who are parties to certain administrative proceedings (called 
``adversary adjudications'') before the Department of the Interior. 
Under the Act, an eligible party may receive an award when it prevails 
over the Department or other agency, unless the position of the 
Department or other agency was substantially justified or special 
circumstances make an award unjust. The regulations in this subpart 
describe the parties eligible for awards and the proceedings that are 
covered. They also explain how to apply for awards, and the procedures 
and standards that the Office of Hearings and Appeals will use in ruling 
on those applications.
    (b) The regulations in this subpart apply to any application for an 
award of attorney fees and other expenses that is:
    (1) Pending on February 8, 2006; or
    (2) Filed on or after February 8, 2006.



Sec. 4.602  What definitions apply to this subpart?

    As used in this subpart:
    Act means section 203(a)(1) of the Equal Access to Justice Act, 
Public Law 96-481, 5 U.S.C. 504, as amended.
    Adjudicative officer means the deciding official(s) who presided at 
the adversary adjudication, or any successor official(s) assigned to 
decide the application.
    Adversary adjudication means any of the following:
    (1) An adjudication under 5 U.S.C. 554 in which the position of the 
Department or other agency is presented by an attorney or other 
representative who enters an appearance and participates in the 
proceeding;
    (2) An appeal of a decision of a contracting officer made pursuant 
to section 6 of the Contract Disputes Act of 1978 (41 U.S.C. 605) before 
the Interior Board of Contract Appeals pursuant to section 8 of that Act 
(41 U.S.C. 607);
    (3) Any hearing conducted under section 6103(a) of the Program Fraud 
Civil Remedies Act of 1986 (31 U.S.C. 3801 et seq.); or
    (4) Any hearing or appeal involving the Religious Freedom 
Restoration Act of 1993 (42 U.S.C. 2000bb et seq.).
    Affiliate means:
    (1) Any individual, corporation, or other entity that directly or 
indirectly

[[Page 105]]

controls or owns a majority of the voting shares or other interest of 
the applicant; or
    (2) Any corporation or other entity of which the applicant directly 
or indirectly owns or controls a majority of the voting shares or other 
interest.
    Demand means the express demand of the Department or other agency 
that led to the adversary adjudication, but does not include a 
recitation by the Department or other agency of the maximum statutory 
penalty:
    (1) In the administrative complaint; or
    (2) Elsewhere when accompanied by an express demand for a lesser 
amount.
    Department means the Department of the Interior or the component of 
the Department that is a party to the adversary adjudication (e.g., 
Bureau of Land Management).
    Final disposition means the date on which either of the following 
becomes final and unappealable, both within the Department and to the 
courts:
    (1) A decision or order disposing of the merits of the proceeding; 
or
    (2) Any other complete resolution of the proceeding, such as a 
settlement or voluntary dismissal.
    Other agency means any agency of the United States or the component 
of the agency that is a party to the adversary adjudication before the 
Office of Hearings and Appeals, other than the Department of the 
Interior and its components.
    Party means a party as defined in 5 U.S.C. 551(3).
    Position of the Department or other agency means:
    (1) The position taken by the Department or other agency in the 
adversary adjudication; and
    (2) The action or failure to act by the Department or other agency 
upon which the adversary adjudication is based.
    Proceeding means an adversary adjudication as defined in this 
section.
    You means a party to an adversary adjudication.



Sec. 4.603  What proceedings are covered by this subpart?

    (a) The Act applies to adversary adjudications conducted by the 
Office of Hearings and Appeals, including proceedings to modify, 
suspend, or revoke licenses if they are otherwise adversary 
adjudications.
    (b) The Act does not apply to:
    (1) Other hearings and appeals conducted by the Office of Hearings 
and Appeals, even if the Department uses procedures comparable to those 
in 5 U.S.C. 554 in such cases;
    (2) Any proceeding in which the Department or other agency may 
prescribe a lawful present or future rate; or
    (3) Proceedings to grant or renew licenses.
    (c) If a hearing or appeal includes both matters covered by the Act 
and matters excluded from coverage, any award made will include only 
fees and expenses related to covered issues.



Sec. 4.604  When am I eligible for an award?

    (a) To be eligible for an award of attorney fees and other expenses 
under the Act, you must:
    (1) Be a party to the adversary adjudication for which you seek an 
award; and
    (2) Show that you meet all conditions of eligibility in this 
section.
    (b) You are an eligible applicant if you are any of the following:
    (1) An individual with a net worth of $2 million or less;
    (2) The sole owner of an unincorporated business who has a net worth 
of $7 million or less, including both personal and business interests, 
and 500 or fewer employees;
    (3) A charitable or other tax-exempt organization described in 
section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)) 
with 500 or fewer employees;
    (4) A cooperative association as defined in section 15(a) of the 
Agricultural Marketing Act (12 U.S.C. 1141j(a)) with 500 or fewer 
employees;
    (5) Any other partnership, corporation, association, unit of local 
government, or organization with a net worth of $7 million or less and 
500 or fewer employees; or
    (6) For purposes of Sec. 4.605(c), a small entity as defined in 5 
U.S.C. 601(6).
    (c) For the purpose of eligibility, your net worth and the number of 
your

[[Page 106]]

employees must be determined as of the date the proceeding was 
initiated.
    (1) Your employees include all persons who regularly perform 
services for remuneration under your direction and control.
    (2) Part-time employees must be included on a proportional basis.
    (d) You are considered an ``individual'' rather than a ``sole owner 
of an unincorporated business'' if:
    (1) You own an unincorporated business; and
    (2) The issues on which you prevail are related primarily to 
personal interests rather than to business interests.
    (e) To determine your eligibility, your net worth and the number of 
your employees must be aggregated with the net worth and the number of 
employees of all of your affiliates. However, this paragraph does not 
apply if the adjudicative officer determines that aggregation would be 
unjust and contrary to the purposes of the Act in light of the actual 
relationship between the affiliated entities.
    (f) The adjudicative officer may determine that financial 
relationships other than those described in the definition of 
``affiliate'' in Sec. 4.602 constitute special circumstances that would 
make an award unjust.
    (g) If you participate in a proceeding primarily on behalf of one or 
more other persons or entities that would be ineligible, you are not 
eligible for an award.



Sec. 4.605  Under what circumstances may I receive an award?

    (a) You may receive an award for your fees and expenses in 
connection with a proceeding if:
    (1) You prevailed in the proceeding or in a significant and discrete 
substantive portion of a proceeding; and
    (2) The position of the Department or other agency over which you 
prevailed was not substantially justified. The Department or other 
agency has the burden of proving that its position was substantially 
justified.
    (b) An award will be reduced or denied if you have unduly or 
unreasonably protracted the proceeding or if special circumstances make 
the award sought unjust.
    (c) This paragraph applies to an adversary adjudication arising from 
an action by the Department or other agency to enforce compliance with a 
statutory or regulatory requirement:
    (1) If the demand of the Department or other agency in the action is 
excessive and unreasonable compared with the adjudicative officer's 
decision, then the adjudicative officer must award you your fees and 
expenses related to defending against the excessive demand, unless:
    (i) You have committed a willful violation of law;
    (ii) You have acted in bad faith; or
    (iii) Special circumstances make an award unjust.
    (2) Fees and expenses awarded under this paragraph will be paid only 
if appropriations to cover the payment have been provided in advance.



Sec. 4.606  What fees and expenses may be allowed?

    (a) If the criteria in Sec. Sec. 4.603 through 4.605 are met, you 
may receive an award under this subpart only for the fees and expenses 
of your attorney(s) and expert witness(es).
    (b) The adjudicative officer must base an award on rates customarily 
charged by persons engaged in the business of acting as attorneys and 
expert witnesses, even if the services were made available to you 
without charge or at a reduced rate.
    (1) The maximum that can be awarded for the fee of an attorney is 
$125 per hour.
    (2) The maximum that can be awarded for the fee of an expert witness 
is the highest rate at which the Department or other agency pays expert 
witnesses with similar expertise.
    (3) An award may also include the reasonable expenses of the 
attorney or expert witness as a separate item, if the attorney or expert 
witness ordinarily charges clients separately for those expenses.
    (c) The adjudicative officer may award only reasonable fees and 
expenses under this subpart. In determining the reasonableness of the 
fee for an attorney or expert witness, the adjudicative officer must 
consider the following:

[[Page 107]]

    (1) If the attorney or expert witness is in private practice, his or 
her customary fee for similar services;
    (2) If the attorney or expert witness is your employee, the fully 
allocated cost of the services;
    (3) The prevailing rate for similar services in the community in 
which the attorney or expert witness ordinarily performs services;
    (4) The time actually spent in representing you in the proceeding;
    (5) The time reasonably spent in light of the difficulty or 
complexity of the issues in the proceeding; and
    (6) Any other factors that bear on the value of the services 
provided.
    (d) The adjudicative officer may award the reasonable cost of any 
study, analysis, engineering report, test, project, or similar matter 
prepared on your behalf to the extent that:
    (1) The charge for the service does not exceed the prevailing rate 
for similar services; and
    (2) The study or other matter was necessary for preparation of your 
case.

                  Information Required From Applicants



Sec. 4.610  What information must my application for an award contain?

    (a) Your application for an award of fees and expenses under the Act 
must:
    (1) Identify you;
    (2) Identify the proceeding for which an award is sought;
    (3) Show that you have prevailed;
    (4) Specify the position of the Department or other agency that you 
allege was not substantially justified;
    (5) Unless you are an individual, state the number of your employees 
and those of all your affiliates, and describe the type and purpose of 
your organization or business;
    (6) State the amount of fees and expenses for which you seek an 
award;
    (7) Be signed by you or your authorized officer or attorney;
    (8) Contain or be accompanied by a written verification under oath 
or under penalty of perjury that the information in the application is 
true and correct; and
    (9) Unless one of the exceptions in paragraph (b) of this section 
applies, include a statement that:
    (i) Your net worth does not exceed $2 million, if you are an 
individual; or
    (ii) Your net worth and that of all your affiliates does not exceed 
$7 million in the aggregate, if you are not an individual.
    (b) You do not have to submit the statement of net worth required by 
paragraph (a)(9) of this section if you do any of the following:
    (1) Attach a copy of a ruling by the Internal Revenue Service that 
you qualify as a tax-exempt organization described in 26 U.S.C. 
501(c)(3);
    (2) Attach a statement describing the basis for your belief that you 
qualify under 26 U.S.C. 501(c)(3), if you are a tax-exempt organization 
that is not required to obtain a ruling from the Internal Revenue 
Service on your exempt status;
    (3) State that you are a cooperative association as defined in 
section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)); or
    (4) Seek fees and expenses under Sec. 4.605(c) and provide 
information demonstrating that you qualify as a small entity under 5 
U.S.C. 601.
    (c) You may also include in your application any other matters that 
you wish the adjudicative officer to consider in determining whether and 
in what amount an award should be made.



Sec. 4.611  What information must I include in my net worth exhibit?

    (a) Unless you meet one of the criteria in Sec. 4.610(b), you must 
file with your application a net worth exhibit that meets the 
requirements of this section. The adjudicative officer may also require 
that you file additional information to determine your eligibility for 
an award.
    (b) The exhibit must show your net worth and that of any affiliates 
when the proceeding was initiated. The exhibit may be in any form that:
    (1) Provides full disclosure of your and your affiliates' assets and 
liabilities; and
    (2) Is sufficient to determine whether you qualify under the 
standards in this subpart.
    (c) Ordinarily, the net worth exhibit will be included in the public 
record of the proceeding. However, if you object to public disclosure of 
information in

[[Page 108]]

any portion of the exhibit and believe there are legal grounds for 
withholding it from disclosure, you may submit that portion of the 
exhibit directly to the adjudicative officer in a sealed envelope 
labeled ``Confidential Financial Information,'' accompanied by a motion 
to withhold the information from public disclosure.
    (1) The motion must describe the information sought to be withheld 
and explain, in detail:
    (i) Why it falls within one or more of the exemptions from mandatory 
disclosure under the Freedom of Information Act, 5 U.S.C. 552(b);
    (ii) Why public disclosure of the information would adversely affect 
you; and
    (iii) Why disclosure is not required in the public interest.
    (2) You must serve the net worth exhibit and motion on counsel 
representing the agency against which you seek an award, but you are not 
required to serve it on any other party to the proceeding.
    (3) If the adjudicative officer finds that the information should 
not be withheld from disclosure, it must be placed in the public record 
of the proceeding. Otherwise, any request to inspect or copy the exhibit 
will be disposed of in accordance with the Department's procedures under 
the Freedom of Information Act, 43 CFR 2.7 et seq.



Sec. 4.612  What documentation of fees and expenses must I provide?

    (a) Your application must be accompanied by full documentation of 
the fees and expenses for which you seek an award, including the cost of 
any study, analysis, engineering report, test, project, or similar 
matter.
    (b) You must submit a separate itemized statement for each 
professional firm or individual whose services are covered by the 
application, showing:
    (1) The hours spent in connection with the proceeding by each 
individual;
    (2) A description of the specific services performed;
    (3) The rates at which each fee has been computed;
    (4) Any expenses for which reimbursement is sought;
    (5) The total amount claimed; and
    (6) The total amount paid or payable by you or by any other person 
or entity for the services provided.
    (c) The adjudicative officer may require you to provide vouchers, 
receipts, logs, or other substantiation for any fees or expenses 
claimed, in accordance with Sec. 4.624.



Sec. 4.613  When may I file an application for an award?

    (a) You may file an application whenever you have prevailed in the 
proceeding or in a significant and discrete substantive portion of the 
proceeding. You must file the application no later than 30 days after 
the final disposition of the proceeding.
    (b) Consideration of an application for an award must be stayed if:
    (1) Any party seeks review or reconsideration of a decision in a 
proceeding in which you believe you have prevailed; or
    (2) The Department or other agency (or the United States on its 
behalf) appeals an adversary adjudication to a court.
    (c) A stay under paragraph (b)(1) of this section will continue 
until there has been a final disposition of the review or 
reconsideration of the decision. A stay under paragraph (b)(2) of this 
section will continue until either:
    (1) A final and unreviewable decision is rendered by the court on 
the appeal; or
    (2) The underlying merits of the case have been finally determined.

                 Procedures for Considering Applications



Sec. 4.620  How must I file and serve documents?

    You must file and serve all documents related to an application for 
an award under this subpart on all other parties to the proceeding in 
the same manner as other pleadings in the proceeding, except as provided 
in Sec. 4.611(c) for confidential information. The Department or other 
agency and all other parties must likewise file and serve their 
pleadings and related documents on you and on each other, in the same 
manner as other pleadings in the proceeding.

[[Page 109]]



Sec. 4.621  When may the Department or other agency file an answer?

    (a) Within 30 days after service of an application, the Department 
or other agency against which an award is sought may file an answer to 
the application. However, if consideration of an application has been 
stayed under Sec. 4.613(b), the answer is due within 30 days after the 
final disposition of the review or reconsideration of the decision.
    (1) Except as provided in paragraph (a)(2) of this section, failure 
to file an answer within the 30-day period may be treated as a consent 
to the award requested. In such case, the adjudicative officer will 
issue a decision in accordance with Sec. 4.625 based on the record 
before him or her.
    (2) Failure to file an answer within the 30-day period will not be 
treated as a consent to the award requested if the Department or other 
agency either:
    (i) Requests an extension of time for filing; or
    (ii) Files a statement of intent to negotiate under paragraph (b) of 
this section.
    (b) If the Department or other agency and you believe that the 
issues in the fee application can be settled, you may jointly file a 
statement of intent to negotiate a settlement. Filing this statement 
will extend for an additional 30 days the time for filing an answer, and 
the adjudicative officer may grant further extensions if you and the 
agency counsel so request.
    (c) The answer must explain in detail any objections to the award 
requested and identify the facts relied on to support the Department's 
or other agency's position. If the answer is based on any alleged facts 
not already in the record of the proceeding, the Department or other 
agency must include with the answer either supporting affidavits or a 
request for further proceedings under Sec. 4.624.



Sec. 4.622  When may I file a reply?

    Within 15 days after service of an answer, you may file a reply. If 
your reply is based on any alleged facts not already in the record of 
the proceeding, you must include with the reply either supporting 
affidavits or a request for further proceedings under Sec. 4.624.



Sec. 4.623  When may other parties file comments?

    Any party to a proceeding other than the applicant and the 
Department or other agency may file comments on an application within 30 
days after it is served or on an answer within 15 days after it is 
served. A commenting party may not participate further in the 
proceedings on the application unless the adjudicative officer 
determines that the public interest requires such participation in order 
to permit full exploration of matters raised in the comments.



Sec. 4.624  When may further proceedings be held?

    (a) Ordinarily, the determination of an award will be made on the 
basis of the written record. However, the adjudicative officer may order 
further proceedings, which will be held only when necessary for full and 
fair resolution of the issues and will be conducted as promptly as 
possible.
    (b) The adjudicative officer may order further proceedings on his or 
her own initiative or in response to a request by you or by the 
Department or other agency. A request for further proceedings under this 
section must:
    (1) Identify the information sought or the disputed issues; and
    (2) Explain why the additional proceedings are necessary to resolve 
the issues.
    (c) As to issues other than substantial justification (such as your 
eligibility or substantiation of fees and expenses), further proceedings 
under this section may include an informal conference, oral argument, 
additional written submissions, pertinent discovery, or an evidentiary 
hearing.
    (d) The adjudicative officer will determine whether the position of 
the Department or other agency was substantially justified based on the 
administrative record of the adversary adjudication as a whole.



Sec. 4.625  How will my application be decided?

    The adjudicative officer must issue a decision on the application 
promptly after completion of proceedings on the application. The 
decision must include written findings and conclusions on all

[[Page 110]]

of the following that are relevant to the decision:
    (a) Your eligibility and status as a prevailing party;
    (b) The amount awarded, and an explanation of the reasons for any 
difference between the amount requested and the amount awarded;
    (c) Whether the position of the Department or other agency was 
substantially justified;
    (d) Whether you unduly protracted the proceedings; and
    (e) Whether special circumstances make an award unjust.



Sec. 4.626  How will an appeal from a decision be handled?

    (a) If the adjudicative officer is an administrative law judge, you 
or the Department or other agency may appeal his or her decision on the 
application to the appeals board that would have jurisdiction over an 
appeal involving the merits of the proceeding. The appeal will be 
subject to the same regulations and procedures that would apply to an 
appeal involving the merits of the proceeding. The appeals board will 
issue the final Departmental or other agency decision on the 
application.
    (b) If the adjudicative officer is a panel of appeals board judges, 
their decision on the application is final for the Department or other 
agency.



Sec. 4.627  May I seek judicial review of a final decision?

    You may seek judicial review of a final Departmental or other agency 
decision on an award as provided in 5 U.S.C. 504(c)(2).



Sec. 4.628  How will I obtain payment of an award?

    (a) To obtain payment of an award against the Department or other 
agency, you must submit:
    (1) A copy of the final decision granting the award; and
    (2) A certification that no party is seeking review of the 
underlying decision in the United States courts, or that the process for 
seeking review of the award has been completed.
    (b) If the award is against the Department:
    (1) You must submit the material required by paragraph (a) of this 
section to the following address:
    Director, Office of Financial Management, Policy, Management and 
Budget, U.S. Department of the Interior, Washington, DC 20240.
    (2) Payment will be made by electronic funds transfer whenever 
possible. A representative of the Department will contact you for the 
information the Department needs to process the electronic funds 
transfer.
    (c) If the award is against another agency, you must submit the 
material required by paragraph (a) of this section to the chief 
financial officer or other disbursing official of that agency. Agency 
counsel must promptly inform you of the title and address of the 
appropriate official.
    (d) The Department or other agency will pay the amount awarded to 
you within 60 days of receiving the material required by this section.



    Subpart G_Special Rules Applicable to Other Appeals and Hearings

    Authority: 5 U.S.C. 301.



Sec. 4.700  Who may appeal.

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

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



Sec. 4.701  Notice of appeal.

    The appellant shall file a written notice of appeal, signed by him 
or by his

[[Page 111]]

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



Sec. 4.702  Transmittal of appeal file.

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



Sec. 4.703  Pleadings.

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

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



Sec. 4.704  Decisions on appeals.

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

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

Subpart H [Reserved]



Subpart I_Special Procedural Rules Applicable to Practice and Procedure 

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

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

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

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

[[Page 112]]

                                 General



Sec. 4.800  Scope and construction of rules.

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



Sec. 4.801  Suspension of rules.

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



Sec. 4.802  Definitions.

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



Sec. 4.803  Computation of time.

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



Sec. 4.804  Extensions of time.

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



Sec. 4.805  Reduction of time to file documents.

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

      Designation and Responsibilities of Administrative Law Judge



Sec. 4.806  Designation.

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



Sec. 4.807  Authority and responsibilities.

    The administrative law judge shall have all powers necessary to 
preside over the parties and the proceedings, conduct the hearing, and 
make decisions in accordance with 5 U.S.C. 554 through 557. His powers 
shall include, but not be limited to, the power to:

[[Page 113]]

    (a) Hold conferences to settle, simplify, or fix the issues in a 
proceeding, or to consider other matters that may aid in the expeditious 
disposition of the proceeding.
    (b) Require parties to state their position with respect to the 
various issues in the proceedings.
    (c) Establish rules for media coverage of the proceedings.
    (d) Rule on motions and other procedural items in matters before 
him.
    (e) Regulate the course of the hearing, the conduct of counsel, 
parties, witnesses, and other participants.
    (f) Administer oaths, call witnesses on his own motion, examine 
witnesses, and direct witnesses to testify.
    (g) Receive, rule on, exclude, or limit evidence.
    (h) Fix time limits for submission of written documents in matters 
before him.
    (i) Take any action authorized by these regulations, by 5 U.S.C. 
556, or by other pertinent law.

                         Appearance and Practice



Sec. 4.808  Participation by a party.

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



Sec. 4.809  Determination of parties.

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



Sec. 4.810  Complainants not parties.

    A person submitting a complaint pursuant to Sec. 17.6 of this title 
is not a party to the proceedings governed by

[[Page 114]]

part 17 of this title and these regulations, but may petition, after 
proceedings are initiated, to become an amicus curiae. In any event a 
complainant shall be advised of the time and place of the hearing.



Sec. 4.811  Determination and participation of amici.

    (a) Any interested person or organization wishing to participate as 
amicus curiae in the proceeding shall file a petition before the 
commencement of the hearing. Such petition shall concisely state the 
petitioner's interest in the hearing and who will represent petitioner.
    (b) The administrative law judge will grant the petition if he finds 
that the petitioner has an interest in the proceedings and may 
contribute materially to the disposition of the proceedings. The 
administrative law judge shall give the petitioner written notice of the 
decision on his petition.
    (c) An amicus curiae is not a party and may not introduce evidence 
at a hearing but may only participate as provided in paragraph (d) of 
this section.
    (d) An amicus curiae may submit a written statement of position to 
the administrative law judge at any time prior to the beginning of a 
hearing, and shall serve a copy on each party. He may also file a brief 
or written statement on each occasion a decision is to be made or a 
prior decision is subject to review. His brief or written statement 
shall be filed and served on each party within the time limits 
applicable to the party whose position he deems himself to support; or 
if he does not deem himself to support the position of any party, within 
the longest time limit applicable to any party at that particular stage 
of the proceedings.
    (e) When all parties have completed their initial examination of a 
witness, any amicus curiae may request the administrative law judge to 
propound specific questions to the witness. The administrative law 
judge, in his discretion, may grant any such request if he believes the 
proposed additional testimony may assist materially in elucidating 
factual matters at issue between the parties and will not expand the 
issues.

                      Form and Filing of Documents



Sec. 4.812  Form.

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



Sec. 4.813  Filing and service.

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



Sec. 4.814  Certificate of service.

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

[[Page 115]]

                               Procedures



Sec. 4.815  How proceedings are commenced.

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



Sec. 4.816  Notice of hearing and response thereto.

    A notice of hearing shall fix a date not less than 30 days from the 
date of service of the notice of a hearing on matters alleged in the 
notice. If the applicant recipient does not desire a hearing, he should 
so state in writing, in which case the applicant or recipient shall have 
the right to further participate in the proceeding. Failure to appear at 
the time set for a hearing, without good cause, shall be deemed a waiver 
of the right to a hearing under section 602 of the Act and the 
regulations thereunder and consent to the making of a decision on such 
information as is available which may be presented for the record.



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

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



Sec. 4.818  Answer.

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



Sec. 4.819  Amendment of notice or answer.

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



Sec. 4.820  Consolidated or joint hearings.

    As provided in Sec. 17.8(e) of this title, the Secretary may 
provide for proceedings in the Department to be joined or consolidated 
for hearing with proceedings in other Federal departments or agencies, 
by agreement with

[[Page 116]]

such other departments or agencies. All parties to any proceedings 
consolidated subsequently to service of the notice of hearing or 
opportunity for hearing shall be promptly served with notice of such 
consolidation.



Sec. 4.821  Motions.

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



Sec. 4.822  Disposition of motions.

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



Sec. 4.823  Interlocutory appeals.

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



Sec. 4.824  Exhibits.

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



Sec. 4.825  Admissions as to facts and documents.

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



Sec. 4.826  Discovery.

    (a) Methods. Parties may obtain discovery as provided in these rules 
by depositions, written interrogatories, production of documents, or 
other

[[Page 117]]

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



Sec. 4.827  Depositions.

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



Sec. 4.828  Use of depositions at hearing.

    (a) Any part or all of a deposition so far as admissible under Sec. 
4.835 applied as though the witness were then present and testifying, 
may be used against any party who was present or represented at the 
taking of the deposition or who had reasonable notice thereof as 
follows:
    (1) Any deposition may be used for contradiction or impeachment of 
the deponent as a witness.

[[Page 118]]

    (2) The deposition of a party, or of an agent designated to testify 
on behalf of a party, may be used by an adverse party for any purpose.
    (3) The deposition of any witness may be used for any purpose if the 
party offering the deposition has been unable to procure the attendance 
of the witness because he is dead; or if the witness is at a greater 
distance than 100 miles from the place of hearing, or is out of the 
United States, unless it appears that the absence of the witness was 
procured by the party offering the deposition; or if the witness is 
unable to attend or testify because of age, illness, infirmity, or 
imprisonment; or, upon application and notice, that such exceptional 
circumstances exist as to make it desirable, in the interest of justice 
and with due regard to the importance of presenting the testimony of 
witnesses orally in open hearing, to allow the deposition to be used.
    (b) If only part of a deposition is offered in evidence, the 
remainder becomes subject to introduction by any party.
    (c) Objection may be made at the hearing to receiving in evidence 
any deposition or part thereof for any reason which would require the 
exclusion of the evidence if the witness were then present and 
testifying.



Sec. 4.829  Interrogatories to parties.

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



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

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



Sec. 4.831  Sanctions.

    (a) A party, upon reasonable notice to other parties and all persons 
affected thereby, may move for an order as follows:
    (1) If a deponent fails to answer a question propounded or submitted 
under Sec. 4.827(c), or a corporation or other entity fails to make a 
designation under Sec. 4.827(b)(3), or a party fails

[[Page 119]]

to answer an interrogatory submitted under Sec. 4.829, or if a party, 
under Sec. 4.830 fails to respond that inspection will be permitted or 
fails to permit inspection, the discovering party may move for an order 
compelling an answer, a designation, or inspection.
    (2) An evasive or incomplete answer is to be treated as a failure to 
answer.
    (b) If a party or an agent designated to testify fails to obey an 
order to permit discovery, the administrative law judge may make such 
orders as are just, including:
    (1) That the matters regarding which the order was made or any other 
designated facts shall be established in accordance with the claim of 
the party obtaining the order;
    (2) Refusing to allow the disobedient party to support or oppose 
designated claims or defenses, or prohibiting him from introducing 
designated matters in evidence.
    (c) If a party or an agent designated to testify fails after proper 
service (1) to appear for his deposition, (2) to serve answers or 
objections to interrogatories submitted under Sec. 4.829 or (3) to 
serve a written response to a request for inspection, submitted under 
Sec. 4.830, the administrative law judge on motion may make such orders 
as are just, including those authorized under paragraphs (b) (1) and (2) 
of this section.



Sec. 4.832  Consultation and advice.

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

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

                               Prehearing



Sec. 4.833  Prehearing conferences.

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

                                 Hearing



Sec. 4.834  Purpose.

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

[[Page 120]]

from such order may be allowed in accordance with the rules for 
interlocutory appeal in Sec. 4.823.



Sec. 4.835  Evidence.

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



Sec. 4.836  Official notice.

    Whenever a party offers a public document, or part thereof, in 
evidence, and such document, or part thereof, has been shown by the 
offeror to be reasonably available to the public, such document need not 
be produced or marked for identification, but may be offered for 
official notice as a public document item by specifying the document or 
relevant part thereof. Official notice may also be taken of other 
matters, at the discretion of the administrative law judge.



Sec. 4.837  Testimony.

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



Sec. 4.838  Objections.

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



Sec. 4.839  Exceptions.

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



Sec. 4.840  Offer of proof.

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



Sec. 4.841  Official transcript.

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

                         Posthearing Procedures



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

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



Sec. 4.843  Record for decision.

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



Sec. 4.844  Notification of right to file exceptions.

    The provisions of Sec. 17.9 of this title govern the making of 
decisions by administrative law judges, the Director,

[[Page 121]]

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



Sec. 4.845  Final review by Secretary.

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



Subpart J_Special Rules Applicable to Appeals Concerning Federal Oil and 
                    Gas Royalties and Related Matters

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

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



Sec. 4.901  What is the purpose of this subpart?

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



Sec. 4.902  What appeals are subject to this subpart?

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



Sec. 4.903  What definitions apply to this subpart?

    For the purposes of this subpart only:
    Assessment means any fee or charge levied or imposed by the 
Secretary or a delegated State other than:
    (1) The principal amount of any royalty, minimum royalty, rental, 
bonus, net profit share or proceed of sale;
    (2) Any interest; or
    (3) Any civil or criminal penalty.
    Delegated State means a State to which MMS has delegated authority 
to perform royalty management functions under an agreement or agreements 
under 30 CFR part 227.
    Designee means the person designated by a lessee under 30 CFR 218.52 
to make all or part of the royalty or other payments due on a lease on 
the lessee's behalf.
    IBLA means the Interior Board of Land Appeals.
    Lease means any agreement authorizing exploration for or extraction 
of any mineral, regardless of whether the instrument is expressly 
denominated as a ``lease,'' including any:

[[Page 122]]

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

[[Page 123]]

part 4, subpart E, and any person who files a Notice of Joinder in an 
appeal under 30 CFR part 290, subpart B.
    Payor means any person responsible for reporting and paying 
royalties for Federal oil and gas leases for production before September 
1, 1996.



Sec. 4.904  When does my appeal commence and end?

    For purposes of the period in which the Department must issue a 
final decision in your appeal under Sec. 4.906:
    (a) If you filed your Notice of Appeal and initial Statement of 
Reasons with MMS before August 13, 1996, your appeal commenced on August 
13, 1996;
    (b) If you filed your Notice of Appeal or initial Statement of 
Reasons with MMS after August 13, 1996, under 30 CFR part 290, in effect 
prior to May 13, 1999 and contained in the 30 CFR, parts 200 to 699, 
edition, revised as of July 1, 1998, your appeal commenced on the date 
MMS received your Notice of Appeal, or if later, the date MMS received 
your initial Statement of Reasons;
    (c) If you filed your Notice of Appeal under 30 CFR part 290, 
subpart B, your appeal commenced on the date MMS received your Notice of 
Appeal.
    (d) Your appeal ends on the same day of the month of the 33rd 
calendar month after your appeal commenced under paragraph (a), (b), or 
(c) of this section, plus the number of days of any applicable time 
extensions under Sec. 4.909 or 30 CFR 290.109. If the 33rd calendar 
month after your appeal commenced does not have the same day of the 
month as the day of the month your appeal commenced, then the initial 
33-month period ends on the last day of the 33rd calendar month.



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

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



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

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

[[Page 124]]

MMS Director's decision and must be computed to comply with the order or 
MMS Director's decision, then the principal amount referred to in 
paragraph (a) of this section means the principal amount MMS estimates 
you would be required to pay as a result of the computation required 
under the order, plus any amount due stated in the order.



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

    (a) An IBLA decision modifying an order or an MMS Director's 
decision and requiring MMS or a delegated State to recalculate royalties 
or other payments is a final decision in the administrative proceeding 
for purposes of 30 U.S.C. 1724(h).
    (b) MMS or the delegated State must provide to IBLA and all parties 
any recalculation IBLA requires under paragraph (a) of this section 
within 60 days of receiving IBLA's decision.
    (c) There is no further appeal within the Department from MMS's or 
the State's recalculation under paragraph (b) of this section.
    (d) The IBLA decision issued under paragraph (a) of this section 
together with recalculation under paragraph (b) of this section are the 
final action of the Department that is judicially reviewable under 5 
U.S.C. 704.



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

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



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

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

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

Subpart K [Reserved]



 Subpart L_Special Rules Applicable to Surface Coal Mining Hearings and 
                                 Appeals

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

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

[[Page 125]]

                           General Provisions



Sec. 4.1100  Definitions.

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

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



Sec. 4.1101  Jurisdiction of the Board.

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

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



Sec. 4.1102  Construction.

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



Sec. 4.1103  Eligibility to practice.

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



Sec. 4.1104  General rules relating to procedure and practice.

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

[[Page 126]]



Sec. 4.1105  Parties.

    (a) All persons indicated in the act as parties to administrative 
review proceedings under the act shall be considered statutory parties. 
Such statutory parties include--
    (1) In a civil penalty proceeding under Sec. 4.1150, OSM, as 
represented by the Office of the Solicitor, Department of the Interior, 
and any person against whom a proposed assessment is made who files a 
petition;
    (2) In a review proceeding under Sec. Sec. 4.1160 through 4.1171, 
4.1180 through 4.1187, 4.1300 through 4.1309, 4.1350 through 4.1356, 
4.1360 through 4.1369, 4.1370 through 4.1377, 4.1380 through 4.1387 or 
4.1390 through 4.1394 of this part, OSM, as represented by the Office of 
the Solicitor, Department of the Interior, and--
    (i) If an applicant, operator, or permittee files an application or 
request for review, the applicant, operator, or permittee; and
    (ii) If any other person having an interest which is or may be 
adversely affected files an application or request for review, the 
applicant, operator, or permittee and the person filing such application 
or request;
    (3) In a proceeding to suspend or revoke a permit under Sec. 4.1190 
et seq. OSM, as represented by the Office of the Solicitor, Department 
of the Interior, and the permittee who is ordered to show cause why the 
permit should not be suspended or revoked; and
    (4) In a discriminatory discharge proceeding under Sec. 4.1200 et 
seq. OSM, as represented by the Office of the Solicitor, Department of 
the Interior, any employee or any authorized representative of employees 
who files an application for review, and the alleged discriminating 
party, except where the applicant files a request for the scheduling of 
a hearing under Sec. 4.1201(c) only such applicant and the alleged 
discriminating party.
    (5) In an appeal to the Board in accordance with 43 CFR 4.1280 
through 4.1286 from a determination of the Director of OSM or his or her 
designee under 30 CFR 842.15(d) or a determination of an authorized 
representative under 30 CFR 843.12(i), the permittee of the operation 
that is the subject of the determination and any person whose interests 
may be adversely affected by the outcome on appeal and who participated 
before OSM. A person who wishes his or her identity kept confidential 
under 30 CFR 842.12(b) is responsible for maintaining that 
confidentiality when serving documents in accordance with Sec. 4.1109.
    (b) Any other person claiming a right to participate as a party may 
seek leave to intervene in a proceeding by filing a petition to do so 
pursuant to Sec. 4.1110.
    (c) If any person has a right to participate as a full party in a 
proceeding under the act and fails to exercise that right by 
participating in each stage of the proceeding, that person may become a 
participant with the rights of a party by order of an administrative law 
judge or the Board.

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



Sec. 4.1106  Hearing sites.

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



Sec. 4.1107  Filing of documents.

    (a) Any initial pleadings in a proceeding to be conducted or being 
conducted by an administrative law judge under these rules shall be 
filed, by hand or by mail, with the Hearings Division, Office of 
Hearings and Appeals, Department of the Interior, 801 North Quincy 
Street, Arlington, Va. 22203.
    (b) Where a proceeding has been assigned to an administrative law 
judge, the parties will be notified by the Chief Administrative Law 
Judge of the name and address of the administrative law judge assigned 
to the case and thereafter all further documents shall be filed with the 
Administrative Law Judge, Office of Hearings and Appeals, at the address 
designated in the notice.
    (c) Any notice of appeal, petition for review or other documents in 
a proceeding to be conducted or being conducted by the Board shall be 
filed, by hand or by mail, with the Board of Land Appeals, Office of 
Hearings and

[[Page 127]]

Appeals, 801 North Quincy Street, Arlington, Va. 22203.
    (d) Any person filing initial pleadings with the Hearings Division 
or a notice of appeal with the Board shall furnish an original and one 
copy. Any person filing other documents with OHA shall furnish only an 
original.
    (e) Any person who has initiated a proceeding under these rules 
before the Hearings Division or filed a notice of appeal with the Board 
shall file proof of service with the same in the form of a return 
receipt where service is by registered or certified mail, or an 
acknowledgement by the party served or a verified return where service 
is made personally. A certificate of service shall accompany all other 
documents filed by a party in any proceeding.
    (f) The effective filing date for documents initiating proceedings 
before the Hearings Division, OHA, Arlington, VA, shall be the date of 
receipt in that office, if filed by hand, or the date such document is 
postmarked, if filed by mail.
    (g) The effective filing date for a notice of appeal or a petition 
for discretionary review filed with the Board shall be the date of 
mailing or the date of personal delivery, except the effective filing 
date for a notice of appeal from a decision in an expedited review of a 
cessation order proceeding or from a decision in a suspension or 
revocation proceeding shall be the date of receipt of the document by 
the Board. The burden of establishing the date of mailing shall be on 
the person filing the document.
    (h) The effective filing date for all other documents filed with an 
administrative law judge or with the Board shall be the date of mailing 
or personal delivery. The burden of establishing the date of mailing 
shall be on the person filing the document.

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



Sec. 4.1108  Form of documents.

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



Sec. 4.1109  Service.

    (a)(1) Any party initiating a proceeding in OHA under the Act shall, 
on the date of filing, simultaneously serve copies of the initiating 
documents on the officer in the Office of the Solicitor, U.S. Department 
of the Interior, representing OSMRE in the state in which the mining 
operation at issue is located, and on any other statutory parties 
specified under Sec. 4.1105 of this part.
    (2) The jurisdictions, addresses, and telephone numbers of the 
applicable officers of the Office of the Solicitor to be served under 
paragraph (a)(1) of this section are:
    (i) For mining operations in Alabama, Arkansas, Georgia, Illinois, 
Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, North 
Carolina, Oklahoma, Tennessee, Texas, and Virginia: Field Solicitor, 
U.S. Department of the Interior, 530 S. Gay Street, Room 308, Knoxville, 
Tennessee 37902; Telephone: (865) 545-4294; FAX: (865) 545-4314.
    (ii) For mining operations in Maryland, Massachusetts, Michigan, 
Ohio, Pennsylvania, Rhode Island, and West Virginia: Field Solicitor, 
U.S. Department of the Interior, Three Parkway

[[Page 128]]

Center, Suite 385, Pittsburgh, Pennsylvania 15220; Telephone: (412) 937-
4000; FAX: (412) 937-4003.
    (iii) For mining operations in Alaska, Colorado, Idaho, Montana, 
North Dakota, Oregon, South Dakota, Utah, Washington, and Wyoming, 
including mining operations located on Indian lands within those states: 
Regional Solicitor, Rocky Mountain Region, U.S. Department of the 
Interior, 755 Parfet Street, Suite 151, Lakewood, CO 80215; Telephone: 
(303) 231-5353; FAX: (303) 231-5363 or 231-5360.
    (iv) For mining operations in Arizona, California, and New Mexico, 
including mining operations located on Indian lands within those states 
except for the challenge of permitting decisions affecting mining 
operations located on Indian lands in those states: Regional Solicitor, 
Southwest Region, U.S. Department of the Interior, 505 Marquette Avenue, 
NW., Suite 1800, Albuquerque, NM 87102; Telephone: (505) 248-5600; FAX: 
(505) 248-5623.
    (v) For the challenge of permitting decisions affecting mining 
operations located on Indian lands within Arizona, California, and New 
Mexico: Regional Solicitor, Rocky Mountain Region, U.S. Department of 
the Interior, 755 Parfet Street, Suite 151, Lakewood, CO 80215; 
Telephone: (303) 231-5353; FAX: (303) 231-5363 or 231-5360.
    (3) Any party or other person who subsequently files any other 
document with OHA in the proceeding shall simultaneously serve copies of 
that document on all other parties and persons participating in the 
proceeding.
    (b) Copies of documents by which any proceeding is initiated shall 
be served on all statutory parties personally or by registered or 
certified mail, return receipt requested. All subsequent documents shall 
be served personally or by first class mail.
    (c) Service of copies of all documents is complete at the time of 
personal service or, if service is made by mail, upon receipt.
    (d) Whenever an attorney has entered an appearance for a party in a 
proceeding before an administrative law judge or the Board, service 
thereafter shall be made upon the attorney.

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



Sec. 4.1110  Intervention.

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



Sec. 4.1111  Voluntary dismissal.

    Any party who initiated a proceeding before OHA may seek to withdraw 
by

[[Page 129]]

moving to dismiss at any stage of a proceeding and the administrative 
law judge or the Board may grant such a motion.



Sec. 4.1112  Motions.

    (a) Except for oral motions made in proceedings on the record, or 
where the administrative law judge otherwise directs, each motion 
shall--
    (1) Be in writing; and
    (2) Contain a concise statement of supporting grounds.
    (b) Unless the administrative law judge or the Board orders 
otherwise, any party to a proceeding in which a motion is filed under 
paragraph (a) of this section shall have 15 days from service of the 
motion to file a statement in response.
    (c) Failure to make a timely motion or to file a statement in 
response may be construed as a waiver of objection.
    (d) An administrative law judge or the Board shall rule on all 
motions as expeditiously as possible.



Sec. 4.1113  Consolidation of proceedings.

    When proceedings involving a common question of law or fact are 
pending before an administrative law judge or the Board, such 
proceedings are subject to consolidation pursuant to a motion by a party 
or at the initiative of an administrative law judge or the Board.



Sec. 4.1114  Advancement of proceedings.

    (a) Except in expedited review proceedings under Sec. 4.1180, or in 
temporary relief proceedings under Sec. 4.1266, at any time after 
commencement of a proceeding, any party may move to advance the 
scheduling of a proceeding.
    (b) Except as otherwise directed by the administrative law judge or 
the Board, any party filing a motion under this section shall--
    (1) Make the motion in writing;
    (2) Describe the exigent circumstances justifying advancement;
    (3) Describe the irreparable harm that would result if the motion is 
not granted; and
    (4) Incorporate in the motion affidavits to support any 
representations of fact.
    (c) Service of a motion under this section shall be accomplished by 
personal delivery or by telephonic or telegraphic communication followed 
by mail. Service is complete upon mailing.
    (d) Unless otherwise directed by the administrative law judge or the 
Board, all parties to the proceeding in which the motion is filed shall 
have 10 days from the date of service of the motion to file a statement 
in response to the motion.
    (e) Following the timely receipt by the administrative law judge of 
statements in response to the motion, the administrative law judge may 
schedule a hearing regarding the motion. If the motion is granted, the 
administrative law judge may advance pleading schedules, prehearing 
conferences, and the hearing, as deemed appropriate: Provided, A hearing 
on the merits shall not be scheduled with less than 5 working days 
notice to the parties, unless all parties consent to an earlier hearing.
    (f) If the motion is granted, the Board may, if it deems such action 
to be appropriate, advance the appeal on its calendar and order such 
other advancement as may be appropriate, including an abbreviated 
schedule for briefing or oral argument.



Sec. 4.1115  Waiver of right to hearing.

    Any person entitled to a hearing before an administrative law judge 
under the act may waive such right in writing. Where parties are 
directed by any rule in these regulations to file a responsive pleading 
on or before a specified time, any party who fails to file such 
responsive pleading by the time specified, may be deemed to have waived 
his right to a hearing. Unless all parties to a proceeding who are 
entitled to a hearing waive, or are deemed to have waived such right, a 
hearing will be held.



Sec. 4.1116  Status of notices of violation and orders of cessation pending review by the Office of Hearings and Appeals.

    Except where temporary relief is granted pursuant to section 525(c) 
or section 526(c) of the act, notices of violation and orders of 
cessation issued under the act shall remain in effect during the 
pendency of review before an administrative law judge or the Board.

[[Page 130]]

                          Evidentiary Hearings



Sec. 4.1120  Presiding officers.

    An administrative law judge in the Office of Hearings and Appeals 
shall preside over any hearing required by the act to be conducted 
pursuant to 5 U.S.C. 554 (1970).



Sec. 4.1121  Powers of administrative law judges.

    (a) Under the regulations of this part, an administrative law judge 
may--
    (1) Administer oaths and affirmations;
    (2) Issue subpoenas;
    (3) Issue appropriate orders relating to discovery;
    (4) Rule on procedural requests or similar matters;
    (5) Hold conferences for settlement or simplification of the issues;
    (6) Regulate the course of the hearing;
    (7) Rule on offers of proof and receive relevant evidence;
    (8) Take other actions authorized by this part, by 5 U.S.C. 556 
(1970), or by the act; and
    (9) Make or recommend decisions in accordance with 5 U.S.C. 557 
(1970).
    (b) An administrative law judge may order a prehearing conference--
    (1) To simplify and clarify issues;
    (2) To receive stipulations and admissions;
    (3) To explore the possibility of agreement disposing of any or all 
of the issues in dispute; and
    (4) For such other purposes as may be appropriate.
    (c) Except as otherwise provided in these regulations, the 
jurisdiction of an administrative law judge shall terminate upon--
    (1) The filing of a notice of appeal from an initial decision or 
other order dispositive of the proceeding;
    (2) The issuance of an order of the Board granting a petition for 
review; or
    (3) The expiration of the time period within which a petition for 
review or an appeal to the Board may be filed.



Sec. 4.1122  Conduct of administrative law judges.

    Administrative law judges shall adhere to the ``Code of Judicial 
Conduct.''



Sec. 4.1123  Notice of hearing.

    (a) An administrative law judge shall give notice to the parties of 
the time, place and nature of any hearing.
    (b) Except for expedited review proceedings and temporary relief 
proceedings where time is of the essence, notice given under this 
section shall be in writing.
    (c) In an expedited proceeding when there is only opportunity to 
give oral notice, the administrative law judge shall enter that fact 
contemporaneously on the record by a signed and dated memorandum 
describing the notice given.



Sec. 4.1124  Certification of interlocutory ruling.

    Upon motion or upon the initiative of an administrative law judge, 
the judge may certify to the Board a ruling which does not finally 
dispose of the case if the ruling presents a controlling question of law 
and an immediate appeal would materially advance ultimate disposition by 
the judge.



Sec. 4.1125  Summary decision.

    (a) At any time after a proceeding has begun, a party may move for 
summary decision of the whole or part of a case.
    (b) The moving party under this section shall verify any allegations 
of fact with supporting affidavits, unless the moving party is relying 
upon depositions, answers to interrogatories, admissions, or documents 
produced upon request to verify such allegations.
    (c) An administrative law judge may grant a motion under this 
section if the record, including the pleadings, depositions, answers to 
interrogatories, admissions, and affidavits, shows that--
    (1) There is no disputed issue as to any material fact; and
    (2) The moving party is entitled to summary decision as a matter of 
law.
    (d) If a motion for summary decision is not granted for the entire 
case or for all the relief requested and an evidentiary hearing is 
necessary, the administrative law judge shall, if practicable, and upon 
examination of all relevant documents and evidence before him, ascertain 
what material facts

[[Page 131]]

are actually and in good faith controverted. He shall thereupon, issue 
an order specifying the facts that appear without substantial 
controversy and direct such further proceedings as deemed appropriate.



Sec. 4.1126  Proposed findings of fact and conclusions of law.

    The administrative law judge shall allow the parties to a proceeding 
an opportunity to submit proposed findings of fact and conclusions of 
law together with a supporting brief at a time designated by the 
administrative law judge.



Sec. 4.1127  Initial orders and decisions.

    An initial order or decision disposing of a case shall incorporate--
    (a) Findings of fact and conclusions of law and the basis and 
reasons therefore on all the material issues of fact, law, and 
discretion presented on the record; and
    (b) An order granting or denying relief.



Sec. 4.1128  Effect of initial order or decision.

    An initial order or decision shall become final if that order or 
decision is not timely appealed to the Board under Sec. 4.1270 or Sec. 
4.1271.



Sec. 4.1129  Certification of record.

    Except in expedited review proceedings under Sec. 4.1180, within 5 
days after an initial decision has been rendered, the administrative law 
judge shall certify the official record of the proceedings, including 
all exhibits, and transmit the official record for filing in the 
Hearings Division, Office of Hearings and Appeals, Arlington, Va.

                                Discovery



Sec. 4.1130  Discovery methods.

    Parties may obtain discovery by one or more of the following 
methods--
    (a) Depositions upon oral examination or upon written 
interrogatories;
    (b) Written interrogatories;
    (c) Production of documents or things or permission to enter upon 
land or other property, for inspection and other purposes; and
    (d) Requests for admission.



Sec. 4.1131  Time for discovery.

    Following the initiation of a proceeding, the parties may initiate 
discovery at any time as long as it does not interfere with the conduct 
of the hearing.



Sec. 4.1132  Scope of discovery.

    (a) Unless otherwise limited by order of the administrative law 
judge in accordance with these rules, the parties may obtain discovery 
regarding any matter, not privileged, which is relevant to the subject 
matter involved in the proceeding, including the existence, description, 
nature, custody, condition, and location of any books, documents, or 
other tangible things and the identity and location of persons having 
knowledge of any discoverable matter.
    (b) It is not ground for objection that information sought will not 
be admissible at the hearing if the information sought appears 
reasonably calculated to lead to the discovery of admissible evidence.
    (c) A party may obtain discovery of documents and tangible things 
otherwise discoverable under paragraph (a) of this section and prepared 
in anticipation of or for the hearing by or for another party's 
representative (including his attorney, consultant, surety, indemnitor, 
insurer, or agent) only upon a showing that the party seeking discovery 
has substantial need of the materials in the preparation of his case and 
that he is unable without undue hardship to obtain the substantial 
equivalent of the materials by other means. In ordering discovery of 
such materials when the required showing has been made, the 
administrative law judge shall protect against disclosure of the mental 
impressions, conclusions, opinions, or legal theories of an attorney or 
other representative of a party concerning the proceeding.
    (d) Upon motion by a party or the person from whom discovery is 
sought, and for good cause shown, the administrative law judge may make 
any order which justice requires to protect a party or person from 
annoyance, embarrassment, oppression, or undue burden or expense, 
including one or more of the following--
    (1) The discovery not be had;

[[Page 132]]

    (2) The discovery may be had only on specified terms and conditions, 
including a designation of the time or place;
    (3) The discovery may be had only by a method of discovery other 
than that selected by the party seeking discovery;
    (4) Certain matters not relevant may not be inquired into, or that 
the scope of discovery be limited to certain matters;
    (5) Discovery be conducted with no one present except persons 
designated by the administrative law judge; or
    (6) A trade secret or other confidential research, development or 
commercial information may not be disclosed or be disclosed only in a 
designated way.



Sec. 4.1133  Sequence and timing of discovery.

    Unless the administrative law judge upon motion, for the convenience 
of parties and witnesses and in the interests of justice, orders 
otherwise, methods of discovery may be used in any sequence and the fact 
that a party is conducting discovery, whether by deposition or 
otherwise, shall not operate to delay any other party's discovery.



Sec. 4.1134  Supplementation of responses.

    A party who has responded to a request for discovery with a response 
that was complete when made is under no duty to supplement his response 
to include information thereafter acquired, except as follows--
    (a) A party is under a duty to supplement timely his response with 
respect to any question directly addressed to--
    (1) The identity and location of persons having knowledge of 
discoverable matters; and
    (2) The identity of each person expected to be called as an expert 
witness at the hearing, the subject matter on which he is expected to 
testify and the substance of his testimony.
    (b) A party is under a duty to amend timely a prior response if he 
later obtains information upon the basis of which--
    (1) He knows the response was incorrect when made; or
    (2) He knows that the response though correct when made is no longer 
true and the circumstances are such that a failure to amend the response 
is in substance a knowing concealment.
    (c) A duty to supplement responses may be imposed by order of the 
administrative law judge or agreement of the parties.



Sec. 4.1135  Motion to compel discovery.

    (a) If a deponent fails to answer a question propounded, or a party 
upon whom a request is made pursuant to Sec. 4.1140, or a party upon 
whom answers to interrogatories are served fails to adequately respond 
or objects to the request, or any part thereof, or fails to permit 
inspection as requested, the discovering party may move the 
administrative law judge for an order compelling a response or 
inspection in accordance with the request.
    (b) The motion shall set forth--
    (1) The nature of the questions or request;
    (2) The response or objection of the party upon whom the request was 
served; and
    (3) Arguments in support of the motion.
    (c) For purposes of this section, an evasive answer or incomplete 
answer or response shall be treated as a failure to answer or respond.
    (d) In ruling on a motion made pursuant to this section, the 
administrative law judge may make such a protective order as he is 
authorized to make on a motion made pursuant to Sec. 4.1132(d).



Sec. 4.1136  Failure to comply with orders compelling discovery.

    If a party or an officer, director, or other agent of a party fails 
to obey an order to provide or permit discovery, the administrative law 
judge before whom the action is pending may make such orders in regard 
to the failure as are just, including but not limited to the following--
    (a) An order that the matters sought to be discovered or any other 
designated facts shall be taken to be established for the purposes of 
the action in accordance with the claim of the party obtaining the 
order;
    (b) An order refusing to allow the disobedient party to support or 
oppose designated claims or defenses, or prohibiting him from 
introducing designated matters into evidence; or

[[Page 133]]

    (c) An order striking out pleadings or parts thereof, or staying 
further proceedings until the order is obeyed, or dismissing the action 
or proceeding or any part thereof, or rendering a judgment by default 
against the disobedient party.



Sec. 4.1137  Depositions upon oral examination or upon written questions.

    (a) Any party desiring to take the testimony of any other party or 
other person by deposition upon oral examination or written questions 
shall, without leave of the administrative law judge, give reasonable 
notice in writing to every other party, to the person to be examined and 
to the administrative law judge of--
    (1) The proposed time and place of taking the deposition;
    (2) The name and address of each person to be examined, if known, or 
if the name is not known, a general description sufficient to identify 
him or the particular group or class to which he belongs;
    (3) The matter upon which each person will be examined; and
    (4) The name or descriptive title and address of the officer before 
whom the deposition is to be taken.
    (b) A deposition may be taken before any officer authorized to 
administer oaths by the laws of the United States or of the place where 
the examination is held.
    (c) The actual taking of the deposition shall proceed as follows--
    (1) The deposition shall be on the record;
    (2) The officer before whom the deposition is to be taken shall put 
the witness on oath or affirmation;
    (3) Examination and cross-examination shall proceed as at a hearing;
    (4) All objections made at the time of the examination shall be 
noted by the officer upon the deposition;
    (5) The officer shall not rule on objections to the evidence, but 
evidence objected to shall be taken subject to the objections.
    (d) When the testimony is fully transcribed, the deposition shall be 
submitted to the deponent for examination and signature, unless 
examination and signature is waived by the deponent. The officer shall 
certify the deposition or, if the deposition is not signed by the 
deponent, shall certify the reasons for the failure to sign.
    (e) Where the deposition is to be taken upon written questions, the 
party taking the deposition shall serve a copy of the questions, showing 
each question separately and consecutively numbered, on every other 
party with a notice stating the name and address of the person who is to 
answer them, and the name, description, title, and address of the 
officer before whom they are to be taken. Within 30 days after service, 
any other party may serve cross-questions. The questions, cross-
questions, and answers shall be recorded and signed, and the deposition 
certified, as in the case of a deposition on oral examination.
    (f) A deposition will not become a part of the record in the hearing 
unless received in evidence. If only part of a deposition is offered in 
evidence by a party, any other party may introduce any other parts.
    (g) A deponent whose deposition is taken and the officer taking a 
deposition shall be entitled to the same fees as are paid for like 
services in the district courts of the United States, to be paid by the 
party at whose instance the deposition is taken.
    (h) The deponent may be accompanied, represented, and advised by 
legal counsel.



Sec. 4.1138  Use of depositions.

    At the hearing, any part or all of a deposition, so far as 
admissible, may be used against any party who was present or represented 
at the taking of the deposition, or who had reasonable notice thereof, 
in accordance with any of the following provisions--
    (a) Any deposition may be used by any party for the purpose of 
contradicting or impeaching the testimony of a deponent as a witness;
    (b) The deposition of a party or of anyone who at the time of taking 
the deposition was an officer, director, or managing agent or a person 
designated to testify on behalf of a public or private corporation, 
partnership, or association or governmental agency which is a party may 
be used by an adverse party for any purpose; or

[[Page 134]]

    (c) The deposition of a witness, whether or not a party, may be used 
by a party for any purpose if the administrative law judge finds that--
    (1) The witness is dead;
    (2) The witness is at a distance greater than 100 miles from the 
place of hearing, or is outside the United States, unless it appears 
that the absence of the witness was procured by the party offering the 
deposition;
    (3) The witness is unable to attend or testify because of age, 
illness, infirmity, or imprisonment;
    (4) The party offering the deposition has been unable to procure the 
attendance of the witness by subpoena; or
    (5) Such exceptional circumstances exist as to make it desirable, in 
the interest of justice and with due regard to the importance of 
presenting the testimony of witnesses orally at the hearing, to allow 
the deposition to be used.



Sec. 4.1139  Written interrogatories to parties.

    (a) Any party may serve upon any other party written interrogatories 
to be answered in writing by the party served, or if the party served is 
a public or private corporation or a partnership or association or 
governmental agency, by any officer or agent, who shall furnish such 
information as is available to the party. A copy of the interrogatories, 
answers, and all related pleadings shall be served on the administrative 
law judge and upon all parties to the proceeding.
    (b) Each interrogatory shall be answered separately and fully in 
writing under oath or affirmation, unless it is objected to, in which 
event the reasons for objection shall be stated in lieu of an answer. 
The answer and objections shall be signed by the person making them. The 
party upon whom the interrogatories were served shall serve a copy of 
the answers and objections upon all parties to the proceeding within 30 
days after service of the interrogatories, or within such shorter or 
longer period as the administrative law judge may allow.
    (c) Interrogatories may relate to any matters which can be inquired 
into under Sec. 4.1132. An interrogatory otherwise proper is not 
necessarily objectionable merely because an answer to the interrogatory 
involves an opinion or contention that relates to fact or the 
application of law to fact, but the administrative law judge may order 
that such an interrogatory need not be answered until after designated 
discovery has been completed or until a prehearing conference or other 
later time.



Sec. 4.1140  Production of documents and things and entry upon land for inspection and other purposes.

    (a) Any party may serve on any other party a request to--
    (1) Produce and permit the party making the request, or a person 
acting on his behalf, to inspect and copy any designated documents, or 
to inspect and copy, test, or sample any tangible things within the 
scope of Sec. 4.1132 and which are in the possession, custody, or 
control of the party upon whom the request is served; or
    (2) Permit entry upon designated land or other property in the 
possession or control of the party upon whom the request is served for 
the purpose of inspection and measuring, surveying, photographing, 
testing, or sampling the property (including the air, water, and soil) 
or any designated object or operation thereon, within the scope of Sec. 
4.1132.
    (b) The request may be served on any party without leave of the 
administrative law judge.
    (c) The request shall--
    (1) Set forth the items to be inspected either by individual item or 
by category;
    (2) Describe each item or category with reasonable particularity; 
and
    (3) Specify a reasonable time, place, and manner of making the 
inspection and performing the related acts.
    (d) The party upon whom the request is served shall serve on the 
party submitting the request a written response within 30 days after 
service of the request.
    (e) The response shall state, with respect to each item or 
category--
    (1) That inspection and related activities will be permitted as 
requested; or
    (2) That objection is made in whole or in part, in which case the 
reasons for objection shall be stated.

[[Page 135]]



Sec. 4.1141  Admissions.

    (a) A party may serve upon any other party a written request for the 
admission, for purposes of the pending action only, of the genuineness 
and authenticity of any relevant document described in or attached to 
the request, or for the admission of the truth of any specified relevant 
matter of fact.
    (b) Each matter of which an admission is requested is admitted 
unless, within 30 days after service of the request or such shorter or 
longer time as the administrative law judge may allow, the party to whom 
the request is directed serves on the requesting party--
    (1) A sworn statement denying specifically the relevant matters of 
which an admission is requested;
    (2) A sworn statement setting forth in detail the reasons why he can 
neither truthfully admit nor deny them; or
    (3) Written objections on the ground that some or all of the matters 
involved are privileged or irrelevant or that the request is otherwise 
improper in whole or in part.
    (c) An answering party may not give lack of information or knowledge 
as a reason for failure to admit or deny unless he states that he has 
made reasonable inquiry and that the information known or readily 
obtainable by him is insufficient to enable him to admit or deny.
    (d) The party who has requested the admissions may move to determine 
the sufficiency of the answers or objections. Unless the administrative 
law judge determines that an objection is justified, he shall order that 
an answer be served. If the administrative law judge determines that an 
answer does not comply with the requirements of this section, he may 
order either that the matter is admitted or that an amended answer be 
served. The administrative law judge may, in lieu of these orders, 
determine that final disposition of the request be made at a prehearing 
conference or at a designated time prior to hearing.
    (e) Any matter admitted under this section is conclusively 
established unless the administrative law judge on motion permits 
withdrawal or amendment of the admission.
    (f) Any admission made by a party under this section is for the 
purpose of the pending action only and is not an admission by him for 
any other purpose nor may it be used against him in any other 
proceeding.

     Petitions for Review of Proposed Assessments of Civil Penalties



Sec. 4.1150  Who may file.

    Any person charged with a civil penalty may file a petition for 
review of a proposed assessment of that penalty with the Hearings 
Division, OHA, 801 North Quincy Street, Arlington, Va. 22203.

[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 4368, Jan. 30, 2002]



Sec. 4.1151  Time for filing.

    (a) A petition for review of a proposed assessment of a civil 
penalty must be filed within 30 days of receipt of the proposed 
assessment; or
    (b) If a timely request for a conference has been made pursuant to 
30 CFR 723.18 or 845.18, a petition for review must be filed within 30 
days from service of notice by the conference officer that the 
conference is deemed completed.
    (c) No extension of time will be granted for filing a petition for 
review of a proposed assessment of a civil penalty as required by 
paragraph (a) or (b) of this section. If a petition for review is not 
filed within the time period provided in paragraph (a) or (b) of this 
section, the appropriateness of the amount of the penalty, and the fact 
of the violation if there is no proceeding pending under section 525 of 
the Act to review the notice of violation or cessation order involved, 
shall be deemed admitted, the petition shall be dismissed, and the civil 
penalty assessed shall become a final order of the Secretary.

[43 FR 34386, Aug. 3, 1978, as amended at 51 FR 16321, May 2, 1986; 59 
FR 1488, Jan. 11, 1994]



Sec. 4.1152  Contents of petition; payment required.

    (a) The petition shall include--
    (1) A short and plain statement indicating the reasons why either 
the

[[Page 136]]

amount of the penalty or the fact of the violation is being contested;
    (2) If the amount of penalty is being contested based upon a 
misapplication of the civil penalty formula, a statement indicating how 
the civil penalty formula contained in 30 CFR part 723 or 845 was 
misapplied, along with a proposed civil penalty utilizing the civil 
penalty formula;
    (3) Identification by number of all violations being contested;
    (4) The identifying number of the cashier's check, certified check, 
bank draft, personal check, or bank money order accompanying the 
petition; and
    (5) A request for a hearing site.
    (b) The petition shall be accompanied by--
    (1) Full payment of the proposed assessment in the form of a 
cashier's check, certified check, bank draft, personal check or bank 
money order made payable to--Assessment Office, OSM--to be placed in an 
escrow account pending final determination of the assessment; and
    (2) On the face of the payment an identification by number of the 
violations for which payment is being tendered.
    (c) As required by section 518(c) of the act, failure to make timely 
payment of the proposed assessment in full shall result in a waiver of 
all legal rights to contest the violation or the amount of the penalty.
    (d) No extension of time will be granted for full payment of the 
proposed assessment. If payment is not made within the time period 
provided in Sec. 4.1151 (a) or (b), the appropriateness of the amount 
of the penalty, and the fact of the violation if there is no proceeding 
pending under section 525 of the Act of review the notice of violation 
or cessation order involved, shall be deemed admitted, the petition 
shall be dismissed, and the civil penalty assessed shall become a final 
order of the Secretary.

[43 FR 34386, Aug. 3, 1978, as amended at 51 FR 16321, May 2, 1986; 59 
FR 1488, Jan. 11, 1994]



Sec. 4.1153  Answer.

    OSM shall have 30 days from receipt of a copy of the petition within 
which to file an answer to the petition with the Hearings Division, OHA.



Sec. 4.1154  Review of waiver determination.

    (a) Within 10 days of the filing of a petition under this part, 
petitioner may move the administrative law judge to review the granting 
or denial of a waiver of the civil penalty formula pursuant to 30 CFR 
723.16 or 845.16.
    (b) The motion shall contain a statement indicating all alleged 
facts relevant to the granting or denial of the waiver;
    (c) Review shall be limited to the written determination of the 
Director of OSM granting or denying the waiver, the motion and responses 
to the motion. The standard of review shall be abuse of discretion.
    (d) If the administrative law judge finds that the Director of OSM 
abused his discretion in granting or denying the waiver, the 
administrative law judge shall hold the hearing on the petition for 
review of the proposed assessment required by section 518(b) of the act 
and make a determination pursuant to Sec. 4.1157.

[43 FR 34386, Aug. 3, 1978, as amended at 59 FR 1488, Jan. 11, 1994]



Sec. 4.1155  Burdens of proof in civil penalty proceedings.

    In civil penalty proceedings, OSM shall have the burden of going 
forward to establish a prima facie case as to the fact of the violation 
and the amount of the civil penalty and the ultimate burden of 
persuasion as to the amount of the civil penalty. The person who 
petitioned for review shall have the ultimate burden of persuasion as to 
the fact of the violation.

[53 FR 47694, Nov. 25, 1988]



Sec. 4.1156  Summary disposition.

    (a) In a civil penalty proceeding where the person against whom the 
proposed civil penalty is assessed fails to comply on time with any 
prehearing order of an administrative law judge, the administrative law 
judge shall issue an order to show cause why--
    (1) That person should not be deemed to have waived his right to a 
hearing; and

[[Page 137]]

    (2) The proceedings should not be dismissed and referred to the 
assessment officer.
    (b) If the order to show cause is not satisfied as required, the 
administrative law judge shall order the proceedings summarily dismissed 
and shall refer the case to the assessment officer who shall enter the 
assessment as the final order of the Department.
    (c) Where the person against whom the proposed civil penalty is 
assessed fails to appear at a hearing, that person will be deemed to 
have waived his right to a hearing and the administration law judge may 
assume for purposes of the assessment--
    (1) That each violation listed in the notice of violation or order 
occurred; and
    (2) The truth of any facts alleged in such notice or order.
    (d) In order to issue an initial decision assessing the appropriate 
penalty when the person against whom the proposed civil penalty is 
assessed fails to appear at the hearing, an administrative law judge 
shall either conduct an ex parte hearing or require OSM to furnish 
proposed findings of fact and conclusions of law.
    (e) Nothing in this section shall be construed to deprive the person 
against whom the penalty is assessed of his opportunity to have OSM 
prove the violations charged in open hearing with confrontation and 
cross-examination of witnesses, except where that person fails to comply 
with a prehearing order or fails to appear at the scheduled hearing.



Sec. 4.1157  Determination by administrative law judge.

    (a) The administrative law judge shall incorporate in his decision 
concerning the civil penalty, findings of fact on each of the four 
criteria set forth in 30 CFR 723.13 or 845.13, and conclusions of law.
    (b) If the administrative law judge finds that--
    (1) A violation occurred or that the fact of violation is 
uncontested, he shall establish the amount of the penalty, but in so 
doing, he shall adhere to the point system and conversion table 
contained in 30 CFR 723.13 and 723.14 or 845.13 and 845.14, except that 
the administrative law judge may waive the use of such point system 
where he determines that a waiver would further abatement of violations 
of the Act. However, the administrative law judge shall not waive the 
use of the point system and reduce the proposed assessment on the basis 
of an argument that a reduction in the proposed assessment could be used 
to abate other violations of the Act; or
    (2) No violation occurred, he shall issue an order that the proposed 
assessment be returned to the petitioner.
    (c) If the administrative law judge makes a finding that no 
violation occurred or if the administrative law judge reduces the amount 
of the civil penalty below that of the proposed assessment and a timely 
petition for review of his decision is not filed with the Board or the 
Board refuses to grant such a petition, the Department of the Interior 
shall have 30 days from the expiration of the date for filing a petition 
with the Board if no petition is filed, or 30 days from the date the 
Board refuses to grant such a petition, within which to remit the 
appropriate amount to the person who made the payment, with interest at 
the rate of 6 percent, or at the prevailing Department of the Treasury 
rate, whichever is greater.
    (d) If the administrative law judge increases the amount of the 
civil penalty above that of the proposed assessment, the administrative 
law judge shall order payment of the appropriate amount within 30 days 
of receipt of the decision.

[43 FR 34386, Aug. 3, 1978, as amended at 59 FR 1488, Jan. 11, 1994]



Sec. 4.1158  Appeals.

    Any party may petition the Board to review the decision of an 
administrative law judge concerning an assessment according to the 
procedures set forth in Sec. 4.1270.

   Review of Section 521 Notices of Violation and Orders of Cessation



Sec. 4.1160  Scope.

    These regulations govern applications for review of--
    (a) Notices of violation or the modification, vacation, or 
termination of a

[[Page 138]]

notice of violation under section 521(a)(3) of the Act; and
    (b) Orders of cessation which are not subject to expedited review 
under Sec. 4.1180 or the modification, vacation, or termination of such 
an order of cessation under section 521(a)(2) or section 521(a)(3).



Sec. 4.1161  Who may file.

    A permittee issued a notice or order by the Secretary pursuant to 
the provisions of section 521(a)(2) or section 521(a)(3) of the Act or 
any person having an interest which is or may be adversely affected by a 
notice or order subject to review under Sec. 4.1160 may file an 
application for review with the Hearings Division, OHA, 801 North Quincy 
Street, Arlington, Va. 22203.

[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 4368, Jan. 30, 2002]



Sec. 4.1162  Time for filing.

    (a) Any person filing an application for review under Sec. 4.1160 
et seq. shall file that application within 30 days of the receipt of a 
notice or order or within 30 days of receipt of notice of modification, 
vacation, or termination of such a notice or order. Any person not 
served with a copy of the document shall file the application for review 
within 40 days of the date of issuance of the document.
    (b) No extension of time will be granted for filing an application 
for review as provided by paragraph (a) of this section. If an 
application for review is not filed within the time period provided in 
paragraph (a) of this section, the application shall be dismissed.

[51 FR 16321, May 2, 1986]



Sec. 4.1163  Effect of failure to file.

    Failure to file an application for review of a notice of violation 
or order of cessation shall not preclude challenging the fact of 
violation during a civil penalty proceeding.



Sec. 4.1164  Contents of application.

    Any person filing an application for review shall incorporate in 
that application regarding each claim for relief--
    (a) A statement of facts entitling that person to administrative 
relief;
    (b) A request for specific relief;
    (c) A copy of any notice or order sought to be reviewed;
    (d) A statement as to whether the person requests or waives the 
opportunity for an evidentiary hearing; and
    (e) Any other relevant information.



Sec. 4.1165  Answer.

    (a) Where an application for review is filed by a permittee, OSM as 
well as any other person granted leave to intervene pursuant to Sec. 
4.1110 shall file an answer within 20 days of service of a copy of such 
application.
    (b) Where an application for review is filed by a person other than 
a permittee, the following shall file an answer within 20 days of 
service of a copy of such application--
    (1) OSM;
    (2) The permittee; or
    (3) Any other person granted leave to intervene pursuant to Sec. 
4.1110.



Sec. 4.1166  Contents of answer.

    An answer to an application for review shall incorporate--
    (a) A statement specifically admitting or denying the alleged facts 
stated by the applicant;
    (b) A statement of any other relevant facts;
    (c) A statement whether an evidentiary hearing is requested or 
waived; and
    (d) Any other relevant information.



Sec. 4.1167  Notice of hearing.

    Pursuant to section 525(a)(2) of the act, the applicant and other 
interested persons shall be given written notice of the time and place 
of the hearing at least 5 working days prior thereto.



Sec. 4.1168  Amendments to pleadings.

    (a) An application for review may be amended once as a matter of 
right prior to the filing of an answer and thereafter by leave of the 
administrative law judge upon proper motion.
    (b) Upon receipt of an initial or amended application for review or 
subsequent to granting leave to amend, the administrative law judge 
shall issue an order setting a time for filing an amended answer if the 
judge determines that such an answer is appropriate.

[[Page 139]]



Sec. 4.1169  Failure to state a claim.

    Upon proper motion or after the issuance of an order to show cause 
by the administrative law judge, an administrative law judge may dismiss 
at any time an application for review which fails to state a claim upon 
which administrative relief may be granted.



Sec. 4.1170  Related notices or orders.

    (a) An applicant for review shall file a copy of any subsequent 
notice or order which modifies, vacates, or terminates the notice or 
order sought to be reviewed within 10 days of receipt.
    (b) An applicant for review of a notice shall file a copy of an 
order of cessation for failure timely to abate the violation which is 
the subject of the notice under review within 10 days of receipt of such 
order.
    (c) If an applicant for review desires to challenge any subsequent 
notice or order, the applicant must file a separate application for 
review.
    (d) Applications for review of related notices or orders are subject 
to consolidation.



Sec. 4.1171  Burden of proof in review of section 521 notices or orders.

    (a) In review of section 521 notices of violation or orders of 
cessation or the modification, vacation, or termination thereof, 
including expedited review under Sec. 4.1180, OSM shall have the burden 
of going forward to establish a prima facie case as to the validity of 
the notice, order, or modification, vacation, or termination thereof.
    (b) The ultimate burden of persuasion shall rest with the applicant 
for review.

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



Sec. 4.1180  Purpose.

    The purpose of Sec. Sec. 4.1180-4.1187 is to govern applications 
filed under section 525(b) of the act for expedited review of orders of 
cessation for which temporary relief has not been granted under section 
525(c) or section 526(c) of the act. If a person is qualified to receive 
a 30-day decision under these regulations, he may waive that right and 
file an application under Sec. 4.1164, and the procedures in Sec. 
4.1160 et seq. shall apply. If there is a waiver as set forth in Sec. 
4.1186, the final administrative decision shall be issued within 120 
days of the filing of the application.



Sec. 4.1181  Who may file.

    (a) An application for review of an order of cessation may be filed 
under this section, whenever temporary relief has not been granted under 
section 525(c) or section 526(c) of the act, by--
    (1) A permittee who has been issued an order of cessation under 
section 521(a)(2) or section 521(a)(3) of the act; or
    (2) Any person having an interest which is or may be adversely 
affected by the issuance of an order of cessation under section 
521(a)(2) or section 521(a)(3) of the act.
    (b) A permittee or any person having an interest which is or may be 
adversely affected by a section 521(a)(2) or section 521(a)(3) order of 
cessation waives his right to expedited review upon being granted 
temporary relief pursuant to section 525(c) or section 526(c) of the 
act.



Sec. 4.1182  Where to file.

    The application shall be filed in the Hearings Division, 801 North 
Quincy Street, OHA, Arlington, Va. 22203.

[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 4368, Jan. 30, 2002]



Sec. 4.1183  Time for filing.

    (a) Any person intending to file an application for expedited review 
under section 525(b) of the act shall notify the field solicitor, 
Department of the Interior, for the region in which the mine site is 
located, within 15 days of receipt of the order. Any person not served 
with a copy of the order shall file notice of intention to file an 
application for review within 20 days of the date of issuance of the 
order.
    (b) Any person filing an application for review under Sec. 4.1184 
shall file the application within 30 days of receipt of the order. Any 
person not served with a copy of the order shall file an application for 
review within 40 days of the date of issuance of the order.

[[Page 140]]



Sec. 4.1184  Contents of application.

    (a) Any person filing an application for expedited review under 
section 525(b) of the act shall incorporate in that application 
regarding each claim for relief--
    (1) A statement of facts entitling that person to administrative 
relief;
    (2) A request for specific relief;
    (3) A specific statement which delineates each issue to be addressed 
by the applicant during the expedited proceeding;
    (4) A copy of the order sought to be reviewed;
    (5) A list identifying each of applicant's witnesses by name, 
address, and place of employment, including expert witnesses and the 
area of expertise to which they will address themselves at the hearing, 
and a detailed summary of their testimony;
    (6) Copies of all exhibits and other documentary evidence that the 
applicant intends to introduce as evidence at the hearing and 
descriptions of all physical exhibits and evidence which is not capable 
of being copied or attached; and
    (7) Any other relevant information.
    (b) If any applicant fails to comply with all the requirements of 
Sec. 4.1184(a), the administrative law judge may find that the 
applicant has waived the 30-day decision requirement or the 
administrative law judge shall order that the application be perfected 
and the application shall not be considered filed for purposes of the 
30-day decision until perfected. Failure to timely comply with the 
administrative law judge's order shall constitute a waiver of the 30-day 
decision.



Sec. 4.1185  Computation of time for decision.

    In computing the 30-day time period for administrative decision, 
intermediate Saturdays, Sundays, Federal legal holidays, and other 
nonbusiness days shall be excluded in the computation.



Sec. 4.1186  Waiver of the 30-day decision requirement.

    (a) Any person qualified to receive a 30-day decision may waive that 
right--
    (1) By filing an application pursuant to Sec. 4.1160-71;
    (2) By failing to comply with all the requirements of Sec. 
4.1184(a); or
    (3) In accordance with Sec. 4.1187(j).
    (b) Any person qualified to receive a 30-day decision shall waive 
that right--
    (1) By obtaining temporary relief pursuant to section 525(c) or 
section 526(c) of the act;
    (2) By failing to perfect an application pursuant to Sec. 
4.1184(b); or
    (3) In accordance with Sec. 4.1187(i).



Sec. 4.1187  Procedure if 30-day decision requirement is not waived.

    If the applicant does not waive the 30-day decision requirement of 
section 525(b) of the act, the following special rules shall apply--
    (a) The applicant shall serve all known parties with a copy of the 
application simultaneously with the filing of the application with OHA. 
If service is accomplished by mail, the applicant shall inform all known 
parties by telephone at the time of mailing that an application is being 
filed and shall inform the administrative law judge by telephone that 
such notice has been given. However, no ex parte communication as to the 
merits of the proceeding may be conducted with the administrative law 
judge.
    (b) Any party desiring to file a response to the application for 
review shall file a written response within 5 working days of service of 
the application.
    (c) If the applicant has requested a hearing, the administrative law 
judge shall act immediately upon receipt of the application to notify 
the parties of the time and place of the hearing at least 5 working days 
prior to the hearing date.
    (d) The administrative law judge may require the parties to submit 
proposed findings of fact and conclusions of law at the hearing which 
may be orally supplemented on the record at the hearing or, where 
proposed findings of fact and conclusions of law have not been submitted 
at the hearing, they may be orally presented for the record at the 
hearing.
    (e) The administrative law judge shall make an initial decision. He 
shall either rule from the bench on the application, orally stating the 
reasons for his decision or he shall issue a written

[[Page 141]]

decision. If the administrative law judge makes an oral ruling, his 
approval of the record of the hearing shall constitute his written 
decision. The decision of the administrative law judge must be issued 
within 15 days of the filing of the perfected application under Sec. 
4.1184.
    (f) If any party desires to appeal to the Board, such party shall--
    (1) If the administrative law judge makes an oral ruling, make an 
oral statement, within a time period as directed by the administrative 
law judge, that the decision is being appealed and request that the 
administrative law judge certify the record to the Board; or
    (2) If the administrative law judge issues a written decision after 
the close of the hearing, file a notice of appeal with the 
administrative law judge and with the Board within 2 working days of 
receipt of the administrative law judge's decision.
    (g) If the decision of the administrative law judge is appealed, the 
Board shall act immediately to issue an expedited briefing schedule, and 
the Board shall act expeditiously to review the record and issue its 
decision. The decision of the Board must be issued within 30 days of the 
date the perfected application is filed with OHA pursuant to Sec. 
4.1184.
    (h) If all parties waive the opportunity for a hearing and the 
administrative law judge determines that a hearing is not necessary, but 
the applicant does not waive the 30-day decision requirement, the 
administrative law judge shall issue an initial decision on the 
application within 15 days of receipt of the application. The decision 
shall contain findings of fact and an order disposing of the 
application. The decision shall be served upon all the parties and the 
parties shall have 2 working days from receipt of such decision within 
which to appeal to the Board. The Board shall issue its decision within 
30 days of the date the perfected application is filed with OHA pursuant 
to Sec. 4.1184.
    (i) If at any time after the initiation of this expedited procedure, 
the applicant requests a delay or acts in a manner so as to frustrate 
the expeditious nature of this proceeding or fails to comply with any 
requirement of Sec. 4.1187(a), such action shall constitute a waiver of 
the 30-day requirement of section 525(b) of the act.
    (j) If the applicant seeks to offer witnesses, exhibits, or 
testimony at the hearing in addition to those identified, submitted, 
described, or summarized in the application for expedited review 
perfected in accordance with the requirements of Sec. 4.1184, upon 
objection by an opposing party to such offer, the administrative law 
judge may allow such objecting party additional time in order to prepare 
for cross-examination of unidentified witnesses or to identify and 
prepare rebuttal evidence or otherwise uncover any additional prejudice 
which may result to such party. The administrative law judge may rule 
that the running of the 30-day time for decision is stayed for the 
period of any additional time allowed pursuant to this subsection or may 
determine that the applicant has waived his right to the 30-day 
decision.

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



Sec. 4.1190  Initiation of proceedings.

    (a) A proceeding on a show cause order issued by the Director of OSM 
pursuant to section 521(a)(4) of the Act shall be initiated by the 
Director of OSM filing a copy of such an order with the Hearings 
Division, OHA, 801 N. Quincy Street, Suite 300, Arlington, VA 22203, 
promptly after the order is issued to the permittee.
    (b) A show cause order filed with OHA shall set forth--
    (1) A list of the unwarranted or willful violations which contribute 
to a pattern of violations;
    (2) A copy of each order or notice which contains one or more of the 
violations listed as contributing to a pattern of violations;
    (3) The basis for determining the existence of a pattern or 
violations; and
    (4) Recommendations whether the permit should be suspended or 
revoked, including the length and terms of a suspension.

[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 4368, Jan. 30, 2002; 67 
FR 61510, Oct. 1, 2002]

[[Page 142]]



Sec. 4.1191  Answer.

    The permittee shall have 30 days from receipt of the order within 
which to file an answer with the Hearings Division, OHA, Arlington, Va.



Sec. 4.1192  Contents of answer.

    The permittee's answer to a show cause order shall contain a 
statement setting forth--
    (a) The reasons in detail why a pattern of violations does not exist 
or has not existed, including all reasons for contesting--
    (1) The fact of any of the violations alleged by OSM as constituting 
a pattern of violations;
    (2) The willfulness of such violations; or
    (3) Whether such violations were caused by the unwarranted failure 
of the permittee;
    (b) All mitigating factors the permittee believes exist in 
determining the terms of the revocation or the length and terms of the 
suspension;
    (c) Any other alleged relevant facts; and
    (d) Whether a hearing on the show cause order is desired.

[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 61510, Oct. 1, 2002]



Sec. 4.1193  Notice of hearing.

    If a hearing on the show cause order is requested, or if no hearing 
is requested but the administrative law judge determines that a hearing 
is necessary, the administrative law judge shall give thirty days 
written notice of the date, time, and place of the hearing to the 
Director, the permittee, the State regulatory authority, if any, and any 
intervenor.

[67 FR 61510, Oct. 1, 2002]



Sec. 4.1194  Burden of proof in suspension or revocation proceedings.

    In proceedings to suspend or revoke a permit, OSM shall have the 
burden of going forward to establish a prima facie case for suspension 
or revocation of the permit. The ultimate burden of persuasion that the 
permit should not be suspended or revoked shall rest with the permittee.

[43 FR 34386, Aug. 3, 1978. Redesignated at 67 FR 61510, Oct. 1, 2002]



Sec. 4.1195  Determination by the administrative law judge.

    (a) Upon a determination by the administrative law judge that a 
pattern of violations exists or has existed, the administrative law 
judge shall order the permit either suspended or revoked. In making such 
a determination, the administrative law judge need not find that all the 
violations listed in the show cause order occurred, but only that 
sufficient violations occurred to establish a pattern.
    (b) If the permit is suspended, the minimum suspension period shall 
be 3 working days unless the administrative law judge finds that 
imposition of the minimum suspension period would result in manifest 
injustice and would not further the purposes of the act. Also, the 
administrative law judge may impose preconditions to be satisfied prior 
to the suspension being lifted.
    (c) The decision of the administrative law judge shall be issued 
within 20 days following the date the hearing record is closed by the 
administrative law judge or within 20 days of receipt of the answer, if 
no hearing is requested by any party and the administrative law judge 
determines that no hearing is necessary.
    (d) At any stage of a suspension or revocation proceeding being 
conducted by an administrative law judge, the parties may enter into a 
settlement, subject to the approval of the administrative law judge.

[43 FR 34386, Aug. 3, 1978. Redesignated and amended at 67 FR 61510, 
Oct. 1, 2002]



Sec. 4.1196  Summary disposition.

    (a) In a proceeding under this section where the permittee fails to 
appear at a hearing, the permittee shall be deemed to have waived his 
right to a hearing and the administrative law judge may assume for 
purposes of the proceeding that--
    (1) Each violation listed in the order occurred;
    (2) Such violations were caused by the permittee's unwarranted 
failure or were willfully caused; and
    (3) A pattern of violations exists.
    (b) In order to issue an initial decision concerning suspension or 
revocation of the permit when the permittee

[[Page 143]]

fails to appear at the hearing, the administrative law judge shall 
either conduct an ex parte hearing or require OSM to furnish proposed 
findings of fact and conclusions of law.

[43 FR 34386, Aug. 3, 1978. Redesignated at 67 FR 61510, Oct. 1, 2002]



Sec. 4.1197  Appeals.

    Any party desiring to appeal the decision of the administrative law 
judge shall have 5 days from receipt of the administrative law judge's 
decision within which to file a notice of appeal with the Board. The 
Board shall act immediately to issue an expedited briefing schedule. The 
decision of the Board shall be issued within 60 days of the date the 
hearing record is closed by the administrative law judge or, if no 
hearing is held, within 60 days of the date the answer is filed.

[43 FR 34386, Aug. 3, 1978. Redesignated at 67 FR 61510, Oct. 1, 2002]

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



Sec. 4.1200  Filing of the application for review with the Office of Hearings and Appeals.

    (a) Pursuant to 30 CFR 865.13, within 7 days of receipt of an 
application for review of alleged discriminatory acts, OSM shall file a 
copy of the application in the Hearings Division, OHA, 801 N. Quincy 
Street, Suite 300, Arlington, VA 22203. OSM shall also file in the 
Hearings Division, OHA, Arlington, VA, a copy of any answer submitted in 
response to the application for review.
    (b) The application for review, as filed in the Hearings Division, 
OHA, shall be held in suspense until one of the following takes place--
    (1) A request for temporary relief is filed pursuant to Sec. 
4.1203;
    (2) A request is made by OSM for the scheduling of a hearing 
pursuant to 30 CFR 865.14(a);
    (3) A request is made by the applicant for the scheduling of a 
hearing pursuant to 30 CFR 865.14(a);
    (4) A request is made by the applicant for the scheduling of a 
hearing pursuant to 30 CFR 865.14(b);
    (5) A request is made by OSM that OHA close the case because OSM, 
the applicant, and the alleged discriminating person have entered into 
an agreement in resolution of the discriminatory acts and there has been 
compliance with such agreement.

[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 4368, Jan. 30, 2002; 67 
FR 61510, Oct. 1, 2002]



Sec. 4.1201  Request for scheduling of a hearing.

    (a) If OSM determines that a violation of section 703(a) of the act 
has probably occurred and was not resolved at the informal conference, 
it shall file with the Hearings Division, OHA, a request on behalf of 
the applicant that a hearing be scheduled. The request shall be filed 
within 10 days of the completion of the informal conference, or where no 
conference is held, within 10 days following the scheduled conference. 
Where OSM makes such a request, it shall represent the applicant in the 
administrative proceedings, unless the applicant desires to be 
represented by private counsel.
    (b) If OSM declines to request that a hearing be scheduled and to 
represent the applicant, it shall within 10 days of the completion of 
the informal conference, or where no conference is held, within 10 days 
following the scheduled conference, notify the applicant of his right to 
request the scheduling of a hearing on his own behalf. An applicant 
shall file a request for the scheduling of a hearing in the Hearings 
Division, OHA, within 30 days of service of such notice from OSM.
    (c) If no request for the scheduling of a hearing has been made 
pursuant to paragraph (a) or (b) of this section and 60 days have 
elapsed from the filing of the application for review with OSM, the 
applicant may file on his own behalf a request for the scheduling of a 
hearing with the main office of OHA. Where such a request is made, the 
applicant shall proceed on his own behalf, but OSM may intervene 
pursuant to Sec. 4.1110.



Sec. 4.1202  Response to request for the scheduling of a hearing.

    (a) Any person served with a copy of the request for the scheduling 
of a hearing shall file a response with the Hearings Division, OHA, 
Arlington,

[[Page 144]]

Va., within 20 days of service of such request.
    (b) If the alleged discriminating person has not filed an answer to 
the application, such person shall include with the response to the 
request for the scheduling of a hearing, a statement specifically 
admitting or denying the alleged facts set forth in the application.



Sec. 4.1203  Application for temporary relief from alleged discriminatory acts.

    (a) On or after 10 days from the filing of an application for review 
under this part, any party may file an application for temporary relief 
from alleged discriminatory acts.
    (b) The application shall be filed in the Hearings Division, OHA, 
Arlington, Va.
    (c) The application shall include--
    (1) A detailed written statement setting forth the reasons why 
relief should be granted;
    (2) A showing that the complaint of discrimination was not 
frivolously brought;
    (3) A description of any exigent circumstances justifying temporary 
relief; and
    (4) A statement of the specific relief requested.
    (d) All parties to the proceeding to which the application relates 
shall have 5 days from receipt of the application to file a written 
response.
    (e) The administrative law judge may convene a hearing on any issue 
raised by the application if he deems it appropriate.
    (f) The administrative law judge shall expeditiously issue an order 
or decision granting or denying such relief.
    (g) If all parties consent, before or after the commencement of any 
hearing on the application for temporary relief, the administrative law 
judge may order the hearing on the application for review of alleged 
discriminatory - acts to be advanced and consolidated with the hearing 
on the application for temporary relief.



Sec. 4.1204  Determination by administrative law judge.

    Upon a finding of a violation of section 703 of the act or 30 CFR 
865.11, the administrative law judge shall order the appropriate 
affirmative relief, including but not limited to--
    (a) The rehiring or reinstatement of the applicant to his former 
position with full rights and privileges, full backpay, and any special 
damages sustained as a result of the discrimination; and
    (b) All other relief which the administrative law judge deems 
appropriate to abate the violation or to prevent recurrence of 
discrimination.

[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 61510, Oct. 1, 2002]



Sec. 4.1205  Appeals.

    Any party aggrieved by a decision of an administrative law judge 
concerning an application for review of alleged discriminatory acts may 
appeal to the Board under procedures set forth in Sec. 4.1271 et seq.

                    Applications for Temporary Relief



Sec. 4.1260  Scope.

    These regulations contain the procedures for seeking temporary 
relief in section 525 review proceedings under the act. The special 
procedures for seeking temporary relief from an order of cessation are 
set forth in Sec. 4.1266. Procedures for seeking temporary relief from 
alleged discrimina- tory acts are covered in Sec. 4.1203.



Sec. 4.1261  When to file.

    An application for temporary relief may be filed by any party to a 
proceeding at any time prior to decision by an administrative law judge.



Sec. 4.1262  Where to file.

    The application shall be filed with the administrative law judge to 
whom the case has been assigned. If no assignment has been made, the 
application shall be filed in the Hearings Division, OHA, 801 North 
Quincy Street, Arlington, Va. 22203.

[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 4368, Jan. 30, 2002]

[[Page 145]]



Sec. 4.1263  Contents of application.

    The application shall include--
    (a) A detailed written statement setting forth the reasons why 
relief should be granted;
    (b) A showing that there is a substantial likelihood that the 
findings and decision of the administrative law judge in the matters to 
which the application relates will be favorable to the applicant;
    (c) A statement that the relief sought will not adversely affect the 
health or safety of the public or cause significant, imminent 
environmental harm to land, air, or water resources;
    (d) If the application relates to an order of cessation issued 
pursuant to section 521(a)(2) or section 521(a)(3) of the act, a 
statement of whether the requirement of section 525(c) of the act for 
decision on the application within 5 days is waived; and
    (e) A statement of the specific relief requested.



Sec. 4.1264  Response to application.

    (a) Except as provided in Sec. 4.1266(b), all parties to the 
proceeding to which the application relates shall have 5 days from the 
date of receipt of the application to file a written response.
    (b) Except as provided in Sec. 4.1266(b), the administrative law 
judge may hold a hearing on any issue raised by the application if he 
deems it appropriate.



Sec. 4.1265  Determination on application concerning a notice of violation issued pursuant to section 521(a)(3) of the act.

    Where an application has been filed requesting temporary relief from 
a notice of violation issued under section 521(a)(3) of the act, the 
administrative law judge shall expeditiously issue an order or decision 
granting or denying such relief.



Sec. 4.1266  Determination on application concerning an order of cessation.

    (a) If the 5-day requirement of section 525(c) of the act is waived, 
the administrative law judge shall expeditiously conduct a hearing and 
render a decision on the application.
    (b) If there is no waiver of the 5-day requirement of section 525(c) 
of the act, the following special rules shall apply--
    (1) The 5-day time for decision shall not begin to run until the 
application is filed pursuant to Sec. 4.1262 or a copy of the 
application is received by the field solicitor for the region in which 
the mine site subject to the order is located, whichever occurs at a 
later date (see Sec. 4.1109 for addresses);
    (2) The application shall include an affidavit stating that 
telephone notice has been given to the field office of OSM serving the 
state in which the minesite subject to the order is located. The 
telephone notice shall identify the mine, the mine operator, the date 
and number of the order from which relief is requested, the name of the 
OSM inspector involved, and the name and telephone number of the 
applicant. OSM's field offices and their numbers follow:

Albuquerque Field Office (serving Arizona, California, and New Mexico) 
(505) 248-5070.
Big Stone Gap Field Office (serving Virginia) (276) 523-4303.
Birmingham Field Office (serving Alabama and Mississippi) (205) 290-7282 
(ext. 16).
Casper Field Office (serving Idaho, Montana, North Dakota, South Dakota, 
and Wyoming) (307) 261-6550.
Charleston Field Office (serving West Virginia) (304) 347-7158.
Columbus Team Office (serving Maryland, Michigan, and Ohio) (412) 937-
2153.
Harrisburg Field Office (serving Massachusetts, Pennsylvania, and Rhode 
Island) (717) 782-4036.
Knoxville Field Office (serving Georgia, Tennessee, and North Carolina) 
(865) 545-4103 (ext. 186).
Lexington Field Office (serving Kentucky) (859) 260-8402.
Mid-Continent Regional Coordinating Center (serving Iowa, Kansas, and 
Missouri) (618) 463-6460.
Olympia Office (serving Washington) (360) 753-9538.
Tulsa Field Office (serving Arkansas, Louisiana, Oklahoma, and Texas) 
(918) 581-6431 (ext. 23).
Western Regional Coordinating Center (serving Alaska, Colorado, Oregon, 
and Utah) (303) 844-1400 (ext. 1424).

    (3) Prior to or at the hearing, the applicant shall file with OHA an 
affidavit stating the date upon which the copy of the application was 
delivered to the office of the field solicitor or the applicant may make 
an oral statement at

[[Page 146]]

the hearing setting forth that information. For purposes of the 
affidavit or statement the applicant may rely upon telephone 
confirmation by the office of the field solicitor that the application 
was received.
    (4) In addition to the service requirements of Sec. 4.1266(b) (1) 
and (2), the applicant shall serve any other parties with a copy of the 
application simultaneously with the filing of the application. If 
service is accomplished by mail, the applicant shall inform such other 
parties by telephone at the time of mailing that an application is being 
filed, the contents of the application, and with whom the application 
was filed.
    (5) The field solicitor and all other parties may indicate their 
objection to the application by communicating such objection to the 
administrative law judge and the applicant by telephone. However, no ex 
parte communication as to the merits of the proceeding may be conducted 
with the administrative law judge. The field solicitor and all other 
parties shall simultaneously reduce their objections to writing. The 
written objections must be immediately filed with the administrative law 
judge and immediately served upon the applicant.
    (6) Upon receipt of communication that there is an objection to the 
request, the administrative law judge shall immediately order a 
location, time, and date for the hearing by communicating such 
information to the field solicitor, all other parties, and the applicant 
by telephone. The administrative law judge shall reduce such 
communications to writing in the form of a memorandum to the file.
    (7) If a hearing is held--
    (i) The administrative law judge may require the parties to submit 
proposed findings of fact and conclusions of law at the hearing which 
may be orally supplemented on the record at the hearing or where written 
proposed findings of fact and conclusions of law have not been submitted 
at the hearing, they may be orally presented for the record at the 
hearing.
    (ii) The administrative law judge shall either rule from the bench 
on the application, orally stating the reasons for his decision or he 
shall within 24 hours of completion of the hearing issue a written 
decision. If the administrative law judge makes an oral ruling, his 
approval of the record of the hearing shall constitute his written 
decision.
    (8) The order or decision of the administrative law judge shall be 
issued within 5 working days of the receipt of the application for 
temporary relief.
    (9) If at any time after the initiation of this expedited procedure, 
the applicant requests a delay or acts in a manner so as to frustrate 
the expeditious nature of this proceeding or fails to supply the 
information required by Sec. 4.1263 such action shall constitute a 
waiver of the 5-day requirement of section 525(c) of the act.

[43 FR 34386, Aug. 3, 1978, as amended at 49 FR 7565, Mar. 1, 1984; 59 
FR 1489, Jan. 11, 1994; 67 FR 61510, Oct. 1, 2002]



Sec. 4.1267  Appeals.

    (a) Any party desiring to appeal a decision of an administrative law 
judge granting temporary relief may appeal to the Board.
    (b) Any party desiring to appeal a decision of an administrative law 
judge denying temporary relief may appeal to the Board or, in the 
alternative, may seek judicial review pursuant to section 526(a) of the 
act.
    (c) The Board shall issue an expedited briefing schedule and shall 
issue a decision on the appeal expeditiously.

[43 FR 34386, Aug. 3, 1978, as amended at 45 FR 50753, July 31, 1980]

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



Sec. 4.1270  Petition for discretionary review of a proposed civil penalty.

    (a) Any party may petition the Board to review an order or decision 
by an administrative law judge disposing of a civil penalty proceeding 
under Sec. 4.1150.
    (b) A petition under this section shall be filed on or before 30 
days from the date of receipt of the order or decision sought to be 
reviewed and the time for filing may not be extended.
    (c) A petitioner under this section shall list the alleged errors of 
the administrative law judge and shall attach

[[Page 147]]

a copy of the order or decision sought to be reviewed.
    (d) Any party may file with the Board a response to the petition for 
review within 10 days of receipt of a copy of such petition.
    (e) Not later than 30 days from the filing of a petition under this 
section, the Board shall grant or deny the petition in whole or in part.
    (f) If the petition is granted, the rules in Sec. Sec. 4.1273 
through 4.1277 are applicable and the Board shall use the point system 
and conversion table contained in 30 CFR part 723 or 845 in 
recalculating assessments; however, the Board shall have the same 
authority to waive the civil penalty formula as that granted to 
administrative law judges in Sec. 4.1157(b)(1). If the petition is 
denied, the decision of the administrative law judge shall be final for 
the Department, subject to Sec. 4.5.

[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 61511, Oct. 1, 2002]



Sec. 4.1271  Notice of appeal.

    (a) Any aggrieved party may file a notice of appeal from an order or 
decision of an administrative law judge disposing of a proceeding under 
Sec. Sec. 4.1160 through 4.1171, 4.1200 through 4.1205, 4.1260 through 
4.1267, 4.1290 through 4.1296, and 4.1350 through 4.1356.
    (b) Except in an expedited review proceeding under Sec. 4.1180, or 
in a suspension or revocation proceeding under Sec. 4.1190, a notice of 
appeal shall be filed with the Board on or before 30 days from the date 
of receipt of the order or decision sought to be reviewed and the time 
for filing may not be extended.

[43 FR 34386, Aug. 3, 1978, as amended at 59 FR 1489, Jan. 11, 1994]



Sec. 4.1272  Interlocutory appeals.

    (a) If a party has sought certification under Sec. 4.1124, that 
party may petition the Board for permission to appeal from an 
interlocutory ruling by an administrative law judge.
    (b) A petition under this section shall be in writing and not exceed 
10 pages in length.
    (c) If the correctness of the ruling sought to be reviewed involves 
a controlling issue of law the resolution of which will materially 
advance final disposition of the case, the Board may grant the petition.
    (d) Upon granting a petition under this section, the Board may 
dispense with briefing or issue a briefing schedule.
    (e) Unless the Board or the administrative law judge orders 
otherwise, an interlocutory appeal shall not operate as a stay of 
further proceedings before the judge.
    (f) In deciding an interlocutory appeal, the Board shall confine 
itself to the issue presented on appeal.
    (g) The Board shall promptly decide appeals under this section.
    (h) Upon affirmance, reversal or modification of the administrative 
law judge's interlocutory ruling or order, the jurisdiction of the Board 
shall terminate, and the case shall be remanded promptly to the 
administrative law judge for further proceedings.



Sec. 4.1273  Briefs.

    (a) Unless the Board orders otherwise, an appellant's brief is due 
on or before 30 days from the date of receipt of notice by the appellant 
that the Board has agreed to exercise discretionary review authority 
pursuant to Sec. 4.1270 or a notice of appeal is filed.
    (b) If any appellant fails to file a timely brief, an appeal under 
this part may be subject to summary dismissal.
    (c) An appellant shall state specifically the rulings to which there 
is an objection, the reasons for such objections, and the relief 
requested. The failure to specify a ruling as objectionable may be 
deemed by the Board as a waiver of objection.
    (d) Unless the Board orders otherwise, within 20 days after service 
of appellant's brief, any other party to the proceeding may file a 
brief.
    (e) If any argument is based upon the evidence of record and there 
is a failure to include specific record citations, when available, the 
Board need not consider the arguments.
    (f) Further briefing may take place by permission of the Board.
    (g) Unless the Board provides otherwise, appellant's brief shall not 
exceed 50 typed pages and an appellee's brief shall not exceed 25 typed 
pages.

[[Page 148]]



Sec. 4.1274  Remand.

    The Board may remand cases if further proceedings are required.



Sec. 4.1275  Final decisions.

    The Board may adopt, affirm, modify, set aside, or reverse any 
finding of fact, conclusion of law, or order of the administrative law 
judge.



Sec. 4.1276  Reconsideration.

    (a) A party may move for reconsideration under Sec. 4.21(d); 
however, the motion shall be filed with the Board within 30 days of the 
date of the decision.
    (b) The filing of a petition for reconsideration shall not stay the 
effect of any decision or order and shall not affect the finality of any 
decision or order for purposes of judicial review.

[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 61511, Oct. 1, 2002]

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



Sec. 4.1280  Scope.

    This section is applicable to appeals from decisions of the Director 
of OSM concerning small operator exemptions under 30 CFR 710.12(h) and 
to other appeals which are not required by the Act to be determined by 
formal adjudication under the procedures set forth in 5 U.S.C. 554.



Sec. 4.1281  Who may appeal.

    Any person who is or may be adversely affected by a written decision 
of the Director of OSM or his delegate may appeal to the Board where the 
decision specifically grants such right of appeal.



Sec. 4.1282  Appeals; how taken.

    (a) A person appealing under this section shall file a written 
notice of appeal with the office of the OSM official whose decision is 
being appealed and at the same time shall send a copy of the notice to 
the Board of Land Appeals, 801 North Quincy Street, Arlington, Va. 
22203.
    (b) The notice of appeal shall be filed within 20 days from the date 
of receipt of the decision. If the person appealing has not been served 
with a copy of the decision, such appeal must be filed within 30 days of 
the date of the decision.
    (c) The notice of appeal shall indicate that an appeal is intended 
and must identify the decision being appealed. The notice should include 
the serial number or other identification of the case and the date of 
the decision. The notice of appeal may include a statement of reasons 
for the appeal and any arguments the appellant desires to make.
    (d) If the notice of appeal did not include a statement of reasons 
for the appeal, such a statement shall be filed with the Board within 20 
days after the notice of appeal was filed. In any case, the appellant 
shall be permitted to file with the Board additional statements of 
reasons and written arguments or briefs within the 20-day period after 
filing the notice of appeal.

[43 FR 34386, Aug. 3, 1978, as amended at 49 FR 7565, Mar. 1, 1984; 67 
FR 4368, Jan. 30, 2002]



Sec. 4.1283  Service.

    (a) The appellant shall serve personally or by certified mail, 
return receipt requested, a copy of the notice of appeal and a copy of 
any statement of reasons, written arguments, or other documents on each 
party within 15 days after filing the document. Proof of service shall 
be filed with the Board within 15 days after service.
    (b) Failure to serve may subject the appeal to summary dismissal 
pursuant to Sec. 4.1285.



Sec. 4.1284  Answer.

    (a) Any party served with a notice of appeal who wishes to 
participate in the proceedings on appeal shall file an answer with the 
Board within 20 days after service of the notice of appeal or statement 
of reasons where such statement was not included in the notice of 
appeal.
    (b) If additional reasons, written arguments or other documents are 
filed by the appellant, a party shall have 20 days after service thereof 
within which to answer. The answer shall state the reasons the party 
opposes or supports the appeal.



Sec. 4.1285  Summary dismissal.

    An appeal shall be subject to summary dismissal, in the discretion 
of the

[[Page 149]]

Board, for failure to file or serve, upon all persons required to be 
served, a notice of appeal or a statement of reasons for appeal.



Sec. 4.1286  Request for hearings.

    (a) Any party may request the Board to order a hearing before an 
administrative law judge in order to present evidence on an issue of 
fact. Such a request shall be made in writing and filed with the Board 
within 20 days after the answer is due. Copies of the request shall be 
served in accordance with Sec. 4.1283.
    (b) The allowance of a request for a hearing is within the 
discretion of the Board, and the Board may, on its own motion, refer any 
case to an administrative law judge for a hearing on an issue of fact. 
If a hearing is ordered, the Board shall specify the issues upon which 
the hearing is to be held.

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



Sec. 4.1290  Who may file.

    (a) Any person may file a petition for award of costs and expenses 
including attorneys' fees reasonably incurred as a result of that 
person's participation in any administrative proceeding under the Act 
which results in--
    (1) A final order being issued by an administrative law judge; or
    (2) A final order being issued by the Board.
    (b) [Reserved]



Sec. 4.1291  Where to file; time for filing.

    The petition for an award of costs and expenses including attorneys' 
fees must be filed with the administrative law judge who issued the 
final order, or if the final order was issued by the Board, with the 
Board, within 45 days of receipt of such order. Failure to make a timely 
filing of the petition may constitute a waiver of the right to such an 
award.



Sec. 4.1292  Contents of petition.

    (a) A petition filed under this section shall include the name of 
the person from whom costs and expenses are sought and the following 
shall be submitted in support of the petition--
    (1) An affidavit setting forth in detail all costs and expenses 
including attorneys' fees reasonably incurred for, or in connection 
with, the person's participation in the proceeding;
    (2) Receipts or other evidence of such costs and expenses; and
    (3) Where attorneys' fees are claimed, evidence concerning the hours 
expended on the case, the customary commercial rate of payment for such 
services in the area, and the experience, reputation and ability of the 
individual or individuals performing the services.
    (b) [Reserved]



Sec. 4.1293  Answer.

    Any person served with a copy of the petition shall have 30 days 
from service of the petition within which to file an answer to such 
petition.



Sec. 4.1294  Who may receive an award.

    Appropriate costs and expenses including attorneys' fees may be 
awarded--
    (a) To any person from the permittee, if--
    (1) The person initiates or participates in any administrative 
proceeding reviewing enforcement actions upon a finding that a violation 
of the Act, regulations, or permit has occurred, or that an imminent 
hazard existed, and the administrative law judge or Board determines 
that the person made a substantial contribution to the full and fair 
determination of the issues, except that a contribution of a person who 
did not initiate a proceeding must be separate and distinct from the 
contribution made by a person initiating the proceeding; or
    (2) The person initiates an application for review of alleged 
discrimina- tory acts, pursuant to 30 CFR part 830, upon a finding of 
discriminatory discharge or other acts of discrimination.
    (b) From OSM to any person, other than a permittee or his 
representative, who initiates or participates in any proceeding under 
the Act, and who prevails in whole or in part, achieving at least some 
degree of success on the merits, upon a finding that such person made a 
substantial contribution to a full and fair determination of the issues.

[[Page 150]]

    (c) To a permittee from OSM when the permittee demonstrates that OSM 
issued an order of cessation, a notice of violation or an order to show 
cause why a permit should not be suspended or revoked, in bad faith and 
for the purpose of harassing or embarrassing the permittee; or
    (d) To a permittee from any person where the permittee demonstrates 
that the person initiated a proceeding under section 525 of the Act or 
participated in such a proceeding in bad faith for the purpose of 
harassing or embarrassing the permittee.
    (e) To OSM where it demonstrates that any person applied for review 
pursuant to section 525 of the Act or that any party participated in 
such a proceeding in bad faith and for the purpose of harassing or 
embarrassing the Government.

[43 FR 34386, Aug. 3, 1978, as amended at 50 FR 47224, Nov. 15, 1985]



Sec. 4.1295  Awards.

    An award under these sections may include--
    (a) All costs and expenses, including attorneys' fees and expert 
witness fees, reasonably incurred as a result of initiation and/or 
participation in a proceeding under the Act; and
    (b) All costs and expenses, including attorneys' fees and expert 
witness fees, reasonably incurred in seeking the award in OHA.



Sec. 4.1296  Appeals.

    Any person aggrieved by a decision concerning the award of costs and 
expenses in an administrative proceeding under this Act may appeal such 
award to the Board under procedures set forth in Sec. 4.1271 et seq., 
unless the Board has made the initial decision concerning such an award.

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

    Source: 53 FR 8754, Mar. 17, 1988, unless otherwise noted.



Sec. 4.1300  Scope.

    These regulations govern administrative review of proposed 
individual civil penalty assessments under section 518(f) of the Act 
against a director, officer, or agent of a corporation.



Sec. 4.1301  Who may file.

    Any individual served a notice of proposed individual civil penalty 
assessment may file a petition for review with the Hearings Division, 
Office of Hearings and Appeals, U.S. Department of the Interior, 801 
North Quincy Street, Arlington, VA 22203. Phone: 703-235-3800.

[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 4368, Jan. 30, 2002]



Sec. 4.1302  Time for filing.

    (a) A petition for review of a notice of proposed individual civil 
penalty assessment must be filed within 30 days of its service on the 
individual.
    (b) No extension of time will be granted for filing a petition for 
review of a notice of proposed individual civil penalty assessment. 
Failure to file a petition for review within the time period provided in 
paragraph (a) shall be deemed an admission of liability by the 
individual, whereupon the notice of proposed assessment shall become a 
final order of the Secretary and any tardy petition shall be dismissed.



Sec. 4.1303  Contents and service of petition.

    (a) An individual filing a petition for review of a notice of 
proposed individual civil penalty assessment shall provide--
    (1) A concise statement of the facts entitling the individual to 
relief;
    (2) A copy of the notice of proposed assessment;
    (3) A copy of the notice(s) of violation, order(s) or final 
decision(s) the corporate permittee is charged with failing or refusing 
to comply with that have been served on the individual by OSM; and
    (4) A statement whether the individual requests or waives the 
opportunity for an evidentiary hearing.
    (b) Copies of the petition shall be served in accordance with Sec. 
4.1109 (a) and (b) of this part.

[53 FR 8754, Mar. 17, 1988; 53 FR 10036, Mar. 28, 1988]

[[Page 151]]



Sec. 4.1304  Answer, motion, or statement of OSM.

    Within 30 days from receipt of a copy of a petition, OSM shall file 
with the Hearings Division an answer or motion, or a statement that it 
will not file an answer or motion, in response to the petition.



Sec. 4.1305  Amendment of petition.

    (a) An individual filing a petition may amend it once as a matter of 
right before receipt by the individual of an answer, motion, or 
statement of OSM made in accordance with Sec. 4.1304 of this part. 
Thereafter, a motion for leave to amend the petition shall be filed with 
the administrative law judge.
    (b) OSM shall have 30 days from receipt of a petition amended as a 
matter of right to file an answer, motion, or statement in accordance 
with Sec. 4.1304 of this part. If the administrative law judge grants a 
motion to amend a petition, the time for OSM to file an answer, motion, 
or statement shall be set forth in the order granting the motion to 
amend.



Sec. 4.1306  Notice of hearing.

    The administrative law judge shall give notice of the time and place 
of the hearing to all interested parties. The hearing shall be of record 
and governed by 5 U.S.C. 554.



Sec. 4.1307  Elements; burdens of proof.

    (a) OSM shall have the burden of going forward with evidence to 
establish a prima facie case that:
    (1) A corporate permittee either violated a condition of a permit or 
failed or refused to comply with an order issued under section 521 of 
the Act or an order incorporated in a final decision by the Secretary 
under the Act (except an order incorporated in a decision issued under 
sections 518(b) or 703 of the Act or implementing regulations), unless 
the fact of violation or failure or refusal to comply with an order has 
been upheld in a final decision in a proceeding under Sec. 4.1150 
through 4.1158, Sec. 4.1160 through 4.1171, or Sec. 4.1180 through 
4.1187, and Sec. 4.1270 or Sec. 4.1271 of this part, and the 
individual is one against whom the doctrine of collateral estoppel may 
be applied to preclude relitigation of fact issues;
    (2) The individual, at the time of the violation, failure or 
refusal, was a director, officer, or agent of the corporation; and
    (3) The individual willfully and knowingly authorized, ordered, or 
carried out the corporate permittee's violation or failure or refusal to 
comply.
    (b) The individual shall have the ultimate burden of persuasion by a 
preponderance of the evidence as to the elements set forth in paragraph 
(a)(1) of this section.
    (c) OSM shall have the ultimate burden of persuasion by a 
preponderance of the evidence as to the elements set forth in paragraphs 
(a)(2) and (a)(3) of this section and as to the amount of the individual 
civil penalty.

[53 FR 8754, Mar. 17, 1988, as amended at 68 FR 66728, Nov. 28, 2003]



Sec. 4.1308  Decision by administrative law judge.

    (a) The administrative law judge shall issue a written decision 
containing findings of fact and conclusions of law on each of the 
elements set forth in Sec. 4.1307 of this part.
    (b) If the administrative law judge concludes that the individual is 
liable for an individual civil penalty, he shall order that it be paid 
in accordance with 30 CFR 724.18 or 846.18, absent the filing of a 
petition for discretionary review in accordance with Sec. 4.1309 of 
this part.



Sec. 4.1309  Petition for discretionary review.

    (a) Any party may petition the Board to review an order or decision 
by an administrative law judge disposing of an individual civil penalty 
proceeding under Sec. 4.1308 of this part.
    (b) A petition under this section shall be filed on or before 30 
days from the date of receipt of the order or decision sought to be 
reviewed, and the time for filing shall not be extended.
    (c) A petitioner under this section shall list the alleged errors of 
the administrative law judge and shall attach a copy of the order or 
decision sought to be reviewed.
    (d) Any party may file with the Board a response to the petition for 
review within 10 days of receipt of a copy of such petition.

[[Page 152]]

    (e) Not later than 30 days from the filing of a petition for review 
under this section, the Board shall grant or deny the petition in whole 
or in part.
    (f) If the petition for review is granted the rules in Sec. Sec. 
4.1273-4.1276 of this part are applicable. If the petition is denied, 
the decision of the administrative law judge is final for the 
Department, subject to Sec. 4.5 of this part.
    (g) Payment of a penalty is due in accordance with 30 CFR 724.18 or 
846.18.

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

    Source: 52 FR 39526, Oct. 22, 1987, unless otherwise noted.



Sec. 4.1350  Scope.

    These rules set forth the procedures for obtaining review of a 
preliminary finding by OSM under section 510(c) of the Act and 30 CFR 
774.11(c) of an applicant's or operator's permanent permit 
ineligibility.

[67 FR 61511, Oct. 1, 2002]



Sec. 4.1351  Preliminary finding by OSM.

    (a) If OSM determines that an applicant or operator controls or has 
controlled surface coal mining and reclamation operations with a 
demonstrated pattern of willful violations and the violations are of 
such nature and duration with such resulting irreparable damage to the 
environment as to indicate an intent not to comply with the Act, its 
implementing regulations, the regulatory program, or the permit, OSM 
must serve a preliminary finding of permanent permit ineligibility on 
the applicant or operator.
    (b) OSM must serve the preliminary finding by certified mail, or by 
overnight delivery service if the applicant or operator has agreed to 
bear the expense for this service. The preliminary finding must 
specifically state the violations upon which it is based.

[67 FR 61511, Oct. 1, 2002]



Sec. 4.1352  Who may file; where to file; when to file.

    (a) The applicant or operator may file a request for hearing on 
OSM's preliminary finding of permanent permit ineligibility.
    (b) The request for hearing must be filed with the Hearings 
Division, Office of Hearings and Appeals, U.S. Department of the 
Interior, 801 N. Quincy Street, Suite 300, Arlington, Virginia 22203 
(telephone 703-235-3800), within 30 days of receipt of the preliminary 
finding by the applicant or operator.
    (c) Failure to file a timely request constitutes a waiver of the 
opportunity for a hearing before OSM makes its final finding concerning 
permanent permit ineligibility. Any untimely request will be denied.

[67 FR 61511, Oct. 1, 2002]



Sec. 4.1353  Contents of request.

    The request for hearing shall include--
    (a) A clear statement of the facts entitling the one requesting the 
hearing to administrative relief;
    (b) An explanation of the alleged errors in OSM's preliminary 
finding; and
    (c) Any other relevant information.



Sec. 4.1354  Determination by the administrative law judge.

    The administrative law judge shall promptly set a time and place for 
and give notice of the hearing to the applicant or operator and shall 
issue a decision within 60 days of the filing of a request for hearing. 
The hearing shall be of record and governed by 5 U.S.C. 554.



Sec. 4.1355  Burden of proof.

    OSM shall have the burden of going forward to establish a prima 
facie case and the ultimate burden of persuasion as to the existence of 
a demonstrated pattern of willful violations of such nature and duration 
with such resulting irreparable damage to the environment as to indicate 
an intent not to comply with the Act, its implementing regulations, the 
regulatory program, or the permit.

[67 FR 61511, Oct. 1, 2002]

[[Page 153]]



Sec. 4.1356  Appeals.

    (a) Any party aggrieved by the decision of the administrative law 
judge may appeal to the Board under procedures set forth in Sec. 4.1271 
et seq. of this subpart, except that the notice of appeal must be filed 
within 20 days of receipt of the administrative law judge's decision.
    (b) The Board shall order an expedited briefing schedule and shall 
issue a decision within 45 days of the filing of the appeal.

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

    Source: 56 FR 2143, Jan. 22, 1991, unless otherwise noted.



Sec. 4.1360  Scope.

    These rules set forth the exclusive procedures for administrative 
review of decisions by OSMRE concerning--
    (a) Applications for new permits, including applications under 30 
CFR part 785, and the terms and conditions imposed or not imposed in 
permits by those decisions. They do not apply to decisions on 
applications to mine on Federal lands in states where the terms of a 
cooperative agreement provide for the applicability of alternative 
administrative procedures (see 30 CFR 775.11(c)), but they do apply to 
OSMRE decisions on applications for Federal lands in states with 
cooperative agreements where OSMRE as well as the state issue Federal 
lands permits;
    (b) Applications for permit revisions, permit renewals, and the 
transfer, assignment, or sale of rights granted under permit;
    (c) Permit revisions ordered by OSMRE;
    (d) Applications for coal exploration permits; and
    (e) Ineligibility for a permit under section 510(c) of the Act and 
30 CFR 773.12.

[56 FR 2143, Jan. 22, 1991; 56 FR 5061, Feb. 7, 1991, as amended at 67 
FR 61511, Oct. 1, 2002]



Sec. 4.1361  Who may file.

    The applicant, permittee, or any person having an interest which is 
or may be adversely affected by a decision of OSMRE set forth in Sec. 
4.1360 may file a request for review of that decision.



Sec. 4.1362  Where to file; when to file.

    (a) The request for review shall be filed with the Hearings 
Division, Office of Hearings and Appeals, U.S. Department of the 
Interior, 801 North Quincy Street, Arlington, Virginia 22203 (phone 703-
235-3800), within 30 days after the applicant or permittee is notified 
by OSMRE of the written decision by certified mail or by overnight 
delivery service if the applicant or permittee has agreed to bear the 
expense for this service.
    (b) Failure to file a request for review within the time specified 
in paragraph (a) of this section shall constitute a waiver of a hearing 
and the request shall be dismissed.

[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 4368, Jan. 30, 2002]



Sec. 4.1363  Contents of request; amendment of request; responses.

    (a) The request for review shall include--
    (1) A clear statement of the facts entitling the one requesting 
review to administrative relief;
    (2) An explanation of each specific alleged error in OSMRE's 
decision, including reference to the statutory and regulatory provisions 
allegedly violated;
    (3) A request for specific relief;
    (4) A statement whether the person requests or waives the 
opportunity for an evidentiary hearing; and
    (5) Any other relevant information.
    (b) All interested parties shall file an answer or motion in 
response to a request for review, or a statement that no answer or 
motion will be filed, within 15 days of receipt of the request 
specifically admitting or denying facts or alleged errors stated in the 
request and

[[Page 154]]

setting forth any other matters to be considered on review.
    (c) A request for review may be amended once as a matter of right 
prior to filing of an answer or motion or statement filed in accordance 
with paragraph (b) of this section. Thereafter, a motion for leave to 
amend the request shall be filed with the Administrative Law Judge. An 
Administrative Law Judge may not grant a motion for leave to amend 
unless all parties agree to an extension of the date of commencement of 
the hearing under Sec. 4.1364. A request for review may not be amended 
after a hearing commences.
    (d) An interested party shall have 10 days from filing of a request 
for review that is amended as a matter of right or the time remaining 
for response to the original request, whichever is longer, to file an 
answer, motion, or statement in accordance with paragraph (b) of this 
section. If the Administrative Law Judge grants a motion to amend a 
request for review, the time for an interested party to file an answer, 
motion, or statement shall be set forth in the order granting it.
    (e) Failure of any party to comply with the requirements of 
paragraph (a) or (b) of this section may be regarded by an 
Administrative Law Judge as a waiver by that party of the right to 
commencement of a hearing within 30 days of the filing of a request for 
review if the Administrative Law Judge concludes that the failure was 
substantial and that another party was prejudiced as a result.

[56 FR 2143, Jan. 22, 1991; 56 FR 5061, Feb. 7, 1991]



Sec. 4.1364  Time for hearing; notice of hearing; extension of time for hearing.

    Unless all parties agree in writing to an extension or waiver, the 
Administrative Law Judge shall commence a hearing within 30 days of the 
date of the filing of the request for review or amended request for 
review and shall simultaneously notify the applicant or permittee and 
all interested parties of the time and place of such hearing before the 
hearing commences. The hearing shall be of record and governed by 5 
U.S.C. 554. An agreement to waive the time limit for commencement of a 
hearing may specify the length of the extension agreed to.



Sec. 4.1365  Status of decision pending administrative review.

    The filing of a request for review shall not stay the effectiveness 
of the OSMRE decision pending completion of administrative review.



Sec. 4.1366  Burdens of proof.

    (a) In a proceeding to review a decision on an application for a new 
permit--
    (1) If the permit applicant is seeking review, OSMRE shall have the 
burden of going forward to establish a prima facie case as to failure to 
comply with the applicable requirements of the Act or the regulations or 
as to the appropriateness of the permit terms and conditions, and the 
permit applicant shall have the ultimate burden of persuasion as to 
entitlement to the permit or as to the inappropriateness of the permit 
terms and conditions.
    (2) If any other person is seeking review, that person shall have 
the burden of going forward to establish a prima facie case and the 
ultimate burden of persuasion that the permit application fails in some 
manner to comply with the applicable requirements of the Act or the 
regulations, or that OSMRE should have imposed certain terms and 
conditions that were not imposed.
    (b) In a proceeding to review a permit revision ordered by OSMRE, 
OSMRE shall have the burden of going forward to establish a prima facie 
case that the permit should be revised and the permittee shall have the 
ultimate burden of persuasion.
    (c) In a proceeding to review the approval or disapproval of an 
application for a permit renewal, those parties opposing renewal shall 
have the burden of going forward to establish a prima facie case and the 
ultimate burden of persuasion that the renewal application should be 
disapproved.
    (d) In a proceeding to review the approval or disapproval of an 
application for a permit revision or an application for the transfer, 
assignment, or sale of rights granted under a permit--
    (1) If the applicant is seeking review, OSMRE shall have the burden 
of going

[[Page 155]]

forward to establish a prima facie case as to failure to comply with 
applicable requirements of the Act or the regulations, and the applicant 
requesting review shall have the ultimate burden of persuasion as to 
entitlement to approval of the application; and
    (2) If any other person is seeking review, that person shall have 
the burden of going forward to establish a prima facie case and the 
ultimate burden of persuasion that the application fails in some manner 
to comply with the applicable requirements of the Act and the 
regulations.
    (e) In a proceeding to review a decision on an application for a 
coal exploration permit--
    (1) If the coal exploration permit applicant is seeking review, 
OSMRE shall have the burden of going forward to establish a prima facie 
case as to failure to comply with the applicable requirements of the Act 
or the regulations, and the permit applicant shall have the ultimate 
burden of persuasion as to entitlement to the approval.
    (2) If any other person is seeking review, that person shall have 
the burden of going forward to establish a prima facie case and the 
ultimate burden of persuasion that the application fails in some manner 
to comply with the applicable requirements of the Act or the 
regulations.



Sec. 4.1367  Request for temporary relief.

    (a) Where review is requested pursuant to Sec. 4.1362, any party 
may file a request for temporary relief at any time prior to a decision 
by an Administrative Law Judge, so long as the relief sought is not the 
issuance of a permit where a permit application has been disapproved in 
whole or in part.
    (b) The request shall be filed with the Administrative Law Judge to 
whom the case has been assigned. If no assignment has been made, the 
application shall be filed in the Hearings Division, Office of Hearings 
and Appeals, U.S. Department of the Interior, 801 North Quincy Street, 
Arlington, Virginia 22203 (phone 703-235-3800).
    (c) The application shall include--
    (1) A detailed written statement setting forth the reasons why 
relief should be granted;
    (2) A statement of the specific relief requested;
    (3) A showing that there is a substantial likelihood that the person 
seeking relief will prevail on the merits of the final determination of 
the proceeding; and
    (4) A showing that the relief sought will not adversely affect the 
public health or safety or cause significant, imminent environmental 
harm to land, air, or water resources.
    (d) The Administrative Law Judge may hold a hearing on any issue 
raised by the application.
    (e) The Administrative Law Judge shall issue expeditiously an order 
or decision granting or denying such temporary relief. Temporary relief 
may be granted only if--
    (1) All parties to the proceeding have been notified and given an 
opportunity to be heard on a request for temporary relief;
    (2) The person requesting such relief shows a substantial likelihood 
of prevailing on the merits of the final determination of the 
proceeding; and
    (3) Such relief will not adversely affect the public health or 
safety or cause significant, imminent environmental harm to land, air, 
or water resources.
    (f) Appeals of temporary relief decisions.
    (1) Any party desiring to appeal the decision of the Administrative 
Law Judge granting or denying temporary relief may appeal to the Board, 
or, in the alternative, may seek judicial review pursuant to section 
526(a), 30 U.S.C. 1276(a), of the Act.
    (2) The Board shall issue an expedited briefing schedule and shall 
issue a decision on the appeal expeditiously.

[43 FR 34386, Aug. 3, 1978, as amended at 67 FR 4368, Jan. 30, 2002]



Sec. 4.1368  Determination by the Administrative Law Judge.

    Unless all parties agree in writing to an extension or waiver, the 
Administrative Law Judge shall issue a written decision in accordance 
with Sec. 4.1127 within 30 days of the date the hearing record is 
closed by the Administrative Law Judge. An agreement to waive the time 
limit for issuing a decision may

[[Page 156]]

specify the length of the extension agreed to.



Sec. 4.1369  Petition for discretionary review; judicial review.

    (a) Any party aggrieved by a decision of an Administrative Law Judge 
may file a petition for discretionary review with the Board within 30 
days of receipt of the decision or, in the alternative, may seek 
judicial review in accordance with 30 U.S.C. 1276(a)(2) (1982). A copy 
of the petition shall be served simultaneously on the Administrative Law 
Judge who issued the decision, who shall forthwith forward the record to 
the Board, and on all other parties to the proceeding.
    (b) The petition shall set forth specifically the alleged errors in 
the decision, with supporting argument, and shall attach a copy of the 
decision.
    (c) Any party may file a response to a petition for discretionary 
review within 20 days of receipt of the petition.
    (d) The Board shall issue a decision denying the petition or 
granting the petition and deciding the merits within 60 days of the 
deadline for filing responses.

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

    Source: 59 FR 54326, Oct. 28, 1994, unless otherwise noted.



Sec. 4.1370  Scope.

    Sections 4.1370 through 4.1377 govern the procedures for review of a 
written notice of proposed suspension or rescission of an improvidently 
issued permit issued by OSM under 30 CFR 773.22 and of a written notice 
of suspension or rescission of an improvidently issued permit issued by 
OSM under 30 CFR 773.23.

[67 FR 61511, Oct. 1, 2002]



Sec. 4.1371  Who may file, where to file, when to file.

    (a) A permittee that is served with a notice of proposed suspension 
or rescission under 30 CFR 773.22 or a notice of suspension or 
rescission under 30 CFR 773.23 may file a request for review with the 
Hearings Division, Office of Hearings and Appeals, U.S. Department of 
the Interior, 801 N. Quincy Street, Suite 300, Arlington, Virginia 22203 
(telephone 703-235-3800) within 30 days of service of the notice.
    (b) Failure to file a request for review within 30 days of service 
of the notice shall constitute a waiver of review of the notice. An 
untimely request for review shall be dismissed.
    (c) Where appropriate under the Administrative Dispute Resolution 
Act, 5 U.S.C. Sec. Sec. 571-583, the Hearings Division may use a 
dispute resolution proceeding, if the parties agree to such proceeding, 
before the procedures set forth in Sec. Sec. 4.1373 through 4.1377.

[59 FR 54326, Oct. 28, 1994, as amended at 67 FR 4368, Jan. 30, 2002; 67 
FR 61511, Oct. 1, 2002]



Sec. 4.1372  Contents of request for review, response to request, amendment of request.

    (a) The request for review shall include:
    (1) A copy of the notice of proposed suspension or rescission or the 
notice of suspension or rescission;
    (2) Documentary proof, or, where appropriate, offers of proof, 
concerning the matters in 30 CFR 773.21(a) and (b) or 30 CFR 773.14(c) 
for a notice of proposed suspension or rescission, or 30 CFR 
773.23(a)(1) through (a)(6) for a notice of suspension or rescission, 
showing that the person requesting review is entitled to administrative 
relief;
    (3) A statement whether the person requesting review wishes an 
evidentiary hearing or waives the opportunity for such a hearing;
    (4) A request for specific relief; and
    (5) Any other relevant information.
    (b) Within 20 days of service of the request for review by the 
permittee in accordance with 43 CFR 4.1109, OSM and all interested 
parties shall file an answer to the request for review or a motion in 
response to the request or a statement that no answer or motion will be 
filed. OSM or any interested party may request an evidentiary hearing 
even if the person requesting review has waived the opportunity for such 
a hearing.
    (c) The permittee may amend the request for review once as a matter 
of right before a response in accordance

[[Page 157]]

with paragraph (b) of this section is required to be filed. After the 
period for filing such a response, the permittee may file a motion for 
leave to amend the request for review with the administrative law judge. 
If the administrative law judge grants a motion for leave to amend, he 
shall provide OSM and any other party that filed a response in 
accordance with paragraph (b) not less than 10 days to file an amended 
response.

[59 FR 54326, Oct. 28, 1994, as amended at 67 FR 61511, Oct. 1, 2002]



Sec. 4.1373  Hearing.

    (a) If a hearing is requested, the administrative law judge shall 
convene the hearing within 90 days of receipt of the responses under 
Sec. 4.1372(b). The 90-day deadline for convening the hearing may be 
waived for a definite time by the written agreement of all parties, 
filed with the administrative law judge, or may be extended by the 
administrative law judge, in response to a motion setting forth good 
cause to do so, if no other party is prejudiced by the extension.
    (b) The administrative law judge shall give notice of the hearing at 
least 10 days in advance of the date of the hearing.

[59 FR 54362, Oct. 28, 1994; 59 FR 56573, Nov. 14, 1994]



Sec. 4.1374  Burdens of proof.

    (a) OSM shall have the burden of going forward to present a prima 
facie case of the validity of the notice of proposed suspension or 
rescission or the notice of suspension or rescission.
    (b) The permittee shall have the ultimate burden of persuasion by a 
preponderance of the evidence that the notice is invalid.

[59 FR 54326, Oct. 28, 1994, as amended at 67 FR 61512, Oct. 1, 2002]



Sec. 4.1375  Time for initial decision.

    The administrative law judge shall issue an initial decision within 
30 days of the date the record of the hearing is closed, or, if no 
hearing is held, within 30 days of the deadline for filing responses 
under Sec. 4.1372(b).



Sec. 4.1376  Petition for temporary relief from notice of proposed 

suspension or rescission or notice of suspension or rescission; appeals from decisions 
          granting or denying temporary relief.

    (a) Any party may file a petition for temporary relief from the 
notice of proposed suspension or rescission or the notice of suspension 
or rescission in conjunction with the filing of the request for review 
or at any time before an initial decision is issued by the 
administrative law judge.
    (b) The petition for temporary relief shall be filed with the 
administrative law judge to whom the request for review has been 
assigned. If none has been assigned, the petition shall be filed with 
the Hearings Division, Office of Hearings and Appeals, U.S. Department 
of the Interior, 801 North Quincy Street, Arlington, Virginia 22203 
(Telephone 703-235-3800).
    (c) The petition for temporary relief shall include:
    (1) A statement of the specific relief requested;
    (2) A detailed statement of why temporary relief should be granted, 
including--
    (i) A showing that there is a substantial likelihood that petitioner 
will prevail on the merits, and
    (ii) A showing that the relief sought will not adversely affect the 
public health or safety or cause significant, imminent environmental 
harm to land, air or water resources;
    (3) A statement whether the petitioner requests an evidentiary 
hearing.
    (d) Any party may file a response to the petition no later than 5 
days after it was served and may request a hearing even if the 
petitioner has not done so.
    (e) The administrative law judge may hold a hearing on any issue 
raised by the petition within 10 days of the filing of responses to the 
petition, and shall do so if a hearing is requested by any party.
    (f) The administrative law judge shall issue an order or decision 
granting or denying the petition for temporary relief within 5 days of 
the date of a hearing on the petition or, if no hearing is held, of 
service of the responses to the petition on all parties.

[[Page 158]]

    (g) The administrative law judge may only grant temporary relief if:
    (1) All parties to the proceeding have been notified of the petition 
and have had an opportunity to respond and a hearing has been held if 
requested;
    (2) The petitioner has demonstrated a substantial likelihood of 
prevailing on the merits; and
    (3) Temporary relief will not adversely affect public health or 
safety or cause significant, imminent harm to land, air or water 
resources.
    (h) Any party may file an appeal of an order or decision granting or 
denying temporary relief with the Board within 30 days of receipt of the 
order or decision or, in the alternative, may seek judicial review 
within 30 days in accordance with section 526(a) of the Act, 30 U.S.C. 
1276(a). If an appeal is filed with the Board, the Board shall issue an 
expedited briefing schedule and shall decide the appeal expeditiously.

[59 FR 54326, Oct. 28, 1994, as amended at 67 FR 4368, Jan. 30, 2002; 67 
FR 61512, Oct. 1, 2002]



Sec. 4.1377  Petition for discretionary review of initial decision.

    (a) Any party may file a petition for discretionary review of an 
initial decision of an administrative law judge issued under Sec. 
4.1375 with the Board within 30 days of receipt of the decision. An 
untimely petition shall be dismissed.
    (b) The petition for discretionary review shall set forth 
specifically the alleged errors in the initial decision, with supporting 
argument, and shall attach a copy of the decision.
    (c) Any party may file a response to the petition for discretionary 
review within 30 days of its service.
    (d) The Board shall issue a decision denying the petition or 
granting the petition and deciding the merits within 60 days of the 
deadline for filing responses.

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

    Source: 59 FR 54363, Oct. 28, 1994, unless otherwise noted.



Sec. 4.1380  Scope.

    Sections 4.1380 through 4.1387 govern the procedures for review of a 
written decision issued by OSM under 30 CFR 773.28 on a challenge to a 
listing or finding of ownership or control.

[67 FR 61512, Oct. 1, 2002]



Sec. 4.1381  Who may file; when to file; where to file.

    (a) Any person who receives a written decision issued by OSM under 
30 CFR 773.28 on a challenge to an ownership or control listing or 
finding may file a request for review with the Hearings Division, Office 
of Hearings and Appeals, U.S. Department of the Interior, 801 N. Quincy 
Street, Suite 300, Arlington, Virginia 22203 (telephone 703-235-3800) 
within 30 days of service of the decision.
    (b) Failure to file a request for review within 30 days of service 
of the decision constitutes a waiver of review of the decision. An 
untimely request for review shall be dismissed.
    (c) Where appropriate under the Administrative Dispute Resolution 
Act, 5 U.S.C. Sec. Sec. 571-583, the Hearings Division may use a 
dispute resolution proceeding, if the parties agree to such proceeding, 
before the procedures set forth in Sec. Sec. 4.1383 through 4.1387.

[59 FR 54363, Oct. 28, 1994, as amended at 67 FR 4368, Jan. 30, 2002]



Sec. 4.1382  Contents of request for review; response to request; amendment of request.

    (a) The request for review shall include:
    (1) A copy of the decision of OSM;
    (2) A statement of the alleged errors in the decision and the facts 
that entitle the person requesting review to administrative relief;
    (3) A statement whether the person requesting review wishes an 
evidentiary hearing or waives the opportunity for such a hearing;
    (4) A request for specific relief; and
    (5) Any other relevant information.
    (b) Within 20 days of service of the request for review in 
accordance with 43 CFR 4.1109, OSM and all interested parties shall file 
an answer to the request for review or a motion in response to

[[Page 159]]

the request or a statement that no answer or motion will be filed. OSM 
or any interested party may request an evidentiary hearing even if the 
person requesting review has waived the opportunity for a hearing.
    (c) The person filing the request for review may amend it once as a 
matter of right before the response in accordance with paragraph (b) of 
this section is required to be filed. After the period for filing such a 
response, the person may file a motion for leave to amend the request 
with the administrative law judge. If the administrative law judge 
grants a motion for leave to amend, he shall provide OSM and any other 
party that filed a response in accordance with paragraph (b) not less 
than 10 days to file an amended response.



Sec. 4.1383  Hearing.

    (a) If a hearing is requested, the administrative law judge shall 
convene the hearing within 90 days of receipt of responses under Sec. 
4.1382(b). The 90-day deadline for convening the hearing may be waived 
for a definite time by the written agreement of all parties, filed with 
the administrative law judge, or may be extended by the administrative 
law judge, in response to a motion setting forth good cause to do so, if 
no other party is prejudiced by the extension.
    (b) The administrative law judge shall give notice of the hearing at 
least 10 days in advance of the date of the hearing.



Sec. 4.1384  Burdens of proof.

    (a) OSM shall have the burden of going forward to present a prima 
facie case of the validity of the decision.
    (b) The person filing the request for review shall have the ultimate 
burden of persuasion by a preponderance of the evidence that the 
decision is in error.



Sec. 4.1385  Time for initial decision.

    The administrative law judge shall issue an initial decision within 
30 days of the date the record of the hearing is closed, or, if no 
hearing is held, within 30 days of the deadline for filing responses 
under Sec. 4.1382(b).



Sec. 4.1386  Petition for temporary relief from decision; appeals from decisions granting or denying temporary relief.

    (a) Any party may file a petition for temporary relief from the 
decision of OSM in conjunction with the filing of the request for review 
or at any time before an initial decision is issued by the 
administrative law judge.
    (b) The petition for temporary relief shall be filed with the 
administrative law judge to whom the request for review has been 
assigned. If none has been assigned, the petition shall be filed with 
the Hearings Division, Office of Hearings and Appeals, U.S. Department 
of the Interior, 801 North Quincy Street, Arlington, Virginia 22203 
(Telephone 703-235-3800).
    (c) The petition for temporary relief shall include:
    (1) A statement of the specific relief requested:
    (2) A detailed statement of why temporary relief should be granted, 
including:
    (i) A showing that there is a substantial likelihood that petitioner 
will prevail on the merits, and
    (ii) A showing that granting the relief requested will not adversely 
affect the public health or safety or cause significant, imminent 
environmental harm to land, air or water resources;
    (3) A statement whether the petitioner requests an evidentiary 
hearing.
    (d) Any party may file a response to the petition no later than 5 
days after it was served and may request a hearing even if the 
petitioner has not done so.
    (e) The administrative law judge may hold a hearing on any issue 
raised by the petition within 10 days of the filing of responses to the 
petition, and shall do so if a hearing is requested by any party.
    (f) The administrative law judge shall issue an order or decision 
granting or denying the petition for temporary relief within 5 days of 
the date of a hearing on the petition or, if no hearing is held, of 
service of the responses to the petition on all parties.
    (g) The administrative law judge may only grant temporary relief if:
    (1) All parties to the proceeding have been notified of the petition 
and have

[[Page 160]]

had an opportunity to respond and a hearing has been held if requested;
    (2) The petitioner has demonstrated a substantial likelihood of 
prevailing on the merits; and
    (3) Temporary relief will not adversely affect public health or 
safety or cause significant, imminent environmental harm to land, air or 
water resources.
    (h) Any party may file an appeal of an order or decision granting or 
denying temporary relief with the Board within 30 days of receipt of the 
order or decision or, in the alternative, may seek judicial review 
within 30 days in accordance with section 526(a) of the Act, 30 U.S.C. 
1276(a). If an appeal is filed with the Board, the Board shall issue an 
expedited briefing schedule and shall decide the appeal expeditiously.

[59 FR 54363, Oct. 28, 1994, as amended at 67 FR 4368, Jan. 30, 2002]



Sec. 4.1387  Petition for discretionary review of initial decisions.

    (a) Any party may file a petition for discretionary review of an 
initial decision of an administrative law judge issued under Sec. 
4.1385 with the Board within 30 days of receipt of the decision. An 
untimely petition shall be dismissed.
    (b) The petition for discretionary review shall set forth 
specifically the alleged errors in the initial decision, with supporting 
argument, and shall attach a copy of the decision.
    (c) Any party may file a response to the petition for discretionary 
review within 30 days of its service.
    (d) The Board shall issue a decision denying the petition or 
granting the petition and deciding the merits within 60 days of the 
deadline for filing responses.

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

    Source: 52 FR 39530, Oct. 22, 1987, unless otherwise noted.



Sec. 4.1390  Scope.

    Sections 4.1391 through 4.1394 set forth the procedures for 
obtaining review of an OSM determination under 30 CFR 761.16 that a 
person does or does not have valid existing rights.

[67 FR 61512, Oct. 1, 2002]



Sec. 4.1391  Who may file; where to file; when to file; filing of administrative record.

    (a) The person who requested a determination under 30 CFR 761.16 or 
any person with an interest that is or may be adversely affected by a 
determination that a person does or does not have valid existing rights 
may file a request for review of the determination with the office of 
the OSM official whose determination is being reviewed and at the same 
time shall send a copy of the request to the Interior Board of Land 
Appeals, U.S. Department of the Interior, 801 N. Quincy Street, Suite 
300, Arlington, VA 22203 (telephone 703-235-3750). OSM shall file the 
complete administrative record of the determination under review with 
the Board as soon as practicable.
    (b) OSM must provide notice of the valid existing rights 
determination to the person who requested that determination by 
certified mail, or by overnight delivery service if the person has 
agreed to bear the expense of this service.
    (1) When the determination is made independently of a decision on an 
application for a permit or for a permit boundary revision, a request 
for review shall be filed within 30 days of receipt of the determination 
by a person who has received a copy of it by certified mail or overnight 
delivery service. The request for review shall be filed within 30 days 
of the date of publication of the determination in a newspaper of 
general circulation or in the Federal Register, whichever is later, by 
any person who has not received a copy of it by certified mail or 
overnight delivery service.
    (2) When the determination is made in conjunction with a decision on 
an application for a permit or for a permit boundary revision, the 
request for review must be filed in accordance with Sec. 4.1362.

[[Page 161]]

    (c) Failure to file a request for review within the time specified 
in paragraph (b) of this section shall constitute a waiver of the right 
to review and the request shall be dismissed.

[56 FR 2145, Jan. 22, 1991, as amended at 67 FR 4368, Jan. 30, 2002; 67 
FR 61512, Oct. 1, 2002]



Sec. 4.1392  Contents of request; amendment of request; responses.

    (a) The request for review shall include--
    (1) A clear statement of the reasons for appeal;
    (2) A request for specific relief;
    (3) A copy of the decision appealed from; and
    (4) Any other relevant information.
    (b) All interested parties shall file an answer or motion in 
response to a request for review or a statement that no answer or motion 
will be filed within 15 days of receipt specifically admitting or 
denying facts or alleged errors stated in the request and setting forth 
any other matters to be considered on review.
    (c) A request for review may be amended once as a matter of right 
prior to receipt of an answer or motion or statement filed in accordance 
with paragraph (b) of this section. Thereafter, a motion for leave to 
amend the request shall be filed with the Board.
    (d) An interested party shall have 10 days from receipt of a request 
for review that is amended as a matter of right or the time remaining 
for response to the original request to file an answer, motion, or 
statement in accordance with paragraph (b) of this section, whichever is 
longer. If the Board grants a motion to amend a request for review, the 
time for an interested party to file an answer, motion, or statement 
shall be set forth in the order granting the motion.



Sec. 4.1393  Status of decision pending administrative review.

    43 CFR 4.21(a) applies to determinations of the Office of Surface 
Mining under 30 U.S.C. 1272(e).



Sec. 4.1394  Burden of proof.

    (a) If the person who requested the determination is seeking review, 
OSM shall have the burden of going forward to establish a prima facie 
case and the person who requested the determination shall have the 
ultimate burden of persuasion.
    (b) If any other person is seeking review, that person shall have 
the burden of going forward to establish a prima facie case and the 
ultimate burden of persuasion that the person who requested the 
determination does or does not have valid existing rights.

[67 FR 61512, Oct. 1, 2002]



 Subpart M_Special Procedural Rules Applicable to Appeals of Decisions 
                      Made Under OMB Circular A	76

    Authority: 5 U.S.C. 301.

    Source: 45 FR 75213, Nov. 14, 1980, unless otherwise noted. 
Redesignated at 52 FR 39525, Oct. 22, 1987.



Sec. 4.1600  Purpose and nature of the appeal process.

    (a) This appeals procedure embodies an informal administrative 
review of agency decisions made under OMB Circular A-76, and is intended 
to assure that such decisions are fair, equitable, and in compliance 
with the provisions of the Circular. This procedure provides affected 
parties an opportunity to request that such decisions be objectively 
reviewed by a party independent of the A-76 decision process.
    (b) This appeals procedure is administrative rather than judicial in 
nature, and does not provide for a judicial review or for further levels 
of appeal. The decisions of the appeals official are final.
    (c) This procedure is intended to protect the rights of all affected 
parties and, therefore, neither the procedure nor agency determinations 
may be subject to negotiation, arbitration, or agreements with any one 
of the parties.



Sec. 4.1601  Basis for appeal.

    (a) An appeal may be based only on a specific alleged material 
deviation (or deviations) by the agency from the provisions of OMB 
Circular A-76 or Supplement No. 1 thereto, the ``Cost Comparison 
Handbook.'' Appeals may not be based on other factors, such as the

[[Page 162]]

economic impact of the agency's decision on a community, or other 
socioeconomic issues.
    (b) This appeals procedure shall be used only to resolve questions 
of the determination between contract and in-house performance of a 
commercial or industrial type requirement, and shall not apply to 
questions concerning award to one contractor in preference to another.



Sec. 4.1602  Who may appeal under this procedure.

    An appeal may be filed by any affected party, viz, employees of the 
Federal activity under review, authorized employee representative 
organizations, contractors, and potential contractors.



Sec. 4.1603  Appeal period.

    An appeal may be submitted at any time within 45 calendar days after 
announcement of an agency decision regarding the method of performance 
of a commercial or industrial type requirement.



Sec. 4.1604  Method of filing an appeal.

    An appeal must be in writing, and must be submitted to: Director, 
Office of Hearings and Appeals, U.S. Department of the Interior, 801 
North Quincy Street, Arlington, Virginia 22203.

[45 FR 75213, Nov. 14, 1980. Redesignated at 52 FR 39525, Oct. 22, 1987. 
And amended at 67 FR 4368, Jan. 30, 2002]



Sec. 4.1605  Action by the Office of Hearings and Appeals.

    (a) Upon receipt of an appeal, the Director, Office of Hearings and 
Appeals shall designate an appeals official, who shall process the 
appeal.
    (b) The appeals official shall promptly docket the appeal and send 
copies of the docketing notice to the appellant, the director or other 
appropriate official of the bureau or office involved, and the Solicitor 
of the Department.



Sec. 4.1606  Department representation.

    (a) Upon receipt of the docketing notice, the Solicitor shall 
appoint counsel to represent the Department in the appeal action, and so 
notify the appellant and the appeals official.
    (b) Within seven calendar days of his designation the Department 
Counsel shall assemble and transmit to the appeals official a file 
containing the appealed agency decision and all documents relevant 
thereto, including the detailed analysis upon which the agency decision 
was based. At the same time, the Department Counsel shall send to the 
appellant a copy of the transmittal document, containing a table of 
contents of the file.



Sec. 4.1607  Processing the appeal.

    (a) The appeals official shall arrange such conferences with the 
concerned parties as are necessary, including (if requested by the 
appellant) an oral presentation.
    (b) The appeals official may require either party to submit any 
additional documents, oral or written testimony, or other items of 
evidence which he considers necessary for a complete review of the 
agency decision.
    (c) All documentary evidence submitted by one party to the appeal 
action shall be made available to the other party (or parties), except 
that availability of proprietary information may be restricted by the 
party holding the proprietary interest in such information.



Sec. 4.1608  Oral presentations.

    (a) Upon request of the appellant, an opportunity for an oral 
presentation to the appeals official shall be granted. The purpose of an 
oral presentation shall be to permit the appellant to discuss or explain 
factual evidence supporting his allegations, and/or to obtain oral 
explanations of pertinent evidence. The time and place of each oral 
presentation shall be determined by the appeals official, after 
consultation with the appropriate parties.
    (b) The appellant may, but is not required to, be represented by 
legal counsel at an oral presentation.
    (c) The Department Counsel and the bureau/office involved shall be 
invited to attend any oral presentation. The appeals official may 
require the attendance and participation of an official or employee of 
the Department, whether or not requested by the appellant, if, in the 
appeals official's judgment, such official or employee may

[[Page 163]]

possess knowledge or information pertinent to the agency decision being 
appealed, and if this knowledge or information is unobtainable 
elsewhere.
    (d) An oral presentation shall not constitute a judicial proceeding, 
and no such judicial proceeding or hearing shall be provided for in this 
appeals process. There shall be no requirement for legal briefs, sworn 
statements, interrogation under oath, official transcripts of testimony, 
etc., unless the appeals official determines such are necessary for 
effective disposition of the appeal.



Sec. 4.1609  Multiple appeals.

    If two or more appellants submit appeals of the same agency 
decision, which are based on the same or similar allegations, the 
appeals official may, at his discretion, consider all such appeals 
concurrently and issue a single written decision resolving all of the 
several appeals.



Sec. 4.1610  Decision of the appeals official.

    (a) Within 30 calendar days after receipt of an appeal by the Office 
of Hearings and Appeals, the appeals official shall issue a written 
decision, either affirming or denying the appeal. This decision shall be 
final, with no judicial review or further avenue of appeal.
    (b) If the appeals official affirms the appeal, his decision 
regarding further action by the agency shall be binding upon the agency.
    (c) If it proves impracticable to issue a decision within the 
prescribed 30 calendar days, the appeals official may extend this 
period, notifying all concerned parties of the anticipated decision 
date.



PART 5_MAKING PICTURES, TELEVISION PRODUCTIONS OR SOUND TRACKS ON CERTAIN AREAS UNDER THE JURISDICTION OF THE DEPARTMENT OF THE INTERIOR--Table of Contents



Sec.
5.1 Areas administered by U.S. Fish and Wildlife Service or National 
          Park Service.
5.2 Areas administered by the Bureau of Indian Affairs.

    Authority: R.S. 463, sec. 3, 39 Stat. 535, as amended, sec. 10, 45 
Stat. 1224, as amended; 5 U.S.C. 301, 25 U.S.C. 2, 16 U.S.C. 715i.



Sec. 5.1  Areas administered by U.S. Fish and Wildlife Service or National Park Service.

    (a) Permit required. No picture may be filmed, and no television 
production or sound track made on any area administered by the U.S. Fish 
and Wildlife Service or the National Park Service, of the Department of 
the Interior, by any person other than amateur or bona fide newsreel and 
news television photographers and soundmen, unless written permission 
has been obtained from the Service having jurisdiction over the area. 
Applications for permission should be submitted to the local official 
having administrative responsibility for the area involved.
    (b) Fees; bonds. (1) No fees will be charged for the making of 
motion pictures, television productions or sound tracks on areas 
administered by the U.S. Fish and Wildlife Service. The regular general 
admission and other fees currently in effect in any area under the 
jurisdiction of the National Park Service are not affected by this 
paragraph.
    (2) A bond shall be furnished, or deposit made in cash or by 
certified check, in an amount to be set by the official in charge of the 
area to insure full compliance with all of the conditions prescribed in 
paragraph (d)(3) of this section.
    (c) Approval of application. Permission to make a motion picture, 
television production or sound track on areas administered by the U.S. 
Fish and Wildlife Service or the National Park Service will be granted 
by the head of the Service or his authorized representative in his 
discretion and on acceptance by the applicant of the conditions set 
forth in paragraph (d)(3) of this section.
    (d) Form of application. The following form is prescribed for an 
application for permission to make a motion picture, television 
production, or sound track on areas administered by the

[[Page 164]]

U.S. Fish and Wildlife Service or the National Park Service:
                                                   Date ----------------
To the head of the______________________________________________________
Service, Department of the Interior_____________________________________
                                                                  (Area)
(1) Permission is requested to make, in the area mentioned above, a_____
    (2) The scope of the filming (or production or recording) and the 
manner and extent thereof will be as follows
Weather conditions permitting, work will commence on approximately ----
------ and will be completed on approximately___________________________
________________________________________________________________________
________________________________________________________________________
    (An additional sheet should be used if necessary.)
    (3) The undersigned accepts and will comply with the following 
conditions:
    (i) Utmost care will be exercised to see that no natural features 
are injured, and after completion of the work the area will, as required 
by the official in charge, either be cleaned up and restored to its 
prior condition or left, after clean-up, in a condition satisfactory to 
the official in charge.
    (ii) Credit will be given to the Department of the Interior and the 
Service involved through the use of an appropriate title or 
announcement, unless there is issued by the official in charge of the 
area a written statement that no such courtesy credit is desired.
    (iii) Pictures will be taken of wildlife only when such wildlife 
will be shown in its natural state or under approved management 
conditions if such wildlife is confined.
    (iv) [Reserved]
    (v) Any special instructions received from the official in charge of 
the area will be complied with.
    (vi) Any additional information relating to the privilege applied 
for by this application will be furnished upon request of the official 
in charge.
________________________________________________________________________
                                                             (Applicant)
                                           For--------------------------
                                                               (Company)
Bond Requirement $______________________________________________________
 Approved:______________________________________________________________
                                                                  (Date)
________________________________________________________________________
                                                                 (Title)

[22 FR 1987, Mar. 26, 1957, as amended at 36 FR 2972, Feb. 13, 1971; 71 
FR 19129, Apr. 13, 2006]



Sec. 5.2  Areas administered by the Bureau of Indian Affairs.

    (a) Individual Indians. Anyone who desires to go on the land of an 
Indian to make pictures, television productions or sound tracks is 
expected to observe the ordinary courtesy of first obtaining permission 
from the Indian and of observing any conditions attached to such 
permission.
    (b) Indian groups and communities. Anyone who desires to take 
pictures, including motion pictures, or to make a television production 
or a sound track of Indian communities, churches, kivas, plazas, or 
ceremonies performed in such places, must obtain prior permission from 
the proper officials of the place or community. Limitations which such 
officials may impose must be scrupulously observed.
    (c) Use of Indian lands. If the filming of pictures or the making of 
television productions or sound tracks requires the actual use of Indian 
lands, a lease or permit must be obtained pursuant to 25 CFR part 131.
    (d) Employment of Indians. Any motion picture or television producer 
who obtains a lease or permit for the use of Indian land pursuant to 25 
CFR part 131 shall be expected to pay a fair and reasonable wage to any 
Indians employed in connection with the production activities.

[22 FR 1987, Mar. 26, 1957]



PART 6_PATENT REGULATIONS--Table of Contents



                    Subpart A_Inventions by Employees

Sec.
6.1 Definitions.
6.2 Report of invention.
6.3 Action by supervisory officials.
6.4 Action by Solicitor.
6.5 Rights in inventions.
6.6 Appeals by employees.
6.7 Domestic patent protection.
6.8 Foreign filing.
6.9 Publication and public use of invention before patent application is 
          filed.
6.10 Publicity concerning the invention after patent application is 
          filed.
6.11 Condition of employment.

                           Subpart B_Licenses

6.51 Purpose.
6.52 Patents.
6.53 Unpatented inventions.
6.54 Use or manufacture by or for the Government.
6.55 Terms of licenses or sublicenses.
6.56 Issuance of licenses.
6.57 Evaluation Committee.

    Authority: 5 U.S.C. 301; sec. 2, Reorganization Plan No. 3 of 1950, 
15 FR 3174; E.O. 10096, 15 FR 389; and E.O. 10930, 26 FR 2583.

[[Page 165]]


    Source: 29 FR 260, Jan. 10, 1964; 29 FR 6498, May 19, 1964, unless 
otherwise noted.



                    Subpart A_Inventions by Employees



Sec. 6.1  Definitions.

    As used in this subpart:
    (a) The term Department means the Department of the Interior.
    (b) The term Secretary means the Secretary of the Interior.
    (c) The term Solicitor means the Solicitor of the Department of the 
Interior, or anyone authorized to act for him.
    (d) The term Commissioner means the Commissioner of Patents, or any 
Assistant Commissioner who may act for the Commissioner of Patents.
    (e) The term invention means any new and useful art, process, 
method, machine, manufacture, or composition of matter, or any new and 
useful improvement thereof, or any new variety of plant, or any new, 
original and ornamental design for an article of manufacture, which is 
or may be patentable under the laws of the United States.
    (f) The term employee as used in this part includes a part time 
consultant, a part time employee or a special employee (as defined in 18 
U.S.C. 202) of the Department insofar as inventions made during periods 
of official duty are concerned, except when special circumstances in a 
specific case require an exemption in order to meet the needs of the 
Department, each such exemption to be subject to the approval of the 
Commissioner.
    (g) The term governmental purpose means the right of the Government 
of the United States (including any agency thereof, state, or domestic 
municipal government) to practice and have practiced (made or have made, 
used or have used, sold or have sold) throughout the world by or on 
behalf of the Government of the United States.
    (h) The making of the invention means the conception or first actual 
reduction to practice of such invention.



Sec. 6.2  Report of invention.

    (a) Every invention made by an employee of the Department shall be 
reported by such employee through his supervisor and the head of the 
bureau or office to the Solicitor, unless the invention obviously is 
unpatentable. If the invention is the result of group work, the report 
shall be made by the supervisor and shall be signed by all employees 
participating in the making of the invention. The original and two 
copies of the invention report shall be furnished to the Solicitor. The 
Solicitor may prescribe the form of the report.
    (b) The report shall be made as promptly as possible, taking into 
consideration such factors as possible publication or public use, 
reduction to practice, and the necessity for protecting any rights of 
the Government in the invention. Although it is not necessary to 
withhold the report until the process or device is completely reduced to 
practice, reduction to practice assists in the preparation of a patent 
application and, if diligently pursued, protects the interests of the 
Government and of the inventor. If an invention is reduced to practice 
after the invention report is filed, the Solicitor must be notified 
forthwith.
    (c) For the protection of the rights of the Government and of the 
inventor, invention reports and memoranda or correspondence concerning 
them are to be considered as confidential documents.
    (d) An invention report shall include the following:
    (1) A brief but pertinently descriptive title of the invention;
    (2) The full name, residence, office address, bureau or office and 
division, position or title, and official working place of the inventor 
or inventors;
    (3) A statement of the evidence that is available as to the making 
of the invention, including information relative to conception, 
disclosures to others, and reduction to practice. Examples of such 
information are references to signed, witnessed and dated laboratory 
notebooks, or other authenticated records pertaining to the conception 
of the invention, operational data sheets, analysis and operation 
evaluation reports pertaining to a reduction to practice, and visitor 
log books, letters and

[[Page 166]]

other documents pertaining to disclosures to others. These need not be 
submitted with the report, only the identifying data is required, e.g., 
volume and page number in a laboratory notebook;
    (4) Information concerning any past or prospective publication, oral 
presentation or public use of the invention;
    (5) The problem which led to the making of the invention;
    (6) The objects, advantages, and uses of the invention;
    (7) A detailed description of the invention;
    (8) Experimental data;
    (9) The prior art known to the inventor(s) and the manner in which 
the invention distinguishes thereover;
    (10) A statement that the employee:
    (i) Is willing to and does hereby assign to the Government:
    (a) The entire rights (foreign and domestic) in the invention;
    (b) The domestic rights only, but grants to the Government an option 
to file for patent protection in any foreign country, said option to 
expire as to any country when it is decided not to file thereon in the 
United States, or within six months after such filing;
    (ii) Requests, pursuant to Sec. 6.2(e), a determination of the 
respective rights of the Government and of the inventor.
    (e) If the inventor believes that he is not required by the 
regulations in this subpart to assign to the Government the entire 
domestic right, title, and interest in and to the invention, and if he 
is unwilling to make such an assignment to the Government, he shall, in 
his invention report, request that the Solicitor determine the 
respective rights of the Government and of the inventor in the 
invention, and he shall include in his invention report information on 
the following points, in addition to the data called for in paragraph 
(d) of this section:
    (1) The circumstances under which the invention was made (conceived, 
actually reduced to practice or constructed and tested);
    (2) The employee's official duties, as given on his job sheet or 
otherwise assigned, at the time of the making of the invention;
    (3) The extent to which the invention was made during the inventor's 
official working hours, the extent use was made of government 
facilities, equipment, funds, material or information, and the time or 
services of other government employees on official duty;
    (4) Whether the employee wishes a patent application to be 
prosecuted under the Act of March 3, 1883, as amended (35 U.S.C. 266), 
if it should be determined that he is not required to assign all 
domestic rights to the invention to the Government; and
    (5) Whether the employee would be willing, upon request, to 
voluntarily assign foreign rights in the invention to the Government if 
it should be determined that an assignment of the domestic rights to the 
Government is not required.



Sec. 6.3  Action by supervisory officials.

    (a) The preparation of an invention report and other official 
correspondence on patent matters is one of the regular duties of an 
employee who has made an invention and the supervisor of such employee 
shall see that he is allowed sufficient time from his other duties to 
prepare such documents. The supervisor shall ascertain that the 
invention report and other papers are prepared in conformity with the 
regulations of this part; and, before transmitting the invention report 
to the head of the bureau or office, shall check its accuracy and 
completeness, especially with respect to the circumstances in which the 
invention was developed, and shall add whatever comments he may deem to 
be necessary or desirable. The supervisor shall add to the file whatever 
information he may have concerning the governmental and commercial value 
of the invention.
    (b) The head of the bureau or office shall make certain that the 
invention report is as complete as circumstances permit. He shall report 
whatever information may be available in his agency concerning the 
governmental and commercial value of the invention, and the foreign 
countries in which it is likely that the invention would be most useful 
and would have the greatest commercial value.
    (c) If the employee inventor requests that the Solicitor determine 
his rights in the invention, the head of the bureau or office shall 
state his conclusions with respect to such rights.

[[Page 167]]

    (d) The head of the bureau or office shall indicate whether, in his 
judgment, the invention is liable to be used in the public interest, and 
he shall set out the facts supporting his conclusion whenever the 
employee's invention report does not contain sufficient information on 
this point.



Sec. 6.4  Action by Solicitor.

    (a) If an employee inventor requests pursuant to Sec. 6.2(e), that 
such determination be made, the Solicitor shall determine the respective 
rights of the employee and of the Government in and to the invention. 
His determination shall be subject to review by the Commissioner in 
proper cases under Executive Orders 10096 and 10930 and the rules and 
regulations issued by the Commissioner with the approval of the 
President.
    (b) If the Government is entitled to obtain the entire domestic 
right, title and interest in and to an invention made by an employee of 
the Department, the Solicitor, subject to review by the Commissioner in 
proper cases, may take such action respecting the invention as he deems 
necessary or advisable to protect the interests of the United States.



Sec. 6.5  Rights in inventions.

    (a) The rules prescribed in this section shall be applied in 
determining the respective rights of the Government and of an employee 
of the Department in and to any invention made by the employee.
    (b)(1) Except as indicated in the succeeding paragraphs, (b) (1) 
through (4), of this section, the Government shall obtain the entire 
domestic right, title, and interest in and to any invention made by an 
employee of the Department
    (i) During working hours, or
    (ii) With a contribution by the Government of facilities, equipment, 
materials, funds, or information, or of time or services of other 
government employees on official duty, or
    (iii) Which bears a direct relation to or is made in consequence of 
the official duties of the inventor.
    (2) In any case where the contribution of the Government, as 
measured by any one or more of the criteria set forth in paragraph 
(b)(1) of this section, to the invention is insufficient equitably to 
justify a requirement of assignment to the Government of the entire 
domestic right, title, and interest in and to such invention, or in any 
case where the Government has insufficient interest in an invention to 
obtain the entire domestic right, title, and interest therein (although 
the Government could obtain same under paragraph (b)(1) of this 
section), the Solicitor, subject to the approval of the Commissioner, 
shall leave title to such invention in the employee, subject, however, 
to the reservation to the Government of a nonexclusive, irrevocable, 
royalty-free license in the invention with power to grant sublicenses 
for all governmental purposes, such reservation, in the terms thereof, 
to appear, where practicable, in any patent, domestic or foreign, which 
may issue on such invention.
    (3) In applying the provisions of paragraphs (b) (1) and (2) of this 
section to the facts and circumstances relating to the making of any 
particular invention, it shall be presumed that any invention made by an 
employee who is employed or assigned (i) to invent or improve or perfect 
any art, machine, manufacture, or composition of matter, or (ii) to 
conduct or perform research, development work, or both, or (iii) to 
supervise, direct, coordinate, or review Government financed or 
conducted research, development work, or both, or (iv) to act in a 
liaison capacity among governmental or nongovernmental agencies or 
individuals engaged in such work, falls within the provisions of 
paragraph (b)(1) of this section, and it shall be presumed that any 
invention made by any other employee falls within the provisions of 
paragraph (b)(2) of this section. Either presumption may be rebutted by 
a showing of the facts and circumstances in the case and shall not 
preclude a determination that these facts and circumstances justify 
leaving the entire right, title and interest in and to the invention in 
the government employee, subject to law.
    (4) In any case wherein the Government neither (i) obtains the 
entire domestic right, title, and interest in and to an invention 
pursuant to the provisions of paragraph (b)(1) of this section,

[[Page 168]]

nor (ii) reserves a nonexclusive, irrevocable, royalty-free license in 
the invention, with power to grant sublicenses for all governmental 
purposes, pursuant to the provisions of paragraph (b)(2) of this 
section, the Solicitor, subject to the approval of the Commissioner, 
shall leave the entire right, title, and interest in and to the 
invention in the employee, subject to law.
    (c) In the event that the Solicitor determines, pursuant to 
paragraph (b) (2) or (4) of this section, that title to an invention 
will be left with an employee, the Solicitor shall notify the employee 
of this determination and promptly prepare, and preserve in appropriate 
files, accessible to the Commissioner, a written signed, and dated 
statement concerning the invention including the following:
    (1) A description of the invention in sufficient detail to identify 
the invention and show the relationship to the employee's duties and 
work assignment;
    (2) The name of the employee and his employment status, including a 
detailed statement of his official duties and responsibilities at the 
time the invention was made; and
    (3) A statement of the Solicitor's determination and reasons 
therefor. The Solicitor shall, subject to considerations of national 
security, or public health, safety, or welfare, submit to the 
Commissioner a copy of this written statement. This submittal in a case 
falling within the provisions of paragraph (b) (2) of this section shall 
be made after the expiration of the period prescribed in Sec. 6.6 for 
the taking of an appeal, or it may be made prior to the expiration of 
such period if the employees acquiesces in the Solicitor's 
determination. The Commissioner thereupon shall review the determination 
of the Solicitor and the Commissioner's decision respecting the matter 
shall be final, subject to the right of the employee or the Solicitor to 
submit to the Commissioner within 30 days (or such longer period as the 
Commissioner may, for good cause, shown in writing, fix in any case) 
after receiving notice of such decision, a petition for the 
reconsideration of the decision. A copy of such petition must also be 
filed by the inventor with the Solicitor within the prescribed period.



Sec. 6.6  Appeals by employees.

    (a) Any employee who is aggrieved by a determination of the 
Solicitor pursuant to Sec. 6.5(b) (1) or (2) may obtain a review of the 
determination by filing, within 30 days (or such longer period as the 
Commissioner may for good cause shown in writing, fix in any case) after 
receiving notice of such determination, two copies of an appeal with the 
Commissioner. The Commissioner then shall forward one copy of the appeal 
to the Solicitor.
    (b) On receipt of a copy of an appeal filed pursuant to paragraph 
(a) of this section, the Solicitor shall, subject to considerations of 
national security, or public health, safety, or welfare, promptly 
furnish both the Commissioner and the inventor with a copy of a report 
containing the following information about the invention involved in the 
appeal:
    (1) A copy of a statement containing the information specified in 
Sec. 6.5(c), and
    (2) A detailed statement of the points of dispute or controversy, 
together with copies of any statements or written arguments that may 
have been filed, and of any other relevant evidence that the Solicitor 
considered in making his determination of Government interest. Within 25 
days (or such longer period as the Commissioner may, for good cause 
shown, fix in any case) after the transmission of a copy of the 
Solicitor's report to the employee, the employee may file a reply 
thereto with the Commissioner and file one copy thereof with the 
Solicitor.
    (c) After the time for the employee's reply to the Solicitor's 
report has expired and if the employee has so requested in his appeal, a 
date will be set for the hearing of oral arguments by the employee (or 
by an attorney whom he designates by written power of attorney filed 
before, or at the hearing) and the Solicitor. Unless it shall be 
otherwise ordered before the hearing begins, oral arguments will be 
limited to thirty minutes for each side. The employee need not retain an 
attorney or request an oral hearing to secure full consideration of the 
facts and his

[[Page 169]]

arguments. He may expedite such consideration by notifying the 
Commissioner when he does not intend to file a reply to the Solicitor's 
report.
    (d) After a hearing on the appeal, if a hearing was requested, or 
after expiration of the period for the inventor's reply to the 
Solicitor's report, if no hearing is set, the Commissioner shall issue a 
decision on the matter, which decision shall be final after the period 
for asking reconsideration expires or on the date that a decision on a 
petition for reconsideration is finally disposed of. Any request for 
reconsideration or modification of the decision must be filed within 30 
days from the date of the original decision (or within such an extension 
thereof as may be set by the Commissioner before the original period 
expires). The Com- missioner's decision shall be made after 
consideration of the statements of fact in the employee's appeal, the 
Solicitor's report, and the employee's reply, but the Commissioner, at 
his discretion and with due respect to the rights and convenience of the 
inventor and the Solicitor, may call for further statements on specific 
questions of fact or may request additional evidence in the form of 
affidavits or depositions on specific facts in dispute.



Sec. 6.7  Domestic patent protection.

    (a) The Solicitor, upon determining that an invention coming within 
the scope of Sec. 6.5(b) (1) or (2) has been made, shall thereupon 
determine whether patent protection will be sought in the United States 
by the Department for such invention. A controversy over the respective 
rights of the Government and of the inventor in any case shall not delay 
the taking of the actions provided for in this section. In cases coming 
within the scope of Sec. 6.5(b)(2), action by the Department looking 
toward such patent protection shall be contingent upon the consent of 
the inventor.
    (b) Where there is a dispute as to whether paragraph (b) (1) or (2) 
of Sec. 6.5 applies in determining the respective rights of the 
Government and of an employee in and to any invention, the Solicitor 
will determine whether patent protection will be sought in the United 
States pending the Commissioner's decision on the dispute, and, if he 
determines that an application for patent should be filed, he will take 
such rights as are specified in Sec. 6.5(b)(2), but this shall be 
without prejudice to acquiring the rights specified in Sec. 6.5(b)(1) 
should the Commissioner so decide.
    (c) Where the Solicitor has determined to leave title to an 
invention with an employee under Sec. 6.5(b)(2), the Solicitor will, 
upon the filing of an application for patent and pending review of the 
determination by the Commissioner, take the rights specified in that 
paragraph, without prejudice to the subsequent acquisition by the 
Government of the rights specified in Sec. 6.5(b)(1) should the 
Commissioner so decide.
    (d) In the event that the Solicitor determines that an application 
for patent will not be filed on an invention made under the 
circumstances specified in Sec. 6.5(b)(1) giving the United States the 
right to title thereto, the Solicitor shall subject to considerations of 
national security, or public health, safety, or welfare, report to the 
Commissioner promptly upon making such determination, the following 
information concerning the invention:
    (1) Description of the invention in sufficient detail to permit a 
satisfactory review;
    (2) Name of the inventor and his employment status;
    (3) Statement of the Solicitor's determination and reasons therefor.

The Commissioner, may, if he determines that the interest of the 
Government so requires and subject to considerations of national 
security, or public health safety, or welfare, bring the invention to 
the attention of any Government agency to whose activities the invention 
may be pertinent, or cause the invention to be fully disclosed by 
publication thereof.



Sec. 6.8  Foreign filing.

    (a) By Government. (1) In every case where the employee has 
indicated pursuant to Sec. 6.2(d)(10), his willingness to assign the 
domestic patent rights in the invention to the Government, or where it 
has been determined pursuant to Sec. 6.5 that the Government shall 
obtain the entire domestic patent rights, the Government shall reserve 
an option to acquire assignment of all foreign

[[Page 170]]

rights including the rights to file foreign patent applications or 
otherwise to seek protection abroad on the invention.
    (2) The Government's option shall lapse as regards any foreign 
country:
    (i) When the Solicitor determines after consultation with the agency 
most directly concerned, not to cause an application to be filed in said 
foreign country or otherwise to seek protection of the invention, as by 
publication;
    (ii) When the Solicitor fails to take action to seek protection of 
the invention in said foreign country (a) within six months of the 
filing of an application for a United States patent on the invention, or 
(b) within six months of declassification of an invention previously 
under a security classification, whichever is later.
    (b) By Employee. (1) No Department employee shall file or cause to 
be filed an application for patent in any foreign country on any 
invention in which the Government has acquired the entire (foreign and 
domestic) patent rights, or holds an unexpired option to acquire the 
patent rights in said foreign country, or take any steps which would 
preclude the filing of an application by or on behalf of the Government.
    (2) An employee may file in any foreign country where the Government 
has not exercised its option acquired pursuant to Sec. 6.2(d)(10), to 
do so, or determines not to do so.
    (3) The determination or failure to act as set forth in Sec. 
6.8(a)(2) shall constitute a decision by the Government to leave the 
foreign patent rights to the invention in the employee, subject to a 
nonexclusive, irrevocable, royalty-free license to the Government in any 
patent which may issue thereon in any foreign country, including the 
power to issue sublicenses for governmental purposes or in furtherance 
of the foreign policies of the Government or both.



Sec. 6.9  Publication and public use of invention before patent application is filed.

    (a) Publication or public use of an invention constitutes a 
statutory bar to the granting of a patent for the invention unless a 
patent application is filed within one year of the date of such 
publication or public use. In order to preserve rights in unpatented 
inventions, it shall be the duty of the inventor, or of his supervisor 
if the inventor is not available to make such report, to report 
forthwith to the Solicitor any publication or use (other than 
experimental) of an invention, irrespective of whether an invention 
report has previously been filed. If an invention report has not been 
filed, such a report, including information concerning the public use or 
publication, shall be filed at once. If an invention is disclosed to any 
person who is not employed by the Department or working in cooperation 
with the Department upon that invention, a record shall be kept of the 
date and extent of the disclosure, the name and address of the person to 
whom the disclosure was made, and the purpose of the disclosure.
    (b) No description, specification, plan, or drawing of any 
unpatented invention upon which a patent application is likely to be 
filed shall be published, nor shall any written description, 
specification, plan, or drawing of such invention be furnished to anyone 
other than an employee of the Department or a person working in 
cooperation with the Department upon that invention, unless the 
Solicitor is of the opinion that the interests of the Government will 
not be prejudiced by such action. If any publication disclosing the 
invention, not previously approved by the Solicitor, comes to the 
attention of the inventor or his supervisor, it shall be the duty of 
such person to report such publication to the Solicitor.



Sec. 6.10  Publicity concerning the invention after patent application is filed.

    In order that the public may obtain the greatest possible benefit 
from inventions in which the Secretary has transferable interests, 
inventions assigned to the Secretary upon which patent applications have 
been filed shall be publicized as widely as possible, within limitations 
of authority, by the Department, by the originating agency, by the 
division in which the inventor is employed, and by the inventor himself 
in his contacts with industries in which the invention is or may

[[Page 171]]

be useful. Regular organs of publication shall be utilized to the 
greatest extent possible. In addition, it shall be the duty of the 
Solicitor, upon being advised of the issuance of any patent assigned to 
the Secretary, to take steps towards listing the patent as available for 
licensing, where feasible.



Sec. 6.11  Condition of employment.

    (a) The regulations in this subpart shall be a condition of 
employment of all employees of the Department and shall be effective as 
to all their inventions. These regulations shall be effective without 
regard to any existing or future contracts to the contrary entered into 
by any employee of the Department with any person other than the 
Government.
    (b) If a patent application is filed upon an invention which has 
been made by an employee of the Department under circumstances that 
entitle the Government to the entire domestic right, title and interest 
in and to the invention, but which has not been reported to the 
Solicitor pursuant to the regulations in this subpart, title to such 
invention shall immediately vest in the Government, as represented by 
the Secretary, and the contract of employment shall be considered an 
assignment of such rights.



                           Subpart B_Licenses



Sec. 6.51  Purpose.

    It is the purpose of the regulations in this subpart to secure for 
the people of the United States the full benefits of Government research 
and investigation in the Department of the Interior (a) by providing a 
simple procedure under which the public may obtain licenses to use 
patents and inventions in which the Secretary of the Interior has 
transferable interests and which are available for licensing; and (b) by 
providing adequate protection for the inventions until such time as they 
may be made available for licensing without undue risk of losing patent 
protection to which the public is entitled.

[31 FR 10796, Aug. 13, 1966]



Sec. 6.52  Patents.

    Patents in which the Secretary of the interior has transferable 
interests, and under which he may issue licenses or sublicenses, are 
classified as follows:
    (a) Class A. Patents, other than those referred to in paragraph (c) 
of this section, which are owned by the United States, as represented by 
the Secretary of the Interior, free from restrictions on licensing 
except such as are inherent in Government ownership;
    (b) Class B. Patents in which the interest of the United States, as 
represented by the Secretary of the Interior, is less than full 
ownership, or is subject to some express restriction upon licensing or 
sublicensing (including patents upon which the Secretary of the Interior 
holds a license, patents assigned to the Secretary of the Interior as 
trustee for the people of the United States, and patents assigned to the 
Secretary of the Interior upon such terms as to effect a dedication to 
the public);
    (c) Class C. Patents and patent rights acquired by the Secretary of 
the Interior pursuant to the Act of April 5, 1944 (58 Stat. 190; 30 
U.S.C. 321-325), and any amendments thereof.

[29 FR 260, Jan. 10, 1964, as amended at 31 FR 10796, Aug. 13, 1966]



Sec. 6.53  Unpatented inventions.

    The Secretary of the Interior may also have transferable interests 
in inventions which are not yet patented. In order to protect the patent 
rights of the Department, for the eventual benefit of the public, a 
license may be granted with respect to such an invention only if (a) a 
patent application has been filed thereon; (b) the invention has been 
assigned to the United States, as represented by the Secretary of the 
Interior, and the assignment has been recorded in the Patent Office; and 
(c) the Solicitor of the Department is of the opinion that the issuance 
of a license will not prejudice the interests of the Government in the 
invention. Such licenses shall be upon the same terms as licenses 
relating to patents of the same class, as described in Sec. 6.52.

[[Page 172]]



Sec. 6.54  Use or manufacture by or for the Government.

    A license is not required with respect to the manufacture or use of 
any invention assigned or required to be assigned without restrictions 
or qualifications to the United States when such manufacture or use is 
by or for the Government for governmental purposes. A license or 
sublicense may be required, however, for such manufacture or use in the 
case of Class B patents or patent rights when the terms under which the 
Secretary of the Interior acquires interests therein necessitate the 
issuance of a license or sublicense in such circumstances.

[31 FR 10796, Aug. 13, 1966]



Sec. 6.55  Terms of licenses or sublicenses.

    (a) No license or sublicense shall be granted under any patent in 
which the Secretary of the Interior has transferable interests, except 
as set forth under these regulations, the terms and conditions of which 
shall be expressly stated in such license and sublicense. The terms of 
licenses and sublicenses issued under this subpart shall not be 
unreasonably restrictive.
    (b) To the extent that they do not conflict with any restrictions to 
which the licensing or sublicensing of Class B patents and unpatented 
inventions may be subject, all licenses and sublicenses relating to 
Class A and Class B patents and unpatented inventions shall be subject 
to the following terms and provisions, and to such other terms and 
conditions as the Solicitor may prescribe:
    (1) The acceptance of a license or sublicense shall not be construed 
as a waiver of the right to contest the validity of the patent. A 
license or sublicense shall be revocable only upon a finding by the 
Solicitor of the Department that the terms of the license or sublicense 
have been violated and that the revocation of the license or sublicense 
is in the public interest. Such finding shall be made only after 
reasonable notice and an opportunity to be heard.
    (2) Licenses and sublicenses shall be nontransferable. Upon a 
satisfactory showing that the Government or public will be benefited 
thereby, they may be granted to properly qualified applicants royalty-
free. If no such showing is made, they shall be granted only upon a 
reasonable royalty or other consideration, the amount or character of 
which is to be determined by the Solicitor. A cross-licensing agreement 
may be considered adequate consideration.
    (3) Licensees and sublicensees may be required to submit annual or 
more frequent technical or statistical reports concerning practical 
experience acquired through the exercise of the license or sublicense, 
the extent of the production under the license or sublicense, and other 
related subjects.
    (4) A licensee or sublicensee manufacturing a patented article 
pursuant to a license or sublicense shall give notice to the public that 
the article is patented by affixing thereon the word ``patent'', 
together with the number of the patent, or when, from the character of 
the article, this cannot be done, by fixing to it, or to the package in 
which it is enclosed, a label containing such notice.
    (c) Licenses and sublicenses relating to Class C patents and patent 
rights shall be granted upon such terms and conditions as may be 
prescribed pursuant to sections 3 and 5 of the Act of April 5 1944, and 
any amendments thereof.

[29 FR 260, Jan. 10, 1964, as amended at 31 FR 10796, Aug. 13, 1966]



Sec. 6.56  Issuance of licenses.

    (a) Any person desiring a license relating to an invention upon 
which the Secretary of the Interior holds a patent or patent rights may 
file with the Solicitor of the Department of the Interior an application 
for a license, stating:
    (1) The name, address, and citizenship of the applicant;
    (2) The nature of his business;
    (3) The patent or invention upon which he desires a license;
    (4) The purpose for which he desires a license;
    (5) His experience in the field of the desired license;
    (6) Any patents, licenses, or other patent rights which he may have 
in the field of the desired license; and

[[Page 173]]

    (7) The benefits, if any, which the applicant expects the public to 
derive from his proposed use of the invention
    (b) It shall be the duty of the Solicitor, after consultation with 
the bureau most directly interested in the patent or invention involved 
in an application for a license, and with the Evaluation Committee if 
royalties are to be charged, to determine whether the license shall be 
granted. If he determines that a license is to be granted, he shall 
execute on behalf of the Secretary, an appropriate license.



Sec. 6.57  Evaluation Committee.

    At the request of the Solicitor, an Evaluation Committee will be 
appointed by the Secretary to recommend royalty rates with respect to 
any patents or inventions for which royalties may be charged.



PART 7_PROTECTION OF ARCHAEOLOGICAL RESOURCES--Table of Contents



                      Subpart A_Uniform Regulations

Sec.
7.1 Purpose.
7.2 Authority.
7.3 Definitions.
7.4 Prohibited acts and criminal penalties.
7.5 Permit requirements and exceptions.
7.6 Application for permits and information collection.
7.7 Notification to Indian tribes of possible harm to, or destruction 
          of, sites on public lands having religious or cultural 
          importance.
7.8 Issuance of permits.
7.9 Terms and conditions of permits.
7.10 Suspension and revocation of permits.
7.11 Appeals relating to permits.
7.12 Relationship to section 106 of the National Historic Preservation 
          Act.
7.13 Custody of archaeological resources.
7.14 Determination of archaeological or commercial value and cost of 
          restoration and repair.
7.15 Assessment of civil penalties.
7.16 Civil penalty amounts.
7.17 Other penalties and rewards.
7.18 Confidentiality of archaeological resource information.
7.19 Report.
7.20 Public awareness programs.
7.21 Surveys and schedules.

      Subpart B_Department of the Interior Supplemental Regulations

7.31 Scope and authority.
7.32 Supplemental definitions.
7.33 Determination of loss or absence of archaeological interest.
7.34 Procedural information for securing permits.
7.35 Permitting procedures for Indian lands.
7.36 Permit reviews and disputes.
7.37 Civil penalty hearings procedures.

    Authority: Pub. L. 96-95, 93 Stat. 721, as amended; 102 Stat. 2983 
(16 U.S.C. 470aa-mm) (Sec. 10(a). Related authority: Pub. L. 59-209, 34 
Stat. 225 (16 U.S.C. 432,433); Pub. L. 86-523; 74 Stat. 220, 221 (16 
U.S.C. 469), as amended; 88 Stat. 174 (1974); Pub. L. 89-665, 80 Stat. 
915 (16 U.S.C. 470a-t), as amended, 84 Stat. 204 (1970), 87 Stat. 139 
(1973), 90 Stat. 1320 (1976), 92 Stat. 3467 (1978), 94 Stat. 2987 
(1980); Pub. L. 95-341, 92 Stat. 469 (42 U.S.C. 1996).



                      Subpart A_Uniform Regulations

    Source: 49 FR 1027, Jan. 6, 1984, unless otherwise noted.



Sec. 7.1  Purpose.

    (a) The regulations in this part implement provisions of the 
Archaeological Resources Protection Act of 1979, as amended (16 U.S.C. 
470aa-mm) by establishing the uniform definitions, standards, and 
procedures to be followed by all Federal land managers in providing 
protection for archaeological resources, located on public lands and 
Indian lands of the United States. These regulations enable Federal land 
managers to protect archaeological resources, taking into consideration 
provisions of the American Indian Religious Freedom Act (92 Stat. 469; 
42 U.S.C. 1996), through permits authorizing excavation and/or removal 
of archaeological resources, through civil penalties for unauthorized 
excavation and/or removal, through provisions for the preservation of 
archaeological resource collections and data, and through provisions for 
ensuring confidentiality of information about archaeological resources 
when disclosure would threaten the archaeological resources.
    (b) The regulations in this part do not impose any new restrictions 
on activities permitted under other laws, authorities, and regulations 
relating to mining, mineral leasing, reclamation,

[[Page 174]]

and other multiple uses of the public lands.

[49 FR 1027, Jan. 6, 1984, as amended at 60 FR 5260, Jan. 26, 1995]



Sec. 7.2  Authority.

    (a) The regulations in this part are promulgated pursuant to section 
10(a) of the Archaeological Resources Protection Act of 1979 (16 U.S.C. 
470ii), which requires that the Secretaries of the Interior, Agriculture 
and Defense and the Chairman of the Board of the Tennessee Valley 
Authority jointly develop uniform rules and regulations for carrying out 
the purposes of the Act.
    (b) In addition to the regulations in this part, section 10(b) of 
the Act (16 U.S.C. 470ii) provides that each Federal land manager shall 
promulgate such rules and regulations, consistent with the uniform rules 
and regulations in this part, as may be necessary for carrying out the 
purposes of the Act.



Sec. 7.3  Definitions.

    As used for purposes of this part:
    (a) Archaeological resource means any material remains of human life 
or activities which are at least 100 years of age, and which are of 
archaeological interest.
    (1) Of archaeological interest means capable of providing scientific 
or humanistic understandings of past human behavior, cultural 
adaptation, and related topics through the application of scientific or 
scholarly techniques such as controlled observation, contextual 
measurement, controlled collection, analysis, interpretation and 
explanation.
    (2) Material remains means physical evidence of human habitation, 
occupation, use, or activity, including the site, location, or context 
in which such evidence is situated.
    (3) The 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 glassware, bone, ivory, shell, metal, wood, 
hide, feathers, pigments, and flaked, ground, or pecked stone);
    (iv) By-products, waste products, or debris resulting from 
manufacture or use of human-made or natural materials;
    (v) Organic waste (including, but not limited to, vegetal and animal 
remains, coprolites);
    (vi) Human remains (including, but not limited to, bone, teeth, 
mummified flesh, burials, cremations);
    (vii) Rock carvings, rock paintings, intaglios and other works of 
artistic or symbolic representation;
    (viii) Rockshelters and caves or portions thereof containing any of 
the above material remains;
    (ix) All portions of shipwrecks (including, but not limited to, 
armaments, apparel, tackle, cargo);
    (x) Any portion or piece of any of the foregoing.
    (4) The following material remains shall not be considered of 
archaeological interest, and shall not be considered to be 
archaeological resources for purposes of the Act and this part, unless 
found in a direct physical relationship with archaeological resources as 
defined in this section:
    (i) Paleontological remains;
    (ii) Coins, bullets, and unworked minerals and rocks.
    (5) The Federal land manager may determine that certain material 
remains, in specified areas under the Federal land manager's 
jurisdiction, and under specified circumstances, are not or are no 
longer of archaeological interest and are not to be considered

[[Page 175]]

archaeological resources under this part. Any determination made 
pursuant to this subparagraph shall be documented. Such determination 
shall in no way affect the Federal land manager's obligations under 
other applicable laws or regulations.
    (6) For the disposition following lawful removal or excavations of 
Native American human remains and ``cultural items'', as defined by the 
Native American Graves Protection and Repatriation Act (NAGPRA; Pub. L. 
101-601; 104 Stat. 3050; 25 U.S.C. 3001-13), the Federal land manager is 
referred to NAGPRA and its implementing regulations.
    (b) Arrowhead means any projectile point which appears to have been 
designed for use with an arrow.
    (c) Federal land manager means:
    (1) With respect to any public lands, the secretary of the 
department, or the head of any other agency or instrumentality of the 
United States, having primary management authority over such lands, 
including persons to whom such management authority has been officially 
delegated;
    (2) In the case of Indian lands, or any public lands with respect to 
which no department, agency or instrumentality has primary management 
authority, such term means the Secretary of the Interior;
    (3) The Secretary of the Interior, when the head of any other agency 
or instrumentality has, pursuant to section 3(2) of the Act and with the 
consent of the Secretary of the Interior, delegated to the Secretary of 
the Interior the responsibilities (in whole or in part) in this part.
    (d) Public lands means:
    (1) Lands which are owned and administered by the United States as 
part of the national park system, the national wildlife refuge system, 
or the national forest system; and
    (2) All other lands the fee title to which is held by the United 
States, except lands on the Outer Continental Shelf, lands under the 
jurisdiction of the Smithsonian Institution, and Indian lands.
    (e) Indian lands means lands of Indian tribes, or Indian 
individuals, which are either held in trust by the United States or 
subject to a restriction against alienation imposed by the United 
States, except for subsurface interests not owned or controlled by an 
Indian tribe or Indian individual.
    (f) Indian tribe as defined in the Act means any Indian tribe, band, 
nation, or other organized group or community, including any Alaska 
village or regional or village corporation as defined in, or established 
pursuant to, the Alaska Native Claims Settlement Act (85 Stat. 688). In 
order to clarify this statutory definition for purposes of this part, 
``Indian tribe'' means:
    (1) Any tribal entity which is included in the annual list of 
recognized tribes published in the Federal Register by the Secretary of 
the Interior pursuant to 25 CFR part 54;
    (2) Any other tribal entity acknowledged by the Secretary of the 
Interior pursuant to 25 CFR part 54 since the most recent publication of 
the annual list; and
    (3) Any Alaska Native village or regional or village corporation as 
defined in or established pursuant to the Alaska Native Claims 
Settlement Act (85 Stat. 688), and any Alaska Native village or tribe 
which is recognized by the Secretary of the Interior as eligible for 
services provided by the Bureau of Indian Affairs.
    (g) Person means an individual, corporation, partnership, trust, 
institution, association, or any other private entity, or any officer, 
employee, agent, department, or instrumentality of the United States, or 
of any Indian tribe, or of any State or political subdivision thereof.
    (h) State means any of the fifty states, the District of Columbia, 
Puerto Rico, Guam, and the Virgin Islands.
    (i) Act means the Archaeological Resources Protection Act of 1979 
(16 U.S.C. 470aa-mm).

[49 FR 1027, Jan. 6, 1984; 49 FR 5923, Feb. 16, 1984, as amended at 60 
FR 5260, Jan. 26, 1995]



Sec. 7.4  Prohibited acts and criminal penalties.

    (a) Under section 6(a) of the Act, no person may excavate, remove, 
damage, or otherwise alter or deface, or attempt to excavate, remove, 
damage, or otherwise alter or deface any archaeological

[[Page 176]]

resource located on public lands or Indian lands unless such activity is 
pursuant to a permit issued under Sec. 7.8 or exempted by Sec. 7.5(b) 
of this part.
    (b) No person may sell, purchase, exchange, transport, or receive 
any archaeological resource, if such resource was excavated or removed 
in violation of:
    (1) The prohibitions contained in paragraph (a) of this section; or
    (2) Any provision, rule, regulation, ordinance, or permit in effect 
under any other provision of Federal law.
    (c) Under section (d) of the Act, any person who knowingly violates 
or counsels, procures, solicits, or employs any other person to violate 
any prohibition contained in section 6 (a), (b), or (c) of the Act will, 
upon conviction, be fined not more than $10,000.00 or imprisoned not 
more than one year, or both: provided, however, that if the commercial 
or archaeological value of the archaeological resources involved and the 
cost of restoration and repair of such resources exceeds the sum of 
$500.00, such person will be fined not more than $20,000.00 or 
imprisoned not more than two years, or both. In the case of a second or 
subsequent such violation upon conviction such person will be fined not 
more than $100,000.00, or imprisoned not more than five years, or both.

[49 FR 1027, Jan. 6, 1984, as amended at 60 FR 5260, Jan. 26, 1995]



Sec. 7.5  Permit requirements and exceptions.

    (a) Any person proposing to excavate and/or remove archaeological 
resources from public lands or Indian lands, and to carry out activities 
associated with such excavation and/or removal, shall apply to the 
Federal land manager for a permit for the proposed work, and shall not 
begin the proposed work until a permit has been issued. The Federal land 
manager may issue a permit to any qualified person, subject to 
appropriate terms and conditions, provided that the person applying for 
a permit meets conditions in Sec. 7.8(a) of this part.
    (b) Exceptions:
    (1) No permit shall be required under this part for any person 
conducting activities on the public lands under other permits, leases, 
licenses, or entitlements for use, when those activities are exclusively 
for purposes other than the excavation and/or removal of archaeological 
resources, even though those activities might incidentally result in the 
disturbance of archaeological resources. General earth-moving excavation 
conducted under a permit or other authorization shall not be construed 
to mean excavation and/or removal as used in this part. This exception 
does not, however, affect the Federal land manager's responsibility to 
comply with other authorities which protect archaeological resources 
prior to approving permits, leases, licenses, or entitlements for use; 
any excavation and/or removal of archaeological resources required for 
compliance with those authorities shall be conducted in accordance with 
the permit requirements of this part.
    (2) No permit shall be required under this part for any person 
collecting for private purposes any rock, coin, bullet, or mineral which 
is not an archaeological resource as defined in this part, provided that 
such collecting does not result in disturbance of any archaelogical 
resource.
    (3) No permit shall be required under this part or under section 3 
of the Act of June 8, 1906 (16 U.S.C. 432), for the excavation or 
removal by any Indian tribe or member thereof of any archaeological 
resource located on Indian lands of such Indian tribe, except that in 
the absence of tribal law regulating the excavation or removal or 
archaeological resources on Indian lands, an individual tribal member 
shall be required to obtain a permit under this part;
    (4) No permit shall be required under this part for any person to 
carry out any archaeological activity authorized by a permit issued 
under section 3 of the Act of June 8, 1906 (16 U.S.C. 432), before the 
enactment of the Archaeological Resources Protection Act of 1979. Such 
permit shall remain in effect according to its terms and conditions 
until expiration.
    (5) No permit shall be required under section 3 of the Act of June 
8, 1906 (16 U.S.C. 432) for any archaeological work for which a permit 
is issued under this part.

[[Page 177]]

    (c) Persons carrying out official agency duties under the Federal 
land manager's direction, associated with the management of 
archaeological resources, need not follow the permit application 
procedures of Sec. 7.6. However, the Federal land manager shall insure 
that provisions of Sec. Sec. 7.8 and 7.9 have been met by other 
documented means, and that any official duties which might result in 
harm to or destruction of any Indian tribal religious or cultural site, 
as determined by the Federal land manager, have been the subject of 
consideration under Sec. 7.7.
    (d) Upon the written request of the Governor of any State, on behalf 
of the State or its educational institutions, the Federal land manager 
shall issue a permit, subject to the provisions of Sec. Sec. 7.5(b)(5), 
7.7, 7.8(a) (3), (4), (5), (6), and (7), 7.9, 7.10, 7.12, and 7.13(a) to 
such Governor or to such designee as the Governor deems qualified to 
carry out the intent of the Act, for purposes of conducting 
archaeological research, excavating and/or removing archaeological 
resources, and safeguarding and preserving any materials and data 
collected in a university, museum, or other scientific or educational 
institution approved by the Federal land manager.
    (e) Under other statutory, regulatory, or administrative authorities 
governing the use of public lands and Indian lands, authorizations may 
be required for activities which do not require a permit under this 
part. Any person wishing to conduct on public lands or Indian lands any 
activities related to but believed to fall outside the scope of this 
part should consult with the Federal land manager, for the purpose of 
determining whether any authorization is required, prior to beginning 
such activities.



Sec. 7.6  Application for permits and information collection.

    (a) Any person may apply to the appropriate Federal land manager for 
a permit to excavate and/or remove archaeological resources from public 
lands or Indian lands and to carry out activities associated with such 
excavation and/or removal.
    (b) Each application for a permit shall include:
    (1) The nature and extent of the work proposed, including how and 
why it is proposed to be conducted, proposed time of performance, 
locational maps, and proposed outlet for public written dissemination of 
the results.
    (2) The name and address of the individual(s) proposed to be 
responsible for conducting the work, institutional affiliation, if any, 
and evidence of education, training, and experience in accord with the 
minimal qualifications listed in Sec. 7.8(a).
    (3) The name and address of the individual(s), if different from the 
individual(s) named in paragraph (b)(2) of this section, proposed to be 
responsible for carrying out the terms and conditions of the permit.
    (4) Evidence of the applicant's ability to initiate, conduct, and 
complete the proposed work, including evidence of logistical support and 
laboratory facilities.
    (5) Where the application is for the excavation and/or removal of 
archaeological resources on public lands, the names of the university, 
museum, or other scientific or educational institution in which the 
applicant proposes to store all collections, and copies of records, 
data, photographs, and other documents derived from the proposed work. 
Applicants shall submit written certification, signed by an authorized 
official of the institution, of willingness to assume curatorial 
responsibility for the collections, records, data, photographs and other 
documents and to safeguard and preserve these materials as property of 
the United States.
    (6) Where the application is for the excavation and/or removal of 
archaeological resources on Indian lands, the name of the university, 
museum, or other scientific or educational institution in which the 
applicant proposes to store copies of records, data, photographs, and 
other documents derived from the proposed work, and all collections in 
the event the Indian owners do not wish to take custody or otherwise 
dispose of the archaeological resources. Applicants shall submit written 
certification, signed by an authorized official of the institution, or 
willingness to assume curatorial responsibility for the collections, if 
applicable, and/or the records, data, photographs, and other

[[Page 178]]

documents derived from the proposed work.
    (c) The Federal land manager may require additional information, 
pertinent to land management responsibilities, to be included in the 
application for permit and shall so inform the applicant.
    (d) Paperwork Reduction Act. The information collection requirement 
contained in Sec. 7.6 of these regulations has been approved by the 
Office of Management and Budget under 44 U.S.C. 3501 et seq. and 
assigned clearance number 1024-0037. The purpose of the information 
collection is to meet statutory and administrative requirements in the 
public interest. The information will be used to assist Federal land 
managers in determining that applicants for permits are qualified, that 
the work proposed would further archaeological knowledge, that 
archaeological resources and associated records and data will be 
properly preserved, and that the permitted activity would not conflict 
with the management of the public lands involved. Response to the 
information requirement is necessary in order for an applicant to obtain 
a benefit.



Sec. 7.7  Notification to Indian tribes of possible harm to, or destruction of, sites on public lands having religious or cultural importance.

    (a) If the issuance of a permit under this part may result in harm 
to, or destruction of, any Indian tribal religious or cultural site on 
public lands, as determined by the Federal land manager, at least 30 
days before issuing such a permit the Federal land manager shall notify 
any Indian tribe which may consider the site as having religious or 
cultural importance. Such notice shall not be deemed a disclosure to the 
public for purposes of section 9 of the Act.
    (1) Notice by the Federal land manager to any Indian tribe shall be 
sent to the chief executive officer or other designated official of the 
tribe. Indian tribes are encouraged to designate a tribal official to be 
the focal point for any notification and discussion between the tribe 
and the Federal land manager.
    (2) The Federal land manager may provide notice to any other Native 
American group that is known by the Federal land manager to consider 
sites potentially affected as being of religious or cultural importance.
    (3) Upon request during the 30-day period, the Federal land manager 
may meet with official representatives of any Indian tribe or group to 
discuss their interests, including ways to avoid or mitigate potential 
harm or destruction such as excluding sites from the permit area. Any 
mitigation measures which are adopted shall be incorporated into the 
terms and conditions of the permit under Sec. 7.9.
    (4) When the Federal land manager determines that a permit applied 
for under this part must be issued immediately because of an imminent 
threat of loss or destruction of an archaeological resource, the Federal 
land manager shall so notify the appropriate tribe.
    (b)(1) In order to identify sites of religious or cultural 
importance, the Federal land manager shall seek to identify all Indian 
tribes having aboriginal or historic ties to the lands under the Federal 
land manager's jurisdiction and seek to determine, from the chief 
executive officer or other designated official of any such tribe, the 
location and nature of specific sites of religious or cultural 
importance so that such information may be on file for land management 
purposes. Information on sites eligible for or included in the National 
Register of Historic Places may be withheld from public disclosure 
pursuant to section 304 of the Act of October 15, 1966, as amended (16 
U.S.C. 470w-3).
    (2) If the Federal land manager becomes aware of a Native American 
group that is not an Indian tribe as defined in this part but has 
aboriginal or historic ties to public lands under the Federal land 
manager's jurisdiction, the Federal land manager may seek to communicate 
with official representatives of that group to obtain information on 
sites they may consider to be of religious or cultural importance.
    (3) The Federal land manager may enter into agreement with any 
Indian tribe or other Native American group for determining locations 
for which such tribe or group wishes to receive notice under this 
section.

[[Page 179]]

    (4) The Federal land manager should also seek to determine, in 
consultation with official representatives of Indian tribes or other 
Native American groups, what circumstances should be the subject of 
special notification to the tribe or group after a permit has been 
issued. Circumstances calling for notification might include the 
discovery of human remains. When circumstances for special notification 
have been determined by the Federal land manager, the Federal land 
manager will include a requirement in the terms and conditions of 
permits, under Sec. 7.9(c), for permittees to notify the Federal land 
manger immediately upon the occurrence of such circumstances. Following 
the permittee's notification, the Federal land manager will notify and 
consult with the tribe or group as appropriate. In cases involving 
Native American human remains and other ``cultural items'', as defined 
by NAGPRA, the Federal land manager is referred to NAGPRA and its 
implementing regulations.

[49 FR 1027, Jan. 6, 1984, as amended at 60 FR 5260, 5261, Jan. 26, 
1995]



Sec. 7.8  Issuance of permits.

    (a) The Federal land manager may issue a permit, for a specified 
period of time appropriate to the work to be conducted, upon determining 
that:
    (1) The applicant is appropriately qualified, as evidenced by 
training, education, and/or experience, and possesses demonstrable 
competence in archaeological theory and methods, and in collecting, 
handling, analyzing, evaluating, and reporting archaeological data, 
relative to the type and scope of the work proposed, and also meets the 
following minimum qualifications:
    (i) A graduate degree in anthropology or archaeology, or equivalent 
training and experience;
    (ii) The demonstrated ability to plan, equip, staff, organize, and 
supervise activity of the type and scope proposed;
    (iii) The demonstrated ability to carry research to completion, as 
evidenced by timely completion of theses, research reports, or similar 
documents;
    (iv) Completion of at least 16 months of professional experience 
and/or specialized training in archaeological field, laboratory, or 
library research, administration, or management, including at least 4 
months experience and/or specialized training in the kind of activity 
the individual proposes to conduct under authority of a permit; and
    (v) Applicants proposing to engage in historical archaeology should 
have had at least one year of experience in research concerning 
archaeological resources of the historic period. Applicants proposing to 
engage in prehistoric archaeology should have had at least one year of 
experience in research concerning archaeological resources of the 
prehistoric period.
    (2) The proposed work is to be undertaken for the purpose of 
furthering archaeological knowledge in the public interest, which may 
include but need not be limited to, scientific or scholarly research, 
and preservation of archaeological data;
    (3) The proposed work, including time, scope, location, and purpose, 
is not inconsistent with any management plan or established policy, 
objectives, or requirements applicable to the management of the public 
lands concerned;
    (4) Where the proposed work consists of archaeological survey and/or 
data recovery undertaken in accordance with other approved uses of the 
public lands or Indian lands, and the proposed work has been agreed to 
in writing by the Federal land manager pursuant to section 106 of the 
National Historic Preservation Act (16 U.S.C. 470f), paragraphs (a)(2) 
and (a)(3) shall be deemed satisfied by the prior approval.
    (5) Written consent has been obtained, for work proposed on Indian 
lands, from the Indian landowner and the Indian tribe having 
jurisdiction over such lands;
    (6) Evidence is submitted to the Federal land manager that any 
university, museum, or other scientific or educational institution 
proposed in the application as the repository possesses adequate 
curatorial capability for safeguarding and preserving the archaeological 
resources and all associated records; and
    (7) The applicant has certified that, not later than 90 days after 
the date the final report is submitted to the Federal land manager, the 
following

[[Page 180]]

will be delivered to the appropriate official of the approved 
university, museum, or other scientific or educational institution, 
which shall be named in the permit:
    (i) All artifacts, samples, collections, and copies of records, 
data, photographs, and other documents resulting from work conducted 
under the requested permit where the permit is for the excavation and/or 
removal of archaeological resources from public lands.
    (ii) All artifacts, samples and collections resulting from work 
under the requested permit for which the custody or disposition is not 
undertaken by the Indian owners, and copies of records, data, 
photographs, and other documents resulting from work conducted under the 
requested permit, where the permit is for the excavation and/or removal 
of archaeological resources from Indian lands.
    (b) When the area of the proposed work would cross jurisdictional 
boundaries, so that permit applications must be submitted to more than 
one Federal land manager, the Federal land managers shall coordinate the 
review and evaluation of applications and the issuance of permits.

[49 FR 1027, Jan. 6, 1984; 49 FR 5923, Feb. 16, 1984]



Sec. 7.9  Terms and conditions of permits.

    (a) In all permits issued, the Federal land manager shall specify:
    (1) The nature and extent of work allowed and required under the 
permit, including the time, duration, scope, location, and purpose of 
the work;
    (2) The name of the individual(s) responsible for conducting the 
work and, if different, the name of the individual(s) responsible for 
carrying out the terms and conditions of the permit;
    (3) The name of any university, museum, or other scientific or 
educational institutions in which any collected materials and data shall 
be deposited; and
    (4) Reporting requirements.
    (b) The Federal land manager may specify such terms and conditions 
as deemed necessary, consistent with this part, to protect public safety 
and other values and/or resources, to secure work areas, to safeguard 
other legitimate land uses, and to limit activities incidental to work 
authorized under a permit.
    (c) The Federal land manager shall include in permits issued for 
archaeological work on Indian lands such terms and conditions as may be 
requested by the Indian landowner and the Indian tribe having 
jurisdiction over the lands, and for archaeological work on public lands 
shall include such terms and conditions as may have been developed 
pursuant to Sec. 7.7.
    (d) Initiation of work or other activities under the authority of a 
permit signifies the permittee's acceptance of the terms and conditions 
of the permit.
    (e) The permittee shall not be released from requirements of a 
permit until all outstanding obligations have been satisfied, whether or 
not the term of the permit has expired.
    (f) The permittee may request that the Federal land manager extend 
or modify a permit.
    (g) The permittee's performance under any permit issued for a period 
greater than 1 year shall be subject to review by the Federal land 
manager, at least annually.



Sec. 7.10  Suspension and revocation of permits.

    (a) Suspension or revocation for cause. (1) The Federal land manager 
may suspend a permit issued pursuant to this part upon determining that 
the permittee has failed to meet any of the terms and conditions of the 
permit or has violated any prohibition of the Act or Sec. 7.4. The 
Federal land manager shall provide written notice to the permittee of 
the suspension, the cause thereof, and the requirements which must be 
met before the suspension will be removed.
    (2) The Federal land manager may revoke a permit upon assessment of 
a civil penalty under Sec. 7.15 upon the permittee's conviction under 
section 6 of the Act, or upon determining that the permittee has failed 
after notice under this section to correct the situation which led to 
suspension of the permit.
    (b) Suspension or revocation for management purposes. The Federal 
land manager may suspend or revoke a permit, without liability to the 
United States, its agents, or employees, when continuation of work under 
the permit

[[Page 181]]

would be in conflict with management requirements not in effect when the 
permit was issued. The Federal land manager shall provide written notice 
to the permittee stating the nature of and basis for the suspension or 
revocation.

[49 FR 1027, Jan. 6, 1984; 49 FR 5923, Feb. 16, 1984]



Sec. 7.11  Appeals relating to permits.

    Any affected person may appeal permit issuance, denial of permit 
issuance, suspension, revocation, and terms and conditions of a permit 
through existing administrative appeal procedures, or through procedures 
which may be established by the Federal land manager pursuant to section 
10(b) of the Act and this part.



Sec. 7.12  Relationship to section 106 of the National Historic Preservation Act.

    Issuance of a permit in accordance with the Act and this part does 
not constitute an undertaking requiring compliance with section 106 of 
the Act of October 15, 1966 (16 U.S.C. 470f). However, the mere issuance 
of such a permit does not excuse the Federal land manager from 
compliance with section 106 where otherwise required.



Sec. 7.13  Custody of archaeological resources.

    (a) Archaeological resources excavated or removed from the public 
lands remain the property of the United States.
    (b) Archaeological resources excavated or removed from Indian lands 
remain the property of the Indian or Indian tribe having rights of 
ownership over such resources.
    (c) The Secretary of the Interior may promulgate regulations 
providing for the exchange of archaeological resources among suitable 
universities, museums, or other scientific or educational institutions, 
for the ultimate disposition of archaeological resources, and for 
standards by which archaeological resources shall be preserved and 
maintained, when such resources have been excavated or removed from 
public lands and Indian lands.
    (d) In the absence of regulations referenced in paragraph (c) of 
this section, the Federal land manager may provide for the exchange of 
archaeological resources among suitable universities, museums, or other 
scientific or educational institutions, when such resources have been 
excavated or removed from public lands under the authority of a permit 
issued by the Federal land manager.
    (e) Notwithstanding the provisions of paragraphs (a) through (d) of 
this section, the Federal land manager will follow the procedures 
required by NAGPRA and its implementing regulations for determining the 
disposition of Native American human remains and other ``cultural 
items'', as defined by NAGPRA, that have been excavated, removed, or 
discovered on public lands.

[49 FR 1027, Jan. 6, 1984, as amended at 60 FR 5260, 5261, Jan. 26, 
1995]



Sec. 7.14  Determination of archaeological or commercial value and cost of restoration and repair.

    (a) Archaeological value. For purposes of this part, the 
archaeological value of any archaeological resource involved in a 
violation of the prohibitions in Sec. 7.4 of this part or conditions of 
a permit issued pursuant to this part shall be the value of the 
information associated with the archaeological resource. This value 
shall be appraised in terms of the costs of the retrieval of the 
scientific information which would have been obtainable prior to the 
violation. These costs may include, but need not be limited to, the cost 
of preparing a research design, conducting field work, carrying out 
laboratory analysis, and preparing reports as would be necessary to 
realize the information potential.
    (b) Commercial value. For purposes of this part, the commercial 
value of any archaeological resource involved in a violation of the 
prohibitions in Sec. 7.4 of this part or conditions of a permit issued 
pursuant to this part shall be its fair market value. Where the 
violation has resulted in damage to the archaeological resource, the 
fair market value should be determined using the condition of the 
archaeological resource prior to the violation, to the extent that its 
prior condition can be ascertained.

[[Page 182]]

    (c) Cost of restoration and repair. For purposes of this part, the 
cost of restoration and repair of archaeological resources damaged as a 
result of a violation of prohibitions or conditions pursuant to this 
part, shall be the sum of the costs already incurred for emergency 
restoration or repair work, plus those costs projected to be necessary 
to complete restoration and repair, which may include, but need not be 
limited to, the costs of the following:
    (1) Reconstruction of the archaeological resource;
    (2) Stabilization of the archaeological resource;
    (3) Ground contour reconstruction and surface stabilization;
    (4) Research necessary to carry out reconstruction or stabilization;
    (5) Physical barriers or other protective devices, necessitated by 
the disturbance of the archaeological resource, to protect it from 
further disturbance;
    (6) Examination and analysis of the archaeological resource 
including recording remaining archaeological information, where 
necessitated by disturbance, in order to salvage remaining values which 
cannot be otherwise conserved;
    (7) Reinterment of human remains in accordance with religious custom 
and State, local, or tribal law, where appropriate, as determined by the 
Federal land manager.
    (8) Preparation of reports relating to any of the above activities.



Sec. 7.15  Assessment of civil penalties.

    (a) The Federal land manager may assess a civil penalty against any 
person who has violated any prohibition contained in Sec. 7.4 or who 
has violated any term or condition included in a permit issued in 
accordance with the Act and this part.
    (b) Notice of violation. The Federal land manager shall serve a 
notice of violation upon any person believed to be subject to a civil 
penalty, either in person or by registered or certified mail (return 
receipt requested). The Federal land manager shall include in the 
notice:
    (1) A concise statement of the facts believed to show a violation;
    (2) A specific reference to the provision(s) of this part or to a 
permit issued pursuant to this part allegedly violated;
    (3) The amount of penalty proposed to be assessed, including any 
initial proposal to mitigate or remit where appropriate, or a statement 
that notice of a proposed penalty amount will be served after the 
damages associated with the alleged violation have been ascertained;
    (4) Notification of the right to file a petition for relief pursuant 
to paragraph (d) of this section, or to await the Federal land manager's 
notice of assessment, and to request a hearing in accordance with 
paragraph (g) of this section. The notice shall also inform the person 
of the right to seek judicial review of any final administrative 
decision assessing a civil penalty.
    (c) The person served with a notice of violation shall have 45 
calendar days from the date of its service (or the date of service of a 
proposed penalty amount, if later) in which to respond. During this time 
the person may:
    (1) Seek informal discussions with the Federal land manager;
    (2) File a petition for relief in accordance with paragraph (d) of 
this section;
    (3) Take no action and await the Federal land manager's notice of 
assessment;
    (4) Accept in writing or by payment the proposed penalty, or any 
mitigation or remission offered in the notice. Acceptance of the 
proposed penalty or mitigation or remission shall be deemed a waiver of 
the notice of assessment and of the right to request a hearing under 
paragraph (g) of this section.
    (d) Petition for relief. The person served with a notice of 
violation may request that no penalty be assessed or that the amount be 
reduced, by filing a petition for relief with the Federal land manager 
within 45 calendar days of the date of service of the notice of 
violation (or of a proposed penalty amount, if later). The petition 
shall be in writing and signed by the person served with the notice of 
violation. If the person is a corporation, the petition must be signed 
by an officer authorized to sign such documents. The

[[Page 183]]

petition shall set forth in full the legal or factual basis for the 
requested relief.
    (e) Assessment of penalty. (1) The Federal land manager shall assess 
a civil penalty upon expiration of the period for filing a petition for 
relief, upon completion of review of any petition filed, or upon 
completion of informal discussions, whichever is later.
    (2) The Federal land manager shall take into consideration all 
available information, including information provided pursuant to 
paragraphs (c) and (d) of this section or furnished upon further request 
by the Federal land manager.
    (3) If the facts warrant a conclusion that no violation has 
occurred, the Federal land manager shall so notify the person served 
with a notice of violation, and no penalty shall be assessed.
    (4) Where the facts warrant a conclusion that a violation has 
occurred, the Federal land manager shall determine a penalty amount in 
accordance with Sec. 7.16.
    (f) Notice of assessment. The Federal land manager shall notify the 
person served with a notice of violation of the penalty amount assessed 
by serving a written notice of assessment, either in person or by 
registered or certified mail (return receipt requested). The Federal 
land manager shall include in the notice of assessment:
    (1) The facts and conclusions from which it was determined that a 
violation did occur;
    (2) The basis in Sec. 7.16 for determining the penalty amount 
assessed and/or any offer to mitigate or remit the penalty; and
    (3) Notification of the right to request a hearing, including the 
procedures to be followed, and to seek judicial review of any final 
administrative decision assessing a civil penalty.
    (g) Hearings. (1) Except where the right to request a hearing is 
deemed to have been waived as provided in paragraph (c)(4) of this 
section, the person served with a notice of assessment may file a 
written request for a hearing with the adjudicatory body specified in 
the notice. The person shall enclose with the request for hearing a copy 
of the notice of assessment, and shall deliver the request as specified 
in the notice of assessment, personally or by registered or certified 
mail (return receipt requested).
    (2) Failure to deliver a written request for a hearing within 45 
days of the date of service of the notice of assessment shall be deemed 
a waiver of the right to a hearing.
    (3) Any hearing conducted pursuant to this section shall be held in 
accordance with 5 U.S.C. 554. In any such hearing, the amount of civil 
penalty assessed shall be determined in accordance with this part, and 
shall not be limited by the amount assessed by the Federal land manager 
under paragraph (f) of this section or any offer of mitigation or 
remission made by the Federal land manager.
    (h) Final administrative decision. (1) Where the person served with 
a notice of violation has accepted the penalty pursuant to paragraph 
(c)(4) of this section, the notice of violation shall constitute the 
final administrative decision;
    (2) Where the person served with a notice of assessment has not 
filed a timely request for a hearing pursuant to paragraph (g)(1) of 
this section, the notice of assessment shall constitute the final 
administrative decision;
    (3) Where the person served with a notice of assessment has filed a 
timely request for a hearing pursuant to paragraph (g)(1) of this 
section, the decision resulting from the hearing or any applicable 
administrative appeal therefrom shall constitute the final 
administrative decision.
    (i) Payment of penalty. (1) The person assessed a civil penalty 
shall have 45 calendar days from the date of issuance of the final 
administrative decision in which to make full payment of the penalty 
assessed, unless a timely request for appeal has been filed with a U.S. 
District Court as provided in section 7(b)(1) of the Act.
    (2) Upon failure to pay the penalty, the Federal land manager may 
request the Attorney General to institute a civil action to collect the 
penalty in a U.S. District Court for any district in which the person 
assessed a civil penalty is found, resides, or transacts business. Where 
the Federal land manager is not represented by the Attorney

[[Page 184]]

General, a civil action may be initiated directly by the Federal land 
manager.
    (j) Other remedies not waived. Assessment of a penalty under this 
section shall not be deemed a waiver of the right to pursue other 
available legal or administrative remedies.



Sec. 7.16  Civil penalty amounts.

    (a) Maximum amount of penalty. (1) Where the person being assessed a 
civil penalty has not committed any previous violation of any 
prohibition in Sec. 7.4 or of any term or condition included in a 
permit issued pursuant to this part, the maximum amount of the penalty 
shall be the full cost of restoration and repair of archaeological 
resources damaged plus the archaeological or commercial value of 
archaeological resources destroyed or not recovered.
    (2) Where the person being assessed a civil penalty has committed 
any previous violation of any prohibition in Sec. 7.4 or of any term or 
condition included in a permit issued pursuant to this part, the maximum 
amount of the penalty shall be double the cost of restoration and repair 
plus double the archaeological or commercial value of archaeological 
resources destroyed or not recovered.
    (3) Violations limited to the removal of arrowheads located on the 
surface of the ground shall not be subject to the penalties prescribed 
in this section.
    (b) Determination of penalty amount, mitigation, and remission. The 
Federal land manager may assess a penalty amount less than the maximum 
amount of penalty and may offer to mitigate or remit the penalty.
    (1) Determination of the penalty amount and/or a proposal to 
mitigate or remit the penalty may be based upon any of the following 
factors:
    (i) Agreement by the person being assessed a civil penalty to return 
to the Federal land manager archaeological resources removed from public 
lands or Indian lands;
    (ii) Agreement by the person being assessed a civil penalty to 
assist the Federal land manager in activity to preserve, restore, or 
otherwise contribute to the protection and study of archaeological 
resources on public lands or Indian lands;
    (iii) Agreement by the person being assessed a civil penalty to 
provide information which will assist in the detection, prevention, or 
prosecution of violations of the Act or this part;
    (iv) Demonstration of hardship or inability to pay, provided that 
this factor shall only be considered when the person being assessed a 
civil penalty has not been found to have previously violated the 
regulations in this part;
    (v) Determination that the person being assessed a civil penalty did 
not willfully commit the violation;
    (vi) Determination that the proposed penalty would constitute 
excessive punishment under the circumstances;
    (vii) Determination of other mitigating circumstances appropriate to 
consideration in reaching a fair and expeditious assessment.
    (2) When the penalty is for a violation on Indian lands, the Federal 
land manager shall consult with and consider the interests of the Indian 
landowner and the Indian tribe having jurisdiction over the Indian lands 
prior to proposing to mitigate or remit the penalty.
    (3) When the penalty is for a violation which may have had an effect 
on a known Indian tribal religious or cultural site on public lands, the 
Federal land manager should consult with and consider the interests of 
the affected tribe(s) prior to proposing to mitigate or remit the 
penalty.

[49 FR 1027, Jan. 6, 1984, as amended at 52 FR 47721, Dec. 16, 1987]



Sec. 7.17  Other penalties and rewards.

    (a) Section 6 of the Act contains criminal prohibitions and 
provisions for criminal penalties. Section 8(b) of the Act provides that 
archaeological resources, vehicles, or equipment involved in a violation 
may be subject to forfeiture.
    (b) Section 8(a) of the Act provides for rewards to be made to 
persons who furnish information which leads to conviction for a criminal 
violation or to assessment of a civil penalty. The Federal land manager 
may certify to the Secretary of the Treasury that a person is eligible 
to receive payment. Officers and employees of Federal, State,

[[Page 185]]

or local government who furnish information or render service in the 
performance of their official duties, and persons who have provided 
information under Sec. 7.16(b)(1)(iii) shall not be certified eligible 
to receive payment of rewards.
    (c) In cases involving Indian lands, all civil penalty monies and 
any item forfeited under the provisions of this section shall be 
transferred to the appropriate Indian or Indian tribe.



Sec. 7.18  Confidentiality of archaeological resource information.

    (a) The Federal land manager shall not make available to the public, 
under subchapter II of chapter 5 of title 5 of the United States Code or 
any other provision of law, information concerning the nature and 
location of any archaeological resource, with the following exceptions:
    (1) The Federal land manager may make information available, 
provided that the disclosure will further the purposes of the Act and 
this part, or the Act of June 27, 1960, as amended (16 U.S.C. 469 
through 469c), without risking harm to the archaeological resource or to 
the site in which it is located.
    (2) The Federal land manager shall make information available, when 
the Governor of any State has submitted to the Federal land manager a 
written request for information, concerning the archaeological resources 
within the requesting Governor's State, provided that the request 
includes:
    (i) The specific archaeological resource or area about which 
information is sought;
    (ii) The purpose for which the information is sought; and
    (iii) The Governor's written commitment to adequately protect the 
confidentiality of the information.
    (b) [Reserved]

[49 FR 1027, Jan. 6, 1984; 49 FR 5923, Feb. 16, 1984]



Sec. 7.19  Report.

    (a) Each Federal land manager, when requested by the Secretary of 
the Interior, will submit such information as is necessary to enable the 
Secretary to comply with section 13 of the Act and comprehensively 
report on activities carried out under provisions of the Act.
    (b) The Secretary of the Interior will include in the annual 
comprehensive report, submitted to the Committee on Interior and Insular 
Affairs of the United States House of Representatives and to the 
Committee on Energy and Natural Resources of the United States Senate 
under section 13 of the Act, information on public awareness programs 
submitted by each Federal land manager under Sec. 7.20(b). Such 
submittal will fulfill the Federal land manager's responsibility under 
section 10(c) of the Act to report on public awareness programs.
    (c) The comprehensive report by the Secretary of the Interior also 
will include information on the activities carried out under section 14 
of the Act. Each Federal land manager, when requested by the Secretary, 
will submit any available information on surveys and schedules and 
suspected violations in order to enable the Secretary to summarize in 
the comprehensive report actions taken pursuant to section 14 of the 
Act.

[60 FR 5260, 5261, Jan. 26, 1995]



Sec. 7.20  Public awareness programs.

    (a) Each Federal land manager will establish a program to increase 
public awareness of the need to protect important archaeological 
resources located on public and Indian lands. Educational activities 
required by section 10(c) of the Act should be incorporated into other 
current agency public education and interpretation programs where 
appropriate.
    (b) Each Federal land manager annually will submit to the Secretary 
of the Interior the relevant information on public awareness activities 
required by section 10(c) of the Act for inclusion in the comprehensive 
report on activities required by section 13 of the Act.

[60 FR 5260, 5261, Jan. 26, 1995]



Sec. 7.21  Surveys and schedules.

    (a) The Secretaries of the Interior, Agriculture, and Defense and 
the Chairman of the Board of the Tennessee Valley Authority will develop 
plans for surveying lands under each

[[Page 186]]

agency's control to determine the nature and extent of archaeological 
resources pursuant to section 14(a) of the Act. Such activities should 
be consistent with Federal agency planning policies and other historic 
preservation program responsibilities required by 16 U.S.C. 470 et seq. 
Survey plans prepared under this section will be designed to comply with 
the purpose of the Act regarding the protection of archaeological 
resources.
    (b) The Secretaries of the Interior, Agriculture, and Defense and 
the Chairman of the Tennessee Valley Authority will prepare schedules 
for surveying lands under each agency's control that are likely to 
contain the most scientifically valuable archaeological resources 
pursuant to section 14(b) of the Act. Such schedules will be developed 
based on objectives and information identified in survey plans described 
in paragraph (a) of this section and implemented systematically to cover 
areas where the most scientifically valuable archaeological resources 
are likely to exist.
    (c) Guidance for the activities undertaken as part of paragraphs (a) 
through (b) of this section is provided by the Secretary of the 
Interior's Standards and Guidelines for Archeology and Historic 
Preservation.
    (d) Other Federal land managing agencies are encouraged to develop 
plans for surveying lands under their jurisdictions and prepare 
schedules for surveying to improve protection and management of 
archaeological resources.
    (e) The Secretaries of the Interior, Agriculture, and Defense and 
the Chairman of the Tennessee Valley Authority will develop a system for 
documenting and reporting suspected violations of the various provisions 
of the Act. This system will reference a set of procedures for use by 
officers, employees, or agents of Federal agencies to assist them in 
recognizing violations, documenting relevant evidence, and reporting 
assembled information to the appropriate authorities. Methods employed 
to document and report such violations should be compatible with 
existing agency reporting systems for documenting violations of other 
appropriate Federal statutes and regulations. Summary information to be 
included in the Secretary's comprehensive report will be based upon the 
system developed by each Federal land manager for documenting suspected 
violations.

[60 FR 5260, 5261, Jan. 26, 1995]



      Subpart B_Department of the Interior Supplemental Regulations

    Source: 52 FR 9168, Mar. 23, 1987, unless otherwise noted.



Sec. 7.31  Scope and authority.

    The regulations in this subpart are promulgated pursuant to section 
10(b) of the Archaeological Resources Protection Act of 1979 (16 U.S.C. 
470ii), which requires agencies to develop rules and regulations for 
carrying out the purposes of the Act, consistent with the uniform 
regulations issued pursuant to section 10(a) of the Act (subpart A of 
this part).



Sec. 7.32  Supplemental definitions.

    For purposes of this subpart, the following definitions will be 
used:
    (a) Site of religious or cultural importance means, for purposes of 
Sec. 7.7 of this part, a location which has traditionally been 
considered important by an Indian tribe because of a religious event 
which happened there; because it contains specific natural products 
which are of religious or cultural importance; because it is believed to 
the be dwelling place of, the embodiment of, or a place conducive to 
communication with spiritual beings; because it contains elements of 
life-cycle rituals, such as burials and associated materials; or because 
it has other specific and continuing significance in Indian religion or 
culture.
    (b) Allotted lands means lands granted to Indian individuals by the 
United States and held in trust for those individuals by the United 
States.



Sec. 7.33  Determination of loss or absence of archaeological interest.

    (a) Under certain circumstances, a Federal land manager may 
determine, pursuant to Sec. 7.3(a)(5) of this part, that certain 
material remains are not or are no longer of archaeological interest,

[[Page 187]]

and therefore are not to be considered archaeological resources under 
this part.
    (b) The Federal land manager may make such a determination if he/she 
finds that the material remains are not capable of providing scientific 
or humanistic understandings of past human behavior, cultural 
adaptation, and related topics.
    (c) Prior to making a determination that material remains are not or 
are no longer archaeological resources, the Federal land manager shall 
ensure that the following procedures are completed:
    (1) A professional archaeological evaluation of material remains and 
similar materials within the area under consideration shall be 
completed, consistent with the Secretary of the Interior's Standards and 
Guidelines for Archeology and Historic Preservation (48 FR 44716, Sept. 
29, 1983) and with 36 CFR parts 60, 63, and 65.
    (2) The principal bureau archaeologist or, in the absence of a 
principal bureau archaeologist, the Department Consulting Archeologist, 
shall establish whether the material remains under consideration 
contribute to scientific or humanistic understandings of past human 
behavior, cultural adaptation and related topics. The principal bureau 
archaeologist or the Department Consulting Archeologist, as appropriate, 
shall make a recommendation to the Federal land manager concerning these 
material remains.
    (d) The Federal land manager shall make the determination based upon 
the facts established by and the recommendation of the principal bureau 
archaeologist or the Departmental Consulting Archeologist, as 
appropriate, and shall fully document the basis therefor, including 
consultation with Indian tribes for determinations regarding sites of 
religious or cultural importance.
    (e) The Federal land manager shall make public notice of the 
determination and its limitations, including any permitting requirements 
for activities associated with the materials determined not to be 
archaeological resources for purposes of this part.
    (f) Any interested individual may request in writing that the 
Departmental Consulting Archeologist review any final determination by 
the Federal land manager that certain remains, are not, or are no 
longer, archaeological resources. Two (2) copies of the request should 
be sent to the Departmental Consulting Archeologist, National Park 
Service, P.O. Box 37127, Washington, DC 20013-7127, and should document 
why the requestor disagrees with the determination of the Federal land 
manager. The Departmental Consulting Archeologist shall review the 
request, and, if appropriate, shall review the Federal land manager's 
determination and its supporting documentation. Based on this review, 
the Departmental Consulting Archeologist shall prepare a final 
professional recommendation, and shall transmit the recommendation and 
the basis therefor to the head of the bureau for further consideration 
within 60 days of the receipt of the request.
    (g) Any determination made pursuant to this section shall in no way 
affect the Federal land manager's obligations under other applicable 
laws or regulations.



Sec. 7.34  Procedural information for securing permits.

    Information about procedures to secure a permit to excavate or 
remove archaeological resources from public lands or Indian lands can be 
obtained from the appropriate Indian tribal authorities, the Federal 
land manager of the bureau that administers the specific area of the 
public lands or Indian lands for which a permit is desired, or from the 
state, regional, or national office of that bureau.



Sec. 7.35  Permitting procedures for Indian lands.

    (a) If the lands involved in a permit application are Indian lands, 
the consent of the appropriate Indian tribal authority or individual 
Indian landowner is required by the Act and these regulations.
    (b) When Indian tribal lands are involved in an application for a 
permit or a request for extension or modification of a permit, the 
consent of the Indian tribal government must be obtained. For Indian 
allotted lands outside reservation boundaries, consent from only

[[Page 188]]

the individual landowner is needed. When multiple-owner allotted lands 
are involved, consent by more than 50 percent of the ownership interest 
is sufficient. For Indian allotted lands within reservation boundaries, 
consent must be obtained from the Indian tribal government and the 
individual landowner(s).
    (c) The applicant should consult with the Bureau of Indian Affairs 
concerning procedures for obtaining consent from the appropriate Indian 
tribal authorities and submit the permit application to the area office 
of the Bureau of Indian Affairs that is responsible for the 
administration of the lands in question. The Bureau of Indian Affairs 
shall insure that consultation with the appropriate Indian tribal 
authority or individual Indian landowner regarding terms and conditions 
of the permit occurs prior to detailed evaluation of the application. 
Permits shall include terms and conditions requested by the Indian tribe 
or Indian landowner pursuant to Sec. 7.9 of this part.
    (d) The issuance of a permit under this part does not remove the 
requirement for any other permit required by Indian tribal law.



Sec. 7.36  Permit reviews and disputes.

    (a) Any affected person disputing the decision of a Federal land 
manager with respect to the issuance or denial of a permit, the 
inclusion of specific terms and conditions in a permit, or the 
modification, suspension, or revocation of a permit may request the 
Federal land manager to review the disputed decision and may request a 
conference to discuss the decision and its basis.
    (b) The disputant, if unsatisfied with the outcome of the review or 
conference, may request that the decision be reviewed by the head of the 
bureau involved.
    (c) Any disputant unsatisfied with the higher level review, and 
desiring to appeal the decision, pursuant to Sec. 7.11 of this part, 
should consult with the appropriate Federal land manager regarding the 
existence of published bureau appeal procedures. In the absence of 
published bureau appeal procedures, the review by the head of the bureau 
involved will constitute the final decision.
    (d) Any affected person may request a review by the Departmental 
Consulting Archeologist of any professional issues involved in a bureau 
permitting decision, such as professional qualifications, research 
design, or other professional archaeological matters. The Departmental 
Consulting Archeologist shall make a final professional recommendation 
to the head of the bureau involved. The head of the bureau involved will 
consider the recommendation, but may reject it, in whole or in part, for 
good cause. This request should be in writing, and should state the 
reasons for the request. See Sec. 7.33(f) for the address of the 
Departmental Consulting Archeologist.



Sec. 7.37  Civil penalty hearings procedures.

    (a) Requests for hearings. Any person wishing to request a hearing 
on a notice of assessment of civil penalty, pursuant to Sec. 7.15(g) of 
this part, may file a written, dated request for a hearing with the 
Hearing Division, Office of Hearings and Appeals, U.S. Department of the 
Interior, 801 North Quincy Street, Arlington, Virginia 22203-1923. The 
respondent shall enclose a copy of the notice of violation and the 
notice of assessment. The request shall state the relief sought, the 
basis for challenging the facts used as the basis for charging the 
violation and fixing the assessment, and respondent's preference as to 
the place and date for a hearing. A copy of the request shall be served 
upon the Solicitor of the Department of the Interior personally or by 
registered or certified mail (return receipt requested), at the address 
specified in the notice of assessment. Hearings shall be conducted in 
accordance with 43 CFR part 4, subparts A and B.
    (b) Waiver of right to a hearing. Failure to file a written request 
for a hearing within 45 days of the date of service of a notice of 
assessment shall be deemed a waiver of the right to a hearing.
    (c) Commencement of hearing procedures. Upon receipt of a request 
for a hearing, the Hearing Division shall assign an administrative law 
judge to the case. Notice of assignment shall be

[[Page 189]]

given promptly to the parties, and thereafter, all pleadings, papers, 
and other documents in the proceeding shall be filed directly with the 
administrative law judge, with copies served on the opposing party.
    (d) Appearance and practice. (1) Subject to the provisions of 43 CFR 
1.3, the respondent may appear in person, by representative, or by 
counsel, and may participate fully in those proceedings. If respondent 
fails to appear and the administrative law judge determines such failure 
is without good cause, the administrative law judge may, in his/her 
discretion, determine that such failure shall constitute a waiver of the 
right to a hearing and consent to the making of a decision on the record 
made at the hearing.
    (2) Departmental counsel, designated by the Solicitor of the 
Department, shall represent the Federal land manager in the proceedings. 
Upon notice to the Federal land manager of the assignment of an 
administrative law judge to the case, said counsel shall enter his/her 
appearance on behalf of the Federal land manager and shall file all 
petitions and correspondence exchanges by the Federal land manager and 
the respondent pursuant to Sec. 7.15 of this part which shall become 
part of the hearing record. Thereafter, service upon the Federal land 
manager shall be made to his/her counsel.
    (e) Hearing administration. (1) The administrative law judge shall 
have all powers accorded by law and necessary to preside over the 
parties and the proceedings and to make decisions in accordance with 5 
U.S.C. 554-557.
    (2) The transcript of testimony, the exhibits, and all papers, 
documents and requests filed in the proceedings, shall constitute the 
record for decision. The administrative law judge shall render a written 
decision upon the record, which shall set forth his/her findings of fact 
and conclusions of law, and the reasons and basis therefor, and an 
assessment of a penalty, if any.
    (3) Unless a notice of appeal is filed in accordance with paragraph 
(f) of this section, the administrative law judge's decision shall 
constitute the final administrative determination of the Secretary in 
the matter and shall become effective 30 calendar days from the date of 
this decision.
    (4) In any such hearing, the amount of civil penalty assessed shall 
be determined in accordance with this part, and shall not be limited by 
the amount assessed by the Federal land manager under Sec. 7.15 of this 
part or any offer of mitigation or remission made by the Federal land 
manager.
    (f) Appeal. (1) Either the respondent or the Federal land manager 
may appeal the decision of an administrative law judge by the filing of 
a ``Notice of Appeal'' with the Director, Office of Hearings and 
Appeals, U.S. Department of the Interior, 801 North Quincy Street, 
Arlington, Virginia 22203-1923, within 30 calendar days of the date of 
the administrative law judge's decision. Such notice shall be 
accompanied by proof of service on the administrative law judge and the 
opposing party.
    (2) Upon receipt of such a notice, the Director, Office of Hearings 
and Appeals, shall appoint an ad hoc appeals board to hear and decide an 
appeal. To the extent they are not inconsistent herewith, the provision 
of the Department of Hearings and Appeals Procedures in 43 CFR part 4, 
subparts A, B, and G shall apply to appeal proceedings under this 
subpart. The decision of the board on the appeal shall be in writing and 
shall become effective as the final administrative determination of the 
Secretary in the proceeding on the date it is rendered, unless otherwise 
specified therein.
    (g) Report service. Copies of decisions in civil penalty proceedings 
instituted under the Act may be obtained by letter of request addressed 
to the Director, Office of Hearings and Appeals, U.S. Department of the 
Interior, 801 North Quincy Street, Arlington, Virginia 22203-1923. Fees 
for this service shall be as established by the Director of that Office.

[52 FR 9168, Mar. 23, 1987, as amended at 67 FR 4368, Jan. 30, 2002]

[[Page 190]]



PART 8_JOINT POLICIES OF THE DEPARTMENTS OF THE INTERIOR AND OF THE ARMY RELATIVE TO RESERVOIR PROJECT LANDS--Table of Contents



Sec.
8.0 Acquisition of lands for reservoir projects.
8.1 Lands for reservoir construction and operation.
8.2 Additional lands for correlative purposes.
8.3 Easements.
8.4 Blocking out.
8.5 Mineral rights.
8.6 Buildings.

    Authority: Sec. 7, 32 Stat. 389, sec. 14, 53 Stat. 1197; 43 U.S.C. 
421, 389.

    Source: 31 FR 9108, July 2, 1966, unless otherwise noted.



Sec. 8.0  Acquisition of lands for reservoir projects.

    In so far as permitted by law, it is the policy of the Departments 
of the Interior and of the Army to acquire, as a part of reservoir 
project construction, adequate interest in lands necessary for the 
realization of optimum values for all purposes including additional land 
areas to assure full realization of optimum present and future outdoor 
recreational and fish and wildlife potentials of each reservoir.



Sec. 8.1  Lands for reservoir construction and operation.

    The fee title will be acquired to the following:
    (a) Lands necessary for permanent structures.
    (b) Lands below the maximum flowage line of the reservoir including 
lands below a selected freeboard where necessary to safeguard against 
the effects of saturation, wave action, and bank erosion and the permit 
induced surcharge operation.
    (c) Lands needed to provide for public access to the maximum flowage 
line as described in paragraph (b) of this section, or for operation and 
maintenance of the project.



Sec. 8.2  Additional lands for correlative purposes.

    The fee title will be acquired for the following:
    (a) Such lands as are needed to meet present and future requirements 
for fish and wildlife as determined pursuant to the Fish and Wildlife 
Coordination Act.
    (b) Such lands as are needed to meet present and future public 
requirements for outdoor recreation, as may be authorized by Congress.



Sec. 8.3  Easements.

    Easements in lieu of fee title may be taken only for lands that meet 
all of the following conditions:
    (a) Lands lying above the storage pool.
    (b) Lands in remote portions of the project area.
    (c) Lands determined to be of no substantial value for protection or 
enhancement of fish and wildlife resources, or for public outdoor 
recreation.
    (d) It is to the financial advantage of the Government to take 
easements in lieu of fee title.



Sec. 8.4  Blocking out.

    Blocking out will be accomplished in accordance with sound real 
estate practices, for example, on minor sectional subdivision lines; and 
normally land will not be acquired to avoid severance damage if the 
owner will waive such damage.



Sec. 8.5  Mineral rights.

    Mineral, oil and gas rights will not be acquired except where the 
development thereof would interfere with project purposes, but mineral 
rights not acquired will be subordinated to the Government's right to 
regulate their development in a manner that will not interfere with the 
primary purposes of the project, including public access.



Sec. 8.6  Buildings.

    Buildings for human occupancy as well as other structures which 
would interfere with the operation of the project for any project 
purpose will be prohibited on reservoir project lands.

[[Page 191]]



PART 9_INTERGOVERNMENTAL REVIEW OF DEPARTMENT OF THE INTERIOR PROGRAMS AND ACTIVITIES--Table of Contents



Sec.
9.1 What is the purpose of these regulations?
9.2 What definitions apply to these regulations?
9.3 What programs and activities of the Department are subject to these 
          regulations?
9.4 [Reserved]
9.5 What is the Secretary's obligation with respect to Federal 
          interagency coordination?
9.6 What procedures apply to the selection of programs and activities 
          under these regulations?
9.7 How does the Secretary communicate with state and local officials 
          concerning the Department's programs and activities?
9.8 How does the Secretary provide states an opportunity to comment on 
          proposed federal financial assistance and direct federal 
          development?
9.9 How does the Secretary receive and respond to comments?
9.10 How does the Secretary make efforts to accommodate 
          intergovernmental concerns?
9.11 What are the Secretary's obligations in interstate situations?
9.12 How may a state simplify, consolidate, or substitute federally 
          required state plans?
9.13 May the Secretary waive any provision of these regulations?

    Authority: E.O. 12372, July 14, 1982 (47 FR 30959), as amended April 
8, 1983 (48 FR 15887); and sec. 401 of the Intergovernmental Cooperation 
Act of 1968 as amended (31 U.S.C. 6506).

    Source: 48 FR 29232, June 24, 1983, unless otherwise noted.



Sec. 9.1  What is the purpose of these regulations?

    (a) The regulations in this part implement Executive Order 12372, 
``Intergovernmental Review of Federal Programs,'' issued July 14, 1982 
and amended on April 8, 1983. These regulations also implement 
applicable provisions of section 401 of the Intergovernmental 
Cooperation Act of 1968.
    (b) These regulations are intended to foster an intergovernmental 
partnership and a strengthened Federalism by relying on state processes 
and on state, areawide, regional and local coordination for review of 
proposed federal financial assistance and direct federal development.
    (c) These regulations are intended to aid the internal management of 
the Department, and are not intended to create any right or benefit 
enforceable at law by a party against the Department or its officers.



Sec. 9.2  What definitions apply to these regulations?

    Department means the U.S. Department of the Interior.
    Order means Executive Order 12372, issued July 14, 1982, and amended 
April 8, 1983 and titled ``Intergovernmental Review of Federal 
Programs.''
    Secretary means the Secretary of the U.S. Department of the Interior 
or an official or employee of the Department acting for the Secretary 
under a delegation of authority.
    State means any of the 50 states, the District of Columbia, the 
Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana 
Islands, Guam, American Samoa, the U.S. Virgin Islands, or the Trust 
Territory of the Pacific Islands.



Sec. 9.3  What programs and activities of the Department are subject to these regulations?

    (a) The Secretary publishes in the Federal Register a list of the 
Department's programs and activities that are subject to these 
regulations and a list of programs and activities that have existing 
consultation processes.
    (b) With respect to programs and activities that a state chooses to 
cover, and that have existing consultation processes, the state must 
agree to adopt those existing processes.



Sec. 9.4  [Reserved]



Sec. 9.5  What is the Secretary's obligation with respect to Federal interagency coordination?

    The Secretary, to the extent practicable, consults with and seeks 
advice from all other substantially affected federal departments and 
agencies in an effort to assure full coordination between such agencies 
and the Department regarding programs and activities covered under these 
regulations.

[[Page 192]]



Sec. 9.6  What procedures apply to the selection of programs and activities under these regulations?

    (a) A state may select any program or activity published in the 
Federal Register in accordance with Sec. 9.3 of this part for 
intergovernmental review under these regulations. Each state, before 
selecting programs and activities, shall consult with local elected 
officials.
    (b) Each state that adopts a process shall notify the Secretary of 
the Department's programs and activities selected for that process.
    (c) A state may notify the Secretary of changes in its selections at 
any time. For each change, the state shall submit to the Secretary an 
assurance that the state has consulted with local elected officials 
regarding the change. The Department may establish deadlines by which 
states are required to inform the Secretary of changes in their program 
selections.
    (d) The Secretary uses a state's process as soon as feasible, 
depending on individual programs and activities, after the Secretary is 
notified of its selections.



Sec. 9.7  How does the Secretary communicate with state and local officials concerning the Department's programs and activities?

    (a) For those programs and activities covered by a state process 
under Sec. 9.6, the Secretary, to the extent permitted by law:
    (1) Uses the state process to determine views of state and local 
elected officials; and,
    (2) Communicates with state and local elected officials, through the 
state process, as early in a program planning cycle as in reasonably 
feasible to explain specific plans and actions.
    (b) The Secretary provides notice to directly affected state, 
areawide, regional, and local entities in a state of proposed federal 
financial assistance or direct federal development if:
    (1) The state has not adopted a process under the Order; or
    (2) The assistance or development involves a program or activity not 
selected for the state process.

This notice may be made by publication in the Federal Register or other 
appropriate means, which the Department in its discretion deems 
appropriate.



Sec. 9.8  How does the Secretary provide states an opportunity to comment on proposed federal financial assistance and direct federal development?

    (a) Except in unusual circumstances, the Secretary gives state 
processes or directly affected state, areawide, regional and local 
officials and entities:
    (1) At least 30 days from the date established by the Secretary to 
comment on proposed federal financial assistance in the form of 
noncompeting continuation awards; and
    (2) At least 60 days from the date established by the Secretary to 
comment on proposed direct federal development or federal financial 
assistance other than noncompeting continuation awards.
    (b) This section also applies to comments in cases in which the 
review, coordination, and communication with the Department have been 
delegated.



Sec. 9.9  How does the Secretary receive and respond to comments?

    (a) The Secretary follows the procedures in Sec. 9.10 if:
    (1) A state office or official is designated to act as a single 
point of contact between a state process and all federal agencies, and
    (2) That office or official transmits a state process recommendation 
for a program selected under Sec. 9.6.
    (b)(1) The single point of contact is not obligated to transmit 
comments from state, areawide, regional or local officials and entities 
where there is no state process recommendation.
    (2) If a state process recommendation is transmitted by a single 
point of contact, all comments from state, areawide, regional, and local 
officials and entities that differ from it must also be transmitted.
    (c) If a state has not established a process, or is unable to submit 
a state process recommendation, state, areawide, regional and local 
officials and entities may submit comments either to the applicant or to 
the Department.

[[Page 193]]

    (d) If a program or activity is not selected for a state process, 
state, areawide, regional and local officials and entities may submit 
comments either to the applicant or to the Department. In addition, if a 
state process recommendation for a nonselected program or activity is 
transmitted to the Department by a single point of contact, the 
Secretary follows the procedures of Sec. 9.10 of this part.
    (e) The Secretary considers comments which do not constitute a state 
process recommendation submitted under these regulations and for which 
the Secretary is not required to apply the procedures of Sec. 9.10 of 
this part, when such comments are provided by a single point of contact, 
by the applicant, or directly to the Department by a commenting party.



Sec. 9.10  How does the Secretary make efforts to accommodate intergovernmental concerns?

    (a) If a state process provides a state process recommendation to 
the Department through its single point of contact, the Secretary 
either:
    (1) Accepts the recommendation;
    (2) Reaches a mutually agreeable solution with the state process; or
    (3) Provides the single point of contact with such written 
explanation of the decision, as the Secretary in his or her discretion 
deems appropriate. The Secretary may also supplement the written 
explanation by providing the explanation to the single point of contact 
by telephone, other telecommunication, or other means.
    (b) In any explanation under paragraph (a)(3) of the section, the 
Secretary informs the single point of contact that:
    (1) The Department will not implement its decision for at least ten 
days after the single point of contact receives the explanation; or
    (2) The Secretary has reviewed the decision and determined that, 
because of unusual circumstances, the waiting period of at least ten 
days is not feasible.
    (c) For purposes of computing the waiting period under paragraph 
(b)(1) of this section, a single point of contact is presumed to have 
received written notification 5 days after the date of mailing of such 
notification.



Sec. 9.11  What are the Secretary's obligations in interstate situations?

    (a) The Secretary is responsible for:
    (1) Identifying proposed federal financial assistance and direct 
Federal development that have an impact on interstate areas;
    (2) Notifying appropriate officials and entities in states which 
have adopted a process and which select the Department's program or 
activity;
    (3) Making efforts to identify and notify the affected state, 
areawide, regional, and local officials and entities in those states 
that have not adopted a process under the Order or do not select the 
Department's program or activity;
    (4) Responding pursuant to Sec. 9.10 of this part if the Secretary 
receives a recommendation from a designated areawide agency transmitted 
by a single point of contact, in cases in which the review, 
coordination, and communication with the Department have been delegated.
    (b) The Secretary uses the procedures in Sec. 9.10 if a state 
process provides a state process recommendation to the Department 
through a single point of contact.



Sec. 9.12  How may a state simplify, consolidate, or substitute federally required state plans?

    (a) As used in this section:
    (1) Simplify means that a state may develop its own format, choose 
its own submission date, and select the planning period for a state 
plan.
    (2) Consolidate means that a state may meet statutory and regulatory 
requirements by combining two or more plans into one document and that 
the state can select the format, submission date, and planning period 
for the consolidated plan.
    (3) Substitute means that a state may use a plan or other document 
that it has developed for its own purposes to meet Federal requirements.
    (b) If not inconsistent with law, a state may decide to try to 
simplify, consolidate, or substitute Federally required state plans 
without prior approval by the Secretary.

[[Page 194]]

    (c) The Secretary reviews each state plan that a state has 
simplified, consolidated, or substituted and accepts the plan only if 
its contents meet Federal requirements.



Sec. 9.13  May the Secretary waive any provision of these regulations?

    In an emergency, the Secretary may waive any provision of these 
regulations.



PART 10_NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION REGULATIONS--Table of Contents



                         Subpart A_Introduction

Sec.
10.1 Purpose, applicability, and information collection.
10.2 Definitions

Subpart B_Human Remains, Funerary Objects, Sacred Objects, or Objects of 
             Cultural Patrimony From Federal or Tribal Lands

10.3 Intentional archaeological excavations.
10.4 Inadvertent discoveries.
10.5 Consultation.
10.6 Custody.
10.7 Disposition of unclaimed human remains, funerary objects, sacred 
          objects, or objects of cultural patrimony. [Reserved]

Subpart C_Human Remains, Funerary Objects, Sacred Objects, or Objects of 
          Cultural Patrimony in Museums and Federal Collections

10.8 Summaries.
10.9 Inventories.
10.10 Repatriation.
10.11 Disposition of culturally unidentifiable human remains.
10.12 Civil penalties.
10.13 Future applicability.

                            Subpart D_General

10.14 Lineal descent and cultural affiliation.
10.15 Limitations and remedies.
10.16 Review committee.
10.17 Dispute resolution.

Appendix A to Part 10--Sample Summary.
Appendix B to Part 10--Sample Notice of Inventory Completion.

    Authority: 25 U.S.C. 3001 et seq., 16 U.S.C. 470dd (2), 25 U.S.C. 9.

    Source: 60 FR 62158, Dec. 4, 1995, unless otherwise noted.



                         Subpart A_Introduction



Sec. 10.1  Purpose, applicability, and information collection.

    (a) Purpose. These regulations carry out provisions of the Native 
American Graves Protection and Repatriation Act of 1990 (Pub.L. 101-601; 
25 U.S.C. 3001-3013;104 Stat. 3048-3058). These regulations develop a 
systematic process for determining the rights of lineal descendants and 
Indian tribes and Native Hawaiian organizations to certain Native 
American human remains, funerary objects, sacred objects, or objects of 
cultural patrimony with which they are affiliated.
    (b) Applicability. (1) These regulations pertain to the 
identification and appropriate disposition of human remains, funerary 
objects, sacred objects, or objects of cultural patrimony that are:
    (i) In Federal possession or control; or
    (ii) In the possession or control of any institution or State or 
local government receiving Federal funds; or
    (iii) Excavated intentionally or discovered inadvertently on Federal 
or tribal lands.
    (2) These regulations apply to human remains, funerary objects, 
sacred objects, or objects of cultural patrimony which are indigenous to 
Alaska, Hawaii, and the continental United States, but not to 
territories of the United States.
    (3) Throughout this part are decision points which determine how 
this part applies in particular circumstances, e.g., a decision as to 
whether a museum ``controls'' human remains and cultural objects within 
the meaning of the regulations, or a decision as to whether an object is 
a ``human remain,'' ``funerary object,'' ``sacred object,'' or ``object 
of cultural patrimony'' within the meaning of the regulations. Any final 
determination making the Act or this part inapplicable is subject to 
review under section 15 of the Act. With respect to Federal agencies, 
the final denial of a request of a lineal descendant, Indian tribe, or 
Native Hawaiian organization for the repatriation or disposition of 
human remains, funerary objects, sacred objects, or objects of cultural 
patrimony brought under, and in compliance with, the Act and this

[[Page 195]]

part constitutes a final agency action under the Administrative 
Procedure Act (5 U.S.C. 704).
    (c) The information collection requirements contained in this part 
have been approved by the Office of Management and Budget under 44 
U.S.C. 3501 et seq. and assigned control number 1024-0144. A Federal 
agency may not conduct or sponsor, and you are not required to respond 
to, a collection of information unless it displays a currently valid OMB 
control number.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41293, Aug. 1, 1997; 75 
FR 12402, Mar.15, 2010]



Sec. 10.2  Definitions.

    In addition to the term Act, which means the Native American Graves 
Protection and Repatriation Act as described above, definitions used in 
these regulations are grouped in seven classes: Parties required to 
comply with these regulations; Parties with standing to make claims 
under these regulations; Parties responsible for implementing these 
regulations; Objects covered by these regulations; Cultural affiliation; 
Types of land covered by these regulations; and Procedures required by 
these regulations.
    (a) Who must comply with these regulations? (1) Federal agency means 
any department, agency, or instrumentality of the United States. Such 
term does not include the Smithsonian Institution as specified in 
section 2 (4) of the Act.
    (2) Federal agency official means any individual authorized by 
delegation of authority within a Federal agency to perform the duties 
relating to these regulations.
    (3) Museum means any institution or State or local government agency 
(including any institution of higher learning) that has possession of, 
or control over, human remains, funerary objects, sacred objects, or 
objects of cultural patrimony and receives Federal funds.
    (i) The term ``possession'' means having physical custody of human 
remains, funerary objects, sacred objects, or objects of cultural 
patrimony with a sufficient legal interest to lawfully treat the objects 
as part of its collection for purposes of these regulations. Generally, 
a museum or Federal agency would not be considered to have possession of 
human remains, funerary objects, sacred objects, or objects of cultural 
patrimony on loan from another individual, museum, or Federal agency.
    (ii) The term ``control'' means having a legal interest in human 
remains, funerary objects, sacred objects, or objects of cultural 
patrimony sufficient to lawfully permit the museum or Federal agency to 
treat the objects as part of its collection for purposes of these 
regulations whether or not the human remains, funerary objects, sacred 
objects or objects of cultural patrimony are in the physical custody of 
the museum or Federal agency. Generally, a museum or Federal agency that 
has loaned human remains, funerary objects, sacred objects, or objects 
of cultural patrimony to another individual, museum, or Federal agency 
is considered to retain control of those human remains, funerary 
objects, sacred objects, or objects of cultural patrimony for purposes 
of these regulations.
    (iii) The phrase ``receives Federal funds'' means the receipt of 
funds by a museum after November 16, 1990, from a Federal agency through 
any grant, loan, contract (other than a procurement contract), or other 
arrangement by which a Federal agency makes or made available to a 
museum aid in the form of funds. Federal funds provided for any purpose 
that are received by a larger entity of which the museum is a part are 
considered Federal funds for the purposes of these regulations. For 
example, if a museum is a part of a State or local government or a 
private university and the State or local government or private 
university receives Federal funds for any purpose, the museum is 
considered to receive Federal funds for the purpose of these 
regulations.
    (4) Museum official means the individual within a museum designated 
as being responsible for matters relating to these regulations.
    (5) Person means an individual, partnership, corporation, trust, 
institution, association, or any other private entity, or, any official, 
employee, agent, department, or instrumentality of the United States, or 
of any Indian tribe or Native Hawaiian organization, or of any State or 
political subdivision

[[Page 196]]

thereof that discovers or discovered human remains, funerary objects, 
sacred objects or objects of cultural patrimony on Federal or tribal 
lands after November 16, 1990.
    (b) Who has standing to make a claim under these regulations? (1) 
Lineal descendant means an individual tracing his or her ancestry 
directly and without interruption by means of the traditional kinship 
system of the appropriate Indian tribe or Native Hawaiian organization 
or by the common law system of descendance to a known Native American 
individual whose remains, funerary objects, or sacred objects are being 
claimed under these regulations.
    (2) Indian tribe means any tribe, band, nation, or other organized 
Indian group or community of Indians, including any Alaska Native 
village or corporation as defined in or established by the Alaska Native 
Claims Settlement Act (43 U.S.C. 1601 et seq.), which is recognized as 
eligible for the special programs and services provided by the United 
States to Indians because of their status as Indians. The Secretary will 
make available a list of Indian tribes and Indian tribal officials for 
the purposes of carrying out this statute through the Manager, National 
NAGPRA Program.
    (3)(i) Native Hawaiian organization means any organization that:
    (A) Serves and represents the interests of Native Hawaiians;
    (B) Has as a primary and stated purpose the provision of services to 
Native Hawaiians; and
    (C) Has expertise in Native Hawaiian affairs.
    (ii) The term Native Hawaiian means any individual who is a 
descendant of the aboriginal people who, prior to 1778, occupied and 
exercised sovereignty in the area that now constitutes the State of 
Hawaii. Such organizations must include the Office of Hawaiian Affairs 
and Hui Malama I NaKupuna 'O Hawai'i Nei.
    (4) Indian tribe official means the principal leader of an Indian 
tribe or Native Hawaiian organization or the individual officially 
designated by the governing body of an Indian tribe or Native Hawaiian 
organization or as otherwise provided by tribal code, policy, or 
established procedure as responsible for matters relating to these 
regulations.
    (c) Who is responsible for carrying out these regulations? (1) 
Secretary means the Secretary of the Interior.
    (2) Review Committee means the advisory committee established 
pursuant to section 8 of the Act.
    (3) Manager, National NAGPRA Program means the official of the 
Department of the Interior designated by the Secretary as responsible 
for administration of matters relating to this part. Communications to 
the Manager, National NAGPRA Program, should be addressed to: Manager, 
National NAGPRA Program, National Park Service (2253), 1849 C Street 
NW., Washington, DC 20240.
    (d) What objects are covered by these regulations? The Act covers 
four types of Native American objects. The term Native American means 
of, or relating to, a tribe, people, or culture indigenous to the United 
States, including Alaska and Hawaii.
    (1) Human remains means the physical remains of the body of a person 
of Native American ancestry. The term does not include remains or 
portions of remains that may reasonably be determined to have been 
freely given or naturally shed by the individual from whose body they 
were obtained, such as hair made into ropes or nets. For the purposes of 
determining cultural affiliation, human remains incorporated into a 
funerary object, sacred object, or object of cultural patrimony, as 
defined below, must be considered as part of that item.
    (2) Funerary objects means items that, as part of the death rite or 
ceremony of a culture, are reasonably believed to have been placed 
intentionally at the time of death or later with or near individual 
human remains. Funerary objects must be identified by a preponderance of 
the evidence as having been removed from a specific burial site of an 
individual affiliated with a particular Indian tribe or Native Hawaiian 
organization or as being related to specific individuals or families or 
to known human remains. The term burial site means any natural or 
prepared physical location, whether originally below, on, or above the 
surface of the earth,

[[Page 197]]

into which, as part of the death rite or ceremony of a culture, 
individual human remains were deposited, and includes rock cairns or 
pyres which do not fall within the ordinary definition of gravesite. For 
purposes of completing the summary requirements in Sec. 10.8 and the 
inventory requirements of Sec. 10.9:
    (i) Associated funerary objects means those funerary objects for 
which the human remains with which they were placed intentionally are 
also in the possession or control of a museum or Federal agency. 
Associated funerary objects also means those funerary objects that were 
made exclusively for burial purposes or to contain human remains.
    (ii) Unassociated funerary objects means those funerary objects for 
which the human remains with which they were placed intentionally are 
not in the possession or control of a museum or Federal agency. Objects 
that were displayed with individual human remains as part of a death 
rite or ceremony of a culture and subsequently returned or distributed 
according to traditional custom to living descendants or other 
individuals are not considered unassociated funerary objects.
    (3) Sacred objects means items that are specific ceremonial objects 
needed by traditional Native American religious leaders for the practice 
of traditional Native American religions by their present-day adherents. 
While many items, from ancient pottery sherds to arrowheads, might be 
imbued with sacredness in the eyes of an individual, these regulations 
are specifically limited to objects that were devoted to a traditional 
Native American religious ceremony or ritual and which have religious 
significance or function in the continued observance or renewal of such 
ceremony. The term traditional religious leader means a person who is 
recognized by members of an Indian tribe or Native Hawaiian organization 
as:
    (i) Being responsible for performing cultural duties relating to the 
ceremonial or religious traditions of that Indian tribe or Native 
Hawaiian organization, or
    (ii) Exercising a leadership role in an Indian tribe or Native 
Hawaiian organization based on the tribe or organization's cultural, 
ceremonial, or religious practices.
    (4) Objects of cultural patrimony means items having ongoing 
historical, traditional, or cultural importance central to the Indian 
tribe or Native Hawaiian organization itself, rather than property owned 
by an individual tribal or organization member. These objects are of 
such central importance that they may not be alienated, appropriated, or 
conveyed by any individual tribal or organization member. Such objects 
must have been considered inalienable by the culturally affiliated 
Indian tribe or Native Hawaiian organization at the time the object was 
separated from the group. Objects of cultural patrimony include items 
such as Zuni War Gods, the Confederacy Wampum Belts of the Iroquois, and 
other objects of similar character and significance to the Indian tribe 
or Native Hawaiian organization as a whole.
    (e)(1) What is cultural affiliation? Cultural affiliation means that 
there is a relationship of shared group identity that can be reasonably 
traced historically or prehistorically between members of a present-day 
Indian tribe or Native Hawaiian organization and an identifiable earlier 
group. Cultural affiliation is established when the preponderance of the 
evidence--based on geographical, kinship, biological, archeological, 
anthropological, linguistic, folklore, oral tradition, historical 
evidence, or other information or expert opinion--reasonably leads to 
such a conclusion.
    (2) What does culturally unidentifiable mean? Culturally 
unidentifiable refers to human remains and associated funerary objects 
in museum or Federal agency collections for which no lineal descendant 
or culturally affiliated Indian tribe or Native Hawaiian organization 
has been identified through the inventory process.
    (f) What types of lands do the excavation and discovery provisions 
of these regulations apply to? (1) Federal lands means any land other 
than tribal lands that are controlled or owned by the United States 
Government, including lands selected by but not yet conveyed to Alaska 
Native Corporations and

[[Page 198]]

groups organized pursuant to the Alaska Native Claims Settlement Act (43 
U.S.C. 1601 et seq.). United States ``control,'' as used in this 
definition, refers to those lands not owned by the United States but in 
which the United States has a legal interest sufficient to permit it to 
apply these regulations without abrogating the otherwise existing legal 
rights of a person.
    (2) Tribal lands means all lands which:
    (i) Are within the exterior boundaries of any Indian reservation 
including, but not limited to, allotments held in trust or subject to a 
restriction on alienation by the United States; or
    (ii) Comprise dependent Indian communities as recognized pursuant to 
18 U.S.C. 1151; or
    (iii) Are administered for the benefit of Native Hawaiians pursuant 
to the Hawaiian Homes Commission Act of 1920 and section 4 of the 
Hawaiian Statehood Admission Act (Pub.L. 86-3; 73 Stat. 6).
    (iv) Actions authorized or required under these regulations will not 
apply to tribal lands to the extent that any action would result in a 
taking of property without compensation within the meaning of the Fifth 
Amendment of the United States Constitution.
    (g) What procedures are required by these regulations? (1) Summary 
means the written description of collections that may contain 
unassociated funerary objects, sacred objects, and objects of cultural 
patrimony required by Sec. 10.8 of these regulations.
    (2) Inventory means the item-by-item description of human remains 
and associated funerary objects.
    (3) Intentional excavation means the planned archeological removal 
of human remains, funerary objects, sacred objects, or objects of 
cultural patrimony found under or on the surface of Federal or tribal 
lands pursuant to section 3 (c) of the Act.
    (4) Inadvertent discovery means the unanticipated encounter or 
detection of human remains, funerary objects, sacred objects, or objects 
of cultural patrimony found under or on the surface of Federal or tribal 
lands pursuant to section 3 (d) of the Act.
    (5) Disposition means the transfer of control over Native American 
human remains, funerary objects, sacred objects, and objects of cultural 
patrimony by a museum or Federal agency under this part. This part 
establishes disposition procedures for several different situations:
    (i) Custody of human remains, funerary objects, sacred objects, and 
objects of cultural patrimony excavated intentionally from, or 
discovered inadvertently on, Federal or tribal lands after November 16, 
1990, is established under Sec. 10.6.
    (ii) Repatriation of human remains, funerary objects, sacred 
objects, and objects of cultural patrimony in museum and Federal agency 
collections to a lineal descendant or culturally affiliated Indian tribe 
or Native Hawaiian organization is established under Sec. 10.10.
    (iii) Disposition of culturally unidentifiable human remains, with 
or without associated funerary objects, in museum or Federal agency 
collections is established under Sec. 10.11.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41293, Aug. 1, 1997; 70 
FR 57179, Sept. 30, 2005; 71 FR 16501, Apr. 3, 2006; 75 FR 12403, 
Mar.15, 2010]



Subpart B_Human Remains, Funerary Objects, Sacred Objects, or Objects of 
             Cultural Patrimony From Federal or Tribal Lands



Sec. 10.3  Intentional archaeological excavations.

    (a) General. This section carries out section 3 (c) of the Act 
regarding the custody of human remains, funerary objects, sacred 
objects, or objects of cultural patrimony that are excavated 
intentionally from Federal or tribal lands after November 16, 1990.
    (b) Specific Requirements. These regulations permit the intentional 
excavation of human remains, funerary objects, sacred objects, or 
objects of cultural patrimony from Federal or tribal lands only if:
    (1) The objects are excavated or removed following the requirements 
of the Archaeological Resources Protection Act (ARPA) (16 U.S.C. 470aa 
et seq.) and its implementing regulations.

[[Page 199]]

Regarding private lands within the exterior boundaries of any Indian 
reservation, the Bureau of Indian Affairs (BIA) will serve as the 
issuing agency for any permits required under the Act. For BIA 
procedures for obtaining such permits, see 25 CFR part 262 or contact 
the Deputy Commissioner of Indian Affairs, Department of the Interior, 
Washington, DC 20240. Regarding lands administered for the benefit of 
Native Hawaiians pursuant to the Hawaiian Homes Commission Act, 1920, 
and section 4 of Pub. L. 86-3, the Department of Hawaiian Home Lands 
will serve as the issuing agency for any permits required under the Act, 
with the Hawaii State Historic Preservation Division of the Department 
of Land and Natural Resources acting in an advisory capacity for such 
issuance. Procedures and requirements for issuing permits will be 
consistent with those required by the ARPA and its implementing 
regulations;
    (2) The objects are excavated after consultation with or, in the 
case of tribal lands, consent of, the appropriate Indian tribe or Native 
Hawaiian organization pursuant to Sec. 10.5;
    (3) The disposition of the objects is consistent with their custody 
as described in Sec. 10.6; and
    (4) Proof of the consultation or consent is shown to the Federal 
agency official or other agency official responsible for the issuance of 
the required permit.
    (c) Procedures. (1) The Federal agency official must take reasonable 
steps to determine whether a planned activity may result in the 
excavation of human remains, funerary objects, sacred objects, or 
objects of cultural patrimony from Federal lands. Prior to issuing any 
approvals or permits for activities, the Federal agency official must 
notify in writing the Indian tribes or Native Hawaiian organizations 
that are likely to be culturally affiliated with any human remains, 
funerary objects, sacred objects, or objects of cultural patrimony that 
may be excavated. The Federal agency official must also notify any 
present-day Indian tribe which aboriginally occupied the area of the 
planned activity and any other Indian tribes or Native Hawaiian 
organizations that the Federal agency official reasonably believes are 
likely to have a cultural relationship to the human remains, funerary 
objects, sacred objects, or objects of cultural patrimony that are 
expected to be found. The notice must be in writing and describe the 
planned activity, its general location, the basis upon which it was 
determined that human remains, funerary objects, sacred objects, or 
objects of cultural patrimony may be excavated, and, the basis for 
determining likely custody pursuant to Sec. 10.6. The notice must also 
propose a time and place for meetings or consultations to further 
consider the activity, the Federal agency's proposed treatment of any 
human remains, funerary objects, sacred objects, or objects of cultural 
patrimony that may be excavated, and the proposed disposition of any 
excavated human remains, funerary objects, sacred objects, or objects of 
cultural patrimony. Written notification should be followed up by 
telephone contact if there is no response in 15 days. Consultation must 
be conducted pursuant to Sec. 10.5.
    (2) Following consultation, the Federal agency official must 
complete a written plan of action (described in Sec. 10.5(e)) and 
execute the actions called for in it.
    (3) If the planned activity is also subject to review under section 
106 of the National Historic Preservation Act (16 U.S.C. 470 et seq.), 
the Federal agency official should coordinate consultation and any 
subsequent agreement for compliance conducted under that Act with the 
requirements of Sec. 10.3 (c)(2) and Sec. 10.5. Compliance with these 
regulations does not relieve Federal agency officials of requirements to 
comply with section 106 of the National Historic Preservation Act (16 
U.S.C. 470 et seq.).
    (4) If an Indian tribe or Native Hawaiian organization receives 
notice of a planned activity or otherwise becomes aware of a planned 
activity that may result in the excavation of human remains, funerary 
objects, sacred objects, or objects of cultural patrimony on tribal 
lands, the Indian tribe or Native Hawaiian organization may take 
appropriate steps to:

[[Page 200]]

    (i) Ensure that the human remains, funerary objects, sacred objects, 
or objects of cultural patrimony are excavated or removed following 
Sec. 10.3 (b), and
    (ii) Make certain that the disposition of any human remains, 
funerary objects, sacred objects, or objects of cultural patrimony 
excavated intentionally or discovered inadvertently as a result of the 
planned activity are carried out following Sec. 10.6.



Sec. 10.4  Inadvertent discoveries.

    (a) General. This section carries out section 3 (d) of the Act 
regarding the custody of human remains, funerary objects, sacred 
objects, or objects of cultural patrimony that are discovered 
inadvertently on Federal or tribal lands after November 16, 1990.
    (b) Discovery. Any person who knows or has reason to know that he or 
she has discovered inadvertently human remains, funerary objects, sacred 
objects, or objects of cultural patrimony on Federal or tribal lands 
after November 16, 1990, must provide immediate telephone notification 
of the inadvertent discovery, with written confirmation, to the 
responsible Federal agency official with respect to Federal lands, and, 
with respect to tribal lands, to the responsible Indian tribe official. 
The requirements of these regulations regarding inadvertent discoveries 
apply whether or not an inadvertent discovery is duly reported. If 
written confirmation is provided by certified mail, the return receipt 
constitutes evidence of the receipt of the written notification by the 
Federal agency official or Indian tribe official.
    (c) Ceasing activity. If the inadvertent discovery occurred in 
connection with an on-going activity on Federal or tribal lands, the 
person, in addition to providing the notice described above, must stop 
the activity in the area of the inadvertent discovery and make a 
reasonable effort to protect the human remains, funerary objects, sacred 
objects, or objects of cultural patrimony discovered inadvertently.
    (d) Federal lands. (1) As soon as possible, but no later than three 
(3) working days after receipt of the written confirmation of 
notification with respect to Federal lands described in Sec. 10.4 (b), 
the responsible Federal agency official must:
    (i) Certify receipt of the notification;
    (ii) Take immediate steps, if necessary, to further secure and 
protect inadvertently discovered human remains, funerary objects, sacred 
objects, or objects of cultural patrimony, including, as appropriate, 
stabilization or covering;
    (iii) Notify by telephone, with written confirmation, the Indian 
tribes or Native Hawaiian organizations likely to be culturally 
affiliated with the inadvertently discovered human remains, funerary 
objects, sacred objects, or objects of cultural patrimony, the Indian 
tribe or Native Hawaiian organization which aboriginally occupied the 
area, and any other Indian tribe or Native Hawaiian organization that is 
reasonably known to have a cultural relationship to the human remains, 
funerary objects, sacred objects, or objects of cultural patrimony. This 
notification must include pertinent information as to kinds of human 
remains, funerary objects, sacred objects, or objects of cultural 
patrimony discovered inadvertently, their condition, and the 
circumstances of their inadvertent discovery;
    (iv) Initiate consultation on the inadvertent discovery pursuant to 
Sec. 10.5;
    (v) If the human remains, funerary objects, sacred objects, or 
objects of cultural patrimony must be excavated or removed, follow the 
requirements and procedures in Sec. 10.3 (b) of these regulations; and
    (vi) Ensure that disposition of all inadvertently discovered human 
remains, funerary objects, sacred objects, or objects of cultural 
patrimony is carried out following Sec. 10.6.
    (2) Resumption of activity. The activity that resulted in the 
inadvertent discovery may resume thirty (30) days after certification by 
the notified Federal agency of receipt of the written confirmation of 
notification of inadvertent discovery if the resumption of the activity 
is otherwise lawful. The activity may also resume, if otherwise lawful, 
at any time that a written, binding agreement is executed between the 
Federal agency and the affiliated Indian tribes or Native Hawaiian 
organizations that adopt a recovery plan

[[Page 201]]

for the excavation or removal of the human remains, funerary objects, 
sacred objects, or objects of cultural patrimony following Sec. 10.3 
(b)(1) of these regulations. The disposition of all human remains, 
funerary objects, sacred objects, or objects of cultural patrimony must 
be carried out following Sec. 10.6.
    (e) Tribal lands. (1) As soon as possible, but no later than three 
(3) working days after receipt of the written confirmation of 
notification with respect to Tribal lands described in Sec. 10.4 (b), 
the responsible Indian tribe official may:
    (i) Certify receipt of the notification;
    (ii) Take immediate steps, if necessary, to further secure and 
protect inadvertently discovered human remains, funerary objects, sacred 
objects, or objects of cultural patrimony, including, as appropriate, 
stabilization or covering;
    (iii) If the human remains, funerary objects, sacred objects, or 
objects of cultural patrimony must be excavated or removed, follow the 
requirements and procedures in Sec. 10.3 (b) of these regulations; and
    (iv) Ensure that disposition of all inadvertently discovered human 
remains, funerary objects, sacred objects, or objects of cultural 
patrimony is carried out following Sec. 10.6.
    (2) Resumption of Activity. The activity that resulted in the 
inadvertent discovery may resume if otherwise lawful after thirty (30) 
days of the certification of the receipt of notification by the Indian 
tribe or Native Hawaiian organization.
    (f) Federal agency officials. Federal agency officials should 
coordinate their responsibilities under this section with their 
emergency discovery responsibilities under section 106 of the National 
Historical Preservation Act (16 U.S.C. 470 (f) et seq.), 36 CFR 800.11 
or section 3 (a) of the Archeological and Historic Preservation Act (16 
U.S.C. 469 (a-c)). Compliance with these regulations does not relieve 
Federal agency officials of the requirement to comply with section 106 
of the National Historical Preservation Act (16 U.S.C. 470 (f) et seq.), 
36 CFR 800.11 or section 3 (a) of the Archeological and Historic 
Preservation Act (16 U.S.C. 469 (a-c)).
    (g) Notification requirement in authorizations. All Federal 
authorizations to carry out land use activities on Federal lands or 
tribal lands, including all leases and permits, must include a 
requirement for the holder of the authorization to notify the 
appropriate Federal or tribal official immediately upon the discovery of 
human remains, funerary objects, sacred objects, or objects of cultural 
patrimony pursuant to Sec. 10.4 (b) of these regulations.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41293, Aug. 1, 1997]



Sec. 10.5  Consultation.

    Consultation as part of the intentional excavation or inadvertent 
discovery of human remains, funerary objects, sacred objects, or objects 
of cultural patrimony on Federal lands must be conducted in accordance 
with the following requirements.
    (a) Consulting parties. Federal agency officials must consult with 
known lineal descendants and Indian tribe officials:
    (1) From Indian tribes on whose aboriginal lands the planned 
activity will occur or where the inadvertent discovery has been made; 
and
    (2) From Indian tribes and Native Hawaiian organizations that are, 
or are likely to be, culturally affiliated with the human remains, 
funerary objects, sacred objects, or objects of cultural patrimony; and
    (3) From Indian tribes and Native Hawaiian organizations that have a 
demonstrated cultural relationship with the human remains, funerary 
objects, sacred objects, or objects of cultural patrimony.
    (b) Initiation of consultation. (1) Upon receiving notice of, or 
otherwise becoming aware of, an inadvertent discovery or planned 
activity that has resulted or may result in the intentional excavation 
or inadvertent discovery of human remains, funerary objects, sacred 
objects, or objects of cultural patrimony on Federal lands, the 
responsible Federal agency official must, as part of the procedures 
described in Sec. Sec. 10.3 and 10.4, take appropriate steps to 
identify the lineal descendant, Indian tribe, or Native Hawaiian 
organization entitled to custody of the

[[Page 202]]

human remains, funerary objects, sacred objects, or objects of cultural 
patrimony pursuant to Sec. 10.6 and Sec. 10.14. The Federal agency 
official shall notify in writing:
    (i) Any known lineal descendants of the individual whose remains, 
funerary objects, sacred objects, or objects of cultural patrimony have 
been or are likely to be excavated intentionally or discovered 
inadvertently; and
    (ii) The Indian tribes or Native Hawaiian organizations that are 
likely to be culturally affiliated with the human remains, funerary 
objects, sacred objects, or objects of cultural patrimony that have been 
or are likely to be excavated intentionally or discovered inadvertently; 
and
    (iii) The Indian tribes which aboriginally occupied the area in 
which the human remains, funerary objects, sacred objects, or objects of 
cultural patrimony have been or are likely to be excavated intentionally 
or discovered inadvertently; and
    (iv) The Indian tribes or Native Hawaiian organizations that have a 
demonstrated cultural relationship with the human remains, funerary 
objects, sacred objects, or objects of cultural patrimony that have been 
or are likely to be excavated intentionally or discovered inadvertently.
    (2) The notice must propose a time and place for meetings or 
consultation to further consider the intentional excavation or 
inadvertent discovery, the Federal agency's proposed treatment of the 
human remains, funerary objects, sacred objects, or objects of cultural 
patrimony that may be excavated, and the proposed disposition of any 
intentionally excavated or inadvertently discovered human remains, 
funerary objects, sacred objects, or objects of cultural patrimony.
    (3) The consultation must seek to identify traditional religious 
leaders who should also be consulted and seek to identify, where 
applicable, lineal descendants and Indian tribes or Native Hawaiian 
organizations affiliated with the human remains, funerary objects, 
sacred objects, or objects of cultural patrimony.
    (c) Provision of information. During the consultation process, as 
appropriate, the Federal agency official must provide the following 
information in writing to the lineal descendants and the officials of 
Indian tribes or Native Hawaiian organizations that are or are likely to 
be affiliated with the human remains, funerary objects, sacred objects, 
or objects of cultural patrimony excavated intentionally or discovered 
inadvertently on Federal lands:
    (1) A list of all lineal descendants and Indian tribes or Native 
Hawaiian organizations that are being, or have been, consulted regarding 
the particular human remains, funerary objects, sacred objects, or 
objects of cultural patrimony;
    (2) An indication that additional documentation used to identify 
affiliation will be supplied upon request.
    (d) Requests for information. During the consultation process, 
Federal agency officials must request, as appropriate, the following 
information from Indian tribes or Native Hawaiian organizations that 
are, or are likely to be, affiliated pursuant to Sec. 10.6 (a) with 
intentionally excavated or inadvertently discovered human remains, 
funerary objects, sacred objects, or objects of cultural patrimony:
    (1) Name and address of the Indian tribe official to act as 
representative in consultations related to particular human remains, 
funerary objects, sacred objects, or objects of cultural patrimony;
    (2) Names and appropriate methods to contact lineal descendants who 
should be contacted to participate in the consultation process;
    (3) Recommendations on how the consultation process should be 
conducted; and
    (4) Kinds of cultural items that the Indian tribe or Native Hawaiian 
organization considers likely to be unassociated funerary objects, 
sacred objects, or objects of cultural patrimony.
    (e) Written plan of action. Following consultation, the Federal 
agency official must prepare, approve, and sign a written plan of 
action. A copy of this plan of action must be provided to the lineal 
descendants, Indian tribes and Native Hawaiian organizations involved. 
Lineal descendants and Indian tribe official(s) may sign the written

[[Page 203]]

plan of action as appropriate. At a minimum, the plan of action must 
comply with Sec. 10.3 (b)(1) and document the following:
    (1) The kinds of objects to be considered as cultural items as 
defined in Sec. 10.2 (b);
    (2) The specific information used to determine custody pursuant to 
Sec. 10.6;
    (3) The planned treatment, care, and handling of human remains, 
funerary objects, sacred objects, or objects of cultural patrimony 
recovered;
    (4) The planned archeological recording of the human remains, 
funerary objects, sacred objects, or objects of cultural patrimony 
recovered;
    (5) The kinds of analysis planned for each kind of object;
    (6) Any steps to be followed to contact Indian tribe officials at 
the time of intentional excavation or inadvertent discovery of specific 
human remains, funerary objects, sacred objects, or objects of cultural 
patrimony;
    (7) The kind of traditional treatment, if any, to be afforded the 
human remains, funerary objects, sacred objects, or objects of cultural 
patrimony by members of the Indian tribe or Native Hawaiian 
organization;
    (8) The nature of reports to be prepared; and
    (9) The planned disposition of human remains, funerary objects, 
sacred objects, or objects of cultural patrimony following Sec. 10.6.
    (f) Comprehensive agreements. Whenever possible, Federal Agencies 
should enter into comprehensive agreements with Indian tribes or Native 
Hawaiian organizations that are affiliated with human remains, funerary 
objects, sacred objects, or objects of cultural patrimony and have 
claimed, or are likely to claim, those human remains, funerary objects, 
sacred objects, or objects of cultural patrimony excavated intentionally 
or discovered inadvertently on Federal lands. These agreements should 
address all Federal agency land management activities that could result 
in the intentional excavation or inadvertent discovery of human remains, 
funerary objects, sacred objects, or objects of cultural patrimony. 
Consultation should lead to the establishment of a process for 
effectively carrying out the requirements of these regulations regarding 
standard consultation procedures, the determination of custody 
consistent with procedures in this section and Sec. 10.6, and the 
treatment and disposition of human remains, funerary objects, sacred 
objects, or objects of cultural patrimony. The signed agreements, or the 
correspondence related to the effort to reach agreements, must 
constitute proof of consultation as required by these regulations.
    (g) Traditional religious leaders. The Federal agency official must 
be cognizant that Indian tribe officials may need to confer with 
traditional religious leaders prior to making recommendations. Indian 
tribe officials are under no obligation to reveal the identity of 
traditional religious leaders.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41293, Aug. 1, 1997]



Sec. 10.6  Custody.

    (a) Priority of custody. This section carries out section 3 (a) of 
the Act, subject to the limitations of Sec. 10.15, regarding the 
custody of human remains, funerary objects, sacred objects, or objects 
of cultural patrimony excavated intentionally or discovered 
inadvertently in Federal or tribal lands after November 16, 1990. For 
the purposes of this section, custody means ownership or control of 
human remains, funerary objects, sacred objects, or objects of cultural 
patrimony excavated intentionally or discovered inadvertently in Federal 
or tribal lands after November 16, 1990. Custody of these human remains, 
funerary objects, sacred objects, or objects of cultural patrimony is, 
with priority given in the order listed:
    (1) In the case of human remains and associated funerary objects, in 
the lineal descendant of the deceased individual as determined pursuant 
to Sec. 10.14 (b);
    (2) In cases where a lineal descendant cannot be ascertained or no 
claim is made, and with respect to unassociated funerary objects, sacred 
objects, and objects of cultural patrimony:
    (i) In the Indian tribe on whose tribal land the human remains, 
funerary objects, sacred objects, or objects of cultural patrimony were 
excavated intentionally or discovered inadvertently;

[[Page 204]]

    (ii) In the Indian tribe or Native Hawaiian organization that has 
the closest cultural affiliation with the human remains, funerary 
objects, sacred objects, or objects of cultural patrimony as determined 
pursuant to Sec. 10.14 (c); or
    (iii) In circumstances in which the cultural affiliation of the 
human remains, funerary objects, sacred objects, or objects of cultural 
patrimony cannot be ascertained and the objects were excavated 
intentionally or discovered inadvertently on Federal land that is 
recognized by a final judgment of the Indian Claims Commission or the 
United States Court of Claims as the aboriginal land of an Indian tribe:
    (A) In the Indian tribe aboriginally occupying the Federal land on 
which the human remains, funerary objects, sacred objects, or objects of 
cultural patrimony were excavated intentionally or discovered 
inadvertently, or
    (B) If it can be shown by a preponderance of the evidence that a 
different Indian tribe or Native Hawaiian organization has a stronger 
cultural relationship with the human remains, funerary objects, sacred 
objects, or objects of cultural patrimony, in the Indian tribe or Native 
Hawaiian organization that has the strongest demonstrated relationship 
with the objects.
    (b) Custody of human remains, funerary objects, sacred objects, or 
objects of cultural patrimony and other provisions of the Act apply to 
all intentional excavations and inadvertent discoveries made after 
November 16, 1990, including those made before the effective date of 
these regulations.
    (c) Final notice, claims and disposition with respect to Federal 
lands. Upon determination of the lineal descendant, Indian tribe, or 
Native Hawaiian organization that under these regulations appears to be 
entitled to custody of particular human remains, funerary objects, 
sacred objects, or objects of cultural patrimony excavated intentionally 
or discovered inadvertently on Federal lands, the responsible Federal 
agency official must, subject to the notice required herein and the 
limitations of Sec. 10.15, transfer custody of the objects to the 
lineal descendant, Indian tribe, or Native Hawaiian organization 
following appropriate procedures, which must respect traditional customs 
and practices of the affiliated Indian tribes or Native Hawaiian 
organizations in each instance. Prior to any such disposition by a 
Federal agency official, the Federal agency official must publish 
general notices of the proposed disposition in a newspaper of general 
circulation in the area in which the human remains, funerary objects, 
sacred objects, or objects of cultural patrimony were excavated 
intentionally or discovered inadvertently and, if applicable, in a 
newspaper of general circulation in the area(s) in which affiliated 
Indian tribes or Native Hawaiian organizations members now reside. The 
notice must provide information as to the nature and affiliation of the 
human remains, funerary objects, sacred objects, or objects of cultural 
patrimony and solicit further claims to custody. The notice must be 
published at least two (2) times at least a week apart, and the transfer 
must not take place until at least thirty (30) days after the 
publication of the second notice to allow time for any additional 
claimants to come forward. If additional claimants do come forward and 
the Federal agency official cannot clearly determine which claimant is 
entitled to custody, the Federal agency must not transfer custody of the 
objects until such time as the proper recipient is determined pursuant 
to these regulations. The Federal agency official must send a copy of 
the notice and information on when and in what newspaper(s) the notice 
was published to the Manager, National NAGPRA Program.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41293, Aug. 1, 1997; 71 
FR 16501, Apr. 3, 2006]

[[Page 205]]



Sec. 10.7  Disposition of unclaimed human remains, funerary objects, sacred objects, or objects of cultural patrimony. [Reserved]



Subpart C_Human Remains, Funerary Objects, Sacred Objects, or Objects of 
          Cultural Patrimony in Museums and Federal Collections



Sec. 10.8  Summaries.

    (a) General. This section carries out section 6 of the Act. Under 
section 6 of the Act, each museum or Federal agency that has possession 
or control over collections which may contain unassociated funerary 
objects, sacred objects, or objects of cultural patrimony must complete 
a summary of these collections based upon available information held by 
the museum or Federal agency. The purpose of the summary is to provide 
information about the collections to lineal descendants and culturally 
affiliated Indian tribes or Native Hawaiian organizations that may wish 
to request repatriation of such objects. The summary serves in lieu of 
an object-by-object inventory of these collections, although, if an 
inventory is available, it may be substituted. Federal agencies are 
responsible for ensuring that these requirements are met for all 
collections from their lands or generated by their actions whether the 
collections are held by the Federal agency or by a non-Federal 
institution.
    (b) Contents of summaries. For each collection or portion of a 
collection, the summary must include: an estimate of the number of 
objects in the collection or portion of the collection; a description of 
the kinds of objects included; reference to the means, date(s), and 
location(s) in which the collection or portion of the collection was 
acquired, where readily ascertainable; and information relevant to 
identifying lineal descendants, if available, and cultural affiliation.
    (c) Completion. Summaries must be completed not later than November 
16, 1993.
    (d) Consultation. (1) Consulting parties. Museum and Federal agency 
officials must consult with Indian tribe officials and traditional 
religious leaders:
    (i) From whose tribal lands unassociated funerary objects, sacred 
objects, or objects of cultural patrimony originated;
    (ii) That are, or are likely to be, culturally affiliated with 
unassociated funerary objects, sacred objects, or objects of cultural 
patrimony; and
    (iii) From whose aboriginal lands unassociated funerary objects, 
sacred objects, or objects of cultural patrimony originated.
    (2) Initiation of consultation. Museum and Federal agency officials 
must begin summary consultation no later than the completion of the 
summary process. Consultation may be initiated with a letter, but should 
be followed up by telephone or face-to-face dialogue with the 
appropriate Indian tribe official.
    (3) Provision of information. During summary consultation, museum 
and Federal agency officials must provide copies of the summary to 
lineal descendants, when known, and to officials and traditional 
religious leaders representing Indian tribes or Native Hawaiian 
organizations that are, or are likely to be, culturally affiliated with 
the cultural items. A copy of the summary must also be provided to the 
Manager, National NAGPRA Program. Upon request by lineal descendants or 
Indian tribe officials, museum and Federal agency officials must provide 
lineal descendants, Indian tribe officials and traditional religious 
leaders with access to records, catalogues, relevant studies, or other 
pertinent data for the limited purposes of determining the geographic 
origin, cultural affiliation, and basic facts surrounding acquisition 
and accession of objects covered by the summary. Access to this 
information may be requested at any time and must be provided in a 
reasonable manner to be agreed upon by all parties. The Review committee 
also must be provided access to such materials.
    (4) Requests for information. During the summary consultation, 
museum and Federal agency officials must request, as appropriate, the 
following information from Indian tribes and Native Hawaiian 
organizations that are,

[[Page 206]]

or are likely to be, culturally affiliated with their collections:
    (i) Name and address of the Indian tribe official to act as 
representative in consultations related to particular objects;
    (ii) Recommendations on how the consultation process should be 
conducted, including:
    (A) Names and appropriate methods to contact any lineal descendants, 
if known, of individuals whose unassociated funerary objects or sacred 
objects are included in the summary;
    (B) Names and appropriate methods to contact any traditional 
religious leaders that the Indian tribe or Native Hawaiian organization 
thinks should be consulted regarding the collections; and
    (iii) Kinds of cultural items that the Indian tribe or Native 
Hawaiian organization considers to be funerary objects, sacred objects, 
or objects of cultural patrimony.
    (e) Museum and Federal agency officials must document the following 
information regarding unassociated funerary objects, sacred objects, and 
objects of cultural patrimony in their collections and must use this 
documentation in determining the individuals, Indian tribes, and Native 
Hawaiian organizations with which they are affiliated:
    (1) Accession and catalogue entries;
    (2) Information related to the acquisition of unassociated funerary 
object, sacred object, or object of cultural patrimony, including:
    (i) The name of the person or organization from whom the object was 
obtained, if known;
    (ii) The date of acquisition;
    (iii) The place each object was acquired, i.e., name or number of 
site, county, State, and Federal agency administrative unit, if 
applicable; and
    (iv) The means of acquisition, i.e., gift, purchase, or excavation;
    (3) A description of each unassociated funerary object, sacred 
object, or object of cultural patrimony, including dimensions, 
materials, and photographic documentation, if appropriate, and the 
antiquity of such objects, if known;
    (4) A summary of the evidence used to determine the cultural 
affiliation of the unassociated funerary objects, sacred objects, or 
objects of cultural patrimony pursuant to Sec. 10.14 of these 
regulations.
    (f) Notification. Repatriation of unassociated funerary objects, 
sacred objects, or objects of cultural patrimony to lineal descendants, 
culturally affiliated Indian tribes, or Native Hawaiian organizations as 
determined pursuant to Sec. 10.10 (a), must not proceed prior to 
submission of a notice of intent to repatriate to the Manager, National 
NAGPRA Program, and publication of the notice of intent to repatriate in 
the Federal Register. The notice of intent to repatriate must describe 
the unassociated funerary objects, sacred objects, or objects of 
cultural patrimony being claimed in sufficient detail so as to enable 
other individuals, Indian tribes or Native Hawaiian organizations to 
determine their interest in the claimed objects. It must include 
information that identifies each claimed unassociated funerary object, 
sacred object, or object of cultural patrimony and the circumstances 
surrounding its acquisition, and describes the objects that are clearly 
identifiable as to cultural affiliation. It must also describe the 
objects that are not clearly identifiable as being culturally affiliated 
with a particular Indian tribe or Native Hawaiian organization, but 
which, given the totality of circumstances surrounding acquisition of 
the objects, are likely to be culturally affiliated with a particular 
Indian tribe or Native Hawaiian organization. The Manager, National 
NAGPRA Program must publish the notice of intent to repatriate in the 
Federal Register. Repatriation may not occur until at least thirty (30) 
days after publication of the notice of intent to repatriate in the 
Federal Register.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41293, Aug. 1, 1997; 71 
FR 16501, Apr. 3, 2006]



Sec. 10.9  Inventories.

    (a) General. This section carries out section 5 of the Act. Under 
section 5 of the Act, each museum or Federal agency that has possession 
or control over holdings or collections of human remains and associated 
funerary objects

[[Page 207]]

must compile an inventory of such objects, and, to the fullest extent 
possible based on information possessed by the museum or Federal agency, 
must identify the geographical and cultural affiliation of each item. 
The purpose of the inventory is to facilitate repatriation by providing 
clear descriptions of human remains and associated funerary objects and 
establishing the cultural affiliation between these objects and present-
day Indian tribes and Native Hawaiian organizations. Museums and Federal 
agencies are encouraged to produce inventories first on those portions 
of their collections for which information is readily available or about 
which Indian tribes or Native Hawaiian organizations have expressed 
special interest. Early focus on these parts of collections will result 
in determinations that may serve as models for other inventories. 
Federal agencies must ensure that these requirements are met for all 
collections from their lands or generated by their actions whether the 
collections are held by the Federal agency or by a non-Federal 
institution.
    (b) Consultation--(1) Consulting parties. Museum and Federal agency 
officials must consult with:
    (i) Lineal descendants of individuals whose remains and associated 
funerary objects are likely to be subject to the inventory provisions of 
these regulations; and
    (ii) Indian tribe officials and traditional religious leaders:
    (A) From whose tribal lands the human remains and associated 
funerary objects originated;
    (B) That are, or are likely to be, culturally affiliated with human 
remains and associated funerary objects; and
    (C) From whose aboriginal lands the human remains and associated 
funerary objects originated.
    (2) Initiation of consultation. Museum and Federal agency officials 
must begin inventory consultation as early as possible, no later in the 
inventory process than the time at which investigation into the cultural 
affiliation of human remains and associated funerary objects is being 
conducted. Consultation may be initiated with a letter, but should be 
followed up by telephone or face-to-face dialogue.
    (3) Provision of information. During inventory consultation, museums 
and Federal agency officials must provide the following information in 
writing to lineal descendants, when known, and to officials and 
traditional religious leaders representing Indian tribes or Native 
Hawaiian organizations that are, or are likely to be, culturally 
affiliated with the human remains and associated funerary objects.
    (i) A list of all Indian tribes and Native Hawaiian organizations 
that are, or have been, consulted regarding the particular human remains 
and associated funerary objects;
    (ii) A general description of the conduct of the inventory;
    (iii) The projected time frame for conducting the inventory; and
    (iv) An indication that additional documentation used to identify 
cultural affiliation will be supplied upon request.
    (4) Requests for information. During the inventory consultation, 
museum and Federal agency officials must request, as appropriate, the 
following information from Indian tribes and Native Hawaiian 
organizations that are, or are likely to be, culturally affiliated with 
their collections:
    (i) Name and address of the Indian tribe official to act as 
representative in consultations related to particular human remains and 
associated funerary objects;
    (ii) Recommendations on how the consultation process should be 
conducted, including:
    (A) Names and appropriate methods to contact any lineal descendants 
of individuals whose remains and associated funerary objects are or are 
likely to be included in the inventory; and
    (B) Names and appropriate methods to contact traditional religious 
leaders who should be consulted regarding the human remains and 
associated funerary objects.
    (iii) Kinds of objects that the Indian tribe or Native Hawaiian 
organization reasonably believes to have been made exclusively for 
burial purposes or to contain human remains of their ancestors.
    (c) Required information. The following documentation must be 
included, if available, for all inventories

[[Page 208]]

completed by museum or Federal agency officials:
    (1) Accession and catalogue entries, including the accession/
catalogue entries of human remains with which funerary objects were 
associated;
    (2) Information related to the acquisition of each object, 
including:
    (i) The name of the person or organization from whom the object was 
obtained, if known;
    (ii) The date of acquisition,
    (iii) The place each object was acquired, i.e., name or number of 
site, county, State, and Federal agency administrative unit, if 
applicable; and
    (iv) The means of acquisition, i.e., gift, purchase, or excavation;
    (3) A description of each set of human remains or associated 
funerary object, including dimensions, materials, and, if appropriate, 
photographic documentation, and the antiquity of such human remains or 
associated funerary objects, if known;
    (4) A summary of the evidence, including the results of 
consultation, used to determine the cultural affiliation of the human 
remains and associated funerary objects pursuant to Sec. 10.14 of these 
regulations.
    (d) Documents. Two separate documents comprise the inventory:
    (1) A listing of all human remains and associated funerary objects 
that are identified as being culturally affiliated with one or more 
present-day Indian tribes or Native Hawaiian organizations. The list 
must indicate for each item or set of items whether cultural affiliation 
is clearly determined or likely based upon the preponderance of the 
evidence; and
    (2) A listing of all culturally unidentifiable human remains and 
associated funerary objects for which no culturally affiliated present-
day Indian tribe or Native Hawaiian organization can be determined.
    (e) Notification. (1) If the inventory results in the identification 
or likely identification of the cultural affiliation of any particular 
human remains or associated funerary objects with one or more Indian 
tribes or Native Hawaiian organizations, the museum or Federal agency, 
not later than six (6) months after completion of the inventory, must 
send such Indian tribes or Native Hawaiian organizations the inventory 
of culturally affiliated human remains and associated funerary objects, 
including all information required under Sec. 10.9 (c), and a notice of 
inventory completion that summarizes the results of the inventory.
    (2) The notice of inventory completion must:
    (i) Summarize the contents of the inventory in sufficient detail so 
as to enable the recipients to determine their interest in claiming the 
inventoried items;
    (ii) Identify each particular set of human remains or each 
associated funerary object and the circumstances surrounding its 
acquisition;
    (iii) Describe the human remains or associated funerary objects that 
are clearly culturally affiliated with an Indian tribe or Native 
Hawaiian organization and identify the Indian tribe or Native Hawaiian 
organization;
    (iv) Describe the human remains or associated funerary objects that 
are not clearly identifiable as culturally affiliated with an Indian 
tribe or Native Hawaiian organization, but that are likely to be 
culturally affiliated with a particular Indian tribe or Native Hawaiian 
organization given the totality of circumstances surrounding acquisition 
of the human remains or associated objects; and
    (v) Describe those human remains, with or without associated 
funerary objects, that are culturally unidentifiable but that are 
subject to disposition under Sec. 10.11.
    (3) If the inventory results in a determination that the human 
remains are of an identifiable individual, the museum or Federal agency 
official must convey this information to the lineal descendant of the 
deceased individual, if known, and to the Indian tribe or Native 
Hawaiian organization of which the deceased individual was culturally 
affiliated.
    (4) The notice of inventory completion and a copy of the inventory 
must also be sent to the Manager, National NAGPRA Program. These 
submissions should be sent in both printed hard

[[Page 209]]

copy and electronic formats. Information on the proper format for 
electronic submission and suggested alternatives for museums and Federal 
agencies unable to meet these requirements are available from the 
Manager, National NAGPRA Program.
    (5) Upon request by an Indian tribe or Native Hawaiian organization 
that has received or should have received a notice and inventory under 
paragraphs (e)(1) and (e)(2) of this section, a museum or Federal agency 
must supply additional available documentation.
    (i) For purposes of this paragraph, ``documentation'' means a 
summary of existing museum or Federal agency records including 
inventories or catalogues, relevant studies, or other pertinent data for 
the limited purpose of determining the geographic origin, cultural 
affiliation, and basic facts surrounding the acquisition and accession 
of human remains and associated funerary objects.
    (ii) Documentation supplied under this paragraph by a Federal agency 
or to a Federal agency is considered a public record except as exempted 
under relevant laws, such as the Freedom of Information Act (5 U.S.C. 
552), Privacy Act (5 U.S.C. 552a), Archaeological Resources Protection 
Act (16 U.S.C. 470hh), National Historic Preservation Act (16 U.S.C. 
470w-3), and any other legal authority exempting the information from 
public disclosure.
    (iii) Neither a request for documentation nor any other provisions 
of this part may be construed as authorizing either:
    (A) The initiation of new scientific studies of the human remains 
and associated funerary objects; or
    (B) Other means of acquiring or preserving additional scientific 
information from the remains and objects.
    (6) This paragraph applies when a the museum or Federal agency 
official determines that it has possession of or control over human 
remains or associated funerary objects that cannot be identified as 
affiliated with a lineal descendent, Indian tribe, or Native Hawaiian 
organization The museum or Federal agency must provide the Manager, 
National NAGPRA Program notice of its determination and a list of the 
culturally unidentifiable human remains and any associated funerary 
objects. The Manager, National NAGPRA Program must make this information 
available to members of the Review Committee. Culturally unidentifiable 
human remains, with or without associated funerary objects, are subject 
to disposition under Sec. 10.11.
    (7) The Manager, National NAGPRA Program must publish notices of 
inventory completion received from museums and Federal agencies in the 
Federal Register.
    (f) Completion. Inventories must be completed not later than 
November 16, 1995. Any museum that has made a good faith effort to 
complete its inventory, but which will be unable to complete the process 
by this deadline, may request an extension of the time requirements from 
the Secretary. An indication of good faith efforts must include, but not 
necessarily be limited to, the initiation of active consultation and 
documentation regarding the collections and the development of a written 
plan to carry out the inventory process. Minimum components of an 
inventory plan are: a definition of the steps required; the position 
titles of the persons responsible for each step; a schedule for carrying 
out the plan; and a proposal to obtain the requisite funding.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41293, Aug. 1, 1997; 71 
FR 16501, Apr. 3, 2006; 75 FR 12403, Mar.15, 2010]



Sec. 10.10  Repatriation.

    (a) Unassociated funerary objects, sacred objects, and objects of 
cultural patrimony--(1) Criteria. Upon the request of a lineal 
descendant, Indian tribe, or Native Hawaiian organization, a museum or 
Federal agency must expeditiously repatriate unassociated funerary 
objects, sacred objects, or objects of cultural patrimony if all the 
following criteria are met:
    (i) The object meets the definitions established in Sec. 10.2 
(d)(2)(ii), (d)(3), or (d)(4); and
    (ii) The cultural affiliation of the object is established:
    (A) Through the summary, consultation, and notification procedures 
in Sec. 10.14 of these regulations; or

[[Page 210]]

    (B) By presentation of a preponderance of the evidence by a 
requesting Indian tribe or Native Hawaiian organization pursuant to 
section 7(c) of the Act; and
    (iii) The known lineal descendant or culturally affiliated Indian 
tribe or Native Hawaiian organization presents evidence which, if 
standing alone before the introduction of evidence to the contrary, 
would support a finding that the museum or Federal agency does not have 
a right of possession to the objects as defined in Sec. 10.10 (a)(2); 
and
    (iv) The agency or museum is unable to present evidence to the 
contrary proving that it does have a right of possession as defined 
below; and
    (v) None of the specific exceptions listed in Sec. 10.10 (c) apply.
    (2) Right of possession. For purposes of this section, ``right of 
possession'' means possession obtained with the voluntary consent of an 
individual or group that had authority of alienation. The original 
acquisition of a Native American unassociated funerary object, sacred 
object, or object of cultural patrimony from an Indian tribe or Native 
Hawaiian organization with the voluntary consent of an individual or 
group with authority to alienate such object is deemed to give right of 
possession to that object.
    (3) Notification. Repatriation must take place within ninety (90) 
days of receipt of a written request for repatriation that satisfies the 
requirements of paragraph (a)(1) of this section from a lineal 
descendent or culturally affiliated Indian tribe or Native Hawaiian 
organization, provided that the repatriation may not occur until at 
least thirty (30) days after publication of the notice of intent to 
repatriate in the Federal Register as described in Sec. 10.8.
    (b) Human remains and associated funerary objects--(1) Criteria. 
Upon the request of a lineal descendant, Indian tribe, or Native 
Hawaiian organization, a museum and Federal agency must expeditiously 
repatriate human remains and associated funerary objects if all of the 
following criteria are met:
    (i) The human remains or associated funerary object meets the 
definitions established in Sec. 10.2 (d)(1) or (d)(2)(i); and
    (ii) The affiliation of the deceased individual to known lineal 
descendant, present day Indian tribe, or Native Hawaiian organization:
    (A) Has been reasonably traced through the procedures outlined in 
Sec. 10.9 and Sec. 10.14 of these regulations; or
    (B) Has been shown by a preponderance of the evidence presented by a 
requesting Indian tribe or Native Hawaiian organization pursuant to 
section 7(c) of the Act; and
    (iii) None of the specific exceptions listed in Sec. 10.10 (c) 
apply.
    (2) Notification. Repatriation must take place within ninety (90) 
days of receipt of a written request for repatriation that satisfies the 
requirements of Sec. 10.10 (b)(1) from the culturally affiliated Indian 
tribe or Native Hawaiian organization, provided that the repatriation 
may not occur until at least thirty (30) days after publication of the 
notice of inventory completion in the Federal Register as described in 
Sec. 10.9.
    (c) Exceptions. These requirements for repatriation do not apply to:
    (1) Circumstances where human remains, funerary objects, sacred 
objects, or objects of cultural patrimony are indispensable to the 
completion of a specific scientific study, the outcome of which is of 
major benefit to the United States. Human remains, funerary objects, 
sacred objects, or objects of cultural patrimony in such circumstances 
must be returned no later than ninety (90) days after completion of the 
study; or
    (2) Circumstances where there are multiple requests for repatriation 
of human remains, funerary objects, sacred objects, or objects of 
cultural patrimony and the museum or Federal agency, after complying 
with these regulations, cannot determine by a preponderance of the 
evidence which requesting party is the most appropriate claimant. In 
such circumstances, the museum or Federal agency may retain the human 
remains, funerary objects, sacred objects, or objects of cultural 
patrimony until such time as the requesting parties mutually agree upon 
the appropriate recipient or the dispute is otherwise resolved pursuant 
to these regulations or as ordered by a court of competent jurisdiction; 
or

[[Page 211]]

    (3) Circumstances where a court of competent jurisdiction has 
determined that the repatriation of the human remains, funerary objects, 
sacred objects, or objects of cultural patrimony in the possession or 
control of a museum would result in a taking of property without just 
compensation within the meaning of the Fifth Amendment of the United 
States Constitution, in which event the custody of the objects must be 
as provided under otherwise applicable law. Nothing in these regulations 
must prevent a museum or Federal agency, where otherwise so authorized, 
or a lineal descendant, Indian tribe, or Native Hawaiian organization, 
from expressly relinquishing title to, right of possession of, or 
control over any human remains, funerary objects, sacred objects, or 
objects of cultural patrimony.
    (4) Circumstances where the repatriation is not consistent with 
other repatriation limitations identified in Sec. 10.15 of these 
regulations.
    (d) Place and manner of repatriation. The repatriation of human 
remains, funerary objects, sacred objects, or objects of cultural 
patrimony must be accomplished by the museum or Federal agency in 
consultation with the requesting lineal descendants, or culturally 
affiliated Indian tribe or Native Hawaiian organization, as appropriate, 
to determine the place and manner of the repatriation.
    (e) The museum official or Federal agency official must inform the 
recipients of repatriations of any presently known treatment of the 
human remains, funerary objects, sacred objects, or objects of cultural 
patrimony with pesticides, preservatives, or other substances that 
represent a potential hazard to the objects or to persons handling the 
objects.
    (f) Record of repatriation. (1) Museums and Federal agencies must 
adopt internal procedures adequate to permanently document the content 
and recipients of all repatriations.
    (2) The museum official or Federal agency official, at the request 
of the Indian tribe official, may take such steps as are considered 
necessary pursuant to otherwise applicable law, to ensure that 
information of a particularly sensitive nature is not made available to 
the general public.
    (g) Culturally unidentifiable human remains. If the cultural 
affiliation of human remains cannot be established pursuant to these 
regulations, the human remains must be considered culturally 
unidentifiable. Museum and Federal agency officials must report the 
inventory information regarding such human remains in their holdings to 
the Manager, National NAGPRA Program who will transmit this information 
to the Review Committee. The Review Committee is responsible for 
compiling an inventory of culturally unidentifiable human remains in the 
possession or control of each museum and Federal agency, and, for 
recommending to the Secretary specific actions for disposition of such 
human remains.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41294, Aug. 1, 1997; 71 
FR 16501, Apr. 3, 2006]



Sec. 10.11  Disposition of culturally unidentifiable human remains.

    (a) General. This section implements section 8(c)(5) of the Act and 
applies to human remains previously determined to be Native American 
under Sec. 10.9, but for which no lineal descendant or culturally 
affiliated Indian tribe or Native Hawaiian organization has been 
identified.
    (b) Consultation. (1) The museum or Federal agency official must 
initiate consultation regarding the disposition of culturally 
unidentifiable human remains and associated funerary objects:
    (i) Within 90 days of receiving a request from an Indian tribe or 
Native Hawaiian organization to transfer control of culturally 
unidentifiable human remains and associated funerary objects; or
    (ii) If no request is received, before any offer to transfer control 
of culturally unidentifiable human remains and associated funerary 
objects.
    (2) The museum or Federal agency official must initiate consultation 
with officials and traditional religious leaders of all Indian tribes 
and Native Hawaiian organizations:

[[Page 212]]

    (i) From whose tribal lands, at the time of the removal, the human 
remains and associated funerary objects were removed; and
    (ii) From whose aboriginal lands the human remains and associated 
funerary objects were removed. Aboriginal occupation may be recognized 
by a final judgment of the Indian Claims Commission or the United States 
Court of Claims, or a treaty, Act of Congress, or Executive Order.
    (3) The museum or Federal agency official must provide the following 
information in writing to all Indian tribes and Native Hawaiian 
organizations with which the museum or Federal agency consults:
    (i) A list of all Indian tribes and Native Hawaiian organizations 
that are being, or have been, consulted regarding the particular human 
remains and associated funerary objects;
    (ii) A list of any Indian groups that are not federally-recognized 
and are known to have a relationship of shared group identity with the 
particular human remains and associated funerary objects; and
    (iii) An offer to provide a copy of the original inventory and 
additional documentation regarding the particular human remains and 
associated funerary objects.
    (4) During consultation, museum and Federal agency officials must 
request, as appropriate, the following information from Indian tribes 
and Native Hawaiian organizations:
    (i) The name and address of the Indian tribal official to act as 
representative in consultations related to particular human remains and 
associated funerary objects;
    (ii) The names and appropriate methods to contact any traditional 
religious leaders who should be consulted regarding the human remains 
and associated funerary objects;
    (iii) Temporal and geographic criteria that the museum or Federal 
agency should use to identify groups of human remains and associated 
funerary objects for consultation;
    (iv) The names and addresses of other Indian tribes, Native Hawaiian 
organizations, or Indian groups that are not federally-recognized who 
should be included in the consultations; and
    (v) A schedule and process for consultation.
    (5) During consultation, the museum or Federal agency official 
should seek to develop a proposed disposition for culturally 
unidentifiable human remains and associated funerary objects that is 
mutually agreeable to the parties specified in paragraph (b)(2) of this 
section. The agreement must be consistent with this part.
    (6) If consultation results in a determination that human remains 
and associated funerary objects previously determined to be culturally 
unidentifiable are actually related to a lineal descendant or culturally 
affiliated with an Indian tribe or Native Hawaiian organization, the 
notification and repatriation of the human remains and associated 
funerary objects must be completed as required by Sec. 10.9(e) and 
Sec. 10.10(b).
    (c) Disposition of culturally unidentifiable human remains and 
associated funerary objects. (1) A museum or Federal agency that is 
unable to prove that it has right of possession, as defined at Sec. 
10.10(a)(2), to culturally unidentifiable human remains must offer to 
transfer control of the human remains to Indian tribes and Native 
Hawaiian organizations in the following priority order:
    (i) The Indian tribe or Native Hawaiian organization from whose 
tribal land, at the time of the excavation or removal, the human remains 
were removed; or
    (ii) The Indian tribe or tribes that are recognized as aboriginal to 
the area from which the human remains were removed. Aboriginal 
occupation may be recognized by a final judgment of the Indian Claims 
Commission or the United States Court of Claims, or a treaty, Act of 
Congress, or Executive Order.
    (2) If none of the Indian tribes or Native Hawaiian organizations 
identified in paragraph (c)(1) of this section agrees to accept control, 
a museum or Federal agency may:
    (i) Transfer control of culturally unidentifiable human remains to 
other Indian tribes or Native Hawaiian organizations; or
    (ii) Upon receiving a recommendation from the Secretary or 
authorized representative:

[[Page 213]]

    (A) Transfer control of culturally unidentifiable human remains to 
an Indian group that is not federally-recognized; or
    (B) Reinter culturally unidentifiable human remains according to 
State or other law.
    (3) The Secretary may make a recommendation under paragraph 
(c)(2)(ii) of this section only with proof from the museum or Federal 
agency that it has consulted with all Indian tribes and Native Hawaiian 
organizations listed in paragraph (c)(1) of this section and that none 
of them has objected to the proposed transfer of control.
    (4) A museum or Federal agency may also transfer control of funerary 
objects that are associated with culturally unidentifiable human 
remains. The Secretary recommends that museums and Federal agencies 
transfer control if Federal or State law does not preclude it.
    (5) The exceptions listed at Sec. 10.10(c) apply to the 
requirements in paragraph (c)(1) of this section.
    (6) Any disposition of human remains excavated or removed from 
Indian lands as defined by the Archaeological Resources Protection Act 
(16 U.S.C. 470bb (4)) must also comply with the provisions of that 
statute and its implementing regulations.
    (d) Notification. (1) Disposition of culturally unidentifiable human 
remains and associated funerary objects under paragraph (c) of this 
section may not occur until at least 30 days after publication of a 
notice of inventory completion in the Federal Register as described in 
Sec. 10.9.
    (2) Within 30 days of publishing the notice of inventory completion, 
the National NAGPRA Program manager must:
    (i) Revise the Review Committee inventory of culturally 
unidentifiable human remains and associated funerary objects to indicate 
the notice's publication; and
    (ii) Make the revised Review Committee inventory accessible to 
Indian tribes, Native Hawaiian organizations, Indian groups that are not 
federally-recognized, museums, and Federal agencies.
    (e) Disputes. Any person who wishes to contest actions taken by 
museums or Federal agencies regarding the disposition of culturally 
unidentifiable human remains and associated funerary objects should do 
so through informal negotiations to achieve a fair resolution. The 
Review Committee may facilitate informal resolution of any disputes that 
are not resolved by good faith negotiation under Sec. 10.17. In 
addition, the United States District Courts have jurisdiction over any 
action brought that alleges a violation of the Act.

[75 FR 12403, Mar.15, 2010]



Sec. 10.12  Civil penalties.

    (a) The Secretary's authority to assess civil penalties. The 
Secretary is authorized by section 9 of the Act to assess civil 
penalties on any museum that fails to comply with the requirements of 
the Act. The Assistant Secretary for Fish and Wildlife and Parks may act 
on behalf of the Secretary.
    (b) Definition of ``failure to comply.'' (1) Your museum has failed 
to comply with the requirements of the Act if it:
    (i) After November 16, 1990, sells or otherwise transfers human 
remains, funerary objects, sacred objects, or objects of cultural 
patrimony contrary to provisions of the Act, including, but not limited 
to, an unlawful sale or transfer to any individual or institution that 
is not required to comply with the Act; or
    (ii) After November 16, 1993, or a date specified under Sec. 10.13, 
whichever deadline is applicable, has not completed summaries as 
required by the Act; or
    (iii) After November 16, 1995, or a date specified under Sec. 
10.13, or the date specified in an extension issued by the Secretary, 
whichever deadline is applicable, has not completed inventories as 
required by the Act; or
    (iv) After May 16, 1996, or 6 months after completion of an 
inventory under an extension issued by the Secretary, or 6 months after 
the date specified for completion of an inventory under Sec. 10.13, 
whichever deadline is applicable, has not notified culturally affiliated 
Indian tribes and Native Hawaiian organizations; or
    (v) Refuses, absent any of the exemptions specified in Sec. 
10.10(c) of this part, to repatriate human remains, funerary

[[Page 214]]

object, sacred object, or object of cultural patrimony to a lineal 
descendant or culturally affiliated Indian tribe or Native Hawaiian; or
    (vi) Repatriates a human remains, funerary object, sacred object, or 
object of cultural patrimony before publishing the required notice in 
the Federal Register;
    (vii) Does not consult with lineal descendants, Indian tribe 
officials, and traditional religious leaders as required; or
    (viii) Does not inform the recipients of repatriations of any 
presently known treatment of the human remains, funerary objects, sacred 
objects, or objects of cultural patrimony with pesticides, 
preservatives, or other substances that represent a potential hazard to 
the objects or to persons handling the objects.
    (ix) Upon receipt of a claim consistent with Sec. 10.11(c)(1), 
refuses to offer to transfer control of culturally unidentifiable human 
remains for which it cannot prove right of possession.
    (2) Each instance of failure to comply will constitute a separate 
violation.
    (c) How to Notify the Secretary of a Failure to Comply. Any person 
may bring an allegation of failure to comply to the attention of the 
Secretary. Allegations must be in writing, and should include 
documentation identifying the provision of the Act with which there has 
been a failure to comply and supporting facts of the alleged failure to 
comply. Documentation should include evidence that the museum has 
possession or control of Native American cultural items, receives 
Federal funds, and has failed to comply with specific provisions of the 
Act. Written allegations should be sent to the attention of the 
Director, National Park Service, 1849 C Street, NW, Washington, D.C. 
20240.
    (d) Steps the Secretary may take upon receiving such an allegation. 
(1) The Secretary must acknowledge receipt of the allegation in writing.
    (2) The Secretary also may:
    (i) Compile and review information relevant to the alleged failure 
to comply. The Secretary may request additional information, such as 
declarations and relevant papers, books, and documents, from the person 
making the allegation, the museum, and other parties;
    (ii) Identify the specific provisions of the Act with which you have 
allegedly failed to comply; and
    (iii) Determine if the institution of a civil penalty action is an 
appropriate remedy.
    (3) The Secretary must provide written notification to the person 
making the allegation and the museum if the review of the evidence does 
not show a failure comply.
    (e) How the Secretary notifies you of a failure to comply. (1) If 
the allegations are verified, the Secretary must serve you with a 
written notice of failure to comply either by personal delivery or by 
registered or certified mail (return receipt requested). The notice of 
failure to comply must include:
    (i) A concise statement of the facts believed to show a failure to 
comply;
    (ii) A specific reference to the provisions of the Act and/or these 
regulations with which you allegedly have not complied; and
    (iii) Notification of the right to request an informal discussion 
with the Secretary or a designee, to request a hearing, as provided 
below, or to await the Secretary's notice of assessment. The notice of 
failure to comply also must inform you of your right to seek judicial 
review of any final administrative decision assessing a civil penalty.
    (2) With your consent, the Secretary may combine the notice of 
failure to comply with the notice of assessment described in paragraph 
(h) of this section.
    (3) The Secretary also must send a copy of the notice of failure to 
comply to:
    (i) Any lineal descendant of a known Native American individual 
whose human remains, funerary objects, or sacred objects are in 
question; and
    (ii) Any Indian tribes or Native Hawaiian organizations that are, or 
are likely to be, culturally affiliated with the human remains, funerary 
objects, sacred objects, or objects of cultural patrimony in question.
    (f) Actions you may take upon receipt of a notice of failure to 
comply. If you are served with a notice of failure to comply, you may:

[[Page 215]]

    (1) Seek informal discussions with the Secretary;
    (2) Request a hearing. Figure 1 outlines the civil penalty hearing 
and appeal process. Where the Secretary has issued a combined notice of 
failure to comply and notice of assessment, the hearing and appeal 
processes will also be combined.
    (3) Take no action and await the Secretary's notice of assessment.

[[Page 216]]

[GRAPHIC] [TIFF OMITTED] TR03AP03.002

    (g) How the Secretary determines the penalty amount. (1) The penalty 
amount must be determined on the record;
    (2) The penalty amount must be .25 percent of your museum's annual 
budget, or $5,000, whichever is less, and such additional sum as the 
Secretary may

[[Page 217]]

determine is appropriate after taking into account:
    (i) The archeological, historical, or commercial value of the human 
remains, funerary object, sacred object, or object of cultural patrimony 
involved; and
    (ii) The damages suffered, both economic and non-economic, by the 
aggrieved party or parties including, but not limited to, expenditures 
by the aggrieved party to compel the museum to comply with the Act; and
    (iii) The number of violations that have occurred at your museum.
    (3) An additional penalty of up to $1,000 per day after the date 
that the final administrative decision takes effect may be assessed if 
your museum continues to violate the Act.
    (4) The Secretary may reduce the penalty amount if there is:
    (i) A determination that you did not willfully fail to comply; or
    (ii) An agreement by you to mitigate the violation, including, but 
not limited to, payment of restitution to the aggrieved party or 
parties; or
    (iii) A determination that you are unable to pay, provided that this 
factor may not apply if you have been previously found to have failed to 
comply with these regulations; or,
    (iv) A determination that the penalty constitutes excessive 
punishment under the circumstances.
    (h) How the Secretary assesses the penalty. (1) The Secretary 
considers all available information, including information provided 
during the process of assessing civil penalties or furnished upon 
further request by the Secretary.
    (2) The Secretary may assess the civil penalty upon completing 
informal discussions or when the period for requesting a hearing 
expires, whichever is later.
    (3) The Secretary notifies you in writing of the penalty amount 
assessed by serving a written notice of assessment, either in person or 
by registered or certified mail (return receipt requested). The notice 
of assessment includes:
    (i) The basis for determining the penalty amount assessed and/or any 
offer to mitigate or remit the penalty; and
    (ii) Notification of the right to request a hearing, including the 
procedures to follow, and to seek judicial review of any final 
administrative decision that assesses a civil penalty.
    (i) Actions that you may take upon receipt of a notice of 
assessment. If you are served with a notice of assessment, you may do 
one of the following:
    (1) Accept in writing or by payment of the proposed penalty, or any 
mitigation or remission offered in the notice of assessment. If you 
accept the proposed penalty, mitigation, or remission, you waive the 
right to request a hearing.
    (2) Seek informal discussions with the Secretary.
    (3) File a petition for relief. You may file a petition for relief 
with the Secretary within 45 calendar days of receiving the notice of 
assessment. Your petition for relief may request the Secretary to assess 
no penalty or to reduce the amount. Your petition must be in writing and 
signed by an official authorized to sign such documents. Your petition 
must set forth in full the legal or factual basis for the requested 
relief.
    (4) Request a hearing. Figure 1 outlines the civil penalty hearing 
and appeal process.
    (i) In addition to the documentation required in paragraph (g) of 
this section, your request must include a copy of the notice of 
assessment and must identify the basis for challenging the assessment.
    (ii) In this hearing, the amount of the civil penalty assessed must 
be determined in accordance with paragraph (h) of this section, and will 
not be limited to the amount assessed by the Secretary or any offer of 
mitigation or remission made by the Secretary.
    (j) How you request a hearing. (1) You may file a written, dated 
request for a hearing on a notice of failure to comply or notice of 
assessment with the Hearings Division, Office of Hearings and Appeals, 
U.S. Department of the Interior, 4015 Wilson Boulevard, Arlington, VA 
22203-1923. You must enclose a copy of the notice of failure to comply 
or the notice of assessment. Your request must state the relief sought, 
the basis for challenging the facts used as the basis for determining 
the failure to comply or fixing the assessment, and your preference of 
the place and date for a hearing. You must serve a copy of

[[Page 218]]

the request on the Solicitor of the Department of the Interior 
personally or by registered or certified mail (return receipt requested) 
at the address specified in the notice of failure to comply or notice of 
assessment. Hearings must take place following procedures set forth in 
43 CFR part 4, subparts A and B.
    (2) Your failure to file a written request for a hearing within 45 
days of the date of service of a notice of failure to comply or notice 
of assessment waives your right to a hearing.
    (3) Upon receiving a request for a hearing, the Hearings Division 
assigns an administrative law judge to the case, gives notice of 
assignment promptly to the parties, and files all pleadings, papers, and 
other documents in the proceeding directly with the administrative law 
judge, with copies served on the opposing party.
    (4) Subject to the provisions of 43 CFR 1.3, you may appear by 
representative or by counsel, and may participate fully in the 
proceedings. If you fail to appear and the administrative law judge 
determines that this failure is without good cause, the administrative 
law judge may, in his/her discretion, determine that this failure waives 
your right to a hearing and consent to the making of a decision on the 
record.
    (5) Departmental counsel, designated by the Solicitor of the 
Department of the Interior, represents the Secretary in the proceedings. 
Upon notice to the Secretary of the assignment of an administrative law 
judge to the case, this counsel must enter his/her appearance on behalf 
of the Secretary and must file all petitions and correspondence 
exchanges by the Secretary and the respondent that become part of the 
hearing record. Thereafter, you must serve all documents for the 
Secretary on his/her counsel.
    (6) Hearing administration. (i) The administrative law judge has all 
powers accorded by law and necessary to preside over the parties and the 
proceedings and to make decisions under 5 U.S.C. 554-557.
    (ii) The transcript of testimony; the exhibits; and all papers, 
documents, and requests filed in the proceedings constitute the record 
for decision. The administrative law judge renders a written decision 
upon the record, which sets forth his/her findings of fact and 
conclusions of law, and the reasons and basis for them.
    (iii) Unless you file a notice of appeal described in these 
regulations, the administrative law judge's decision constitutes the 
final administrative determination of the Secretary in the matter and 
takes effect 30 calendar days from this decision.
    (k) How you appeal a decision. (1) Either you or the Secretary may 
appeal the decision of an administrative law judge by filing a ``Notice 
of Appeal'' with the Interior Board of Indian Appeals, U.S. Department 
of the Interior, 4015 Wilson Boulevard, Arlington, VA 22203-1954, within 
30 calendar days of the date of the administrative law judge's decision. 
This notice must be accompanied by proof of service on the 
administrative law judge and the opposing party.
    (2) To the extent they are not inconsistent with these regulations, 
the provisions of the Department of the Interior Hearings and Appeals 
Procedures in 43 CFR part 4, subpart D, apply to such appeal 
proceedings. The appeal board's decision on the appeal must be in 
writing and takes effect as the final administrative determination of 
the Secretary on the date that the decision is rendered, unless 
otherwise specified in the decision.
    (3) You may obtain copies of decisions in civil penalty proceedings 
instituted under the Act by sending a request to the Interior Board of 
Indian Appeals, Office of Hearings and Appeals, U.S. Department of the 
Interior, 4015 Wilson Boulevard, Arlington, VA 22203-1954. Fees for this 
service are established by the director of that office.
    (l) The final administrative decision. (1) When you have been served 
with a notice of assessment and have accepted the penalty as provided in 
these regulations, the notice constitutes the final administrative 
decision.
    (2) When you have been served with a notice of assessment and have 
not filed a timely request for a hearing as provided in these 
regulations, the notice of assessment constitutes the final 
administrative decision.
    (3) When you have been served with a notice of assessment and have 
filed a

[[Page 219]]

timely request for a hearing as provided in these regulations, the 
decision resulting from the hearing or any applicable administrative 
appeal from it constitutes the final administrative decision.
    (m) How you pay the penalty. (1) If you are assessed a civil 
penalty, you have 45 calendar days from the date of issuance of the 
final administrative decision to make full payment of the penalty 
assessed to the Secretary, unless you have filed a timely request for 
appeal with a court of competent jurisdiction.
    (2) If you fail to pay the penalty, the Secretary may request the 
Attorney General of the United States to collect the penalty by 
instituting a civil action in the U.S. District Court for the district 
in which your museum is located. In these actions, the validity and 
amount of the penalty is not subject to review by the court.
    (3) Assessing a penalty under this section is not a waiver by the 
Secretary of the right to pursue other available legal or administrative 
remedies.

[68 FR 16360, Apr. 3, 2003, as amended at 70 FR 57179, Sept. 30, 2005; 
75 FR 12404, Mar.15, 2010]



Sec. 10.13  Future applicability.

    (a) General. This section sets forth the applicability of the Act to 
museums and Federal agencies after expiration of the statutory deadlines 
for completion of summaries and inventories.
    (b) New holdings or collections.
    (1) Any museum or Federal agency that, after completion of the 
summaries and inventories as required by Sec. Sec. 10.8 and 10.9, 
receives a new holding or collection or locates a previously unreported 
current holding or collection that may include human remains, funerary 
objects, sacred objects or objects of cultural patrimony, must:
    (i) Within 6 months of receiving a new holding or collection or 
locating a previously unreported current holding or collection, or 
within 6 months of the effective date of this rule, whichever is later, 
provide a summary of the holding or collection as required by Sec. 10.8 
to any Indian tribe or Native Hawaiian organization that is, or is 
likely to be, affiliated with the collection; and
    (ii) Within 2 years of receiving a new holding or collection or 
locating a previously unreported current holding or collection, or 
within 2 years of the effective date of this rule, whichever is later, 
prepare, in consultation with any affiliated Indian tribe or Native 
Hawaiian organization, an inventory as required by Sec. 10.9 of these 
regulations. Any museum that has made a good faith effort to complete 
its inventory, but which will be unable to complete the process by this 
deadline, may request an extension of the time requirements under Sec. 
10.9(f).
    (2) Additional pieces or fragments of previously repatriated human 
remains, funerary objects, sacred objects and objects of cultural 
patrimony may be returned to the appropriate Indian tribe or Native 
Hawaiian organization without publication of a notice in the Federal 
Register, as otherwise required under Sec. Sec. 10.8(f) and 10.9(e), if 
they do not change the number or cultural affiliation of the cultural 
items listed in the previous notice.
    (3) A museum or Federal agency that receives a new holding or 
collection for which a summary or inventory was previously prepared, as 
required by Sec. Sec. 10.8 or 10.9, may rely upon the previously 
prepared documents. The receiving museum or Federal agency must provide 
a copy of the previously prepared summary or inventory to all affiliated 
Indian tribes or Native Hawaiian organizations, along with notification 
that the receiving museum or Federal agency has assumed possession and 
control of the holding or collection.
    (c) New Indian tribes.
    (1) Any museum or Federal agency that has possession or control of 
human remains, funerary objects, sacred objects, or objects of cultural 
patrimony that are, or are likely to be, culturally affiliated with a 
newly Federally recognized Native American tribe, must:
    (i) Within 6 months of the publication in the Federal Register of 
the Native American group's placement on the list of Indian Entities 
Recognized and Eligible to Receive Services from the United States 
Bureau of Indian Affairs, or within 6 months of the effective date of 
this rule, whichever is

[[Page 220]]

later, provide a summary of the collection as required by Sec. 10.8 to 
that Indian tribe; and
    (ii) Within 2 years of the publication in the Federal Register of 
the Native American group's placement on the list of Indian Entities 
Recognized and Eligible to Receive Services from the United States 
Bureau of Indian Affairs, or within 2 years of the effective date of 
this rule, whichever is later, prepare, in consultation with the newly 
recognized culturally affiliated Indian tribe an inventory as required 
by Sec. 10.9. Any museum that has made a good faith effort to complete 
its inventory, but which will be unable to complete the process by this 
deadline, may request an extension of the time requirements under Sec. 
10.9(f).
    (2) The list of Indian Entities Recognized and Eligible to Receive 
Services from the United States Bureau of Indian Affairs is published in 
the Federal Register as required by provisions of the Federally 
Recognized Indian Tribe List Act of 1994 [Pub. L. 103-454, 108 Stat. 
4791].
    (d) New Federal funds. Any museum that has possession or control of 
human remains, funerary objects, sacred objects, or objects of cultural 
patrimony and receives Federal funds for the first time after expiration 
of the statutory deadlines for completion of summaries and inventories 
must:
    (1) Within 3 years of the date of receipt of Federal funds, or 
within 3 years of the effective date of this rule, whichever is later, 
provide a summary of the collection as required by Sec. 10.8 to any 
Indian tribe or Native Hawaiian organization that is, or is likely to 
be, culturally affiliated with the collections; and
    (2) Within 5 years of the date of receipt of Federal funds, or 
within 5 years of the effective date of this rule, whichever is later, 
prepare, in consultation with any affiliated Indian tribe or Native 
Hawaiian organization, an inventory as required by Sec. 10.9.
    (e) Amendment of previous decision.
    (1) Any museum or Federal agency that has previously published a 
notice in the Federal Register regarding the intent to repatriate 
unassociated funerary objects, sacred objects, and objects of cultural 
patrimony under Sec. 10.8(f), or the completion of an inventory of 
Native American human remains and associated funerary objects as 
required by Sec. 10.9(e), must publish an amendment to that notice if, 
based on subsequent information, the museum or Federal agency revises 
its decision in a way that changes the number or cultural affiliation of 
the cultural items listed.
    (2) Repatriation may not occur until at least 30 days after 
publication of the amended notice in the Federal Register.
    (f) All actions taken as required by this section must also comply 
with all other relevant sections of 43 CFR 10.

[72 FR 13189, Mar. 21, 2007]



                            Subpart D_General



Sec. 10.14  Lineal descent and cultural affiliation.

    (a) General. This section identifies procedures for determining 
lineal descent and cultural affiliation between present-day individuals 
and Indian tribes or Native Hawaiian organizations and human remains, 
funerary objects, sacred objects, or objects of cultural patrimony in 
museum or Federal agency collections or excavated intentionally or 
discovered inadvertently from Federal lands. They may also be used by 
Indian tribes and Native Hawaiian organizations with respect to tribal 
lands.
    (b) Criteria for determining lineal descent. A lineal descendant is 
an individual tracing his or her ancestry directly and without 
interruption by means of the traditional kinship system of the 
appropriate Indian tribe or Native Hawaiian organization or by the 
common law system of descendence to a known Native American individual 
whose remains, funerary objects, or sacred objects are being requested 
under these regulations. This standard requires that the earlier person 
be identified as an individual whose descendants can be traced.
    (c) Criteria for determining cultural affiliation. Cultural 
affiliation means a relationship of shared group identity that may be 
reasonably traced historically or prehistorically between a present-day 
Indian tribe or Native Hawaiian organization and an identifiable

[[Page 221]]

earlier group. All of the following requirements must be met to 
determine cultural affiliation between a present-day Indian tribe or 
Native Hawaiian organization and the human remains, funerary objects, 
sacred objects, or objects of cultural patrimony of an earlier group:
    (1) Existence of an identifiable present-day Indian tribe or Native 
Hawaiian organization with standing under these regulations and the Act; 
and
    (2) Evidence of the existence of an identifiable earlier group. 
Support for this requirement may include, but is not necessarily limited 
to evidence sufficient to:
    (i) Establish the identity and cultural characteristics of the 
earlier group,
    (ii) Document distinct patterns of material culture manufacture and 
distribution methods for the earlier group, or
    (iii) Establish the existence of the earlier group as a biologically 
distinct population; and
    (3) Evidence of the existence of a shared group identity that can be 
reasonably traced between the present-day Indian tribe or Native 
Hawaiian organization and the earlier group. Evidence to support this 
requirement must establish that a present-day Indian tribe or Native 
Hawaiian organization has been identified from prehistoric or historic 
times to the present as descending from the earlier group.
    (d) A finding of cultural affiliation should be based upon an 
overall evaluation of the totality of the circumstances and evidence 
pertaining to the connection between the claimant and the material being 
claimed and should not be precluded solely because of some gaps in the 
record.
    (e) Evidence. Evidence of a kin or cultural affiliation between a 
present-day individual, Indian tribe, or Native Hawaiian organization 
and human remains, funerary objects, sacred objects, or objects of 
cultural patrimony must be established by using the following types of 
evidence: Geographical, kinship, biological, archeological, 
anthropological, linguistic, folklore, oral tradition, historical, or 
other relevant information or expert opinion.
    (f) Standard of proof. Lineal descent of a present-day individual 
from an earlier individual and cultural affiliation of a present-day 
Indian tribe or Native Hawaiian organization to human remains, funerary 
objects, sacred objects, or objects of cultural patrimony must be 
established by a preponderance of the evidence. Claimants do not have to 
establish cultural affiliation with scientific certainty.



Sec. 10.15  Limitations and remedies.

    (a) Failure to claim prior to repatriation. (1) Any person who fails 
to make a timely claim prior to the repatriation or disposition of human 
remains, funerary objects, sacred objects, or objects of cultural 
patrimony is deemed to have irrevocably waived any right to claim such 
items pursuant to these regulations or the Act. For these purposes, a 
``timely claim'' means the filing of a written claim with a responsible 
museum or Federal agency official prior to the time the particular human 
remains, funerary objects, sacred objects, or objects of cultural 
patrimony at issue are duly repatriated or disposed of to a claimant by 
a museum or Federal agency pursuant to these regulations.
    (2) If there is more than one (1) claimant, the human remains, 
funerary object, sacred object, or objects of cultural patrimony may be 
held by the responsible museum or Federal agency or person in possession 
thereof pending resolution of the claim. Any person who is in custody of 
such human remains, funerary objects, sacred objects, or objects of 
cultural patrimony and does not claim entitlement to them must place the 
objects in the possession of the responsible museum or Federal agency 
for retention until the question of custody is resolved.
    (b) Failure to claim where no repatriation or disposition has 
occurred. [Reserved]
    (c) Exhaustion of remedies. (1) A person's administrative remedies 
are exhausted only when the person has filed a written claim with the 
responsible museum or Federal agency and the claim has been duly denied 
under this part. This paragraph applies to both:

[[Page 222]]

    (i) Human remains, funerary objects, sacred objects, or objects of 
cultural patrimony subject to Subpart B of this part; and
    (ii) Federal lands subject to subpart C this part.
    (2) A Federal agency's final denial of a repatriation request 
constitutes a final agency action under the Administrative Procedure Act 
(5 U.S.C. 704). As used in this paragraph, ``repatriation request'' 
means the request of a lineal descendant, Indian tribe, or Native 
Hawaiian organization for repatriation or disposition of human remains, 
funerary objects, sacred objects, or objects of cultural patrimony 
brought under the Act and this part.
    (d) Savings provisions. Nothing in these regulations can be 
construed to:
    (1) Limit the authority of any museum or Federal agency to:
    (i) Return or repatriate human remains, funerary objects, sacred 
objects, or objects of cultural patrimony to Indian tribes, Native 
Hawaiian organizations, or individuals; and
    (ii) Enter into any other agreement with the consent of the 
culturally affiliated Indian tribe or Native Hawaiian organization as to 
the disposition of, or control over, human remains, funerary objects, 
sacred objects, or objects of cultural patrimony.
    (2) Delay actions on repatriation requests that were pending on 
November 16, 1990;
    (3) Deny or otherwise affect access to court;
    (4) Limit any procedural or substantive right which may otherwise be 
secured to individuals or Indian tribes or Native Hawaiian 
organizations; or
    (5) Limit the application of any State or Federal law pertaining to 
theft of stolen property.

[60 FR 62158, Dec. 4, 1995, as amended at 62 FR 41294, Aug. 1, 1997; 75 
FR 12405, Mar.15, 2010]



Sec. 10.16  Review committee.

    (a) General. The Review Committee will advise Congress and the 
Secretary on matters relating to these regulations and the Act, 
including, but not limited to, monitoring the performance of museums and 
Federal agencies in carrying out their responsibilities, facilitating 
and making recommendations on the resolution of disputes as described 
further in Sec. 10.17, and compiling a record of culturally 
unidentifiable human remains that are in the possession or control of 
museums and Federal agencies and recommending actions for their 
disposition.
    (b) Recommendations. Any recommendation, finding, report, or other 
action of the Review Committee is advisory only and not binding on any 
person. Any records and findings made by the Review Committee may be 
admissible as evidence in actions brought by persons alleging a 
violation of the Act.



Sec. 10.17  Dispute resolution.

    (a) Formal and informal resolutions. Any person who wishes to 
contest actions taken by museums, Federal agencies, Indian tribes, or 
Native Hawaiian organizations with respect to the repatriation and 
disposition of human remains, funerary objects, sacred objects, or 
objects of cultural patrimony is encouraged to do so through informal 
negotiations to achieve a fair resolution of the matter. The Review 
Committee may aid in this regard as described below. In addition, the 
United States District Courts have jurisdiction over any action brought 
that alleges a violation of the Act.
    (b) Review Committee Role. The Review Committee may facilitate the 
informal resolution of disputes relating to these regulations among 
interested parties that are not resolved by good faith negotiations. 
Review Committee actions may include convening meetings between parties 
to disputes, making advisory findings as to contested facts, and making 
recommendations to the disputing parties or to the Secretary as to the 
proper resolution of disputes consistent with these regulations and the 
Act.



               Sec. Appendix A to Part 10--Sample Summary

    The following is a generic sample and should be used as a guideline 
for preparation of summaries tailoring the information to the specific 
circumstances of each case.
    Before November 17, 1993
    Chairman or Other Authorized Official
    Indian tribe or Native Hawaiian organization
    Street
    State

[[Page 223]]

    Dear Sir/Madame Chair:
    I write to inform you of collections held by our museum which may 
contain unassociated funerary objects, sacred objects, or objects of 
cultural patrimony that are, or are likely to be, culturally affiliated 
with your Indian tribe or Native Hawaiian organization. This 
notification is required by section 6 of the Native American Graves 
Protection and Repatriation Act.
    Our ethnographic collection includes approximately 200 items 
specifically identified as being manufactured or used by members of your 
Indian tribe or Native Hawaiian organization. These items represent 
various categories of material culture, including sea and land hunting, 
fishing, tools, household equipment, clothing, travel and 
transportation, personal adornment, smoking, toys, and figurines. The 
collection includes thirteen objects identified in our records as 
``medicine bags.''
    Approximately half of these items were collected by John Doe during 
his expedition to your reservation in 1903 and accessioned by the museum 
that same year (see Major Museum Publication, no. 65 (1965).
    Another 50 of these items were collected by Jane Roe during her 
expeditions to your reservation between 1950-1960 and accessioned by the 
museum in 1970 (see Major Museum: no. 75 (1975). Accession information 
indicates that several of these items were collected from members of the 
Able and Baker families.
    For the remaining approximately 50 items, which were obtained from 
various collectors between 1930 and 1980, additional collection 
information is not readily available.
    In addition to the above mentioned items, the museum has 
approximately 50 ethnographic items obtained from the estate of a 
private collector and identified as being collected from the ``northwest 
portion of the State.''
    Our archeological collection includes approximately 1,500 items 
recovered from ten archeological sites on your reservation and another 
5,000 items from fifteen sites within the area recognized by the Indian 
Claims Commission as being part of your Indian tribe's aboriginal 
territory.
    Please feel free to contact Fred Poe at (012) 345-6789 regarding the 
identification and potential repatriation of unassociated funerary 
objects, sacred objects, or objects of cultural patrimony in this 
collection that are, or are likely to be, culturally affiliated with 
your Indian tribe or Native Hawaiian organization. You are invited to 
review our records, catalogues, relevant studies or other pertinent data 
for the purpose of determining the geographic origin, cultural 
affiliation, and basic facts surrounding acquisition and accession of 
these items. We look forward to working together with you.
    Sincerely,
    Museum Official
    Major Museum



    Sec. Appendix B to Part 10--Sample Notice of Inventory Completion

    The following is an example of a Notice of Inventory Completion 
published in the Federal Register.
    National Park Service
    Notice of Inventory Completion for Native American Human Remains and 
Associated Funerary Objects from Hancock County, ME, in the Control of 
the National Park Service.
    AGENCY: National Park Service, Interior.
    ACTION: Notice.
    Notice is hereby given following provisions of the Native American 
Graves Protection and Repatriation Act, 25 U.S.C. 3003(d), of completion 
of the inventory of human remains and associated funerary objects from a 
site in Hancock County, ME, that are presently in the control of the 
National Park Service.
    A detailed inventory and assessment of these human remains has been 
made by National Park Service curatorial staff, contracted specialists 
in physical anthropology and prehistoric archeology, and representatives 
of the Penobscot Nation, Aroostook Band of Micmac, Houlton Band of 
Maliseet, and the Passamaquoddy Nation, identified collectively 
hereafter as the Wabanaki Tribes of Maine.
    The partial remains of at least seven individuals (including five 
adults, one subadult, and one child) were recovered in 1977 from a 
single grave at the Fernald Point Site (ME Site 43-24), a prehistoric 
shell midden on Mount Desert Island, within the boundary of Acadia 
National Park. A bone harpoon head, a modified beaver tooth, and several 
animal and fish bone fragments were found associated with the eight 
individuals. Radiocarbon assays indicate the burial site dates between 
1035-1155 AD. The human remains and associated funerary objects have 
been catalogued as ACAD-5747, 5749, 5750, 5751, 5752, 5783, 5784. The 
partial remains of an eighth individual (an elderly male) was also 
recovered in 1977 from a second grave at the Fernald Point Site. No 
associated funerary objects were recovered with this individual. 
Radiocarbon assays indicate the second burial site dates between 480-680 
AD. The human remains have been catalogued as ACAD-5748. The human 
remains and associated funerary objects of all nine individuals are 
currently in the possession of the University of Maine, Orono, ME.
    Inventory of the human remains and associated funerary objects and 
review of the accompanying documentation indicates that no known 
individuals were identifiable. A representative of the Wabanaki Tribes 
of Maine has identified the Acadia National Park area as a historic 
gathering place for

[[Page 224]]

his people and stated his belief that there exists a relationship of 
shared group identity between these individuals and the Wabanaki Tribes 
of Maine. The Prehistoric Subcommittee of the Maine State Historic 
Preservation Office's Archaeological Advisory Committee has found it 
reasonable to trace a shared group identity from the Late Prehistoric 
Period (1000-1500 AD) inhabitants of Maine as an undivided whole to the 
four modern Indian tribes known collectively as the Wabanaki Tribes of 
Maine on the basis of geographic proximity; survivals of stone, ceramic 
and perishable material culture skills; and probable linguistic 
continuity across the Late Prehistoric/Contact Period boundary. In a 
1979 article, Dr. David Sanger, the archeologist who conducted the 1977 
excavations at the Fernald Point Site and uncovered the abovementioned 
burials, recognizes a relationship between Maine sites dating to the 
Ceramic Period (2,000 B.P.-1600 A.D.) and present-day Algonkian speakers 
generally known as Abenakis, including the Micmac, Maliseet, 
Passamaquoddy, Penboscot, Kennebec, and Pennacook groups.
    Based on the above mentioned information, officials of the National 
Park Service have determined that, pursuant to 25 U.S.C. 3001 (2), there 
is a relationship of shared group identity which can be reasonably 
traced between these human remains and associated funerary objects and 
the Wabanaki Tribes of Maine.
    This notice has been sent to officials of the Wabanaki Tribes of 
Maine. Representatives of any other Indian tribe which believes itself 
to be culturally affiliated with these human remains and associated 
funerary objects should contact Len Bobinchock, Acting Superintendent, 
Acadia National Park, P.O. Box 177, Bar Harbor, ME 04609, telephone: 
(207) 288-0374, before August 31, 1994. Repatriation of these human 
remains and associated funerary objects to the Wabanaki Tribes of Maine 
may begin after that date if no additional claimants come forward.
    Dated: July 21, 1994

Francis P. McManamon,
Departmental Consulting Archeologist,,
Chief, Archeological Assistance Division.

[Published: August 1, 1994]



PART 11_NATURAL RESOURCE DAMAGE ASSESSMENTS--Table of Contents



                         Subpart A_Introduction

Sec.
11.10 Scope and applicability.
11.11 Purpose.
11.12 Biennial review of regulations.
11.13 Overview.
11.14 Definitions.
11.15 What damages may a trustee recover?
11.16 [Reserved]
11.17 Compliance with applicable laws and standards.
11.18 Incorporation by reference.
11.19 [Reserved]

                      Subpart B_Preassessment Phase

11.20 Notification and detection.
11.21 Emergency restorations.
11.22 Sampling of potentially injured natural resources.
11.23 Preassessment screen--general.
11.24 Preassessment screen--information on the site.
11.25 Preassessment screen--preliminary identification of resources 
          potentially at risk.

                     Subpart C_Assessment Plan Phase

11.30 What does the authorized official do if an assessment is 
          warranted?
11.31 What does the Assessment Plan include?
11.32 How does the authorized official develop the Assessment Plan?
11.33 What types of assessment procedures are available?
11.34 When may the authorized official use a type A procedure?
11.35 How does the authorized official decide whether to use type A or 
          type B procedures?
11.36 May the authorized official use both type A and type B procedures 
          for the same release?
11.37 Must the authorized official confirm exposure before implementing 
          the Assessment Plan?
11.38 Assessment Plan--preliminary estimate of damages.

                       Subpart D_Type A Procedures

11.40 What are type A procedures?
11.41 What data must the authorized official supply?
11.42 How does the authorized official apply the NRDAM/CME or NRDAM/GLE?
11.43 Can interested parties review the results of the preliminary 
          application?
11.44 What does the authorized official do after the close of the 
          comment period?

                       Subpart E_Type B Procedures

11.60 Type B assessments--general.
11.61 Injury determination phase--general.
11.62 Injury determination phase--injury definition.
11.63 Injury determination phase--pathway determination.
11.64 Injury determination phase--testing and sampling methods.
11.70 Quantification phase--general.
11.71 Quantification phase--service reduction quantification.

[[Page 225]]

11.72 Quantification phase--baseline services determination.
11.73 Quantification phase--resource recoverability analysis.
11.80 Damage determination phase--general.
11.81 Damage determination phase--restoration and compensation 
          determination plan.
11.82 Damage determination phase--alternatives for restoration, 
          rehabilitation, replacement, and/or acquisition of equivalent 
          resources.
11.83 Damage determination phase--use value methodologies.
11.84 Damage determination phase--implementation guidance.

                     Subpart F_Post-Assessment Phase

11.90 What documentation must the authorized official prepare after 
          completing the assessment?
11.91 How does the authorized official seek recovery of the assessed 
          damages from the potentially responsible party?
11.92 Post-assessment phase--restoration account.
11.93 Post-assessment phase--restoration plan.

Appendix I to Part 11--Methods for Estimating the Areas of Ground Water 
          and Surface Water Exposure During the Preassessment Screen
Appendix II to Part 11--Format for Data Inputs and Modifications to the 
          NRDAM/CME
Appendix III to Part 11--Format for Data Inputs and Modifications to the 
          NRDAM/GLE

    Authority: 42 U.S.C. 9651(c), as amended.

    Source: 51 FR 27725, Aug. 1, 1986, unless otherwise noted.



                         Subpart A_Introduction



Sec. 11.10  Scope and applicability.

    The Comprehensive Environmental Response, Compensation, and 
Liability Act of 1980 (CERCLA), as amended, 42 U.S.C. 9601 et seq., and 
the Clean Water Act (CWA), 33 U.S.C. 1251-1376, provide that natural 
resource trustees may assess damages to natural resources resulting from 
a discharge of oil or a release of a hazardous substance covered under 
CERCLA or the CWA and may seek to recover those damages. This part 
supplements the procedures established under the National Oil and 
Hazardous Substances Pollution Contingency Plan (NCP), 40 CFR part 300, 
for the identification, investigation, study, and response to a 
discharge of oil or release of a hazardous substance, and it provides a 
procedure by which a natural resource trustee can determine compensation 
for injuries to natural resources that have not been nor are expected to 
be addressed by response actions conducted pursuant to the NCP. The 
assessment procedures set forth in this part are not mandatory. However, 
they must be used by Federal or State natural resource trustees in order 
to obtain the rebuttable presumption contained in section 107(f)(2)(C) 
of CERCLA. This part applies to assessments initiated after the 
effective date of this final rule.

[53 FR 5171, Feb. 22, 1988]



Sec. 11.11  Purpose.

    The purpose of this part is to provide standardized and cost-
effective procedures for assessing natural resource damages. The results 
of an assessment performed by a Federal or State natural resource 
trustee according to these procedures shall be accorded the evidentiary 
status of a rebuttable presumption as provided in section 107(f)(2)(C) 
of CERCLA.

[53 FR 5171, Feb. 22, 1988]



Sec. 11.12  Biennial review of regulations.

    The regulations and procedures included within this part shall be 
reviewed and revised as appropriate 2 years from the effective date of 
these rules and every second anniversary thereafter.



Sec. 11.13  Overview.

    (a) Purpose. The process established by this part uses a planned and 
phased approach to the assessment of natural resource damages. This 
approach is designed to ensure that all procedures used in an 
assessment, performed pursuant to this part, are appropriate, necessary, 
and sufficient to assess damages for injuries to natural resources.
    (b) Preassessment phase. Subpart B of this part, the preassessment 
phase, provides for notification, coordination, and emergency 
activities, if necessary, and includes the preassessment screen. The 
preassessment screen is meant to be a rapid review of readily available 
information that allows the authorized

[[Page 226]]

official to make an early decision on whether a natural resource damage 
assessment can and should be performed.
    (c) Assessment Plan phase. If the authorized official decides to 
perform an assessment, an Assessment Plan, as described in subpart C of 
this part, is prepared. The Assessment Plan ensures that the assessment 
is performed in a planned and systematic manner and that the 
methodologies chosen demonstrate reasonable cost.
    (d) Type A assessments. The simplified assessments provided for in 
section 301(c)(2)(A) of CERCLA are performed using the standard 
procedures specified in subpart D of this part.
    (e) Type B assessments. Subpart E of this part covers the 
assessments provided for in section 301(c)(2)(B) of CERCLA. The process 
for implementing type B assessments has been divided into the following 
three phases.
    (1) Injury Determination phase. The purpose of this phase is to 
establish that one or more natural resources have been injured as a 
result of the discharge of oil or release of a hazardous substance. The 
sections of subpart E comprising the Injury Determination phase include 
definitions of injury, guidance on determining pathways, and testing and 
sampling methods. These methods are to be used to determine both the 
pathways through which resources have been exposed to oil or a hazardous 
substance and the nature of the injury.
    (2) Quantification phase. The purpose of this phase is to establish 
the extent of the injury to the resource in terms of the loss of 
services that the injured resource would have provided had the discharge 
or release not occurred. The sections of subpart E comprising the 
Quantification phase include methods for establishing baseline 
conditions, estimating recovery periods, and measuring the degree of 
service reduction stemming from an injury to a natural resource.
    (3) Damage Determination phase. The purpose of this phase is to 
establish the appropriate compensation expressed as a dollar amount for 
the injuries established in the Injury Determination phase and measured 
in the Quantification phase. The sections of subpart E of this part 
comprising the Damage Determination phase include guidance on acceptable 
cost estimating and valuation methodologies for determining compensation 
based on the costs of restoration, rehabilitation, replacement, and/or 
acquisition of equivalent resources, plus, at the discretion of the 
authorized official, compensable value, as defined in Sec. 11.83(c) of 
this part.
    (f) Post-assessment phase. Subpart F of this part includes 
requirements to be met after the assessment is complete. The Report of 
Assessment contains the results of the assessment, and documents that 
the assessment has been carried out according to this rule. Other post-
assessment requirements delineate the manner in which the demand for a 
sum certain shall be presented to a responsible party and the steps to 
be taken when sums are awarded as damages.

[51 FR 27725, Aug. 1, 1986, as amended at 59 FR 14281, Mar. 25, 1994]



Sec. 11.14  Definitions.

    Terms not defined in this section have the meaning given by CERCLA 
or the CWA. As used in this part, the phrase:
    (a) Acquisition of the equivalent or replacement means the 
substitution for an injured resource with a resource that provides the 
same or substantially similar services, when such substitutions are in 
addition to any substitutions made or anticipated as part of response 
actions and when such substitutions exceed the level of response actions 
determined appropriate to the site pursuant to the NCP.
    (b) Air or air resources means those naturally occurring 
constituents of the atmosphere, including those gases essential for 
human, plant, and animal life.
    (c) Assessment area means the area or areas within which natural 
resources have been affected directly or indirectly by the discharge of 
oil or release of a hazardous substance and that serves as the 
geographic basis for the injury assessment.
    (d) Authorized official means the Federal or State official to whom 
is delegated the authority to act on behalf of the Federal or State 
agency designated as trustee, or an official designated by an Indian 
tribe, pursuant to section

[[Page 227]]

126(d) of CERCLA, to perform a natural resource damage assessment. As 
used in this part, authorized official is equivalent to the phrase 
``authorized official or lead authorized official,'' as appropriate.
    (e) Baseline means the condition or conditions that would have 
existed at the assessment area had the discharge of oil or release of 
the hazardous substance under investigation not occurred.
    (f) Biological resources means those natural resources referred to 
in section 101(16) of CERCLA as fish and wildlife and other biota. Fish 
and wildlife include marine and freshwater aquatic and terrestrial 
species; game, nongame, and commercial species; and threatened, 
endangered, and State sensitive species. Other biota encompass 
shellfish, terrestrial and aquatic plants, and other living organisms 
not otherwise listed in this definition.
    (g) CERCLA means the Comprehensive Environmental Response, 
Compensation, and Liability Act of 1980, 42 U.S.C. 9601 et seq., as 
amended.
    (h) Committed use means either: a current public use; or a planned 
public use of a natural resource for which there is a documented legal, 
administrative, budgetary, or financial commitment established before 
the discharge of oil or release of a hazardous substance is detected.
    (i) Control area or control resource means an area or resource 
unaffected by the discharge of oil or release of the hazardous substance 
under investigation. A control area or resource is selected for its 
comparability to the assessment area or resource and may be used for 
establishing the baseline condition and for comparison to injured 
resources.
    (j) Cost-effective or cost-effectiveness means that when two or more 
activities provide the same or a similar level of benefits, the least 
costly activity providing that level of benefits will be selected.
    (k) CWA means the Clean Water Act, as amended, 33 U.S.C. 1251 et 
seq., also referred to as the Federal Water Pollution Control Act.
    (l) Damages means the amount of money sought by the natural resource 
trustee as compensation for injury, destruction, or loss of natural 
resources as set forth in section 107(a) or 111(b) of CERCLA.
    (m) Destruction means the total and irreversible loss of a natural 
resource.
    (n) Discharge means a discharge of oil as defined in section 
311(a)(2) of the CWA, as amended, and includes, but is not limited to, 
any spilling, leaking, pumping, pouring, emitting, emptying, or dumping 
of oil.
    (o) Drinking water supply means any raw or finished water source 
that is or may be used by a public water system, as defined in the SDWA, 
or as drinking water by one or more individuals.
    (p) EPA means the U.S. Environmental Protection Agency.
    (q) Exposed to or exposure of means that all or part of a natural 
resource is, or has been, in physical contact with oil or a hazardous 
substance, or with media containing oil or a hazardous substance.
    (r) Fund means the Hazardous Substance Superfund established by 
section 517 of the Superfund Amendments and Reauthorization Act of 1986.
    (s) Geologic resources means those elements of the Earth's crust 
such as soils, sediments, rocks, and minerals, including petroleum and 
natural gas, that are not included in the definitions of ground and 
surface water resources.
    (t) Ground water resources means water in a saturated zone or 
stratum beneath the surface of land or water and the rocks or sediments 
through which ground water moves. It includes ground water resources 
that meet the definition of drinking water supplies.
    (u) Hazardous substance means a hazardous substance as defined in 
section 101(14) of CERCLA.
    (v) Injury means a measurable adverse change, either long- or short-
term, in the chemical or physical quality or the viability of a natural 
resource resulting either directly or indirectly from exposure to a 
discharge of oil or release of a hazardous substance, or exposure to a 
product of reactions resulting from the discharge of oil or release of a 
hazardous substance. As used in this part, injury encompasses the 
phrases ``injury,'' ``destruction,'' and ``loss.'' Injury definitions 
applicable to specific resources are provided in Sec. 11.62 of this 
part.

[[Page 228]]

    (w) Lead authorized official means a Federal or State official 
authorized to act on behalf of all affected Federal or State agencies 
acting as trustees where there are multiple agencies, or an official 
designated by multiple tribes where there are multiple tribes, affected 
because of coexisting or contiguous natural resources or concurrent 
jurisdiction.
    (x) Loss means a measurable adverse reduction of a chemical or 
physical quality or viability of a natural resource.
    (y) Natural Contingency Plan or NCP means the National Oil and 
Hazardous Substances Contingency Plan and revisions promulgated by EPA, 
pursuant to section 105 of CERCLA and codified in 40 CFR part 300.
    (z) Natural resources or resources means land, fish, wildlife, 
biota, air, water, ground water, drinking water supplies, and other such 
resources belonging to, managed by, held in trust by, appertaining to, 
or otherwise controlled by the United States (including the resources of 
the fishery conservation zone established by the Magnuson Fishery 
Conservation and Management Act of 1976), any State or local government, 
any foreign government, any Indian tribe, or, if such resources are 
subject to a trust restriction on alienation, any member of an Indian 
tribe. These natural resources have been categorized into the following 
five groups: Surface water resources, ground water resources, air 
resources, geologic resources, and biological resources.
    (aa) Natural resource damage assessment or assessment means the 
process of collecting, compiling, and analyzing information, statistics, 
or data through prescribed methodologies to determine damages for 
injuries to natural resources as set forth in this part.
    (bb) Oil means oil as defined in section 311(a)(1) of the CWA, as 
amended, of any kind or in any form, including, but not limited to, 
petroleum, fuel oil, sludge, oil refuse, and oil mixed with wastes other 
than dredged spoil.
    (cc) On-Scene Coordinator or OSC means the On-Scene Coordinator as 
defined in the NCP.
    (dd) Pathway means the route or medium through which oil or a 
hazardous substance is or was transported from the source of the 
discharge or release to the injured resource.
    (ee) Reasonable cost means the amount that may be recovered for the 
cost of performing a damage assessment. Costs are reasonable when: the 
Injury Determination, Quantification, and Damage Determination phases 
have a well-defined relationship to one another and are coordinated; the 
anticipated increment of extra benefits in terms of the precision or 
accuracy of estimates obtained by using a more costly injury, 
quantification, or damage determination methodology are greater than the 
anticipated increment of extra costs of that methodology; and the 
anticipated cost of the assessment is expected to be less than the 
anticipated damage amount determined in the Injury, Quantification, and 
Damage Determination phases.
    (ff) Rebuttable presumption means the procedural device provided by 
section 107(f)(2)(C) of CERCLA describing the evidentiary weight that 
must be given to any determination or assessment of damages in any 
administrative or judicial proceeding under CERCLA or section 311 of the 
CWA made by a Federal or State natural resource trustee in accordance 
with the rule provided in this part.
    (gg) Recovery period means either the longest length of time 
required to return the services of the injured resource to their 
baseline condition, or a lesser period of time selected by the 
authorized official and documented in the Assessment Plan.
    (hh) Release means a release of a hazardous substance as defined in 
section 101(22) of CERCLA.
    (ii) Replacement or acquisition of the equivalent means the 
substitution for an injured resource with a resource that provides the 
same or substantially similar services, when such substitutions are in 
addition to any substitutions made or anticipated as part of response 
actions and when such substitutions exceed the level of response actions 
determined appropriate to the site pursuant to the NCP.
    (jj) Response means remove, removal, remedy, or remedial actions as 
those phrases are defined in sections 101(23) and 101(24) of CERCLA.

[[Page 229]]

    (kk) Responsible party or parties and potentially responsible party 
or parties means a person or persons described in or potentially 
described in one or more of the categories set forth in section 107(a) 
of CERCLA.
    (ll) Restoration or rehabilitation means actions undertaken to 
return an injured resource to its baseline condition, as measured in 
terms of the injured resource's physical, chemical, or biological 
properties or the services it previously provided, when such actions are 
in addition to response actions completed or anticipated, and when such 
actions exceed the level of response actions determined appropriate to 
the site pursuant to the NCP.
    (mm) SDWA means the Safe Drinking Water Act, 42 U.S.C. 300f-300j-10.
    (nn) Services means the physical and biological functions performed 
by the resource including the human uses of those functions. These 
services are the result of the physical, chemical, or biological quality 
of the resource.
    (oo) Site means an area or location, for purposes of response 
actions under the NCP, at which oil or hazardous substances have been 
stored, treated, discharged, released, disposed, placed, or otherwise 
came to be located.
    (pp) Surface water resources means the waters of the United States, 
including the sediments suspended in water or lying on the bank, bed, or 
shoreline and sediments in or transported through coastal and marine 
areas. This term does not include ground water or water or sediments in 
ponds, lakes, or reservoirs designed for waste treatment under the 
Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. 6901-
6987 or the CWA, and applicable regulations.
    (qq) Technical feasibility or technically feasible means that the 
technology and management skills necessary to implement an Assessment 
Plan or Restoration and Compensation Determination Plan are well known 
and that each element of the plan has a reasonable chance of successful 
completion in an acceptable period of time.
    (rr) Trustee or natural resource trustee means any Federal natural 
resources management agency designated in the NCP and any State agency 
designated by the Governor of each State, pursuant to section 
107(f)(2)(B) of CERCLA, that may prosecute claims for damages under 
section 107(f) or 111(b) of CERCLA; or an Indian tribe, that may 
commence an action under section 126(d) of CERCLA.
    (ss) Type A assessment means standard procedures for simplified 
assessments requiring minimal field observation to determine damages as 
specified in section 301(c)(2)(A) of CERCLA.
    (tt) Type B assessment means alternative methodologies for 
conducting assessments in individual cases to determine the type and 
extent of short- and long-term injury and damages, as specified in 
section 301(c)(2)(B) of CERCLA.
    (uu) Indian tribe means any Indian tribe, band, nation, or other 
organized group or community, including any Alaska Native village but 
not including any Alaska Native regional or village corporation, which 
is recognized as eligible for the special programs and services provided 
by the United States to Indians because of their status as Indians.

[51 FR 27725, Aug. 1, 1986, as amended at 53 FR 5171, Feb. 22, 1988; 59 
FR 14281, Mar. 25, 1994]



Sec. 11.15  What damages may a trustee recover?

    (a) In an action filed pursuant to section 107(f) or 126(d) of 
CERCLA, or sections 311(f) (4) and (5) of the CWA, a natural resource 
trustee who has performed an assessment in accordance with this rule may 
recover:
    (1) Damages as determined in accordance with this part and 
calculated based on injuries occurring from the onset of the release 
through the recovery period, less any mitigation of those injuries by 
response actions taken or anticipated, plus any increase in injuries 
that are reasonably unavoidable as a result of response actions taken or 
anticipated;
    (2) The costs of emergency restoration efforts under Sec. 11.21 of 
this part;
    (3) The reasonable and necessary costs of the assessment, to 
include:
    (i) The cost of performing the preassessment and Assessment Plan 
phases and the methodologies provided in subpart D or E of this part; 
and

[[Page 230]]

    (ii) Administrative costs and expenses necessary for, and incidental 
to, the assessment, assessment planning, and restoration, 
rehabilitation, replacement, and/or acquisition of equivalent resources 
planning, and any restoration, rehabilitation, replacement, and/or 
acquisition of equivalent resources undertaken; and
    (4) Interest on the amounts recoverable as set forth in section 
107(a) of CERCLA. The rate of interest on the outstanding amount of the 
claim shall be the same rate as is specified for interest on investments 
of the Hazardous Substance Superfund established under subchapter A of 
chapter 98 of the Internal Revenue Code of 1954. Such interest shall 
accrue from the later of: The date payment of a specified amount is 
demanded in writing, or the date of the expenditure concerned;
    (b) The determination of the damage amount shall consider any 
applicable limitations provided for in section 107(c) of CERCLA.
    (c) Where an assessment determines that there is, in fact, no 
injury, as defined in Sec. 11.62 of this part, the natural resource 
trustee may not recover assessment costs.
    (d) There shall be no double recovery under this rule for damages or 
for assessment costs, that is, damages or assessment costs may only be 
recovered once, for the same discharge or release and natural resource, 
as set forth in section 107(f)(1) of CERCLA.
    (e) Actions for damages and assessment costs shall comply with the 
statute of limitations set forth in section 113(g), or, where 
applicable, section 126(d) of CERCLA.

[51 FR 27725, Aug. 1, 1986, as amended at 52 FR 9095, Mar. 20, 1987; 53 
FR 5172, Feb. 22, 1988; 59 FR 14281, Mar. 25, 1994; 61 FR 20609, May 7, 
1996]



Sec. 11.16  [Reserved]



Sec. 11.17  Compliance with applicable laws and standards.

    (a) Worker health and safety. All worker health and safety 
considerations specified in the NCP shall be observed, except that 
requirements applying to response actions shall be taken to apply to the 
assessment process.
    (b) Resource protection. Before taking any actions under this part, 
particularly before taking samples or making determinations of 
restoration or replacement, compliance is required with any applicable 
statutory consultation or review requirements, such as the Endangered 
Species Act; the Migratory Bird Treaty Act; the Marine Protection, 
Research, and Sanctuaries Act; and the Marine Mammal Protection Act, 
that may govern the taking of samples or in other ways restrict 
alternative management actions.

[51 FR 27725, Aug. 1, 1986, as amended at 53 FR 5172, Feb. 22, 1988]



Sec. 11.18  Incorporation by reference.

    (a) The following publications or portions of publications are 
incorporated by reference:
    (1) Part II only (Fish-Kill Counting Guidelines) of ``Monetary 
Values of Freshwater Fish and Fish-Kill Guidelines,'' American Fisheries 
Society Special Publication Number 13, 1982; available for purchase from 
the American Fisheries Society, 5410 Grosvenor Lane, Bethesda, MD 20814, 
ph: (301) 897-8616. Reference is made to this publication in Sec. Sec. 
11.62(f)(4)(i)(B) and 11.71(l)(5)(iii)(A) of this part.
    (2) Appendix 1 (Travel Cost Method), Appendix 2 (Contingent 
Valuation (Survey) Methods), and Appendix 3 (Unit Day Value Method) only 
of Section VIII of ``National Economic Development (NED) Benefit 
Evaluation Procedures'' (Procedures), which is Chapter II of Economic 
and Environmental Principles and Guidelines for Water and Related Land 
Resources Implementation Studies, U.S. Department of the Interior, Water 
Resources Council, Washington, DC, 1984, DOI/WRC/-84/01; available for 
purchase from the National Technical Information Service (NTIS), 5285 
Port Royal Road, Springfield, VA 22161; PB No. 84-199-405; ph: (703) 
487-4650. Reference is made to this publication in Sec. 11.83(a)(3) of 
this part.
    (3) ``Uniform Appraisal Standards for Federal Land Acquisition'' 
(Uniform Appraisal Standards), Interagency Land Acquisition Conference, 
Washington, DC, 1973; available for purchase

[[Page 231]]

from the Superintendent of Documents, U.S. Government Printing Office, 
Washington, DC 20402; Stock Number 052-059-00002-0; ph: (202) 783-3238. 
Reference is made to this publication in Sec. 11.83(c)(2)(i) of this 
part.
    (4) The CERCLA Type A Natural Resource Damage Assessment Model for 
Coastal and Marine Environments Technical Documentation, Volumes I-VI, 
dated April 1996, including Revision I dated October 1997, and Revision 
II dated December 1999, prepared for the U.S. Department of the Interior 
by Applied Science Associates, Inc., A.T. Kearney, Inc., and Hagler 
Bailly Consulting, Inc. (NRDAM/CME technical document). Interested 
parties may obtain a copy of this document from the National Technical 
Information Service, 5285 Port Royal Road, Springfield, VA 22161; PB96-
501788; ph: (703) 487-4650. Sections 11.34 (a), (b), and (e), 11.35(a), 
11.36(b), 11.40(a), and 11.42(a), and Appendix II refer to this 
document.
    (5) The CERCLA Type A Natural Resource Damage Assessment Model for 
Great Lakes Environments Technical Documentation, Volumes I-IV, dated 
April 1996, including Revision I dated October 1997, and Revision II 
dated December 1999, prepared for the U.S. Department of the Interior by 
Applied Science Associates, Inc., and Hagler Bailly Consulting, Inc. 
(NRDAM/GLE technical document). Interested parties may obtain a copy of 
this document from the National Technical Information Service, 5285 Port 
Royal Road, Springfield, VA 22161; PB96-501770; ph: (703) 487-4650. 
Sections 11.34 (a), (b), and (e), 11.35(a), 11.36(b), 11.40(a), and 
11.42(a), and Appendix III refer to this document.
    (b) The publications or portions of publications listed in paragraph 
(a) of this section are available for inspection at the National 
Archives and Records Administration (NARA). For information on the 
availability of this material at NARA, call 202-741-6030, or go to: 
http://www.archives.gov/federal--register/code--of--federal--
regulations/ibr--locations.html. These incorporations by reference were 
approved by the Director of the Federal Register in accordance with 5 
U.S.C. 552(a). These materials are incorporated as they exist on the 
date of the approval and a notice of any change in these materials will 
be published in the Federal Register.

[51 FR 27725, Aug. 1, 1986, as amended at 53 FR 9772, Mar. 25, 1988; 61 
FR 20609, May 7, 1996; 62 FR 60459, Nov. 10, 1997; 65 FR 6014, Feb. 8, 
2000; 69 FR 18803, Apr. 9, 2004]



Sec. 11.19  [Reserved]



                      Subpart B_Preassessment Phase



Sec. 11.20  Notification and detection.

    (a) Notification. (1) Section 104(b)(2) of CERCLA requires prompt 
notification of Federal and State natural resource trustees of potential 
damages to natural resources under investigation and requires 
coordination of the assessments, investigations, and planning under 
section 104 of CERCLA with such trustees.
    (2) The NCP provides for the OSC or lead agency to notify the 
natural resource trustee when natural resources have been or are likely 
to be injured by a discharge of oil or a release of a hazardous 
substance being investigated under the NCP.
    (3) Natural resource trustees, upon such notification described in 
paragraphs (a) (1) and (2) of this section, shall take such actions, as 
may be consistent with the NCP.
    (b) Previously unreported discharges or releases. If a natural 
resource trustee identifies or is informed of apparent injuries to 
natural resources that appear to be a result of a previously 
unidentified or unreported discharge of oil or release of a hazardous 
substance, he should first make reasonable efforts to determine whether 
a discharge or release has taken place. In the case of a discharge or 
release not yet reported or being investigated under the NCP, the 
natural resource trustee shall report that discharge or release to the 
appropriate authority as designated in the NCP.
    (c) Identification of co-trustees. The natural resource trustee 
should assist the OSC or lead agency, as needed, in identifying other 
natural resource

[[Page 232]]

trustees whose resources may be affected as a result of shared 
responsibility for the resources and who should be notified.

[53 FR 5172, Feb. 22, 1988]



Sec. 11.21  Emergency restorations.

    (a) Reporting requirements and definition. (1) In the event of a 
natural resource emergency, the natural resource trustee shall contact 
the National Response Center (800/424-8802) to report the actual or 
threatened discharge or release and to request that an immediate 
response action be taken.
    (2) An emergency is any situation related to a discharge or release 
requiring immediate action to avoid an irreversible loss of natural 
resources or to prevent or reduce any continuing danger to natural 
resources, or a situation in which there is a similar need for emergency 
action.
    (b) Emergency actions. If no immediate response actions are taken at 
the site of the discharge or release by the EPA or the U.S. Coast Guard 
within the time that the natural resource trustee determines is 
reasonably necessary, or if such actions are insufficient, the natural 
resource trustee should exercise any existing authority he may have to 
take on-site response actions. The natural resource trustee shall 
determine whether the potentially responsible party, if his identity is 
known, is taking or will take any response action. If no on-site 
response actions are taken, the natural resource trustee may undertake 
limited off-site restoration action consistent with its existing 
authority to the extent necessary to prevent or reduce the immediate 
migration of the oil or hazardous substance onto or into the resource 
for which the Federal or State agency or Indian tribe may assert 
trusteeship.
    (c) Limitations on emergency actions. The natural resource trustee 
may undertake only those actions necessary to abate the emergency 
situation, consistent with its existing authority. The normal procedures 
provided in this part must be followed before any additional restoration 
actions other than those necessary to abate the emergency situation are 
undertaken. The burden of proving that emergency restoration was 
required and that restoration costs were reasonable and necessary based 
on information available at the time rests with the natural resource 
trustee.

[51 FR 27725, Aug. 1, 1986, as amended at 53 FR 5173, Feb. 22, 1988]



Sec. 11.22  Sampling of potentially injured natural resources.

    (a) General limitations. Until the authorized official has made the 
determination required in Sec. 11.23 of this part to proceed with an 
assessment, field sampling of natural resources should be limited to the 
conditions identified in this section. All sampling and field work shall 
be subject to the provisions of Sec. 11.17 of this part concerning 
safety and applicability of resource protection statutes.
    (b) Early sampling and data collection. Field samples may be 
collected or site visits may be made before completing the preassessment 
screen to preserve data and materials that are likely to be lost if not 
collected at that time and that will be necessary to the natural 
resource damage assessment. Field sampling and data collection at this 
stage should be coordinated with the lead agency under the NCP to 
minimize duplication of sampling and data collection efforts. Such field 
sampling and data collection should be limited to:
    (1) Samples necessary to preserve perishable materials considered 
likely to have been affected by, and contain evidence of, the oil or 
hazardous substance. These samples generally will be biological 
materials that are either dead or visibly injured and that evidence 
suggests have been injured by oil or a hazardous substance;
    (2) Samples of other ephemeral conditions or material, such as 
surface water or soil containing or likely to contain oil or a hazardous 
substance, where those samples may be necessary for identification and 
for measurement of concentrations, and where necessary samples may be 
lost because of factors such as dilution, movement, decomposition, or 
leaching if not taken immediately; and
    (3) Counts of dead or visibly injured organisms, which may not be 
possible to take if delayed because of factors such as decomposition, 
scavengers, or water movement. Such counts shall be

[[Page 233]]

subject to the provisions of Sec. 11.71(l)(5)(iii) of this part.



Sec. 11.23  Preassessment screen--general.

    (a) Requirement. Before beginning any assessment efforts under this 
part, except as provided for under the emergency restoration provisions 
of Sec. 11.21 of this part, the authorized official shall complete a 
preassessment screen and make a determination as to whether an 
assessment under this part shall be carried out.
    (b) Purpose. The purpose of the preassessment screen is to provide a 
rapid review of readily available information that focuses on resources 
for which the Federal or State agency or Indian tribe may assert 
trusteeship under section 107(f) or section 126(d) of CERCLA. This 
review should ensure that there is a reasonable probability of making a 
successful claim before monies and efforts are expended in carrying out 
an assessment.
    (c) Determination. When the authorized official has decided to 
proceed with an assessment under this part, the authorized official 
shall document the decision in terms of the criteria provided in 
paragraph (e) of this section in a Preassessment Screen Determination. 
This Preassessment Screen Determination shall be included in the Report 
of Assessment described in Sec. 11.90 of this part.
    (d) Content. The preassessment screen shall be conducted in 
accordance with the guidance provided in this section and in Sec. 
11.24--Preassessment screen--information on the site and Sec. 11.25--
Preassessment screen--preliminary identification of resources 
potentially at risk, of this part.
    (e) Criteria. Based on information gathered pursuant to the 
preassessment screen and on information gathered pursuant to the NCP, 
the authorized official shall make a preliminary determination that all 
of the following criteria are met before proceeding with an assessment:
    (1) A discharge of oil or a release of a hazardous substance has 
occurred;
    (2) Natural resources for which the Federal or State agency or 
Indian tribe may assert trusteeship under CERCLA have been or are likely 
to have been adversely affected by the discharge or release;
    (3) The quantity and concentration of the discharged oil or released 
hazardous substance is sufficient to potentially cause injury, as that 
term is used in this part, to those natural resources;
    (4) Data sufficient to pursue an assessment are readily available or 
likely to be obtained at reasonable cost; and
    (5) Response actions, if any, carried out or planned do not or will 
not sufficiently remedy the injury to natural resources without further 
action.
    (f) Coordination. (1) In a situation where response activity is 
planned or underway at a particular site, assessment activity shall be 
coordinated with the lead agency consistent with the NCP.
    (2) Whenever, as part of a response action under the NCP, a 
preliminary assessment or an OSC Report is to be, or has been, prepared 
for the site, the authorized official should consult with the lead 
agency under the NCP, as necessary, and to the extent possible use 
information or materials gathered for the preliminary assessment or OSC 
Report, unless doing so would unnecessarily delay the preassessment 
screen.
    (3) Where a preliminary assessment or an OSC Report does not exist 
or does not contain the information described in this section, that 
additional information may be gathered.
    (4) If the natural resource trustee already has a process similar to 
the preassessment screen, and the requirements of the preassessment 
screen can be satisfied by that process, the processes may be combined 
to avoid duplication.
    (g) Preassessment phase costs. (1) The following categories of 
reasonable and necessary costs may be incurred in the preassessment 
phase of the damage assessment:
    (i) Release detection and identification costs;
    (ii) Trustee identification and notification costs;
    (iii) Potentially injured resource identification costs;
    (iv) Initial sampling, data collection, and evaluation costs;
    (v) Site characterization and preassessment screen costs; and

[[Page 234]]

    (vi) Any other preassessment costs for activities authorized by 
Sec. Sec. 11.20 through 11.25 of this part.
    (2) The reasonable and necessary costs for these categories shall be 
limited to those costs incurred by the authorized official for, and 
specifically allocable to, site-specific efforts taken during the 
preassessment phase for assessment of damages to natural resources for 
which the agency or Indian tribe is acting as trustee. Such costs shall 
be supported by appropriate records and documentation and shall not 
reflect regular activities performed by the agency or Indian tribe in 
management of the natural resource. Activities undertaken as part of the 
preassessment phase shall be taken in a manner that is cost-effective, 
as that phrase is used in this part.

[51 FR 27725, Aug. 1, 1986, as amended at 53 FR 5173, Feb. 22, 1988]



Sec. 11.24  Preassessment screen--information on the site.

    (a) Information on the site and on the discharge or release. The 
authorized official shall obtain and review readily available 
information concerning:
    (1) The time, quantity, duration, and frequency of the discharge or 
release;
    (2) The name of the hazardous substance, as provided for in Table 
302.4--List of Hazardous Substances and Reportable Quantities, 40 CFR 
302.4;
    (3) The history of the current and past use of the site identified 
as the source of the discharge of oil or release of a hazardous 
substance;
    (4) Relevant operations occurring at or near the site;
    (5) Additional oil or hazardous substances potentially discharged or 
released from the site; and
    (6) Potentially responsible parties.
    (b) Damages excluded from liability under CERCLA. (1) The authorized 
official shall determine whether the damages:
    (i) Resulting from the discharge or release were specifically 
identified as an irreversible and irretrievable commitment of natural 
resources in an environmental impact statement or other comparable 
environmental analysis, that the decision to grant the permit or license 
authorizes such commitment of natural resources, and that the facility 
or project was otherwise operating within the terms of its permit or 
license, so long as, in the case of damages to an Indian tribe occurring 
pursuant to a Federal permit or license, the issuance of that permit or 
license was not inconsistent with the fiduciary duty of the United 
States with respect to such Indian tribe; or
    (ii) And the release of a hazardous substance from which such 
damages resulted have occurred wholly before enactment of CERCLA; or
    (iii) Resulted from the application of a pesticide product 
registered under the Federal Insecticide, Fungicide, and Rodenticide 
Act, 7 U.S.C. 135-135k; or
    (iv) Resulted from any other federally permitted release, as defined 
in section 101(10) of CERCLA; or
    (v) Resulting from the release or threatened release of recycled oil 
from a service station dealer described in section 107(a)(3) or (4) of 
CERCLA if such recycled oil is not mixed with any other hazardous 
substance and is stored, treated, transported or otherwise managed in 
compliance with regulations or standards promulgated pursuant to section 
3014 of the Solid Waste Disposal Act and other applicable authorities.
    (2) An assessment under this part shall not be continued for 
potential injuries meeting one or more of the criteria described in 
paragraph (b)(1) of this section, which are exceptions to liability 
provided in sections 107(f), (i), and (j) and 114(c) of CERCLA.
    (c) Damages excluded from liability under the CWA. (1) The 
authorized official shall determine whether the discharge meets one or 
more of the exclusions provided in section 311 (a)(2) or (b)(3) of the 
CWA.
    (2) An assessment under this part shall not be continued for 
potential injuries from discharges meeting one or more of the CWA 
exclusions provided for in paragraph (c)(1) of this section.

[51 FR 27725, Aug. 1, 1986, as amended at 52 FR 9095, Mar. 20, 1987; 53 
FR 5173, Feb. 22, 1988]



Sec. 11.25  Preassessment screen--preliminary identification of resources potentially at risk.

    (a) Preliminary identification of pathways. (1) The authorized 
official shall

[[Page 235]]

make a preliminary identification of potential exposure pathways to 
facilitate identification of resources at risk.
    (2) Factors to be considered in this determination should include, 
as appropriate, the circumstances of the discharge or release, the 
characteristics of the terrain or body of water involved, weather 
conditions, and the known physical, chemical, and toxicological 
properties of the oil or hazardous substance.
    (3) Pathways to be considered shall include, as appropriate, direct 
contact, surface water, ground water, air, food chains, and particulate 
movement.
    (b) Exposed areas. An estimate of areas where exposure or effects 
may have occurred or are likely to occur shall be made. This estimate 
shall identify:
    (1) Areas where it has been or can be observed that the oil or 
hazardous substance has spread;
    (2) Areas to which the oil or hazardous substance has likely spread 
through pathways; and
    (3) Areas of indirect effect, where no oil or hazardous substance 
has spread, but where biological populations may have been affected as a 
result of animals moving into or through the site.
    (c) Exposed water estimates. The area of ground water or surface 
water that may be or has been exposed may be estimated by using the 
methods described in appendix I of this part.
    (d) Estimates of concentrations. An estimate of the concentrations 
of oil or a hazardous substance in those areas of potential exposure 
shall be developed.
    (e) Potentially affected resources. (1) Based upon the estimate of 
the areas of potential exposure, and the estimate of concentrations in 
those areas, the authorized official shall identify natural resources 
for which he may assert trusteeship that are potentially affected by the 
discharge or release. This preliminary identification should be used to 
direct further investigations, but it is not intended to preclude 
consideration of other resources later found to be affected.
    (2) A preliminary estimate, based on information readily available 
from resource managers, of the services of the resources identified as 
potentially affected shall be made. This estimate will be used in 
determining which resources to consider if further assessment efforts 
are justified.



                     Subpart C_Assessment Plan Phase



Sec. 11.30  What does the authorized official do if an assessment is warranted?

    (a) If the authorized official determines during the Preassessment 
Phase that an assessment is warranted, the authorized official must 
develop a plan for the assessment of natural resource damages.
    (b) Purpose. The purpose of the Assessment Plan is to ensure that 
the assessment is performed in a planned and systematic manner and that 
methodologies selected from subpart D for a type A assessment or from 
subpart E for a type B assessment, including the Injury Determination, 
Quantification, and Damage Determination phases, can be conducted at a 
reasonable cost, as that phrase is used in this part.
    (c) Assessment Plan phase costs. (1) The following categories of 
reasonable and necessary costs may be incurred in the Assessment Plan 
phase of the damage assessment:
    (i) Methodology identification and screening costs;
    (ii) Potentially responsible party notification costs;
    (iii) Public participation costs;
    (iv) Exposure confirmation analysis costs;
    (v) Preliminary estimate of damages costs; and
    (vi) Any other Assessment Plan costs for activities authorized by 
Sec. Sec. 11.30 through 11.38.
    (2) The reasonable and necessary costs for these categories shall be 
limited to those costs incurred or anticipated by the authorized 
official for, and specifically allocable to, site specific efforts taken 
in the development of an Assessment Plan for a resource for which the 
agency or Indian tribe is acting as trustee. Such costs shall be 
supported by appropriate records and documentation, and shall not 
reflect regular activities performed by the agency or tribe in 
management of the natural resource. Activities undertaken as part of the 
Assessment Plan

[[Page 236]]

phase shall be taken in a manner that is cost-effective, as that phrase 
is used in this part.

[51 FR 27725, Aug. 1, 1986, as amended at 53 FR 5174, Feb. 22, 1988; 59 
FR 14281, Mar. 25, 1994; 61 FR 20609, May 7, 1996]



Sec. 11.31  What does the Assessment Plan include?

    (a) General content and level of detail. (1) The Assessment Plan 
must identify and document the use of all of the type A and/or type B 
procedures that will be performed.
    (2) The Assessment Plan shall be of sufficient detail to serve as a 
means of evaluating whether the approach used for assessing the damage 
is likely to be cost-effective and meets the definition of reasonable 
cost, as those terms are used in this part. The Assessment Plan shall 
include descriptions of the natural resources and the geographical areas 
involved. The Assessment Plan shall also include a statement of the 
authority for asserting trusteeship, or co-trusteeship, for those 
natural resources considered within the Assessment Plan. The authorized 
official's statement of the authority for asserting trusteeship shall 
not have the force and effect of a rebuttable presumption under Sec. 
11.91(c) of this part. In addition, for type B assessments, the 
Assessment Plan shall include the sampling locations within those 
geographical areas, sample and survey design, numbers and types of 
samples to be collected, analyses to be performed, preliminary 
determination of the recovery period, and other such information 
required to perform the selected methodologies.
    (3) The Assessment Plan shall contain information sufficient to 
demonstrate that the damage assessment has been coordinated to the 
extent possible with any remedial investigation feasibility study or 
other investigation performed pursuant to the NCP.
    (4) The Assessment Plan shall contain procedures and schedules for 
sharing data, split samples, and results of analyses, when requested, 
with any identified potentially responsible parties and other natural 
resource trustees.
    (b) Identification of types of assessment procedures. The Assessment 
Plan must identify whether the authorized official plans to use a type A 
procedure, type B procedures, or a combination. Sections 11.34 through 
11.36 contain standards for deciding which types of procedures to use. 
The Assessment Plan must include a detailed discussion of how these 
standards are met.
    (c) Specific requirements for type B procedures. If the authorized 
official plans to use type B procedures, the Assessment Plan must also 
include the following:
    (1) The results of the confirmation of exposure performed under 
Sec. 11.37;
    (2) A Quality Assurance Plan that satisfies the requirements listed 
in the NCP and applicable EPA guidance for quality control and quality 
assurance plans;
    (3) The objectives, as required in Sec. 11.64(a)(2) of this part, 
of any testing and sampling for injury or pathway determination; and
    (4) The Restoration and Compensation Determination Plan developed in 
accordance with the guidance in Sec. 11.81 of this part. If existing 
data are not sufficient to develop the Restoration and Compensation 
Determination Plan as part of the Assessment Plan, the Restoration and 
Compensation Determination Plan may be developed later, after the 
completion of the Injury Determination or Quantification phases. If the 
Restoration and Compensation Determination Plan is published separately, 
the public review and comment will be conducted pursuant to Sec. 
11.81(d) of this part.
    (d) Specific requirements for type A procedures. If the authorized 
official plans to use a type A procedure, the Assessment Plan must also 
contain the information described in subpart D.

[51 FR 27725, Aug. 1, 1986, as amended at 52 FR 9095, Mar. 20, 1987; 53 
FR 5174, Feb. 22, 1988; 59 FR 14281, Mar. 25, 1994; 61 FR 20609, May 7, 
1996; 73 FR 57265, Oct. 2, 2008]



Sec. 11.32  How does the authorized official develop the Assessment Plan?

    (a) Pre-development requirements. The authorized official shall 
fulfill the following requirements before developing an Assessment Plan.
    (1) Coordination. (i) If the authorized official's responsibility is 
shared with

[[Page 237]]

other natural resource trustees as a result of coexisting or contiguous 
natural resources or concurrent jurisdiction, the authorized official 
shall ensure that all other known affected natural resource trustees are 
notified that an Assessment Plan is being developed. This notification 
shall include the results of the Preassessment Screen Determination.
    (ii) Authorized officials from different agencies or Indian tribes 
are encouraged to cooperate and coordinate any assessments that involve 
coexisting or contiguous natural resources or concurrent jurisdiction. 
They may arrange to divide responsibility for implementing the 
assessment in any manner that is agreed to by all of the affected 
natural resource trustees with the following conditions:
    (A) A lead authorized official shall be designated to administer the 
assessment. The lead authorized official shall act as coordinator and 
contact regarding all aspects of the assessment and shall act as final 
arbitrator of disputes if consensus among the authorized officials 
cannot be reached regarding the development, implementation, or any 
other aspect of the Assessment Plan. The lead authorized official shall 
be designated by mutual agreement of all the natural resource trustees. 
If consensus cannot be reached as to the designation of the lead 
authorized official, the lead authorized official shall be designated in 
accordance with paragraphs (a)(1)(ii) (B), (C), or (D) of this section:
    (B) When the natural resources being assessed are located on lands 
or waters subject to the administrative jurisdiction of a Federal 
agency, a designated official of the Federal agency shall act as the 
lead authorized official.
    (C) When the natural resources being assessed, pursuant to section 
126(d) of CERCLA, are located on lands or waters of an Indian tribe, an 
official designated by the Indian tribe shall act as the lead authorized 
official.
    (D) For all other natural resources for which the State may assert 
trusteeship, a designated official of the State agency shall act as the 
lead authorized official.
    (iii) If there is a reasonable basis for dividing the assessment, 
the natural resource trustee may act independently and pursue separate 
assessments, actions, or claims so long as the claims do not overlap. In 
these instances, the natural resource trustees shall coordinate their 
efforts, particularly those concerning the sharing of data and the 
development of the Assessment Plans.
    (2) Identification and involvement of the potentially responsible 
party. (i) If the lead agency under the NCP for response actions at the 
site has not identified potentially responsible parties, the authorized 
official shall make reasonable efforts to identify any potentially 
responsible parties.
    (ii) In the event the number of potentially responsible parties is 
large or if some of the potentially responsible parties cannot be 
located, the authorized official may proceed against any one or more of 
the parties identified. The authorized official should use reasonable 
efforts to proceed against most known potentially responsible parties or 
at least against all those potentially responsible parties responsible 
for significant portions of the potential injury.
    (iii)(A) The authorized official shall send a Notice of Intent to 
Perform an Assessment to all identified potentially responsible parties. 
The Notice shall invite the participation of the potentially responsible 
party, or, if several parties are involved and if agreed to by the lead 
authorized official, a representative or representatives designated by 
the parties, in the development of the type and scope of the assessment 
and in the performance of the assessment. The Notice shall briefly 
describe, to the extent known, the site, vessel, or facility involved, 
the discharge of oil or release of hazardous substance of concern to the 
authorized official, and the resources potentially at risk. The Notice 
shall also contain a statement of authority for asserting trusteeship, 
or co-trusteeship, over those natural resources identified as 
potentially at risk.
    (B) The authorized official shall allow at least 30 calendar days, 
with reasonable extensions granted as appropriate, for the potentially 
responsible party or parties notified to respond to the Notice before 
proceeding

[[Page 238]]

with the development of the Assessment Plan or any other assessment 
actions.
    (b) Plan approval. The authorized official shall have final approval 
as to the appropriate methodologies to include in the Assessment Plan 
and any modifications to the Assessment Plan.
    (c) Public involvement in the Assessment Plan. (1) The authorized 
official must make the Assessment Plan available for review by any 
identified potentially responsible parties, other natural resource 
trustees, other affected Federal or State agencies or Indian tribes, and 
any other interested member of the public for a period of at least 30 
calendar days, with reasonable extensions granted as appropriate. The 
authorized official may not perform any type B procedures described in 
the Assessment Plan until after this review period.
    (2) Any comments concerning the Assessment Plan received from 
identified potentially responsible parties, other natural resource 
trustees, other affected Federal or State agencies or Indian tribes, and 
any other interested members of the public, together with responses to 
those comments, shall be included as part of the Report of Assessment, 
described in Sec. 11.90 of this part.
    (d) Plan implementation. At the option of the authorized official 
and if agreed to by any potentially responsible party, or parties acting 
jointly, the potentially responsible party or any other party under the 
direction, guidance, and monitoring of the authorized official may 
implement all or any part of the Assessment Plan finally approved by the 
authorized official. Any decision by the authorized official to allow or 
not allow implementation by the potentially responsible party shall be 
documented in the Assessment Plan.
    (e) Plan modification. (1) The Assessment Plan may be modified at 
any stage of the assessment as new information becomes available.
    (2)(i) Any modification to the Assessment Plan that in the judgment 
of the authorized official is significant shall be made available for 
review by any identified potentially responsible party, any other 
affected natural resource trustees, other affected Federal or State 
agencies or Indian tribes, and any other interested members of the 
public for a period of at least 30 calendar days, with reasonable 
extensions granted as appropriate, before tasks called for in the 
modified plan are begun.
    (ii) Any modification to the Assessment Plan that in the judgment of 
the authorized official is not significant shall be made available for 
review by any identified potentially responsible party, any other 
affected natural resource trustees, other affected Federal or State 
agencies or Indian tribes, and any other interested members of the 
public, but the implementation of such modification need not be delayed 
as a result of such review.
    (f) Plan review. (1) After the Injury Determination phase is 
completed and before the Quantification phase is begun, the authorized 
official shall review the decisions incorporated in the Assessment Plan.
    (2) The purpose of this review is to ensure that the selection of 
methodologies for the Quantification and Damage Determination phases is 
consistent with the results of the Injury Determination phase, and that 
the use of such methodologies remains consistent with the requirements 
of reasonable cost, as that term is used in this part.
    (3) Paragraphs (f)(1) and (f)(2) of this section do not apply to the 
use of a type A procedure.

[51 FR 27725, Aug. 1, 1986, as amended at 53 FR 5174, Feb. 22, 1988; 59 
FR 14282, Mar. 25, 1994; 61 FR 20609, May 7, 1996]



Sec. 11.33  What types of assessment procedures are available?

    There are two types of assessment procedures:
    (a) Type A procedures are simplified procedures that require minimal 
field observation. Subpart D describes the type A procedures. There are 
two type A procedures: a procedure for coastal or marine environments, 
which incorporates the Natural Resource Damage Assessment Model for 
Coastal and Marine Environments, Version 2.51 (NRDAM/CME); and a 
procedure for Great Lakes environments, which incorporates the Natural 
Resource Damage Assessment Model for Great Lakes

[[Page 239]]

Environments, Version 1.51 (NRDAM/GLE).
    (b) Type B procedures require more extensive field observation than 
the type A procedures. Subpart E describes the type B procedures.

[61 FR 20610, May 7, 1996, as amended at 62 FR 60459, Nov. 10, 1997; 65 
FR 6014, Feb. 8, 2000]



Sec. 11.34  When may the authorized official use a type A procedure?

    The authorized official may use a type A procedure only if:
    (a) The released substance entered an area covered by the NRDAM/CME 
or NRDAM/GLE. Section 3.4, Volume III of the NRDAM/CME technical 
document (incorporated by reference, see Sec. 11.18) identifies the 
areas that the NRDAM/CME covers. Section 6.2, Volume III of the NRDAM/
GLE technical document (incorporated by reference, see Sec. 11.18) 
describes the areas that the NRDAM/GLE covers;
    (b) The NRDAM/CME or NRDAM/GLE cover the released substance. Table 
7.1, Volume I of the NRDAM/CME technical document lists the substances 
that the NRDAM/CME covers. Table 7.1, Volume I of the NRDAM/GLE 
technical document lists the substances that the NRDAM/GLE covers;
    (c) The released substance entered water at or near the surface;
    (d) At the time of the release, winds did not vary spatially over 
the area affected by the release in a way that would significantly 
affect the level or extent of injuries;
    (e) The authorized official is not aware of any reliable evidence 
that, for species that are likely to represent a significant portion of 
the claim, the species biomass is significantly lower than the species 
biomass assigned by the NRDAM/CME or the NRDAM/GLE Tables IV.2.1 through 
IV.2.115 and IV.5.1 through IV.5.77, Volume III of the NRDAM/CME 
technical document list the species biomasses in the NRDAM/CME. Tables 
III.3.17 through III.3.27 and III.3.40 through III.3.50, Volume III of 
the NRDAM/GLE technical document list the species biomasses in the 
NRDAM/GLE ; and
    (f) Subsurface currents either: are not expected to significantly 
affect the level or extent of injuries; or are reasonably uniform with 
depth over the water column in the area affected by the release.

[61 FR 20610, May 7, 1996]



Sec. 11.35  How does the authorized official decide whether to use type A or type B procedures?

    (a) If the authorized official determines under Sec. 11.34 that a 
type A procedure is available, the authorized official must then decide 
whether to use that procedure or use type B procedures. The authorized 
official must make this decision by weighing the difficulty of 
collecting site-specific data against the suitability of the averaged 
data and simplifying assumptions in the type A procedure for the release 
being assessed. The authorized official may use type B procedures if 
they can be performed at a reasonable cost and if the increase in 
accuracy provided by those procedures outweighs the increase in 
assessment costs. Section 1, Volume I of the NRDAM/CME technical 
document (incorporated by reference, see Sec. 11.18) lists the 
simplifying assumptions made in the NRDAM/CME. Volumes III through IV of 
the NRDAM/CME technical document list the data in the NRDAM/CME. Section 
1, Volume I of the NRDAM/GLE technical document (incorporated by 
reference, see Sec. 11.18) lists the simplifying assumptions made in 
the NRDAM/GLE. Volume III of the NRDAM/GLE technical document lists the 
data in the NRDAM/GLE.
    (b) The authorized official must use type B procedures rather than a 
type A procedure whenever a potentially responsible party:
    (1) Submits a written request for use of type B procedures along 
with documentation of the reasons supporting the request; and
    (2) Advances all reasonable costs of using type B procedures within 
a time frame acceptable to the authorized official.
    (c) If there is no available type A procedure, the authorized 
official must use type B procedures to calculate all damages.
    (d) Except as provided in paragraph (b) of this section, the 
authorized official may change the type of procedure used in light of 
comments received on

[[Page 240]]

the Assessment Plan. [See Sec. 11.32(e)(2) to determine if the 
authorized official must provide for additional public review.] However, 
if the authorized official decides to use type B procedures in lieu of a 
type A procedure, and cannot confirm exposure under Sec. 11.37, the 
authorized official may not then use a type A procedure.

[61 FR 20610, May 7, 1996]



Sec. 11.36  May the authorized official use both type A and type B procedures for the same release?

    (a) The authorized official may use both a type A procedure and type 
B procedures for the same release if:
    (1) The type B procedures are cost-effective and can be performed at 
a reasonable cost;
    (2) There is no double recovery; and
    (3) The type B procedures are used only to determine damages for 
injuries or compensable values that do not fall into the categories 
addressed by the type A procedure. [Sections 11.14(v) and 11.62 define 
``injury.'' Section 11.83(c)(1) defines ``compensable value.'']
    (b) The type A procedures address the following categories of injury 
and compensable value:
    (1) Direct mortality of species covered by the NRDAM/CME or NRDAM/
GLE resulting from short-term exposure to the released substance. Volume 
IV of the NRDAM/CME technical document (incorporated by reference, see 
Sec. 11.18) lists the species that the NRDAM/CME covers. Section 3, 
Volume III of the NRDAM/GLE technical document (incorporated by 
reference, see Sec. 11.18) lists the species that the NRDAM/GLE covers;
    (2) Direct loss of production of species covered by the NRDAM/CME or 
NRDAM/GLE resulting from short-term exposure to the released substance;
    (3) Indirect mortality of species covered by the NRDAM/CME or NRDAM/
GLE resulting from disruption of the food web by direct mortality or 
direct loss of production;
    (4) Indirect loss of production of species covered by the NRDAM/CME 
or NRDAM/GLE resulting from disruption of the food web by direct 
mortality or direct loss of production;
    (5) Lost assimilative capacity of water column and sediments;
    (6) Lost economic rent for lost commercial harvests resulting from 
any closures specified by the authorized official and/or from population 
losses;
    (7) Lost recreational harvests resulting from any closures specified 
by the authorized official and/or from population losses;
    (8) For the type A procedure for coastal and marine environments, 
lost wildlife viewing, resulting from population losses, by residents of 
the States bordering the provinces in which the population losses 
occurred. [A province is one of the geographic areas delineated in Table 
6.1, Volume I of the NRDAM/CME technical document.] For the type A 
procedure for Great Lakes environments, lost wildlife viewing, resulting 
from population losses, by residents of local areas bordering the 
provinces in which the population losses occurred. [A province is one of 
the geographic areas delineated in Table 8.1, Volume I of the NRDAM/GLE 
technical document.];
    (9) Lost beach visitation due to closure; and
    (10) For the type A procedure for Great Lakes environments, lost 
boating due to closure.
    (c) If the authorized official uses both type A and type B 
procedures, he or she must explain in the Assessment Plan how he or she 
intends to prevent double recovery.
    (d) When the authorized official uses type B procedures for injuries 
not addressed in a type A procedure, he or she must follow all of 
subpart E (which contains standards for determining and quantifying 
injury as well as determining damages), Sec. 11.31(c) (which addresses 
content of the Assessment Plan), and Sec. 11.37 (which addresses 
confirmation of exposure). When the authorized official uses type B 
procedures for compensable values that are not included in a type A 
procedure but that result from injuries that are addressed in the type A 
procedure, he or she need not follow all of subpart E, Sec. 11.31(c), 
and Sec. 11.37. Instead, the authorized official may rely on the injury 
predictions of the type A procedure and simply use

[[Page 241]]

the valuation methodologies authorized by Sec. 11.83(c) to calculate 
compensable value. When using valuation methodologies, the authorized 
official must comply with Sec. 11.84.

[61 FR 20610, May 7, 1996]



Sec. 11.37  Must the authorized official confirm exposure before implementing the Assessment Plan?

    (a) Before including any type B methodologies in the Assessment 
Plan, the authorized official must confirm that at least one of the 
natural resources identified as potentially injured in the preassessment 
screen has in fact been exposed to the released substance.
    (b) Procedures. (1) Whenever possible, exposure shall be confirmed 
by using existing data, such as those collected for response actions by 
the OSC, or other available studies or surveys of the assessment area.
    (2) Where sampling has been done before the completion of the 
preassessment screen, chemical analyses of such samples may be performed 
to confirm that exposure has occurred. Such analyses shall be limited to 
the number and type required for confirmation of exposure.
    (3) Where existing data are unavailable or insufficient to confirm 
exposure, one or more of the analytical methodologies provided in the 
Injury Determination phase may be used. The collection and analysis of 
new data shall be limited to that necessary to confirm exposure and 
shall not include testing for baseline levels or for injury, as those 
phrases are used in this part.

[51 FR 27725, Aug. 1, 1986. Redesignated and amended at 61 FR 20610, 
20611, May 7, 1996]



Sec. 11.38  Assessment Plan--preliminary estimate of damages.

    (a) Requirement. When performing a type B assessment pursuant to the 
requirements of subpart E of this part, the authorized official shall 
develop a preliminary estimate of: the anticipated costs of restoration, 
rehabilitation, replacement, and/or acquisition of equivalent resources 
for the injured natural resources; and the compensable value, as defined 
in Sec. 11.83(c) of this part, of the injured natural resources, if the 
authorized official intends to include compensable value in the damage 
claim. This preliminary estimate is referred to as the preliminary 
estimate of damages. The authorized official shall use the guidance 
provided in this section, to the extent possible, to develop the 
preliminary estimate of damages.
    (b) Purpose. The purpose of the preliminary estimate of damages is 
for reference in the scoping of the Assessment Plan to ensure that the 
choice of the scientific, cost estimating, and valuation methodologies 
expected to be used in the damage assessment fulfills the requirements 
of reasonable cost, as that term is used in this part. The authorized 
official will also use the preliminary estimate of damages in the review 
of the Assessment Plan, as required in Sec. 11.32(f) of this part, to 
ensure the requirements of reasonable cost are still met.
    (c) Steps. The preliminary estimate of damages should include 
consideration of the ability of the resources to recover naturally and, 
if relevant, the compensable value through the recovery period with and 
without possible alternative actions. The authorized official shall 
consider the following factors, to the extent possible, in making the 
preliminary estimate of damages:
    (1) The preliminary estimate of costs of restoration, 
rehabilitation, replacement, and/or acquisition of equivalent resources 
should include consideration of a range of possible alternative actions 
that would accomplish the restoration, rehabilitation, replacement, and/
or acquisition of the equivalent of the injured natural resources.
    (i) The preliminary estimate of costs should take into account the 
effects, or anticipated effects, of any response actions.
    (ii) The preliminary estimate of costs should represent the expected 
present value of anticipated costs, expressed in constant dollars, and 
should include direct and indirect costs, and include the timing of 
those costs. The provisions detailed in Sec. Sec. 11.80-11.84 of this 
part are the basis for the development of the estimate.
    (iii) The discount rate to be used in developing the preliminary 
estimate of costs shall be that determined in accordance with the 
guidance in Sec. 11.84(e) of this part.

[[Page 242]]

    (2) The preliminary estimate of compensable value should be 
consistent with the range of possible alternatives for restoration, 
rehabilitation, replacement, and/or acquisition of equivalent resources 
being considered.
    (i) The preliminary estimate of compensable value should represent 
the expected present value of the anticipated compensable value, 
expressed in constant dollars, accrued through the period for the 
restoration, rehabilitation, replacement, and/or acquisition of 
equivalent resources to baseline conditions, i.e., between the 
occurrence of the discharge or release and the completion of (A) the 
restoration or rehabilitation of the injured natural resources to a 
condition where they can provide the level of services available at 
baseline, or (B) the replacement and/or acquisition of equivalent 
natural resources capable of providing such services. The estimate 
should use the same base year as the preliminary estimate of costs of 
restoration, rehabilitation, replacement, and/or acquisition of 
equivalent resources. The provisions detailed in Sec. Sec. 11.80-11.84 
of this part are the basis for the development of this estimate.
    (ii) The preliminary estimate of compensable value should take into 
account the effects, or anticipated effects, of any response actions.
    (iii) The discount rate to be used in developing the preliminary 
estimate of compensable value shall be that determined in accordance 
with the guidance in Sec. 11.84(e) of this part.
    (d) Content and timing. (1) In making the preliminary estimate of 
damages, the authorized official should rely upon existing data and 
studies. The authorized official should not undertake significant new 
data collection or perform significant modeling efforts at this stage of 
the assessment planning phase.
    (2) Where possible, the authorized official should make the 
preliminary estimate of damages before the completion of the Assessment 
Plan as provided for in Sec. 11.31 of this part. If there is not 
sufficient existing data to make the preliminary estimate of damages at 
the same time as the assessment planning phase, this analysis may be 
completed later, at the end of the Injury Determination phase of the 
assessment, at the time of the Assessment Plan review.
    (3) The authorized official is not required to disclose the 
preliminary estimate before the conclusion of the assessment. At the 
conclusion of the assessment, the preliminary estimate of damages, along 
with its assumptions and methodology, shall be included in the Report of 
the Assessment as provided for in Sec. 11.91 of this part.
    (e) Review. The authorized official shall review, and revise as 
appropriate, the preliminary estimate of damages at the end of the 
Injury Determination and Quantification phases. If there is any 
significant modification of the preliminary estimate of damages, the 
authorized official shall document it in the Report of the Assessment.

[59 FR 14282, Mar. 25, 1994. Redesignated at 61 FR 20610, May 7, 1996, 
as amended at 73 FR 57266, Oct. 2, 2008]



                       Subpart D_Type A Procedures



Sec. 11.40  What are type A procedures?

    (a) A type A procedure is a standardized methodology for performing 
Injury Determination, Quantification, and Damage Determination that 
requires minimal field observation. There are two type A procedures: the 
type A procedure for coastal and marine environments; and the type A 
procedure for Great Lakes environments. The type A procedure for coastal 
and marine environments incorporates a computer model called the Natural 
Resource Damage Assessment Model for Coastal and Marine Environments 
Version 2.51 (NRDAM/CME). The NRDAM/CME technical document (incorporated 
by reference, see Sec. 11.18) includes and explains the NRDAM/CME. The 
type A procedure for Great Lakes environments incorporates a computer 
model called the Natural Resource Damage Assessment Model for Great 
Lakes Environments Version 1.51 (NRDAM/GLE). The NRDAM/GLE technical 
document (incorporated by reference, see Sec. 11.18) includes and 
explains the NRDAM/GLE. The authorized official must follow Sec. Sec. 
11.41 through 11.44 when using the type A procedures.

[[Page 243]]

    (b) The reasonable and necessary costs incurred in conducting 
assessments under this subpart shall be limited to those costs incurred 
or anticipated by the authorized official for, and specifically 
allocable to, incident-specific efforts taken in the assessment of 
damages for natural resources for which the agency or Indian tribe is 
acting as trustee. Such costs shall be supported by appropriate records 
and documentation, and shall not reflect regular activities performed by 
the agency or the Indian tribe in management of the natural resource. 
Activities undertaken as part of the damage assessment shall be taken in 
a manner that is cost-effective, as that phrase is used in this part.

[52 FR 9096, Mar. 20, 1987, as amended at 53 FR 5175, Feb. 22, 1988; 61 
FR 20611, May 7, 1996; 62 FR 60459, Nov. 10, 1997; 65 FR 6014, Feb. 8, 
2000]



Sec. 11.41  What data must the authorized official supply?

    (a) The NRDAM/CME and the NRDAM/GLE require several data inputs to 
operate. The authorized official must develop the following data inputs:
    (1) The identity of the released substance;
    (2) The mass or volume of the identified substance that was 
released;
    (3) The duration of the release;
    (4) The time of the release;
    (5) The location of the release;
    (6) The wind conditions;
    (7) The extent of response actions;
    (8) The extent of any closures;
    (9) The implicit price deflator; and
    (10) For the NRDAM/CME, the condition of the currents and tides.
    (b) The authorized official must change the data in the NRDAM/CME 
and the NRDAM/GLE for the following parameters if he or she is aware of 
more accurate data:
    (1) Air temperature;
    (2) Water temperature at the surface;
    (3) Total suspended sediment concentration;
    (4) Mean settling velocity of suspended solids; and
    (5) Habitat type.
    (c)(1) If the release occurred in Alaska and the authorized official 
is not aware of any reliable evidence that ice was absent from the site 
of the release, then he or she must turn on the ice modeling function. 
Otherwise, the authorized official must leave the ice modeling function 
off.
    (2) If the release occurred in the Great Lakes and the authorized 
official is aware of reliable evidence that ice was absent from the site 
of the release, then he or she must turn off the ice modeling function.
    (d) The authorized official must develop the data inputs and 
modifications and include them in the Assessment Plan in the format 
specified in Appendix II (for the NRDAM/CME) or Appendix III (for the 
NRDAM/GLE).

[61 FR 20611, May 7, 1996]



Sec. 11.42  How does the authorized official apply the NRDAM/CME or NRDAM/GLE?

    (a) The authorized official must perform a preliminary application 
of the NRDAM/CME or NRDAM/GLE with the data inputs and modifications 
developed under Sec. 11.41. Volume II of the NRDAM/CME technical 
document (incorporated by reference, see Sec. 11.18) describes how to 
apply the NRDAM/CME. Volume II of the NRDAM/GLE technical document 
(incorporated by reference, see Sec. 11.18) describes how to apply the 
NRDAM/GLE. For cases involving releases of two or more substances or a 
release of a mixture of substances, the authorized official may only 
apply the NRDAM/CME or NRDAM/GLE once using only one of the substances.
    (b) If the preliminary application of the NRDAM/CME or NRDAM/GLE 
indicates damages in excess of $100,000, then the authorized official 
must decide whether to:
    (1) Limit the portion of his or her claim calculated with the type A 
procedure to $100,000; or
    (2) Compute all damages using type B procedures.

[61 FR 20611, May 7, 1996]



Sec. 11.43  Can interested parties review the results of the preliminary application?

    After completing the preliminary application of the NRDAM/CME or 
NRDAM/GLE, if the authorized official decides to continue with the type 
A

[[Page 244]]

procedure, he or she must issue an Assessment Plan for public comment as 
described in Sec. 11.32. The Assessment Plan must include the 
information described in Sec. 11.31, the data inputs and modifications 
developed under Sec. 11.41, and a summary of the results of the 
preliminary application. The Assessment Plan must also identify a 
contact from whom a complete copy of the printout of the preliminary 
application can be obtained.

[61 FR 20612, May 7, 1996]



Sec. 11.44  What does the authorized official do after the close of the comment period?

    (a) The authorized official must carefully review all comments 
received on the Assessment Plan, provide substantive responses to all 
comments, and modify the Plan as appropriate. [See Sec. 11.32(e)(2) to 
determine if the authorized official must provide for additional public 
review.]
    (b) If, after reviewing the public comments, the authorized official 
decides to continue with the type A procedure, he or she must then 
perform a final application of the NRDAM/CME or NRDAM/GLE, using final 
data inputs and modifications based on Sec. 11.41 and any reliable 
information received during the public review and comment period.
    (c) After completing the final application of the NRDAM/CME or 
NRDAM/GLE, the authorized official must prepare a Report of Assessment. 
The Report of Assessment must include the printed output from the final 
application as well as the Preassessment Screen Determination and the 
Assessment Plan.
    (d) If the authorized official is aware of reliable evidence that a 
private party has recovered damages for commercial harvests lost as a 
result of the release, the authorized official must eliminate from the 
claim any damages for such lost harvests that are included in the lost 
economic rent calculated by the NRDAM/CME or NRDAM/GLE.
    (e) If the authorized official is aware of reliable evidence that 
the NRDAM/CME or NRDAM/GLE application covers resources beyond his or 
her trustee jurisdiction, the authorized official must either:
    (1) Have the other authorized official(s) who do have trustee 
jurisdiction over those resources join in the type A assessment; or
    (2) Eliminate any damages for those resources from the claim for 
damages.
    (f) If the final application of the NRDAM/CME or NRDAM/GLE, adjusted 
as needed under paragraphs (d) and (e), calculates damages in excess of 
$100,000, then the authorized official must limit the portion of his or 
her claim calculated with the type A procedure to $100,000.
    (g) After preparing the Report of Assessment, the authorized 
official must follow the steps described in subpart F.

[61 FR 20612, May 7, 1996]



                       Subpart E_Type B Procedures



Sec. 11.60  Type B assessments--general.

    (a) Purpose. The purpose of the type B assessment is to provide 
alternative methodologies for conducting natural resource damage 
assessments in individual cases.
    (b) Steps in the type B assessment. The type B assessment consists 
of three phases: Sec. 11.61--Injury Determination; Sec. 11.70--
Quantification; and Sec. 11.80--Damage Determination, of this part.
    (c) Completion of type B assessment. After completion of the type B 
assessment, a Report of Assessment, as described in Sec. 11.90 of this 
part, shall be prepared. The Report of Assessment shall include the 
determinations made in each phase.
    (d) Type B assessment costs. (1) The following categories of 
reasonable and necessary costs may be incurred in the assessment phase 
of the damage assessment:
    (i) Sampling, testing, and evaluation costs for injury and pathway 
determination;
    (ii) Quantification costs (including baseline service determination 
and resource recoverability analysis);
    (iii) Restoration and Compensation Determination Plan development 
costs including:
    (A) Development of alternatives;
    (B) Evaluation of alternatives;
    (C) Potentially responsible party, agency, and public reviews;
    (D) Other such costs for activities authorized by Sec. 11.81 of 
this part;

[[Page 245]]

    (iv) Cost estimating and valuation methodology calculation costs; 
and
    (v) Any other assessment costs authorized by Sec. Sec. 11.60-11.84 
of this part.
    (2) The reasonable and necessary costs for these categories shall be 
limited to those costs incurred or anticipated by the authorized 
official for, and specifically allocable to, site-specific efforts taken 
in the assessment of damages for a natural resource for which the agency 
or Indian tribe is acting as trustee. Such costs shall be supported by 
appropriate records and documentation, and shall not reflect regular 
activities performed by the agency or the Indian tribe in management of 
the natural resource. Activities undertaken as part of the damage 
assessment phase shall be taken in a manner that is cost-effective, as 
that phrase is used in this part.

[51 FR 27725, Aug. 1, 1986, as amended at 53 FR 5175, Feb. 22, 1988; 59 
FR 14283, Mar. 25, 1994]



Sec. 11.61  Injury determination phase--general.

    (a) Requirement. (1) The authorized official shall, in accordance 
with the procedures provided in the Injury Determination phase of this 
part, determine: whether an injury to one or more of the natural 
resources has occurred; and that the injury resulted from the discharge 
of oil or release of a hazardous substance based upon the exposure 
pathway and the nature of the injury.
    (2) The Injury Determination phase consists of Sec. 11.61--general; 
Sec. 11.62--injury definition; Sec. 11.63--pathway determination; and 
Sec. 11.64--testing and sampling methods, of this part.
    (b) Purpose. The purpose of the Injury Determination phase is to 
ensure that only assessments involving well documented injuries 
resulting from the discharge of oil or release of a hazardous substance 
proceed through the type B assessment.
    (c) Injury Determination phase steps. (1) The authorized official 
shall determine whether the potentially injured resource constitutes a 
surface water, ground water, air, geologic, or biological resource as 
defined in Sec. 11.14 of this part. The authorized official shall then 
proceed in accordance with the guidance provided in the injury 
definition section, Sec. 11.62 of this part, to determine if the 
resource is injured.
    (2) The authorized official shall follow the guidance provided in 
the testing and sampling methods section, Sec. 11.64 of this part, in 
selecting the methodology for determining injury. The authorized 
official shall select from available testing and sampling procedures one 
or more procedures that meet the requirements of the selected 
methodologies.
    (3) The authorized official shall follow the guidance provided in 
the pathway section, Sec. 11.63 of this part, to determine the route 
through which the oil or hazardous substance is or was transported from 
the source of the discharge or release to the injured resource.
    (4) If more than one resource, as defined in Sec. 11.14(z) of this 
part, has potentially been injured, an injury determination for each 
resource shall be made in accordance with the guidance provided in each 
section of the Injury Determination phase.
    (d) Selection of methodologies. (1) One of the methodologies 
provided in Sec. 11.64 of this part for the potentially injured 
resource, or one that meets the acceptance criteria provided for that 
resource, shall be used to establish injury.
    (2) Selection of the methodologies for the Injury Determination 
phase shall be based upon cost-effectiveness as that phrase is used in 
this part.
    (e) Completion of Injury Determination phase. (1) Upon completion of 
the Injury Determination phase, the Assessment Plan shall be reviewed in 
accordance with the requirements of Sec. 11.32(f) of this part.
    (2) When the authorized official has determined that one or more of 
the natural resources has been injured as a result of the discharge or 
release, the authorized official may proceed to the Quantification and 
the Damage Determination phases.
    (3) When the authorized official has determined that an injury has 
not occurred to at least one of the natural resources or that an injury 
has occurred but that the injury cannot be linked to the discharge or 
release, the authorized official shall not pursue further assessment 
under this part.

[[Page 246]]



Sec. 11.62  Injury determination phase--injury definition.

    (a) The authorized official shall determine that an injury has 
occurred to natural resources based upon the definitions provided in 
this section for surface water, ground water, air, geologic, and 
biological resources. The authorized official shall test for injury 
using the methodologies and guidance provided in Sec. 11.64 of this 
part. The test results of the methodologies must meet the acceptance 
criteria provided in this section to make a determination of injury.
    (b) Surface water resources. (1) An injury to a surface water 
resource has resulted from the discharge of oil or release of a 
hazardous substance if one or more of the following changes in the 
physical or chemical quality of the resource is measured:
    (i) Concentrations and duration of substances in excess of drinking 
water standards as established by sections 1411-1416 of SDWA, or by 
other Federal or State laws or regulations that establish such standards 
for drinking water, in surface water that was potable before the 
discharge or release;
    (ii) Concentrations and duration of substances in excess of water 
quality criteria established by section 1401(1)(D) of SDWA, or by other 
Federal or State laws or regulations that establish such criteria for 
public water supplies, in surface water that before the discharge or 
release met the criteria and is a committed use, as the phrase is used 
in this part, as a public water supply;
    (iii) Concentrations and duration of substances in excess of 
applicable water quality criteria established by section 304(a)(1) of 
the CWA, or by other Federal or State laws or regulations that establish 
such criteria, in surface water that before the discharge or release met 
the criteria and is a committed use, as that phrase is used in this 
part, as a habitat for aquatic life, water supply, or recreation. The 
most stringent criterion shall apply when surface water is used for more 
than one of these purposes;
    (iv) Concentrations of substances on bed, bank, or shoreline 
sediments sufficient to cause the sediment to exhibit characteristics 
identified under or listed pursuant to section 3001 of the Solid Waste 
Disposal Act, 42 U.S.C. 6921; or
    (v) Concentrations and duration of substances sufficient to have 
caused injury as defined in paragraphs (c), (d), (e), or (f) of this 
section to ground water, air, geologic, or biological resources, when 
exposed to surface water, suspended sediments, or bed, bank, or 
shoreline sediments.
    (2)(i) The acceptance criterion for injury to the surface water 
resource is the measurement of concentrations of oil or a hazardous 
substance in two samples from the resource. The samples must be one of 
the following types, except as specified in paragraph (b)(3) of this 
section:
    (A) Two water samples from different locations, separated by a 
straight-line distance of not less than 100 feet; or
    (B) Two bed, bank, or shoreline sediment samples from different 
locations separated by a straight-line distance of not less than 100 
feet; or
    (C) One water sample and one bed, bank, or shoreline sediment 
sample; or
    (D) Two water samples from the same location collected at different 
times.
    (ii) In those instances when injury is determined and no oil or 
hazardous substances are detected in samples from the surface water 
resource, it must be demonstrated that the substance causing injury 
occurs or has occurred in the surface water resource as a result of 
physical, chemical, or biological reactions initiated by the discharge 
of oil or release of a hazardous substance.
    (3) If the maximum straight-line distance of the surface water 
resource is less than 100 feet, then the samples required in paragraph 
(b)(2)(i) (A) and (B) of this section should be separated by one-half 
the maximum straight-line distance of the surface water resource.
    (c) Ground water resources. (1) An injury to the ground water 
resource has resulted from the discharge of oil or release of a 
hazardous substance if one or more of the following changes in the 
physical or chemical quality of the resource is measured:
    (i) Concentrations of substances in excess of drinking water 
standards, established by sections 1411-1416 of the SDWA, or by other 
Federal or State laws or regulations that establish such

[[Page 247]]

standards for drinking water, in ground water that was potable before 
the discharge or release;
    (ii) Concentrations of substances in excess of water quality 
criteria, established by section 1401(1)(d) of the SDWA, or by other 
Federal or State laws or regulations that establish such criteria for 
public water supplies, in ground water that before the discharge or 
release met the criteria and is a committed use, as the phrase is used 
in this part, as a public water supply;
    (iii) Concentrations of substances in excess of applicable water 
quality criteria, established by section 304(a)(1) of the CWA, or by 
other Federal or State laws or regulations that establish such criteria 
for domestic water supplies, in ground water that before the discharge 
or release met the criteria and is a committed use as that phrase is 
used in this part, as a domestic water supply; or
    (iv) Concentrations of substances sufficient to have caused injury 
as defined in paragraphs (b), (d), (e), or (f) of this section to 
surface water, air, geologic, or biological resources, when exposed to 
ground water.
    (2) The acceptance criterion for injury to ground water resources is 
the measurement of concentrations of oil or hazardous substance in two 
ground water samples. The water samples must be from the same 
geohydrologic unit and must be obtained from one of the following pairs 
of sources, except as specified in paragraph (c)(3) of this section:
    (i) Two properly constructed wells separated by a straight-line 
distance of not less than 100 feet; or
    (ii) A properly constructed well and a natural spring or seep 
separated by a straight-line distance of not less than 100 feet; or
    (iii) Two natural springs or seeps separated by a straight-line 
distance of not less than 100 feet.
    (3) If the maximum straight-line distance of the ground water 
resource is less than 100 feet, the samples required in paragraph (c)(2) 
of this section should be separated by one-half of the maximum straight-
line distance of the ground water resource.
    (4) In those instances when injury is determined and no oil or 
hazardous substance is detected in samples from the ground water 
resource, it must be demonstrated that the substance causing injury 
occurs or has occurred in the ground water resource as a result of 
physical, chemical, or biological reactions initiated by the discharge 
of oil or release of hazardous substances.
    (d) Air resources. An injury to the air resource has resulted from 
the discharge of oil or release of a hazardous substance if one or more 
of the following changes in the physical or chemical quality of the 
resource is measured:
    (1) Concentrations of emissions in excess of standards for hazardous 
air pollutants established by section 112 of the Clean Air Act, 42 
U.S.C. 7412, or by other Federal or State air standards established for 
the protection of public welfare or natural resources; or
    (2) Concentrations and duration of emissions sufficient to have 
caused injury as defined in paragraphs (b), (c), (e), or (f) of this 
section to surface water, ground water, geologic, or biological 
resources when exposed to the emissions.
    (e) Geologic resources. An injury to the geologic resource has 
resulted from the discharge of oil or release of a hazardous substance 
if one or more of the following changes in the physical or chemical 
quality of the resource is measured:
    (1) Concentrations of substances sufficient for the materials in the 
geologic resource to exhibit characteristics identified under or listed 
pursuant to section 3001 of the Solid Waste Disposal Act, 42 U.S.C. 
6921;
    (2) Concentrations of substances sufficient to raise the negative 
logarithm of the hydrogen ion concentration of the soil (pH) to above 
8.5 (above 7.5 in humid areas) or to reduce it below 4.0;
    (3) Concentrations of substances sufficient to yield a salt 
saturation value greater than 2 millimhos per centimeter in the soil or 
a sodium adsorption ratio of more than 0.176;
    (4) Concentrations of substances sufficient to decrease the water 
holding capacity such that plant, microbial, or invertebrate populations 
are affected;

[[Page 248]]

    (5) Concentrations of substances sufficient to impede soil microbial 
respiration to an extent that plant and microbial growth have been 
inhibited;
    (6) Concentrations in the soil of substances sufficient to inhibit 
carbon mineralization resulting from a reduction in soil microbial 
populations;
    (7) Concentrations of substances sufficient to restrict the ability 
to access, develop, or use mineral resources within or beneath the 
geologic resource exposed to the oil or hazardous substance;
    (8) Concentrations of substances sufficient to have caused injury to 
ground water, as defined in paragraph (c) of this section, from physical 
or chemical changes in gases or water from the unsaturated zone;
    (9) Concentrations in the soil of substances sufficient to cause a 
toxic response to soil invertebrates;
    (10) Concentrations in the soil of substances sufficient to cause a 
phytotoxic response such as retardation of plant growth; or
    (11) Concentrations of substances sufficient to have caused injury 
as defined in paragraphs (b), (c), (d), or (f), of this section to 
surface water, ground water, air, or biological resources when exposed 
to the substances.
    (f) Biological resources. (1) An injury to a biological resource has 
resulted from the discharge of oil or release of a hazardous substance 
if concentration of the substance is sufficient to:
    (i) Cause the biological resource or its offspring to have undergone 
at least one of the following adverse changes in viability: death, 
disease, behavioral abnormalities, cancer, genetic mutations, 
physiological malfunctions (including malfunctions in reproduction), or 
physical deformations; or
    (ii) Exceed action or tolerance levels established under section 402 
of the Food, Drug and Cosmetic Act, 21 U.S.C. 342, in edible portions of 
organisms; or
    (iii) Exceed levels for which an appropriate State health agency has 
issued directives to limit or ban consumption of such organism.
    (2) The method for determining injury to a biological resource, as 
defined in paragraph (f)(1)(i) of this section, shall be chosen based 
upon the capability of the method to demonstrate a measurable biological 
response. An injury can be demonstrated if the authorized official 
determines that the biological response under consideration can satisfy 
all of the following acceptance criteria:
    (i) The biological response is often the result of exposure to oil 
or hazardous substances. This criterion excludes biological responses 
that are caused predominately by other environmental factors such as 
disturbance, nutrition, trauma, or weather. The biological response must 
be a commonly documented response resulting from exposure to oil or 
hazardous substances.
    (ii) Exposure to oil or hazardous substances is known to cause this 
biological response in free-ranging organisms. This criterion identifies 
biological responses that have been documented to occur in a natural 
ecosystem as a result of exposure to oil or hazardous substances. The 
documentation must include the correlation of the degree of the 
biological response to the observed exposure concentration of oil or 
hazardous substances.
    (iii) Exposure to oil or hazardous substances is known to cause this 
biological response in controlled experiments. This criterion provides a 
quantitative confirmation of a biological response occurring under 
environmentally realistic exposure levels that may be linked to oil or 
hazardous substance exposure that has been observed in a natural 
ecosystem. Biological responses that have been documented only in 
controlled experimental conditions are insufficient to establish 
correlation with exposure occurring in a natural ecosystem.
    (iv) The biological response measurement is practical to perform and 
produces scientifically valid results. The biological response 
measurement must be sufficiently routine such that it is practical to 
perform the biological response measurement and to obtain scientifically 
valid results. To meet this criterion, the biological response 
measurement must be adequately documented in scientific literature, must 
produce reproducible and verifiable results, and must have well defined 
and accepted statistical criteria for interpreting as well as rejecting 
results.

[[Page 249]]

    (3) Unless otherwise provided for in this section, the injury 
determination must be based upon the establishment of a statistically 
significant difference in the biological response between samples from 
populations in the assessment area and in the control area. The 
determination as to what constitutes a statistically significant 
difference must be consistent with the quality assurance provisions of 
the Assessment Plan. The selection of the control area shall be 
consistent with the guidance provided in Sec. 11.72 of this part.
    (4) The biological responses listed in this paragraph have been 
evaluated and found to satisfy the acceptance criteria provided in 
paragraph (f)(2) of this section. The authorized official may, when 
appropriate, select from this list to determine injury to fish and 
wildlife resources or may designate another response as the determiner 
of injury provided that the designated response can satisfy the 
acceptance criteria provided in paragraph (f)(2) of this section. The 
biological responses are listed by the categories of injury for which 
they may be applied.
    (i) Category of injury--death. Five biological responses for 
determining when death is a result of exposure to the discharge of oil 
or release of a hazardous substance have met the acceptance criteria.
    (A) Brain cholinesterase (ChE) enzyme activity. Injury has occurred 
when brain ChE activity in a sample from the population has been 
inhibited by at least 50 percent compared to the mean for normal brain 
ChE activity of the wildlife species. These enzymes are in the nervous 
system of vertebrate organisms and the rate of ChE activity is 
associated with the regulation of nerve impulse transmission. This 
biological response may be used to confirm injury when anti-ChE 
substances, such as organophosphorus and carbamate pesticides, are 
suspected to have resulted in death to bird and mammal species.
    (B) Fish kill investigations. Injury has occurred when a significant 
increase in the frequency or numbers of dead or dying fish can be 
measured in accordance with the procedures for counting dead or dying 
fish contained in Part II (Fish-Kill Counting Guidelines) of ``Monetary 
Values of Freshwater Fish and Fish-Kill Counting Guidelines,'' American 
Fisheries Society Special Publication Number 13, 1982 (incorporated by 
reference, see Sec. 11.18).
    (C) Wildlife kill investigations. Injury has occurred when a 
significant increase in the frequency or number of dead or dying birds 
or mammal species can be measured in a population sample from the 
assessment area as compared to a population sample from a control area. 
Wildlife kill investigations may be used when acute mortality has 
occurred to multiple wildlife species, or when detectable quantities of 
oil or hazardous substances have adherred to, bound to, or otherwise 
covered surface tissue, or had been ingested or inhaled by dead or dying 
bird or mammal species.
    (D) In situ bioassay. Injury has occurred when a statistically 
significant difference can be measured in the total mortality and/or 
mortality rates between population samples exposed in situ to a 
discharge of oil or a release of hazardous substance and those in a 
control site. In situ caged or confined bioassay may be used to confirm 
injury when oil or hazardous substances are suspected to have caused 
death to fish species.
    (E) Laboratory toxicity testing. Injury has occurred when a 
statistically significant difference can be measured in the total 
mortality and/or mortality rates between population samples of the test 
organisms placed in exposure chambers containing concentrations of oil 
or hazardous substances and those in a control chamber. Published 
standardized laboratory fish toxicity testing methodologies for acute 
flow-through, acute static, partial-chronic (early life stage), and 
chronic (life cycle) toxicity tests may be used to confirm injury. The 
oil or hazardous substance used in the test must be the exact substance 
or a substance that is reasonably comparable to that suspected to have 
caused death to the natural population of fish.
    (ii) Category of injury--disease. One biological response for 
determining when disease is a result of exposure to the discharge of oil 
or release of a hazardous substance has met the acceptance criteria.

[[Page 250]]

    (A) Fin erosion. Injury has occurred when a statistically 
significant difference can be measured in the frequency of occurrence of 
fin erosion (also referred to as fin rot) in a population sample from 
the assessment area as compared to a sample from the control area. Fin 
erosion shall be confirmed by appropriate histological procedures. Fin 
erosion may be used when oil or hazardous substances are suspected to 
have caused the disease.
    (iii) Category of injury--behavioral abnormalities. Two biological 
responses for determining when behavioral abnormalities are a result of 
the exposure to the discharge of oil or release of a hazardous substance 
have met the acceptance criteria.
    (A) Clinical behavioral signs of toxicity. Injury has occurred when 
a statistically significant difference can be measured in the frequency 
of occurrence of clinical behavioral signs of toxicity in a population 
sample from the assessment area as compared to a sample from the control 
area. Clinical behavioral signs of toxicity are characteristic 
behavioral symptoms expressed by an organism in response to exposure to 
an oil or hazardous substance. The clinical behavioral signs of toxicity 
used shall be those that have been documented in published literature.
    (B) Avoidance. Injury has occurred when a statistically significant 
difference can be measured in the frequency of avoidance behavior in 
population samples of fish placed in testing chambers with equal access 
to water containing oil or a hazardous substance and the control water. 
The oil or hazardous substance used in the test must be the exact 
substance or a substance that is reasonably comparable to that suspected 
to have caused avoidance to the natural populations of fish. This 
biological response may be used to confirm injury when oil or hazardous 
substances are suspected to have resulted in avoidance behavior in fish 
species.
    (iv) Category of injury--cancer. One biological response for 
determining when cancer is a result of exposure to the discharge of oil 
or release of a hazardous substance has met the acceptance criteria.
    (A) Fish neoplasm. Injury has occurred when a statistically 
significant difference can be measured in the frequency of occurrence of 
the fish neoplasia when comparing population samples from the assessment 
area and a control area. Neoplasms are characterized by relatively 
autonomous growth of abnormal cells that by proliferation infiltrate, 
press upon, or invade healthy tissue thereby causing destruction of 
cells, interference with physiological functions, or death of the 
organism. The following type of fish neoplasia may be used to determine 
injury: liver neoplasia and skin neoplasia. The neoplasms shall be 
confirmed by histological procedures and such confirmation procedures 
may also include special staining techniques for specific tissue 
components, ultra-structural examination using electron microscopy to 
identify cell origin, and to rule out or confirm viral, protozoan, or 
other causal agents. Fish neoplasm may be used to determine injury when 
oil or hazardous substances are suspected to have been the causal agent.
    (v) Category of injury--physiological malfunctions. Five biological 
responses for determining when physiological malfunctions are a result 
of exposure to the discharge of oil or release of a hazardous substance 
have met the acceptance criteria.
    (A) Eggshell thinning. Injury has occurred when eggshell thicknesses 
for samples for a population of a given species at the assessment area 
are thinner than those for samples from a population at a control area, 
or are at least 15 percent thinner than eggshells collected before 1946 
from the same geographic area and stored in a museum. This biological 
response is a measure of avian eggshell thickness resulting from the 
adult bird having assimilated the oil or hazardous substance. This 
biological response may be used when the organochlorine pesticide DDT or 
its metabolites are suspected to have caused such physiological 
malfunction injury.
    (B) Reduced avian reproduction. Injury has occurred when a 
statistically significant difference can be measured in the mean number 
of young fledged per active nest when comparing samples from populations 
in the assessment

[[Page 251]]

area and a control area. The fledging success (the number of healthy 
young leaving the nest) shall be used as the measurement of injury. 
Factors that may contribute to this measurement include egg fertility, 
hatching success, and survival of young. This biological response may be 
used when oil or hazardous substances are suspected to have reduced the 
nesting success of avian species.
    (C) Cholinesterase (ChE) enzyme inhibition. Injury has occurred when 
brain ChE activity in a sample from the population at the assessment 
area shows a statistically significant inhibition when compared to the 
mean activity level in samples from populations in a control area. These 
enzymes are in the nervous systems of vertebrate organisms and the rate 
of ChE activity is associated with the regulation of nerve impulse 
transmission. This biological response may be used as a demonstration of 
physiological malfunction injury to birds, mammals, and reptiles when 
anti-ChE substances, such as organophosphorus and carbamate pesticides, 
have been discharged or released.
    (D) Delta-aminolevulinic acid dehydratase (ALAD) inhibition. Injury 
has occurred when the activity level of whole blood ALAD in a sample 
from the population of a given species at an assessment area is 
significantly less than mean values for a population at a control area, 
and ALAD depression of at least 50 percent can be measured. The ALAD 
enzyme is associated with the formation of hemoglobin in blood and in 
chemical detoxification processes in the liver. This biological response 
is a measure of the rate of ALAD activity. This biological response may 
be used to determine injury to bird and mammal species that have been 
exposed to lead.
    (E) Reduced fish reproduction. Injury has occurred when a 
statistically significant difference in reproduction success between the 
control organisms and the test organisms can be measured based on the 
use of published standardized laboratory toxicity testing methodologies. 
This biological response may be used when the oil or hazardous substance 
is suspected to have caused a reduction in the reproductive success of 
fish species. Laboratory partial-chronic and laboratory chronic toxicity 
tests may be used. The oil or hazardous substance used in the test must 
be the exact substance or a substance that is reasonably comparable to 
that suspected to have caused reduced reproductive success in the 
natural population of fish.
    (vi) Category of injury--physical deformation. Four biological 
responses for determining when physical deformations are a result of 
exposure to the discharge of oil or release of a hazardous substance 
have met the injury acceptance criteria.
    (A) Overt external malformations. Injury has occurred when a 
statistically significant difference can be measured in the frequency of 
overt external malformation, such as small or missing eyes, when 
comparing samples from populations of wildlife species from the 
assessment area and a control area. This biological response may be used 
as a demonstration of injury when such physical deformations are 
observed in wildlife species exposed to oil or hazardous substances.
    (B) Skeletal deformities. Injury has occurred when a statistically 
significant difference can be measured in the frequency of skeletal 
deformities, such as defects in growth of bones, when comparing samples 
from populations of wildlife species from the assessment area and a 
control area. This biological response may be used as a demonstration of 
injury when such physical deformations are observed in wildlife species 
exposed to oil or hazardous substances.
    (C) Internal whole organ and soft tissue malformation. Injury has 
occurred when a statistically significant difference can be measured in 
the frequency of malformations to brain, heart, liver, kidney, and other 
organs, as well as soft tissues of the gastrointestinal tract and 
vascular system, when comparing samples from populations of wildlife 
species in the assessment area and a control area. This biological 
response may be used as a demonstration of injury when such physical 
deformations are observed in wildlife species exposed to oil or 
hazardous substances.

[[Page 252]]

    (D) Histopathological lesions. Injury has occurred when a 
statistically significant difference can be measured in the frequency of 
tissue or cellular lesions when comparing samples from populations of 
wildlife species from the assessment area and a control area. This 
biological response may be used as a demonstration of injury when such 
physical deformations are observed in wildlife species exposed to oil or 
hazardous substances.



Sec. 11.63  Injury determination phase--pathway determination.

    (a) General. (1) To determine the exposure pathways of the oil or 
hazardous substance, the following shall be considered:
    (i) The chemical and physical characteristics of the discharged oil 
or released hazardous substance when transported by natural processes or 
while present in natural media;
    (ii) The rate or mechanism of transport by natural processes of the 
discharged oil or released hazardous substance; and
    (iii) Combinations of pathways that, when viewed together, may 
transport the discharged oil or released hazardous substance to the 
resource.
    (2) The pathway may be determined by either demonstrating the 
presence of the oil or hazardous substance in sufficient concentrations 
in the pathway resource or by using a model that demonstrates that the 
conditions existed in the route and in the oil or hazardous substance 
such that the route served as the pathway.
    (3) To the extent that the information needed to make this 
determination is not available, tests shall be conducted and necessary 
data shall be collected to meet the requirements of this section. 
Methods that may be used to conduct these additional tests and collect 
new information are described in Sec. 11.64 of this part.
    (b) Surface water pathway. (1) When the surface water resource is 
suspected as the pathway or a component of the pathway, the authorized 
official shall determine, using guidance provided in this paragraph, 
whether the surface water resource, either solely or in combination with 
other media, served as the exposure pathway for injury to the resource.
    (2)(i) Using available information and such additional tests as 
necessary, it should be determined whether the surface water resource 
downstream or downcurrent of the source of discharge or release has been 
exposed to the oil or hazardous substance.
    (ii) When the source of discharge or release is on an open water 
body, such as a marsh, pond, lake, reservoir, bay, estuary, gulf, or 
sound, it should be determined, using available information and such 
additional tests as necessary, whether the surface water resource in the 
vicinity of the source of discharge or release has been exposed to the 
oil or hazardous substance.
    (3)(i) If a surface water resource is or likely has been exposed, 
the areal extent of the exposed surface water resource should be 
estimated, including delineation of:
    (A) Channels and reaches:
    (B) Seasonal boundaries of open water bodies; and
    (C) Depth of exposed bed, bank, or shoreline sediments.
    (ii) As appropriate to the exposed resource, the following should be 
determined:
    (A) Hydraulic parameters and streamflow characteristics of channels 
and reaches;
    (B) Bed sediment and suspended sediment characteristics, including 
grain size, grain mineralogy, and chemistry of grain surfaces;
    (C) Volume, inflow-outflow rates, degree of stratification, 
bathymetry, and bottom sediment characteristics of surface water bodies;
    (D) Suspended sediment concentrations and loads and bed forms and 
loads of streams and tidally affected waters; and
    (E) Tidal flux, current direction, and current rate in coastal and 
marine waters.
    (4)(i) Using available information and data from additional tests as 
necessary, the mobility of the oil or hazardous substance in the exposed 
surface water resource should be estimated. This estimate should 
consider such physical and chemical characteristics of the oil or 
hazardous substance

[[Page 253]]

as aqueous solubility, aqueous miscibility, density, volatility, 
potential for chemical degradation, chemical precipitation, biological 
degradation, biological uptake, and adsorption.
    (ii) Previous studies of the characteristics discussed in paragraph 
(b)(4)(i) of this section should be relied upon if hydraulic, physical, 
and chemical conditions in the exposed surface water resource are 
similar to experimental conditions of the previous studies. In the 
absence of this information, those field and laboratory studies 
necessary to estimate the mobility of the oil or hazardous substance in 
surface water flow may be performed.
    (5)(i) The rate of transport of the oil or hazardous substance in 
surface water should be estimated using available information and with 
consideration of the hydraulic properties of the exposed resource and 
the physical and chemical characteristics of the oil or hazardous 
substance.
    (ii) Transport rates may be estimated using:
    (A) The results of previous time-of-travel and dispersion studies 
made in the exposed surface water resource before the discharge or 
release;
    (B) The results of previous studies, conducted with the same or 
similar chemical substances to those discharged or released under 
experimental conditions similar to the hydraulic, chemical, and 
biological conditions in the exposed surface water resource;
    (C) The results of field measurements of time-of-travel and 
dispersion made in the exposed or comparable surface water resource, 
using natural or artificial substances with transport characteristics 
that reasonably approximate those of the oil or hazardous substance; and
    (D) The results of simulation studies using the results of 
appropriate time-of-travel and dispersion studies in the exposed or 
comparable surface water resource.
    (c) Ground water pathway. (1) When ground water resources are 
suspected as the pathway or a component of the pathway, the authorized 
official shall determine, using guidance provided in this paragraph, 
whether ground water resources, either solely or in combination with 
other media, served as the exposure pathway for injury to the resource.
    (2) Using available information and such additional tests as 
necessary, it should be determined whether the unsaturated zone, the 
ground water, or the geologic materials beneath or downgradient of the 
source of discharge or release have been exposed to the oil or hazardous 
substance.
    (3) If a ground water resource is or likely has been exposed, 
available information and such additional tests should be used as 
necessary to determine the characteristics of the unsaturated zone, as 
well as any aquifers and confining units containing the exposed ground 
water, in the vicinity of the source of discharge or release. The 
characteristics of concern include:
    (i) Local geographical extent of aquifers and confining units;
    (ii) Seasonal depth to saturated zone beneath the site;
    (iii) Direction of ground water flow in aquifers;
    (iv) Local variation in direction of ground water flow resulting 
from seasonal or pumpage effects;
    (v) Elevation of top and bottom of aquifer and confining units;
    (vi) Lithology, mineralogy, and porosity of rocks or sediments 
comprising the unsaturated zone, aquifers, and confining units;
    (vii) Transmissivity and hydraulic conductivity of aquifers and 
confining units; and
    (viii) Nature and amount of hydraulic connection between ground 
water and local surface water resources.
    (4)(i) Using available information and such additional tests as 
necessary, the mobility of the oil or hazardous substance within the 
unsaturated zone and in the exposed ground water resources should be 
estimated. This estimate should consider local recharge rates and such 
physical and chemical characteristics of the oil or hazardous substance 
as aqueous solubility, aqueous miscibility, density, volatility, 
potential for chemical degradation, chemical precipitation, biological 
degradation, biological uptake, and adsorption onto solid phases in the 
unsaturated zone, aquifers, and confining units.
    (ii) Previous studies of the characteristics discussed in paragraph 
(c)(4)(i) of

[[Page 254]]

this section should be relied upon if geohydrologic, physical, and 
chemical conditions in the exposed ground water resource are similar to 
experimental conditions of the previous studies. In the absence of this 
information, field and laboratory studies may be performed as necessary 
to estimate the mobility of the oil or hazardous substance within the 
unsaturated zone and in ground water flows.
    (5)(i) The rate of transport of the oil or hazardous substance in 
ground water should be estimated using available information and with 
consideration of the site hydrology, geohydrologic properties of the 
exposed resource, and the physical and chemical characteristics of the 
oil or hazardous substance.
    (ii) Transport rates may be estimated using:
    (A) Results of previous studies conducted with the same or similar 
chemical substance, under experimental geohydrological, physical, and 
chemical conditions similar to the ground water resource exposed to the 
oil or hazardous substance;
    (B) Results of field measurements that allow computation of arrival 
times of the discharged or released substance at downgradient wells, so 
that an empirical transport rate may be derived; or
    (C) Results of simulation studies, including analog or numerical 
modeling of the ground water system.
    (d) Air pathway. (1) When air resources are suspected as the pathway 
or a component of the pathway, the authorized official shall determine, 
using guidance provided in this paragraph, whether the air resources 
either solely or in combination with other media, served as the exposure 
pathway for injury to the resource.
    (2) Using available information, air modeling, and additional field 
sampling and analysis, it should be determined whether air resources 
have been exposed to the discharge of oil or release of a hazardous 
substance.
    (3)(i) If an air resource is or has likely been exposed, available 
information and such additional tests as necessary should be used to 
estimate the areal extent of exposure and the duration and frequency of 
exposure of such areas to emissions from the discharge of oil or release 
of a hazardous substance.
    (ii) The areal extent of exposure is defined as the geographical 
surface area or space where emissions from the source of discharge or 
release are found or otherwise determined to be present for such 
duration and frequency as to potentially result in injury to resources 
present within the area or space.
    (4) Previous studies of the characteristics discussed in paragraph 
(d)(3)(i) of this section should be relied upon if the conditions in the 
exposed air resource are similar to experimental conditions of the 
previous studies. In the absence of this information, air sampling and 
analysis methods identified in Sec. 11.64(d) of this part, air modeling 
methods, or a combination of these methods may be used in identifying 
the air exposure pathway and in estimating the areal extent of exposure 
and duration and frequency of exposure.
    (5) For estimating the areal extent, duration, and frequency of 
exposure from the discharge or release, the following factors shall be 
considered as may be appropriate for each emissions event:
    (i) The manner and nature in which the discharge or release occurs, 
including the duration of the emissions, amount of the discharge or 
release, and emergency or other time critical factors;
    (ii) The configuration of the emitting source, including sources 
such as ponds, lagoons, pools, puddles, land and water surface spills, 
and venting from containers and vessels;
    (iii) Physical and chemical properties of substances discharged or 
released, including volatility, toxicity, solubility, and physical 
state;
    (iv) The deposition from the air and re-emission to the air of 
gaseous and particulate emissions that provide periodic transport of the 
emissions; and
    (v) Air transport and dispersion factors, including wind speed and 
direction, and atmospheric stability and temperature.
    (e) Geologic pathway. (1) When geologic resources are suspected as 
the

[[Page 255]]

pathway or a component of the pathway, the authorized official shall 
determine, using guidance provided in this paragraph, whether geologic 
resources, either solely or in combination with other media, served as 
the exposure pathway for injury to the resource.
    (2)(i) Using available information and the methods listed in Sec. 
11.64(e) of this part, it should be determined whether any element of 
the geologic resource has been exposed to the oil or hazardous 
substance. If a geologic resource is or has likely been exposed, the 
areal extent of the exposed geologic resource, including the lateral and 
vertical extent of the dispersion, should be estimated.
    (ii) To determine whether the unsaturated zone served as a pathway, 
the guidance provided in paragraph (c) of this section should be 
followed.
    (f) Biological pathway. (1) When biological resources are suspected 
as the pathway or a component of the pathway, the authorized official 
shall determine, using the guidance provided in this paragraph, whether 
biological resources, either solely or in combination with other media, 
served as the exposure pathway for injury to the resource.
    (2) Biological pathways that resulted from either direct or indirect 
exposure to the oil or hazardous substance, or from exposure to products 
of chemical or biological reactions initiated by the discharge or 
release shall be identified. Direct exposure can result from direct 
physical contact with the discharged oil or released hazardous 
substance. Indirect exposure can result from food chain processes.
    (3) If the oil or hazardous substance adhered to, bound to, or 
otherwise covered surface tissue, or was ingested, or inhaled but not 
assimilated, the area of dispersion may be determined based upon 
chemical analysis of the appropriate tissues or organs (such as leaves, 
lungs, stomach, intestine, or their contents) that were directly exposed 
to the oil or hazardous substance.
    (4) If the oil or hazardous substance was assimilated, the areal 
dispersion may be determined based upon one or more of the following 
alternative procedures:
    (i) If direct exposure to the biological resource has occurred, 
chemical analysis of the organisms that have been exposed may be 
performed.
    (ii) If indirect exposure to the biological resource has occurred, 
either chemical analysis of free-ranging biological resources using one 
or more indicator species as appropriate, or laboratory analysis of one 
or more in situ placed indicator species as appropriate may be 
performed.
    (A) Indicator species, as used in this section, means a species of 
organism selected consistent with the following factors to represent a 
trophic level of a food chain:
    (1) General availability of resident organisms in the assessment 
area;
    (2) Potential for exposure to the oil or hazardous substance through 
ingestion, assimilation, or inhalation;
    (3) Occurrence of the substance in a chemical form that can be 
assimilated by the organism;
    (4) Capacity of the organism to assimilate, bioconcentrate, 
bioaccumulate, and/or biomagnify the substance;
    (5) Capacity of the organism to metabolize the substance to a form 
that cannot be detected through available chemical analytical 
procedures; and
    (6) Extent to which the organism is representative of the food chain 
of concern.
    (B) Collection of the indicator species should be limited to the 
number necessary to define the areal dispersion and to provide 
sufficient sample volume for chemical analysis.
    (C) When in situ procedures are used, indicator species that behave 
comparably to organisms existing under free-ranging conditions shall be 
collected. The indicator species used in this procedure shall be 
obtained either from a control area selected consistent with provisions 
of Sec. 11.72 of this part or obtained from a suitable supply of wild-
strain organisms reared in a laboratory setting. Appropriate chemical 
analysis shall be performed on a representative subsample of the 
indicator species before in situ placement.
    (iii) In situ placement procedures shall be used where the 
collection of samples would be inconsistent with the provisions of Sec. 
11.17(b) of this part.

[[Page 256]]

    (5) Sampling sites and the number of replicate samples to be 
collected at the sampling sites shall be consistent with the quality 
assurance provisions of the Assessment Plan.
    (6) Chemical analysis of biological resource samples collected for 
the purpose of this section shall be conducted in accordance with the 
quality assurance provisions of the Assessment Plan.



Sec. 11.64  Injury determination phase--testing and sampling methods.

    (a) General. (1) The guidance provided in this section shall be 
followed for selecting methodologies for the Injury Determination phase.
    (2) Before selecting methodologies, the objectives to be achieved by 
testing and sampling shall be defined. These objectives shall be listed 
in the Assessment Plan. In developing these objectives, the availability 
of information from response actions relating to the discharge or 
release, the resource exposed, the characteristics of the oil or 
hazardous substance, potential physical, chemical, or biological 
reactions initiated by the discharge or release, the potential injury, 
the pathway of exposure, and the potential for injury resulting from 
that pathway should be considered.
    (3) When selecting testing and sampling methods, only those 
methodologies shall be selected:
    (i) For which performance under conditions similar to those 
anticipated at the assessment area has been demonstrated;
    (ii) That ensure testing and sampling performance will be cost-
effective;
    (iii) That will produce data that were previously unavailable and 
that are needed to make the determinations; and
    (iv) That will provide data consistent with the data requirements of 
the Quantification phase.
    (4) Specific factors that should be considered when selecting 
testing and sampling methodologies to meet the requirements in paragraph 
(a)(3) of this section include:
    (i) Physical state of the discharged or released substance;
    (ii) The duration, frequency, season, and time of the discharge or 
release;
    (iii) The range of concentrations of chemical compounds to be 
analyzed in different media;
    (iv) Detection limits, accuracy, precision, interferences, and time 
required to perform alternative methods;
    (v) Potential safety hazards to obtain and test samples;
    (vi) Costs of alternative methods; and
    (vii) Specific guidance provided in paragraphs (b), (c), (d), (e), 
and (f) of this section.
    (b) Surface water resources. (1) Testing and sampling for injury to 
surface water resources shall be performed using methodologies described 
in the Assessment Plan.
    (2) Chemical analyses performed to meet the requirements of the 
Injury Determination phase for surface water resources shall be 
conducted in accordance with methods that are generally accepted or have 
been scientifically verified and documented.
    (3) The term ``water sample'' shall denote a volume of water 
collected and preserved to represent the bulk water and any dissolved or 
suspended materials or microorganisms occurring in the surface water 
resource.
    (4) Sampling of water and sediments from surface water resources 
shall be conducted according to generally accepted methods.
    (5) Measurement of the hydrologic properties of the resource shall 
be conducted according to generally accepted methods.
    (6)(i) Interpretation of surface-water flow or estimation of 
transport of oil or hazardous substance in surface water through the use 
of models shall be based on hydrologic literature and current practice.
    (ii) The applicability of models used during the assessment should 
be demonstrated, including citation or description of the following:
    (A) Physical, chemical, and biological processes simulated by the 
model;
    (B) Mathematical or statistical methods used in the model; and
    (C) Model computer code (if any), test cases proving the code works, 
and any alteration of previously documented code made to adapt the model 
to the assessment area.

[[Page 257]]

    (iii) The validity of models used during the assessment should be 
established, including a description of the following:
    (A) Hydraulic geometry, physiographic features, and flow 
characteristics of modeled reaches or areas;
    (B) Sources of hydrological, chemical, biological, and 
meteorological data used in the model;
    (C) Lists or maps of data used to describe initial conditions;
    (D) Time increments or time periods modeled;
    (E) Comparison of predicted fluxes of water and solutes with 
measured fluxes;
    (F) Calibration-verification procedures and results; and
    (G) Types and results of sensitivity analyses made.
    (c) Ground water resources. (1) Testing and sampling for injury to 
ground water resources shall be performed using methodologies described 
in the Assessment Plan.
    (2) Chemical analyses performed to meet the requirements of the 
Injury Determination phase for ground water resources shall be conducted 
in accordance with methods that are generally accepted or have been 
scientifically verified and documented.
    (3)(i) The term ``water sample'' shall denote a volume of water 
collected and preserved to represent the bulk water and any dissolved or 
suspended materials or microorganisms occurring in the ground water 
resource.
    (ii) The source of ground water samples may be from natural springs, 
in seeps, or from wells constructed according to generally accepted 
methods.
    (4) Sampling of ground water or of geologic materials through which 
the ground water migrates shall be conducted according to generally 
accepted methods.
    (5) Measurement of the geohydrologic properties of the resource 
shall be conducted according to generally accepted practice.
    (6) Description of lithologies, minerals, cements, or other 
sedimentary characteristics of the ground water resource should follow 
generally accepted methods.
    (7) Interpretation of the geohydrological setting, including 
identifying geologic layers comprising aquifers and any confining units, 
shall be based on geohydrologic and geologic literature and generally 
accepted practice.
    (8)(i) Interpretation of ground-water flow systems or estimation of 
transport of oil or hazardous substances in ground water through the use 
of models shall be based on geohydrologic literature and current 
practice.
    (ii) The applicability of models used during the assessment should 
be demonstrated, including citation or description of the following.
    (A) Physical, chemical, and biological processes simulated by the 
model;
    (B) Mathematical or statistical methods used in the model; and
    (C) Model computer code (if any), test cases proving the code works, 
and any alteration of previously documented code made to adapt the model 
to the assessment area.
    (iii) The validity of models used during the assessment should be 
established, including a description of the following:
    (A) Model boundary conditions and stresses simulated;
    (B) How the model approximates the geohydrological framework of the 
assessment area;
    (C) Grid size and geometry;
    (D) Sources of geohydrological, chemical, and biological data used 
in the model;
    (E) Lists or maps of data used to describe initial conditions;
    (F) Time increments or time periods modeled;
    (G) Comparison of predicted fluxes of water and solutes with 
measured fluxes;
    (H) Calibration-verification procedures and results; and
    (I) Type and results of sensitivity analyses made.
    (d) Air resources. (1) Testing and sampling for injury to air 
resources shall be performed using methodologies that meet the selection 
and documentation requirements in this paragraph. Methods identified in 
this section and methods meeting the selection requirements identified 
in this section shall be used to detect, identify, and determine the 
presence and source of emissions of oil

[[Page 258]]

or a hazardous substance, and the duration, frequency, period of 
exposure (day, night, seasonal, etc.), and levels of exposure.
    (2) The sampling and analysis methods identified in this paragraph 
are the primary methods to be used for determining injury to the air 
resource. Air modeling methods may be used for injury determination only 
when air sampling and analysis methods are not available or the 
discharge or release occurred with no opportunity to monitor or sample 
the emissions.
    (3)(i) Methods developed, evaluated, approved, and published by the 
U.S. Environmental Protection Agency may be used for sampling and 
analysis to determine injury to the air resource.
    (ii) Methods selected for air sampling and analysis may include 
those methods that have been formally reviewed, evaluated, and published 
by the following government and professional organizations: the National 
Institute for Occupational Safety and Health, the American Society for 
Testing and Materials, and the American Public Health Association.
    (iii) Methods selected for air sampling and analysis shall be 
methods that are documented for each of the following:
    (A) The range of field conditions for which the methods are 
applicable;
    (B) Quality assurance and quality control requirements necessary to 
achieve the data quality the methods are capable of producing;
    (C) Operational costs of conducting the methods; and
    (D) Time required to conduct the methods.
    (iv) The determination of concentrations in excess of emission 
standards for hazardous air pollutants established under section 112 of 
the Clean Air Act, 42 U.S.C. 7412, shall be conducted in accordance with 
the primary methods or alternative methods as required in ``National 
Emission Standards for Hazardous Air Pollutants: Source Test and 
Analytical Methods,'' 40 CFR 61.14, and as may be applicable to the 
determination of injury to air resources.
    (4) In selecting methods for testing and sampling for injury to air 
resources, the following performance factors of the sampling and 
analysis methods and the influencing characteristics of the assessment 
area and the general vicinity shall be considered:
    (i) Method detection limits, accuracy, precision, specificity, 
interferences, and analysis of time and cost;
    (ii) Sampling area locations and frequency, duration of sampling, 
and chemical stability of emissions; and
    (iii) Meteorological parameters that influence the transport of 
emissions and the spatial and temporal variation in concentration.
    (e) Geologic resources. (1) Testing and sampling for injury to 
geologic resources shall be performed using methodologies described in 
this paragraph.
    (2) Testing pH level in soils shall be performed using standard pH 
measurement techniques, taking into account the nature and type of 
organic and inorganic constituents that contribute to soil acidity; the 
soil/solution ratio; salt or electrolytic content; the carbon dioxide 
content; and errors associated with equipment standardization and liquid 
junction potentials.
    (3) Salinity shall be tested by measuring the electrical 
conductivity of the saturation extraction of the soil.
    (4) Soil microbial respiration shall be tested by measuring uptake 
of oxygen or release of carbon dioxide by bacterial, fungal, algal, and 
protozoan cells in the soil. These tests may be made in the laboratory 
or in situ.
    (5) Microbial populations shall be tested using microscopic 
counting, soil fumigation, glucose response, or adenylate enegry charge.
    (6) Phytotoxicity shall be tested by conducting tests of seed 
germination, seedling growth, root elongation, plant uptake, or soil-
core microcosms.
    (7) Injury to mineral resources shall be determined by describing 
restrictions on access, development, or use of the resource as a result 
of the oil or hazardous substance. Any appropriate health and safety 
considerations that led to the restrictions should be documented.
    (f) Biological resources. (1) Testing and sampling for injury to 
biological resources shall be performed using methodologies provided for 
in this paragraph.

[[Page 259]]

    (2)(i) Testing may be performed for biological responses that have 
satisfied the acceptance criteria of Sec. 11.62(f)(2) of this part.
    (ii) Testing methodologies that have been documented and are 
applicable to the biological response being tested may be used.
    (3) Injury to biological resources, as such injury is defined in 
Sec. 11.62(f)(1)(ii) of this part, may be determined by using methods 
acceptable to or used by the Food and Drug Administration or the 
appropriate State health agency in determining the levels defined in 
that paragraph.



Sec. 11.70  Quantification phase--general.

    (a) Requirement. (1) Upon completing the Injury Determination phase, 
the authorized official shall quantify for each resource determined to 
be injured and for which damages will be sought, the effect of the 
discharge or release in terms of the reduction from the baseline 
condition in the quantity and quality of services, as the phrase is used 
in this part, provided by the injured resource using the guidance 
provided in the Quantification phase of this part.
    (2) The Quantification phase consists of Sec. 11.70--general; Sec. 
11.71--service reduction quantification; Sec. 11.72--baseline services 
determination; and Sec. 11.73--resource recoverability analysis, of 
this part.
    (b) Purpose. The purpose of the Quantification phase is to quantify 
the effects of the discharge or release on the injured natural resources 
for use in determining the appropriate amount of compensation.
    (c) Steps in the Quantification phase. In the Quantification phase, 
the extent of the injury shall be measured, the baseline condition of 
the injured resource shall be estimated, the baseline services shall be 
identified, the recoverability of the injured resource shall be 
determined, and the reduction in services that resulted from the 
discharge or release shall be estimated.
    (d) Completion of Quantification phase. Upon completing the 
Quantification phase, the authorized official shall make a determination 
as to the reduction in services that resulted from the discharge or 
release. This Quantification Determination shall be used in the Damage 
Determination phase and shall be maintained as part of the Report of 
Assessment described in Sec. 11.90 of this part.



Sec. 11.71  Quantification phase--service reduction quantification.

    (a) Requirements. (1) The authorized official shall quantify the 
effects of a discharge of oil or release of a hazardous substance by 
determining the extent to which natural resource services have been 
reduced as a result of the injuries determined in the Injury 
Determination phase of the assessment.
    (2) This determination of the reduction in services will be used in 
the Damage Determination phase of the assessment.
    (3) Quantification will be done only for resources for which damages 
will be sought.
    (b) Steps. Except as provided in Sec. 11.71(f) of this part, the 
following steps are necessary to quantify the effects:
    (1) Measure the extent to which the injury demonstrated in the 
Injury Determination phase has occurred in the assessment area;
    (2) Measure the extent to which the injured resource differs from 
baseline conditions, as described in Sec. 11.72 of this part, to 
determine the change attributable to the discharge or release;
    (3) Determine the services normally produced by the injured 
resource, which are considered the baseline services or the without-a-
discharge-or-release condition as described in Sec. 11.72 of this part;
    (4) Identify interdependent services to avoid double counting in the 
Damage Determination phase and to discover significant secondary 
services that may have been disrupted by the injury; and
    (5) Measure the disruption of services resulting from the discharge 
or release, which is considered the change in services or the with-a-
discharge-or-release condition.
    (c) Contents of the quantification. The following factors should be 
included in the quantification of the effects of the discharge or 
release on the injured resource:

[[Page 260]]

    (1) Total area, volume, or numbers affected of the resource in 
question;
    (2) Degree to which the resource is affected, including 
consideration of subunits or subareas of the resource, as appropriate;
    (3) Ability of the resource to recover, expressed as the time 
required for restoration of baseline services as described in Sec. 
11.73 of this part;
    (4) Proportion of the available resource affected in the area;
    (5) Services normally provided by the resource that have been 
reduced as a result of the discharge or release; and
    (6) Factors identified in the specific guidance in paragraphs (h), 
(i), (j), (k), and (l) of this section dealing with the different kinds 
of natural resources.
    (d) Selection of resources, services, and methodologies. Specific 
resources or services to quantify and the methodology for doing so 
should be selected based upon the following factors:
    (1) Degree to which a particular resource or service is affected by 
the discharge or release;
    (2) Degree to which a given resource or service can be used to 
represent a broad range of related resources or services;
    (3) Consistency of the measurement with the requirements of the 
economic methodology to be used;
    (4) Technical feasibility, as that phrase is used in this part, of 
quantifying changes in a given resource or service at reasonable cost; 
and
    (5) Preliminary estimates of services at the assessment area and 
control area based on resource inventory techniques.
    (e) Services. In quantifying changes in natural resource services, 
the functions provided in the cases of both with- and without-a-
discharge-or-release shall be compared. For the purposes of this part, 
services include provision of habitat, food and other needs of 
biological resources, recreation, other products or services used by 
humans, flood control, ground water recharge, waste assimilation, and 
other such functions that may be provided by natural resources.
    (f) Direct quantification of services. The effects of a discharge or 
release on a resource may be quantified by directly measuring changes in 
services provided by vhe resource, instead of quantifying the changes in 
the resource itself, when it is determined that all of the following 
conditions are met:
    (1) The change in the services from baseline can be demonstrated to 
have resulted from the injury to the natural resource;
    (2) The extent of change in the services resulting from the injury 
can be measured without also calculating the extent of change in the 
resource; and
    (3) The services to be measured are anticipated to provide a better 
indication of damages caused by the injury than would direct 
quantification of the injury itself.
    (g) Statutory exclusions. In quantifying the effects of the injury, 
the following statutory exclusions shall be considered, as provided in 
sections 107 (f), (i), and (j) and 114(c) of CERCLA, that exclude 
compensation for damages to natural resources that were a result of:
    (1) An irreversible and irretrievable commitment of natural 
resources identified in an environmental impact statement or other 
comparable environmental analysis, and the decision to grant the permit 
or license authorizes such a commitment, and the facility was otherwise 
operating within the terms of its permit or license, so long as, in the 
case of damages to an Indian tribe occurring pursuant to a Federal 
permit or license, the issuance of that license or permit was not 
inconsistent with the fiduciary duty of the United States with respect 
to such Indian tribe; or
    (2) The damages and the release of a hazardous substance from which 
such damages resulted have occurred wholly before the enactment of 
CERCLA; or
    (3) The application of a pesticide product registered under the 
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. 135-135k; 
or
    (4) Any other federally permitted release, as defined in section 
101(10) of CERCLA; or
    (5) Resulting from the release or threatened release of recycled oil 
from a service station dealer as described in section 107(a) (3) or (4) 
of CERCLA if such recycled oil is not mixed with any other hazardous 
substance and is

[[Page 261]]

stored, treated, transported or otherwise managed in compliance with 
regulations or standards promulgated pursuant to section 3014 of the 
Solid Waste Disposal Act and other applicable authorities.
    (h) Surface water resources. (1) The area where the injured surface 
water resource differs from baseline shall be determined by determining 
the areal extent of oil or hazardous substances in the water or on the 
sediments.
    (2)(i) Areal variation in concentrations of the discharged or 
released substances dissolved in or floating on water, adhering to 
suspended sediments, or adhering to bed, bank, or shoreline sediments 
from exposed areas should be determined in sufficient detail to 
approximately map the boundary separating areas with concentrations 
above baseline from areas with concentrations equal to or less than 
baseline.
    (ii) The size, shape, and location of the plume may be estimated 
using time of travel and dispersion data obtained under Sec. 11.63 of 
this part, since plumes of dissolved or floating substances may be 
rapidly transported and dispersed in surface water.
    (3) Water and sediment samples may be collected and chemically 
analyzed and stage, water discharge, or tidal flux measurements made, as 
appropriate, to collect new data required by this section.
    (4)(i) Within the area determined in paragraph (h)(2) of this 
section to be above baseline, the services provided by the surface water 
or sediments that are affected should be determined. This determination 
may include computation of volumes of water or sediments affected, total 
areas of water or sediment affected, volume of water used from the 
affected surface water resource, or other appropriate measures.
    (ii) The services should be determined with consideration of 
potential effects on downstream or downcurrent resources during the 
recovery period, as determined in Sec. 11.73 of this part, resulting 
from transport of dissolved substances and of substances adhering to 
sediments.
    (i) Ground water resources. (1) The area where the injured ground 
water resource differs from baseline should be determined by determining 
the areal extent of oil or hazardous substances in water or geologic 
materials in the unsaturated zone and identified geohydrological units, 
which are aquifers or confining layers, within the assessment area.
    (2)(i) The lateral and vertical extent of discharged or released 
substances in the unsaturated zone, if it is known to be exposed, should 
be determined.
    (ii) The lateral and vertical extent of plumes within geohydrologic 
units known to be exposed should be determined. Concentrations of 
substances within and adjacent to each plume should be determined in 
sufficient detail to approximately locate the boundary separating areas 
with concentrations above baseline from areas with concentrations equal 
to or less than baseline.
    (3) Water or geologic materials may be sampled and chemically 
analyzed, or surface-geophysical techniques may be used for collecting 
new data required by this section. General verification of the plume 
boundaries by chemical analysis of selected water samples should be done 
if boundary locations are initially determined by surface-geophysical 
measurements.
    (4)(i) Within the area determined in paragraph (i)(2)(ii) of this 
section to be above baseline, the services provided by the ground water 
that is affected should be determined. This determination may include 
computation of the volume of water affected, volume of affected ground 
water pumped from wells, volume of affected ground water discharged to 
streams or lakes, or other appropriate measures.
    (ii) The services should be determined with consideration of 
potential enlargement of the plume during the recovery period, as 
determined in Sec. 11.73 of this part, resulting from ground water 
transport of the substances.
    (iii) The effects on the ground water resource during the recovery 
period resulting from potential remobilization of discharged or released 
substances that may be adhering, coating, or otherwise bonding to 
geologic materials should be considered.

[[Page 262]]

    (j) Air resources. The area where the injured air resource differs 
from baseline should be determined by determining the geographical area 
affected, the degree of impairment of services, and the period of time 
impairment occurred.
    (k) Geologic resources. The area where the injured geologic resource 
differs from baseline should be determined by determining:
    (1) The surface area of soil with reduced ability to sustain the 
growth of vegetation from the baseline level;
    (2) The surface area or volume of soil with reduced suitability as 
habitat for biota from the baseline level;
    (3) The volume of geologic resources that may act as a source of 
toxic leachate;
    (4) The tonnage of mineral resources whose access, development, or 
use is restricted as a result of the discharge or release.
    (l) Biological resources. (1) The extent to which the injured 
biological resource differs from baseline should be determined by 
analysis of the population or the habitat or ecosystem levels. Although 
it may be necessary to measure populations to determine changes in the 
habitats or ecosystems, and vice versa, the final result should be 
expressed as either a population change or a habitat or ecosystem change 
in order to prevent double counting in the economic analysis. This 
separation may be ignored only for resources that do not interact 
significantly and where it can be demonstrated that double counting is 
being avoided.
    (2) Analysis of population changes or habitat or ecosystem changes 
should be based upon species, habitats, or ecosystems that have been 
selected from one or more of the following categories:
    (i) Species or habitats that can represent broad components of the 
ecosystem, either as representatives of a particular ecological type, of 
a particular food chain, or of a particular service;
    (ii) Species, habitats, or ecosystems that are especially sensitive 
to the oil or hazardous substance and the recovery of which will provide 
a useful indicator of successful restoration; or
    (iii) Species, habitats, or ecosystems that provide especially 
significant services.
    (3) Analysis of populations, habitats, or ecosystems shall be 
limited to those populations, habitats, or ecosystems for which injury 
has been determined in the Injury Determination phase or those that can 
be linked directly through services to resources for which injury has 
been so determined. Documentation of the service link to the injured 
resource must be provided in the latter case.
    (4) Population, habitat, or ecosystem measurement methods that 
provide data that can be interpreted in terms of services must be 
selected. To meet this requirement, a method should:
    (i) Provide numerical data that will allow comparison between the 
assessment area data and the control area or baseline data;
    (ii) Provide data that will be useful in planning efforts for 
restoration, rehabilitation, replacement, and/or acquisition of 
equivalent resources, and in later measuring the success of those 
efforts, and, where relevant, will allow calculation of compensable 
value; and
    (iii) Allow correction, as applicable, for factors such as dispersal 
of organisms in or out of the assessment area, differential 
susceptibility of different age classes of organisms to the analysis 
methods and other potential systematic biases in the data collection.
    (5) When estimating population differences of animals, standard and 
widely accepted techniques, such as census, mark-recapture, density, and 
index methods, and other estimation techniques appropriate to the 
species and habitat shall be used. Frequencies of injury observed in the 
population shall be measured as applicable.
    (i) In general, methods used for estimates of wildlife populations 
should follow standard and widely accepted techniques such as those 
recommendations provided in the ``Wildlife Management Techniques 
Manual'' (4th edition, Wildlife Society, 1980, available from the 
Wildlife Society, 5410 Grosvenor Lane, Bethesda, MD 20814), including 
references cited and recommended in that manual. The specific technique 
used need not be cited in that manual, but should meet its 
recommendations

[[Page 263]]

for producing reliable estimates or indices.
    (ii) Measurement of age structures, life table statistics, or age 
structure models generally will not provide satisfactory measurement of 
changes due to a discharge of oil or release of a hazardous substance 
unless there is clear evidence that the oil or hazardous substance has 
differentially affected different age classes and there are reliable 
baseline age structure data available for the population being assessed.
    (iii) Mortality from single incidents may be used to estimate 
changes in populations only when there are available baseline population 
data for the area, so that the proportion lost can be estimated, and 
when corrections can be made for potential sampling biases, such as 
natural mortality and factors influencing distribution of carcasses and 
ability of investigators to find them. Specific techniques for measuring 
mortality include the following:
    (A) Fish mortality in freshwater areas may be estimated from counts 
of carcasses, using methods and guidelines for estimating numbers of 
fish killed contained in Part II (Fish-Kill Counting Guidelines) of the 
``Monetary Values of Freshwater Fish and Fish-Kill Counting 
Guidelines,'' American Fisheries Society Special Publication Number 13, 
1982 (incorporation by reference, see Sec. 11.18), including use of 
appropriate random sampling methods and tagged carcasses as identified 
and discussed in Part II of that publication.
    (B) The authorized official may adapt the techniques discussed in 
paragraph (l) (5) (iii) (A) of this section for counting dead aquatic 
birds or for counting marine or estuarine fish or birds. Such adaptation 
will require the documentation of the methods used to avoid sampling 
biases.
    (C) Fish mortality may also be estimated by use of an in situ 
bioassay technique that is similar to that identified in Sec. 
11.62(f)(4)(i)(C) of this part, if the oil or hazardous substance is 
still present at levels that resulted in injury and if appropriate 
instream controls can be maintained at control areas.
    (6) Plant populations may be measured using standard techniques, 
such as population density, species composition, diversity, dispersion, 
and cover,
    (7) Forest and range resources may be estimated by standard forestry 
and range management evaluation techniques.
    (8) Habitat quality may be measured using techniques such as the 
Habitat Evaluation Procedures (HEP) developed and used by the U.S. Fish 
and Wildlife Service.

[51 FR 27725, Aug. 1, 1986, as amended at 53 FR 5175, Feb. 22, 1988; 59 
FR 14283, Mar. 25, 1994]



Sec. 11.72  Quantification phase--baseline services determination.

    (a) Requirements. The authorized official shall determine the 
physical, chemical, and biological baseline conditions and the 
associated baseline services for injured resources at the assessment 
area to compare that baseline with conditions found in Sec. 11.71 of 
this part.
    (b) General guidelines. Baseline data shall be selected according to 
the following general guidelines:
    (1) Baseline data should reflect conditions that would have been 
expected at the assessment area had the discharge of oil or release of 
hazardous substances not occurred, taking into account both natural 
processes and those that are the result of human activities.
    (2) Baseline data should include the normal range of physical, 
chemical, or biological conditions for the assessment area or injured 
resource, as appropriate for use in the analysis in Sec. 11.71 of this 
part, with statistical descriptions of that variability. Causes of 
extreme or unusual value in baseline data should be identified and 
described.
    (3) Baseline data should be as accurate, precise, complete, and 
representative of the resource as the data used or obtained in Sec. 
11.71 of this part. Data used for both the baseline and services 
reduction determinations must be collected by comparable methods. When 
the same method is not used, comparability of the data collection 
methods must be demonstrated.
    (4) Baseline data collection shall be restricted to those data 
necessary for conducting the assessment at a reasonable cost. In 
particular, data collected should focus on parameters that are directly 
related to the injuries quantified

[[Page 264]]

in Sec. 11.71 of this part and to data appropriate and necessary for 
the Damage Determination phase.
    (5) The authorized official may use or authorize for use baseline 
data that are not expected to represent fully the baseline conditions, 
subject to the following requirements:
    (i) The authorized official shall document how the requirements of 
this paragraph are met:
    (ii) These substitute baseline data shall not cause the difference 
between baseline and the conditions in the assessment area to exceed the 
difference that would be expected if the baseline were completely 
measured; and
    (iii) The authorized official has determined that it is either not 
technically feasible or not cost-effective, as those phrases are used in 
this part, to measure the baseline conditions fully and that these 
baseline data are as close to the actual baseline conditions as can be 
obtained subject to these limitations.
    (c) Historical data. If available and applicable, historical data 
for the assessment area or injured resource should be used to establish 
the baseline. If a significant length of time has elapsed since the 
discharge or release first occurred, adjustments should be made to 
historical data to account for changes that have occurred as a result of 
causes other than the discharge or release. In addition to specialized 
sources identified in paragraphs (g) through (k) of this section, one or 
more of the following general sources of historical baseline data may be 
used:
    (1) Environmental Impact Statements or Environmental Assessments 
previously prepared for purposes of the National Environmental Policy 
Act (NEPA), 42 U.S.C. 4321-4361, similar documents prepared under other 
Federal and State laws, and background studies done for any of these 
documents;
    (2) Standard scientific and management literature sources 
appropriate to the resource;
    (3) Computerized data bases for the resource in question;
    (4) Public or private landholders in the assessment area or in 
neighboring areas;
    (5) Studies conducted or sponsored by natural resource trustees for 
the resource in question;
    (6) Federally sponsored research identified by the National 
Technical Information Service;
    (7) Studies carried out by educational institutions; and
    (8) Other similar sources of data.
    (d) Control areas. Where historical data are not available for the 
assessment area or injured resource, or do not meet the requirements of 
this section, baseline data should be collected from control areas. 
Historical data for a control area should be used if available and if 
they meet the guidelines of this section. Otherwise, the baseline shall 
be defined by field data from the control area. Control areas shall be 
selected according to the following guidelines, and both field and 
historical data for those areas should also conform to these guidelines:
    (1) One or more control areas shall be selected based upon their 
similarity to the assessment area and lack of exposure to the discharge 
or release;
    (2) Where the discharge or release occurs in a medium flowing in a 
single direction, such as a river or stream, at least one control area 
upstream or upcurrent of the assessment area shall be included, unless 
local conditions indicate such an area is inapplicable as a control 
area;
    (3) The comparability of each control area to the assessment area 
shall be demonstrated, to the extent technically feasible, as that 
phrase is used in this part;
    (4) Data shall be collected from the control area over a period 
sufficient to estimate normal variability in the characteristics being 
measured and should represent at least one full cycle normally expected 
in that resource;
    (5) Methods used to collect data at the control area shall be 
comparable to those used at the assessment area, and shall be subject to 
the quality assurance provisions of the Assessment Plan;
    (6) Data collected at the control area should be compared to values 
reported in the scientific or management literature for similar 
resources to demonstrate that the data represent a normal range of 
conditions; and

[[Page 265]]

    (7) A control area may be used for determining the baseline for more 
than one kind of resource, if sampling and data collection for each 
resource do not interfere with sampling and data collection for the 
other resources.
    (e) Baseline services. The baseline services associated with the 
physical, chemical, or biological baseline data shall be determined.
    (f) Other requirements. The methodologies in paragraphs (g) through 
(k) of this section shall be used for determining baseline conditions 
for specific resources in addition to following the general guidelines 
identified in paragraphs (a) through (e) of this section. If a 
particular resource is not being assessed for the purpose of the Damage 
Determination phase, and data on that resource are not needed for the 
assessment of other resources, baseline data for the resource shall not 
be collected.
    (g) Surface water resources. (1) This paragraph provides additional 
guidance on determining baseline services for surface water resources. 
The general guidance provided in paragraphs (a) through (f) of this 
section should be followed before beginning any work described in this 
paragraph.
    (2) Applicable and available historical data shall be gathered to 
determine baseline conditions for the surface water resource at the 
assessment area. If deemed inadequate for determining baseline 
conditions, such data shall be used to the extent technically feasible, 
as that phrase is used in this part, in designating the control areas 
described in paragraph (g)(3) of this section for the surface water 
resource determined to be injured.
    (3) Control areas shall be selected for the surface water resource 
subject to the general criteria in paragraph (d) of this section and 
additional criteria as follows:
    (i) For each injured stream or river reach, a control area shall be 
designated consisting of a stream or river reach of similar size, that 
is as near to the assessment area as practical and, if practical, that 
is upstream or upcurrent from the injured resource, such that the 
channel characteristics, sediment characteristics, and streamflow 
characteristics are similar to the injured resource and the water and 
sediments of the control area, because of location, have not been 
exposed to the discharge or release.
    (ii) For each injured standing water body, such as a marsh, pond, 
lake, bay, or estuary, a control area shall be designated consisting of 
a standing water body of similar size that is as near to the assessment 
area as practical, such that the sediment characteristics and inflow-
outflow characteristics of the control area are similar to the injured 
resource and the water and sediments of the control area, because of 
location, have not been exposed to the discharge or release.
    (4)(i) Within the control area locations shall be designated for 
obtaining samples of water and sediments.
    (ii) The water discharge, stage, or tidal flux shall be measured and 
representative water and sediments collected as follows:
    (A) Measure stage, water discharge, and tidal flux as appropriate at 
the same time that water and sediment samples are collected; and
    (B) Obtain comparable samples and measurements at both the control 
and assessment areas under similar hydraulic conditions.
    (iii) Measurement and samples shall be obtained as described in this 
paragraph in numbers sufficient to determine:
    (A) The approximate range of concentration of the substances in 
water and sediments;
    (B) The variability of concentration of the substances in water and 
sediments during different conditions of stage, water discharge, or 
tidal flux; and
    (C) The variability of physical and chemical conditions during 
different conditions of stage, water discharge, or tidal flux relating 
to the transport or storage of the substances in water and sediments.
    (5) Samples should be analyzed from the control area to determine 
the physical properties of the water and sediments, suspended sediment 
concentrations in the water, and concentrations of oil or hazardous 
substances in water or in the sediments. Additional chemical, physical, 
or biological tests may

[[Page 266]]

be made, if necessary, to obtain otherwise unavailable data for the 
characteristics of the resource and comparison with the injured resource 
at the assessment area.
    (6) In order to establish that differences between surface water 
conditions of the control and assessment areas are statistically 
significant, the median and interquartile range of the available data or 
the test results should be compared using the Mann-Whitney and ranked 
squares tests, respectively.
    (7) Additional tests may be made of samples from the control area, 
if necessary, to provide otherwise unavailable information about 
physical, chemical, or biochemical processes occurring in the water or 
sediments relating to the ability of the injured surface water resource 
to recover naturally.
    (h) Ground water resources. (1) This paragraph provides additional 
guidance on determining baseline services for ground water resources. 
The general guidance provided in paragraphs (a) through (f) of this 
section should be followed before beginning any work described in this 
paragraph.
    (2) Applicable and available historical data shall be gathered to 
determine baseline conditions for the ground water resource at the 
assessment area. If deemed inadequate for determining baseline 
conditions, such data shall be used to the extent technically feasible, 
as that phrase is used in this part, in designating the control areas 
described in paragraph (h)(3) of this section for the ground water 
resource determined to be injured.
    (3) A control area shall be designated subject to the general 
criteria in paragraph (d) of this section and as near to the assessment 
area as practical, such that, within the control area, geological 
materials, geohydrological units, and hydrologic conditions are similar 
to the assessment area, and ground water resources are not exposed to 
substances from the discharge or release.
    (4) Within the control area, wells shall be identified or drilled, 
designated as control wells, to obtain representative ground water 
samples for analysis. The location, depth, and number of control wells 
and the number of ground water samples collected should be sufficient to 
estimate the vertical and lateral variation in concentration of the 
substances in both the unsaturated zone and in ground water from 
geohydrologic units similar to units tested in the assessment area.
    (i) Representative water samples from each control well shall be 
collected and analyzed. The analyses should determine the physical and 
chemical properties of the ground water relating to the occurrence of 
oil or hazardous substances.
    (ii) If the oil or hazardous substances are commonly more 
concentrated on geologic materials than in ground water, representative 
samples of geologic materials from aquifers and the unsaturated zone as 
appropriate should be obtained and chemically analyzed. The location, 
depth, and number of these samples should be sufficient to determine the 
vertical and lateral variation in concentration of the oil or hazardous 
substances absorbing or otherwise coating geologic materials in the 
control area. These samples may also be analyzed to determine porosity, 
mineralogy, and lithology of geologic materials if these tests will 
provide otherwise unavailable information on storage or mobility of the 
oil or hazardous substances in the ground water resource.
    (5) In order to establish that differences between ground water 
conditions of the control and assessment areas are statistically 
significant, the median and interquartile range of available data or the 
test results from similar geohydrologic units should be compared using 
the Mann-Whitney and ranked squares test, respectively.
    (6) Additional tests may be made of samples from the control area, 
if necessary, to provide otherwise unavailable information about 
chemical, geochemical, or biological processes occurring in the ground 
relating to the ability of the injured ground water resource to recover 
naturally.
    (i) Air resources. (1) This paragraph provides additional guidance 
on determining baseline services for air resources. The general guidance 
provided in paragraphs (a) through (f) of this section should be 
followed before beginning any work described in this paragraph.

[[Page 267]]

    (2) Applicable and available historical data shall be gathered on 
ambient air quality and source emissions to determine baseline 
conditions for the air resource. These historical data may be used to 
determine baseline conditions if the data satisfy the general guidelines 
in paragraph (d) of this section and if all the following criteria are 
met:
    (i) The methodology used to obtain these historical data would 
detect the oil or hazardous substance at levels appropriate for 
comparison to the concentrations measured in Sec. 11.71 of this part;
    (ii) The effect of known or likely emission sources near the 
assessment area other than the source of the discharge or release can be 
identified or accounted for in the historical data; and
    (iii) The historical data show that normal concentrations of the oil 
or hazardous substance are sufficiently predictable that changes as a 
result of the discharge or release are likely to be detectable.
    (3) If historical data appropriate to determine baseline conditions 
at the assessment area are lacking, one or more control areas, as 
needed, shall be designated subject to the general criteria of paragraph 
(d) of this section and the following additional factors, which shall 
also be considered in establishing a monitoring schedule;
    (i) Applicable and available historical data shall be used to the 
extent technically feasible, as that phrase is used in this part, in 
designating control areas or, lacking historical data, the factors in 
paragraph (i)(3)(iii) of this section shall be considered;
    (ii) Control areas shall be spatially representative of the range of 
air quality and meteorological conditions likely to have occurred at the 
assessment area during the discharge or release into the atmosphere; and
    (iii) The following additional factors shall be considered:
    (A) The nature of the discharge or release and of potential 
alternative sources of the oil or hazardous substance, including such 
factors as existing sources, new sources, intermittent sources, mobile 
sources, exceptional events, trends, cycles, and the nature of the 
material discharged or released;
    (B) Environmental conditions affecting transport, such as wind speed 
and direction, atmospheric stability, temperature, humidity, solar 
radiation intensity, and cloud cover; and
    (C) Other factors, such as timing of the discharge or release, use 
patterns of the affected area, and the nature of the injury resulting 
from the discharge or release.
    (4)(i) The preferred measurement method is to measure air 
concentrations of the oil or hazardous substance directly using the same 
methodology employed in Sec. 11.71 of this part.
    (ii) Nonspecific or chemical compound class methodologies may be 
used to determine baseline generically only in situations where it can 
be demonstrated that measuring indicator substances will adequately 
represent air concentrations of other components in a complex mixture.
    (j) Geologic resources. (1) This paragraph provides additional 
guidance on determining baseline services for geologic resources. The 
general guidance provided in paragraphs (a) through (f) of this section 
should be followed before beginning any work described in this 
paragraph.
    (2) Applicable and available historical data shall be gathered to 
determine baseline conditions for the geologic resource at the 
assessment area. If deemed inadequate for determining baseline 
conditions, such data shall be used to the extent technically feasible, 
as that phrase is used in this part, in designating the control areas 
described in paragraph (j)(3) of this section for the geologic resource 
determined to be injured.
    (3) Control areas shall be selected for geologic resources subject 
to the general criteria in paragraph (d) of this section and additional 
criteria as follows:
    (i) Similarity of exposed soil or geologic material in the 
assessment area with the geologic resource in the control area should be 
the primary factor in selecting the control area. Other factors, 
including climate, depth of ground water, vegetation type and area 
covered, land slope and land area, and

[[Page 268]]

hydraulic gradients and spatial relation to source should be comparable 
to the assessment area.
    (ii) The control area shall be selected such that the geologic 
resource in the control area is not exposed to the discharge or release.
    (4)(i) A sufficient number of samples from unbiased, randomly 
selected locations in the control area shall be obtained in order to 
characterize the areal variability of the parameters measured. Each 
sample should be analyzed to determine the physical and chemical 
properties of the geologic materials relating to the occurrence of the 
oil or hazardous substance. Additional chemical, physical, or biological 
tests may be made, if necessary, to obtain otherwise unavailable data 
for the characterization and comparison with the injured resource at the 
assessment area.
    (ii) The mean and standard deviation of each parameter measured 
shall be used as the basis of comparison between the assessment and 
control areas.
    (k) Biological resources. (1) This paragraph provides additional 
guidance on determining baseline services for biological resources. The 
general guidance provided in paragraphs (a) through (f) of this section 
should be followed before beginning any work described in this 
paragraph.
    (2) Applicable and available historical data shall be gathered to 
determine baseline conditions for the biological resource at the 
assessment area and should include both population and habitat data if 
available. These data may be derived from the data sources identified in 
paragraph (c) of this section, as well as from the following:
    (i) Aerial photographs or maps showing distribution and extent of 
habitat types or other biological resources before the discharge or 
release;
    (ii) Biological specimens in systematic museum or herbarium 
collections and associated records, including labels and collectors' 
field notes; and
    (iii) Photographs showing the nature of the habitat before the 
discharge or release when the location and date are well documented.
    (3)(i) Control areas shall be selected for biological resources 
subject to the general criteria in paragraph (d) of this section and 
additional criteria as follows:
    (A) The control area shall be comparable to the habitat or ecosystem 
at the assessment area in terms of distribution, type, species 
composition, plant cover, vegetative types, quantity, and relationship 
to other habitats;
    (B) Physical characteristics of the control and assessment areas 
shall be similar; and
    (C) If more than one habitat or ecosystem type is to be assessed, 
comparable control areas should be established for each, or a control 
area should be selected containing those habitat types in a comparable 
distribution.
    (ii) To the extent they are available, historical data should be 
gathered and used for the control area. Lacking adequate historical data 
for both the control and assessment areas, the control areas shall be 
used for the following purposes, as appropriate to the quantification:
    (A) To measure baseline biota population levels or habitat or 
ecosystem quality, as discussed in Sec. 11.71(l) of this part; and
    (B) To measure the natural frequency, if any, of the injury being 
assessed in unaffected populations or to demonstrate the lack of that 
injury in unaffected populations if these have not been done for 
purposes of the Injury Determination, and if needed for purposes of the 
Quantification.
    (4) In addition, a control area should be used to collect control 
specimens, as needed, for the Injury Determination procedures.
    (5) The identity of species for which Damage Determinations will be 
made or that play an important role in the assessment shall be confirmed 
except in the case where collecting the specimens of a species is likely 
to compromise the restoration of the species. One or more of the 
following methods shall be used:
    (i) Specimens of the species shall be provided to an independent 
taxonomist or systematic biologist, who has access to a major systematic 
biology collection for that taxon, and who shall provide written 
confirmation of their identity to the species level;

[[Page 269]]

    (ii) A reference collection of specimens of the species, prepared 
and preserved in a way standard for systematic collections for that 
taxon, shall be maintained at least through final resolution of the 
damage action at which time it should be transferred to a major 
systematic biology collection; or
    (iii) In the case of a species where collecting specimens is likely 
to compromise the recovery or restoration of that species population, 
the authorized official shall determine and use an alternative method 
for confirming species identity that will be consistent with established 
management goals for that species.

[51 FR 27725, Aug. 1, 1986, as amended at 53 FR 5175, Feb. 22, 1988; 59 
FR 14283, Mar. 25, 1994]



Sec. 11.73  Quantification phase--resource recoverability analysis.

    (a) Requirement. The time needed for the injured resources to 
recover to the state that the authorized official determines services 
are restored, rehabilitated, replaced, and/or the equivalent have been 
acquired to baseline levels shall be estimated. The time estimated for 
recovery or any lesser period of time as determined in the Assessment 
Plan must be used as the recovery period for purposes of Sec. 11.38 and 
the Damage Determination phase, Sec. Sec. 11.80 through 11.84.
    (1) In all cases, the amount of time needed for recovery if no 
restoration, rehabilitation, replacement, and/or acquisition of 
equivalent resources efforts are undertaken beyond response actions 
performed or anticipated shall be estimated. This time period shall be 
used as the ``No Action-Natural Recovery'' period for purposes of Sec. 
11.82 and Sec. 11.84(g)(2)(ii) of this part.
    (2) The estimated time for recovery shall be included in possible 
alternatives for restoration, rehabilitation, replacement, and/or 
acquisition of equivalent resources, as developed in Sec. 11.82 of this 
part, and the data and process by which these recovery times were 
estimated shall be documented.
    (b) Restoration not feasible. If the authorized official determines 
that restoration will not be technically feasible, as that phrase is 
used in this part, the reasoning and data on which this decision is 
based shall be documented as part of the justification for any 
replacement alternatives that may be considered or proposed.
    (c) Estimating recovery time. (1) The time estimates required in 
paragraph (a) of this section shall be based on the best available 
information and where appropriate may be based on cost-effective models. 
Information gathered may come from one or more of the following sources, 
as applicable:
    (i) Published studies on the same or similar resources;
    (ii) Other data sources identified in Sec. 11.72 of this part;
    (iii) Experience of managers or resource specialists with the 
injured resource;
    (iv) Experience of managers or resource specialists who have dealt 
with restoration for similar discharges or releases elsewhere; and
    (v) Field and laboratory data from assessment and control areas as 
necessary.
    (2) The following factors should be considered when estimating 
recovery times:
    (i) Ecological succession patterns in the area;
    (ii) Growth or reproductive patterns, life cycles, and ecological 
requirements of biological species involved, including their reaction or 
tolerance to the oil or hazardous substance involved;
    (iii) Bioaccumulation and extent of oil or hazardous substances in 
the food chain;
    (iv) Chemical, physical, and biological removal rates of the oil or 
hazardous substance from the media involved, especially as related to 
the local conditions, as well as the nature of any potential degradation 
or decomposition products from the process including:
    (A) Dispersion, dilution, and volatilization rates in air, 
sediments, water, or geologic materials;
    (B) Transport rates in air, soil, water, and sediments;
    (C) Biological degradation, depuration, or decomposition rates and 
residence times in living materials;
    (D) Soil or sediment properties and adsorption-desorption rates 
between soil or sediment components and water or air;

[[Page 270]]

    (E) Soil surface runoff, leaching, and weathering processes; and
    (F) Local weather or climatological conditions that may affect 
recovery rates.

[51 FR 27725, Aug. 1, 1986, as amended at 59 FR 14283, Mar. 25, 1994; 61 
FR 20612, May 7, 1996]



Sec. 11.80  Damage determination phase--general.

    (a) Requirement. (1) The authorized official shall make his damage 
determination by estimating the monetary damages resulting from the 
discharge of oil or release of a hazardous substance based upon the 
information provided in the Quantification phase and the guidance 
provided in this Damage Determination phase.
    (2) The Damage Determination phase consists of Sec. 11.80--general; 
Sec. 11.81--Restoration and Compensation Determination Plan; Sec. 
11.82--alternatives for restoration, rehabilitation, replacement, and/or 
acquisition of equivalent resources; Sec. 11.83--cost estimating and 
valuation methodologies; and Sec. 11.84--implementation guidance, of 
this part.
    (b) Purpose. The purpose of the Damage Determination phase is to 
establish the amount of money to be sought in compensation for injuries 
to natural resources resulting from a discharge of oil or release of a 
hazardous substance. The measure of damages is the cost of (i) 
restoration or rehabilitation of the injured natural resources to a 
condition where they can provide the level of services available at 
baseline, or (ii) the replacement and/or acquisition of equivalent 
natural resources capable of providing such services. Damages may also 
include, at the discretion of the authorized official, the compensable 
value of all or a portion of the services lost to the public for the 
time period from the discharge or release until the attainment of the 
restoration, rehabilitation, replacement, and/or acquisition of 
equivalent of baseline.
    (c) Steps in the Damage Determination phase. The authorized official 
shall develop a Restoration and Compensation Determination Plan, 
described in Sec. 11.81 of this part. To prepare this Restoration and 
Compensation Determination Plan, the authorized official shall develop a 
reasonable number of possible alternatives for restoration, 
rehabilitation, replacement, and/or acquisition of equivalent resources 
and select, pursuant to the guidance of Sec. 11.82 of this part, the 
most appropriate of those alternatives; and identify the cost estimating 
and valuation methodologies, described in Sec. 11.83 of this part, that 
will be used to calculate damages. The guidance provided in Sec. 11.84 
of this part shall be followed in implementing the cost estimating and 
valuation methodologies. After public review of the Restoration and 
Compensation Determination Plan, the authorized official shall implement 
the Restoration and Compensation Determination Plan.
    (d) Completion of the Damage Determination phase. Upon completion of 
the Damage Determination phase, the type B assessment is completed. The 
results of the Damage Determination phase shall be documented in the 
Report of Assessment described in Sec. 11.90 of this part.

[59 FR 14283, Mar. 25, 1994, as amended at 73 FR 75266, Oct. 2, 2008]



Sec. 11.81  Damage determination phase--restoration and compensation determination plan.

    (a) Requirement. (1) The authorized official shall develop a 
Restoration and Compensation Determination Plan that will list a 
reasonable number of possible alternatives for (i) the restoration or 
rehabilitation of the injured natural resources to a condition where 
they can provide the level of services available at baseline, or (ii) 
the replacement and/or acquisition of equivalent natural resources 
capable of providing such services, and, where relevant, the compensable 
value; select one of the alternatives and the actions required to 
implement that alternative; give the rationale for selecting that 
alternative; and identify the methodologies that will be used to 
determine the costs of the selected alternative and, at the discretion 
of the authorized official, the compensable value of the services lost 
to the public associated with the selected alternative.
    (2) The Restoration and Compensation Determination Plan shall be of

[[Page 271]]

sufficient detail to evaluate the possible alternatives for the purpose 
of selecting the appropriate alternative to use in determining the cost 
of baseline restoration, rehabilitation, replacement, and/or acquisition 
of equivalent resources, and, where relevant, the compensable value.
    (b) The authorized official shall use the guidance in Sec. Sec. 
11.82, 11.83, and 11.84 of this part to develop the Restoration and 
Compensation Determination Plan.
    (c) The authorized official shall list the methodologies he expects 
to use to determine the costs of all actions considered within the 
selected alternative and, where relevant, the compensable value of the 
lost services through the recovery period associated with the selected 
alternative. The methodologies to use in determining costs and 
compensable value are described in Sec. 11.83 of this part.
    (d)(1) The Restoration and Compensation Determination Plan shall be 
part of the Assessment Plan developed in subpart B of this part. If 
existing data are not sufficient to develop the Restoration and 
Compensation Determination Plan at the time that the overall Assessment 
Plan is made available for public review and comment, the Restoration 
and Compensation Determination Plan may be developed later, after the 
completion of the Injury Determination or Quantification phases.
    (2) If the Restoration and Compensation Determination Plan is 
prepared later than the Assessment Plan, it shall be made available 
separately for public review by any identified potentially responsible 
party, other natural resource trustees, other affected Federal or State 
agencies or Indian tribes, and any other interested members of the 
public for a period of no less than 30 calendar days. Reasonable 
extensions may be granted as appropriate.
    (3) Comments received from any identified potentially responsible 
party, other natural resource trustees, other affected Federal or State 
agencies or Indian tribes, or any other interested members of the 
public, together with responses to those comments, shall be included as 
part of the Report of Assessment, described in Sec. 11.90 of this part.
    (4) Appropriate public review of the plan must be completed before 
the authorized official performs the methodologies listed in the 
Restoration and Compensation Determination Plan.
    (e) The Restoration and Compensation Determination Plan may be 
expanded to incorporate requirements from procedures required under 
other portions of CERCLA or the CWA or from other Federal, State, or 
tribal laws applicable to restoration, rehabilitation, replacement, and/
or acquisition of the equivalent of the injured resources or may be 
combined with other plans for related purposes, so long as the 
requirements of this section are fulfilled.

[59 FR 14283, Mar. 25, 1994, as amended at 73 FR 57266, Oct. 2, 2008]



Sec. 11.82  Damage determination phase--alternatives for restoration, rehabilitation, replacement, and/or acquisition of equivalent resources.

    (a) Requirement. The authorized official shall develop a reasonable 
number of possible alternatives for (i) the restoration or 
rehabilitation of the injured natural resources to a condition where 
they can provide the level of services available at baseline, or (ii) 
the replacement and/or acquisition of equivalent natural resources 
capable of providing such services. For each possible alternative 
developed, the authorized official will identify an action, or set of 
actions, to be taken singly or in combination by the trustee agency to 
achieve the baseline restoration, rehabilitation, replacement, and/or 
acquisition of equivalent natural resources. The authorized official 
shall then select from among the possible alternatives the alternative 
that he determines to be the most appropriate based on the guidance 
provided in this section.
    (b) Steps. (1) The authorized official shall develop a reasonable 
number of possible alternatives that would restore, rehabilitate, 
replace, and/or acquire the equivalent of the injured resources. Each of 
the possible alternatives may, at the discretion of the authorized 
official, consist of actions, singly or in combination, that would 
achieve those purposes.

[[Page 272]]

    (i) Restoration or rehabilitation actions are those actions 
undertaken to return injured resources to their baseline condition, as 
measured in terms of the physical, chemical, or biological properties 
that the injured resources would have exhibited or the services that 
would have been provided by those resources had the discharge of oil or 
release of the hazardous substance under investigation not occurred. 
Such actions would be in addition to response actions completed or 
anticipated pursuant to the National Contingency Plan (NCP).
    (ii) Replacement or acquisition of the equivalent means the 
substitution for injured resources with resources that provide the same 
or substantially similar services, when such substitutions are in 
addition to any substitutions made or anticipated as part of response 
actions and when such substitutions exceed the level of response actions 
determined appropriate to the site pursuant to the NCP.
    (iii) Possible alternatives are limited to those actions that (i) 
restore or rehabilitate the injured natural resources to a condition 
where they can provide the level of services available at baseline, or 
(ii) replace and/or acquire equivalent natural resources capable of 
providing such services.
    (2) Services provided by the resources. (i) In developing each of 
the possible alternatives, the authorized official shall list the 
proposed actions that would restore, rehabilitate, replace, and/or 
acquire the equivalent of the services provided by the injured natural 
resources that have been lost, and the period of time over which these 
services would continue to be lost.
    (ii) The authorized official shall identify services previously 
provided by the resources in their baseline condition in accordance with 
Sec. 11.72 of this part and compare those services with services now 
provided by the injured resources, that is, the with-a-discharge-or-
release condition. All estimates of the with-a-discharge-or-release 
condition shall incorporate consideration of the ability of the 
resources to recover as determined in Sec. 11.73 of this part.
    (c) Range of possible alternatives. (1) The possible alternatives 
considered by the authorized official that return the injured resources 
to their baseline level of services could range from intensive action on 
the part of the authorized official to return the various resources and 
services provided by those resources to baseline conditions as quickly 
as possible, to natural recovery with minimal management actions. 
Possible alternatives within this range could reflect varying rates of 
recovery, combinations of management actions, and needs for resource 
replacements or acquisitions.
    (2) An alternative considering natural recovery with minimal 
management actions, based upon the ``No Action-Natural Recovery'' 
determination made in Sec. 11.73(a)(1) of this part, shall be one of 
the possible alternatives considered.
    (d) Factors to consider when selecting the alternative to pursue. 
When selecting the alternative to pursue, the authorized official shall 
evaluate each of the possible alternatives based on all relevant 
considerations, including the following factors:
    (1) Technical feasibility, as that term is used in this part.
    (2) The relationship of the expected costs of the proposed actions 
to the expected benefits from the restoration, rehabilitation, 
replacement, and/or acquisition of equivalent resources.
    (3) Cost-effectiveness, as that term is used in this part.
    (4) The results of any actual or planned response actions.
    (5) Potential for additional injury resulting from the proposed 
actions, including long-term and indirect impacts, to the injured 
resources or other resources.
    (6) The natural recovery period determined in Sec. 11.73(a)(1) of 
this part.
    (7) Ability of the resources to recover with or without alternative 
actions.
    (8) Potential effects of the action on human health and safety.
    (9) Consistency with relevant Federal, State, and tribal policies.
    (10) Compliance with applicable Federal, State, and tribal laws.
    (e) A Federal authorized official shall not select an alternative 
that requires

[[Page 273]]

acquisition of land for Federal management unless the Federal authorized 
official determines that restoration, rehabilitation, and/or other 
replacement of the injured resources is not possible.

[59 FR 14284, Mar. 25, 1994, as amended at 73 FR 57266, Oct. 2, 2008; 73 
FR 65274, Nov. 3, 2008]



Sec. 11.83  Damage determination phase--use value methodologies.

    (a) General. (1) This section contains guidance and methodologies 
for determining: The costs of the selected alternative for (i) the 
restoration or rehabilitation of the injured natural resources to a 
condition where they can provide the level of services available at 
baseline, or (ii) the replacement and/or acquisition of equivalent 
natural resources capable of providing such services; and the 
compensable value of the services lost to the public through the 
completion of the baseline restoration, rehabilitation, replacement, 
and/or acquisition of equivalent natural resources.
    (2)(i) The authorized official shall select among the cost 
estimating and valuation methodologies set forth in this section, or 
methodologies that meet the acceptance criterion of either paragraph 
(b)(3) or (c)(3) of this section.
    (ii) The authorized official shall define the objectives to be 
achieved by the application of the methodologies.
    (iii) The authorized official shall follow the guidance provided in 
this section for choosing among the methodologies that will be used in 
the Damage Determination phase.
    (iv) The authorized official shall describe his selection of 
methodologies and objectives in the Restoration and Compensation 
Determination Plan.
    (3) The authorized official shall determine that the following 
criteria have been met when choosing among the cost estimating and 
valuation methodologies. The authorized official shall document this 
determination in the Report of the Assessment. Only those methodologies 
shall be chosen:
    (i) That are feasible and reliable for a particular incident and 
type of damage to be measured.
    (ii) That can be performed at a reasonable cost, as that term is 
used in this part.
    (iii) That avoid double counting or that allow any double counting 
to be estimated and eliminated in the final damage calculation.
    (iv) That are cost-effective, as that term is used in this part.
    (4) Factors that may be considered by trustees to evaluate the 
feasibility and reliability of methodologies can include:
    (i) Is the methodology capable of providing information of use in 
determining the restoration cost or compensable value appropriate for a 
particular natural resource injury?
    (ii) Does the methodology address the particular natural resource 
injury and associated service loss in light of the nature, degree, and 
spatial and temporal extent of the injury?
    (iii) Has the methodology been subject to peer review, either 
through publication or otherwise?
    (iv) Does the methodology enjoy general or widespread acceptance by 
experts in the field?
    (v) Is the methodology subject to standards governing its 
application?
    (vi) Are methodological inputs and assumptions supported by a 
clearly articulated rationale?
    (vii) Are cutting edge methodologies tested or analyzed sufficiently 
so as to be reasonably reliable under the circumstances?
    (5) All of the above factors may not be applicable to every case, 
and other factors may be considered to evaluate feasibility and 
reliability. The authorized official shall document any consideration of 
factors deemed applicable in the Report of Assessment.
    (b) Costs of restoration, rehabilitation, replacement, and/or 
acquisition of equivalent resources. (1) Costs for restoration, 
rehabilitation, replacement, and/or acquisition of equivalent resources 
are the amount of money determined by the authorized official as 
necessary to complete all actions identified in the selected alternative 
for restoration, rehabilitation, replacement, and/or acquisition of 
equivalent resources, as selected in the Restoration and Compensation 
Determination Plan of Sec. 11.81 of this part. Such costs shall include 
direct and indirect costs, consistent with the provisions of this 
section.

[[Page 274]]

    (i) Direct costs are those that are identified by the authorized 
official as attributed to the selected alternative. Direct costs are 
those charged directly to the conduct of the selected alternative 
including, but not limited to, the compensation of employees for the 
time and effort devoted to the completion of the selected alternative; 
cost of materials acquired, consumed, or expended specifically for the 
purpose of the action; equipment and other capital expenditures; and 
other items of expense identified by the authorized official that are 
expected to be incurred in the performance of the selected alternative.
    (ii) Indirect costs are costs of activities or items that support 
the selected alternative, but that cannot practically be directly 
accounted for as costs of the selected alternative. The simplest example 
of indirect costs is traditional overhead, e.g., a portion of the lease 
costs of the buildings that contain the offices of trustee employees 
involved in work on the selected alternative may, under some 
circumstances, be considered as an indirect cost. In referring to costs 
that cannot practically be directly accounted for, this subpart means to 
include costs that are not readily assignable to the selected 
alternative without a level of effort disproportionate to the results 
achieved.
    (iii) An indirect cost rate for overhead costs may, at the 
discretion of the authorized official, be applied instead of calculating 
indirect costs where the benefits derived from the estimation of 
indirect costs do not outweigh the costs of the indirect cost 
estimation. When an indirect cost rate is used, the authorized official 
shall document the assumptions from which that rate has been derived.
    (2) Cost estimating methodologies. The authorized official may 
choose among the cost estimating methodologies listed in this section or 
may choose other methodologies that meet the acceptance criterion in 
paragraph (b)(3) of this section. Nothing in this section precludes the 
use of a combination of cost estimating methodologies so long as the 
authorized official does not double count or uses techniques that allow 
any double counting to be estimated and eliminated in the final damage 
calculation.
    (i) Comparison methodology. This methodology may be used for unique 
or difficult design and estimating conditions. This methodology requires 
the construction of a simple design for which an estimate can be found 
and applied to the unique or difficult design.
    (ii) Unit methodology. This methodology derives an estimate based on 
the cost per unit of a particular item. Many other names exist for 
describing the same basic approach, such as order of magnitude, lump 
sum, module estimating, flat rates, and involve various refinements. 
Data used by this methodology may be collected from technical literature 
or previous cost expenditures.
    (iii) Probability methodologies. Under these methodologies, the cost 
estimate represents an ``average'' value. These methodologies require 
information which is called certain, or deterministic, to derive the 
expected value of the cost estimate. Expected value estimates and range 
estimates represent two types of probability methodologies that may be 
used.
    (iv) Factor methodology. This methodology derives a cost estimate by 
summing the product of several items or activities. Other terms such as 
ratio and percentage methodologies describe the same basic approach.
    (v) Standard time data methodology. This methodology provides for a 
cost estimate for labor. Standard time data are a catalogue of standard 
tasks typically undertaken in performing a given type of work.
    (vi) Cost- and time-estimating relationships (CERs and TERs). CERs 
and TERs are statistical regression models that mathematically describe 
the cost of an item or activity as a function of one or more independent 
variables. The regression models provide statistical relationships 
between cost or time and physical or performance characteristics of past 
designs.
    (3) Other cost estimating methodologies. Other cost estimating 
methodologies that are based upon standard and accepted cost estimating 
practices and are cost-effective are acceptable methodologies to 
determine the costs of restoration, rehabilitation, replacement,

[[Page 275]]

and/or acquisition of equivalent resources under this part.
    (c) Compensable value. (1) Compensable value is the amount of money 
required to compensate the public for the loss in services provided by 
the injured resources between the time of the discharge or release and 
the time the resources are fully returned to their baseline conditions, 
or until the resources are replaced and/or equivalent natural resources 
are acquired. The compensable value can include the economic value of 
lost services provided by the injured resources, including both public 
use and nonuse values such as existence and bequest values. Economic 
value can be measured by changes in consumer surplus, economic rent, and 
any fees or other payments collectable by a Federal or State agency or 
an Indian tribe for a private party's use of the natural resources; and 
any economic rent accruing to a private party because the Federal or 
State agency or Indian tribe does not charge a fee or price for the use 
of the resources. Alternatively, compensable value can be determined 
utilizing a restoration cost approach, which measures the cost of 
implementing a project or projects that restore, replace, or acquire the 
equivalent of natural resource services lost pending restoration to 
baseline.
    (i) Use value is the economic value of the resources to the public 
attributable to the direct use of the services provided by the natural 
resources.
    (ii) Nonuse value is the economic value the public derives from 
natural resources that is independent of any direct use of the services 
provided.
    (iii) Restoration cost is the cost of a project or projects that 
restore, replace, or acquire the equivalent of natural resource services 
lost pending restoration to baseline.
    (2) Valuation methodologies. The authorized official may choose 
among the valuation methodologies listed in this section to estimate 
appropriate compensation for lost services or may choose other 
methodologies provided that the methodology can satisfy the acceptance 
criterion in paragraph (c)(3) of this section. Nothing in this section 
precludes the use of a combination of valuation methodologies so long as 
the authorized official does not double count or uses techniques that 
allow any double counting to be estimated and eliminated in the final 
damage calculation.

------------------------------------------------------------------------
        Type of Methodology                      Description
------------------------------------------------------------------------
(i) Market price..................  The authorized official may
                                     determine the compensable value of
                                     the injured resources using the
                                     diminution in the market price of
                                     the injured resources or the lost
                                     services. May be used only if:
                                       (A) The natural resources are
                                        traded in the market; and
                                       (B) The authorized official
                                        determines that the market for
                                        the resources, or the services
                                        provided by the resources, is
                                        reasonably competitive.
(ii) Appraisal....................  The measure of compensable value is
                                     the difference between the with-
                                     and without-injury appraisal value
                                     determined by the comparable sales
                                     approach as described in the
                                     Uniform Appraisal Standards. Must
                                     measure compensable value, to the
                                     extent possible, in accordance with
                                     the ``Uniform Appraisal Standards
                                     for Federal Land Acquisition,''
                                     Interagency Land Acquisition
                                     Conference, Washington, DC, 1973
                                     (incorporated by reference, see
                                     Sec.  11.18).
(iii) Factor income (sometimes      May be used only if the injured
 referred to as the ``reverse        resources are inputs to a
 value added'' methodology).         production process, which has as an
                                     output a product with a well-
                                     defined market price. May be used
                                     to determine: (A) The economic rent
                                     associated with the use of
                                     resources in the production
                                     process; and (B) The in-place value
                                     of the resources.
(iv) Travel cost..................  May be used to determine a value for
                                     the use of a specific area. Uses an
                                     individual's incremental travel
                                     costs to an area to model the
                                     economic value of the services of
                                     that area. Compensable value of the
                                     area to the traveler is the
                                     difference between the value of the
                                     area with and without a discharge
                                     or release. Regional travel cost
                                     models may be used, if appropriate.
(v) Hedonic pricing...............  May be used to determine the value
                                     of nonmarketed resources by an
                                     analysis of private market choices.
                                     The demand for nonmarketed natural
                                     resources is thereby estimated
                                     indirectly by an analysis of
                                     commodities that are traded in a
                                     market.
(vi) Unit value/benefits transfer.  Unit values are preassigned dollar
                                     values for various types of
                                     nonmarketed recreational or other
                                     experiences by the public. Where
                                     feasible, unit values in the region
                                     of the affected resources and unit
                                     values that closely resemble the
                                     recreational or other experience
                                     lost with the affected resources
                                     may be used.
(vii) Contingent valuation........  Includes all techniques that set up
                                     hypothetical markets to directly
                                     elicit an individual's economic
                                     valuation of a natural resource.
                                     Can determine:
                                       (A) Use values and explicitly
                                        determine option and existence
                                        values; and
                                       (B) Lost use values of injured
                                        natural resources.

[[Page 276]]

 
(viii) Conjoint Analysis..........  Like contingent valuation, conjoint
                                     analysis is a stated preference
                                     method. However, instead of seeking
                                     to value natural resource service
                                     losses in strictly economic terms,
                                     conjoint analysis compares natural
                                     resource service losses that arise
                                     from injury to natural resource
                                     service gains produced by
                                     restoration projects.
(ix) Habitat Equivalency Analysis.  May be used to compare the natural
                                     resource services produced by
                                     habitat or resource-based
                                     restoration actions to natural
                                     resource service losses.
(x) Resource Equivalency Analysis.  Similar to habitat equivalency
                                     analysis. This methodology may be
                                     used to compare the effects of
                                     restoration actions on specifically
                                     identified resources that are
                                     injured or destroyed.
(xi) Random Utility Model.........  Can be used to: (A) Compare
                                     restoration actions on the basis of
                                     equivalent resource services
                                     provided; and (B) Calculate the
                                     monetary value of lost recreational
                                     services to the public.
------------------------------------------------------------------------

    (3) Other valuation methodologies. Other methodologies that measure 
compensable value in accordance with the public's willingness to pay for 
the lost service, or with the cost of a project that restores, replaces, 
or acquires services equivalent of natural resource services lost 
pending restoration to baseline in a cost-effective manner, are 
acceptable methodologies to determine compensable value under this part.

[51 FR 27725, Aug. 1, 1986, as amended at 53 FR 5175, Feb. 22, 1988; 59 
FR 14285, Mar. 25, 1994; 73 FR 57266, Oct. 2, 2008]



Sec. 11.84  Damage determination phase--implementation guidance.

    (a) Requirement. The authorized official should use the cost 
estimating and valuation methodologies in Sec. 11.83 of this part 
following the appropriate guidance in this section.
    (b) Determining uses. (1) Before estimating damages for compensable 
value under Sec. 11.83 of this part, the authorized official should 
determine the uses made of the resource services identified in the 
Quantification phase.
    (2) Only committed uses, as that phrase is used in this part, of the 
resource or services over the recovery period will be used to measure 
the change from the baseline resulting from injury to a resource. The 
baseline uses must be reasonably probable, not just in the realm of 
possibility. Purely speculative uses of the injured resource are 
precluded from consideration in the estimation of damages.
    (3)(i) When resources or resource services have mutually exclusive 
uses, the highest-and-best use of the injured resource or services, as 
determined by the authorized official, shall be used as the basis of the 
analyses required in this part. This determination of the highest-and-
best use must be consistent with the requirements of paragraph (b)(2) of 
this section.
    (ii) If the uses of the resource or service are not necessarily 
mutually exclusive, the sum of damages should be determined from 
individual services. However, the sum of the projected damages from 
individual services shall consider congestion or crowding out effects, 
if any, from the resulting projected total use of those services.
    (c) Double counting. (1) Double counting of damages should be 
avoided. Double counting means that a benefit or cost has been counted 
more than once in the damage assessment.
    (2) Natural resource damages are the residual to be determined by 
incorporating the effects, or anticipated effects, of any response 
actions. To avoid one aspect of double counting, the effects of response 
actions shall be factored into the analysis of damages. If response 
actions will not be completed until after the assessment has been 
initiated, the anticipated effects of such actions should be included in 
the assessment.
    (d) Uncertainty. (1) When there are significant uncertainties 
concerning the assumptions made in all phases of the assessment process, 
reasonable alternative assumptions should be examined. In such cases, 
uncertainty should be handled explicitly in the analysis and documented. 
The uncertainty should be incorporated in the estimates of benefits and 
costs.
    (2) To incorporate this uncertainty, the authorized official should 
derive a range of probability estimates for the important assumptions 
used to determine damages. In these instances, the damage estimate will 
be the net expected present value of the costs of restoration, 
rehabilitation, replacement,

[[Page 277]]

and/or acquisition of equivalent resources and, if relevant, compensable 
value.
    (e) Discounting. (1) Where possible, damages should be estimated in 
the form of an expected present value dollar amount. In order to perform 
this calculation, a discount rate must be selected.
    (2) The discount rate to be used is that specified in ``Office of 
Management and Budget (OMB) Circular A-94 Revised'' (dated March 27, 
1972, available from the Executive Office of the President, 
Publications, 726 Jackson Place, NW., Washington, DC 20503; ph: (202) 
395-7372).
    (f) Substitutability. In calculating compensable value, the 
authorized official should incorporate estimates of the ability of the 
public to substitute resource services or uses for those of the injured 
resources. This substitutability should be estimated only if the 
potential benefits from an increase in accuracy are greater than the 
potential costs.
    (g) Compensable value during the restoration, rehabilitation, 
replacement, and/or acquisition of equivalent resources. (1) In 
determining the amount of damages, the authorized official has the 
discretion to compute compensable value for the period of time required 
to achieve the restoration, rehabilitation, replacement, and/or 
acquisition of equivalent resources.
    (2) When calculating compensable value during the period of time 
required to achieve restoration, rehabilitation, replacement, and/or 
acquisition of equivalent resources, the authorized official should 
follow the procedures described below. The procedures need not be 
followed in sequence.
    (i) The ability of the injured resources to recover over the 
recovery period should be estimated. This estimate includes estimates of 
natural recovery rates as well as recovery rates that reflect management 
actions or resource acquisitions to achieve restoration, rehabilitation, 
replacement, and/or acquisition of equivalent resources.
    (ii) A recovery rate should be selected for this analysis that is 
based upon cost-effective management actions or resource acquisitions, 
including a ``No Action-Natural Recovery'' alternative. After the 
recovery rate is estimated, compensable value should be estimated.
    (iii) The rate at which the uses of the injured resources and their 
services will be restored through the restoration or replacement of the 
services should be estimated. This rate may be discontinuous, that is, 
no uses are restored until all, or some threshold level, of the services 
are restored, or continuous, that is, restoration or replacement of uses 
will be a function of the level and rate of restoration or replacement 
of the services. Where practicable, the supply of and demand for the 
restored services should be analyzed, rather than assuming that the 
services will be utilized at their full capacity at each period of time 
in the analysis. Compensable value should be discounted using the rate 
described in paragraph (e)(2) of this section. This estimate is the 
expected present value of uses obtained through restoration, 
rehabilitation, replacement, and/or acquisition of equivalent resources.
    (iv) The uses of the resource that would have occurred in the 
absence of the discharge or release should be estimated. This estimate 
should be done in accordance with the procedures in Sec. 11.72 of this 
part. These uses should be estimated over the same time period using the 
same discount rate as that specified in paragraph (e)(2) of this 
section. This amount is the expected present value of uses forgone.
    (v) Subtraction of the present value of uses obtained through 
restoration or replacement from the expected present value of uses 
forgone gives the amount of compensation that may be included, if 
positive, in a measure of damages.
    (h) Scope of the analysis. (1) The authorized official must 
determine the scope of the analysis in order to estimate compensable 
value.
    (2) In assessments where the scope of analysis is Federal, only the 
compensable value to the Nation as a whole should be counted.
    (3) In assessments where the scope of analysis is at the State 
level, only the compensable value to the State should be counted.
    (4) In assessments where the scope of analysis is at the tribal 
level, only the

[[Page 278]]

compensable value to the tribe should be counted.

[51 FR 27725, Aug. 1, 1986, as amended at 53 FR 5176, Feb. 22, 1988; 59 
FR 14286, Mar. 25, 1994]



                     Subpart F_Post-Assessment Phase



Sec. 11.90  What documentation must the authorized official prepare after completing the assessment?

    (a) At the conclusion of an assessment, the authorized official must 
prepare a Report of Assessment that consists of the Preassessment Screen 
Determination, the Assessment Plan, and the information specified in 
paragraphs (b) and (c) of this section as applicable.
    (b) When the authorized official has used a type A procedure, the 
Report of Assessment must include the information specified in subpart 
D.
    (c) When the authorized official has used type B procedures, the 
Report of Assessment must include all documentation supporting the 
determinations required in the Injury Determination phase, the 
Quantification phase, and the Damage Determination phase, and 
specifically including the test results of any and all methodologies 
performed in these phases. The preliminary estimate of damages shall be 
included in the Report of Assessment. The Restoration and Compensation 
Determination Plan, along with comments received during the public 
review of that Plan and responses to those comments, shall also be 
included in the Report of Assessment.

[51 FR 27725, Aug. 1, 1986, as amended at 59 FR 14287, Mar. 25, 1994; 61 
FR 20612, May 7, 1996]



Sec. 11.91  How does the authorized official seek recovery of the assessed damages from the potentially responsible party?

    (a) At the conclusion of the assessment, the authorized official 
must present to the potentially responsible party a demand in writing 
for the damages determined in accordance with this part and the 
reasonable cost of the assessment. [See Sec. 11.92(b) to determine how 
the authorized official must adjust damages if he or she plans to place 
recovered funds in a non-interest-bearing account.] The authorized 
official must deliver the demand in a manner that establishes the date 
of receipt. The demand shall adequately identify the Federal or State 
agency or Indian tribe asserting the claim, the general location and 
description of the injured resource, the type of discharge or release 
determined to have resulted in the injuries, and the damages sought from 
that party.
    (b) Report of assessment. The demand letter shall include the Report 
of Assessment as an attachment.
    (c) Rebuttable presumption. When performed by a Federal or State 
official in accordance with this part, the natural resource damage 
assessment and the resulting Damage Determination supported by a 
complete administrative record of the assessment including the Report of 
Assessment as described in Sec. 11.90 of this part shall have the force 
and effect of a rebuttable presumption on behalf of any Federal or State 
claimant in any judicial or adjudicatory administrative proceeding under 
CERCLA, or section 311 of the CWA.
    (d) Potentially responsible party response. The authorized official 
should allow at least 60 days from receipt of the demand by the 
potentially responsible party, with reasonable extensions granted as 
appropriate, for the potentially responsible party to acknowledge and 
respond to the demand, prior to filing suit. In cases governed by 
section 113(g) of CERCLA, the authorized official may include a notice 
of intent to file suit and must allow at least 60 days from receipt of 
the demand by the potentially responsible party, with reasonable 
extensions granted as appropriate, for the potentially responsible party 
to acknowledge and respond to the demand, prior to filing suit.

[53 FR 5176, Feb. 22, 1988, as amended at 59 FR 14287, Mar. 25, 1994; 61 
FR 20612, May 7, 1996; 73 FR 57268, Oct. 2, 2008]



Sec. 11.92  Post-assessment phase--restoration account.

    (a) Disposition of recoveries. (1) All sums (damage claim and 
assessment costs) recovered pursuant to section 107(f) of CERCLA or 
sections 311(f)(4) and (5) of the CWA by the Federal government acting 
as trustee shall be retained by the trustee, without further

[[Page 279]]

appropriation, in a separate account in the U.S. Treasury.
    (2) All sums (damage claim and assessment costs) recovered pursuant 
to section 107(f) of CERCLA, or sections 311(f)(4) and (5) of the CWA by 
a State government acting as trustee shall either:
    (i) Be placed in a separate account in the State treasury; or
    (ii) Be placed by the responsible party or parties in an interest 
bearing account payable in trust to the State agency acting as trustee.
    (3) All sums (damage claim and assessment costs) recovered pursuant 
to section 107(f) of CERCLA or sections 311(f)(4) and (5) of the CWA by 
an Indian tribe shall either:
    (i) Be placed in an account in the tribal treasury; or
    (ii) Be placed by the responsible party or parties in an interest 
bearing account payable in trust to the Indian tribe.
    (b) Adjustments. (1) In establishing the account pursuant to 
paragraph (a) of this section, the calculation of the expected present 
value of the damage amount should be adjusted, as appropriate, whenever 
monies are to be placed in a non-interest bearing account. This 
adjustment should correct for the anticipated effects of inflation over 
the time estimated to complete expenditures for the restoration, 
rehabilitation, replacement, and/or acquisition of equivalent resources.
    (2) In order to make the adjustment in paragraph (b)(1) of this 
section, the authorized official should adjust the damage amount by the 
rate payable on notes or bonds issued by the United States Treasury with 
a maturity date that approximates the length of time estimated to 
complete expenditures for the restoration, rehabilitation, replacement, 
and/or acquisition of equivalent resources.
    (c) Payments from the account. Monies that constitute the damage 
claim amount shall be paid out of the account established pursuant to 
paragraph (a) of this section only for those actions described in the 
Restoration Plan required by Sec. 11.93 of this part.

[53 FR 5176, Feb. 22, 1988, as amended at 59 FR 14287, Mar. 25, 1994]



Sec. 11.93  Post-assessment phase--restoration plan.

    (a) Upon determination of the amount of the award of a natural 
resource damage claim as authorized by section 107(a)(4)(C) of CERCLA, 
or sections 311(f)(4) and 311(f)(5) of the CWA, the authorized official 
shall prepare a Restoration Plan as provided in section 111(i) of 
CERCLA. The plan shall be based upon the Restoration and Compensation 
Determination Plan described in Sec. Sec. 11.81 of this part. The Plan 
shall describe how the monies will be used to address natural resources, 
specifically what restoration, rehabilitation, replacement, or 
acquisition of the equivalent resources will occur. When damages for 
compensable value have been awarded, the Plan shall also describe how 
monies will be used to address the services that are lost to the public 
until restoration, rehabilitation, replacement, and/or acquisition of 
equivalent resources is completed. The Restoration Plan shall be 
prepared in accordance with the guidance set forth in Sec. 11.81 of 
this part.
    (b) No restoration activities shall be conducted by Federal agencies 
that would incur ongoing expenses in excess of those that would have 
been incurred under baseline conditions and that cannot be funded by the 
amount included in the separate account established pursuant to Sec. 
11.92(a) of this part unless such additional monies are appropriated 
through the normal appropriations process.
    (c) Modifications may be made to the Restoration Plan as become 
necessary as the restoration proceeds. Significant modifications shall 
be made available for review by any responsible party, any affected 
natural resource trustees, other affected Federal or State agencies or 
Indian tribes, and any other interested members of the public for a 
period of at least 30 days, with reasonable extensions granted as 
appropriate, before tasks called for in the modified plan are begun.
    (d) If the measure of damages was determined in accordance with 
subpart D, the restoration plan may describe actions to be taken that 
are to be financed from more than one damage award, so long as the 
actions are intended to address the same or similar

[[Page 280]]

resource injuries as those identified in each of the subpart D 
assessment procedures that were the basis of the awards.

[51 FR 27725, Aug. 1, 1986, as amended at 52 FR 9100, Mar. 20, 1987; 53 
FR 5176, Feb. 22, 1988; 59 FR 14287, Mar. 25, 1994]



 Sec. Appendix I to Part 11--Methods for Estimating the Areas of Ground 
    Water and Surface Water Exposure During the Preassessment Screen

    This appendix provides methods for estimating, as required in Sec. 
11.25 of this part, the areas where exposure of ground water or surface 
water resources may have occurred or are likely to occur. These methods 
may be used in the absence of more complete information on the ground 
water or surface water resources.

                              Ground Water

    The longitudinal path length (LPL) factors in table 1 are to be 
applied in estimating the area potentially exposed downgradient of the 
known limit of exposure or of the boundary of the site. Estimates of 
lateral path width (LPW) are to be used when the LPW exceeds the width 
of the plume as determined from available data, or when the width of the 
plume at the boundary of the site is estimated as less than the LPW. In 
the absence of data to the contrary, the largest values of LPL and LPW 
consistent with the geohydrologic data available shall be used to make 
the estimates required in the preassessment screen. An example 
computation using the LPL and LPW factors follows table 1.

            Table 1--Factors for Estimation of Areas Potentially Exposed Via the Ground Water Pathway
----------------------------------------------------------------------------------------------------------------
                                                Hydraulic
                               Hyd. conductiv-  gradient   Time since       Longitudinal
         Aquifer type            ity/porosity   estimate     release         path length  Lateral path width (in
                               factor (miles/    (feet/     began (in         (in feet)            feet)
                                    year)         mile)      years)
----------------------------------------------------------------------------------------------------------------
Sand.........................              50  x.........  x.........   =   ............  LPW=0.2LPL
Sand+silt....................             0.5  x.........  x.........   =   ............  LPW=0.3LPL
Gravel.......................            6000  x.........  x.........   =   ............  LPW=0.2LPL
Sandstone....................            0.01  x.........  x.........   =   ............  LPW=0.4LPL
Shale........................          3x10-6  x.........  x.........   =   ............  LPW=0.8LPL
Karst Limestone or Dolomite..              10  x.........  x.........   =   ............  LPW=0.2LPL
Limestone or Dolomite........            0.01  x.........  x.........   =   ............  LPW=0.4LPL
Fractured Crystalline Rocks..             0.3  x.........  x.........   =   ............  LPW=0.3LPL
Dense Crystalline Rocks......          1x10-5  x.........  x.........   =   ............  LPW=0.8LPL
----------------------------------------------------------------------------------------------------------------

 Example of Computation for Estimating the Area Potentially Exposed via 
                          Ground Water Pathway

    A release of hazardous substances occurs from a facility located in 
a glacial valley. Available data indicate the release may have occurred 
intermittently over a period of almost 1 year, although only one well 
about 300 feet downgradient of the facility boundary had detectable 
quantities of contaminants. The contaminated well is screened in the 
water table aquifer composed of gravelly sands. The facility boundary 
nearest the contaminated well is almost 3,000 feet in length, but a 
review of available data determined the release is probably localized 
along a 500-foot section of the boundary where a stream leaves the 
facility. Available water table data indicate hydraulic gradients in the 
valley range from 0.005 feet/mile up to 0.25 feet/mile near pumping 
wells. No pumping wells are known to be located near the release, and a 
mean hydraulic gradient of 0.1 feet/mile is estimated in the vicinity of 
the release site. Using the gravel factor from table 1, the LPL and LPW 
are estimated:

6000x0.1x1=600 feet (LPL)
 and
600x0.2=120 feet (LPW).

Since the estimated LPW (120 feet) is less than the plume width (500 
feet) determined from other available data, the greater number is used 
to compute the area potentially exposed:
    (1) 600 feetx500 feet=300,000 square feet (about 6.9 acres). The 
available information allows an initial determination of area 
potentially exposed via the ground water pathway to be estimated:
    (2) 300 feetx500 feet=150,000 square feet (about 3.5 acres).
    The total area potentially exposed is the sum of (1) and (2):

6.9+3.5=10.4 acres.

[[Page 281]]

                              Surface Water

    The area of surface water resources potentially exposed should be 
estimated by applying the principles included in the examples provided 
below.

    Example 1: A release occurs and most of the oil or hazardous 
substance enters a creek, stream, or river instantaneously or over a 
short time interval (pulse input is assumed). The maximum concentration 
at any downstream location, past the initial mixing distance, is 
estimated by:

Cp=25(Wi)/(T\0.7\ Q)


where Cp is the peak concentration, in milligrams/liter (mg/
L),

Wi is the total reported (or estimated) weight of the 
undiluted substance released, in pounds,
Q is the discharge of the creek, stream, or river, in cubic feet/second, 
and
T is the time, in hours, when the peak concentration is estimated to 
reach a downstream location L, in miles from the entry point.

    The time T may be estimated from:

T=1.5(L)/Vs

where T and L are defined as above and

Vs is the mean stream velocity, in feet per second.

The mean stream velocity may be estimated from available discharge 
measurements or from estimates of slope of the water surface S (foot 
drop per foot distance downstream) and estimates of discharge Q (defined 
above) using the following equations:

for pool and riffle reaches Vs=0.38(Q\0.40\)(S\0.20\), or
for channel-controlled reaches Vs=2.69(Q\0.26\)(S\0.28\).

Estimates of S may be made from the slope of the channel, if necessary.
    As the peak concentrations become attenuated by downstream 
transport, the plume containing the released substance becomes 
elongated. The time the plume might take to pass a particular point 
downstream may be estimated using the following equation:

Tp=9.25x10\6\ Wi/(QCp)

where

Tp is the time estimate, in hours, and Wi, 
Cp, and Q are defined above.

    Example 2: A release occurs and most of the oil or hazardous 
substance enters a creek, stream, or river very slowly or over a long 
time period (sustained input assumed). The maximum concentration at any 
downstream location, past the initial mixing distance, is estimated by:

Cp=C(q)/(Q+


where Cp and Q are defined above,
C is the average concentration of the released substance during the 
period of release, in mg/L, and
q is the discharge rate of the release into the streamflow, in cubic 
feet/second.

For the above computations, the initial mixing distance may be estimated 
by:

Lm=(1.7x10-5)Vs B\2\/(D\1.5\ S\0.5\)

where

Lm is the initial mixing distance, in miles,
Vs is defined above,
B is the average stream surface width, in ft,
D is the mean depth of the stream, in ft, and
S is the estimated water-surface slope, in ft/ft.
    Example 3: A release occurs and the oil or hazardous substance 
enters a pond, lake, reservoir, or coastal body of water. The 
concentration of soluble released substance in the surface water body 
may be estimated by:

Cp=CVc/(Vw+Vc)


where

Cp and C are defined above,
Vc is the estimated total volume of substance released, in 
volumetric units, and
Vw is the estimated volume of the surface water body, in the 
same volumetric units used for Vc.

[51 FR 27725, Aug. 1, 1986, as amended at 52 FR 9100, Mar. 20, 1987]



Sec. Appendix II to Part 11--Format for Data Inputs and Modifications to 
                              the NRDAM/CME

    This appendix specifies the format for data inputs and modifications 
to the NRDAM/CME under Sec. 11.41. Consult the back of this appendix 
for definitions.

                    Starting Point for the NRDAM/CME

    The NRDAM/CME begins its calculations at the point that the released 
substance entered water in an area represented by its geographic 
database. Any water within the geographic boundaries of the NRDAM/CME is 
a ``coastal or marine environment.'' The authorized official must 
determine all data inputs and modifications as of the time and location 
that the released substance entered a coastal or marine environment. In 
the case of a release that began in water in an area within the 
boundaries of the NRDAM/CME, this point will be the same as the point of 
the release. However, for releases that begin on land or that begin 
outside the boundaries of the NRDAM/CME, this point will not be the 
point of the release but rather the point at which the released 
substance migrates into a coastal or marine environment.

                          Required Data Inputs

    Documentation of the source of the data inputs; and

[[Page 282]]

                          Identity of Substance

    For release of single substance:
    Name of the substance that entered a coastal or marine environment 
as it appears in Table 7.1, Volume I of the NRDAM/CME technical document 
(incorporated by reference, see Sec. 11.18).
    For releases of two or more substances or a release of a mixture of 
two or more substances:
    Name of only one of the substances that entered a coastal or marine 
environment as it appears in Table 7.1, Volume I of the NRDAM/CME 
technical document.

                             Mass or Volume

    For release of single substance:
    Mass or volume of identified substance that entered a coastal or 
marine environment stated in tonnes, barrels, gallons, liters, pounds, 
or kilograms.
    For releases of two or more substances or a release of a mixture of 
two or more substances:
    Mass or volume of the one identified substance (rather than total 
mass) that entered a coastal or marine environment stated in tonnes, 
barrels, gallons, liters, pounds, or kilograms.

                                Duration

    Length of time over which the identified substance entered a coastal 
or marine environment stated in hours.

                                  Time

    Year, month, day, and hour when the identified substance first 
entered a coastal or marine environment.

                                Location

    Latitude and longitude, stated in degrees and decimal minutes, where 
the identified substance entered a coastal or marine environment.

                                  Winds

    At least one set of data on prevailing wind conditions for each day 
of the 30-day period beginning 24 hours before the identified substance 
entered a coastal or marine environment. Each set must include:
    Wind velocity stated in knots or meters per second; and
    Corresponding wind direction stated in the degree angle of the 
wind's origin.

[One possible source of information is the National Climatic Data 
Center, Asheville, NC (703) 271-4800.]

                            Response Actions

    If removed from water surface:
    A rectangular geographic area encompassing the surface water area 
over which the released substance was likely to have spread, stated in 
terms of the northern- and southern-most latitude, and the eastern- and 
western-most longitude;
    One or more time frames for removal stated in terms of the number of 
days and hours after the identified substance entered a coastal or 
marine environment that removal began and ended; and
    For each time frame, volume of the identified substance removed from 
the water surface (not the total volume of contaminated water or 
sediments removed) stated in barrels, gallons, or cubic meters.
    If removed from shoreline:
    A rectangular geographic area encompassing the shoreline area over 
which the released substance was likely to have spread, stated in terms 
of the northern- and southern-most latitude, and the eastern- and 
western-most longitude;
    One or more time frames for removal stated in terms of the number of 
days and hours after the identified substance entered a coastal or 
marine environment that removal began and ended; and
    For each time frame, volume of the identified substance removed (not 
the total volume of contaminated water or sediments removed) stated in 
barrels, gallons, or cubic meters.

                                Closures

    Documentation that the closure was ordered by an appropriate agency 
as a result of the release;
    Province(s) in which closure occurred; and
    For beaches:
    Whether the beach was Federal or State (including municipal or 
county);
    Number of days of closure stated by calendar month; and
    Length of shoreline closed, stated in kilometers, for each month in 
which closure occurred.
    For fisheries and shellfish harvest areas:
    Whether area closed was seaward open water, landward open water, or 
structured;
    Number of days of closure; and
    Area closed stated in square kilometers.
    For furbearer hunting or trapping areas and waterfowl hunting areas:
    Number of days of closure; and
    Area closed stated in square kilometers.

                         Implicit Price Deflator

    Quarterly implicit price deflator for the Gross National Product 
(base year 1992) for the quarter in which the identified substance 
entered a coastal or marine environment. [See the Survey of Current 
Business, published by the U.S. Department of Commerce/Bureau of 
Economic Analysis, 1441 L Street, NW, Washington, D.C., 20230, (202) 
606-9900.]

[[Page 283]]

                                Currents

    For a rectangular geographic area encompassing the area affected by 
the release stated in terms of the northern- and southern-most latitude, 
and the eastern- and western-most longitude:
    At least one set of data concerning background (mean) current 
consisting of--
    An east-west (U) velocity stated in centimeters per second or knots;
    A north-south (V) velocity stated in centimeters per second or 
knots; and
    Latitude and longitude of the origin of the U and V velocity 
components.
    At least one set of data concerning tidal current at time of flood 
stage (i.e., rising tide) consisting of--
    An east-west (U) velocity stated in centimeters per second or knots;
    A north-south (V) velocity stated in centimeters per second or 
knots; and
    Latitude and longitude of the origin of the U and V velocity 
components.

[Possible sources of information are: the National Ocean Service, U.S. 
Department of Commerce, Riverdale, MD (310) 436-6990; and the Eldridge 
Tide and Pilot Book, Robert Eldridge White Publisher, Boston, MA (617) 
742-3045.]

                                  Tides

    Hour of high tide on the day that the identified substance entered a 
coastal or marine environment;
    Tidal range at point that the identified substance entered a coastal 
or marine environment stated in meters; and
    Whether the tide in the area affected by the release is diurnal 
(i.e., completes one full cycle every day) or semi-diurnal (i.e., 
completes two full cycles every day).

            Modifications to the NRDAM/CME Databases (if Any)

    Documentation of the source of the modification; and
    For air temperature:
    Air temperature, stated in degrees Celsius, assigned by the NRDAM/
CME at the point that the identified substance entered a coastal or 
marine environment (see Table III.3.2, Volume III of the NRDAM/CME 
technical document); and
    Substitute air temperature stated in degrees Celsius.
    For water temperature at the surface:
    Water temperature at the surface, stated in degrees Celsius, 
assigned by the NRDAM/CME at the point that the identified substance 
entered a coastal or marine environment (see Table III.3.3, Volume III 
of the NRDAM/CME technical document); and
    Substitute water temperature stated in degrees Celsius.
    For total suspended sediment concentration:
    Total suspended sediment concentration, stated in milligrams per 
liter, assigned by the NRDAM/CME at the point that the identified 
substance entered a coastal or marine environment (see Section 3, Volume 
I of the NRDAM/CME technical document); and
    Substitute suspended sediment concentration stated in milligrams per 
liter.
    For mean settling velocity of suspended solids:
    Mean settling velocity of suspended sediments, stated in meters per 
day, assigned by the NRDAM/CME at the point that the identified 
substance entered a coastal or marine environment (see Section 3, Volume 
I of the NRDAM/CME technical document); and
    Substitute suspended sediment concentration stated in milligrams per 
liter.
    For habitat type:
    Latitude and longitude bounds of area for which the habitat type is 
being modified;
    Habitat type assigned by the NRDAM/CME (see Section 3.4, Volume III 
of the NRDAM/CME technical document); and
    Substitute habitat type.
    For releases in Alaska, if the authorized official leaves the ice 
modeling function off, he or she must provide documentation that ice was 
absent at the site of the release.

                               Definitions

    Background (mean) current--net long-term current flow (i.e., one 
direction only), attributable to forces such as winds, river flow, water 
density, and tides, that remains when all the oscillatory (tidal) 
components have been removed either mathematically or by measurement 
techniques.
    Landward open water--a body of water that does not contain 
vegetation (e.g., wetland, seagrass, or kelp) or invertebrate reef 
(e.g., coral reef) and is classified as ``landward'' in Table 6.2, 
Volume I of the NRDAM/CME technical document.
    Province--one of the geographic areas delineated in Table 6.1, 
Volume I of the NRDAM/CME technical document.
    Seaward open water--a body of water that does not contain vegetation 
(e.g., wetlands, seagrass, or kelp) or invertebrate reef (e.g., coral 
reef) and is classified as ``seaward'' in Table 6.2, Volume I of the 
NRDAM/CME technical document.
    Structured--in an area that contains vegetation (e.g., wetlands, 
seagrass, or kelp) or invertebrate reef (e.g., coral reef).
    Tidal current--currents caused by alternating rise and fall of the 
sea level due to the gravitational forces between the earth, moon, and 
sun.
    Tidal range--difference between the highest and lowest height of the 
tide.

[61 FR 20612, May 7, 1996]

[[Page 284]]



 Sec. Appendix III to Part 11--Format for Data Inputs and Modifications 
                            to the NRDAM/GLE

    This appendix specifies the format for data inputs and modifications 
to the NRDAM/GLE under Sec. 11.41. Consult the back of this appendix 
for definitions.

                            Point of Analysis

    The NRDAM/GLE begins its calculations at the point that the released 
substance entered water in an area represented by its geographic 
database. Any water within the geographic boundaries of the NRDAM/GLE is 
a ``Great Lakes environment.'' The authorized official must determine 
all data inputs and modifications as of the time and location that the 
released substance entered a Great Lakes environment. In the case of a 
release that began in water in an area within the boundaries of the 
NRDAM/GLE, this point will be the same as the point of the release. 
However, for releases that begin on land or that begin outside the 
boundaries of the NRDAM/GLE, this point will not be the point of the 
release but rather the point at which the released substance migrates 
into a Great Lakes environment.

                          Required Data Inputs

    Documentation of source of data inputs; and

                          Identity of Substance

    For release of single substance:
    Name of the released substance that entered a Great Lakes 
environment as it appears in Table 7.1, Volume I of the NRDAM/GLE 
technical document (incorporated by reference, see Sec. 11.18).
    For releases of two or more substances or a release of a mixture of 
two or more substances:
    Name of only one of the released substances that entered a Great 
Lakes environment as it appears in Table 7.1, Volume I of the NRDAM/GLE 
technical document.

                             Mass or Volume

    For releases of single substance:
    Mass or volume of identified substance that entered a Great Lakes 
environment stated in tonnes, barrels, gallons, liters, pounds, or 
kilograms.
    For releases of two or more substances or a release of a mixture of 
two or more substances:
    Mass or volume of the one identified substance (rather than total 
mass) that entered a Great Lakes environment stated in tonnes, barrels, 
gallons, liters, pounds, or kilograms.

                                Duration

    Length of time over which the identified substance entered a Great 
Lakes environment stated in hours.

                                  Time

    Year, month, day, and hour when the identified substance first 
entered a Great Lakes environment.

                                Location

    Latitude and longitude, stated in degrees and decimal minutes, where 
the identified substance entered a Great Lakes environment.

                                  Winds

    At least one set of data on prevailing wind conditions for each day 
of the 30-day period beginning 24 hours before the identified substance 
entered a Great Lakes environment. Each set must include:
    Wind velocity stated in knots or meters per second; and 
Corresponding wind direction stated in the degree angle of the wind's 
origin.

[One possible source of information is the National Climatic Data 
Center, Asheville, NC (703) 271-4800.]

                            Response Actions

    Percentage of identified substance removed from water surface, 
bottom sediments, and shoreline; and
    For each medium cleaned (water surface, bottom sediments, or 
shoreline), the number of days after the identified substance entered a 
Great Lakes environment that removal began and ended.

                                Closures

    Documentation that the closure was ordered by an appropriate agency 
as a result of the release; and
    For boating areas:
    Number of weekend days of closure stated by calendar month;
    Number of weekday days of closure stated by calendar month; and
    Area closed stated in square kilometers.
    For beaches:
    Whether the beach was Federal or State (including municipal or 
county);
    Number of days of closure stated by calendar month; and
    Length of shoreline closed stated in meters.
    For fisheries:
    Whether area closed was an offshore, nearshore, or wetland fishery;
    Number of days of closure; and
    Area closed stated in square kilometers.
    For furbearer hunting or trapping areas and waterfowl hunting areas:
    Number of days of closure; and

[[Page 285]]

    Area closed stated in square kilometers.

                         Implicit Price Deflator

    Quarterly implicit price deflator for the Gross National Product 
(base year 1992) for the quarter in which the identified substance 
entered a Great Lakes environment. [See the Survey of Current Business, 
published by the U.S. Department of Commerce/Bureau of Economic 
Analysis, 1441 L Street, NW, Washington, D.C., 20230, (202) 606-9900.]

            Modifications to the NRDAM/GLE Databases (if Any)

    Documentation of the source of the modifications; and
    For air temperature:
    Air temperature, stated in degrees Celsius, assigned by the NRDAM/
GLE at the point that the identified substance entered a Great Lakes 
environment (see Table III.6.1, Volume III of the NRDAM/GLE technical 
document); and
    Substitute air temperature stated in degrees Celsius.
    For water temperature at the surface:
    Water temperature at the surface, stated in degrees Celsius, 
assigned by the NRDAM/GLE at the point that the identified substance 
entered a Great Lakes environment (see Table III.6.2.6, Volume III of 
the NRDAM/GLE technical document); and
    Substitute water temperature stated in degrees Celsius.
    For total suspended sediment concentration:
    Total suspended sediment concentration, stated in milligrams per 
liter, assigned by the NRDAM/GLE at the point that the identified 
substance entered a Great Lakes environment (see Section 3, Volume I of 
the NRDAM/GLE technical document); and
    Substitute suspended sediment concentration stated in milligrams per 
liter.
    For mean settling velocity of suspended solids:
    Mean settling velocity of suspended sediments, stated in meters per 
day, assigned by the NRDAM/GLE at the point that the identified 
substance entered a Great Lakes environment (see Section 3, Volume I of 
the NRDAM/GLE technical document); and
    Substitute suspended sediment concentration stated in milligrams per 
liter.
    For habitat type:
    Latitude and longitude bounds of area for which the habitat type is 
being modified;
    Habitat type assigned by the NRDAM/GLE (see Section 6.2, Volume III 
of the NRDAM/GLE technical document); and
    Substitute habitat type.
    If the authorized official turns off the ice modeling function, then 
he or she must provide documentation that ice was absent from the site 
of the release.

                               Definitions

    Nearshore fishery--fishery in an open water area that is less than 
30 feet in depth or is in a connecting channel.
    Offshore fishery--fishery in an open water area that is 30 feet or 
more in depth.
    Wetland fishery--fishery that is not in an open water area.

[61 FR 20614, May 7, 1996]



PART 12_ADMINISTRATIVE AND AUDIT REQUIREMENTS AND COST PRINCIPLES FOR ASSISTANCE PROGRAMS--Table of Contents



Subpart A_Administrative and Audit Requirements and Cost Principles for 
                           Assistance Programs

Sec.
12.1 Scope of part.
12.2 What policies are financial assistance awards and subawards in the 
          form of grants and cooperative agreements subject to?
12.3 Effect on prior issuances.
12.4 Information collection requirements.
12.5 Waiver.

Subpart B [Reserved]

Subpart C_Uniform Administrative Requirements for Grants and Cooperative 
                Agreements to State and Local Governments

                                 General

12.41 Purpose and scope of this part.
12.42 Scope of subpart.
12.43 Definitions.
12.44 Applicability.
12.45 Effect on other issuances.
12.46 Additions and exceptions.

                         Pre-Award Requirements

12.50 Forms for applying for grants.
12.51 State plans.
12.52 Special grant or subgrant conditions for ``high-risk'' grantees.

                         Post-Award Requirements

                        Financial Administration

12.60 Standards for financial management systems.
12.61 Payment.
12.62 Allowable costs.
12.63 Period of availability of funds.
12.64 Matching or cost sharing.
12.65 Program income.
12.66 Non-Federal audit.

[[Page 286]]

                    Changes, Property, and Subawards

12.70 Changes.
12.71 Real property.
12.72 Equipment.
12.73 Supplies.
12.74 Copyrights.
12.76 Procurement.
12.77 Subgrants.

              Reports, Records, Retention, and Enforcement

12.80 Monitoring and reporting program performance.
12.81 Financial reporting.
12.82 Retention and access requirements for records.
12.83 Enforcement.
12.84 Termination for convenience.

                      After-the-Grant Requirements

12.90 Closeout.
12.91 Later disallowances and adjustments.
12.92 Collection of amounts due.

                         Entitlements [Reserved]

Subpart D [Reserved]

       Subpart E_Buy American Requirements for Assistance Programs

                       Buy American Act--Supplies

12.700 Scope.
12.705 Definitions.
12.710 Policy.
12.715 Evaluating offers.
12.720 Excepted articles, materials, and supplies.
12.725 Solicitation provisions and contract clause.
12.730 Buy American Act--Supplies.

                Buy American Act--Construction Materials

12.800 Scope.
12.805 Definitions.
12.810 Policy.
12.815 Evaluating offers.
12.820 Violations.
12.825 Solicitation provision and contract clause.
12.830 Buy American Act--Construction materials.

Subpart F_Uniform Administrative Requirements for Grants and Agreements 
 With Institutions of Higher Education, Hospitals, and Other Non-Profit 
                              Organizations

                                 General

12.901 Purpose.
12.902 Definitions.
12.903 Effect on other issuances.
12.904 Deviations.
12.905 Subawards.

                         Pre-Award Requirements

12.910 Purpose.
12.911 Pre-award policies.
12.912 Forms for applying for Federal assistance.
12.914 Special award conditions.
12.915 Metric system of measurement.
12.916 Resource Conservation and Recovery Act (RCRA) (Pub. L. 94-580 
          codified at 42 U.S.C. 6962).
12.917 Certifications and representations.

                         Post-Award Requirements

                    Financial and Program Management

12.920 Purpose of financial and program management.
12.921 Standards for financial management systems.
12.922 Payment.
12.923 Cost sharing or matching.
12.924 Program income.
12.925 Revision of budget and program plans.
12.926 Non-Federal audits.
12.927 Allowable costs.
12.928 Period of availability of funds.

                           Property Standards

12.930 Purpose of property standards.
12.931 Insurance coverage.
12.932 Real property.
12.933 Federally owned and exempt property.
12.934 Equipment.
12.935 Supplies and other expendable property.
12.936 Intangible property.
12.937 Property trust relationship.

                          Procurement Standards

12.940 Purpose of procurement standards.
12.941 Recipient responsibilities.
12.942 Codes of conduct.
12.943 Competition.
12.944 Procurement procedures.
12.945 Cost and price analysis.
12.946 Procurement records.
12.947 Contract administration.
12.948 Contract provisions.

                           Reports and Records

12.950 Purpose of reports and records.
12.951 Monitoring and reporting program performance.
12.952 Financial reporting.
12.953 Retention and access requirements for records.

                       Termination and Enforcement

12.960 Purpose of termination and enforcement.
12.961 Termination.
12.962 Enforcement.

[[Page 287]]

                      After-the-Award Requirements

12.970 Purpose.
12.971 Closeout procedures.
12.972 Subsequent adjustments and continuing responsibilities.
12.973 Collection of amounts due.

Appendix A to Subpart F--Contract Provisions

    Authority: E.O 12549 (3 CFR, 1986 Comp., p. 189); E.O. 12689 (3 CFR, 
1989 Comp., p. 235); sec. 2455, Pub. L. 103-355, 108 Stat. 3327 (31 
U.S.C. 6101 note); 5 U.S.C. 301; U.S.C 6101 note.

    Cross Reference: See also Office of Management and Budget notice 
published at 55 FR 21679, May 25, 1990, and 60 FR 33036, June 26, 1995.

    Editorial Note: For additional information, see related documents 
published at 49 FR 24958, June 18, 1984; 52 FR 20178 and 20360, May 29, 
1987; 53 FR 8028, Mar. 11, 1988; 53 FR 19160, May 26, 1988; and 53 FR 
34474, Sept. 6, 1988.



Subpart A_Administrative and Audit Requirements and Cost Principles for 
                           Assistance Programs

    Source: 50 FR 6176, Feb. 14, 1985; 56 FR 45898, Sept. 9, 1991, 
unless otherwise noted.



Sec. 12.1  Scope of part.

    This part prescribes administrative requirements and cost principles 
for grants and cooperative agreements entered into by the Department.



Sec. 12.2  What policies are financial assistance awards and subawards in the form of grants and cooperative agreements subject to?

    (a) All financial assistance awards and subawards, in the form of 
grants and cooperative agreements, in accordance with paragraph (b) of 
this section, are subject to subparts C, D, E, and F of this part, OMB 
Circulars A-102, ``Grants and Cooperative Agreements with State and 
Local Governments,'' A-110, ``Grants and Other Agreements with 
Institutions of Higher Education, Hospitals, and Other Non-Profit 
Organizations,'' A-87, ``Cost Principles for State and Local 
Governments,'' A-21, ``Cost Principles for Educational Institutions,'' 
A-122, ``Cost Principles for Non-Profit Organizations,'' and A-133, 
``Audits of States, Local Governments, and Non-Profit Organizations.''
    (b)(1) Governmental recipients and subrecipients are subject to 
subparts C, D, and E of this part, Circulars A-87 and A-133.
    (2) Institutions of higher education which are recipients or 
subrecipients are subject to subparts D, E, and F of this part, 
Circulars A-110, A-21, and A-133.
    (3) Non-profit organizations which are recipients or subrecipients 
are subject to subparts D, E, and F of this part, Circulars A-110, A-
122, and A-133.
    (c) The circulars prescribed by this part published in the Federal 
Register are made a part of this regulation and include changes 
published in the Federal Register by OMB.
    (d)(1) Federal ethics and conduct regulations contained in 5 CFR 
part 2635 implement Executive Order 12674, 3 CFR, 1989 Comp., p. 215 (as 
modified by Executive Order 12731, 3 CFR, 1990 Comp., p. 306), 
``Principles of Ethical Conduct for Government Officers and Employees,'' 
by prohibiting employees from endorsing in an official capacity the 
proprietary products or processes of manufacturers or the services of 
commercial firms for advertising, publicity, or sales purposes. The 
Department's use of materials, products, or services does not constitute 
official endorsement.
    (2) The policy in paragraph (d)(1) of this section applies to a 
grant/cooperative agreement whose principal purpose is a partnership 
where the recipient/partner contributes resources to promote agency 
programs, publicize agency activities, assists in fundraising, or 
provides assistance to the agency. In the event that such a grant/
cooperative agreement is awarded to a recipient, other than a State 
government, a local government, or a Federally-recognized Indian tribal 
government, and authorizes joint dissemination of information and 
promotion of activities being supported, the following provision shall 
be made a term and condition of the award:

                  Grant/Cooperative Agreement Provision

    Recipient shall not publicize or otherwise circulate, promotional 
material (such as advertisements, sales brochures, press releases,

[[Page 288]]

speeches, still and motion pictures, articles, manuscripts or other 
publications) which states or implies governmental, Departmental, 
bureau, or government employee endorsement of a product, service, or 
position which the recipient represents. No release of information 
relating to this award may state or imply that the Government approves 
of the recipient's work products, or considers the recipient's work 
product to be superior to other products or services.
    All information submitted for publication or other public releases 
of information regarding this project shall carry the following 
disclaimer:
    The views and conclusions contained in this document are those of 
the authors and should not be interpreted as representing the opinions 
or policies of the U.S. Government. Mention of trade names or commercial 
products does not constitute their endorsement by the U.S. Government.
    Recipient must obtain prior Government approval for any public 
information releases concerning this award which refer to the Department 
of the Interior or any bureau or employee (by name or title). The 
specific text, layout photographs, etc. of the proposed release must be 
submitted with the request for approval.
    A recipient further agrees to include this provision in a subaward 
to any subrecipient, except for a subaward to a State government, a 
local government, or to a Federally-recognized Indian tribal government.

                           (End of provision)

    (3) Recipient requests for clearance of public releases will be 
reviewed using existing public information mechanisms through the 
appropriate Public Affairs Office and with consultation with the 
cognizant Ethics Officer.
    (e) (1) What does Executive Order 13043, ``Increasing Seat Belt Use 
in the United States,'' dated April 16, 1997, do?
    (i) If you are a Federal grantee, you are encouraged to--
    (A) Adopt and enforce on-the-job seat belt use policies and programs 
for your employees when operating company-owned, rented, or personally 
owned vehicles.
    (B) Conduct education, awareness, and other appropriate programs for 
your employees about the importance of wearing seat belts and the 
consequences of not wearing them.
    (ii) [Reserved]
    (2) When does the policy apply?
    (i) If a grant/cooperative agreement is being awarded by the bureau/
office of the Department--The policy applies.
    (ii) If the recipient awards a grant or cooperative agreement to a 
subrecipient--The policy applies.
    (3) What terms and conditions will be incorporated into the grant/
cooperative agreement or sub-award, if use of a specific provision is 
desired and general applicability to 43 CFR Part 12 is not used instead?
    (i) The following provision will be incorporated into the grant/
cooperative agreement or sub-award:

                         The Seat Belt Provision

    Recipients of grants/cooperative agreements and/or sub-awards are 
encouraged to adopt and enforce on-the-job seat belt use policies and 
programs for their employees when operating company-owned, rented, or 
personally owned vehicles. These measures include, but are not limited 
to, conducting education, awareness, and other appropriate programs for 
their employees about the importance of wearing seat belts and the 
consequences of not wearing them.

                           (End of provision)

    (ii) [Reserved]

[50 FR 6176, Feb. 14, 1985, as amended at 53 FR 8077, Mar. 11, 1988; 56 
FR 45898, Sept. 9, 1991; 59 FR 17712, Apr. 14, 1994; 62 FR 45944, Aug. 
29, 1997; 65 FR 39822, June 28, 2000]



Sec. 12.3  Effect on prior issuances.

    (a) All provisions of Department of the Interior nonregulatory 
program manuals, handbooks and other materials which are inconsistent 
with the above OMB Circulars are superseded, except to the extent that 
they are (1) required by statute, or (2) authorized in accordance with 
the exceptions provisions of each circular.
    (b) Except to the extent inconsistent with the regulations in 43 CFR 
part 12, subpart C, all existing Department of the Interior regulations 
in 25 CFR parts 23, 27, 39, 40, 41, 256, 272, 278, and 276; 30 CFR parts 
725, 735, 884, 886, and 890; 36 CFR parts 60, 61, 63, 65, 67, 72, and 
800; 43 CFR parts 26 and 32; and 50 CFR parts 80, 81, 82, 83, and 401 
are not superseded by these regulations nor are

[[Page 289]]

any paperwork approvals under the Paperwork Reduction Act.

[50 FR 6176, Feb. 14, 1985, as amended at 53 FR 8077, Mar. 11, 1988]



Sec. 12.4  Information collection requirements.

    Information collections in addition to those required by applicable 
OMB Circulars will be cleared by responsible bureaus and offices on an 
individual basis.



Sec. 12.5  Waiver.

    Only OMB can grant exceptions from the requirements of these 
Circulars when exceptions are not prohibited under existing laws.

Subpart B [Reserved]



Subpart C_Uniform Administrative Requirements for Grants and Cooperative 
                Agreements to State and Local Governments

    Source: 53 FR 8077, 8087, Mar. 11, 1988, unless otherwise noted.

                                 General



Sec. 12.41  Purpose and scope of this part.

    This part establishes uniform administrative rules for Federal 
grants and cooperative agreements and subawards to State, local and 
Indian tribal governments.



Sec. 12.42  Scope of subpart.

    This subpart contains general rules pertaining to this part and 
procedures for control of exceptions from this part.



Sec. 12.43  Definitions.

    As used in this part:
    Accrued expenditures mean the charges incurred by the grantee during 
a given period requiring the provision of funds for: (1) Goods and other 
tangible property received; (2) services performed by employees, 
contractors, subgrantees, subcontractors, and other payees; and (3) 
other amounts becoming owed under programs for which no current services 
or performance is required, such as annuities, insurance claims, and 
other benefit payments.
    Accrued income means the sum of: (1) Earnings during a given period 
from services performed by the grantee and goods and other tangible 
property delivered to purchasers, and (2) amounts becoming owed to the 
grantee for which no current services or performance is required by the 
grantee.
    Acquisition cost of an item of purchased equipment means the net 
invoice unit price of the property including the cost of modifications, 
attachments, accessories, or auxiliary apparatus necessary to make the 
property usable for the purpose for which it was acquired. Other charges 
such as the cost of installation, transportation, taxes, duty or 
protective in-transit insurance, shall be included or excluded from the 
unit acquisition cost in accordance with the grantee's regular 
accounting practices.
    Administrative requirements mean those matters common to grants in 
general, such as financial management, kinds and frequency of reports, 
and retention of records. These are distinguished from ``programmatic'' 
requirements, which concern matters that can be treated only on a 
program-by-program or grant-by-grant basis, such as kinds of activities 
that can be supported by grants under a particular program.
    Awarding agency means (1) with respect to a grant, the Federal 
agency, and (2) with respect to a subgrant, the party that awarded the 
subgrant.
    Cash contributions means the grantee's cash outlay, including the 
outlay of money contributed to the grantee or subgrantee by other public 
agencies and institutions, and private organizations and individuals. 
When authorized by Federal legislation, Federal funds received from 
other assistance agreements may be considered as grantee or subgrantee 
cash contributions.
    Contract means (except as used in the definitions for ``grant'' and 
``subgrant'' in this section and except where qualified by ``Federal'') 
a procurement contract under a grant or subgrant, and means a 
procurement subcontract under a contract.

[[Page 290]]

    Cost sharing or matching means the value of the third party in-kind 
contributions and the portion of the costs of a Federally assisted 
project or program not borne by the Federal Government.
    Cost-type contract means a contract or subcontract under a grant in 
which the contractor or subcontractor is paid on the basis of the costs 
it incurs, with or without a fee.
    Equipment means tangible, nonexpendable, personal property having a 
useful life of more than one year and an acquisition cost of $5,000 or 
more per unit. A grantee may use its own definition of equipment 
provided that such definition would at least include all equipment 
defined above.
    Expenditure report means: (1) For nonconstruction grants, the SF-269 
``Financial Status Report'' (or other equivalent report); (2) for 
construction grants, the SF-271 ``Outlay Report and Request for 
Reimbursement'' (or other equivalent report).
    Federally recognized Indian tribal government means the governing 
body or a governmental agency of any Indian tribe, band, nation, or 
other organized group or community (including any Native village as 
defined in section 3 of the Alaska Native Claims Settlement Act, 85 Stat 
688) certified by the Secretary of the Interior as eligible for the 
special programs and services provided by him through the Bureau of 
Indian Affairs.
    Government means a State or local government or a Federally 
recognized Indian tribal government.
    Grant means an award of financial assistance, including cooperative 
agreements, in the form of money, or property in lieu of money, by the 
Federal Government to an eligible grantee. The term does not include 
technical assistance which provides services instead of money, or other 
assistance in the form of revenue sharing, loans, loan guarantees, 
interest subsidies, insurance, or direct appropriations. Also, the term 
does not include assistance, such as a fellowship or other lump sum 
award, which the grantee is not required to account for.
    Grantee means the government to which a grant is awarded and which 
is accountable for the use of the funds provided. The grantee is the 
entire legal entity even if only a particular component of the entity is 
designated in the grant award document.
    Local government means a county, municipality, city, town, township, 
local public authority (including any public and Indian housing agency 
under the United States Housing Act of 1937) school district, special 
district, intrastate district, council of governments (whether or not 
incorporated as a nonprofit corporation under State law), any other 
regional or interstate government entity, or any agency or 
instrumentality of a local government.
    Obligations means the amounts of orders placed, contracts and 
subgrants awarded, goods and services received, and similar transactions 
during a given period that will require payment by the grantee during 
the same or a future period.
    OMB means the U.S. Office of Management and Budget.
    Outlays (expenditures) mean charges made to the project or program. 
They may be reported on a cash or accrual basis. For reports prepared on 
a cash basis, outlays are the sum of actual cash disbursement for direct 
charges for goods and services, the amount of indirect expense incurred, 
the value of in-kind contributions applied, and the amount of cash 
advances and payments made to contractors and subgrantees. For reports 
prepared on an accrued expenditure basis, outlays are the sum of actual 
cash disbursements, the amount of indirect expense incurred, the value 
of inkind contributions applied, and the new increase (or decrease) in 
the amounts owed by the grantee for goods and other property received, 
for services performed by employees, contractors, subgrantees, 
subcontractors, and other payees, and other amounts becoming owed under 
programs for which no current services or performance are required, such 
as annuities, insurance claims, and other benefit payments.
    Percentage of completion method refers to a system under which 
payments are made for construction work according to the percentage of 
completion of the work, rather than to the grantee's cost incurred.

[[Page 291]]

    Prior approval means documentation evidencing consent prior to 
incurring specific cost.
    Real property means land, including land improvements, structures 
and appurtenances thereto, excluding movable machinery and equipment.
    Share, when referring to the awarding agency's portion of real 
property, equipment or supplies, means the same percentage as the 
awarding agency's portion of the acquiring party's total costs under the 
grant to which the acquisition costs under the grant to which the 
acquisition cost of the property was charged. Only costs are to be 
counted--not the value of third-party in-kind contributions.
    State means any of the several States of the United States, the 
District of Columbia, the Commonwealth of Puerto Rico, any territory or 
possession of the United States, or any agency or instrumentality of a 
State exclusive of local governments. The term does not include any 
public and Indian housing agency under United States Housing Act of 
1937.
    Subgrant means an award of financial assistance in the form of 
money, or property in lieu of money, made under a grant by a grantee to 
an eligible subgrantee. The term includes financial assistance when 
provided by contractual legal agreement, but does not include 
procurement purchases, nor does it include any form of assistance which 
is excluded from the definition of ``grant'' in this part.
    Subgrantee means the government or other legal entity to which a 
subgrant is awarded and which is accountable to the grantee for the use 
of the funds provided.
    Supplies means all tangible personal property other than 
``equipment'' as defined in this part.
    Suspension means depending on the context, either (1) temporary 
withdrawal of the authority to obligate grant funds pending corrective 
action by the grantee or subgrantee or a decision to terminate the 
grant, or (2) an action taken by a suspending official in accordance 
with agency regulations implementing E.O. 12549 to immediately exclude a 
person from participating in grant transactions for a period, pending 
completion of an investigation and such legal or debarment proceedings 
as may ensue.
    Termination means permanent withdrawal of the authority to obligate 
previously-awarded grant funds before that authority would otherwise 
expire. It also means the voluntary relinquishment of that authority by 
the grantee or subgrantee. ``Termination'' does not include: (1) 
Withdrawal of funds awarded on the basis of the grantee's underestimate 
of the unobligated balance in a prior period; (2) Withdrawal of the 
unobligated balance as of the expiration of a grant; (3) Refusal to 
extend a grant or award additional funds, to make a competing or 
noncompeting continuation, renewal, extension, or supplemental award; or 
(4) voiding of a grant upon determination that the award was obtained 
fraudulently, or was otherwise illegal or invalid from inception.
    Terms of a grant or subgrant mean all requirements of the grant or 
subgrant, whether in statute, regulations, or the award document.
    Third party in-kind contributions mean property or services which 
benefit a Federally assisted project or program and which are 
contributed by non-Federal third parties without charge to the grantee, 
or a cost-type contractor under the grant agreement.
    Unliquidated obligations for reports prepared on a cash basis mean 
the amount of obligations incurred by the grantee that has not been 
paid. For reports prepared on an accrued expenditure basis, they 
represent the amount of obligations incurred by the grantee for which an 
outlay has not been recorded.
    Unobligated balance means the portion of the funds authorized by the 
Federal agency that has not been obligated by the grantee and is 
determined by deducting the cumulative obligations from the cumulative 
funds authorized.



Sec. 12.44  Applicability.

    (a) General. Subparts A-D of this part apply to all grants and 
subgrants to governments, except where inconsistent with Federal 
statutes or with regulations authorized in accordance with the exception 
provision of Sec. 12.46, or:

[[Page 292]]

    (1) Grants and subgrants to State and local institutions of higher 
education or State and local hospitals.
    (2) The block grants authorized by the Omnibus Budget Reconciliation 
Act of 1981 (Community Services; Preventive Health and Health Services; 
Alcohol, Drug Abuse, and Mental Health Services; Maternal and Child 
Health Services; Social Services; Low-Income Home Energy Assistance; 
States' Program of Community Development Block Grants for Small Cities; 
and Elementary and Secondary Education other than programs administered 
by the Secretary of Education under Title V, Subtitle D, Chapter 2, 
Section 583--the Secretary's discretionary grant program) and Titles I-
III of the Job Training Partnership Act of 1982 and under the Public 
Health Services Act (Section 1921), Alcohol and Drug Abuse Treatment and 
Rehabilitation Block Grant and Part C of Title V, Mental Health Service 
for the Homeless Block Grant).
    (3) Entitlement grants to carry out the following programs of the 
Social Security Act:
    (i) Aid to Needy Families with Dependent Children (Title IV-A of the 
Act, not including the Work Incentive Program (WIN) authorized by 
section 402(a)19(G); HHS grants for WIN are subject to this part);
    (ii) Child Support Enforcement and Establishment of Paternity (Title 
IV-D of the Act);
    (iii) Foster Care and Adoption Assistance (Title IV-E of the Act);
    (iv) Aid to the Aged, Blind, and Disabled (Titles I, X, XIV, and 
XVI-AABD of the Act); and
    (v) Medical Assistance (Medicaid) (Title XIX of the Act) not 
including the State Medicaid Fraud Control program authorized by section 
1903(a)(6)(B).
    (4) Entitlement grants under the following programs of The National 
School Lunch Act:
    (i) School Lunch (section 4 of the Act),
    (ii) Commodity Assistance (section 6 of the Act),
    (iii) Special Meal Assistance (section 11 of the Act),
    (iv) Summer Food Service for Children (section 13 of the Act), and
    (v) Child Care Food Program (section 17 of the Act).
    (5) Entitlement grants under the following programs of The Child 
Nutrition Act of 1966:
    (i) Special Milk (section 3 of the Act), and
    (ii) School Breakfast (section 4 of the Act).
    (6) Entitlement grants for State Administrative expenses under The 
Food Stamp Act of 1977 (section 16 of the Act).
    (7) A grant for an experimental, pilot, or demonstration project 
that is also supported by a grant listed in paragraph (a)(3) of this 
section.
    (8) Grant funds awarded under subsection 412(e) of the Immigration 
and Nationality Act (8 U.S.C. 1522(e)) and subsection 501(a) of the 
Refugee Education Assistance Act of 1980 (Pub. L. 96-422, 94 Stat. 
1809), for cash assistance, medical assistance, and supplemental 
security income benefits to refugees and entrants and the administrative 
costs of providing the assistance and benefits.
    (9) Grants to local education agencies under 20 U.S.C. 236 through 
241-1(a), and 242 through 244 (portions of the Impact Aid program), 
except for 20 U.S.C. 238(d)(2)(c) and 240(f) (Entitlement Increase for 
Handicapped Children); and
    (10) Payments under the Veterans Administration's State Home Per 
Diem Program (38 U.S.C. 641(a)).
    (b) Entitlement programs. Entitlement programs enumerated above in 
Sec. 12.44(a) (3) through (8) are subject to subpart E.



Sec. 12.45  Effect on other issuances.

    All other grants administration provisions of codified program 
regulations, program manuals, handbooks and other nonregulatory 
materials which are inconsistent with this part are superseded, except 
to the extent they are required by statute, or authorized in accordance 
with the exception provision in Sec. 12.46.



Sec. 12.46  Additions and exceptions.

    (a) For classes of grants and grantees subject to this part, Federal 
agencies may not impose additional administrative requirements except in 
codified regulations published in the Federal Register.

[[Page 293]]

    (b) Exceptions for classes of grants or grantees may be authorized 
only by OMB.
    (c) Exceptions on a case-by-case basis and for subgrantees may be 
authorized by the affected Federal agencies.

                         Pre-Award Requirements



Sec. 12.50  Forms for applying for grants.

    (a) Scope. (1) This section prescribes forms and instructions to be 
used by governmental organizations (except hospitals and institutions of 
higher education operated by a government) in applying for grants. This 
section is not applicable, however, to formula grant programs which do 
not require applicants to apply for funds on a project basis.
    (2) This section applies only to applications to Federal agencies 
for grants, and is not required to be applied by grantees in dealing 
with applicants for subgrants. However, grantees are encouraged to avoid 
more detailed or burdensome application requirements for subgrants.
    (b) Authorized forms and instructions for governmental 
organizations. (1) In applying for grants, applicants shall only use 
standard application forms or those prescribed by the granting agency 
with the approval of OMB under the Paperwork Reduction Act of 1980.
    (2) Applicants are not required to submit more than the original and 
two copies of preapplications or applications.
    (3) Applicants must follow all applicable instructions that bear OMB 
clearance numbers. Federal agencies may specify and describe the 
programs, functions, or activities that will be used to plan, budget, 
and evaluate the work under a grant. Other supplementary instructions 
may be issued only with the approval of OMB to the extent required under 
the Paperwork Reduction Act of 1980. For any standard form, except the 
SF-424 facesheet, Federal agencies may shade out or instruct the 
applicant to disregard any line item that is not needed.
    (4) When a grantee applies for additional funding (such as a 
continuation or supplemental award) or amends a previously submitted 
application, only the affected pages need be submitted. Previously 
submitted pages with information that is still current need not be 
resubmitted.



Sec. 12.51  State plans.

    (a) Scope. The statutes for some programs require States to submit 
plans before receiving grants. Under regulations implementing Executive 
Order 12372, ``Intergovernmental Review of Federal Programs,'' States 
are allowed to simplify, consolidate and substitute plans. This section 
contains additional provisions for plans that are subject to regulations 
implementing the Executive order.
    (b) Requirements. A State need meet only Federal administrative or 
programmatic requirements for a plan that are in statutes or codified 
regulations.
    (c) Assurances. In each plan the State will include an assurance 
that the State shall comply with all applicable Federal statutes and 
regulations in effect with respect to the periods for which it receives 
grant funding. For this assurance and other assurances required in the 
plan, the State may:
    (1) Cite by number the statutory or regulatory provisions requiring 
the assurances and affirm that it gives the assurances required by those 
provisions,
    (2) Repeat the assurance language in the statutes or regulations, or
    (3) Develop its own language to the extent permitted by law.
    (d) Amendments. A State will amend a plan whenever necessary to 
reflect: (1) New or revised Federal statutes or regulations or (2) a 
material change in any State law, organization, policy, or State agency 
operation. The State will obtain approval for the amendment and its 
effective date but need submit for approval only the amended portions of 
the plan.



Sec. 12.52  Special grant or subgrant conditions for ``high-risk'' grantees.

    (a) A grantee or subgrantee may be considered ``high risk'' if an 
awarding agency determines that a grantee or subgrantee:
    (1) Has a history of unsatisfactory performance, or
    (2) Is not financially stable, or

[[Page 294]]

    (3) Has a management system which does not meet the management 
standards set forth in this part, or
    (4) Has not conformed to terms and conditions of previous awards, or
    (5) Is otherwise not responsible; and if the awarding agency 
determines that an award will be made, special conditions and/or 
restrictions shall correspond to the high risk condition and shall be 
included in the award.
    (b) Special conditions or restrictions may include:
    (1) Payment on a reimbursement basis;
    (2) Withholding authority to proceed to the next phase until receipt 
of evidence of acceptable performance within a given funding period;
    (3) Requiring additional, more detailed financial reports;
    (4) Additional project monitoring;
    (5) Requiring the grante or subgrantee to obtain technical or 
management assistance; or
    (6) Establishing additional prior approvals.
    (c) If an awarding agency decides to impose such conditions, the 
awarding official will notify the grantee or subgrantee as early as 
possible, in writing, of:
    (1) The nature of the special conditions/restrictions;
    (2) The reason(s) for imposing them;
    (3) The corrective actions which must be taken before they will be 
removed and the time allowed for completing the corrective actions and
    (4) The method of requesting reconsideration of the conditions/
restrictions imposed.

                         Post-Award Requirements

                        Financial Administration



Sec. 12.60  Standards for financial management systems.

    (a) A State must expand and account for grant funds in accordance 
with State laws and procedures for expending and accounting for its own 
funds. Fiscal control and accounting procedures of the State, as well as 
its subgrantees and cost-type contractors, must be sufficient to--
    (1) Permit preparation of reports required by this part and the 
statutes authorizing the grant, and
    (2) Permit the tracing of funds to a level of expenditures adequate 
to establish that such funds have not been used in violation of the 
restrictions and prohibitions of applicable statutes.
    (b) The financial management systems of other grantees and 
subgrantees must meet the following standards:
    (1) Financial reporting. Accurate, current, and complete disclosure 
of the financial results of financially assisted activities must be made 
in accordance with the financial reporting requirements of the grant or 
subgrant.
    (2) Accounting records. Grantees and subgrantees must maintain 
records which adequately identify the source and application of funds 
provided for financially-assisted activities. These records must contain 
information pertaining to grant or subgrant awards and authorizations, 
obligations, unobligated balances, assets, liabilities, outlays or 
expenditures, and income.
    (3) Internal control. Effective control and accountability must be 
maintained for all grant and subgrant cash, real and personal property, 
and other assets. Grantees and subgrantees must adequately safeguard all 
such property and must assure that it is used solely for authorized 
purposes.
    (4) Budget control. Actual expenditures or outlays must be compared 
with budgeted amounts for each grant or subgrant. Financial information 
must be related to performance or productivity data, including the 
development of unit cost information whenever appropriate or 
specifically required in the grant or subgrant agreement. If unit cost 
data are required, estimates based on available documentation will be 
accepted whenever possible.
    (5) Allowable cost. Applicable OMB cost principles, agency program 
regulations, and the terms of grant and subgrant agreements will be 
followed in determining the reasonableness, allowability, and 
allocability of costs.
    (6) Source documentation. Accounting records must be supported by 
such source documentation as cancelled checks, paid bills, payrolls, 
time and attendance records, contract and subgrant award documents, etc.
    (7) Cash management. Procedures for minimizing the time elapsing 
between

[[Page 295]]

the transfer of funds from the U.S. Treasury and disbursement by 
grantees and subgrantees must be followed whenever advance payment 
procedures are used. Grantees must establish reasonable procedures to 
ensure the receipt of reports on subgrantees' cash balances and cash 
disbursements in sufficient time to enable them to prepare complete and 
accurate cash transactions reports to the awarding agency. When advances 
are made by letter-of-credit or electronic transfer of funds methods, 
the grantee must make drawdowns as close as possible to the time of 
making disbursements. Grantees must monitor cash drawdowns by their 
subgrantees to assure that they conform substantially to the same 
standards of timing and amount as apply to advances to the grantees.
    (c) An awarding agency may review the adequacy of the financial 
management system of any applicant for financial assistance as part of a 
preaward review or at any time subsequent to award.



Sec. 12.61  Payment.

    (a) Scope. This section prescribes the basic standard and the 
methods under which a Federal agency will make payments to grantees, and 
grantees will make payments to subgrantees and contractors.
    (b) Basic standard. Methods and procedures for payment shall 
minimize the time elapsing between the transfer of funds and 
disbursement by the grantee or subgrantee, in accordance with Treasury 
regulations at 31 CFR part 205.
    (c) Advances. Grantees and subgrantees shall be paid in advance, 
provided they maintain or demonstrate the willingness and ability to 
maintain procedures to minimize the time elapsing between the transfer 
of the funds and their disbursement by the grantee or subgrantee.
    (d) Reimbursement. Reimbursement shall be the preferred method when 
the requirements in paragraph (c) of this section are not met. Grantees 
and subgrantees may also be paid by reimbursement for any construction 
grant. Except as otherwise specified in regulation, Federal agencies 
shall not use the percentage of completion method to pay construction 
grants. The grantee or subgrantee may use that method to pay its 
construction contractor, and if it does, the awarding agency's payments 
to the grantee or subgrantee will be based on the grantee's or 
subgrantee's actual rate of disbursement.
    (e) Working capital advances. If a grantee cannot meet the criteria 
for advance payments described in paragraph (c) of this section, and the 
Federal agency has determined that reimbursement is not feasible because 
the grantee lacks sufficient working capital, the awarding agency may 
provide cash or a working capital advance basis. Under this procedure 
the awarding agency shall advance cash to the grantee to cover its 
estimated disbursement needs for an initial period generally geared to 
the grantee's disbursing cycle. Thereafter, the awarding agency shall 
reimburse the grantee for its actual cash disbursements. The working 
capital advance method of payment shall not be used by grantees or 
subgrantees if the reason for using such method is the unwillingness or 
inability of the grantee to provide timely advances to the subgrantee to 
meet the subgrantee's actual cash disbursements.
    (f) Effect of program income, refunds, and audit recoveries on 
payment. (1) Grantees and subgrantees shall disburse repayments to and 
interest earned on a revolving fund before requesting additional cash 
payments for the same activity.
    (2) Except as provided in paragraph (f)(1) of this section, grantees 
and subgrantees shall disburse program income, rebates, refunds, 
contract settlements, audit recoveries and interest earned on such funds 
before requesting additional cash payments.
    (g) Withholding payments. (1) Unless otherwise required by Federal 
statute, awarding agencies shall not withhold payments for proper 
charges incurred by grantees or subgrantees unless--
    (i) The grantee or subgrantee has failed to comply with grant award 
conditions, or
    (ii) The grantee or subgrantee is indebted to the United States.
    (2) Cash withheld for failure to comply with grant award condition, 
but without suspension of the grant, shall

[[Page 296]]

be released to the grantee upon subsequent compliance. When a grant is 
suspended, payment adjustments will be made in accordance with Sec. 
12.83(c).
    (3) A Federal agency shall not make payment to grantees for amounts 
that are withheld by grantees or subgrantees from payment to contractors 
to assure satisfactory completion of work. Payments shall be made by the 
Federal agency when the grantees or subgrantees actually disburse the 
withheld funds to the contractors or to escrow accounts established to 
assure satisfactory completion of work.
    (h) Cash depositories. (1) Consistent with the national goal of 
expanding the opportunities for minority business enterprises, grantees 
and subgrantees are encouraged to use minority banks (a bank which is 
owned at least 50 percent by minority group members). A list of minority 
owned banks can be obtained from the Minority Business Development 
Agency, Department of Commerce, Washington, DC 20230.
    (2) A grantee or subgrantee shall maintain a separate bank account 
only when required by Federal-State agreement.
    (i) Interest earned on advances. Except for interest earned on 
advances of funds exempt under the Intergovernmental Cooperation Act (31 
U.S.C. 6501 et seq.) and the Indian Self-Determination Act (23 U.S.C. 
450), grantees and subgrantees shall promptly, but at least quarterly, 
remit interest earned on advances to the Federal agency. The grantee or 
subgrantee may keep interest amounts up to $100 per year for 
administrative expenses.



Sec. 12.62  Allowable costs.

    (a) Limitation on use of funds. Grant funds may be used only for:
    (1) The allowable costs of the grantees, subgrantees and cost-type 
contractors, including allowable costs in the form of payments to fixed-
price contractors; and
    (2) Reasonable fees or profit to cost-type contractors but not any 
fee or profit (or other increment above allowable costs) to the grantee 
or subgrantee.
    (b) Applicable cost principles. For each kind of organization, there 
is a set of Federal principles for determining allowable costs. 
Allowable costs will be determined in accordance with the cost 
principles applicable to the organization incurring the costs. The 
following chart lists the kinds of organizations and the applicable cost 
principles.

------------------------------------------------------------------------
           For the costs of a--                Use the principles in--
------------------------------------------------------------------------
State, local or Indian tribal government..  OMB Circular A-87.
Private nonprofit organization other than   OBM Circular A-122.
 an (1) institution of higher education,
 (2) hospital, or (3) organization named
 in OMB Circular A-122 as not subject to
 that circular.
Educational institutions..................  OMB Circular A-21.
For-profit organization other than a        48 CFR Part 31. Contract
 hospital and an organization named in OBM   Cost Principles and
 Circular A-122 as not subject to that       Procedures, or uniform cost
 circular.                                   accounting standards that
                                             comply with cost principles
                                             acceptable to the Federal
                                             agency.
------------------------------------------------------------------------



Sec. 12.63  Period of availability of funds.

    (a) General. Where a funding period is specified, a grantee may 
charge to the award only costs resulting from obligations of the funding 
period unless carryover of unobligated balances is permitted, in which 
case the carryover balances may be charged for costs resulting from 
obligations of the subsequent funding period.
    (b) Liquidation of obligations. A grantee must liquidate all 
obligations incurred under the award not later than 90 days after the 
end of the funding period (or as specified in a program regulation) to 
coincide with the submission of the annual Financial Status Report (SF-
269). The Federal agency may extend this deadline at the request of the 
grantee.



Sec. 12.64  Matching or cost sharing.

    (a) Basic rule: Costs and contributions acceptable. With the 
qualifications and exceptions listed in paragraph (b) of this section, a 
matching or cost sharing requirement may be satisfied by either or both 
of the following:
    (1) Allowable costs incurred by the grantee, subgrantee or a cost-
type contractor under the assistance agreement. This includes allowable 
costs borne by non-Federal grants or by others cash donations from non-
Federal third parties.

[[Page 297]]

    (2) The value of third party in-kind contributions applicable to the 
period to which the cost sharing or matching requirements applies.
    (b) Qualifications and exceptions--(1) Costs borne by other Federal 
grant agreements. Except as provided by Federal statute, a cost sharing 
or matching requirement may not be met by costs borne by another Federal 
grant. This prohibition does not apply to income earned by a grantee or 
subgrantee from a contract awarded under another Federal grant.
    (2) General revenue sharing. For the purpose of this section, 
general revenue sharing funds distributed under 31 U.S.C. 6702 are not 
considered Federal grant funds.
    (3) Cost or contributions counted towards other Federal costs-
sharing requirements. Neither costs nor the values of third party in-
kind contributions may count towards satisfying a cost sharing or 
matching requirement of a grant agreement if they have been or will be 
counted towards satisfying a cost sharing or matching requirement of 
another Federal grant agreement, a Federal procurement contract, or any 
other award of Federal funds.
    (4) Costs financed by program income. Costs financed by program 
income, as defined in Sec. 12.65, shall not count towards satisfying a 
cost sharing or matching requirement unless they are expressly permitted 
in the terms of the assistance agreement. (This use of general program 
income is described in Sec. 12.65(g).)
    (5) Services or property financed by income earned by contractors. 
Contractors under a grant may earn income from the activities carried 
out under the contract in addition to the amounts earned from the party 
awarding the contract. No costs of services or property supported by 
this income may count toward satisfying a cost sharing or matching 
requirement unless other provisions of the grant agreement expressly 
permit this kind of income to be used to meet the requirement.
    (6) Records. Costs and third party in-kind contributions counting 
towards satisfying a cost sharing or matching requirement must be 
verifiable from the records of grantees and subgrantee or cost-type 
contractors. These records must show how the value placed on third party 
in-kind contributions was derived. To the extent feasible, volunteer 
services will be supported by the same methods that the organization 
uses to support the allocability of regular personnel costs.
    (7) Special standards for third party in-kind contributions. (i) 
Third party in-kind contributions count towards satisfying a cost 
sharing or matching requirement only where, if the party receiving the 
contributions were to pay for them, the payments would be allowable 
costs.
    (ii) Some third party in-kind contributions are goods and services 
that, if the grantee, subgrantee, or contractor receiving the 
contribution had to pay for them, the payments would have been an 
indirect costs. Costs sharing or matching credit for such contributions 
shall be given only if the grantee, subgrantee, or contractor has 
established, along with its regular indirect cost rate, a special rate 
for allocating to individual projects or programs the value of the 
contributions.
    (iii) A third party in-kind contribution to a fixed-price contract 
may count towards satisfying a cost sharing or matching requirement only 
if it results in:
    (A) An increase in the services or property provided under the 
contract (without additional cost to the grantee or subgrantee) or
    (B) A cost savings to the grantee or subgrantee.
    (iv) The values placed on third party in-kind contributions for cost 
sharing or matching purposes will conform to the rules in the succeeding 
sections of this part. If a third party in-kind contribution is a type 
not treated in those sections, the value placed upon it shall be fair 
and reasonable.
    (c) Valuation of donated services--(1) Volunteer services. Unpaid 
services provided to a grantee or subgrantee by individuals will be 
6valued at rates consistent with those ordinarily paid for similar work 
in the grantee's or subgrantee's organization. If the grantee or 
subgrantee does not have employees performing similar work, the rates 
will be consistent with those ordinarily paid by other employers for 
similar

[[Page 298]]

work in the same labor market. In either case, a reasonable amount for 
fringe benefits may be included in the valuation.
    (2) Employees of other organizations. When an employer other than a 
grantee, subgrantee, or cost-type contractor furnishes free of charge 
the services of an employee in the employee's normal line of work, the 
services will be valued at the employee's regular rate of pay exclusive 
of the employee's fringe benefits and overhead costs. If the services 
are in a different line of work, paragraph (c)(1) of this section 
applies.
    (d) Valuation of third party donated supplies and loaned equipment 
or space. (1) If a third party donates supplies, the contribution will 
be valued at the market value of the supplies at the time of donation.
    (2) If a third party donates the use of equipment or space in a 
building but retains title, the contribution will be valued at the fair 
rental rate of the equipment or space.
    (e) Valuation of third party donated equipment, buildings, and land. 
If a third party donates equipment, buildings, or land, and title passes 
to a grantee or subgrantee, the treatment of the donated property will 
depend upon the purpose of the grant or subgrant, as follows:
    (1) Awards for capital expenditures. If the purpose of the grant or 
subgrant is to assist the grantee or subgrantee in the acquisition of 
property, the market value of that property at the time of donation may 
be counted as cost sharing or matching,
    (2) Other awards. If assisting in the acquisition of property is not 
the purpose of the grant or subgrant, paragraphs (e)(2) (i) and (ii) of 
this section apply:
    (i) If approval is obtained from the awarding agency, the market 
value at the time of donation of the donated equipment or buildings and 
the fair rental rate of the donated land may be counted as cost sharing 
or matching. In the case of a subgrant, the terms of the grant agreement 
may require that the approval be obtained from the Federal agency as 
well as the grantee. In all cases, the approval may be given only if a 
purchase of the equipment or rental of the land would be approved as an 
allowable direct cost. If any part of the donated property was acquired 
with Federal funds, only the non-Federal share of the property may be 
counted as cost-sharing or matching.
    (ii) If approval is not obtained under paragraph (e)(2)(i) of this 
section, no amount may be counted for donated land, and only 
depreciation or use allowances may be counted for donated equipment and 
buildings. The depreciation or use allowances for this property are not 
treated as third party in-kind contributions. Instead, they are treated 
as costs incurred by the grantee or subgrantee. They are computed and 
allocated (usually as indirect costs) in accordance with the cost 
principles specified in Sec. 12.62, in the same way as depreciation or 
use allowances for purchased equipment and buildings. The amount of 
depreciation or use allowances for donated equipment and buildings is 
based on the property's market value at the time it was donated.
    (f) Valuation of grantee or subgrantee donated real property for 
construction/acquisition. If a grantee or subgrantee donates real 
property for a construction or facilities acquisition project, the 
current market value of that property may be counted as cost sharing or 
matching. If any part of the donated property was acquired with Federal 
funds, only the non-Federal share of the property may be counted as cost 
sharing or matching.
    (g) Appraisal of real property. In some cases under paragraphs (d), 
(e) and (f) of this section, it will be necessary to establish the 
market value of land or a building or the fair rental rate of land or of 
space in a building. In these cases, the Federal agency may require the 
market value or fair rental value be set by an independent appraiser, 
and that the value or rate be certified by the grantee. This requirement 
will also be imposed by the grantee on subgrantees.



Sec. 12.65  Program income.

    (a) General. Grantees are encouraged to earn income to defray 
program costs. Program income includes income from fees for services 
performed, from the use or rental of real or personal property acquired 
with grant funds, from the sale of commodities or items fabricated under 
a grant agreement,

[[Page 299]]

and from payments of principal and interest on loans made with grant 
funds. Except as otherwise provided in regulations of the Federal 
agency, program income does not include interest on grant funds, 
rebates, credits, discounts, refunds, etc. and interest earned on any of 
them.
    (b) Definition of program income. Program income means gross income 
received by the grantee or subgrantee directly generated by a grant 
supported activity, or earned only as a result of the grant agreement 
during the grant period. ``During the grant period'' is the time between 
the effective date of the award and the ending date of the award 
reflected in the final financial report.
    (c) Cost of generating program income. If authorized by Federal 
regulations or the grant agreement, costs incident to the generation of 
program income may be deducted from gross income to determine program 
income.
    (d) Governmental revenues. Taxes, special assessments, levies, 
fines, and other such revenues raised by a grantee or subgrantee are not 
program income unless the revenues are specifically identified in the 
grant agreement or Federal agency regulations as program income.
    (e) Royalties. Income from royalties and license fees for 
copyrighted material, patents, and inventions developed by a grantee or 
subgrantee is program income only if the revenues are specifically 
identified in the grant agreement or Federal agency regulations as 
program income. (See Sec. 12.74.)
    (f) Property. Proceeds from the sale of real property or equipment 
will be handled in accordance with the requirements of Sec. Sec. 12.71 
and 12.72.
    (g) Use of program income. Program income shall be deducted from 
outlays which may be both Federal and non-Federal as described below, 
unless the Federal agency regulations or the grant agreement specify 
another alternative (or a combination of the alternatives). In 
specifying alternatives, the Federal agency may distinguish between 
income earned by the grantee and income earned by subgrantees and 
between the sources, kinds, or amounts of income. When Federal agencies 
authorize the alternatives in paragraphs (g) (2) and (3) of this 
section, program income in excess of any limits stipulated shall also be 
deducted from outlays.
    (1) Deduction. Ordinarily program income shall be deducted from 
total allowable costs to determine the net allowable costs. Program 
income shall be used for current costs unless the Federal agency 
authorizes otherwise. Program income which the grantee did not 
anticipate at the time of the award shall be used to reduce the Federal 
agency and grantee contributions rather than to increase the funds 
committed to the project.
    (2) Addition. When authorized, program income may be added to the 
funds committed to the grant agreement by the Federal agency and the 
grantee. The program income shall be used for the purposes and under the 
conditions of the grant agreement.
    (3) Cost sharing or matching. When authorized, program income may be 
used to meet the cost sharing or matching requirement of the grant 
agreement. The amount of the Federal grant award remains the same.
    (h) Income after the award period. There are no Federal requirements 
governing the disposition of program income earned after the end of the 
award period (i.e., until the ending date of the final financial report, 
see paragraph (a) of this section), unless the terms of the agreement or 
the Federal agency regulations provide otherwise.



Sec. 12.66  Non-Federal audit.

    (a) Basic rule. Grantees and subgrantees are responsible for 
obtaining audits in accordance with the Single Audit Act Amendments of 
1996 (31 U.S.C. 7501-7507) and revised OMB Circular A-133, ``Audits of 
States, Local Governments, and Non-Profit Organizations.'' The audits 
shall be made by an independent auditor in accordance with generally 
accepted government auditing standards covering financial audits.
    (b) Subgrantees. State or local governments, as those terms are 
defined for purposes of the Single Audit Act Amendments of 1996, that 
provide Federal awards to a subgrantee, which expends $300,000 or more 
(or other

[[Page 300]]

amount as specified by OMB) in Federal awards in a fiscal year, shall:
    (1) Determine whether State or local subgrantees have met the audit 
requirements of the Act and whether subgrantees covered by OMB Circular 
A-110, ``Uniform Administrative Requirements for Grants and Agreements 
with Institutions of Higher Education, Hospitals, and Other Non-Profit 
Organizations,'' have met the audit requirements of the Act. Commercial 
contractors (private for-profit and private and governmental 
organizations) providing goods and services to State and local 
governments are not required to have a single audit performed. State and 
local governments should use their own procedures to ensure that the 
contractor has complied with laws and regulations affecting the 
expenditure of Federal funds;
    (2) Determine whether the subgrantee spent Federal assistance funds 
provided in accordance with applicable laws and regulations. This may be 
accomplished by reviewing an audit of the subgrantee made in accordance 
with the Act, Circular A-110, or through other means (e.g., program 
reviews) if the subgrantee has not had such an audit;
    (3) Ensure that appropriate corrective action is taken within six 
months after receipt of the audit report in instance of noncompliance 
with Federal laws and regulations;
    (4) Consider whether subgrantee audits necessitate adjustment of the 
grantee's own records; and
    (5) Require each subgrantee to permit independent auditors to have 
access to the records and financial statements.
    (c) Auditor selection. In arranging for audit services, Sec. 12.36 
shall be followed.

[53 FR 8077 and 8087, Mar. 11, 1988, as amended at 62 FR 45939, 45945, 
Aug. 29, 1997]

                    Changes, Property, and Subawards



Sec. 12.70  Changes.

    (a) General. Grantees and subgrantees are permitted to rebudget 
within the approved direct cost budget to meet unanticipated 
requirements and may make limited program changes to the approved 
project. However, unless waived by the awarding agency, certain types of 
post-award changes in budgets and projects shall require the prior 
written approval of the awarding agency.
    (b) Relation to cost principles. The applicable cost principles (see 
Sec. 12.62) contain requirements for prior approval of certain types of 
costs. Except where waived, those requirements apply to all grants and 
subgrants even if paragraphs (c) through (f) of this section do not.
    (c) Budget changes--(1) Nonconstruction projects. Except as stated 
in other regulations or an award document, grantees or subgrantees shall 
obtain the prior approval of the awarding agency whenever any of the 
following changes is anticipated under a nonconstruction award:
    (i) Any revision which would result in the need for additional 
funding.
    (ii) Unless waived by the awarding agency, cumulative transfers 
among direct cost categories, or, if applicable, among separately 
budgeted programs, projects, functions, or activities which exceed or 
are expected to exceed ten percent of the current total approved budget, 
whenever the awarding agency's share exceeds $100,000.
    (iii) Transfer of funds allotted for training allowances (i.e., from 
direct payments to trainees to other expense categories).
    (2) Construction projects. Grantees and subgrantees shall obtain 
prior written approval for any budget revision which would result in the 
need for additional funds.
    (3) Combined construction and nonconstruction projects. When a grant 
or subgrant provides funding for both construction and nonconstruction 
activities, the grantee or subgrantee must obtain prior written approval 
from the awarding agency before making any fund or budget transfer from 
nonconstruction to construction or vice versa.
    (d) Programmatic changes. Grantees or subgrantees must obtain the 
prior approval of the awarding agency whenever any of the following 
actions is anticipated:
    (1) Any revision of the scope or objectives of the project 
(regardless of whether there is an associated budget revision requiring 
prior approval).

[[Page 301]]

    (2) Need to extend the period of availability of funds.
    (3) Changes in key persons in cases where specified in an 
application or a grant award. In research projects, a change in the 
project director or principal investigator shall always require approval 
unless waived by the awarding agency.
    (4) Under nonconstruction projects, contracting out, subgranting (if 
authorized by law) or otherwise obtaining the services of a third party 
to perform activities which are central to the purposes of the award. 
This approval requirement is in addition to the approval requirements of 
Sec. 12.76 but does not apply to the procurement of equipment, 
supplies, and general support services.
    (e) Additional prior approval requirements. The awarding agency may 
not require prior approval for any budget revision which is not 
described in paragraph (c) of this section.
    (f) Requesting prior approval. (1) A request for prior approval of 
any budget revision will be in the same budget formal the grantee used 
in its application and shall be accompanied by a narrative justification 
for the proposed revision.
    (2) A request for a prior approval under the applicable Federal cost 
principles (see Sec. 12.62) may be made by letter.
    (3) A request by a subgrantee for prior approval will be addressed 
in writing to the grantee. The grantee will promptly review such request 
and shall approve or disapprove the request in writing. A grantee will 
not approve any budget or project revision which is inconsistent with 
the purpose or terms and conditions of the Federal grant to the grantee. 
If the revision, requested by the subgrantee would result in a change to 
the grantee's approved project which requires Federal prior approval, 
the grantee will obtain the Federal agency's approval before approving 
the subgrantee's request.



Sec. 12.71  Real property.

    (a) Title. Subject to the obligations and conditions set forth in 
this section, title to real property acquired under a grant or subgrant 
will vest upon acquisition in the grantee or subgrantee respectively.
    (b) Use. Except as otherwise provided by Federal statutes, real 
property will be used for the originally authorized purposes as long as 
needed for that purposes, and the grantee or subgrantee shall not 
dispose of or encumber its title or other interests.
    (c) Disposition. When real property is no longer needed for the 
originally authorized purpose, the grantee or subgrantee will request 
disposition instructions from the awarding agency. The instructions will 
provide for one of the following alternatives:
    (1) Retention of title. Retain title after compensating the awarding 
agency. The amount paid to the awarding agency will be computed by 
applying the awarding agency's percentage of participation in the cost 
of the original purchase to the fair market value of the property. 
However, in those situations where a grantee or subgrantee is disposing 
of real property acquired with grant funds and acquiring replacement 
real property under the same program, the net proceeds from the 
disposition may be used as an offset to the cost of the replacement 
property.
    (2) Sale of property. Sell the property and compensate the awarding 
agency. The amount due to the awarding agency will be calculated by 
applying the awarding agency's percentage of participation in the cost 
of the original purchase to the proceeds of the sale after deduction of 
any actual and reasonable selling and fixing-up expenses. If the grant 
is still active, the net proceeds from sale may be offset against the 
original cost of the property. When a grantee or subgrantee is directed 
to sell property, sales procedures shall be followed that provide for 
competition to the extent practicable and result in the highest possible 
return.
    (3) Transfer of title. Transfer title to the awarding agency or to a 
third-party designated/approved by the awarding agency. The grantee or 
subgrantee shall be paid an amount calculated by applying the grantee or 
subgrantee's percentage of participation in the purchase of the real 
property to the current fair market value of the property.

[[Page 302]]



Sec. 12.72  Equipment.

    (a) Title. Subject to the obligations and conditions set forth in 
this section, title to equipment acquired under a grant or subgrant will 
vest upon acquisition in the grantee or subgrantee respectively.
    (b) States. A State will use, manage, and dispose of equipment 
acquired under a grant by the State in accordance with State laws and 
procedures. Other grantees and subgrantees will follow paragraphs (c) 
through (e) of this section.
    (c) Use. (1) Equipment shall be used by the grantee or subgrantee in 
the program or project for which it was acquired as long as needed, 
whether or not the project or program continues to be supported by 
Federal funds. When no longer needed for the original program or 
project, the equipment may be used in other activities currently or 
previously supported by a Federal agency.
    (2) The grantee or subgrantee shall also make equipment available 
for use on other projects or programs currently or previously supported 
by the Federal Government, providing such use will not interfere with 
the work on the projects or program for which it was originally 
acquired. First preference for other use shall be given to other 
programs or projects supported by the awarding agency. User fees should 
be considered if appropriate.
    (3) Notwithstanding the encouragement in Sec. 12.65(a) to earn 
program income, the grantee or subgrantee must not use equipment 
acquired with grant funds to provide services for a fee to compete 
unfairly with private companies that provide equivalent services, unless 
specifically permitted or contemplated by Federal statute.
    (4) When acquiring replacement equipment, the grantee or subgrantee 
may use the equipment to be replaced as a trade-in or sell the property 
and use the proceeds to offset the cost of the replacement property, 
subject to the approval of the awarding agency.
    (d) Management requirements. Procedures for managing equipment 
(including replacement equipment), whether acquired in whole or in part 
with grant funds, until disposition takes place will, as a minimum, meet 
the following requirements:
    (1) Property records must be maintained that include a description 
of the property, a serial number or other identification number, the 
source of property, who holds title, the acquisition date, and cost of 
the property, percentage of Federal participation in the cost of the 
property, the location, use and condition of the property, and any 
ultimate disposition data including the date of disposal and sale price 
of the property.
    (2) A physical inventory of the property must be taken and the 
results reconciled with the property records at least once every two 
years.
    (3) A control system must be developed to ensure adequate safeguards 
to prevent loss, damage, or theft of the property. Any loss, damage, or 
theft shall be investigated.
    (4) Adequate maintenance procedures must be developed to keep the 
property in good condition.
    (5) If the grantee or subgrantee is authorized or required to sell 
the property, proper sales procedures must be established to ensure the 
highest possible return.
    (e) Disposition. When original or replacement equipment acquired 
under a grant or subgrant is no longer needed for the original project 
or program or for other activities currently or previously supported by 
a Federal agency, disposition of the equipment will be made as follows:
    (1) Items of equipment with a current per-unit fair market value of 
less than $5,000 may be retained, sold or otherwise disposed of with no 
further obligation to the awarding agency.
    (2) Items of equipment with a current per unit fair market value in 
excess of $5,000 may be retained or sold and the awarding agency shall 
have a right to an amount calculated by multiplying the current market 
value or proceeds from sale by the awarding agency's share of the 
equipment.
    (3) In cases where a grantee or subgrantee fails to take appropriate 
disposition actions, the awarding agency may direct the grantee or 
subgrantee to take excess and disposition actions.

[[Page 303]]

    (f) Federal equipment. In the event a grantee or subgrantee is 
provided Federally-owned equipment:
    (1) Title will remain vested in the Federal Government.
    (2) Grantees or subgrantees will manage the equipment in accordance 
with Federal agency rules and procedures, and submit an annual inventory 
listing.
    (3) When the equipment is no longer needed, the grantee or 
subgrantee will request disposition instructions from the Federal 
agency.
    (g) Right to transfer title. The Federal awarding agency may reserve 
the right to transfer title to the Federal Government or a third part 
named by the awarding agency when such a third party is otherwise 
eligible under existing statutes. Such transfers shall be subject to the 
following standards:
    (1) The property shall be identified in the grant or otherwise made 
known to the grantee in writing.
    (2) The Federal awarding agency shall issue disposition instruction 
within 120 calendar days after the end of the Federal support of the 
project for which it was acquired. If the Federal awarding agency fails 
to issue disposition instructions within the 120 calendar-day period the 
grantee shall follow 12.72(e).
    (3) When title to equipment is transferred, the grantee shall be 
paid an amount calculated by applying the percentage of participation in 
the purchase to the current fair market value of the property.



Sec. 12.73  Supplies.

    (a) Title. Title to supplies acquired under a grant or subgrant will 
vest, upon acquisition, in the grantee or subgrantee respectively.
    (b) Disposition. If there is a residual inventory of unused supplies 
exceeding $5,000 in total aggregate fair market value upon termination 
or completion of the award, and if the supplies are not needed for any 
other Federally sponsored programs or projects, the grantee or 
subgrantee shall compensate the awarding agency for its share.



Sec. 12.74  Copyrights.

    The Federal awarding agency reserves a royalty-free, nonexclusive, 
and irrevocable license to reproduce, publish or otherwise use, and to 
authorize others to use, for Federal Government purposes:
    (a) The copyright in any work developed under a grant, subgrant, or 
contract under a grant or subgrant; and
    (b) Any rights of copyright to which a grantee, subgrantee or a 
contractor purchases ownership with grant support.



Sec. 12.76  Procurement.

    (a) States. When procuring property and services under a grant, a 
State will follow the same policies and procedures it uses for 
procurements from its non-Federal funds. The State will ensure that 
every purchase order or other contract includes any clauses required by 
Federal statutes and executive orders and their implementing 
regulations. Other grantees and subgrantees will follow paragraphs (b) 
through (i) in this section.
    (b) Procurement standards. (1) Grantees and subgrantees will use 
their own procurement procedures which reflect applicable State and 
local laws and regulations, provided that the procurements conform to 
applicable Federal law and the standards identified in this section.
    (2) Grantees and subgrantees will maintain a contract administration 
system which ensures that contractors perform in accordance with the 
terms, conditions, and specifications of their contracts or purchase 
orders.
    (3) Grantees and subgrantees will maintain a written code of 
standards of conduct governing the performance of their employees 
engaged in the award and administration of contracts. No employee, 
officer or agent of the grantee or subgrantee shall participate in 
selection, or in the award or administration of a contract supported by 
Federal funds if a conflict of interest, real or apparent, would be 
involved. Such a conflict would arise when:
    (i) The employee, officer or agent,
    (ii) Any member of his immediate family,
    (iii) His or her partner, or

[[Page 304]]

    (iv) An organization which employs, or is about to employ, any of 
the above, has a financial or other interest in the firm selected for 
award. The grantee's or subgrantee's officers, employees or agents will 
neither solicit nor accept gratuities, favors or anything of monetary 
value from contractors, potential contractors, or parties to 
subagreements. Grantee and subgrantees may set minimum rules where the 
financial interest is not substantial or the gift is an unsolicited item 
of nominal intrinsic value. To the extent permitted by State or local 
law or regulations, such standards or conduct will provide for 
penalties, sanctions, or other disciplinary actions for violations of 
such standards by the grantee's and subgrantee's officers, employees, or 
agents, or by contractors or their agents. The awarding agency may in 
regulation provide additional prohibitions relative to real, apparent, 
or potential conflicts of interest.
    (4) Grantee and subgrantee procedures will provide for a review of 
proposed procurements to avoid purchase of unnecessary or duplicative 
items. Consideration should be given to consolidating or breaking out 
procurements to obtain a more economical purchase. Where appropriate, an 
analysis will be made of lease versus purchase alternatives, and any 
other appropriate analysis to determine the most economical approach.
    (5) To foster greater economy and efficiency, grantees and 
subgrantees are encouraged to enter into State and local 
intergovernmental agreements for procurement or use of common goods and 
services.
    (6) Grantees and subgrantees are encouraged to use Federal excess 
and surplus property in lieu of purchasing new equipment and property 
whenever such use is feasible and reduces project costs.
    (7) Grantees and subgrantees are encouraged to use value engineering 
clauses in contracts for construction projects of sufficient size to 
offer reasonable opportunities for cost reductions. Value engineering is 
a systematic and creative analysis of each contract item or task to 
ensure that its essential function is provided at the overall lower 
cost.
    (8) Grantees and subgrantees will make awards only to responsible 
contractors possessing the ability to perform successfully under the 
terms and conditions of a proposed procurement. Consideration will be 
given to such matters as contractor integrity, compliance with public 
policy, record of past performance, and financial and technical 
resources.
    (9) Grantees and subgrantees will maintain records sufficient to 
detail the significant history of a procurement. These records will 
include, but are not necessarily limited to the following: rationale for 
the method of procurement, selection of contract type, contractor 
selection or rejection, and the basis for the contract price.
    (10) Grantees and subgrantees will use time and material type 
contracts only--
    (i) After a determination that no other contract is suitable, and
    (ii) If the contract includes a ceiling price that the contractor 
exceeds at its own risk.
    (11) Grantees and subgrantees alone will be responsible, in 
accordance with good administrative practice and sound business 
judgment, for the settlement of all contractual and administrative 
issues arising out of procurements. These issues include, but are not 
limited to source evaluation, protests, disputes, and claims. These 
standards do not relieve the grantee or subgrantee of any contractual 
responsibilities under its contracts. Federal agencies will not 
substitute their judgment for that of the grantee or subgrantee unless 
the matter is primarily a Federal concern. Violations of law will be 
referred to the local, State, or Federal authority having proper 
jurisdiction.
    (12) Grantees and subgrantees will have protest procedures to handle 
and resolve disputes relating to their procurements and shall in all 
instances disclose information regarding the protest to the awarding 
agency. A protestor must exhaust all administrative remedies with the 
grantee and subgrantee before pursuing a protest with the Federal 
agency. Reviews of protests by the Federal agency will be limited to:

[[Page 305]]

    (i) Violations of Federal law or regulations and the standards of 
this section (violations of State or local law will be under the 
jurisdiction of State or local authorities) and
    (ii) Violations of the grantee's or subgrantee's protest procedures 
for failure to review a complaint or protest. Protests received by the 
Federal agency other than those specified above will be referred to the 
grantee or subgrantee.
    (c) Competition. (1) All procurement transactions will be conducted 
in a manner providing full and open competition consistent with the 
standards of Sec. 12.76. Some of the situations considered to be 
restrictive of competition include but are not limited to:
    (i) Placing unreasonable requirements on firms in order for them to 
qualify to do business,
    (ii) Requiring unnecessary experience and excessive bonding,
    (iii) Noncompetitive pricing practices between firms or between 
affiliated companies,
    (iv) Noncompetitive awards to consultants that are on retainer 
contracts,
    (v) Organizational conflicts of interest,
    (vi) Specifying only a ``brand name'' product instead of allowing 
``an equal'' product to be offered and describing the performance of 
other relevant requirements of the procurement, and
    (vii) Any arbitrary action in the procurement process.
    (2) Grantees and subgrantees will conduct procurements in a manner 
that prohibits the use of statutorily or administratively imposed in-
State or local geographical preferences in the evaluation of bids or 
proposals, except in those cases where applicable Federal statutes 
expressly mandate or encourage geographic preference. Nothing in this 
section preempts State licensing laws. When contracting for 
architectural and engineering (A/E) services, geographic location may be 
a selection criteria provided its application leaves an appropriate 
number of qualified firms, given the nature and size of the project, to 
compete for the contract.
    (3) Grantees will have written selection procedures for procurement 
transactions. These procedures will ensure that all solicitations:
    (i) Incorporate a clear and accurate description of the technical 
requirements for the material, product, or service to be procured. Such 
description shall not, in competitive procurements, contain features 
which unduly restrict competition. The description may include a 
statement of the qualitative nature of the material, product or service 
to be procured, and when necessary, shall set forth those minimum 
essential characteristics and standards to which it must conform if it 
is to satisfy its intended use. Detailed product specifications should 
be avoided if at all possible. When it is impractical or uneconomical to 
make a clear and accurate description of the technical requirements, a 
``brand name or equal'' description may be used as a means to define the 
performance or other salient requirements of a procurement. The specific 
features of the named brand which must be met by offerors shall be 
clearly stated; and
    (ii) Identify all requirements which the offerors must fulfill and 
all other factors to be used in evaluating bids or proposals.
    (4) Grantees and subgrantees will ensure that all prequalified lists 
of persons, firms, or products which are used in acquiring goods and 
services are current and include enough qualified sources to ensure 
maximum open and free competition. Also, grantees and subgrantees will 
not preclude potential bidders from qualifying during the solicitation 
period.
    (d) Methods of procurement to be followed--(1) Procurement by small 
purchase procedures. Small purchase procedures are those relatively 
simple and informal procurement methods for securing services, supplies, 
or other property that do not cost more than the simplified acquisition 
threshold fixed at 41 U.S.C. 403(11) (currently set at $100,000). If 
small purchase procedures are used, price or rate quotations shall be 
obtained from an adequate number of qualified sources.
    (2) Procurement by sealed bids (formal advertising). Bids are 
publicly solicited and a firm-fixed-price contract (lump sum or unit 
price) is awarded to the responsible bidder whose bid, conforming with 
all the material terms and conditions of the invitation for

[[Page 306]]

bids, is the lowest in price. The sealed bid method is the preferred 
method for procuring construction, if the conditions in Sec. 
12.76(d)(2)(i) apply.
    (i) In order for sealed bidding to be feasible, the following 
conditions should be present:
    (A) A complete, adequate, and realistic specification or purchase 
description is available;
    (B) Two or more responsible bidders are willing and able to compete 
effectively and for the business; and
    (C) The procurement lends itself to a firm fixed price contract and 
the selection of the successful bidder can be made principally on the 
basis of price.
    (ii) If sealed bids are used, the following requirements apply:
    (A) The invitation for bids will be publicly advertised and bids 
shall be solicited from an adequate number of known suppliers, providing 
them sufficient time prior to the date set for opening the bids;
    (B) The invitation for bids, which will include any specifications 
and pertinent attachments, shall define the items or services in order 
for the bidder to properly respond;
    (C) All bids will be publicly opened at the time and place 
prescribed in the invitation for bids;
    (D) A firm fixed-price contract award will be made in writing to the 
lowest responsive and responsible bidder. Where specified in bidding 
documents, factors such as discounts, transportation cost, and life 
cycle costs shall be considered in determining which bid is lowest. 
Payment discounts will only be used to determine the low bid when prior 
experience indicates that such discounts are usually taken advantage of; 
and
    (E) Any or all bids may be rejected if there is a sound documented 
reason.
    (3) Procurement by competitive proposals. The technique of 
competitive proposals is normally conducted with more than one source 
submitting an offer, and either a fixed-price or cost-reimbursement type 
contract is awarded. It is generally used when conditions are not 
appropriate for the use of sealed bids. If this method is used, the 
following requirements apply:
    (i) Requests for proposals will be publicized and identify all 
evaluation factors and their relative importance. Any response to 
publicized requests for proposals shall be honored to the maximum extent 
practical;
    (ii) Proposals will be solicited from an adequate number of 
qualified sources;
    (iii) Grantees and subgrantees will have a method for conducting 
technical evaluations of the proposals received and for selecting 
awardees;
    (iv) Awards will be made to the responsible firm whose proposal is 
most advantageous to the program, with price and other factors 
considered; and
    (v) Grantees and subgrantees may use competitive proposal procedures 
for qualifications-based procurement of architectural/engineering (A/E) 
professional services whereby competitors' qualifications are evaluated 
and the most qualified competitor is selected, subject to negotiation of 
fair and reasonable compensation. The method, where price is not used as 
a selection factor, can only be used in procurement of A/E professional 
services. It cannot be used to purchase other types of services though 
A/E firms are a potential source to perform the proposed effort.
    (4) Procurement by noncompetitive proposals is procurement through 
solicitation of a proposal from only one source, or after solicitation 
of a number of sources, competition is determined inadequate.
    (i) Procurement by noncompetitive proposals may be used only when 
the award of a contract is infeasible under small purchase procedures, 
sealed bids or competitive proposals and one of the following 
circumstances applies:
    (A) The item is available only from a single source;
    (B) The public exigency or emergency for the requirement will not 
permit a delay resulting from competitive solicitation;
    (C) The awarding agency authorizes noncompetitive proposals; or
    (D) After solicitation of a number of sources, competition is 
determined inadequate.
    (ii) Cost analysis, i.e., verifying the proposed cost data, the 
projections of the data, and the evaluation of the specific elements of 
costs and profits, is required.

[[Page 307]]

    (iii) Grantees and subgrantees may be required to submit the 
proposed procurement to the awarding agency for pre-award review in 
accordance with paragraph (g) of this section.
    (e) Contracting with small and minority firms, women's business 
enterprise and labor surplus area firms. (1) The grantee and subgrantee 
will take all necessary affirmative steps to assure that minority firms, 
women's business enterprises, and labor surplus area firms are used when 
possible.
    (2) Affirmative steps shall include:
    (i) Placing qualified small and minority businesses and women's 
business enterprises on solicitation lists;
    (ii) Assuring that small and minority businesses, and women's 
business enterprises are solicited whenever they are potential sources;
    (iii) Dividing total requirements, when economically feasible, into 
smaller tasks or quantities to permit maximum participation by small and 
minority business, and women's business enterprises;
    (iv) Establishing delivery schedules, where the requirement permits, 
which encourage participation by small and minority business, and 
women's business enterprises;
    (v) Using the services and assistance of the Small Business 
Administration, and the Minority Business Development Agency of the 
Department of Commerce; and
    (vi) Requiring the prime contractor, if subcontracts are to be let, 
to take the affirmative steps listed in paragraphs (e)(2) (i) through 
(v) of this section.
    (f) Contract cost and price. (1) Grantees and subgrantees must 
perform a cost or price analysis in connection with every procurement 
action including contract modifications. The method and degree of 
analysis is dependent on the facts surrounding the particular 
procurement situation, but as a starting point, grantees must make 
independent estimates before receiving bids or proposals. A cost 
analysis must be performed when the offeror is required to submit the 
elements of his estimated cost, e.g., under professional, consulting, 
and architectural engineering services contracts. A cost analysis will 
be necessary when adequate price competition is lacking, and for sole 
source procurements, including contract modifications or change orders, 
unless price resonableness can be established on the basis of a catalog 
or market price of a commercial product sold in substantial quantities 
to the general public or based on prices set by law or regulation. A 
price analysis will be used in all other instances to determine the 
reasonableness of the proposed contract price.
    (2) Grantees and subgrantees will negotiate profit as a separate 
element of the price for each contract in which there is no price 
competition and in all cases where cost analysis is performed. To 
establish a fair and reasonable profit, consideration will be given to 
the complexity of the work to be performed, the risk borne by the 
contractor, the contractor's investment, the amount of subcontracting, 
the quality of its record of past performance, and industry profit rates 
in the surrounding geographical area for similar work.
    (3) Costs or prices based on estimated costs for contracts under 
grants will be allowable only to the extent that costs incurred or cost 
estimates included in negotiated prices are consistent with Federal cost 
principles (see Sec. 12.62). Grantees may reference their own cost 
principles that comply with the applicable Federal cost principles.
    (4) The cost plus a percentage of cost and percentage of 
construction cost methods of contracting shall not be used.
    (g) Awarding agency review. (1) Grantees and subgrantees must make 
available, upon request of the awarding agency, technical specifications 
on proposed procurements where the awarding agency believes such review 
is needed to ensure that the item and/or service specified is the one 
being proposed for purchase. This review generally will take place prior 
to the time the specification is incorporated into a solicitation 
document. However, if the grantee or subgrantee desires to have the 
review accomplished after a solicitation has been developed, the 
awarding agency may still review the specifications, with such review 
usually limited to the technical aspects of the proposed purchase.

[[Page 308]]

    (2) Grantees and subgrantees must on request make available for 
awarding agency pre-award review procurement documents, such as requests 
for proposals or invitations for bids, independent cost estimates, etc. 
when:
    (i) A grantee's or subgrantee's procurement procedures or operation 
fails to comply with the procurement standards in this section; or
    (ii) The procurement is expected to exceed the simplified 
acquisition threshold and is to be awarded without competition or only 
one bid or offer is received in response to a solicitation; or
    (iii) The procurement, which is expected to exceed the simplified 
acquisition threshold, specifies a ``brand name'' product; or
    (iv) The proposed award is more than the simplified acquisition 
threshold and is to be awarded to other than the apparent low bidder 
under a sealed bid procurement; or
    (v) A proposed contract modification changes the scope of a contract 
or increases the contract amount by more than the simplified acquisition 
threshold.
    (3) A grantee or subgrantee will be exempt from the pre-award review 
in paragraph (g)(2) of this section if the awarding agency determines 
that its procurement systems comply with the standards of this section.
    (i) A grantee or subgrantee may request that its procurement system 
be reviewed by the awarding agency to determine whether its system meets 
these standards in order for its system to be certified. Generally, 
these reviews shall occur where there is a continuous high-dollar 
funding, and third-party contracts are awarded on a regular basis.
    (ii) A grantee or subgrantee may self-certify its procurement 
system. Such self-certification shall not limit the awarding agency's 
right to survey the system. Under a self-certification procedure, 
awarding agencies may wish to rely on written assurances from the 
grantee or subgrantee that it is complying with these standards. A 
grantee or subgrantee will cite specific procedures, regulations, 
standards, etc., as being in compliance with these requirements and have 
its system available for review.
    (h) Bonding requirements. For construction or facility improvement 
contracts or subcontracts exceeding the simplified acquisition 
threshold, the awarding agency may accept the bonding policy and 
requirements of the grantee or subgrantee provided the awarding agency 
has made a determination that the awarding agency's interest is 
adequately protected. If such a determination has not been made, the 
minimum requirements shall be as follows:
    (1) A bid guarantee from each bidder equivalent to five percent of 
the bid price. The ``bid guarantee'' shall consist of a firm commitment 
such as a bid bond, certified check, or other negotiable instrument 
accompanying a bid as assurance that the bidder will, upon acceptance of 
his bid, execute such contractual documents as may be required within 
the time specified.
    (2) A performance bond on the part of the contractor for 100 percent 
of the contract price. A ``performance bond'' is one executed in 
connection with a contract to secure fulfillment of all the contractor's 
obligations under such contract.
    (3) A payment bond on the part of the contractor for 100 percent of 
the contract price. A ``payment bond'' is one executed in connection 
with a contract to assure payment as required by law of all persons 
supplying labor and material in the execution of the work provided for 
in the contract.
    (i) Contract provisions. A grantee's and subgrantee's contracts must 
contain provisions in paragraph (i) of this section. Federal agencies 
are permitted to require changes, remedies, changed conditions, access 
and records retention, suspension of work, and other clauses approved by 
the Office of Federal Procurement Policy.
    (1) Administrative, contractual, or legal remedies in instances 
where contractors violate or breach contract terms, and provide for such 
sanctions and penalties as may be appropriate. (Contracts more than the 
simplified acquisition threshold)
    (2) Termination for cause and for convenience by the grantee or 
subgrantee including the manner by which

[[Page 309]]

it will be effected and the basis for settlement. (All contracts in 
excess of $10,000)
    (3) Compliance with Executive Order 11246 of September 24, 1965, 
entitled ``Equal Employment Opportunity,'' as amended by Executive Order 
11375 of October 13, 1967, and as supplemented in Department of Labor 
regulations (41 CFR chapter 60). (All construction contracts awarded in 
excess of $10,000 by grantees and their contractors or subgrantees)
    (4) Compliance with the Copeland ``Anti-Kickback'' Act (18 U.S.C. 
874) as supplemented in Department of Labor regulations (29 CFR part 3). 
(All contracts and subgrants for construction or repair)
    (5) Compliance with the Davis-Bacon Act (40 U.S.C. 276a to 276a-7) 
as supplemented by Department of Labor regulations (29 CFR part 5). 
(Construction contracts in excess of $2000 awarded by grantees and 
subgrantees when required by Federal grant program legislation)
    (6) Compliance with Sections 103 and 107 of the Contract Work Hours 
and Safety Standards Act (40 U.S.C. 327-330) as supplemented by 
Department of Labor regulations (29 CFR part 5). (Construction contracts 
awarded by grantees and subgrantees in excess of $2000, and in excess of 
$2500 for other contracts which involve the employment of mechanics or 
laborers)
    (7) Notice of awarding agency requirements and regulations 
pertaining to reporting.
    (8) Notice of awarding agency requirements and regulations 
pertaining to patent rights with respect to any discovery or invention 
which arises or is developed in the course of or under such contract.
    (9) Awarding agency requirements and regulations pertaining to 
copyrights and rights in data.
    (10) Access by the grantee, the subgrantee, the Federal grantor 
agency, the Comptroller General of the United States, or any of their 
duly authorized representatives to any books, documents, papers, and 
records of the contractor which are directly pertinent to that specific 
contract for the purpose of making audit, examination, excerpts, and 
transcriptions.
    (11) Retention of all required records for three years after 
grantees or subgrantees make final payments and all other pending 
matters are closed.
    (12) Compliance with all applicable standards, orders, or 
requirements issued under section 306 of the Clean Air Act (42 U.S.C. 
1857(h)), section 508 of the Clean Water Act (33 U.S.C. 1368), Executive 
Order 11738, and Environmental Protection Agency regulations (40 CFR 
part 15). (Contracts, subcontracts, and subgrants of amounts in excess 
of $100,000)
    (13) Mandatory standards and policies relating to energy efficiency 
which are contained in the State energy conservation plan issued in 
compliance with the Energy Policy and Conservation Act (Pub. L. 94-163, 
89 Stat. 871).

[53 FR 8077 and 8087, Mar. 11, 1988, as amended at 60 FR 19639, 19644, 
Apr. 19, 1995]



Sec. 12.77  Subgrants.

    (a) States. States shall follow State law and procedures when 
awarding and administering subgrants (whether on a cost reimbursement or 
fixed amount basis) of financial assistance to local and Indian tribal 
governments. States shall:
    (1) Ensure that every subgrant includes any clauses required by 
Federal statute and executive orders and their implementing regulations;
    (2) Ensure that subgrantees are aware of requirements imposed upon 
them by Federal statute and regulation;
    (3) Ensure that a provision for compliance with Sec. 12.82 is 
placed in every cost reimbursement subgrant; and
    (4) Conform any advances of grant funds to subgrantees substantially 
to the same standards of timing and amount that apply to cash advances 
by Federal agencies.
    (b) All other grantees. All other grantees shall follow the 
provisions of this part which are applicable to awarding agencies when 
awarding and administering subgrants (whether on a cost reimbursement or 
fixed amount basis) of financial assistance to local and Indian tribal 
governments. Grantees shall:
    (1) Ensure that every subgrant includes a provision for compliance 
with this part;

[[Page 310]]

    (2) Ensure that every subgrant includes any clauses required by 
Federal statute and executive orders and their implementing regulations; 
and
    (3) Ensure that subgrantees are aware of requirements imposed upon 
them by Federal statutes and regulations.
    (c) Exceptions. By their own terms, certain provisions of this part 
do not apply to the award and administration of subgrants:
    (1) Section 12.50;
    (2) Section 12.51;
    (3) The letter-of-credit procedures specified in Treasury 
Regulations at 31 CFR part 205, cited in Sec. 12.61; and
    (4) Section 12.90.

               Reports, Records Retention, and Enforcement



Sec. 12.80  Monitoring and reporting program performance.

    (a) Monitoring by grantees. Grantees are responsible for managing 
the day-to-day operations of grant and subgrant supported activities. 
Grantees must monitor grant and subgrant supported activities to assure 
compliance with applicable Federal requirements and that performance 
goals are being achieved. Grantee monitoring must cover each program, 
function or activity.
    (b) Nonconstruction performance reports. The Federal agency may, if 
it decides that performance information available from subsequent 
applications contains sufficient information to meet its programmatic 
needs, require the grantee to submit a performance report only upon 
expiration or termination of grant support. Unless waived by the Federal 
agency this report will be due on the same date as the final Financial 
Status Report.
    (1) Grantees shall submit annual performance reports unless the 
awarding agency requires quarterly or semi-annual reports. However, 
performance reports will not be required more frequently than quarterly. 
Annual reports shall be due 90 days after the grant year, quarterly or 
semi-annual reports shall be due 30 days after the reporting period. The 
final performance report will be due 90 days after the expiration or 
termination of grant support. If a justified request is submitted by a 
grantee, the Federal agency may extend the due date for any performance 
report. Additionally, requirements for unnecessary performance reports 
may be waived by the Federal agency.
    (2) Performance reports will contain, for each grant, brief 
information on the following:
    (i) A comparison of actual accomplishments to the objectives 
established for the period. Where the output of the project can be 
quantified, a computation of the cost per unit of output may be required 
if that information will be useful.
    (ii) The reasons for slippage if established objectives were not 
met.
    (iii) Additional pertinent information including, when appropriate, 
analysis and explanation of cost overruns or high unit costs.
    (3) Grantees will not be required to submit more than the original 
and two copies of performance reports.
    (4) Grantees will adhere to the standards in this section in 
prescribing performance reporting requirements for subgrantees.
    (c) Construction performance reports. For the most part, on-site 
technical inspections and certified percentage-of-completion data are 
relied on heavily by Federal agencies to monitor progress under 
construction grants and subgrants. The Federal agency will require 
additional formal performance reports only when considered necessary, 
and never more frequently than quarterly.
    (d) Significant developments. Events may occur between the scheduled 
performance reporting dates which have significant impact upon the grant 
or subgrant supported activity. In such cases, the grantee must inform 
the Federal agency as soon as the following types of conditions become 
known:
    (1) Problems, delays, or adverse conditions which will materially 
impair the ability to meet the objective of the award. This disclosure 
must include a statement of the action taken, or contemplated, and any 
assistance needed to resolve the situation.

[[Page 311]]

    (2) Favorable developments which enable meeting time schedules and 
objectives sooner or at less cost than anticipated or producing more 
beneficial results than originally planned.
    (e) Federal agencies may make site visits as warranted by program 
needs.
    (f) Waivers, extensions. (1) Federal agencies may waive any 
performance report required by this part if not needed.
    (2) The grantee may waive any performance report from a subgrantee 
when not needed. The grantee may extend the due date for any performance 
report from a subgrantee if the grantee will still be able to meet its 
performance reporting obligations to the Federal agency.



Sec. 12.81  Financial reporting.

    (a) General. (1) Except as provided in paragraphs (a) (2) and (5) of 
this section, grantees will use only the forms specified in paragraphs 
(a) through (e) of this section, and such supplementary or other forms 
as may from time to time be authorized by OMB, for:
    (i) Submitting financial reports to Federal agencies, or
    (ii) Requesting advances or reimbursements when letters of credit 
are not used.
    (2) Grantees need not apply the forms prescribed in this section in 
dealing with their subgrantees. However, grantees shall not impose more 
burdensome requirements on subgrantees.
    (3) Grantees shall follow all applicable standard and supplemental 
Federal agency instructions approved by OMB to the extend required under 
the Paperwork Reduction Act of 1980 for use in connection with forms 
specified in paragraphs (b) through (e) of this section. Federal 
agencies may issue substantive supplementary instructions only with the 
approval of OMB. Federal agencies may shade out or instruct the grantee 
to disregard any line item that the Federal agency finds unnecessary for 
its decisionmaking purposes.
    (4) Grantees will not be required to submit more than the original 
and two copies of forms required under this part.
    (5) Federal agencies may provide computer outputs to grantees to 
expedite or contribute to the accuracy of reporting. Federal agencies 
may accept the required information from grantees in machine usable 
format or computer printouts instead of prescribed forms.
    (6) Federal agencies may waive any report required by this section 
if not needed.
    (7) Federal agencies may extend the due date of any financial report 
upon receiving a justified request from a grantee.
    (b) Financial Status Report--(1) Form. Grantees will use Standard 
Form 269 or 269A, Financial Status Report, to report the status of funds 
for all nonconstruction grants and for construction grants when required 
in accordance with Sec. 12.81(e)(2)(iii).
    (2) Accounting basis. Each grantee will report program outlays and 
program income on a cash or accrual basis as prescribed by the awarding 
agency. If the Federal agency requires accrual information and the 
grantee's accounting records are not normally kept on the accural basis, 
the grantee shall not be required to convert its accounting system but 
shall develop such accrual information through and analysis of the 
documentation on hand.
    (3) Frequency. The Federal agency may prescribe the frequency of the 
report for each project or program. However, the report will not be 
required more frequently than quarterly. If the Federal agency does not 
specify the frequency of the report, it will be submitted annually. A 
final report will be required upon expiration or termination of grant 
support.
    (4) Due date. When reports are required on a quarterly or semiannual 
basis, they will be due 30 days after the reporting period. When 
required on an annual basis, they will be due 90 days after the grant 
year. Final reports will be due 90 days after the expiration or 
termination of grant support.
    (c) Federal Cash Transactions Report--(1) Form. (i) For grants paid 
by letter or credit, Treasury check advances or electronic transfer of 
funds, the grantee will submit the Standard Form 272, Federal Cash 
Transactions Report, and when necessary, its continuation sheet, 
Standard Form 272a, unless the terms of the award exempt the grantee 
from this requirement.

[[Page 312]]

    (ii) These reports will be used by the Federal agency to monitor 
cash advanced to grantees and to obtain disbursement or outlay 
information for each grant from grantees. The format of the report may 
be adapted as appropriate when reporting is to be accomplished with the 
assistance of automatic data processing equipment provided that the 
information to be submitted is not changed in substance.
    (2) Forecasts of Federal cash requirements. Forecasts of Federal 
cash requirements may be required in the ``Remarks'' section of the 
report.
    (3) Cash in hands of subgrantees. When considered necessary and 
feasible by the Federal agency, grantees may be required to report the 
amount of cash advances in excess of three days' needs in the hands of 
their subgrantees or contractors and to provide short narrative 
explanations of actions taken by the grantee to reduce the excess 
balances.
    (4) Frequency and due date. Grantees must submit the report no later 
than 15 working days following the end of each quarter. However, where 
an advance either by letter of credit or electronic transfer of funds is 
authorized at an annualized rate of one million dollars or more, the 
Federal agency may require the report to be submitted within 15 working 
days following the end of each month.
    (d) Request for advance or reimbursement--(1) Advance payments. 
Requests for Treasury check advance payments will be submitted on 
Standard Form 270, Request for Advance or Reimbursement. (This form will 
not be used for drawdowns under a letter of credit, electronic funds 
transfer or when Treasury check advance payments are made to the grantee 
automatically on a predetermined basis.)
    (2) Reimbursements. Requests for reimbursement under nonconstruction 
grants will also be submitted on Standard Form 270. (For reimbursement 
requests under construction grants, see paragraph (e)(1) of this 
section.)
    (3) The frequency for submitting payment requests is treated in 
Sec. 12.81(b)(3).
    (e) Outlay report and request for reimbursement for construction 
programs--(1) Grants that support construction activities paid by 
reimbursement method. (i) Requests for reimbursement under construction 
grants will be submitted on Standard Form 271, Outlay Report and Request 
for Reimbursement for Construction Programs. Federal agencies may, 
however, prescribe the Request for Advance or Reimbursement form, 
specified in Sec. 12.81(d), instead of this form.
    (ii) The frequency for submitting reimbursement requests is treated 
in Sec. 12.81(b)(3).
    (2) Grants that support construction activities paid by letter of 
credit, electronic funds transfer or Treasury check advance. (i) When a 
construction grant is paid by letter of credit, electronic funds 
transfer or Treasury check advances, the grantee will report its outlays 
to the Federal agency using Standard Form 271, Outlay Report and Request 
for Reimbursement for Construction Programs. The Federal agency will 
provide any necessary special instruction. However, frequency and due 
date shall be governed by Sec. 12.81(b) (3) and (4).
    (ii) When a construction grant is paid by Treasury check advances 
based on periodic requests from the grantee, the advances will be 
requested on the form specified in Sec. 12.81(d).
    (iii) The Federal agency may substitute the Financial Status Report 
specified in Sec. 12.81(b) for the Outlay Report and Request for 
Reimbursement for Construction Programs.
    (3) Accounting basis. The accounting basis for the Outlay Report and 
Request for Reimbursement for Construction Programs shall be governed by 
Sec. 12.81(b)(2).



Sec. 12.82  Retention and access requirements for records.

    (a) Applicability. (1) This section applies to all financial and 
programmatic records, supporting documents, statistical records, and 
other records of grantees or subgrantees which are:
    (i) Required to be maintained by the terms of this part, program 
regulations or the grant agreement, or
    (ii) Otherwise reasonably considered as pertinent to program 
regulations or the grant agreement.
    (2) This section does not apply to records maintained by contractors 
or subcontractors. For a requirement to

[[Page 313]]

place a provision concerning records in certain kinds of contracts, see 
Sec. 12.76(i)(10).
    (b) Length of retention period. (1) Except as otherwise provided, 
records must be retained for three years from the starting date 
specified in paragraph (c) of this section.
    (2) If any litigation, claim, negotiation, audit or other action 
involving the records has been started before the expiration of the 3-
year period, the records must be retained until completion of the action 
and resolution of all issues which arise from it, or until the end of 
the regular 3-year period, whichever is later.
    (3) To avoid duplicate recordkeeping, awarding agencies may make 
special arrangements with grantees and subgrantees to retain any records 
which are continuously needed for joint use. The awarding agency will 
request transfer of records to its custody when it determines that the 
records possess long-term retention value. When the records are 
transferred to or maintained by the Federal agency, the 3-year retention 
requirement is not applicable to the grantee or subgrantee.
    (c) Starting date of retention period--(1) General. When grant 
support is continued or renewed at annual or other intervals, the 
retention period for the records of each funding period starts on the 
day the grantee or subgrantee submits to the awarding agency its single 
or last expenditure report for that period. However, if grant support is 
continued or renewed quarterly, the retention period for each year's 
records starts on the day the grantee submits its expenditure report for 
the last quarter of the Federal fiscal year. In all other cases, the 
retention period starts on the day the grantee submits its final 
expenditure report. If an expenditure report has been waived, the 
retention period starts on the day the report would have been due.
    (2) Real property and equipment records. The retention period for 
real property and equipment records starts from the date of the 
disposition or replacement or transfer at the direction of the awarding 
agency.
    (3) Records for income transactions after grant or subgrant support. 
In some cases grantees must report income after the period of grant 
support. Where there is such a requirement, the retention period for the 
records pertaining to the earning of the income starts from the end of 
the grantee's fiscal year in which the income is earned.
    (4) Indirect cost rate proposals, cost allocations plans, etc. This 
paragraph applies to the following types of documents, and their 
supporting records: indirect cost rate computations or proposals, cost 
allocation plans, and any similar accounting computations of the rate at 
which a particular group of costs is chargeable (such as computer usage 
chargeback rates or composite fringe benefit rates).
    (i) If submitted for negotiation. If the proposal, plan, or other 
computation is required to be submitted to the Federal Government (or to 
the grantee) to form the basis for negotiation of the rate, then the 3-
year retention period for its supporting records starts from the date of 
such submission.
    (ii) If not submitted for negotiation. If the proposal, plan, or 
other computation is not required to be submitted to the Federal 
Government (or to the grantee) for negotiation purposes, then the 3-year 
retention period for the proposal plan, or computation and its 
supporting records starts from end of the fiscal year (or other 
accounting period) covered by the proposal, plan, or other computation.
    (d) Substitution of microfilm. Copies made by microfilming, 
photocopying, or similar methods may be substituted for the original 
records.
    (e) Access to records--(1) Records of grantees and subgrantees. The 
awarding agency and the Comptroller General of the United States, or any 
of their authorized representatives, shall have the right of access to 
any pertinent books, documents, papers, or other records of grantees and 
subgrantees which are pertinent to the grant, in order to make audits, 
examinations, excerpts, and transcripts.
    (2) Expiration of right of access. The rights of access in this 
section must not be limited to the required retention period but shall 
last as long as the records are retained.
    (f) Restrictions on public access. The Federal Freedom of 
Information Act (5 U.S.C. 552) does not apply to records

[[Page 314]]

Unless required by Federal, State, or local law, grantees and 
subgrantees are not required to permit public access to their records.



Sec. 12.83  Enforcement.

    (a) Remedies for noncompliance. If a grantee or subgrantee 
materially fails to comply with any term of an award, whether stated in 
a Federal statute or regulation, an assurance, in a State plan or 
application, a notice of award, or elsewhere, the awarding agency may 
take one or more of the following actions, as appropriate in the 
circumstances:
    (1) Temporarily withhold cash payments pending correction of the 
deficiency by the grantee or subgrantee or more severe enforcement 
action by the awarding agency,
    (2) Disallow (that is, deny both use of funds and matching credit 
for) all or part of the cost of the activity or action not in 
compliance,
    (3) Wholly or partly suspend or terminate the current award for the 
grantee's or subgrantee's program,
    (4) Withhold further awards for the program, or
    (5) Take other remedies that may be legally available.
    (b) Hearings, appeals. In taking an enforcement action, the awarding 
agency will provide the grantee or subgrantee an opportunity for such 
hearing, appeal, or other administrative proceeding to which the grantee 
or subgrantee is entitled under any statute or regulation applicable to 
the action involved.
    (c) Effects of suspension and termination. Costs of grantee or 
subgrantee resulting from obligations incurred by the grantee or 
subgrantee during a suspension or after termination of an award are not 
allowable unless the awarding agency expressly authorizes them in the 
notice of suspension or termination or subsequently. Other grantee or 
subgrantee costs during suspension or after termination which are 
necessary and not reasonably avoidable are allowable if:
    (1) The costs result from obligations which were properly incurred 
by the grantee or subgrantee before the effective date of suspension or 
termination, are not in anticipation of it, and, in the case of a 
termination, are noncancellable, and,
    (2) The costs would be allowable if the award were not suspended or 
expired normally at the end of the funding period in which the 
termination takes effect.
    (d) Relationship to Debarment and Suspension. The enforcement 
remedies identified in this section, including suspension and 
termination, do not preclude grantee or subgrantee from being subject to 
``Debarment and Suspension'' under E.O. 12549 (see Sec. 12.75).



Sec. 12.84  Termination for convenience.

    Except as provided in Sec. 12.83 awards may be terminated in whole 
or in part only as follows:
    (a) By the awarding agency with the consent of the grantee or 
subgrantee in which case the two parties shall agree upon the 
termination conditions, including the effective date and in the case of 
partial termination, the portion to be terminated, or
    (b) By the grantee or subgrantee upon written notification to the 
awarding agency, setting forth the reasons for such termination, the 
effective date, and in the case of partial termination, the portion to 
be terminated. However, if, in the case of a partial termination, the 
awarding agency determines that the remaining portion of the award will 
not accomplish the purposes for which the award was made, the awarding 
agency may terminate the award in its entirety under either Sec. 12.83 
or paragraph (a) of this section.

                      After-the-Grant Requirements



Sec. 12.90  Closeout.

    (a) General. The Federal agency will close out the award when it 
determines that all applicable administrative actions and all required 
work of the grant has been completed.
    (b) Reports. Within 90 days after the expiration or termination of 
the grant, the grantee must submit all financial, performance, and other 
reports required as a condition of the grant. Upon request by the 
grantee, Federal agencies may extend this timeframe. These may include 
but are not limited to:

[[Page 315]]

    (1) Final performance or progress report.
    (2) Financial Status Report (SF 269) or Outlay Report and Request 
for Reimbursement for Construction Programs (SF-271) (as applicable.)
    (3) Final request for payment (SF-270) (if applicable).
    (4) Invention disclosure (if applicable).
    (5) Federally-owned property report: In accordance with Sec. 
12.72(f), a grantee must submit an inventory of all Federally owned 
property (as distinct from property acquired with grant funds) for which 
it is accountable and request disposition instructions from the Federal 
agency of property no longer needed.
    (c) Cost adjustment. The Federal agency will, within 90 days after 
receipt of reports in paragraph (b) of this section, make upward or 
downward adjustments to the allowable costs.
    (d) Cash adjustments. (1) The Federal agency will make prompt 
payment to the grantee for allowable reimbursable costs.
    (2) The grantee must immediately refund to the Federal agency any 
balance of unobligated (unencumbered) cash advanced that is not 
authorized to be retained for use on other grants.



Sec. 12.91  Later disallowances and adjustments.

    The closeout of a grant does not affect:
    (a) The Federal agency's right to disallow costs and recover funds 
on the basis of a later audit or other review;
    (b) The grantee's obligation to return any funds due as a result of 
later refunds, corrections, or other transactions;
    (c) Records retention as required in Sec. 12.82;
    (d) Property management requirements in Sec. Sec. 12.71 and 12.72; 
and
    (e) Audit requirements in Sec. 12.66.



Sec. 12.92  Collection of amounts due.

    (a) Any funds paid to a grantee in excess of the amount to which the 
grantee is finally determined to be entitled under the terms of the 
award constitute a debt to the Federal Government. If not paid within a 
reasonable period after demand, the Federal agency may reduce the debt 
by:
    (1) Making an administrative offset against other requests for 
reimbursements,
    (2) Withholding advance payments otherwise due to the grantee, or
    (3) Other action permitted by law.
    (b) Except where otherwise provided by statutes or regulations, the 
Federal agency will charge interest on an overdue debt in accordance 
with the Federal Claims Collection Standards (4 CFR Ch. II). The date 
from which interest is computed is not extended by litigation or the 
filing of any form of appeal.

                         Entitlements [Reserved]

Subpart D [Reserved]



       Subpart E_Buy American Requirements for Assistance Programs

    Source: 59 FR 36715, July 19, 1994, unless otherwise noted.

                       Buy American Act--Supplies



Sec. 12.700  Scope.

    This subpart implements section 307 of the Omnibus Consolidated 
Appropriations Act of 1997 (Public Law 104-208, 110 Stat. 3009) and 
section 501 of the Energy and Water Development Appropriations Act, 1997 
(Public Law 104-206, 110 Stat. 2984). For awards made under the 
authority of section 307(a) of Public Law 104-208, this subpart requires 
that no funds made available in the Act may be expended by an entity 
unless the entity agrees that in expending the funds the entity will 
comply with sections 2 through 4 of the Act of March 3, 1933 (41 U.S.C. 
10a-10c; popularly known as the ``Buy American Act''). It applies to 
procurement contracts under grants and cooperative agreements which 
provide for the purchase of equipment and products. Section 501 of 
Public Law 104-206, 110 Stat. 2984, only applies to awards made by the 
Bureau of Reclamation. In addition, for these awards, there is only a 
requirement that in providing financial assistance to, or entering into 
any contract with, any entity using funds made available in this Act, 
the Secretary, to the greatest extent practicable, will provide to the 
entity a

[[Page 316]]

notice describing a statement within the Act made by Congress. This 
statement concerns the sense of the Congress that to the greatest extent 
practicable, all equipment and products purchased with funds made 
available in the Act, should be American-made. Therefore, for Fiscal 
Year 1997 awards, only the requirements in Section 12.700 and 12.710 
will apply to awards made by the Bureau of Reclamation.

[61 FR 68667, Dec. 30, 1996]



Sec. 12.705  Definitions.

    Components, as used in this subpart, means those articles, 
materials, and supplies incorporated directly into the end products.
    Concern, as used in this subpart, means any business entity 
organized for profit (even if its ownership is in the hands of a 
nonprofit entity) with a place of business located in the United States 
and which makes a significant contribution to the U.S. economy through 
payment of taxes and/or use of American products, to an individual, 
partnership, corporation, joint venture, association, or cooperative.
    Domestic end product, as used in this subpart, means (a) an 
unmanufactured end product mined or produced in the United States; or 
(b) an end product manufactured in the United States, if the cost of its 
components mined, produced, or manufactured in the United States exceeds 
50 percent of the cost of all its components. (In determining if an end 
product is domestic, only the end product and its components shall be 
considered.) The cost of each component includes transportation costs to 
the place of incorporation into the end product and any applicable duty 
(whether or not a duty-free entry certificate is issued). Components of 
foreign origin of the same class or kind for which determinations have 
been made in accordance with Section 12.710(d) (3) and (4) are treated 
as domestic. Scrap generated, collected, and prepared for processing in 
the United States is considered domestic. On acquisitions above $25,000 
in value, components of Canadian origin are treated as domestic.
    Domestic offer, as used in this subpart, means an offered price for 
a domestic end product, including transportation to destination.
    End product, as used in this subpart, means those articles, 
materials, and supplies to be acquired for public use under the grant, 
cooperative agreement, or procurement contract awarded under the grant 
or cooperative agreement.
    Foreign end product, as used in this subpart, means an end product 
other than a domestic end product.
    Foreign offer, as used in this subpart, means an offered price for a 
foreign end product, including transportation to destination and duty 
(whether or not a duty-free entry certificate is issued).
    Instrumentality, as used in this subpart, does not include an agency 
or division of the government of a country.
    Labor surplus area, as used in this subpart, means a geographical 
area identified by the Department of Labor in accordance with 20 CFR 
part 654, subpart A, as an area of concentrated unemployment or 
underemployment or an area of labor surplus.
    Labor surplus area concern, as used in this subpart, means a concern 
that together with its first-tier subcontractors will perform 
substantially in labor surplus areas. Performance is substantially in 
labor surplus areas if the costs incurred under the contract on account 
of manufacturing, production, or performance of appropriate services in 
labor surplus areas exceed 50 percent of the contract price.
    United States, as used in this subpart, means the states thereof, 
the District of Columbia, and the territories and possessions of the 
United States.

[59 FR 36715, July 19, 1994, as amended at 61 FR 68668, Dec. 30, 1996]



Sec. 12.710  Policy.

    (a) In the case of any equipment or product that may be authorized 
to be purchased with financial assistance provided using funds made 
available under Public Law 104-208, it is the sense of Congress that 
entities receiving the assistance should, in expending the assistance, 
purchase only American-made equipment and products.
    (b) In awarding financial assistance under Public Law 104-208, 110 
Stat. 3009, bureaus and offices excluding the Bureau of Reclamation will 
provide to

[[Page 317]]

each recipient of the assistance the following notice:

    Notice: Pursuant to sec. 307 of the Omnibus Consolidated 
Appropriations Act of 1997, Public Law 104-208, 110 Stat. 3009, please 
be advised of the following:
    In the case of any equipment or product that may be authorized to be 
purchased with financial assistance provided using funds made available 
in this act, it is the sense of the Congress that entities receiving the 
assistance should, in expending the assistance, purchase only American-
made equipment and products.

    (c) In awarding financial assistance using funds made available 
under Public Law 104-206, to the greatest extent practicable, the Bureau 
of Reclamation will provide to each recipient of the assistance the 
following notice:

    Notice: Pursuant to sec. 501 of the Energy and Water Development 
Appropriations Act, 1997, Public Law 104-206, 110 Stat. 2984, please be 
advised of the following:
    It is the sense of the Congress, that to the greatest extent 
practicable, all equipment and products purchased with funds made 
available in this act should be American-made.

    (d) The Buy American Act requires that only domestic end products be 
acquired for public use, except articles, materials, and supplies--
    (1) For use outside the United States;
    (2) For which the cost would be unreasonable, as determined in 
accordance with Sec. 12.715;
    (3) For which the agency head determines that domestic preference 
would be inconsistent with the public interest; or
    (4) That are not mined, produced, or manufactured in the United 
States in sufficient and reasonable available commercial quantities, of 
a satisfactory quality (see Sec. 12.720).
    (e) The grantee's contracting officer may make a nonavailability 
determination under Sec. 12.710(d)(4) for a procurement contract 
awarded under the grant or cooperative agreement if--
    (1) The procurement action was conducted by full and open 
competition;
    (2) The procurement action was publicly advertised; and
    (3) No offer for a domestic end product was received; or
    (f) The head of the grantee's contracting activity or designee may 
make a nonavailability determination under Sec. 12.710(d)(4) for any 
circumstance other than specified in paragraph (e) of this section.

[59 FR 36715, July 19, 1994, as amended at 59 FR 65500, Dec. 20, 1994; 
61 FR 39084, July 26, 1996; 61 FR 68668, Dec. 30, 1996]



Sec. 12.715  Evaluating offers.

    (a) Unless the head of the grantee organization or a designee at a 
level no lower than the grantee's designated awarding official 
determines otherwise, the offered price of a domestic end product is 
unreasonable when the lowest acceptable domestic offer exceeds the 
lowest acceptable foreign offer (see Sec. 12.705), inclusive of duty, 
by--
    (1) More than 6 percent, if the domestic offer is from a large 
business that is not a labor surplus area concern; or
    (2) More than 12 percent, if the domestic offer is from a small 
business concern or any labor surplus area concern.
    (b) The evaluation in paragraph (a) of this section shall be applied 
on an item-by-item basis or to any group of items on which award may be 
made as specifically provided by the solicitation.
    (c) If an award of more than $250,000 would be made to a domestic 
concern if the 12-percent factor were applied, but not if the 6-percent 
factor were applied, the head of the grantee organization or a designee 
at a level no lower than the grantee's designated awarding official 
shall decide whether award to the domestic concern would involve 
unreasonable cost.



Sec. 12.720  Excepted articles, materials, and supplies.

    (a) As indicated in the Federal Acquisition Regulation (FAR), one or 
more agencies have determined that the articles, materials, and supplies 
on the list referred to in paragraph (b) of this section are not mined, 
produced, or manufactured in the United States in sufficient and 
reasonably available commercial quantities of a satisfactory quality. 
This referenced list in paragraph (b) of this section is furnished for 
information only; an article, material or supply listed therein may be 
treated as domestic only when the head of the grantee organization or a 
designee at a

[[Page 318]]

level no lower than the grantee's designated awarding official has made 
a determination that it is not mined, produced, or manufactured in the 
United States in sufficient and reasonably available quantities of a 
satisfactory quality.
    (b) Refer to the current list of excepted articles, materials, and 
supplies in FAR 25.108 (48 CFR 25.108).



Sec. 12.725  Solicitation provisions and contract clause.

    (a) When quotations are obtained orally, vendors shall be informed 
that only domestic end products, other than end products excepted on a 
blanket or individual basis (see Sec. 12.720), shall be acceptable, 
unless the price for an offered domestic end product is unreasonable 
(see Sec. 12.715).
    (b) The grantee awarding officer shall insert the clause at Sec. 
12.730, Buy American Act--Supplies, in solicitations for procurement 
contracts awarded under the grant or cooperative agreement for the 
purchase of supplies, or for services involving the furnishing of 
supplies, for use within the United States.



Sec. 12.730  Buy American Act--Supplies.

    As prescribed in Sec. 12.725, insert the following clause:

                       Buy American Act--Supplies

    (a) The Buy American Act (41 U.S.C. 10) provides that the Government 
give preference to domestic end products.
    Components, as used in this clause, means those articles, materials, 
and supplies incorporated directly into the end products.
    Domestic end product, as used in this clause, means an 
unmanufactured end product mined or produced in the United States, if 
the cost of its components mined, produced, or manufactured in the 
United States exceeds 50 percent of the cost of all its components. 
Components of foreign origin of the same class or kind as the products 
referred to in paragraphs (b)(2) or (3) of this clause shall be treated 
as domestic.
    End products, as used in this clause, means those articles, 
materials, and supplies to be acquired for public use under this 
contract.
    (b) The contractor shall deliver only domestic end products, except 
those--
    (1) For use outside the United States;
    (2) That the Government determines are not mined, produced, or 
manufactured in the United States in sufficient and reasonably available 
commercial quantities of a satisfactory quality;
    (3) For which the head of the grantee organization or a designee at 
a level no lower than the grantee's designated awarding official 
determines that domestic preference would be inconsistent with the 
public interest; or
    (4) For which the head of the grantee organization or a designee at 
a level no lower than the grantee's designated awarding official 
determines the cost to be unreasonable (see Sec. 12.715).

                             (End of clause)

                Buy American Act--Construction Materials



Sec. 12.800  Scope.

    This subpart implements the Buy American Act (41 U.S.C. 10). It 
applies to procurement contracts awarded under a grant or cooperative 
agreement for the construction, alteration, or repair of any public 
building or public work in the United States.



Sec. 12.805  Definitions.

    Components, as used in this subpart, means those articles, 
materials, and supplies incorporated directly into construction 
materials.
    Construction, as used in this subpart, means construction, 
alteration, or repair of any public building or public work in the 
United States.
    Construction materials, as used in this subpart, means an article, 
material, and supply brought to the construction site for incorporation 
into the building or work.
    Construction material also includes an item brought to the site pre-
assembled from articles, materials, and supplies. However, emergency 
life safety systems, such as emergency lighting, fire alarm, and audio 
evacuation systems, which are discrete systems incorporated into a 
public building or work and which are produced as a complete system, 
shall be evaluated as a single and distinct construction material 
regardless of when or how the individual parts or components of such 
systems are delivered to the construction site.
    Domestic construction material, as used in this section, means: (a) 
An unmanufactured construction material mined or produced in the United 
States, or (b) a construction material manufactured in the United 
States, if the cost of its

[[Page 319]]

components mined, produced, or manufactured in the United States exceeds 
50 percent of the cost of all its components. (In determining whether a 
construction material is domestic, only the construction material and 
its components shall be considered.) The cost of each component includes 
transportation costs to the place of incorporation into the construction 
material and any applicable duty (whether or not a duty-free entry 
certificate is issued). Components of foreign origin of the same class 
or kind for which determinations have been made in accordance with Sec. 
12.810(a)(3) are treated as domestic.
    Foreign construction material, as used in this section, means as 
construction material other than a domestic construction material.
    United States (see Sec. 12.705).



Sec. 12.810  Policy.

    (a) The Buy American Act requires that only domestic construction 
materials be used in construction in the United States, except when--
    (1) The cost would be unreasonable as determined in accordance with 
Sec. 12.815;
    (2) The head of the grantee organization or a designee at a level no 
lower than the grantee's designated awarding official determines that 
use of a particular domestic construction material would be 
impracticable; or
    (3) The head of the grantee organization or a designee at a level no 
lower than the grantee's designated awarding official determines the 
construction material is not mined, produced, or manufactured in the 
United States in sufficient and reasonably available commercial 
quantities of a satisfactory quality (see Sec. 12.720).
    (b) When it is determined for any reasons stated in this section 
that certain foreign construction materials may be used, the excepted 
materials shall be listed in the agreement. Findings justifying the 
exception shall be available for public inspection.



Sec. 12.815  Evaluating offers.

    (a) The restrictions of the Buy American Act do not apply when the 
head of the grantee organization or a designee at a level no lower than 
the grantee's designated awarding official determines that using a 
particular domestic construction material would unreasonably increase 
the cost or would be impracticable.
    (b) When proposed awards are submitted to the head of the grantee 
organization or a designee at a level no lower than the grantee's 
designated awarding official for approval, each submission shall include 
a description of the materials, including unit and quantity, estimated 
costs, location of the construction project, name and address of the 
proposed contractor, and a detailed justification of the 
impracticability of using domestic materials.



Sec. 12.820  Violations.

    Violation of the Buy American Act in the performance of a 
procurement construction contract under a grant or cooperative agreement 
is a cause for debarment. Information concerning a failure to comply 
with the clause at Sec. 12.830, Buy American Act--Construction 
Materials, shall be promptly reported, investigated, and referred, when 
appropriate to the appropriate U.S. Department of the Interior employee 
responsible for administering the grant or cooperative agreement. (For 
debarment procedures, see subpart D of this part).



Sec. 12.825  Solicitation provision and contract clause.

    The grantee awarding official shall insert the clause at Sec. 
12.830, Buy American Act--Construction Materials, in solicitations for 
procurement contracts awarded under a grant or cooperative agreement for 
construction inside the United States.



Sec. 12.830  Buy American Act--Construction materials.

    As prescribed in Sec. 12.825, insert the following clause in 
solicitations for procurement contracts awarded under a grant or 
cooperative agreement for construction inside the United States:

                Buy American Act--Construction Materials

    (a) The Buy American Act (41 U.S.C. 10) provides that the Government 
give preference to domestic construction material.

[[Page 320]]

    Components, used in this clause, means those articles, materials, 
and supplies incorporated directly into construction materials.
    Construction material, as used in this clause, means an article, 
material, or supply brought to the construction site for incorporation 
into the building or work. Construction material also includes an item 
brought to the site pre-assembled from articles, materials or supplies. 
However, emergency life safety systems, such as emergency lighting, fire 
alarm, and audio evacuation systems, which are discrete systems 
incorporated into a public building or work and which are produced as a 
complete system, shall be evaluated as a single and distinct 
construction material regardless of when or how the individual parts or 
components of such systems are delivered to the construction site.
    Domestic construction material, as used in this clause, means (a) an 
unmanufactured construction material mined or produced in the United 
States, or (b) a construction material manufactured in the United 
States, if the cost of its components mined, produced, or manufactured 
in the United States exceeds 50 percent of the cost of all its 
components. Components of foreign origin of the same class or kind as 
the construction materials determined to be unavailable pursuant to 
Sec. 12.810(a)(3) of 43 CFR part 12, subpart E shall be treated as 
domestic.
    (b) The contractor agrees that only domestic construction material 
will be used by the contractor, subcontractors, materialmen, and 
suppliers in the performance of this agreement, except for foreign 
construction materials, if any, listed in this agreement.

                             (End of clause)



Subpart F_Uniform Administrative Requirements for Grants and Agreements 
 
 With Institutions of Higher Education, Hospitals, and Other Non-Profit 
                              Organizations

    Source: 60 FR 17238, Apr. 5, 1995, unless otherwise noted.

                                 General



Sec. 12.901  Purpose.

    This subpart establishes uniform administrative requirements for 
Federal grants and agreements awarded to institutions of higher 
education, hospitals, and other non-profit organizations.



Sec. 12.902  Definitions.

    Accrued expenditures means the charges incurred by the recipient 
during a given period requiring the provision of funds for:
    (1) Goods and other tangible property received;
    (2) Services performed by employees, contractors, subrecipients, and 
other payees; and,
    (3) Other amounts becoming owed under programs for which no current 
services or performance is required.
    Accrued income means the sum of:
    (1) Earnings during a given period from:
    (i) Services performed by the recipient, and
    (ii) Goods and other tangible property delivered to purchasers, and
    (2) Amounts becoming owed to the recipient for which no current 
services or performance is required by the recipient.
    Acquisition cost of equipment means the net invoice price of the 
equipment, including the cost of modifications, attachments, 
accessories, or auxiliary apparatus necessary to make the property 
usable for the purpose for which it was acquired. Other charges, such as 
the cost of installation, transportation, taxes, duty or protective in-
transit insurance, shall be included or excluded from the unit 
acquisition cost in accordance with the recipient's regular accounting 
practices.
    Advance means a payment made by Treasury check or other appropriate 
payment mechanism to a recipient upon its request either before outlays 
are made by the recipient or through the use of predetermined payment 
schedules.
    Award means financial assistance that provides support or 
stimulation to accomplish a public purpose. Awards include grants and 
other agreements in the form of money or property in lieu of money, by 
the Federal Government to an eligible recipient. The term does not 
include: technical assistance, which provides services instead of money; 
other assistance in the form of loans, loan guarantees, interest 
subsidies, or insurance; direct payments of any kind to individuals; 
and, contracts which are required to be entered into

[[Page 321]]

and administered under procurement laws and regulations.
    Cash contributions means the recipient's cash outlay, including the 
outlay of money contributed to the recipient by third parties.
    Closeout means the process by which a Federal agency determines that 
all applicable administrative actions and all required work of the award 
have been completed by the recipient and Federal awarding agency.
    Contract means a procurement contract under an award or subaward, 
and a procurement subcontract under a recipient's or subrecipient's 
contract.
    Cost sharing or matching means that portion of project or program 
costs not borne by the Federal Government.
    Date of completion means the date on which all work under an award 
is completed or the date on the award document, or any supplement or 
amendment thereto, on which Federal sponsorship ends.
    Disallowed costs means those charges to an award that the Federal 
awarding agency determines to be unallowable, in accordance with the 
applicable Federal cost principles or other terms and conditions 
contained in the award.
    Equipment means tangible nonexpendable personal property including 
exempt property charged directly to the award having a useful life of 
more than one year and an acquisition cost of $5,000 or more per unit. 
However, consistent with recipient policy, lower limits may be 
established.
    Excess property means property under the control of any Federal 
awarding agency that, as determined by the Secretary, is no longer 
required for its needs or the discharge of its responsibilities.
    Exempt property means tangible personal property acquired in whole 
or in part with Federal funds, where the Federal awarding agency has 
statutory authority to vest title in the recipient without further 
obligation to the Federal Government. An example of exempt property 
authority is contained in the Federal Grant and Cooperative Agreement 
Act (31 U.S.C. 6306), for property acquired under an award to conduct 
basic or applied research by a non-profit institution of higher 
education or non-profit organization whose principal purpose is 
conducting scientific research.
    Federal funds authorized means the total amount of Federal funds 
obligated by the Federal Government for use by the recipient. This 
amount may include any authorized carryover of unobligated funds from 
prior funding periods when permitted by agency regulations or agency 
implementing instructions.
    Federal share of real property, equipment, or supplies means that 
percentage of the property's acquisition costs and any improvement 
expenditures paid with Federal funds.
    Funding period means the period of time when Federal funding is 
available for obligation by the recipient.
    Intangible property and debt instruments means, but is not limited 
to, trademarks, copyrights, patents and patent applications and such 
property as loans, notes and other debt instruments, lease agreements, 
stock and other instruments of property ownership, whether considered 
tangible or intangible.
    Obligations means the amounts of orders placed, contracts and grants 
awarded, services received and similar transactions during a given 
period that require payment by the recipient during the same or a future 
period.
    Outlays or expenditures means charges made to the project or 
program. They may be reported on a cash or accrual basis. For reports 
prepared on a cash basis, outlays are the sum of cash disbursements for 
direct charges for goods and services, the amount of indirect expense 
charged, the value of third party in-kind contributions applied and the 
amount of cash advances and payments made to subrecipients. For reports 
prepared on an accrual basis, outlays are the sum of: cash disbursements 
for direct charges for goods and services; the amount of indirect 
expense incurred; the value of in-kind contributions applied; and the 
net increase (or decrease) in the amounts owed by the recipient for 
goods and other property received, for services performed by employees, 
contractors, subrecipients and other payees and other amounts becoming 
owed under programs for which no current services or performance are 
required.

[[Page 322]]

    Personal property means property of any kind except real property. 
It may be tangible, having physical existence, or intangible, having no 
physical existence, such as copyrights, patents, or securities.
    Prior approval means written approval by an authorized official 
evidencing prior consent.
    Program income means gross income earned by the recipient that is 
directly generated by a supported activity or earned as a result of the 
award (see exclusions in Sec. 12.924 (e) and (h)). Program income 
includes, but is not limited to, income from fees for services 
performed, the use or rental of real or personal property acquired under 
Federally-funded projects, the sale of commodities or items fabricated 
under an award, license fees and royalties on patients and copyrights, 
and interest on loans made with award funds. Interest earned on advances 
of Federal funds is not program income. Except as otherwise provided in 
Federal awarding agency regulations or the terms and conditions of the 
award, program income does not include the receipt of principal on 
loans, rebates, credits, discounts, etc., or interest earned on any of 
them.
    Project costs means all allowable costs, as set forth in the 
applicable Federal cost principles, incurred by a recipient and the 
value of the contributions made by third parties in accomplishing the 
objectives of the award during the project period.
    Project period means the period established in the award document 
during which Federal sponsorship begins and ends.
    Property means, unless otherwise stated, real property, equipment, 
supplies, intangible property and debt instruments.
    Real property means land, including land improvements, structures 
and appurtenances thereto, but excludes movable machinery and equipment.
    Recipient means an organization receiving financial assistance 
directly from Federal awarding agencies to carry out a project or 
program. The term includes public and private institutions of higher 
education, public and private hospitals, and other quasi-public and 
private non-profit organizations such as, but not limited to, community 
action agencies, research institutes, educational associations, and 
health centers. The term may include, at the discretion of the Federal 
awarding agency, foreign or international organizations (such as 
agencies of the United Nations) which are recipients, subrecipients, or 
contractors or subcontractors of recipients or subrecipients. The term 
does not include government-owned contractor-operated facilities or 
research centers providing continued support for mission-oriented, 
large-scale programs that are government-owned or controlled, or are 
designated as Federally-funded research and development centers.
    Research and development means all research activities, both basic 
and applied, and all development activities that are supported at 
universities, colleges, and other non-profit institutions.
    (1) Research is defined as a systematic study directed toward fuller 
scientific knowledge or understanding of the subject studied.
    (2) Development is the systematic use of knowledge and understanding 
gained from research directed toward the production of useful materials, 
devices, systems, or methods, including design and development of 
prototypes and processes. The term research also includes activities 
involving the training of individuals in research techniques where such 
activities utilize the same facilities as other research and development 
activities and where such activities are not included in the instruction 
function.
    Small awards means a grant or cooperative agreement not exceeding 
the small purchase threshold fixed at 41 U.S.C. 403(11) (currently 
$100,000).
    Subaward means an award of financial assistance in the form of 
money, or property in lieu of money, made under an award by a recipient 
to an eligible subrecipient or by a subrecipient to a lower tier 
subrecipient. The term includes financial assistance when provided by 
any legal agreement, even if the agreement is called a contract, but 
does not include procurement of goods and services nor does it include 
any form of assistance which is excluded

[[Page 323]]

from the definition of ``award'' in this section.
    Subrecipient means the legal entity to which a subaward is made and 
which is accountable to the recipient for the use of the funds provided. 
The term may include foreign or international organizations (such as 
agencies of the United Nations) at the discretion of the Federal 
awarding agency.
    Supplies means all personal property excluding equipment, intangible 
property, and debt instruments as defined in this section, and 
inventions of a contractor conceived or first actually reduced to 
practice in the performance of work under a funding agreement (``subject 
inventions''), as defined in 37 CFR part 401, ``Rights to Inventions 
Made by Nonprofit Organizations and Small Business Firms Under 
Government Grants, Contracts, and Cooperative Agreements.''
    Suspension means an action by a Federal awarding agency that 
temporarily withdraws Federal sponsorship under an award, pending 
corrective action by the recipient or pending a decision to terminate 
the award by the Federal awarding agency. Suspension of an award is a 
separate action from suspension under the Department of the Interior 
Regulations implementing E.O.'s 12549 and 12689, ``Debarment and 
Suspension.'' See subpart D of 43 CFR part 12.
    Termination means the cancellation of Federal sponsorship, in whole 
or in part, under an agreement at any time prior to the date of 
completion.
    Third party in-kind contributions means the value of noncash 
contributions provided by non-Federal third parties. Third party in-kind 
contributions may be in the form of real property, equipment, supplies 
and other expendable property, and the value of goods and services 
directly benefiting and specifically identifiable to the project or 
program.
    Unliquidated obligations, for financial reports prepared on a cash 
basis, means the amount of obligations incurred by the recipient that 
have not been paid. For reports prepared on an accrued expenditure 
basis, they represent the amount of obligations incurred by the 
recipient for which an outlay has not been recorded.
    Unobligated balance means the portion of the funds authorized by 
Federal awarding agency that has not been obligated by the recipient and 
is determined by deducting the cumulative obligations from the 
cumulative funds authorized.
    Unrecovered indirect cost means the difference between the amount 
awarded and the amount which could have been awarded under the 
recipient's approved negotiated indirect cost rate.
    Working capital advance means a procedure whereby funds are advanced 
to the recipient to cover its estimated disbursement needs for a given 
initial period.



Sec. 12.903  Effect on other issuances.

    For awards subject to this subpart, all administrative requirements 
of codified program regulations, program manuals, handbooks and other 
nonregulatory materials which are inconsistent with the requirements of 
this subpart shall be superseded, except to the extent they are required 
by statute, or authorized in accordance with the deviations provision in 
Section 12.904.



Sec. 12.904  Deviations.

    The Office of Management and Budget (OMB) may grant exceptions for 
classes of grants or recipients subject to the requirements of this 
subpart when exceptions are not prohibited by statute. However, in the 
interest of maximum uniformity, exceptions from the requirements of this 
subpart shall be permitted only in unusual circumstances. Federal 
awarding agencies may apply more restrictive requirements to a class of 
recipients when approved by OMB. All requests for class deviations shall 
be processed through the Assistant Secretary-Policy, Management, and 
Budget. Federal awarding agencies may apply less restrictive 
requirements when awarding small awards, except for those requirements 
which are statutory. Exceptions on a case-by-case basis may also be made 
by Federal awarding agencies. Bureau/office application of less 
restrictive requirements when awarding small awards, except for those 
requirements which are statutory, as well as exceptions on a case-by-
case basis, will be

[[Page 324]]

handled by designated officials identified in bureau/office procedures.



Sec. 12.905  Subawards.

    Unless sections of this subpart specifically exclude subrecipients 
from coverage, the provisions of this subpart shall be applied to 
subrecipients performing work under awards if such subrecipients are 
institutions of higher education, hospitals, or other non-profit 
organizations. State and local government subrecipients are subject to 
the provisions of regulations implementing the grants management common 
rule, ``Uniform Administrative Requirements for Grants and Cooperative 
Agreements to State and Local Governments,'' 43 CFR part 12.

                         Pre-Award Requirements



Sec. 12.910  Purpose.

    Sections 12.011 through 12.917 prescribe forms and instructions and 
other pre-award matters to be used in applying for Federal awards.



Sec. 12.911  Pre-award policies.

    (a) Use of Grants and Cooperative Agreements, and Contracts. In each 
instance, the Federal awarding agency shall decide on the appropriate 
award instrument (i.e., grant, cooperative agreement, or contract). The 
Federal Grant and Cooperative Agreement Act (31 U.S.C. 6301-6308) 
governs the use of grants, cooperative agreements and contracts. A grant 
or cooperative agreement shall be used only when the principal purpose 
of a transaction is to accomplish a public purpose of support or 
stimulation authorized by Federal statute. The statutory criterion for 
choosing between grants and cooperative agreements is that for the 
latter, ``substantial involvement is expected between the executive 
agency and the State, local government, or other recipient when carrying 
out the activity contemplated in the agreement.'' Contracts shall be 
used when the principal purpose is acquisition of property or services 
for the direct benefit or use of the Federal Government.
    (b) Public Notice and Priority Setting. Federal awarding agencies 
shall notify the public of their funding priorities for discretionary 
grant programs, unless funding priorities are established by Federal 
statute.



Sec. 12.912  Forms for applying for Federal assistance.

    (a) Federal awarding agencies shall comply with the applicable 
report clearance requirements of 5 CFR part 1320, ``Controlling 
Paperwork Burdens on the Public,'' with regard to all forms used by the 
Federal awarding agency in place of or as a supplement to the Standard 
Form 424 (SF-424) series.
    (b) Applicants shall use the SF-424 series or those forms and 
instructions prescribed by the Federal awarding agency.
    (c) For Federal programs covered by E.O. 12372, ``Intergovernmental 
Review of Federal Programs,'' the applicant shall complete the 
appropriate sections of the SF-424 (Application for Federal Assistance) 
indicating whether the application was subject to review by the State 
Single Point of Contact (SPOC). The name and address of the SPOC for a 
particular State can be obtained from the Federal awarding agency or the 
Catalog of Federal Domestic Assistance. The SPOC shall advise the 
applicant whether the program for which application is made has been 
selected by that State for review. (See also 43 CFR part 9).
    (d) Federal awarding agencies that do not use the SF-424 form will 
indicate whether the application is subject to review by the State under 
E.O. 12372.



Sec. 12.914  Special award conditions.

    (a) Federal awarding agencies may impose additional requirements as 
needed, if an applicant or recipient:
    (1) Has a history of poor performance;
    (2) Is not financially stable;
    (3) Has a management system that does not meet the standards 
prescribed in this part;
    (4) Has not conformed to the terms and conditions of a previous 
award; or
    (5) Is not otherwise responsible.
    (b) Additional requirements may only be imposed provided that the 
applicant or recipient is notified in writing as to:
    (1) The nature of the additional requirements;

[[Page 325]]

    (2) The reason why the additional requirements are being imposed;
    (3) The nature of the corrective action needed;
    (4) The time allowed for completing the corrective actions; and
    (5) The method for requesting reconsideration of the additional 
requirements imposed.
    (c) Any special conditions shall be promptly removed once the 
conditions that prompted them have been corrected.



Sec. 12.915  Metric system of measurement.

    The Metric Conversion Act, as amended by the Omnibus Trade and 
Competitiveness Act (15 U.S.C. 205) declares that the metric system is 
the preferred measurement system for U.S. trade and commerce. The Act 
requires each Federal agency to establish a date or dates in 
consultation with the Secretary of Commerce when the metric system of 
measurement will be used in the agency's procurements, grants, and other 
business-related activities. Metric implementation may take longer where 
the use of the system is initially impractical or likely to cause 
significant inefficiencies in the accomplishment of Federally-funded 
activities. Federal awarding agencies will follow the provisions of E.O. 
12770, ``Metric usage in Federal Government Programs.'' When applicable, 
the awarding agency shall request that measurement-sensitive information 
to be included as part of the application, be expressed in metric units. 
When required by the awarding agency, for grants to recipients, the 
following term and condition will be incorporated into the grant:

                                Provision

    All progress and final reports, other reports, or
    All progress and final reports, other reports, or publications 
produced under this award shall employ the metric system of measurements 
to the maximum extent practicable. Both metric and inch-pound units 
(dual units) may be used if necessary during any transition period(s). 
However, the recipient may use non-metric measurements to the extent 
that the recipient has supporting documentation that the use of metric 
measurements is impracticable or is likely to cause significant 
inefficiencies or loss of markets to the recipient, such as when foreign 
competitors are producing competing products in non-metric units.

                           (End of provision)



Sec. 12.916  Resource Conservation and Recovery Act (RCRA) (Pub. L. 94-580 codified at 42 U.S.C. 6962).

    Under the Act, any State agency or agency of a political subdivision 
of a State that is using appropriated Federal funds must comply with 
section 6002 of RCRA. Section 6002 of RCRA requires that preference be 
given in procurement programs to the purchase of specific products 
containing recycled materials identified in guidelines developed by the 
Environmental Protection Agency (EPA) (40 CFR parts 247-254). 
Accordingly, State and local institutions of higher education and 
hospitals that receive direct Federal awards or other Federal funds 
shall give preference in their procurement programs funded with Federal 
funds to the purchase of recycled products pursuant to the EPA 
guidelines.



Sec. 12.917  Certifications and representations.

    Unless prohibited by statute or codified regulation, each Federal 
awarding agency is authorized and encouraged to allow recipients to 
submit certifications and representations required by statute, executive 
order, or regulation on an annual basis, if the recipients have ongoing 
and continuing relationships with the agency. Annual certifications and 
representations shall be signed by responsible officials with the 
authority to ensure recipients' compliance with the pertinent 
requirements.

                         Post-Award Requirements

                    Financial and Program Management



Sec. 12.920  Purpose of financial and program management.

    Sections 12.921 through 12.928 prescribe standards for financial 
management systems, methods for making payments and rules for: 
satisfying cost sharing and matching requirements, accounting for 
program income, budget revision approvals, making audits, determining 
allowability of cost, and establishing fund availability.

[[Page 326]]



Sec. 12.921  Standards for financial management systems.

    (a) Federal awarding agencies shall require recipients to relate 
financial data to performance data and develop unit cost information 
whenever practical.
    (b) Recipients' financial management systems shall provide for the 
following:
    (1) Accurate, current and complete disclosure of the financial 
results of each Federally-sponsored project or program in accordance 
with the reporting requirements set forth in Sec. 12.952. If a Federal 
awarding agency requires reporting on an accrual basis from a recipient 
that maintains its records on other than an accrual basis, the recipient 
shall not be required to establish an accrual accounting system. These 
recipients may develop such accrual data for their reports on the basis 
of an analysis of the documentation on hand.
    (2) Records that identify adequately the source and application of 
funds for Federally-sponsored activities. These records shall contain 
information pertaining to Federal awards, authorizations, obligations, 
unobligated balances, assets, outlays, income and interest.
    (3) Effective control over and accountability for all funds, 
property and other assets. Recipients shall adequately safeguard all 
such assets and assure they are used solely for authorized purposes.
    (4) Comparison of outlays with budget amounts for each award. 
Whenever appropriate, financial information should be related to 
performance and unit cost data.
    (5) Written procedures to minimize the time elapsing between the 
transfer of funds to the recipient from the U.S. Treasury and the 
issuance or redemption of checks, warrants or payments by other means 
for program purposes by the recipient. To the extent that the provisions 
of the Cash Management Improvement Act (CMIA) (31 U.S.C. 6501 note) 
govern, payment methods of State agencies, instrumentalities, and fiscal 
agents shall be consistent with CMIA Treasury-State Agreements or the 
CMIA default procedures codified at 31 CFR part 205, ``Withdrawal of 
Cash from the Treasury for Advances under Federal Grant and Other 
Programs.''
    (6) Written procedures for determining the reasonableness, 
allocability and allowability of costs in accordance with the provisions 
of the applicable Federal cost principles and the terms and conditions 
of the award.
    (7) Accounting records, including cost accounting records, that are 
supported by source documentation.
    (c) Where the Federal Government guarantees or insures the repayment 
of money borrowed by the recipient, the Federal awarding agency, at its 
discretion, may require adequate bonding and insurance if the bonding 
and insurance requirements of the recipient are not deemed adequate to 
protect the interest of the Federal Government.
    (d) The Federal awarding agency may require adequate fidelity bond 
coverage where the recipient lacks sufficient coverage to protect the 
Federal Government's interest.
    (e) Where bonds are required in the situations described above in 
Sec. 12.921 (c) and (d), the bonds shall be obtained from companies 
holding certificates of authority as acceptable sureties, as prescribed 
in 31 CFR part 223, ``Surety Companies Doing Business with the United 
States.''



Sec. 12.922  Payment.

    (a) Payment methods shall minimize the time elapsing between the 
transfer of funds from the United States Treasury and the issuance or 
redemption of checks, warrants, or payment by other means by the 
recipients. Payment methods of State agencies or instrumentalities shall 
be consistent with Treasury-State CMIA agreements or default procedures 
codified at 31 CFR part 205.
    (b) Recipients are to be paid in advance, provided they maintain or 
demonstrate the willingness to maintain or demonstrate written 
procedures that minimize the time elapsing between the transfer of funds 
and disbursement by the recipient, and financial management systems that 
meet the standards for fund control and accountability as established in 
Sec. 12.921. Cash advances to a recipient organization shall be limited 
to the minimum amounts needed and be timed to be in accordance with

[[Page 327]]

the actual, immediate cash requirements of the recipient organization in 
carrying out the purposes of the approved program or project. The timing 
and amount of cash advances shall be as close as is administratively 
feasible to the actual disbursements by the recipient organization for 
direct program or project costs and the proportionate share of any 
allowable indirect costs.
    (c) Whenever possible, advances will be consolidated to cover 
anticipated cash needs for all awards made by the Federal awarding 
agency to the recipient.
    (1) Advance payment mechanisms include, but are not limited to, 
Treasury check and electronic funds transfer.
    (2) Advance payment mechanisms are subject to 31 CFR part 205.
    (3) Recipients shall be authorized to submit requests for advances 
and reimbursements at least monthly when electronic fund transfers are 
not used.
    (d) Requests for Treasury check advance payment shall be submitted 
on SF-270, ``Request for Advance or Reimbursement,'' or other forms as 
may be authorized by OMB. This form is not to be used when Treasury 
check advance payments are made to the recipient automatically through 
the use of a predetermined payment schedule or if precluded by special 
Federal awarding agency instructions for electronic funds transfer.
    (e) Reimbursement is the preferred method when the requirements in 
paragraph (b) of this section cannot be met. Federal awarding agencies 
may also use this method on any construction agreement, or if the major 
portion of the construction project is accomplished through private 
market financing or Federal loans, and the Federal assistance 
constitutes a minor portion of the project.
    (1) When the reimbursement method is used, the Federal awarding 
agency shall make payment within 30 days after receipt of the billing, 
unless the billing is improper.
    (2) Recipients shall be authorized to submit a request for 
reimbursement at least monthly when electronic funds transfers are not 
used.
    (f) If a recipient cannot meet the criteria for advance payments and 
the Federal awarding agency has determined that reimbursement is not 
feasible because the recipient lacks sufficient working capital, the 
Federal awarding agency may provide cash on a working capital advance 
basis. Under this procedure, the Federal awarding agency shall advance 
cash to the recipient to cover its estimated disbursement needs for an 
initial period generally geared to the awardee's disbursing cycle. 
Thereafter, the Federal awarding agency shall reimburse the recipient 
for its actual cash disbursements. The working capital advance method of 
payment shall not be used for recipients unwilling or unable to provide 
timely advances to their subrecipient to meet the subrecipient's actual 
cash disbursements.
    (g) To the extent available, recipients shall disburse funds 
available from repayments to and interest earned on a revolving fund, 
program income, rebates, refunds, contract settlements, audit recoveries 
and interest earned on such funds before requesting additional cash 
payments.
    (h) Unless otherwise required by statute, Federal awarding agencies 
shall not withhold payments for proper charges made by recipients at any 
time during the project period unless paragraph (h)(1) or (h)(2) of this 
section apply:
    (1) A recipient has failed to comply with the project objectives, 
the terms and conditions of the award, or Federal reporting 
requirements; or
    (2) The recipient or subrecipient is delinquent in a debt to the 
United States as defined in OMB Circular A-129, ``Managing Federal 
Credit Programs.'' Under such conditions, the Federal awarding agency 
may, upon reasonable notice, inform the recipient that payments shall 
not be made for obligations incurred after a specified date until the 
conditions are corrected or the indebtedness to the Federal Government 
is liquidated.
    (i) Standards governing the use of banks and other institutions as 
depositories of funds advanced under awards are as follows.
    (1) Except for situations described in paragraph (i)(2) of this 
section, Federal awarding agencies shall not require separate depository 
accounts for funds provided to a recipient or establish any

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eligibility requirements for depositories for funds provided to a 
recipient. However, recipients must be able to account for the receipt, 
obligation and expenditure of funds.
    (2) Advances of Federal funds shall be deposited and maintained in 
insured accounts whenever possible.
    (j) Consistent with the national goal of expanding opportunities for 
women-owned and minority-owned business enterprises, recipients are 
encouraged to use women-owned and minority-owned banks (a bank which is 
owned at least 50 percent by women or minority group members).
    (k) Recipients shall maintain advances of Federal funds in interest 
bearing accounts, unless paragraph (k) (1), (2) or (3) apply:
    (1) The recipient receives less than $120,000 in Federal awards per 
year.
    (2) The best reasonably available interest bearing account would not 
be expected to earn interest in excess of $250 per year on Federal cash 
balances.
    (3) The depository would require an average or minimum balance so 
high that it would not be feasible within the expected Federal and non-
Federal cash resources.
    (l) For those entities where CMIA and its implementing regulations 
do not apply, interest earned on Federal advances deposited in interest 
bearing accounts shall be remitted annually to Department of Health and 
Human Services, Payment Management System, P.O. Box 6021, Rockville, MD 
20852. Interest amounts up to $250 per year may be retained by the 
recipient for administrative expense. In keeping with Electronic Funds 
Transfer rules, (31 CFR part 206), interest should be remitted to the 
HHS Payment Management System through an electronic medium such as the 
FEDWIRE Deposit system. Recipients which do not have this capability 
should use a check. State universities and hospitals shall comply with 
CMIA, as it pertains to interest. If an entity subject to CMIA uses its 
own funds to pay pre-award costs for discretionary awards without prior 
written approval from the Federal awarding agency, it waives its right 
to recover the interest under CMIA.
    (m) Except as noted elsewhere in this subpart, only the following 
forms shall be authorized for the recipients in requesting advances and 
reimbursements. Federal agencies shall not require more than an original 
and two copies of these forms.
    (1) SF-270, Request for Advance or Reimbursement. Each Federal 
awarding agency shall adopt the SF-270 as a standard form for all 
nonconstruction programs where electronic funds transfer or 
predetermined advance methods are not used. Federal awarding agencies, 
however, have the option of using this form for construction programs in 
lieu of the SF-271, ``Outlay Report and Request for Reimbursement for 
Construction Programs.''
    (2) SF-271, Outlay Report and Request for Reimbursement for 
Construction Programs. Each Federal awarding agency shall adopt the SF-
271 as the standard form to be used for requesting reimbursement for 
construction programs. However, a Federal awarding agency may substitute 
the SF-270 when the Federal awarding agency determines that it provides 
adequate information to meet Federal needs.



Sec. 12.923  Cost sharing or matching.

    (a) All contributions, including cash and third party in-kind, shall 
be accepted as part of the recipient's cost sharing or matching when 
such contributions meet all of the following criteria:
    (1) Are verifiable from the recipient's records.
    (2) Are not included as contributions for any other Federally-
assisted project or program.
    (3) Are necessary and reasonable for proper and efficient 
accomplishment of project or program objectives.
    (4) Are allowable under the applicable cost principles.
    (5) Are not paid by the Federal Government under another award, 
except where authorized by Federal statute to be used for cost sharing 
or matching.
    (6) Are provided for in the approved budget when required by the 
Federal awarding agency.
    (7) Conform to other provisions of this subpart, as applicable.
    (b) Unrecovered indirect costs may be included as part of cost 
sharing or

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matching only with the prior approval of the Federal awarding agency.
    (c) Values for recipient contributions of services and property 
shall be established in accordance with the applicable cost principles. 
If a Federal awarding agency authorizes recipients to donate buildings 
or land for construction/facilities acquisition projects or long-term 
use, the value of the donated property for cost sharing or matching 
shall be the lesser of paragraph (c) (1) or (2) of this section:
    (1) The certified value of the remaining life of the property 
recorded in the recipient's accounting records at the time of donation.
    (2) The current fair market value. However, when there is sufficient 
justification, the Federal awarding agency may approve the use of the 
current fair market value of the donated property, even if it exceeds 
the certified value at the time of donation to the project.
    (d) Volunteer services furnished by professional and technical 
personnel, consultants, and other skilled and unskilled labor may be 
counted as cost sharing or matching if the service is an integral and 
necessary part of an approved project or program. Rates for volunteer 
services shall be consistent with those paid for similar work in the 
recipient's organization. In those instances in which the required 
skills are not found in the recipient organization, rates shall be 
consistent with those paid for similar work in the labor market in which 
the recipient competes for the kind of services involved. In either 
case, paid fringe benefits that are reasonable, allowable, and allocable 
may be included in the valuation.
    (e) When an employer other than the recipient furnishes the services 
of an employee, these services shall be valued at the employee's regular 
rate of pay (plus an amount of fringe benefits that are reasonable, 
allowable, and allocable, but exclusive of overhead costs), provided 
these services are in the same skill for which the employee is normally 
paid.
    (f) Donated supplies may include such items as expendable equipment, 
office supplies, laboratory supplies or workshop and classroom supplies. 
Value assessed to donated supplies included in the cost sharing or 
matching share shall be reasonable and shall not exceed the fair market 
value of the property at the time of the donation.
    (g) The method used for determining cost sharing or matching for 
donated equipment, buildings and land for which title passes to the 
recipient may differ according to the purpose of the award, if paragraph 
(g) (1) or (2) of this section apply:
    (1) If the purpose of the award is to assist the recipient to 
acquire equipment, buildings, or land, the total value of the donated 
property may be claimed as cost sharing or matching.
    (2) If the purpose of the award is to support activities that 
require the use of equipment, buildings or land, normally only 
depreciation or use charges for equipment and buildings may be made. 
However, the full value of equipment or other capital assets and fair 
rental charges for land may be allowed, provided that the Federal 
awarding agency has approved the charges.
    (h) The value of donated property shall be determined in accordance 
with the usual accounting policies of the recipient, with the following 
qualifications.
    (1) The value of donated land and buildings shall not exceed their 
fair market value at the time of donation to the recipient as 
established by an independent appraiser (e.g., certified real property 
appraiser or General Services Administration representative) and 
certified by a responsible official of the recipient.
    (2) The value of donated equipment shall not exceed the fair market 
value of equipment of the same age and condition at the time of 
donation.
    (3) The value of donated space shall not exceed the fair rental 
value of comparable space as established by an independent appraisal of 
comparable space and facilities in a privately-owned building in the 
same locality.
    (4) The value of loaned equipment shall not exceed its fair rental 
value.
    (i) The following requirements pertain to the recipient's supporting 
records for in-kind contributions from third parties.

[[Page 330]]

    (1) Volunteer services shall be documented and, to the extent 
feasible, supported by the same methods used by the recipient for its 
own employees.
    (2) The basis for determining the valuation for personal service, 
material, equipment, buildings and land shall be documented.



Sec. 12.924  Program income.

    (a) Federal awarding agencies shall apply the standards set forth in 
this section in requiring recipient organizations to account for program 
income related to projects financed in whole or in part with Federal 
funds.
    (b) Except as provided in paragraph (h) of this section, program 
income earned during the project period shall be retained by the 
recipient and, in accordance with Federal awarding agency regulations or 
the terms and conditions of the award, shall be used in one or more of 
the following ways:
    (1) Added to funds committed to the project or program by the 
Federal awarding agency and recipient and used to further eligible 
project or program objectives;
    (2) Used to finance the non-Federal share of the project or program; 
or
    (3) Deducted from the total project or program allowable cost in 
determining the net allowable costs upon which the Federal share of 
costs is based.
    (c) When an agency authorizes the disposition of program income as 
described in paragraph (b)(1) or (b)(2) of this section, program income 
in excess of any limits stipulated shall be used in accordance with 
paragraph (b)(3) of this section.
    (d) If the Federal awarding agency does not specify in its 
regulations or the terms and conditions of the award how program income 
is to be used, paragraph (b)(3) of this section shall apply 
automatically to all projects or programs except research. For awards 
that support research, paragraph (b)(1) of this section shall apply 
automatically unless the awarding agency indicates in the terms and 
conditions another alternative on the award or the recipient is subject 
to special award conditions, as indicated in Sec. 12.914.
    (e) Unless Federal awarding agency regulations or the terms and 
conditions of the award provide otherwise, recipients shall have no 
obligation to the Federal Government regarding program income earned 
after the end of the project period.
    (f) If authorized by Federal awarding agency regulations or the 
terms and conditions of the award, costs incident to the generation of 
program income may be deducted from gross income to determine program 
income, provided these costs have not been charged to the award.
    (g) Proceeds from the sale of property shall be handled in 
accordance with the requirements of the Property Standards (See 
Sec. Sec. 12.930 through 12.937).
    (h) Unless Federal awarding agency regulations or the terms and 
conditions of the award provide otherwise, recipients shall have no 
obligation to the Federal Government with respect to program income 
earned from license fees and royalties for copyrighted material, 
patents, patent applications, trademarks, and inventions produced under 
an award. However, Patent and Trademark Amendments (35 U.S.C. 18) apply 
to inventions made under an experimental, developmental, or research 
award.



Sec. 12.925  Revision of budget and program plans.

    (a) The budget plan is the financial expression of the project or 
program as approved during the award process. It may include either the 
Federal and non-Federal share, or only the Federal share, depending upon 
Federal awarding agency requirements. It shall be related to performance 
for program evaluation purposes whenever appropriate.
    (b) Recipients are required to report deviations from budget and 
program plans, and request prior approvals for budget and program plan 
revisions, in accordance with this section.
    (c) For nonconstruction awards, recipients shall request prior 
approvals from Federal awarding agencies for one or more of the 
following program or budget related reasons:
    (1) Change in the scope or the objective of the project or program 
(even if there is no associated budget revision requiring prior written 
approval).
    (2) Change in a key person specified in the application or award 
document.

[[Page 331]]

    (3) The absence for more than three months, or a 25 percent 
reduction in time devoted to the project, by the approved project 
director or principal investigator.
    (4) The need for additional Federal funding.
    (5) The transfer of amounts budgeted for indirect costs to absorb 
increases in direct costs, or vice versa, if approval is required by the 
Federal awarding agency.
    (6) The inclusion, unless waived by the Federal awarding agency, of 
costs that require prior approval in accordance with OMB Circular A-21, 
``Cost Principles for Institutions of Higher Education,'' OMB Circular 
A-122, ``Cost Principles for Non-Profit Organizations,'' or 45 CFR part 
74, appendix E, ``Principles for Determining Costs Applicable to 
Research and Development under Grants and Contracts with Hospitals,'' or 
48 CFR part 31, ``Contract Cost Principles and Procedures,'' as 
applicable.
    (7) The transfer of funds allotted for training allowances (direct 
payment to trainees) to other categories of expense.
    (8) Unless described in the application and funded in the approved 
award, the subaward, transfer or contracting out of any work under an 
award. This provision does not apply to the purchase of supplies, 
material, equipment or general support services.
    (d) No other prior approval requirements for specific items may be 
imposed unless a deviation has been approved by OMB.
    (e) Except for requirements listed in paragraph (c)(1) and (c)(4) of 
this section, Federal awarding agencies are authorized, at their option, 
to waive cost-related and administrative prior written approvals 
required by this subpart and OMB Circulars A-21 and A-122. Such waivers 
may include authorizating recipients to do any one or more of the 
following:
    (1) Incur pre-award costs 90 calendar days prior to award or more 
than 90 calendar days with the prior approval of the Federal awarding 
agency. All pre-award costs are incurred at the recipient's risk (i.e., 
the Federal awarding agency is under no obligation to reimburse such 
costs if for any reason the recipient does not receive an award or if 
the award is less than anticipated and inadequate to cover such costs).
    (2) Initiate a one-time extension of the expiration date of the 
award of up to 12 months unless one or more of the following conditions 
apply. For one-time extensions, the recipient must notify the Federal 
awarding agency in writing, with the supporting reasons and revised 
expiration date, at least 10 days before the expiration date specified 
in the award. This one-time extension may not be exercised merely for 
the purpose of using unobligated balances. The conditions that prevent 
issuance of a one-time extension are:
    (i) The terms and conditions of award prohibit the extension;
    (ii) The extension requires additional Federal funds; or
    (iii) The extension involves any change in the approved objectives 
or scope of the project.
    (3) Carry forward unobligated balances to subsequent funding 
periods.
    (4) For awards that support research, unless the Federal awarding 
agency provides otherwise in the award or in the agency's regulations, 
the prior approval requirements described in paragraph (e)(1) through 
(3) of this section are automatically waived (i.e., recipients need not 
obtain such prior approvals) unless one of the conditions included in 
paragraph (e)(2) applies.
    (f) The Federal awarding agency may, at its option, restrict the 
transfer of funds among direct cost categories or programs, functions 
and activities for awards in which the Federal share of the project 
exceeds $100,000 and the cumulative amount of the transfer exceeds or is 
expected to exceed 10 percent of the total budget as last approved by 
the Federal awarding agency. No Federal awarding agency shall permit a 
transfer that would cause any Federal appropriation or part thereof to 
be used for purposes other than those consistent with the original 
intent of the appropriation.
    (g) No other changes to nonconstruction budgets, except for the 
changes described in paragraph (j) of this section, require prior 
approval.
    (h) For construction awards, recipients shall request prior written 
approval promptly from Federal awarding

[[Page 332]]

agencies for budget revisions whenever paragraph (h) (1), (2) or (3) of 
this section apply:
    (1) the revision results from changes in the scope or the objective 
of the project or program;
    (2) additional Federal funds are needed to complete the project; or
    (3) the recipient requests a revision that involves specific costs 
for which prior written approval requirements may be imposed under Sec. 
12.927.
    (i) No other prior approval requirements for specific items will be 
imposed unless OMB approves a deviation.
    (j) When a Federal awarding agency makes an award that provides 
support for both construction and nonconstruction work, the Federal 
awarding agency may require the recipient to request prior approval 
before making any fund or budget transfers between the two types of work 
supported.
    (k) For both construction and nonconstruction awards, Federal 
awarding agencies shall require recipients to notify the Federal 
awarding agency in writing promptly whenever the amount of Federal 
authorized funds is expected to exceed the needs of the recipient for 
the project period by more than $5,000 or five percent of the Federal 
award, whichever is greater. This notification shall not be required if 
an application for additional funding is submitted for a continuation 
award.
    (l) When requesting approval for budget revisions, recipients shall 
use the budget forms that were used in the application unless the 
Federal awarding agency indicates that a letter of request suffices.
    (m) Within 30 calendar days from the date of receipt of the request 
for budget revisions, the Federal awarding agencies shall review the 
request and notify the recipient whether the budget revisions have been 
approved. If the revision is still under consideration at the end of 30 
calendar days, the Federal awarding agency shall inform the recipient in 
writing of the date when the recipient may expect the decision.



Sec. 12.926  Non-Federal audits.

    (a) Recipients and subrecipients that are institutions of higher 
education or other non-profit organizations (including hospitals) shall 
be subject to the audit requirements contained in the Single Audit Act 
Amendments of 1996 (31 U.S.C. 7501-7507) and revised OMB Circular A-133, 
``Audits of States, Local Governments, and Non-Profit Organizations.''
    (b) State and local governments shall be subject to the audit 
requirements contained in the Single Audit Act Amendments of 1996 (31 
U.S.C. 7501-7507) and revised OMB Circular A-133, ``Audits of States, 
Local Governments, and Non-Profit Organizations.''
    (c) For-profit hospitals not covered by the audit provisions of 
revised OMB Circular A-133 shall be subject to the audit requirements of 
the Federal awarding agencies.

[60 FR 17238, Apr. 5, 1995, as amended at 62 FR 45939, 45945, Aug. 29, 
1997]



Sec. 12.927  Allowable costs.

    Federal awarding agencies shall determine allowable costs in 
accordance with the type of entity incurring the costs, using the 
appropriate directive from the table below.

------------------------------------------------------------------------
    Entity incurring costs                Applicable directive
------------------------------------------------------------------------
State, local, or Federally     OMB Circular A-87, Cost Principles for
 recognized Indian Tribe.       State and Local Governments.
Non-profit organization......  OMB Circular A-122, Cost Principles for
                                Non-profit Organizations and 43 CFR
                                12.927(b).
Institution of Higher          OMB Circular A-21, Cost Principles for
 Education.                     Educational Institutions.
Hospital.....................  45 CFR part 74, appendix E, Principles
                                for Determining Costs Applicable to
                                Research and Development Under Grants
                                and Contracts with Hospitals.
Commercial organization or     48 CFR part 31, Contract Principles and
 non-profit organization        Procedures or uniform cost accounting
 listed in Attachment C of      standards that comply with cost
 OMB Circular A-122.            principles acceptable to the Federal
                                agency.
------------------------------------------------------------------------


[[Page 333]]



Sec. 12.928  Period of availability of funds.

    Where a funding period is specified, a recipient may charge to the 
grant only allowable costs resulting from obligations incurred during 
the funding period and any pre-award costs authorized by the Federal 
awarding agency.

                           Property Standards



Sec. 12.930  Purpose of property standards.

    Sections 12.931 through 12.937 set forth uniform standards governing 
management and disposition of property furnished by the Federal 
Government whose cost was charged to a project supported by a Federal 
award. Federal awarding agencies shall require recipients to observe 
these standards under awards and shall not impose additional 
requirements, unless specifically required by Federal statute. The 
recipient may use its own property management standards and procedures 
provided it observes the provisions of Sec. Sec. 12.931 through 12.937.



Sec. 12.931  Insurance coverage.

    Recipients shall, at a minimum, provide the equivalent insurance 
coverage for real property and equipment acquired with Federal funds as 
provided to property owned by the recipient. Federally-owned property 
need not be insured unless required by the terms and conditions of the 
award.



Sec. 12.932  Real property.

    Each Federal awarding agency shall prescribe requirements for 
recipients concerning the use and disposition of real property acquired 
in whole or in part under awards. Unless otherwise provided by statute, 
such requirements, at a minimum, shall contain the following.
    (a) Title to real property shall vest in the recipient subject to 
the condition that the recipient shall use the real property for the 
authorized purpose of the project as long as it is needed and shall not 
encumber the property without approval of the awarding agency.
    (b) The recipient shall obtain written approval by the Federal 
awarding agency for the use of real property in other Federally-
sponsored projects when the recipient determines that the property is no 
longer needed for the purpose of the original project. Use in other 
projects shall be limited to those under Federally-sponsored projects 
(i.e., awards) or programs that have purposes consistent with those 
authorized for support by the Department of the Interior.
    (c) When the real property is no longer needed as provided in 
paragraphs (a) and (b) of this section, the recipient shall request 
disposition instructions from the Federal awarding agency or its 
successor. The Federal awarding agency will give one or more of the 
following disposition instructions:
    (1) The recipient may be permitted to retain title without further 
obligation to the Federal Government after it compensates the Federal 
Government for that percentage of the current fair market value of the 
property attributable to the Federal participation in the project.
    (2) The recipient may be directed to sell the property under 
guidelines provided by the Federal awarding agency and pay the Federal 
Government for that percentage of the current fair market value of the 
property attributable to the Federal participation in the project (after 
deducting actual and reasonable selling and fix-up expenses, if any, 
from the sales proceeds). When the recipient is authorized or required 
to sell the property, proper sales procedures shall be established that 
provide for competition to the extent practicable and result in the 
highest possible return.
    (3) The recipient may be directed to transfer title to the property 
to the Federal Government or to an eligible third party provided that, 
in such cases, the recipient shall be entitled to compensation for its 
attributable percentage of the current fair market value of the 
property.



Sec. 12.933  Federally owned and exempt property.

    (a) Federally-owned property. (1) Title to Federally-owned property 
remains vested in the Federal Government. Recipients shall submit 
annually to the Federal awarding agency an inventory listing of 
Federally-owned property in their custody. Upon completion of the

[[Page 334]]

award or when the property is no longer needed, the recipient shall 
report the property to the Federal awarding agency for further 
utilization.
    (2) If the Federal awarding agency has no further need for the 
property, it shall be declared excess and reported to the General 
Services Administration, unless the Federal awarding agency has 
statutory authority to dispose of the property by alternative methods 
(e.g., the authority provided by the Federal Technology Transfer Act (15 
U.S.C. 3710(I)) to donate research equipment to educational and non-
profit organizations in accordance with E.O. 12821, ``Improving 
Mathematics and Science Education in Support of the National Education 
Goals.'') Appropriate instructions shall be issued to the recipient by 
the Federal awarding agency.
    (b) Exempt property. Exempt property. When statutory authority 
exists, the Federal awarding agency has the option to vest title to 
property acquired with Federal funds in the recipient without further 
obligation to the Federal Government and under conditions the Federal 
awarding agency considers appropriate. Such property is ``exempt 
property.'' Should a Federal awarding agency not establish conditions, 
title to exempt property upon acquisition shall vest in the recipient 
without further obligation to the Federal Government.



Sec. 12.934  Equipment.

    (a) Title to equipment acquired by a recipient with Federal funds 
shall vest in the recipient, subject to conditions of this section.
    (b) The recipient shall not use equipment acquired with Federal 
funds to provide services to non-Federal outside organizations for a fee 
that is less than private companies charge for equivalent services, 
unless specifically authorized by Federal statute, for as long as the 
Federal Government retains an interest in the equipment.
    (c) The recipient shall use the equipment in the project or program 
for which it was acquired as long as needed, whether or not the project 
or program continues to be supported by Federal funds, and shall not 
encumber the property without approval of the Federal awarding agency. 
When no longer needed for the original project or program, the recipient 
shall use the equipment in connection with its other Federally-sponsored 
activities, in the following order of priority:
    (1) Activities sponsored by the Federal awarding agency, then
    (2) Activities sponsored by other Federal agencies.
    (d) During the time that equipment is used on the project or program 
for which it was acquired, the recipient shall make it available for use 
on other projects or programs if such other use will not interfere with 
the work on the project or program for which the equipment was 
originally acquired. First preference for such other use shall be given 
to other projects or programs sponsored by the Federal awarding agency 
that financed the equipment; second preference shall be given to 
projects or programs sponsored by other Federal agencies. If the 
equipment is owned by the Federal Government, use on other activities 
not sponsored by the Federal Government shall be permissible if 
authorized by the Federal awarding agency. User charges shall be treated 
as program income.
    (e) When acquiring replacement equipment, the recipient may use the 
equipment to be replaced as trade-in or sell the equipment and use the 
proceeds to offset the costs of the replacement equipment subject to the 
approval of the Federal awarding agency.
    (f) The recipient's property management standards for equipment 
acquired with Federal funds and Federally-owned equipment shall include 
all of the following.
    (1) Equipment records shall be maintained accurately and shall 
include the following information.
    (i) A description of the equipment.
    (ii) Manufacturer's serial number, model number, Federal stock 
number, national stock number, or other identification number.
    (iii) Source of the equipment, including the award number.
    (iv) Whether title vests in the recipient or the Federal Government.
    (v) Acquisition date (or date received, if the equipment was 
furnished by the Federal Government) and cost.

[[Page 335]]

    (vi) Information from which one can calculate the percentage of 
Federal participation in the cost of the equipment (not applicable to 
equipment furnished by the Federal Government).
    (vii) Location and condition of the equipment and the date the 
information was reported.
    (viii) Unit acquisition cost.
    (ix) Ultimate disposition data, including date of disposal and sales 
price or the method used to determine current fair market value where a 
recipient compensates the Federal awarding agency for its share.
    (2) Equipment owned by the Federal Government shall be identified to 
indicate Federal ownership.
    (3) A physical inventory of equipment shall be taken and the results 
reconciled with the equipment records at least once every two years. Any 
differences between quantities determined by the physical inspection and 
those shown in the accounting records shall be investigated to determine 
the causes of the difference. The recipient shall, in connection with 
the inventory, verify the existence, current utilization, and continued 
need for the equipment.
    (4) A control system shall be in effect to insure adequate 
safeguards to prevent loss, damage, or theft of the equipment. Any loss, 
damage, or theft of equipment shall be investigated and fully 
documented; if the equipment was owned by the Federal Government, the 
recipient shall promptly notify the Federal awarding agency.
    (5) Adequate maintenance procedures shall be implemented to keep the 
equipment in good condition.
    (6) Where the recipient is authorized or required to sell the 
equipment, proper sales procedures shall be established which provide 
for competition to the extent practicable and result in the highest 
possible return.
    (g) When the recipient no longer needs the equipment, the equipment 
may be used for other activities in accordance with the following 
standards. For equipment with a current per unit fair market value of 
$5,000 or more, the recipient may retain the equipment for other uses 
provided that compensation is made to the original Federal awarding 
agency or its successor. The amount of compensation shall be computed by 
applying the percentage of Federal participation in the cost of the 
original project or program to the current fair market value of the 
equipment. If the recipient has no need for the equipment, the recipient 
shall request disposition instructions from the Federal awarding agency. 
The Federal awarding agency shall determine whether the equipment can be 
used to meet the agency's requirements. If no requirement exists within 
that agency, the availability of the equipment shall be reported to the 
General Services Administration by the Federal awarding agency to 
determine whether a requirement for the equipment exists in other 
Federal agencies. The Federal awarding agency shall issue instructions 
to the recipient no later than 120 calendar days after the recipient's 
request and the following procedures shall govern:
    (1) If so instructed or if disposition instructions are not issued 
within 120 calendar days after the recipient's request, the recipient 
shall sell the equipment and reimburse the Federal awarding agency an 
amount computed by applying to the sales proceeds the percentage of 
Federal participation in the cost of the original project or program. 
However, the recipient shall be permitted to deduct and retain from the 
Federal share $500 or ten percent of the proceeds, whichever is less, 
for the recipient's selling and handling expenses.
    (2) If the recipient is instructed to ship the equipment elsewhere, 
the recipient shall be reimbursed by the Federal Government by an amount 
which is computed by applying the percentage of the recipient's 
participation in the cost of the original project or program to the 
current fair market value of the equipment, plus any reasonable shipping 
or interim storage costs incurred.
    (3) If the recipient is instructed to otherwise dispose of the 
equipment, the recipient will be reimbursed by the Federal awarding 
agency for such costs incurred in its disposition.
    (h) The Federal awarding agency may reserve the right to transfer 
the title to the Federal Government or to a

[[Page 336]]

third party named by the Federal Government when the third party is 
otherwise eligible under existing statutes. The transfer shall be 
subject to the following standards.
    (1) The equipment shall be appropriately identified in the award or 
otherwise made known to the recipient in writing.
    (2) The Federal awarding agency shall issue disposition instructions 
within 120 calendar days after receipt of a final inventory. The final 
inventory shall list all equipment acquired with Federal funds and 
Federally-owned equipment. If the Federal awarding agency fails to issue 
disposition instructions within the 120-calendar-day period, the 
recipient shall apply the standards of this section, as appropriate.
    (3) When the Federal awarding agency exercises its right to take 
title, the equipment shall be subject to the provisions for Federally-
owned equipment.



Sec. 12.935  Supplies and other expendable property.

    (a) Title to supplies and other expendable property shall vest in 
the recipient upon acquisition. If there is a residual inventory of 
unused supplies exceeding $5,000 in total aggregate value upon 
termination or completion of the project or program and the supplies are 
not needed for any other Federally-sponsored project or program, the 
recipient shall retain the supplies for use on non-Federal sponsored 
activities or sell them, but shall, in either case, compensate the 
Federal Government for its share. The amount of compensation shall be 
computed in the same manner as for equipment.
    (b) The recipient shall not use supplies acquired with Federal funds 
to provide services to non-Federal outside organizations for a fee that 
is less than private companies charge for equivalent services, unless 
specifically authorized by Federal statute as long as the Federal 
Government retains an interest in the supplies.



Sec. 12.936  Intangible property.

    (a) The recipient may copyright any work that is subject to 
copyright and was developed, or for which ownership was purchased, under 
an award. The Federal awarding agency(ies) reserves a royalty-free, 
nonexclusive and irrevocable right to reproduce, publish, or otherwise 
use the work for Federal purposes, and to authorize others to do so.
    (b) Recipients are subject to applicable regulations governing 
patents and inventions, including government-wide regulations issued by 
the Department of Commerce at 37 CFR part 401, ``Rights to Inventions 
Made by Nonprofit Organizations and Small Business Firms Under 
Government Grants, Contracts and Cooperative Agreements.''
    (c) The Federal Government has the right to:
    (1) Obtain, reproduce, publish or otherwise use the data first 
produced under an award; and
    (2) Authorize others to receive, reproduce, publish, or otherwise 
use such data for Federal purposes.
    (d)(1) In addition, in response to a Freedom of Information Act 
(FOIA) request for research data relating to published research findings 
produced under an award that were used by the Federal Government in 
developing an agency action that has the force and effect of law, the 
Federal awarding agency shall request, and the recipient shall provide, 
within a reasonable time, the research data so that they can be made 
available to the public through the procedures established under the 
FOIA. If the Federal awarding agency obtains the research data solely in 
response to a FOIA request, the agency may charge the requester a 
reasonable fee equaling the full incremental cost of obtaining the 
research data. This fee should reflect costs incurred by the agency, the 
recipient, and applicable subrecipients. This fee is in addition to any 
fees the agency may assess under the FOIA (5 U.S.C. 552(a)(4)(A)).
    (2) The following definitions apply for purposes of this paragraph 
(d):
    (i) Research data is defined as the recorded factual material 
commonly accepted in the scientific community as necessary to validate 
research findings, but not any of the following: preliminary analyses, 
drafts of scientific papers, plans for future research, peer reviews, or 
communications with colleagues. This ``recorded'' material excludes 
physical objects (e.g., laboratory

[[Page 337]]

samples). Research data also do not include:
    (A) Trade secrets, commercial information, materials necessary to be 
held confidential by a researcher until they are published, or similar 
information which is protected under law; and
    (B) Personnel and medical information and similar information the 
disclosure of which would constitute a clearly unwarranted invasion of 
personal privacy, such as information that could be used to identify a 
particular person in a research study.
    (ii) Published is defined as either when:
    (A) Research findings are published in a peer-reviewed scientific or 
technical journal; or
    (B) A Federal agency publicly and officially cites the research 
findings in support of an agency action that has the force and effect of 
law.
    (iii) Used by the Federal Government in developing an agency action 
that has the force and effect of law is defined as when an agency 
publicly and officially cites the research findings in support of an 
agency action that has the force and effect of law.
    (e) Title to intangible property and debt instruments acquired under 
an award or subaward vests upon acquisition in the recipient. The 
recipient shall use that property for the originally-authorized purpose, 
and the recipient shall not encumber the property without approval of 
the Federal awarding agency. When no longer needed for the originally 
authorized purpose, disposition of the intangible property shall occur 
in accordance with the provisions of Sec. 12.934(g).

[63 FR 12188, Mar. 12, 1998, as amended at 65 FR 14407, 14418, Mar. 16, 
2000]



Sec. 12.937  Property trust relationship.

    Real property, equipment, intangible property and debt instruments 
that are acquired or improved with Federal funds shall be held in trust 
by the recipient as trustee for the beneficiaries of the project or 
program under which the property was acquired or improved. Agencies may 
require recipients to record liens or other appropriate notices of 
record to indicate that personal or real property has been acquired or 
improved with Federal funds and that use and disposition conditions 
apply to the property.

                          Procurement Standards



Sec. 12.940  Purpose of procurement standards.

    Sections 12.941 through 12.948 set forth standards for use by 
recipients in establishing procedures for the procurement of supplies 
and other expendable property, equipment, real property and other 
services with Federal funds. These standards are furnished to ensure 
that such materials and services are obtained in an effective manner and 
in compliance with the provisions of applicable Federal statutes and 
executive orders. No additional procurement standards or requirements 
shall be imposed by the Federal awarding agencies upon recipients, 
unless specifically required by Federal statute or executive order or 
approved by OMB.



Sec. 12.941  Recipient responsibilities.

    The standards contained in this section do not relieve the recipient 
of the contractual responsibilities arising under its contract(s). The 
recipient is the responsible authority, without recourse to the Federal 
awarding agency, regarding the settlement and satisfaction of all 
contractual and administrative issues arising out of procurements 
entered into in support of an award or other agreement. This includes 
disputes, claims, protests of award, source evaluation or other matters 
of a contractual nature. Matters concerning violation of statute are to 
be referred to such Federal, State or local authority as may have proper 
jurisdiction.



Sec. 12.942  Codes of conduct.

    The recipient shall maintain written standards of conduct governing 
the performance of its employees engaged in the award and administration 
of contracts. No employee, officer, or agent shall participate in the 
selection, award, or administration of a contract supported by Federal 
funds if a real or apparent conflict of interest would be involved. Such 
a conflict would arise when the employee, officer, or agent, any member 
of his or her immediate family, his or her partner, or an organization 
which employs or is about to

[[Page 338]]

employ any of the parties indicated herein, has a financial or other 
interest in the firm selected for an award. The officers, employees, and 
agents of the recipient shall neither solicit nor accept gratuities, 
favors, or anything of monetary value from contractors, or parties to 
subagreements. However, recipients may set standards for situations in 
which the financial interest is not substantial or the gift is an 
unsolicited item of nominal value. The standards of conduct shall 
provide for disciplinary actions to be applied for violations of such 
standards by officers, employees, or agents of the recipient.



Sec. 12.943  Competition.

    All procurement transactions shall be conducted in a manner to 
provide, to the maximum extent practical, open and free competition. The 
recipient shall be alert to organizational conflicts of interest as well 
as noncompetitive practices among contractors that may restrict or 
eliminate competition or otherwise restrain trade. In order to ensure 
objective contractor performance and eliminate unfair competitive 
advantage, contractors that develop or draft specifications, 
requirements, statements of work, invitations for bids and/or requests 
for proposals shall be excluded from competing for such procurements. 
Awards shall be made to the bidder or offeror whose bids or offer is 
responsive to the solicitation and is most advantageous to the 
recipient, price, quality and other factors considered. Solicitations 
shall clearly set forth all requirements that the bidder or offeror 
shall fulfill in order for the bid or offer to be evaluated by the 
recipient. Any and all bids or offers may be rejected when it is in the 
recipient's interest to do so.



Sec. 12.944  Procurement procedures.

    (a) All recipients shall establish written procurement procedures. 
These procedures shall provide, at a minimum, that:
    (1) Recipients avoid purchasing unnecessary items.
    (2) Where appropriate, an analysis is made of lease and purchase 
alternatives to determine which would be the most economical and 
practical procurement for the Federal Government; and
    (3) Solicitations for goods and services provide for all of the 
following:
    (i) A clear and accurate description of the technical requirements 
for the material, product or service to be procured. In competitive 
procurements, such a description shall not contain features which unduly 
restrict competition.
    (ii) Requirements which the bidder/offeror must fulfill and all 
other factors to be used in evaluating bids or proposals.
    (iii) A description, whenever practicable, of technical requirements 
in terms of functions to be performed or performance required, including 
the range of acceptable characteristics or minimum acceptable standards.
    (iv) The specific features of ``brand name or equal'' descriptions 
that bidders are required to meet when such items are included in the 
solicitation.
    (v) The acceptance, to the extent practicable and economically 
feasible, of products and services dimensioned in the metric system of 
measurement.
    (vi) Preference, to the extent practicable and economically 
feasible, for products and services that conserve natural resources and 
protect the environment and are energy efficient.
    (b) Positive efforts shall be made by recipients to use small 
businesses, minority-owned firms, and women's business enterprises, 
whenever possible. Recipients of Federal awards shall take all of the 
following steps to further this goal.
    (1) Ensure that small businesses, minority-owned firms, and women's 
business enterprises are used to the fullest extent practicable.
    (2) Make information on forthcoming opportunities available and 
arrange time frames for purchases and contracts to encourage and 
facilitate participation by small businesses, minority-owned firms, and 
women's business enterprises.
    (3) Consider in the contract process whether firms competing for 
larger contracts intend to subcontract with small businesses, minority-
owned firms, and women's business enterprises.

[[Page 339]]

    (4) Encourage contracting with consortiums of small businesses, 
minority-owned firms and women's business enterprises when a contract is 
too large for one of these firms to handle individually.
    (5) Use the services and assistance, as appropriate, of such 
organizations as the Small Business Administration and the Department of 
Commerce's Minority Business Development Agency in the solicitation and 
utilization of small businesses, minority-owned firms and women's 
business enterprises.
    (c) The type of procuring instruments used (e.g., fixed price 
contracts, cost reimbursable contracts, purchase orders, and incentive 
contracts) shall be determined by the recipient but shall be appropriate 
for the particular procurement and for promoting the best interest of 
the program or project involved. The ``cost-plus-a-percentage-of-cost'' 
or ``percentage of construction cost'' methods of contracting shall not 
be used.
    (d) Contracts shall be made only with responsible contractors who 
possess the potential ability to perform successfully under the terms 
and conditions of the proposed procurement. Consideration shall be given 
to such matters as contractor integrity, record of past performance, 
financial and technical resources or accessibility to other necessary 
resources. In certain circumstances, contracts with certain parties are 
restricted by agencies' implementation of E.O.s 12549 and 12689, 
``Debarment and Suspension.'' See 43 CFR part 12.
    (e) Recipients shall, on request, make available for the Federal 
awarding agency, pre-award review of procurement documents, such as 
requests for proposals or invitations for bids, independent cost 
estimates, etc., when any of the following conditions apply:
    (1) A recipient's procurement procedures or operation fails to 
comply with the procurement standards in this part.
    (2) The procurement is expected to exceed the small purchase 
threshold fixed at 41 U.S.C. 403 (11) (currently $100,000) and is to be 
awarded without competition or only one bid or offer is received in 
response to a solicitation.
    (3) The procurement, which is expected to exceed the small purchase 
threshold, specifies a ``brand name'' product.
    (4) The proposed award over the small purchase threshold is to be 
awarded to other than the apparent low bidder under a sealed bid 
procurement.
    (5) A proposed contract modification changes the scope of a contract 
or increases the contract amount by more than the amount of the small 
purchase threshold.



Sec. 12.945  Cost and price analysis.

    Some form of cost or price analysis shall be made and documented in 
the procurement files in connection with every procurement action. Price 
analysis may be accomplished in various ways, including the comparison 
of price quotations submitted, market prices and similar indicia, 
together with discounts. Cost analysis is the review and evaluation of 
each element of cost to determine reasonableness, allocability and 
allowability.



Sec. 12.946  Procurement records.

    Procurement records and files for purchases in excess of the small 
purchase threshold shall include the following at a minimum:
    (a) Basis for contractor selection;
    (b) Justification for lack of competition when competitive bids or 
offers are not obtained; and
    (c) Basis for award cost or price.



Sec. 12.947  Contract administration.

    A system for contract administration shall be maintained to ensure 
contractor conformance with the terms, conditions and specifications of 
the contract and to ensure adequate and timely follow up of all 
purchases. Recipients shall evaluate contractor performance and 
documents, as appropriate, whether contractors have met the terms, 
conditions and specifications of the contract.



Sec. 12.948  Contract provisions.

    The recipient shall include, in addition to provisions to define a 
sound and complete agreement, the provisions below in all contracts and 
subcontracts.

[[Page 340]]

    (a) Contracts in excess of the small purchase threshold shall 
contain contractual provisions or conditions that allow for 
administrative, contractual, or legal remedies in instances in which a 
contractor violates or breaches the contract terms, and provide for such 
remedial actions as may be appropriate.
    (b) All contracts in excess of the small purchase threshold shall 
contain suitable provisions for termination by the recipient, including 
the manner by which termination shall be effected and the basis for 
settlement. In addition, such contracts shall describe conditions under 
which the contract may be terminated for default as well as conditions 
where the contract may be terminated because of circumstances beyond the 
control of the contractor.
    (c) Except as otherwise required by statute, an award that requires 
the contracting (or subcontracting) for construction or facility 
improvements shall provide for the recipient to follow its own 
requirements relating to bid guarantees, performance bonds, and payment 
bonds unless the construction contract or subcontract exceeds $100,000. 
For those contracts or subcontracts exceeding $100,000, the Federal 
awarding agency may accept the bonding policy and requirements of the 
recipient, provided the Federal awarding agency has made a determination 
that the Federal Government's interest is adequately protected. If such 
a determination has not been made, the minimum requirements shall be as 
follows:
    (1) A bid guarantee from each bidder equivalent to five percent of 
the bid price. The ``bid guarantee'' shall consist of a firm commitment 
such as a bid bond, certified check, or other negotiable instrument 
accompanying a bid as assurance that the bidder shall, upon acceptance 
of his bid, execute such contractual documents as may be required within 
the time specified.
    (2) A performance bond on the part of the contractor for 100 percent 
of the contract price. A ``performance bond'' is one executed in 
connection with a contract to secure fulfillment of all the contractor's 
obligations under such contract.
    (3) A payment bond on the part of the contractor for 100 percent of 
the contract price. A ``payment bond'' is one executed in connection 
with a contract to assure payment as required by statute of all persons 
supplying labor and material in the execution of the work provided for 
in the contract.
    (4) Where bonds are required in the situations described herein, the 
bonds shall be obtained from companies holding certificates of authority 
as acceptable sureties pursuant to 31 CFR part 223, ``Surety Companies 
Doing Business with the United States.''
    (d) All negotiated contracts (except those for less than the small 
purchase threshold) awarded by recipients shall include a provision to 
the effect that the recipient, the Federal awarding agency, the 
Comptroller General of the United States, or any of their duly 
authorized representatives, shall have access to any books, documents, 
papers and records of the contractor which are directly pertinent to a 
specific program for the purpose of making audits, examinations, 
excerpts and transcriptions.
    (e) All contracts, including small purchases, awarded by recipients 
and their contractors shall contain the procurement provisions of 
appendix A to this subpart, as applicable.

                           Reports and Records



Sec. 12.950  Purpose of reports and records.

    Sections 12.951 through 12.953 set forth the procedures for 
monitoring and reporting on the recipient's financial and program 
performance and the necessary standard reporting forms. They also set 
forth record retention requirements.



Sec. 12.951  Monitoring and reporting program performance.

    (a) Recipients are responsible for managing and monitoring each 
project, program, subaward, function or activity supported by the award. 
Recipients shall monitor subawards to ensure subrecipients have met the 
audit requirements as delineated in Sec. 12.926.

[[Page 341]]

    (b) The Federal awarding agency shall prescribe the frequency of 
submission for performance reports. Except as provided in Sec. 
12.951(f), performance reports will not be required more frequently than 
quarterly or less frequently than annually. Annual reports shall be due 
90 calendar days after the grant year; quarterly or semi-annual reports 
shall be due 30 days after the reporting period. The Federal awarding 
agency may require annual reports before the anniversary dates of 
multiple year awards in lieu of these requirements. The final 
performance reports are due 90 calendar days after the expiration or 
termination of the award.
    (c) A final technical or performance report shall be required after 
completion of the project only if the awarding agency determines this to 
be appropriate.
    (d) When required, performance reports shall generally contain, for 
each award, brief information on each of the following:
    (1) A comparison of actual accomplishments with the goals and 
objectives established for the period, the findings of the investigator, 
or both. Whenever appropriate and the output of programs or projects can 
be readily quantified, such quantitative data should be related to cost 
data for computation of unit costs.
    (2) Reasons why established goals were not met, if appropriate.
    (3) Other pertinent information including, when appropriate, 
analysis and explanation of cost overruns or high unit costs.
    (e) Recipients shall not be required to submit more than the 
original and two copies of performance reports.
    (f) Recipients shall immediately notify the Federal awarding agency 
of developments that have a significant impact on the award-supported 
activities. Also, notification shall be given in the case of problems, 
delays, or adverse conditions which materially impair the ability to 
meet the objectives of the award. This notification shall include a 
statement of the action taken or contemplated, and any assistance needed 
to resolve the situation.
    (g) Federal awarding agencies may make site visits, as needed.
    (h) Federal awarding agencies shall comply with clearance 
requirements of 5 CFR part 1320 when requesting performance data from 
recipients.



Sec. 12.952  Financial reporting.

    (a) The following forms or such other forms as may be approved by 
OMB are authorized for obtaining financial information from recipients.
    (1) SF-269 or SF-269A, Financial Status Report. (i) Each Federal 
awarding agency will require recipients to use either the SF-269 or SF-
269A to report the status of funds for all nonconstruction projects or 
programs. A Federal awarding agency may, however, have the option of not 
requiring the SF-269 or SF-269A when the SF-270, Request for Advance or 
Reimbursement, or SF-272, Report of Federal Cash Transactions, is 
determined to provide adequate information to meet its needs, except 
that a final SF-269 or SF-269A shall be required at the completion of 
the project when the SF-270 is used only for advances.
    (ii) The Federal awarding agency shall prescribe whether the report 
shall be on a cash or accrual basis. If the Federal awarding agency 
requires accrual information and the recipient's accounting records are 
not normally kept on the accrual basis, the recipient shall not be 
required to convert its accounting system, but shall develop accrual 
information through best estimates based upon an analysis of the 
documentation on hand.
    (iii) The Federal awarding agency shall determine the frequency of 
the Financial Status Report for each project or program, considering the 
size and complexity of the particular project or program. However, the 
report shall not be required more frequently than quarterly or less 
frequently than annually. A final report shall be required at the 
completion of the agreement.
    (iv) The Federal awarding agency shall require recipients to submit 
the SF-269 or SF-269A (an original and no more than two copies) no later 
than 30 days after the end of each specified reporting period for 
quarterly and semi-annual reports, and 90 calendar days

[[Page 342]]

for annual and final reports. Extensions of reporting due dates may be 
approved by the Federal awarding agency upon request by the recipient.
    (2) SF-272, Report of Federal Cash Transactions. (i) When funds are 
advanced to recipients, the Federal awarding agency shall require each 
recipient to submit the SF-272 and, when necessary, its continuation 
sheet, SF-272a. The Federal awarding agency shall use this report to 
monitor cash advanced to recipients and to obtain disbursement 
information for each agreement with the recipients.
    (ii) Federal awarding agencies may require forecasts of Federal cash 
requirements in the ``Remarks'' section of the report.
    (iii) When practical and deemed necessary, Federal awarding agencies 
may require recipients to report in the ``Remarks'' section the amount 
of cash advances received in excess of three days. Recipients shall 
provide short narrative explanations of actions taken to reduce the 
excess balances.
    (iv) Recipients shall be required to submit not more than the 
original and two copies of the SF-272 15 calendar days following the end 
of each quarter. The Federal awarding agencies may require a monthly 
report from those recipients receiving advances totaling $1 million or 
more per year.
    (v) Federal awarding agencies may waive the requirement for 
submission of the SF-272 for any one of the following reasons:
    (A) When monthly advances do not exceed $25,000 per recipient, 
provided that such advances are monitored through other forms contained 
in this section;
    (B) If, in the Federal awarding agency's opinion, the recipient's 
accounting controls are adequate to minimize excessive Federal advances; 
or
    (C) When the electronic payment mechanisms provide adequate data.
    (b) When the Federal awarding agency needs additional information or 
more frequent reports, the following shall be observed:
    (1) When additional information is needed to comply with legislative 
requirements, Federal awarding agencies shall issue instructions to 
require recipients to submit such information under the ``Remarks'' 
section of the reports.
    (2) When a Federal awarding agency determines that a recipient's 
accounting system does not meet the standards in Sec. 12.921, 
additional pertinent information to further monitor awards may be 
obtained upon written notice to the recipient until such time as the 
system is brought up to standard. The Federal awarding agency, in 
obtaining this information, shall comply with report clearance 
requirements of 5 CFR part 1320.
    (3) Federal awarding agencies are encouraged to shade out any line 
item on any report if not necessary.
    (4) Federal awarding agencies may accept the identical information 
from the recipients in machine readable format or computer printouts or 
electronic outputs in lieu of prescribed formats.
    (5) Federal awarding agencies may provide computer or electronic 
outputs to recipients when such action expedites or contributes to the 
accuracy or reporting.



Sec. 12.953  Retention and access requirements for records.

    (a) This section sets forth requirements for record retention and 
access to records for awards to recipients. Federal awarding agencies 
shall not impose any other record retention or access requirements upon 
recipients.
    (b) Financial records, supporting documents, statistical records, 
and all other records pertinent to an award shall be retained for a 
period of three years from the date of submission of the final 
expenditure report or, for awards that are renewed quarterly or 
annually, from the date of the submission of the quarterly or annual 
financial report. The only exceptions are the following:
    (1) If any litigation, claim, or audit is started before the 
expiration of the 3-year period, the records shall be retained until all 
litigation, claims or audit findings involving the records have been 
resolved and final action taken.
    (2) Records for real property and equipment acquired with Federal 
funds shall be retained for 3 years after final disposition.

[[Page 343]]

    (3) When records are transferred to or maintained by the Federal 
awarding agency, the 3-year retention requirement is not applicable to 
the recipient.
    (4) Indirect cost rate proposals, cost allocation plans, etc., as 
specified in Sec. 12.953(g).
    (c) Copies of original records may be substituted for the original 
records if authorized by the Federal awarding agency.
    (d) The Federal awarding agency will request transfer of certain 
records to its custody from recipients when it determines that the 
records possess long term retention value. However, in order to avoid 
duplicate recordkeeping, a Federal awarding agency may make arrangements 
for recipients to retain any records that are continuously needed for 
joint use.
    (e) The Federal awarding agency, the Inspector General, Comptroller 
General of the United States, or any of their duly authorized 
representatives, have the right of timely and unrestricted access to any 
books, documents, papers, or other records of recipients that are 
pertinent to the awards, in order to make audits, examinations, 
excerpts, transcripts and copies of such documents. This right also 
includes timely and reasonable access to a recipient's personnel for the 
purpose of interview and discussion related to such documents. The 
rights of access in this paragraph are not limited to the required 
retention period, but shall last as long as records are retained.
    (f) Unless required by statute, no Federal awarding agency shall 
place restrictions on recipients that limit public access to the records 
of recipients that are pertinent to an award, except when the Federal 
awarding agency can demonstrate that such records shall be kept 
confidential and would have been exempted from disclosure pursuant to 
the Freedom of Information Act (5 U.S.C. 552) if the records had 
belonged to the Federal awarding agency.
    (g) Indirect cost rate proposals, cost allocation plans, etc. 
Paragraphs (g)(1) and (g)(2) of this section apply to the following 
types of documents, and their supporting records: indirect cost rate 
computations or proposals, cost allocation plans, and any similar 
accounting computations of the rate at which a particular group of costs 
is chargeable (such as computer usage chargeback rates or composite 
fringe benefit rates).
    (1) If submitted for negotiation. If the recipient submits to the 
Federal awarding agency or the subrecipient submits to the recipient the 
proposal, plan, or other computation to form the basis for negotiation 
of the rate, then the 3-year retention period for its supporting records 
starts on the date of the submission.
    (2) If not submitted for negotiation. If the recipient is not 
required to submit to the Federal awarding agency or the subrecipient is 
not required to submit to the recipient the proposal, plan, or other 
computation for negotiation purposes, then the 3-year retention period 
for the proposal, plan, or other computation and its supporting records 
starts at the end of the fiscal year (or other accounting period) 
covered by the proposal, plan, or other computation.

                       Termination and Enforcement



Sec. 12.960  Purpose of termination and enforcement.

    Sections 12.961 and 12.962 set forth uniform suspension, termination 
and enforcement procedures.



Sec. 12.961  Termination.

    (a) Awards may be terminated in whole or in part only if paragraph 
(a)(1), (a)(2) or (a)(3) of this section applies.
    (1) By the Federal awarding agency, if a recipient materially fails 
to comply with the terms and conditions of an award.
    (2) By the Federal awarding agency with the consent of the 
recipient, in which case the two parties shall agree upon the 
termination conditions, including the effective date and, in the case of 
partial termination, the portion to be terminated.
    (3) By the recipient upon sending to the Federal awarding agency 
written notification setting forth the reasons for such termination, the 
effective date, and, in the case of partial termination, the portion to 
be terminated.

[[Page 344]]

However, if the Federal awarding agency determines in the case of 
partial termination that the reduced or modified portion of the grant 
will not accomplish the purposes for which the grant was made, it may 
terminate the grant in its entirety under either paragraph (a) (1) or 
(2) of this section.
    (b) If costs are allowed under an award, the responsibilities of the 
recipient referred to in Sec. 12.971(a), including those for property 
management as applicable, shall be considered in the termination of the 
award, and provision shall be made for continuing responsibilities of 
the recipient after termination, as appropriate.



Sec. 12.962  Enforcement.

    (a) Remedies for noncompliance. If a recipient materially fails to 
comply with the terms and conditions of an award, whether stated in a 
Federal statute, regulation, assurance, application, or notice of award, 
the Federal awarding agency may, in addition to imposing any of the 
special conditions outlined in Sec. 12.914, take one or more of the 
following actions, as appropriate in the circumstances.
    (1) Temporarily withhold cash payments pending correction of the 
deficiency by the recipient or more severe enforcement action by the 
Federal awarding agency.
    (2) Disallow (that is, deny both use of funds and any applicable 
matching credit for) all or part of the cost of the activity or action 
not in compliance.
    (3) Wholly or partly suspend or terminate the current award.
    (4) Withhold further awards for the project or program.
    (5) Take other remedies that may be legally available.
    (b) Hearings and appeals. In taking an enforcement action, the 
awarding agency shall provide the recipient an opportunity for hearing, 
appeal, or other administrative proceeding to which the recipient is 
entitled under any statute or regulation applicable to the action 
involved.
    (c) Effects of suspension and termination. Costs of a recipient 
resulting from obligations incurred by the recipient during a suspension 
or after termination of an award are not allowable unless the Federal 
awarding agency expressly authorizes them in the notice of suspension or 
termination or subsequently. Other recipient costs during suspension or 
after termination which are necessary and not reasonably avoidable are 
allowable if paragraphs (c) (1) and (2) of this section apply:
    (1) The costs result from obligations which are properly incurred by 
the recipient before the effective date of suspension or termination, 
are not in anticipation of it, and in the case of a termination, are 
noncancellable.
    (2) The costs would be allowable if the award were not suspended or 
expired normally at the end of the funding period in which the 
termination takes effect.
    (d) Relationship to debarment and suspension. The enforcement 
remedies identified in this section, including suspension and 
termination, do not preclude a recipient from being subject to debarment 
and suspension under E.O.s 12549 and 12689 and the Federal awarding 
agency implementing regulations (see 43 CFR part 12).

                      After-the-Award Requirements



Sec. 12.970  Purpose.

    Sections 12.971 through 12.973 contain closeout procedures and other 
procedures for subsequent disallowances and adjustments.



Sec. 12.971  Closeout procedures.

    (a) Recipients shall submit, within 90 calendar days after the date 
of completion of the award, all financial, performance, and other 
reports as required by the terms and conditions of the award. The 
Federal awarding agency may approve extensions when requested by the 
recipient.
    (b) Unless the Federal awarding agency authorizes an extension, a 
recipient shall liquidate all obligations incurred under the award not 
later than 90 calendar days after the funding period or the date of 
completion as specified in the terms and conditions of the award or in 
agency implementing instructions.
    (c) The Federal awarding agency shall make prompt payments to a 
recipient for allowable reimbursable costs under the award being closed 
out.

[[Page 345]]

    (d) The recipient shall promptly refund any balances of unobligated 
cash that the Federal awarding agency has advanced or paid and that is 
not authorized to be retained by the recipient for use in other 
projects. OMB Circular A-129 governs unreturned amounts that become 
delinquent debts.
    (e) When authorized by the terms and conditions of the award, the 
Federal awarding agency shall make a settlement for any upward or 
downward adjustments to the Federal share of costs after closeout 
reports are received.
    (f) The recipient shall account for any real and personal property 
acquired with Federal funds or received from the Federal Government in 
accordance with Sec. Sec. 12.931 through 12.937.
    (g) If a final audit has not been performed prior to the closeout of 
an award, the Federal awarding agency shall retain the right to recover 
an appropriate amount after fully considering the recommendations on 
disallowed costs resulting from the final audit.



Sec. 12.972  Subsequent adjustments and continuing responsibilities.

    (a) The closeout of an award does not affect any of the following.
    (1) The right of the Federal awarding agency to disallow costs and 
recover funds on the basis of a later audit or other review.
    (2) The obligation of the recipient to return any funds due as a 
result of later refunds, corrections, or other transactions.
    (3) Audit requirements in Sec. 12.926.
    (4) Property management requirements in Sec. Sec. 12.931 through 
12.937.
    (5) Records retention as required in Sec. 12.953.
    (b) After closeout of an award, a relationship created under an 
award may be modified or ended in whole or in part with the consent of 
the Federal awarding agency and the recipient, provided the 
responsibilities of the recipient referred to in Sec. 12.973(a), 
including those for property management as applicable, are considered 
and provisions made for continuing responsibilities of the recipient, as 
appropriate.



Sec. 12.973  Collection of amounts due.

    (a) Any funds paid to a recipient in excess of the amount to which 
the recipient is finally determined to be entitled under the terms and 
conditions of the award constitute a debt to the Federal Government. If 
not paid within a reasonable period after the demand for payment, the 
Federal awarding agency may reduce the debt by paragraph (a) (1), (2) or 
(3) of this section:
    (1) Making an administrative offset against other requests for 
reimbursements.
    (2) Withholding advance payments otherwise due to the recipient.
    (3) Taking other action permitted by statute.
    (b) Except as otherwise provided by law, the Federal awarding agency 
shall charge interest on an overdue debt in accordance with 4 CFR 
chapter II, ``Federal Claims Collection Standards.''



      Sec. Appendix A to Subpart F of Part 12--Contract Provisions

    All contracts awarded by a recipient, including small purchases, 
shall contain the following provisions as applicable:
    1. Equal Employment Opportunity--All contracts shall contain a 
provision requiring compliance with E.O. 11246, ``Equal Employment 
Opportunity,'' as amended by E.O. 11375, ``Amending Executive Order 
11246 Relating to Equal Employment Opportunity,'' and as supplemented by 
regulations at 41 CFR part 60, ``Office of Federal Contract Compliance 
Programs, Equal Employment Opportunity, Department of Labor.''
    2. Copeland ``Anti-Kickback'' Act (18 U.S.C. 874 and 40 U.S.C. 
276c)--All contracts and subgrants in excess of $100,000 for 
construction or repair awarded by recipients and subrecipients shall 
include a provision for compliance with the Copeland ``Anti-Kickback'' 
Act (18 U.S.C. 874), as supplemented by Department of Labor regulations 
(29 CFR part 3, ``Contractors and Subcontractors on Public Building or 
Public Work Financed in Whole or in Part by Loans or Grants from the 
United States''). The Act provides that each contractor or subrecipient 
shall be prohibited from inducing, by any means, any person employed in 
the construction, completion, or repair of public work, to give up any 
part of the compensation to which he is otherwise entitled. The 
recipient shall report all suspected or reported violations to the 
Federal awarding agency.

[[Page 346]]

    3. Davis-Bacon Act, as amended (40 U.S.C. 276a to a-7)--When 
required by Federal program legislation, all construction contracts 
awarded by the recipients and subrecipients of more than $2,000 shall 
include a provision for compliance with the Davis-Bacon Act (40 U.S.C. 
276a to a-7) and as supplemented by Department of Labor regulations (29 
CFR part 5, ``Labor Standards Provisions Applicable to Contracts 
Governing Federally Financed and Assisted Construction''). Under this 
Act, contractors shall be required to pay wages to laborers and 
mechanics at a rate not less than the minimum wages specified in a wage 
determination made by the Secretary of Labor. In addition, contractors 
shall be required to pay wages not less than once a week. The recipient 
shall place a copy of the current prevailing wage determination issued 
by the Department of Labor in each solicitation and the award of a 
contract shall be conditioned upon the acceptance of the wage 
determination. The recipient shall report all suspected or reported 
violations to the Federal awarding agency.
    4. Contract Work Hours and Safety Standards Act (40 U.S.C. 327-
333)--Where applicable, all contracts awarded by recipients in excess of 
$100,000 for construction contracts and for other contracts that involve 
the employment of mechanics or laborers shall include a provision for 
compliance with sections 102 and 107 of the Contract Work Hours and 
Safety Standards Act (40 U.S.C. 327-333), as supplemented by Department 
of Labor regulations (29 CFR part 5). Under section 102 of the Act, each 
contractor shall be required to compute the wages of every mechanic and 
laborer on the basis of a standard work week of 40 hours. Work in excess 
of the standard work week is permissible provided that the worker is 
compensated at a rate of not less than 1\1/2\ times the basic rate of 
pay for all hours worked in excess of 40 hours in the work week. Section 
107 of the Act is applicable to construction work and provides that no 
laborer or mechanic shall be required to work in surroundings or under 
working conditions which are unsanitary, hazardous or dangerous. These 
requirements do not apply to the purchases of supplies or materials or 
articles ordinarily available on the open market, or contracts for 
transportation or transmission of intelligence.
    5. Rights to Inventions Made Under a Contract or Agreement--
Contracts or agreements for the performance of experimental, 
developmental, or research work shall provide for the rights of the 
Federal Government and the recipient in any resulting invention in 
accordance with 37 CFR part 401, ``Rights to Inventions Made by 
Nonprofit Organizations and Small Business Firms Under Government 
Grants, Contracts and Cooperative Agreements,'' and any implementing 
regulations issued by the awarding agency.
    6. Clean Air Act (42 U.S.C. 7401 et seq.) and the Federal Water 
Pollution Control Act (33 U.S.C. 1251 et seq.), as amended--Contracts 
and subgrants of amounts in excess of $100,000 shall contain a provision 
that requires the recipient to agree to comply with all applicable 
standards, orders or regulations issued pursuant to the Clean Air Act 
(42 U.S.C. 7401 et seq.) and the Federal Water Pollution Control Act as 
amended (33 U.S.C. 1251 et seq.). Violations shall be reported to the 
Federal awarding agency and the Regional Office of the Environmental 
Protection Agency (EPA).
    7. Byrd Anti-Lobbying Amendment (31 U.S.C. 1352)--Contractors who 
apply or bid for an award of more than $100,000 shall file the required 
certification. Each tier certifies to the tier above that it will not 
and has not used Federal appropriated funds to pay any person or 
organization for influencing or attempting to influence an officer or 
employee of any agency, a member of Congress, officer or employee of 
Congress, or an employee of a member of Congress in connection with 
obtaining any Federal contract, grant or any other award covered by 31 
U.S.C. 1352. Each tier shall also disclose any lobbying with non-Federal 
funds that takes place in connection with obtaining any Federal award. 
Such disclosures are forwarded from tier to tier up to the recipient.
    8. Debarment and Suspension (E.O.s 12549 and 12689)--No contracts 
shall be made to parties listed on the General Services Administration's 
``Lists of Parties Excluded from Federal Procurement or Nonprocurement 
Programs'' in accordance with E.O.s 12549 and 12689, ``Debarment and 
Suspension.'' This list contains the names of parties debarred, 
suspended, or otherwise excluded by agencies, and contractors declared 
ineligible under statutory or regulatory authority other than E.O. 
12549. Contractors with awards that exceed the small purchase threshold 
shall provide the required certification regarding their exclusion 
status and that of their principals.



PART 13_VENDING FACILITIES OPERATED BY BLIND PERSONS--Table of Contents



Sec.
13.1 Authority and purpose.
13.2 Application for permit.
13.3 Cooperation in selection of facilities.
13.4 Terms of permit.
13.5 Protection from competition.
13.6 Appeals.

    Authority: Sec. 4, 68 Stat. 663; 20 U.S.C. 107.

    Source: 22 FR 9476, Nov. 27, 1957, unless otherwise noted.

[[Page 347]]



Sec. 13.1  Authority and purpose.

    The Randolph-Sheppard Vending Stand Act of June 20, 1936, as amended 
by section 4 of the Act of August 3, 1954 (68 Stat. 663; 20 U.S.C. 107), 
directs that, insofar as practicable, preference shall be given to blind 
persons in the operation of vending stands and machines on any Federal 
property. The regulations in this part prescribe the policies and 
procedures to achieve and protect that preference on property, including 
land, owned or leased by the United States and controlled by the 
Department of the Interior.



Sec. 13.2  Application for permit.

    (a) State licensing agencies designated by the Department of Health, 
Education, and Welfare under the Randolph-Sheppard Vending Stand Act may 
apply for permits to establish and maintain vending facilities, 
including both vending stands and machines, to be operated by blind 
persons licensed by the State agencies. Application for a permit shall 
be made, in writing, by the State licensing agency to the head of the 
Interior bureau or office having control of the property in question. In 
the regulations in this part the term ``head of the Interior bureau or 
office'' includes the authorized representatives of that bureau or 
office.
    (b) The head of the Interior bureau or office may deny an 
application if he determines that the issuance of a permit would unduly 
inconvenience the bureau or office or adversely affect the interests of 
the United States. Such determination shall be in writing and shall 
state the reasons on which it is based. The fact that a permit will be 
without charge for rent shall not constitute a basis for denying an 
application.
    (c) In considering applications for permits, due regard shall be 
given to the terms of any existing contractual arrangements.



Sec. 13.3  Cooperation in selection of facilities.

    Upon request from a State licensing agency, the Interior bureau or 
office shall cooperate in selecting locations and arranging 
accommodations for vending facilities to be operated by blind persons. 
In making such selection, due consideration shall be given to the 
requirements of occupant agencies, availability of suitable space, and 
requirements for preparation and maintenance of the space.



Sec. 13.4  Terms of permit.

    Every permit shall describe the location of the vending facilities 
and shall be subject to the following provisions:
    (a) The permit shall be issued in the name of the applicant State 
licensing agency.
    (b) The permit shall be for a definite term, not to exceed five 
years, and shall be without charge for rent.
    (c) The permit may be revoked at any time upon not less than 30 days 
written notice to the permittee from the head of the Interior bureau or 
office having control of the property where the vending facilities are 
located. Such notice shall state the reasons on which it is based.
    (d) Items sold at the vending facilities shall be limited to 
newspapers, periodicals, pre-packaged confections, tobacco products, 
articles dispensed automatically or in containers or wrappings in which 
they are placed before receipt by the vendor, and such other articles as 
may be approved by the head of the Interior bureau or office for each 
location. The head of the Interior bureau or office may require 
discontinuance of sale of any type of article, upon not less than 15 
days' notice in writing.
    (e) Vending facilities shall be operated in compliance with such 
standards of appearance, safety, health, sanitation, and efficiency as 
may be prescribed by the head of the Interior bureau or office. Such 
standards shall conform, so far as practicable with the provisions of 
State laws and regulations, whether or not the property is under the 
exclusive jurisdiction of the United States.
    (f) The permittee shall arrange for the modification or relocation 
of the vending facilities when in the opinion of the head of the 
Interior bureau or office such action is essential to the satisfactory 
maintenance, operation, or use of the property concerned and shall not 
modify or relocate such facilities without such approval. Installation, 
modification, relocation, or removal of vending facilities shall be made 
only

[[Page 348]]

under the supervision of the head of the Interior bureau or office and 
without cost to the Department of the Interior. The permittee may be 
required to remove any vending device deemed undesirable by the head of 
the Interior bureau or office. Ownership of vending devices installed by 
the permittee or operator shall remain vested with the installer. All 
extra identifiable costs incurred by the Department of the Interior in 
restoring to its original condition any space vacated by removal or 
relocation of vending facilities shall be reimbursed by the permittee or 
the operator.
    (g) In the event a vending facility is being operated in a manner 
unsatisfactory to the Interior bureau or office, the permittee will be 
notified in writing and required to take appropriate action to rectify 
the situation.
    (h) The operator of the vending facility shall carry such insurance 
against losses by fire, public liability, employer's liability, or other 
hazards as is customary among prudent operators of similar businesses 
under comparable circumstances.



Sec. 13.5  Protection from competition.

    (a) The head of the Interior bureau or office shall protect the 
blind operator of the vending facility against direct competition from 
other vendors or vending machines on property which the head of the 
Interior bureau or office controls. Other vendors or vending machines 
shall be considered in direct competition with vending facilities 
permitted under the regulations in this part if they sell or dispense 
articles which are similar or identical to those on sale at the vending 
facilities in such proximity to the vending facility as to attract 
customers who might otherwise patronize the vending facilities.
    (b) After a permit has been issued under the regulations in this 
part to a State licensing agency for operation of a vending facility, 
the head of the Interior bureau or office, except as provided in 
paragraphs (c) and (d) of this section, shall take action to terminate, 
as soon as possible and with minimum interruption to the service 
afforded customers, any existing competitive arrangement for the sale of 
any articles similar to or identical to those sold or to be sold under 
the permit. Notice of such termination shall be given as required under 
the terms of the existing arrangement, or if none is provided, a notice 
of not less than 30 days shall be given in writing.
    (c) Existing arrangements with respect to vending machines need not 
be terminated if such vending machines are moved at the expense of their 
operators to locations elsewhere on the property which are 
noncompetitive with a blind-operated vending facility, or if the income 
from such machines is assigned to the blind operator.
    (d) This section shall not apply to the sale and service of food and 
other articles considered as food and usually sold in connection with 
meals by cafeterias, restaurants, or similar food dispensing 
establishments.



Sec. 13.6  Appeals.

    When the head of an Interior bureau or office has designated a 
representative to act for him under these regulations, he shall provide 
for the review of any matter in dispute between such representatives and 
the State licensing agency. In the event that they fail to reach 
agreement concerning the granting of a permit for the vending stand, the 
modification or revocation of a permit, the suitability of the stand 
location, the assignment of vending proceeds, the methods of operation 
of the stand, or other terms of the permit (including articles which may 
be sold) the State licensing agency shall have the right of appeal to 
the Director, Office of Hearings and Appeals. Such appeals shall be made 
in writing and shall be filed in the Office of the Director (address: 
Director, Office of Hearings and Appeals, 801 North Quincy Street, 
Arlington, VA 22203) within 15 days from the date of notice of the 
decision from which the appeal is taken. Such appeals shall comply 
otherwise with the general rules of the Office of Hearings and Appeals 
in subpart B of part 4 of this title and with the special regulations 
set forth in subpart G of part 4 of this title applicable to proceedings 
in appeals cases which do not lie within the appellate jurisdiction of 
an established Appeals Board of the Office of Hearings and Appeals. Upon 
appeal, full investigation shall be undertaken.

[[Page 349]]

A full report shall be obtained from the Interior representative from 
whose decision the appeal is being taken. The State licensing agency 
shall be given opportunity to present information. The Department of 
Health, Education, and Welfare shall be available for general advice on 
program activities and objectives. A final decision of the Director, 
Office f Hearings and Appeals, or of an Ad Hoc Appeals Board appointed 
by him to consider the appeal and to issue decision thereon, shall be 
rendered within ninety days of the filing of the appeal. Notification of 
the decision on appeal and the action taken thereon shall be given to 
the State licensing agency and to the Department of Health, Education, 
and Welfare. The decision of the Director, Office of Hearings and 
Appeals, or of an Ad Hoc Appeals Board appointed by him, shall be final. 
At the end of each fiscal year the Office of the Secretary shall report 
to the Department of Health, Education, and Welfare the total number of 
applications for vending stand locations received from State licensing 
agencies, the number accepted, the number denied, and the number still 
pending.

[36 FR 7206, Apr. 15, 1971, as amended at 67 FR 4368, Jan. 30, 2002]



PART 14_PETITIONS FOR RULEMAKING--Table of Contents



Sec.
14.1 Scope.
14.2 Filing of petitions.
14.3 Consideration of petitions.
14.4 Publication of petitions.

    Authority: 5 U.S.C. 553(e).

    Source: 46 FR 47789, Sept. 30, 1981, unless otherwise noted.



Sec. 14.1  Scope.

    This part prescribes procedures for the filing and consideration of 
petitions for rulemaking.



Sec. 14.2  Filing of petitions.

    Under the Administrative Procedure Act, any person may petition for 
the issuance, amendment, or repeal of a rule (5 U.S.C. 553(e)). The 
petition will be addressed to the Secretary of the Interior, U.S. 
Department of the Interior, Washington, DC 20240. It will identify the 
rule requested to be repealed or provide the text of a proposed rule or 
amendment and include reasons in support of the petition.



Sec. 14.3  Consideration of petitions.

    The petition will be given prompt consideration and the petitioner 
will be notified promptly of action taken.



Sec. 14.4  Publication of petitions.

    A petition for rulemaking may be published in the Federal Register 
if the official responsible for acting on the petition determines that 
public comment may aid in consideration of the petition.



PART 15_KEY LARGO CORAL REEF PRESERVE--Table of Contents



Sec.
15.1 Scope.
15.2 Removal or destruction of natural features and marine life.
15.3 Dredging, filling, excavating and building activities.
15.4 Refuse and polluting substances.
15.5 Wrecks.
15.6 Markers.
15.7 Fishing.
15.8 Skin diving.
15.9 Collection of scientific specimens.
15.10 Operation of watercraft.
15.11 Explosives and dangerous weapons.
15.12 Closing of Preserve.
15.13 Report of accidents.
15.14 Applicability of laws.

    Authority: Sec. 5, 67 Stat. 464; 43 U.S.C. 1334; Proc. 3339, 25 FR 
2352.

    Source: 25 FR 8948, Sept. 17, 1960, unless otherwise noted.



Sec. 15.1  Scope.

    The State of Florida has established a similar coral reef preserve 
on an area situated shoreward of a line three geographic miles from Key 
Largo and contiguous to the Key Largo Coral Reef Preserve. It is the 
policy of the Department of the Interior to cooperate with the State of 
Florida and its conservation agencies in the preservation of the reef.



Sec. 15.2  Removal or destruction of natural features and marine life.

    No person shall destroy, injure, deface, mar, move, dig, harmfully 
disturb

[[Page 350]]

or remove from the Preserve any beach sand, gravel or minerals, corals, 
sea feathers and fans, shells and shell fish starfishes or other marine 
invertebrates, seaweeds, grasses, or any soil, rock, artifacts, stones 
or other materials. No person shall cut, carve, injure, mutilate, move, 
displace or break off any bottom formation or growth. Nor shall any 
person dig in, or in any other way injure or impair the natural beauty 
or usefulness of this Preserve. No rope, wire or other contrivance shall 
be attached to any coral, rock or other formation, whether temporary or 
permanent in character or use.



Sec. 15.3  Dredging, filling, excavating and building activities.

    No dredging, excavating, or filling operations of any kind are 
permitted in the Preserve and no materials of any sort may be deposited 
in or on the waters thereof. No building or structure of any kind, 
whether permanent or temporary, may be constructed or built, and no 
public service facility may be constructed or extended into, upon or 
across the Preserve.



Sec. 15.4  Refuse and polluting substances.

    No person shall dump or deposit in or on the waters of this Preserve 
any oily liquids or wastes, acids or other deleterious chemicals, 
bottles, broken glass paper, boxes, cans, dirt, rubbish, waste garbage, 
refuse or other debris or polluting substance.



Sec. 15.5  Wrecks.

    No person shall willfully destroy molest, remove, deface, displace, 
or tamper with any wrecks, parts of wrecks or any cargo pertaining to 
such wrecks within the Preserve in such manner as to injure or destroy 
any coral formation.



Sec. 15.6  Markers.

    No person shall willfully mark, deface or injure in any way, or 
displace, remove or tamper with any Preserve signs, notices or placards, 
whether temporary or permanent, or with any monuments, stakes, posts or 
other boundary markers.



Sec. 15.7  Fishing.

    (a) Spear fishing within the boundaries or confines of this Preserve 
is prohibited.
    (b) The use of poisons, electric charges, or other such methods is 
prohibited.



Sec. 15.8  Skin diving.

    Diving with camera, or diving for observation and pleasure is 
permitted and encouraged within the Preserve.



Sec. 15.9  Collection of scientific specimens.

    Collection of natural objects and marine life for educational 
purposes and for scientific and industrial research shall be done only 
in accordance with the terms of written permits granted by the Director 
of the Florida Board of Parks and Historic Memorials. Such permits shall 
be issued only to persons representing reputable scientific, research, 
or educational institutions. No permits will be granted for specimens 
the removal of which would disturb the remaining natural features or mar 
their appearance. All permits are subject to cancellation without notice 
at the discretion of the issuing official. Permits shall be for a 
limited term and may be renewed at the discretion of the issuing 
official.



Sec. 15.10  Operation of watercraft.

    No watercraft shall be operated in such a manner as to strike or 
otherwise cause damage to the natural features of the Preserve. Except 
in case of emergency endangering life or property, no anchor shall be 
cast or dragged in such a way as to damage any reef structure.



Sec. 15.11  Explosives and dangerous weapons.

    No person shall carry, use or possess within the Preserve firearms 
of any description, air rifles, spring guns, bows and arrows, slings, 
spear guns, harpoons, or any other kind of weapon potentially harmful to 
the reef structure. The use of such weapons from beyond the boundaries 
of the Preserve and aimed or directed into the Preserve is forbidden. 
The use or possession of explosives within the Preserve is prohibited.

[[Page 351]]



Sec. 15.12  Closing of Preserve.

    The Preserve may be closed to public use in the event of emergency 
conditions encouraged within the Preserve.



Sec. 15.13  Report of accidents.

    Accidents involving injury to life or property shall be reported as 
soon as possible by the person or persons involved to the officer in 
charge of the Preserve.



Sec. 15.14  Applicability of laws.

    In areas to which this part pertains all Federal Acts shall be 
enforced insofar as they are applicable, and the laws and regulations of 
the State of Florida shall be invoked and enforced in accordance with 
the Act of June 25, 1948 (62 Stat. 686; 18 U.S.C. 13)



PART 16_CONSERVATION OF HELIUM--Table of Contents



Sec.
16.1 Agreements to dispose of helium in natural gas.
16.2 Applications for helium disposition agreements.
16.3 Terms and conditions.
16.4 Consideration to the United States; renegotiation.
16.5 Bonds.

    Authority: R.S. 2478, as amended, 60 Stat. 950, 74 Stat. 918, 922; 
43 U.S.C. 1201, 30 U.S.C. 181, 50 U.S.C. 167a, 167g.



Sec. 16.1  Agreements to dispose of helium in natural gas.

    (a) Pursuant to his authority and jurisdiction over Federal lands, 
the Secretary may enter into agreements with qualified applicants to 
dispose of the helium of the United States upon such terms and 
conditions as he deems fair, reasonable, and necessary to conserve such 
helium, whenever helium can be conserved that would otherwise be wasted 
or lost to Federal ownership or use in the production of oil or gas from 
Government lands embraced in an oil and gas lease or whenever federally 
owned deposits of helium-bearing gas are being drained. The precise 
nature of any agreement will depend on the conditions and circumstances 
involved in that particular case.
    (b) An agreement shall be subject to the existing rights of the 
Federal oil and gas lessee.
    (c) An agreement shall provide that in the extraction of helium from 
gas produced from Federal lands, it shall be extracted so as to cause no 
delay, except that required by the extraction process, in the delivery 
of the residue of the gas produced from such lands to the owner thereof. 
Title will be granted to the helium which is physically reduced to 
possession.

[30 FR 9218, July 23, 1965]



Sec. 16.2  Applications for helium disposition agreements.

    The application for a helium disposition agreement need not be in 
any particular form, but must contain information sufficient to enable 
the Secretary to determine that the proposal will conserve helium that 
will otherwise be wasted, drained, or lost to Federal ownership or use, 
and to evaluate the suitability of the proposal.

[30 FR 9219, July 23, 1965]



Sec. 16.3  Terms and conditions.

    The applicant must agree not to develop wells on Federal land with 
the principal purpose of recovering the helium component of natural gas 
unless permission to do so has been expressly granted by the Secretary.

[30 FR 9219, July 23, 1965]



Sec. 16.4  Consideration to the United States; renegotiation.

    (a) The Secretary shall determine the royalty or other compensation 
to be paid by the applicant, which royalty or other compensation 
together with the royalties and other compensation paid by the oil and 
gas lessee, shall be in an amount sufficient to secure to the United 
States a return on all the values, including recovered helium.
    (b) The Secretary may require that each agreement shall contain a 
renegotiation clause providing for renegotiation of the royalty 
percentage ten years from the effective date of the agreement and at 
five-year intervals thereafter.

[29 FR 9383, July 9, 1964. Redesignated at 30 FR 9218, July 23, 1965]

[[Page 352]]



Sec. 16.5  Bonds.

    The applicant shall be required to submit a bond in such amount and 
in such form as the Secretary may prescribe to secure the faithful 
performance of the terms of any agreement made.

[29 FR 9383, July 9, 1964. Redesignated at 30 FR 9218, July 23, 1965]



PART 17_NONDISCRIMINATION IN FEDERALLY ASSISTED PROGRAMS OF THE DEPARTMENT OF THE INTERIOR--Table of Contents



  Subpart A_Nondiscrimination on the Basis of Race, Color, or National 
                                 Origin

Sec.
17.1 Purpose.
17.2 Application of this part.
17.3 Discrimination prohibited.
17.4 Assurances required.
17.5 Compliance information.
17.6 Conduct of investigations.
17.7 Procedure for effecting compliance.
17.8 Hearings.
17.9 Decisions and notices.
17.10 Judicial review.
17.11 Effect on other regulations; forms and instructions.
17.12 Definitions.

Appendix A to Subpart A
Appendix B to Subpart A

          Subpart B_Nondiscrimination on the Basis of Handicap

17.200 Purpose.
17.201 Application.
17.202 Definitions.
17.203 Discrimination prohibited.
17.204 Assurances required.
17.205 Remedial action, voluntary action, and self-evaluation.
17.206 Designation of responsible employee and adoption of grievance 
          procedures.
17.207 Notification.
17.208 Administrative requirements for small recipients.
17.209 Effect of State or local law or other requirements and effect of 
          employment opportunities.
17.210 Employment practices.
17.211 Reasonable accommodation.
17.212 Employment criteria.
17.213 Pre-employment inquiries.
17.214-17.215 [Reserved]
17.216 Accessibility.
17.217 Existing facilities.
17.218 New construction.
17.219 [Reserved]
17.220 Preschool, elementary, and secondary education.
17.221-17.231 [Reserved]
17.232 Postsecondary education.
17.233-17.249 [Reserved]
17.250 Health, welfare, and social services.
17.251 Drug and alcohol addicts.
17.252 Education of institutionalized persons.
17.253-17.259 [Reserved]
17.260 Historic Preservation Programs.
17.270 Recreation.
17.271-17.279 [Reserved]
17.280 Enforcement procedures.

             Subpart C_Nondiscrimination on the Basis of Age

                                 General

17.300 What is the purpose of the Age Discrimination Act of 1975?
17.301 What is the purpose of DOI's age discrimination regulations?
17.302 To what programs or activities do these regulations apply?
17.303 Definitions.

              Standards for Determining Age Discrimination

17.310 Rules against age discrimination.
17.311 Exceptions to the rules against age discrimination.
17.312 Burden of proof.
17.313 Special benefits for children and the elderly.
17.314 Age distinctions contained in DOI regulations.
17.315 Affirmative action by recipients.

                        Duties of DOI Recipients

17.320 General responsibilities.
17.321 Notice to subrecipients and beneficiaries.
17.322 Assurance of compliance and recipient assessment of age 
          distinctions.
17.323 Information collection requirements.

         Investigation, Conciliation, and Enforcement Procedures

17.330 Compliance reviews.
17.331 Complaints.
17.332 Mediation.
17.333 Investigation.
17.334 Prohibition against intimidation or retaliation.
17.335 Compliance procedure.
17.336 Hearings, decisions, post-termination proceedings.
17.337 Remedial action by recipients.
17.338 Alternate funds disbursal procedure.
17.339 Exhaustion of administrative remedies.

[[Page 353]]

Subpart D [Reserved]

 Subpart E_Enforcement of Nondiscrimination on the Basis of Handicap in 
   Programs or Activities Conducted by the Department of the Interior

17.501 Purpose.
17.502 Application.
17.503 Definitions.
17.504-17.509 [Reserved]
17.510 Self-evaluation.
17.511 Notice.
17.512-17.529 [Reserved]
17.530 General prohibitions against discrimination.
17.531-17.539 [Reserved]
17.540 Employment.
17.541-17.548 [Reserved]
17.549 Program accessibility: Discrimination prohibited.
17.550 Program accessibility: Existing facilities.
17.551 Program accessibility: New construction and alterations.
17.552-17.559 [Reserved]
17.560 Communications.
17.561-17.569 [Reserved]
17.570 Compliance procedures.

    Editorial Note: Nomenclature changes to Part 17 appear at 68 FR 
51376-51379, Aug. 26, 2003.



  Subpart A_Nondiscrimination on the Basis of Race, Color, or National 
                                 Origin

    Authority: Sec. 602, 78 Stat. 252; 42 U.S.C. 2000d-1; and the laws 
referred to in Appendix A.



Sec. 17.1  Purpose.

    The purpose of this part is to effectuate the provisions of title VI 
of the Civil Rights Act of 1964 to the end that no person in the United 
States shall, on the grounds of race, color, or national origin, be 
excluded from participation in, be denied the benefits of, or be 
otherwise subjected to discrimination under any program or activity 
receiving Federal financial assistance from the Department of the 
Interior.

[29 FR 16293, Dec. 4, 1964, as amended at 43 FR 4259, Feb. 1, 1978]



Sec. 17.2  Application of this part.

    (a) This part applies to any program for which Federal financial 
assistance is authorized under a law administered by the Department, 
including programs and activities that are federally-assisted under the 
laws listed in appendix A to this subpart. It applies to money paid, 
property transferred, or other Federal financial assistance extended 
after the effective date of the regulation pursuant to an application 
approved prior to such effective date. This part does not apply to (1) 
any Federal financial assistance by way of insurance or guaranty 
contracts, (2) money paid, property transferred, or other assistance 
extended before the effective date of this part, (3) any assistance to 
any individual who is the ultimate beneficiary, or (4) except to the 
extent described in Sec. 17.3, any employment practice, under any such 
program, of any employer, employment agency, or labor organization. The 
fact that a statute under which Federal financial assistance is extended 
to a program or activity is not listed in appendix A to subpart A shall 
not mean, if title VI is otherwise applicable, that such program or 
activity is not covered. Other statutes now in force or hereafter 
enacted may be added to this list by notice published in the Federal 
Register.
    (b) In any program receiving Federal financial assistance in the 
form, or for the acquisition, of real property or an interest in real 
property, to the extent that rights to space on, over, or under any such 
property are included as part of the program receiving that assistance, 
the nondiscrimination requirement of that part shall extend to any 
facility located wholly or in part of the space.

[29 FR 16293, Dec. 4, 1964, as amended at 38 FR 17975, July 5, 1973; 43 
FR 4259, Feb. 1, 1978]



Sec. 17.3  Discrimination prohibited.

    (a) General. No person in the United States shall, on the grounds of 
race, color, or national origin be excluded from participation in, be 
denied the benefits of, or be otherwise subjected to discrimination 
under any program to which this part applies.
    (b) Specific discriminatory actions prohibited. (1) A recipient to 
which this part applies may not, directly or through contractual or 
other arrangements, on the grounds of race, color, or national origin:

[[Page 354]]

    (i) Deny an individual any service, financial aid, or other benefit 
provided under the program;
    (ii) Provide any service, financial aid, or other benefit to an 
individual which is different, or is provided in a different manner, 
from that provided to others under the program;
    (iii) Subject an individual to segregation or separate treatment in 
any matter related to his receipt of any service, financial aid, or 
other benefit under the program;
    (iv) Restrict an individual in any way in the enjoyment of any 
advantage or privilege enjoyed by others receiving any service, 
financial aid, or other benefit under the program;
    (v) Treat an individual differently from others in determining 
whether he satisfies any admission, enrollment, quota, eligibility, 
membership or other requirement or condition which individuals must meet 
in order to be provided any service, financial aid, or other benefit 
provided under the program;
    (vi) Deny an individual an opportunity to participate in the program 
through the provision of services or otherwise or afford him an 
opportunity to do so which is different from that afforded others under 
the program (including the opportunity to participate in the program as 
an employee but only to the extent set forth in paragraph (c) of this 
section).
    (vii) Deny a person the opportunity to participate as a member of a 
planning or advisory body which is an integral part of the program.
    (2) A recipient, in determining the types of services, financial 
aid, or other benefits, or facilities which will be provided under any 
such program or the class of individuals to whom, or the situations in 
which, such services, financial aid, other benefits or facilities will 
be provided under any such program, or the class of individuals to be 
afforded an opportunity to participate in any such program, may not, 
directly or through contractual or other arrangements, utilize criteria 
or methods of administration which have the effect of subjecting 
individuals to discrimination because of their race, color, or national 
origin, or have the effect of defeating or substantially impairing 
accomplishment of the objectives of the program as respect individuals 
of a particular race, color, or national origin.
    (3) In determining the site or location of facilities, a recipient 
or applicant may not make selections with the purpose or effect of 
excluding persons from, denying them the benefits of, or subjecting them 
to discrimination under any program to which this regulation applies, on 
the grounds of race, color, or national origin; or with the purpose or 
effect if defeating or substantially impairing the accomplishment of the 
objectives of the Act or this part.
    (4)(i) In administering a program regarding which the recipient has 
previously discriminated against persons on the grounds of race, color, 
or national origin, the recipient must take affirmative action to 
overcome the effects of prior discrimination.
    (ii) Even in the absence of such prior discrimination, a recipient 
in administering a program may take affirmative action to overcome the 
effects of conditions which resulted in limiting participation by 
persons of a particular race, color or national origin.
    (5) References in this section to services, financial aid, or other 
benefits provided under a program receiving Federal financial assistance 
shall be deemed to include any service, financial aid, or other benefit 
provided in or through a facility provided with the aid of Federal 
financial assistance.
    (6) The enumeration of specific forms of prohibited discrimination 
in this paragraph (b) and paragraph (c) of this section does not limit 
the generality of the prohibition in paragraph (a) of this section.
    (c) Employment practices. (1) Where a primary objective of the 
Federal financial assistance to a program to which this part applies is 
to provide employment, a recipient or other party subject to this part 
shall not, directly or through contractual or other arrangements, 
subject a person to discrimination on the ground of race, color, or 
national origin in its employment practices under such program 
(including recruitment or recruitment advertising, hiring, firing, 
upgrading, promotion, demotion, transfer, layoff, termination, rates of 
pay or other forms of

[[Page 355]]

compensation or benefits, selection for training or apprenticeship, use 
of facilities, and treatment of employees). Such recipient shall take 
affirmative action to insure that applicants are employed, and employees 
are treated during employment, without regard to their race, color, or 
national origin. The requirements applicable to construction employment 
under any such program shall be those specified in or pursuant to Part 
III of Executive Order 11246, as amended, or any Executive Order which 
supersedes it.
    (2) The requirements of paragraph (c)(1) of this section apply to 
programs under laws funded or administered by the Department where a 
primary objective of the Federal financial assistance is (i) to reduce 
the unemployment of such individuals or to help them through employment 
to meet subsistence needs, (ii) to assist such individuals in meeting 
expenses incident to the commencement or continuation of their education 
or training, or (iii) to provide work experience which contributes to 
the education or training of such individuals. Assistance given under 
the following laws has one of the above purposes as a primary objective: 
Water Resources Research Act of 1964, title I, 78 Stat. 329, and those 
statutes listed in appendix A to this subpart where the facilities or 
employment opportunities provided are limited, or a preference is given, 
to students, fellows, or other persons in training or related 
employment.
    (3) Where a primary objective of the Federal financial assistance is 
not to provide employment, but discrimination on the ground of race, 
color, or national origin in the employment practices of the recipient 
or other persons subject to the regulation tends, on the ground of race, 
color, or national origin, to exclude individuals from participation in, 
to deny them the benefit of, or to subject them to discrimination under 
any program to which this regulation applies, the provisions of 
paragraph (c)(1) of this section shall apply to the employment practices 
of the recipient or other persons subject to this part, to the extent 
necessary to assure equality of opportunity to, and nondiscriminatory 
treatment of, beneficiaries.
    (d) Benefits for Indians, natives of certain territories, and Alaska 
natives. An individual shall not be deemed subjected to discrimination 
by reason of his exclusion from benefits which, in accordance with 
Federal law, are limited to Indians, natives of certain territories, or 
Alaska natives, if the individual is not a member of the class to which 
the benefits are addressed. Such benefits include those authorized by 
statutes listed in appendix B to this subpart.

[29 FR 16293, Dec. 4, 1964, as amended at 38 FR 17976, July 5, 1973; 43 
FR 4259, Feb. 1, 1978; 68 FR 51376, Aug. 26, 2003]



Sec. 17.4  Assurances required.

    (a) General. (1) Every application for Federal financial assistance 
to which this part applies, except an application to which paragraph (b) 
of this section applies, and every application for Federal financial 
assistance to provide a facility shall, as a condition to its approval 
and the extension of any Federal financial assistance pursuant to the 
application, contain or be accompanied by, an assurance that the program 
will be conducted or the facility operated in compliance with all 
requirements imposed by or pursuant to this part. Every award of Federal 
financial assistance shall require the submission of such an assurance. 
In the case where the Federal financial assistance is to provide or is 
in the form of personal property, or real property or interest therein 
or structures thereon, or improvement of real property or structures, 
the assurance shall obligate the recipient, or, in the case of a 
subsequent transfer, the transferee, for the period during which the 
property is used for a purpose for which the Federal financial 
assistance is extended or for another purpose involving the provision of 
similar services or benefits, or for as long as the recipient retains 
ownership or possession of the property, whichever is longer. In all 
other cases the assurance shall obligate the recipient for the period 
during which Federal financial assistance is extended to the program. In 
the case where the assistance is sought for the construction of a 
facility or part of a facility, the assurance shall in any event extend 
to the entire facility and

[[Page 356]]

to facilities operated in connection therewith. The Secretary shall 
specify the form of the foregoing assurances, and the extent to which 
like assurances will be required of subgrantees, contractors and 
subcontractors, transferees, successors in interest, and other 
participants. Any such assurance shall include provisions which give the 
United States a right to seek its judicial enforcement.
    (2) In the case where Federal financial assistance is provided in 
the form of a transfer of real property, structures, or improvements 
thereon, or interest therein, from the Federal Government, the 
instrument effecting or recording the transfer shall contain a covenant 
running with the land assuring nondiscrimination for the period during 
which the real property is used for a purpose for which the Federal 
financial assistance is extended or for another purpose involving the 
provision of similar services or benefits. Where no transfer of property 
or interest therein from the Federal Government is involved, but 
property is acquired or improved with Federal financial assistance, the 
recipient shall agree to include such covenant in any subsequent 
transfer of such property. When the property is obtained from the 
Federal Government, such covenant may also include a condition coupled 
with a right to be reserved by the Department to revert title to the 
property in the event of a breach of the covenant where, in the 
discretion of the Secretary, such a condition and right of reverter is 
appropriate to the statute under which the real property is obtained and 
to the nature of the grant and the grantee. In such event if a 
transferee of real property proposes to mortgage or otherwise encumber 
the real property as security for financing construction of new, or 
improvement of existing facilities on such property for the purposes for 
which the property was transferred, the Secretary may agree, upon 
request of the transferee and if necessary to accomplish such financing, 
and upon such conditions as he deems appropriate, to subordinate such 
right of reversion to the lien of such mortgage or other encumbrance.
    (b) Continuing Federal financial assistance. (1) Every application 
by a State or any agency or political subdivision of a State for 
continuing Federal financial assistance to which this regulation applies 
shall as a condition to its approval and the extension of any Federal 
financial assistance pursuant to the application (i) contain or be 
accompanied by a statement that the program is (or, in the case of a new 
program, will be) conducted in compliance with all requirements imposed 
by or pursuant to this part, or a statement of the extent to which it is 
not, at the time the statement is made, so conducted, and (ii) provide 
or be accompanied by provision for such methods of administration for 
the program as are found by the Secretary or his designee to give 
reasonable assurance that the applicant and all recipients of Federal 
financial assistance under such program will comply with all 
requirements imposed by or pursuant to this regulation, including 
methods of administration which give reasonable assurance that any 
noncompliance indicated in the statement under paragraph (b)(1)(i) of 
this section will be corrected.
    (2) With respect to some programs which are carried out by States or 
agencies or political subdivisions of States and which involve 
continuing Federal financial assistance administered by the Department, 
there has been no requirement that applications be filed by such 
recipients. From the effective date of this part no Federal financial 
assistance administered by this Department will be extended to a State 
or to an agency or a political subdivision of a State unless an 
application for such Federal financial assistance has been received from 
the State or State agency or political subdivision.
    (c) Elementary and secondary schools. The requirements of paragraph 
(a) or (b) of this section with respect to any elementary or secondary 
school or school system shall be deemed to be satisfied if such school 
or school system (1) is subject to a final order of a court of the 
United States for the desegregation of such school or school system, and 
provides an assurance that it will comply with such order, including any 
future modification of such order, or (2) submits a plan for the 
desegregation of such school or school

[[Page 357]]

system which the responsible official of the Department of Health, 
Education, and Welfare determines is adequate to accomplish the purposes 
of the Act and this part within the earliest practicable time and 
provides reasonable assurance that it will carry out such plan; in any 
case of continuing Federal financial assistance the responsible official 
of the Department of Health, Education, and Welfare may reserve the 
right to redetermine, after such period as may be specified by him, the 
adequacy of the plan to accomplish the purposes of the Act and this 
part. In any case in which a final order of a court of the United States 
for the desegregation of such school or school system is entered after 
submission of such a plan, such plan shall be revised to conform to such 
final order, including any future modification of such order.
    (d) Assurances from institutions. (1) In the case of any application 
for Federal financial assistance to an institution of higher education 
(including assistance for construction, for research for a special 
training project, for student assistance, or for another purpose), the 
assurance required by this section shall extend to admission practices 
and to all other practices relating to the treatment of students.
    (2) The assurance required with respect to an institution of higher 
education, or any other institution, insofar as the assurance relates to 
the institution's practices with respect to admission or other treatment 
of individuals as students, or clients of the institution or to the 
opportunity to participate in the provision of services or other 
benefits to such individuals, shall be applicable to the entire 
institution.

[29 FR 16293, Dec. 4, 1964, as amended at 38 FR 17976, July 5, 1973; 68 
FR 51376, Aug. 26, 2003]



Sec. 17.5  Compliance information.

    (a) Cooperation and assistance. The Secretary or his designee shall 
to the fullest extent practicable seek the cooperation of recipients in 
obtaining compliance with this part and shall provide assistance and 
guidance to recipients to help them comply voluntarily with this part.
    (b) Compliance reports. Each recipient shall keep such records and 
submit to the Secretary or his designee timely, complete and accurate 
compliance reports, at such times, and in such form and containing such 
information, as the Secretary or his designee may determine to be 
necessary to enable him to ascertain whether the recipient has complied 
or is complying with this part. In general, recipients should have 
available for the Department racial and ethnic data showing the extent 
to which members of minority groups are beneficiaries of federally--
assisted programs. In the case in which a primary recipient extends 
Federal financial assistance to any other recipient, such other 
recipient shall also submit such compliance reports to the primary 
recipient as may be necessary to enable the primary recipient to carry 
out its obligations under this part.
    (c) Access to sources of information. Each recipient shall permit 
access by the Secretary or his designee during normal business hours to 
such of its books, records, accounts, and other sources of information, 
and its facilities as may be pertinent to ascertain compliance with this 
part. Where any information required of a recipient is in the exclusive 
possession of any other agency, institution or person and this agency, 
institution or person shall fail or refuse to furnish this information, 
the recipient shall so certify in its report and shall set forth what 
efforts it has made to obtain the information.
    (d) Information to beneficiaries and participants. Each recipient 
shall make available to participants, beneficiaries, and other 
interested persons such information regarding the provisions of this 
part and its applicability to the program for which the recipient 
receives Federal financial assistance, and make such information 
available to them in such manner as the Secretary or his designee finds 
necessary to apprise such persons of the protections against 
discrimination assured them by the Act and this part.

[38 FR 17976, July 5, 1973]



Sec. 17.6  Conduct of investigations.

    (a) Periodic compliance reviews. The Secretary or his designee shall 
from

[[Page 358]]

time to time review the practices of recipients to determine whether 
they are complying with this part.
    (b) Complaints. Any person who believes himself or any specific 
class of individuals to be subjected to discrimination prohibited by 
this part may by himself or by a representative file with the Secretary 
a written complaint. A complaint must be filed not later than 180 days 
from the date of the alleged discrimination, unless the time for filing 
is extended by the Secretary, or his designee.
    (c) Investigations. Whenever a compliance review, report, complaint, 
or any other information indicates a possible failure to comply with 
this part, a prompt investigation shall be made. The investigation 
should include, where appropriate, a review of the pertinent practices 
and policies of the recipient, the circumstances under which the 
possible noncompliance with this part occurred, and other factors 
relevant to a determination as to whether the recipient has failed to 
comply with this part.
    (d) Resolution of matters. (1) If an investigation pursuant to 
paragraph (c) of this section indicates a failure to comply with this 
part, the recipient shall be informed in writing and the matter will be 
resolved by informal means whenever possible. If it has been determined 
that the matter cannot be resolved by informal means, action will be 
taken as provided for in Sec. 17.7.
    (2) If an investigation does not warrant action pursuant to 
paragraph (d)(1) of this section, the recipient and complainant, if any, 
shall be informed in writing.
    (e) Intimidatory or retaliatory acts prohibited. No recipient or 
other person shall intimidate, threaten, coerce, or discriminate against 
any individual for the purpose of interfering with any right or 
privilege secured by section 601 of the act or this part, or because he 
has made a complaint, testified, assisted, or participated in any manner 
in an investigation, proceeding, or hearing under this part. The 
identity of complainants shall be kept confidential except to the extent 
necessary to carry out the purposes of this part, including the conduct 
of any investigation, hearing, or judicial proceeding arising 
thereunder.

[29 FR 16293, Dec. 4, 1964, as amended at 38 FR 17977, July 5, 1973]



Sec. 17.7  Procedure for effecting compliance.

    (a) General. If there appears to be a failure or threatened failure 
to comply with this part, and if the noncompliance or threatened 
noncompliance cannot be corrected by informal means, compliance with 
this part may be effected by the suspension or termination of or refusal 
to grant or to continue Federal financial assistance or by any other 
means authorized by law. Such other means may include, but are not 
limited to, (1) a reference to the Department of Justice with a 
recommendation that appropriate proceedings be brought to enforce any 
rights of the United States under any law of the United States 
(including other titles of the Act), or any assurance or other 
contractual undertaking, and (2) any applicable proceeding under State 
or local law.
    (b) Noncompliance with Sec. 17.4. If an applicant fails or refuses 
to furnish an assurance required under Sec. 17.4 or otherwise fails or 
refuses to comply with a requirement imposed by or pursuant to that 
section, Federal financial assistance may be refused in accordance with 
the procedures of paragraph (c) of this section. The Department shall 
not be required to provide assistance in such a case during the pendency 
of the administrative proceedings under such paragraph, except that the 
Department shall continue assistance during the pendency of such 
proceedings where such assistance is due and payable pursuant to an 
application therefor approved prior to the effective date of this part.
    (c) Termination of or refusal to grant or to continue Federal 
financial assistance. No order suspending, terminating, or refusing to 
grant or continue Federal financial assistance shall become effective 
until (1) the Secretary or his designee has advised the applicant or 
recipient of his failure to comply and has determined that compliance 
cannot be secured by voluntary means, (2) there has been an express 
finding on the record, after opportunity for hearing,

[[Page 359]]

of a failure by the applicant or recipient to comply with a requirement 
imposed by or pursuant to this part, (3) the action has been approved by 
the Secretary pursuant to Sec. 17.9(e), and (4) the expiration of 30 
days after the Secretary has filed with the committee of the House and 
the committee of the Senate having legislative jurisdiction over the 
program involved, a full written report of the circumstances and the 
grounds for such action. Any action to suspend or terminate or to refuse 
to grant or to continue Federal financial assistance shall be limited to 
the particular political entity, or part thereof, or other applicant or 
recipient as to whom such finding has been made and shall be limited in 
its effect to the particular program, or part thereof, in which such 
noncompliance has been so found.
    (d) Other means authorized by law. No action to effect compliance by 
any other means authorized by law shall be taken until (1) the Secretary 
or his designee has determined that compliance cannot be secured by 
voluntary means, (2) the recipient or other person has been notified of 
its failure to comply and of the action to be taken to effect 
compliance, and (3) the expiration of at least 10 days from the mailing 
of such notice to the recipient or other person. During this period of 
at least 10 days additional effort shall be made to persuade the 
recipient or other person to comply with this part and to take such 
corrective action as may be appropriate.

[29 FR 16293, Dec. 4, 1964, as amended at 38 FR 17977, July 5, 1973]



Sec. 17.8  Hearings.

    (a) Opportunity for hearing. Whenever an opportunity for a hearing 
is required by Sec. 17.7(c), reasonable notice shall be given by 
registered or certified mail, return receipt requested, to the affected 
applicant or recipient. This notice shall advise the applicant or 
recipient of the action proposed to be taken, the specific provision 
under which the proposed action against it is to be taken, and the 
matters of fact or law asserted as the basis for this action, and either 
(1) fix a date not less than 20 days after the date of such notice 
within which the applicant or recipient may request of the 
administrative law judge to whom the matter has been assigned that the 
matter be scheduled for hearing or (2) advise the applicant or recipient 
that the matter in question has been set down for hearing at a stated 
place and time. The time and place so fixed shall be reasonable and 
shall be subject to change for cause. The complainant, if any, shall be 
advised of the time and place of the hearing. An applicant or recipient 
may waive a hearing and submit written information and argument for the 
record. The failure of an applicant or recipient to request a hearing 
under this paragraph or to appear at a hearing for which a date has been 
set shall be deemed to be a waiver of the right to a hearing under 
section 602 of the act and Sec. 17.7(c) and consent to the making of a 
decision on the basis of such information as is available.
    (b) Time and place of hearing. Hearings shall be held at the Office 
of Hearings and Appeals of the Department in the Washington, DC, area, 
at a time fixed by the administrative law judge to whom the matter has 
been assigned unless he determines that the convenience of the applicant 
or recipient or of the Department requires that another place be 
selected. Hearings shall be held before an administrative law judge 
designated by the Office of Hearings and Appeals in accordance with 5 
U.S.C. 3105 and 3344.
    (c) Right to counsel. In all proceedings under this section, the 
applicant or recipient and the Department shall have the right to be 
represented by counsel.
    (d) Procedures, evidence, and record (1) The hearing, decision, and 
any administrative review thereof shall be conducted in conformity with 
5 U.S.C. 554-557, and in accordance with such rules of procedure as are 
proper (and not inconsistent with this section) relating to the conduct 
of the hearing, giving of notices subsequent to those provided for in 
paragraph (a) of this section, taking of testimony, exhibits, arguments 
and briefs, requests for findings, and other related matters. Both the 
Department and the applicant or recipient shall be entitled to introduce 
all relevant evidence on the issues as stated in the notice for hearing 
or as determined by the officer conducting

[[Page 360]]

the hearing at the outset of or during the hearing.
    (2) Technical rules of evidence shall not apply to hearings 
conducted pursuant to this part, but rules or principles designed to 
assure production of the most credible evidence available and to subject 
testimony to test by cross-examination shall be applied where reasonably 
necessary by the officer conducting the hearing. The hearing officer may 
exclude irrelevant, immaterial, or unduly repetitious evidence. All 
documents and other evidence offered or taken for the record shall be 
open to examination by the parties and opportunity shall be given to 
refute facts and arguments advanced on either side of the issues. A 
transcript shall be made of the oral evidence except to the extent that 
the substance thereof is stipulated for the record. All decisions shall 
be based upon the hearing record and written findings shall be made.
    (e) Consolidated or joint hearings. In cases in which the same or 
related facts are asserted to constitute noncompliance with this part 
with respect to two or more Federal statutes, authorities, or other 
means by which Federal financial assistance is extended and to which 
this part applies or noncompliance with this part and the regulations of 
one or more other Federal departments or agencies issued under title VI 
of the act, the Secretary may, by agreement with such other departments 
or agencies, where applicable, provide for the conduct of consolidated 
or joint hearings, and for the application to such hearings of rules of 
procedure not inconsistent with this part. Final decisions in such 
cases, insofar as this part is concerned, shall be made in accordance 
with Sec. 17.9.

[29 FR 16293, Dec. 4, 1964, as amended at 38 FR 17977, July 5, 1973]



Sec. 17.9  Decisions and notices.

    (a) Initial decision by an administrative law judge. The 
administrative law judge shall make an initial decision and a copy of 
such initial decision shall be sent by registered mail, return receipt 
requested, to the recipient or applicant.
    (b) Review of the initial decision. The applicant or recipient may 
file his exceptions to the initial decision, with his reasons therefor, 
with the Director, Office of Hearings and Appeals, within thirty days of 
receipt of the initial decision. In the absence of exceptions, the 
Director, Office of Hearings and Appeals, on his own motion within 
forty-five days after the initial decision, may notify the applicant or 
recipient that he will review the decision. In the absence of exceptions 
or a notice of review, the initial decision shall constitute the final 
decision subject to the approval of the Secretary pursuant to paragraph 
(f) of this section.
    (c) Decisions by the Director, Office of Hearings and Appeals. 
Whenever the Director, Office of Hearings and Appeals, reviews the 
decision of a hearing examiner pursuant to paragraph (b) of this 
section, the applicant or recipient shall be given reasonable 
opportunity to file with him briefs or other written statements of its 
contention, and a copy of the final decision of the Director, Office of 
Hearings and Appeals, shall be given to the applicant or recipient and 
to the complainant, if any.
    (d) Decisions on record where a hearing is waived. Whenever a 
hearing is waived pursuant to Sec. 17.8(a), a decision shall be made by 
the Director, Office of Hearings and Appeals on the record and a copy of 
such decision shall be given in writing to the applicant or recipient 
and to the complainant, if any.
    (e) Rulings required. Each decision of an administrative law judge 
or the Director, Office of Hearings and Appeals, shall set forth his 
ruling on each finding, conclusion, or exception presented, and shall 
identify the requirement or requirements imposed by or pursuant to this 
part with which it is found that the applicant or recipient has failed 
to comply.
    (f) Approval by Secretary. Any final decision of a hearing examiner 
or of the Director, Office of Hearings and Appeals, which provides for 
the suspension or termination of, or the refusal to grant or continue 
Federal financial assistance, or the imposition of any other sanction 
available under this part of the act, shall promptly be transmitted to 
the Secretary, who may approve such decision, may vacate it, or remit or 
mitigate any sanction imposed.

[[Page 361]]

    (g) Content of decisions. The final decision may provide for the 
suspension or termination of, or refusal to grant or continue Federal 
financial assistance, in whole or in part, to which this regulation 
applies, and may contain such terms, conditions, and other provisions as 
are consistent with and effectuate the purposes of the act and this 
part, including provisions designed to assure that no Federal financial 
assistance to which this regulation applies will thereafter be extended 
to the applicant or recipient determined by such decision to be in 
default in its performance of an assurance given by it pursuant to this 
regulation, or to have otherwise failed to comply with this part, unless 
and until it corrects its noncompliance and satisfies the Secretary that 
it will fully comply with this part.
    (h) Post termination proceedings. (1) An applicant or recipient 
adversely affected by an order issued under paragraph (g) of this 
section shall be restored to full eligibility to receive Federal 
financial assistance if it satisfies the terms and conditions of that 
order for such eligibility or if it brings itself into compliance with 
this part and provides reasonable assurance that it will fully comply 
with this part.
    (2) Any applicant or recipient adversely affected by an order 
entered pursuant to paragraph (g) of this section may at any time 
request the Secretary to restore fully its eligibility to receive 
Federal financial assistance.
    (3) If the Secretary denies any such request, the applicant or 
recipient may submit to the Secretary a request for a hearing in 
writing, specifying why it believes the Secretary to have been in error. 
It shall thereupon be given an expeditious hearing, with a decision on 
the record in accordance with the procedures set forth in subpart I of 
part 4 of this title. The applicant or recipient shall be restored to 
such eligibility if it proves at such a hearing that it satisfied the 
requirements of paragraph (h)(1) of this section.
    (4) While proceedings under this paragraph are pending, the 
sanctions imposed by the order issued under paragraph (g) of this 
section shall remain in effect.

[38 FR 17977, July 5, 1973; 44 FR 54299, Sept. 19, 1979]



Sec. 17.10  Judicial review.

    Action taken pursuant to section 602 of the act is subject to 
judicial review as provided in section 603 of the act.

[29 FR 16293, Dec. 4, 1964]



Sec. 17.11  Effect on other regulations; forms and instructions.

    (a) Effect on other regulations. All regulations, orders, or like 
directions heretofore issued by any officer of the Department which 
impose requirements designed to prohibit any discrimination against 
individuals on the grounds of race, color, or national origin under any 
program to which this regulation applies and which authorize the 
suspension or termination of or refusal to grant or to continue Federal 
financial assistance to any applicant for or recipient of such 
assistance for failure to comply with such requirements are hereby 
superseded to the extent that such discrimination is prohibited by this 
part, except that nothing in this part shall be deemed to relieve any 
person of any obligation assumed or imposed under any such superseded 
regulation, order, instruction, or like direction prior to the effective 
date of this regulation. Nothing in this regulation, however, shall be 
deemed to supersede any of the following (including future amendments 
thereof): (1) Executive Orders 10925, 11114 and 11246, as amended and 
regulations issued thereunder, (2) Executive Order 11063 and regulations 
issued thereunder, or any other regulations or instructions insofar as 
such order, regulations, or instructions prohibit discrimination on the 
grounds of race, color, or national origin in any program or situation 
to which this part is inapplicable, or prohibit discrimination on any 
other ground.
    (b) Forms and instructions. The Secretary or his designee shall 
issue and promptly make available to interested persons instructions and 
procedures for effectuating this part as applied to programs to which 
this part applies and for which he is responsible.

[[Page 362]]

    (c) Supervision and coordination. The Secretary may from time to 
time assign to such officials of the Department as he deems appropriate, 
or to officials of other departments or agencies of the Government with 
the consent of such departments or agencies, responsibilities in 
connection with the effectuation of the purposes of title VI of the act 
and this part (other than responsibility for final decision as provided 
in Sec. 17.9), including the achievement of effective coordination and 
maximum uniformity within the Department and within the Executive Branch 
of the Government in the application of title VI of the act and this 
part to similar programs and in similar situations. Any action taken, 
determination made or requirement imposed by an official of another 
department or agency acting pursuant to an assignment of responsibility 
under this paragraph shall have the same effect as though such action 
had been taken by the Secretary of the Interior.

[29 FR 16293, Dec. 4, 1964, as amended at 43 FR 4259, Feb. 1, 1978]



Sec. 17.12  Definitions.

    As used in this part:
    (a) The term act means the Civil Rights Act of 1964 (Pub. L. 88-352 
78 Stat. 241).
    (b) The term Department means the Department of the Interior, and 
includes each of its bureaus and offices.
    (c) The term Secretary means the Secretary of the Interior or, 
except in Sec. 17.9(f), any person to whom he has delegated his 
authority in the matter concerned.
    (d) The term United States means the States of the United States, 
the District of Columbia, Puerto Rico, the Virgin Islands, American 
Samoa, Guam, Wake Island, the Canal Zone, and the territories and 
possessions of the United States, and the term ``State'' means any one 
of the foregoing.
    (e) The term Federal financial assistance includes (1) grants and 
loans of Federal funds, (2) grants or donations of Federal property and 
interests in property, (3) the detail of Federal personnel (4) the sale 
or lease of, or the permission to use (on other than a casual or 
transient basis), Federal property or any interest in such property 
without consideration or at a nominal consideration or at a 
consideration which is reduced for the purpose of assisting the 
recipient or in recognition of the public interest to be served by such 
sale or lease to the recipient, and (5) any Federal agreement, 
arrangement, or other contract which has as one of its purposes the 
provision of assistance.
    (f) The terms program or activity and program mean all of the 
operations of any entity described in paragraphs (f)(1) through (4) of 
this section, any part of which is extended Federal financial 
assistance:
    (1)(i) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (ii) The entity of such State or local government that distributes 
such assistance and each such department or agency (and each other State 
or local government entity) to which the assistance is extended, in the 
case of assistance to a State or local government;
    (2)(i) A college, university, or other postsecondary institution, or 
a public system of higher education; or
    (ii) A local educational agency (as defined in 20 U.S.C. 7801), 
system of vocational education, or other school system;
    (3)(i) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (A) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (B) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (ii) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (4) Any other entity which is established by two or more of the 
entities described in paragraph (f)(1), (2), or (3) of this section.
    (g) The term facility includes all or any portion of structures, 
equipment,

[[Page 363]]

or other real or personal property or interests therein, and the 
provision of facilities includes the construction, expansion, 
renovation, remodeling, alteration or acquisition of facilities.
    (h) The term recipient means any State, political subdivision of any 
State, or instrumentality of any State or political subdivision, any 
public or private agency, institution, or organization, or any other 
entity, or any individual, in any State, to whom Federal financial 
assistance is extended, directly or through another recipient, including 
any successor, assign, or transferee thereof, but such term does not 
include the ultimate beneficiary.
    (i) The term primary recipient means any recipient which is 
authorized or required to extend Federal financial assistance to another 
recipient.
    (j) The term applicant means one who submits an application, 
request, or plan required to be approved by the head of a bureau or 
office, or by a primary recipient, as a condition to eligibility for 
Federal financial assistance, and the term ``application'' means such an 
application, request, or plan.
    (k) The term Office of Hearings and Appeals refers to a constituent 
office of the Department established July 1, 1970. 35 FR 12081 (1970).

[29 FR 16293, Dec. 4, 1964, as amended at 38 FR 17978, July 5, 1973; 68 
FR 51376, Aug. 26, 2003]



                 Sec. Appendix A to Subpart A of Part 17

    Federal financial assistance subject to part 17 includes, but is not 
limited to, that authorized by the following statutes:
    I. Public Lands and Acquired Lands. (a) Grants and loans of Federal 
funds.
    1. Mineral Leasing Act of 1920, as amended and supplemented (30 
U.S.C. 181-287).
    2. Mineral Leasing Act for Acquired Lands (30 U.S.C. 351-359).
    3. Alaska Grazing Act (44 Stat. 1452, 48 U.S.C. 471, et seq.).
    4. Proceeds of Certain Land Sales (R.S. sec. 3689, as amended, 31 
U.S.C. 711 (17)).
    5. Taylor Grazing Act (48 Stat. 1269, as amended, 43 U.S.C. 315 et 
seq.).
    6. Oregon and California Railroad and Coos Bay Wagon Road Grant 
Lands Act (50 Stat. 874, 43 U.S.C. 1181f).
    7. Payment to States for Swamp Lands Erroneously Sold by U.S. (R.S. 
sec. 3689, as amended, 31 U.S.C. 711 (18)).
    8. Alaska Statehood Act, sec. 6(f), (72 Stat. 341, 48 U.S.C. note 
preceding sec. 21).
    (b) Sale, lease, grant, or other disposition of, or the permission 
to use, Federal property or any interest in such property at less than 
fair market value.
    1. Materials Act (61 Stat. 681, as amended 30 U.S.C. 601-604).
    2. Rights-of-way for Tramroads, Canals, Reservoirs (28 Stat. 635, as 
amended, 43 U.S.C. 956, 957).
    3. Highway Rights-of-way (R.S. sec. 2477 43 U.S.C. 932).
    4. Small Tract Act (52 Stat. 609, as amended, 43 U.S.C. 682a--682e).
    5. Rights-of-way for Dams, Reservoirs, Water Plants, Canals, etc. 
(33 Stat. 628, 16 U.S.C. 524).
    6. Rights-of-way for Power and Communication Facilities (36 Stat. 
1253, as amended, 43 U.S.C. 961).
    7. Recreation and Public Purposes Act (44 Stat. 741, as amended, 43 
U.S.C. 869--869-4).
    8. Stock-Watering Reservoirs (29 Stat. 434, as amended, 43 U.S.C. 
952-955).
    9. Alaska Housing Authority Act (63 Stat. 60, 48 U.S.C. 484c).
    10. Railroad Rights-of-way in Alaska (30 Stat. 409, 48 U.S.C. 411-
419).
    11. Grants to States in Aid Schools (44 Stat. 1026 as amended, 43 
U.S.C. 870).
    12. Carey Act (28 Stat. 422, as amended, 43 U.S.C. 641).
    13. Airports and Aviation Fields (45 Stat. 728, as amended, 49 
U.S.C. 211-214).
    14. Special Land Use Permits (R.S. sec. 453, as amended, 43 U.S.C. 
2).
    15. Rights-of-way for Irrigation and Drainage (26 Stat. 1101, as 
amended, 43 U.S.C. 946).
    16. Rights-of-way for Pipelines to Transport Oil or Natural Gas (41 
Stat. 449, as amended, 30 U.S.C. 185).
    17. Townsite Laws (R.S. 2380 et seq., as amended, 43 U.S.C. 711 et 
seq.).
    18. Leases of Lands near Springs (43 Stat. 1133, 43 U.S.C. 971).
    19. Rights-of-way for Railroads (18 Stat. 482, 43 U.S.C. 934).
    20. Grants of Easements (76 Stat. 1129, 40 U.S.C. 319-319c).
    II. Water and Power. (a) Grants and loans of Federal funds.
    1. Federal Reclamation Program (32 Stat. 388, 43 U.S.C. 391, and 
Acts amendatory or supplementary thereto).
    2. Reservation of Land for Park, Playground, or Community Center (38 
Stat. 727, 43 U.S.C. 569).
    3. Distribution System Loan Program (69 Stat. 244, as amended, 43 
U.S.C. 421a--421d).
    4. Rehabilitation and Betterment Loan Program (63 Stat. 724, as 
amended, 43 U.S.C. 504).
    5. Small Reclamation Project Loan Program (70 Stat. 1044, 43 U.S.C. 
422a--422k).
    6. Assistance to School Districts on Reclamation Projects (62 Stat. 
1108, 43 U.S.C. 385a).

[[Page 364]]

    7. Payment from Colorado River Dam Fund, Boulder Canyon Project (54 
Stat. 776 as amended, 43 U.S.C. 618(c)).
    8. Payment on In Lieu of Taxes Lands Acquired Pursuant to Columbia 
Basin Project Act (57 Stat. 19, 16 U.S.C. 835c-1).
    9. Payment in Lieu of Taxes on Land to Trinity County, California 
(69 Stat. 729).
    10. Saline Water Research Program (66 Stat. 328, as amended, 42 
U.S.C. 1951).
    11. Water User Repayment Obligations on Reclamation Projects (43 
Stat. 703, 43 U.S.C. 501, 62 Stat. 273, 66 Stat. 754).
    12. Water Resources Research Act (78 Stat. 329).
    (b) Sale, lease, grant or other disposition of, or the permission to 
use, Federal property or any interest in such property at less than fair 
market value.
    1. Townsite Disposal on Reclamation Projects (34 Stat. 116, 43 
U.S.C. 566).
    2. Transfer of Federal Property in Coulee Dam, Washington (71 Stat. 
529, 16 U.S.C. 835c note).
    3. Transfer of Federal Property to Boulder City, Nevada (72 Stat. 
1726, 43 U.S.C. 617u note).
    4. Reservation of Land for Park, Playground, or Community Center (38 
Stat. 727, 43 U.S.C. 569).
    5. Saline Water Research Program-Donation of Laboratory Equipment 
(72 Stat. 1793, 42 U.S.C. 1892).
    6. Reclamation Program-Conveyance of Land to School Districts (41 
Stat. 326, 43 U.S.C. 570).
    7. Recreation and Public Purposes Program (44 Stat. 741, as amended, 
43 U.S.C. 869-869a).
    8. Dedication of Land for Public Purposes, Page. Arizona (72 Stat. 
1686, 1688).
    9. Removal of Sand, Gravel, and Other Minerals, and Building 
Materials from Reclamation Project Lands (53 Stat. 1196, as amended, 43 
U.S.C. 387).
    III. Mineral Resources. Grants and loans of Federal funds.
    1. Control of Coal Mine Fires (68 Stat. 1009, 30 U.S.C. 551-558 et 
seq.)
    2. Anthracite Mine Drainage and Flood Control and Sealing of 
Abandoned Mines and Filling Voids (69 Stat. 352, as amended, 30 U.S.C. 
571-576).
    3. Sealing and filling of voids in abandoned coal mines, reclamation 
of surface mine areas, and extinguishing mine fires (79 Stat. 13, as 
amended, 40 U.S.C., App., 205).
    IV. Fish and Wildlife. (a) Grants of Federal funds.
    1. Pittman-Robertson Act (50 Stat. 917, as amended, 16 U.S.C. 669).
    2. Dingell-Johnson Act (64 Stat. 430, 16 U.S.C. 777).
    3. Sharing of Refuge Revenues (49 Stat. 383, as amended, 16 U.S.C. 
715s).
    4. Aid to Alaska (Section 6(e) of the Alaska Statehood Act, 72 Stat. 
340, and Act of February 28, 1944, 58 Stat. 101, 16 U.S.C. 631e).
    5. Anadromous Fish Act of 1965 (79 Stat. 1125, 16 U.S.C. 757a--
757f).
    6. Aid to Education (70 Stat. 1126, 16 U.S.C. 760d).
    7. Jellyfish Act of 1966 (80 Stat. 1149, 16 U.S.C. 1201-1205).
    (b) Sale, lease, grant, or other disposition of, or the permission 
to use, Federal property or any interest in such property at less than 
fair market value.
    1. Cooperative Research and Training Program for Fish and Wildlife 
Resources (74 Stat. 733, 16 U.S.C. 753a)
    2. Protection and Conservation of Bald and Golden Eagles (54 Stat. 
251, as amended 16 U.S.C. 668a).
    3. Wildlife Land Transfers (sec. 8 of Colorado River Storage Project 
Act of 1956, 70 Stat. 110, 43 U.S.C. 620g)
    4. Fish and Wildlife Coordination Act (48 Stat. 401, as amended, 16 
U.S.C. 661-664).
    (c) Furnishing of services of a type for which the recipient would 
otherwise pay.
    1. Lampry Eradication Program (60 Stat. 930, as amended, 16 U.S.C. 
921)
    2. Cooperative Research and Training Program for Fish and Wildlife 
Resources (74 Stat. 733, 16 U.S.C. 753a)
    3. Fish and Wildlife Coordination Act (48 Stat. 401, as amended, 16 
U.S.C. 661 et seq.).
    V. Parks and Territories. (a) Grants and loans of Federal funds.
    1. Payments to School Districts--Yellowstone National Park (62 Stat. 
338, 16 U.S.C. 40a).
    2. Payments in Lieu of Taxes--Grand Teton National Park (64 Stat. 
851, 16 U.S.C. 406d-3).
    3. Historic Preservation Act of 1966 (80 Stat. 915, 16 U.S.C. 47a).
    4. Bureau of Outdoor Recreation (77 Stat. 49, 16 U.S.C. 460l).
    5. Revised Organic Act of the Virgin Islands (68 Stat. 497, as 
amended, 48 U.S.C. 1541-1644).
    6. Guam Rehabilitation Act (77 Stat. 302).
    7. Organic Act of Guam (64 Stat. 384 as amended, 48 U.S.C. 1421-1425 
except sec. 9(a), 48 U.S.C. 1422c(a)).
    8. Guam Agricultural Act (P.L. 88-584, 78 Stat. 926).
    9. Outdoor Recreation Programs (78 Stat. 897, as amended, 16 U.S.C. 
460l--460l-11).
    (b) Sale, lease, grant or other disposition of, or the permission 
to, use Federal property or any interest in such property at less than 
fair market value.
    1. Puerto Rico Federal Relations Act (39 Stat. 954, 48 U.S.C. 748).
    2. Virgin Islands Corporation Act (63 Stat. 350, as amended, 48 
U.S.C. 1407 et seq.).
    3. Territorial Submerged Lands Act (77 Stat. 338, 48 U.S.C. 1701-
1704).
    4. Organic Act of Guam (64 Stat. 392, 48 U.S.C. 1421f(c)).

[[Page 365]]

    (c) Furnishing of services by the Federal Government of a type for 
which the recipient would otherwise pay.
    1. Bureau of Outdoor Recreation (77 Stat. 49, 16 U.S.C. 460l).
    VI. Indian Affairs. (a) Grants and loans of Federal funds.
    1. Menominee County, Wis. Educational Grants (76 Stat. 53).
    (b) Sale, lease, grant, or other disposition of or the permission to 
use, Federal property or any interest in such property at less than fair 
market value.
    1. Conveyance of School Property (67 Stat. 41, as amended, 25 U.S.C. 
293a).
    2. Adult Vocational Training Act (70 Stat. 986, 25 U.S.C. 309).
    VII. General. 1. Department Projects under the Public Works 
Acceleration Act (76 Stat. 541, 42 U.S.C. 2641-2643).
    2. Grants for Support of Scientific Research (72 Stat. 1793, 42 
U.S.C. 1891-1893).
    3. Special Use Permits (R.S. sec. 441, as amended, 43 U.S.C. 1457).
    4. Land and Water Conservation Fund Act of 1964 (Pub. L. 88-578, 78 
Stat. 897).

[29 FR 16293, Dec. 4, 1964, as amended at 38 FR 17978, July 5, 1973]



                 Sec. Appendix B to Subpart A of Part 17

    The following statutes authorize Federal financial assistance 
limited to individuals of a particular race, color, or national origin
    I. Indians and Alaska Natives. 1. Snyder Act (42 Stat. 208, 25 
U.S.C. 13).
    2. Adult Vocational Training Act (70 Stat. 986, 25 U.S.C. 309).
    3. Vocational and Trade School Act (48 Stat. 986, 25 U.S.C. 471)
    4. Johnson-O'Malley Act (48 Stat. 596, as amended, 25 U.S.C. 452-53)
    5. Revolving Fund for Loan to Indians (48 Stat. 986, 25 U.S.C. 470).
    6. Revolving Fund for Loans to Tribes (77 Stat. 301).
    7. Conveyance of Buildings, Improvements, or Facilities to Tribes 
(70 Stat. 1057, 25 U.S.C. 443a).
    8. Alaska Reindeer Act (50 Stat. 900, 48 U.S.C. 250-250p)
    9. Disposals to Alaskan Natives (44 Stat. 629, 48 U.S.C. 355a and 
355c).
    II. Natives of Certain Territories. 1. Acceptance of Samoan Cession 
Agreement (45 Stat. 1253, as amended, 48 U.S.C. 1661).
    2. Samoan Omnibus Act (76 Stat. 586, 48 U.S.C. 1666)
    3. Guam Organic Act (64 Stat. 387, 48 U.S.C. 1422c).

[29 FR 16293, Dec. 4, 1964, as amended at 68 FR 51376, Aug. 26, 2003]



          Subpart B_Nondiscrimination on the Basis of Handicap

    Authority: 29 U.S.C. 794.

    Source: 47 FR 29546, July 7, 1982, unless otherwise noted.



Sec. 17.200  Purpose.

    The purpose of this subpart is to implement section 504 of the 
Rehabilitation Act of 1973 and its subsequent amendments, which are 
designed to eliminate discrimination on the basis of handicap in any 
program or activity receiving Federal financial assistance.



Sec. 17.201  Application.

    This subpart applies to each recipient of Federal financial 
assistance from the Department of the Interior and to each program or 
activity that receives such assistance.



Sec. 17.202  Definitions.

    As used in this subpart, the term:
    (a) The Act means the Rehabilitation Act of 1973, Public Law 93-112, 
as amended by the Rehabilitation Act Amendments of 1974, Public Law 93-
516, and the Rehabilitation, Comprehensive Service, and Developmental 
Disabilities Act of 1978, Public Law 95-602, 29 U.S.C. 700 et seq.
    (b) Section 504 means section 504 of the Act.
    (c) Education of the Handicapped Act means that statute as amended 
by the Education for All Handicapped Children Act of 1975, Public Law 
94-142, 20 U.S.C. 1401 et seq.
    (d) Department means the Department of the Interior.
    (e) Director means the Director of the Office for Equal Opportunity 
of the Department.
    (f) Recipient means any State or its political subdivision, any 
instrumentality of a State or its political subdivision, any public or 
private agency, institution, organization, or other entity, or any 
person to which Federal financial assistance is extended directly or 
through another recipient, including any successor, assignee, or 
transferee of a recipient, but excluding the ultimate beneficiary of the 
assistance.
    (g) Applicant for assistance means one who submits an application, 
request, or

[[Page 366]]

plan required to be approved by a Department official or by a recipient 
as a condition to becoming a recipient.
    (h) Federal financial assistance means any grant, cooperative 
agreement, loan, contract (other than a procurement contract or a 
contract of insurance or guaranty), or any other arrangement by which 
the Department provides or otherwise makes available assistance in the 
form of:
    (1) Funds;
    (2) Services of Federal personnel; or
    (3) Real and personal property or any interest in or use of such 
property, including:
    (i) Easements, transfers or leases of such property for less than 
fair market value or for reduced consideration; and
    (ii) Proceeds from a subsequent transfer or lease of such property 
if the Federal share of its fair market value is not returned to the 
Federal Government.
    (i) Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, outdoor spaces, including those 
used for recreation, park sites, developed sites, or other real or 
personal property or interest in such property.
    (j) Handicapped person. (1) Handicapped person means any person who 
(i) has a physical, mental or sensory impairment which substantially 
limits one or more major life activities, (ii) has a record of such an 
impairment, or (iii) is regarded as having such an impairment.
    (2) As used in paragraph (j)(1)(i) of this section, the phrase:
    (i) Physical, mental or sensory impairment means (A) any 
physiological disorder or condition, cosmetic disfigurement, or 
anatomical loss affecting one or more of the following body systems: 
Neurological; musculoskeletal; special sense organs; respiratory, 
including speech organs; cardiovascular; reproductive; digestive; 
genito-urinary; hemic and lymphatic; skin; and endocrine; or (B) any 
mental or psychological disorder, such as mental retardation, organic 
brain syndrome, emotional or mental illness, and specific learning 
disabilities. The term ``physical, mental or sensory impairment'' 
includes, but is not limited to, such diseases and conditions as 
orthopedic, visual, speech, and hearing impairments, cerebral palsy, 
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, 
diabetes, mental retardation, emotional illness, drug addiction, and 
alcoholism.
    (ii) Major life activities means functions such as caring for one's 
self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (iii) Has a record of such an impairment means has a history of, or 
has been misclassified as having a mental, physical or sensory 
impairment that substantially limits one or more major life activities.
    (iv) Is regarded as having an impairment means:
    (A) Has a physical, mental or sensory impairment that does not 
substantially limit major life activities but that is treated by a 
recipient as constituting such a limitation;
    (B) Has a physical, mental or sensory impairment that substantially 
limits major life activities only as a result of the attitudes of others 
toward such impairment; or
    (C) Has none of the impairments defined in paragraph (j)(2)(i) of 
this section but is treated by a recipient as having such an impairment.
    (k) Qualified handicapped person means:
    (1) With respect to employment, a handicapped person who, with 
reasonable accommodation, can perform the essential functions of the job 
in question. Insofar as this part relates to employment of handicapped 
persons, the term ``handicapped person'' does not include any individual 
who is an alcoholic or drug abuser whose current use of alcohol or drugs 
prevents such individual from performing the duties of the job in 
question or whose employment, by reason of such current alcohol or drug 
abuse, would constitute a direct threat to property or the safety of 
others.
    (2) With respect to public preschool, elementary, secondary, or 
adult education services, a handicapped person (i) of an age during 
which nonhandicapped persons are provided such services, (ii) of any age 
during which it is mandatory under State law to provide such services to 
handicapped persons,

[[Page 367]]

or (iii) to whom a State is required to provide a free appropriate 
public education under section 612 of the Education of the Handicapped 
Act.
    (3) With respect to postsecondary and vocational education services, 
a handicapped person who meets the academic and technical standards 
requisite to admission or participation in the recipient's education 
program or activity.
    (4) With respect to services, a handicapped person who meets the 
essential eligibility requirements for the receipt of such services.
    (l) Handicap means any condition or characteristic that renders a 
person a handicapped person as defined in paragraph (j)(2)(i) of this 
section.
    (m) Integrated setting means that whenever possible, the recipient 
should make its aid, benefits, or services available to the handicapped 
in the same setting and under similar circumstances as are available to 
the nonhandicapped.
    (n) Ultimate beneficiary means one among a class of persons who are 
entitled to benefit from, or otherwise participate in, programs or 
activities receiving Federal financial assistance and to whom the 
protections of this subpart extend. The ultimate beneficiary class may 
be the general public or some narrower group of persons.
    (o) Advisory Council means the Advisory Council on Historic 
Preservation.
    (p) ATBCB means the Architectural and Transportation Barriers 
Compliance Board, an agency empowered by the Architectural Barriers Act 
of 1968 (Pub. L. 90-480) to establish accessibility standards under 
section 502.
    (q) Program or activity means all of the operations of any entity 
described in paragraphs (q)(1) through (4) of this section, any part of 
which is extended Federal financial assistance:
    (1)(i) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (ii) The entity of such State or local government that distributes 
such assistance and each such department or agency (and each other State 
or local government entity) to which the assistance is extended, in the 
case of assistance to a State or local government;
    (2)(i) A college, university, or other postsecondary institution, or 
a public system of higher education; or
    (ii) A local educational agency (as defined in 20 U.S.C. 7801), 
system of vocational education, or other school system;
    (3)(i) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (A) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (B) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (ii) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (4) Any other entity which is established by two or more of the 
entities described in paragraph (q)(1), (2), or (3) of this section.

[47 FR 29546, July 7, 1982, as amended at 68 FR 51377, Aug. 26, 2003]



Sec. 17.203  Discrimination prohibited.

    (a) General. No qualified handicapped person shall, on the basis of 
handicap, be excluded from participation in, be denied the benefits of, 
or otherwise be subjected to discrimination under any program or 
activity which receives Federal financial assistance.
    (b) Discriminatory actions prohibited. (1) A recipient, in providing 
any aid, benefit, or service, may not, directly or through contractual, 
licensing, or other arrangements, on the basis of handicap:
    (i) Deny a qualified handicapped person the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified handicapped person an opportunity to 
participate in or benefit from the aid, benefit, or service that is not 
equal to that afforded others;
    (iii) Provide a qualified handicapped person with an aid, benefit, 
or service

[[Page 368]]

that is not as effective as that provided to others;
    (iv) Provide different or separate aids, benefits or services to 
handicapped persons or to any class of handicapped persons unless such 
action is necessary to provide qualified handicapped persons with aid, 
benefits, or services that are as effective as those provided to others;
    (v) Aid or perpetuate discrimination against a qualified handicapped 
person by providing significant assistance to an agency, organization, 
or person that discriminates on the basis of handicap in providing any 
aid, benefit, or services to beneficiaries of the recipient's program or 
activity;
    (vi) Deny a qualified handicapped person the opportunity to 
participate as a member of planning or advisory boards; or
    (vii) Otherwise limit a qualified handicapped person in the 
enjoyment of any right, privilege, advantage, or opportunity enjoyed by 
others receiving an aid, benefit, or service.
    (2) Aids, benefits, and services, to be equally effective, are not 
required to produce the identical result of level of achievement for 
handicapped and nonhandicapped persons, but must afford handicapped 
persons equal opportunity to obtain the same result, to gain the same 
benefit, or to reach the same level of achievement, in the most 
integrated setting appropriate to the person's needs.
    (3) Despite the existence of separate or different aid, benefits, or 
services, a recipient may not deny a qualified handicapped person the 
opportunity to participate in all aid, benefits, or services covered by 
this subpart that are not separate or different.
    (4) A recipient may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration (i) that 
have the effect of subjecting qualified handicapped persons to 
discrimination on the basis of handicap, (ii) that have the purpose or 
effect of defeating or substantially impairing accomplishment of the 
objectives of the recipient's program or activity with respect to 
handicapped persons, or (iii) that perpetuate the discrimination of 
another recipient if both recipients are subject to common 
administrative control or are agencies of the same State.
    (5) In determining the site or location of a facility, an applicant 
for assistance or a recipient may not make selections (i) that have the 
effect of excluding handicapped persons from, denying them the benefits 
of, or otherwise subjecting them to discrimination under any program or 
activity that receives Federal financial assistance or (ii) that have 
the purpose of effect of defeating or substantially impairing the 
accomplishment of the objectives of the program or activity with respect 
to handicapped persons.
    (6) As used in this section, the aid, benefit, or services provided 
under a program or activity receiving Federal financial assistance 
includes any aid, benefit, or service provided in or through a facility 
that has been constructed, expanded, altered, leased or rented, or 
otherwise acquired, in whole or in part, with Federal financial 
assistance for the period during which the facility is used for a 
purpose for which the Federal financial assistance is extended or for 
another purpose involving the provision of similar services or benefits.
    (7) Nothing in this section is to be construed as affecting the 
acquisition of historic sites or wilderness areas.
    (c) Aid, benefits, or services limited by Federal law. The exclusion 
of nonhandicapped persons from aid, benefits, or services limited by 
Federal statute or Executive Order to handicapped persons or the 
exclusion of a specific class of handicapped persons from aid, benefits, 
or services limited by Federal statute or Executive Order to a different 
class of handicapped persons is not prohibited by this subpart.
    (d) Recipients shall take appropriate steps to insure that 
communications with their applicants, employees, and beneficiaries are 
available to persons with impaired vision and hearing.

[47 FR 29546, July 7, 1982, as amended at 68 FR 51377, Aug. 26, 2003]



Sec. 17.204  Assurances required.

    (a) Assurances. An applicant for Federal financial assistance to 
which this

[[Page 369]]

subpart applies shall provide assurances, in accordance with OMB 
Circular A-102, that the program or activity will be operated in 
compliance with this subpart. An applicant may incorporate these 
assurances by reference in subsequent applications to the Department.
    (b) Duration of obligation. (1) In the case of Federal financial 
assistance extended in the form of real property or to provide real 
property or structures on the property, the assurance will obligate the 
recipient or, in the case of a subsequent transfer, the transferee, for 
the period during which the real property or structures are used for the 
purpose for which Federal financial assistance is extended or for 
another purpose involving the provision of similar services or benefits.
    (2) In the case of Federal financial assistance extended to provide 
personal property, the assurance will obligate the recipient for the 
period during which it retains ownership or possession of the property.
    (3) In all other cases the assurance will obligate the recipient for 
the period during which Federal financial assistance is extended.
    (c) Covenants. (1) Where Federal financial assistance is provided in 
the form of real property or interest in the property from the 
Department, the instrument effecting or recording this transfer shall 
contain a covenant running with the land to assure nondiscrimination for 
the period during which the real property is used for a purpose for 
which the Federal financial assistance is extended or for another 
purpose involving the provision of similar services or benefits.
    (2) Where no transfer of property is involved but property is 
purchased or improved with Federal financial assistance, the recipient 
shall agree to include the covenant described in paragraph (c)(1) of 
this section in the instrument effecting or recording any subsequent 
transfer of the property.
    (3) Where Federal financial assistance is provided in the form of 
real property or interest in the property from the Department, the 
covenant shall unless prohibited by the conveyance authority, also 
include a condition coupled with a right to be reserved by the 
Department to revert title to the property in the event of a breach of 
the covenant. If a transferee of real property proposes to mortgage or 
otherwise encumber the real property as security for financing 
construction of new, or improvement of existing, facilities on the 
property for the purposes for which the property was transferred, the 
Director may, upon request of the transferee and if necessary to 
accomplish such financing and upon such conditions as he or she deems 
appropriate, agree to forbear the exercise of such right to revert title 
for so long as the lien of such mortgage or other encumbrance remains 
effective.
    (4) Every application by a State or any agency or political 
subdivision of a State for continuing Federal financial assistance shall 
as a condition to its approval and the extension of any Federal 
financial assistance pursuant to the application (i) contain or be 
accompanied by a statement that the program or activity is (or, in the 
case of a new program, will be) conducted in compliance with all 
requirements imposed by or pursuant to this subpart, or a statement of 
the extent to which it is not, at the time the statement is made, so 
conducted, and (ii) provide or be accompanied by provision for such 
methods of administration for the program or activity as are found by 
the Secretary or his designee to give reasonable assurance that the 
applicant and all recipients of Federal financial assistance will comply 
with all requirements imposed by or pursuant to this regulation, 
including methods of administration which give reasonable assurance that 
any noncompliance indicated in the statement under paragraph (c)(4)(i) 
of this section will be corrected.



Sec. 17.205  Remedial action, voluntary action, and self-evaluation.

    (a) Remedial action. (1) If the Director finds that a recipient has 
discriminated against persons on the basis of handicap in violation of 
section 504 or this subpart, the recipient shall take such remedial 
action as the Director deems necessary to overcome the effects of the 
discrimination.
    (2) Where a recipient is found to have discriminated against persons 
on the

[[Page 370]]

basis of handicap in violation of section 504 or this subpart and where 
another recipient exercises control over the recipient that has 
discriminated, the Director, where appropriate, may require either or 
both recipients to take remedial action.
    (3) The Director may, where necessary to overcome the effects of 
discrimination in violation of section 504 or this subpart, require a 
recipient to take remedial action (i) with respect to handicapped 
persons who are no longer participants in the recipient's program or 
activity but who were participants in the program when such 
discrimination occurred or (ii) with respect to handicapped persons who 
would have been participants in the program or activity had the 
discrimination not occurred.
    (b) Voluntary action. A recipient may take steps, in addition to any 
action that is required by this subpart, to overcome the effects of 
conditions that resulted in limited participation in the recipient's 
program or activity by qualified handicapped persons.
    (c) Self-evaluation. (1) A recipient shall, within one year of the 
effective date of this subpart:
    (i) Evaluate, with the assistance of interested persons, including 
handicapped persons or organizations representing handicapped persons, 
its current policies and practices and the effects thereof that do not 
or may not meet the requirements of this subpart;
    (ii) Modify, after consultation with interested persons, including 
handicapped persons or organizations representing handicapped persons, 
any policies and practices that do not meet the requirements of this 
subpart; and
    (iii) Take, after consultation with interested persons, including 
handicapped persons or organizations representing handicapped persons, 
appropriate remedial steps to eliminate the effects of any 
discrimination that resulted from adherence to these policies and 
practices.
    (2) A recipient that employs fifteen or more persons shall, for at 
least three years following completion of the evaluation required under 
paragraph (c)(1) of this section, maintain on file, make available for 
public inspection, and provide to the Director upon request: (i) A list 
of the interested persons consulted, (ii) a description of areas 
examined and any problems identified, and (iii) a description of any 
modifications made and of any remedial steps taken.
    (3) A recipient, whose application is approved after the effective 
date of this regulation, shall within one year of receipt of the Federal 
financial assistance, be required to comply with the provisions of this 
section.



Sec. 17.206  Designation of responsible employee and adoption of grievance procedures.

    (a) Designation of responsible employee. A recipient that employs 
fifteen or more people shall designate at least one person to coordinate 
efforts to comply with this subpart.
    (b) Adoption of grievance procedures. A recipient that employs 
fifteen or more people shall adopt grievance procedures that incorporate 
appropriate due process standards and that provide for the prompt and 
equitable resolution of complaints alleging any action prohibited by 
this subpart. Such procedures need not be established with respect to 
complaints from applicants for employment or from applicants for 
admission to postsecondary educational institutions.



Sec. 17.207  Notification.

    (a) A recipient that employs fifteen or more people shall take 
appropriate initial and continuing steps to notify participants, 
beneficiaries, applicants, and employees, including those with impaired 
vision or hearing, the mentally retarded, the learning disabled, and any 
other disability that impairs the communication process, and unions or 
professional organizations holding collective bargaining or professional 
agreements with the recipient, that it does not discriminate on the 
basis of handicap in violation of section 504 and this subpart. The 
notification shall state, where appropriate, that the recipient does not 
discriminate in admission or access to, or treatment or employment in, 
its programs or activities. The notification shall also include an 
identification of the responsible employee designated pursuant to Sec. 
17.206(a). A recipient shall make the initial notification required by 
this

[[Page 371]]

paragraph within 90 days of the effective date of this subpart. Methods 
of initial and continuing notification may include the posting of 
notices in recipients' publications, and distribution of memoranda or 
other written communications.
    (b) If a recipient publishes or uses recruitment materials or 
publications containing general information that it makes available to 
participants, beneficiaries, applicants, or employees, it shall include 
in those materials or publications a statement of the policy described 
in paragraph (a) of this section. A recipient may meet the requirement 
of this paragraph either by including appropriate inserts in existing 
materials and publications or by revising and reprinting the materials 
and publications.



Sec. 17.208  Administrative requirements for small recipients.

    The Director may require any recipient with fewer than fifteen 
employees, or any class of such recipients, to comply with Sec. Sec. 
17.206 and 17.207, in whole or in part, when the Director finds a 
violation of this subpart or finds that such compliance will not 
significantly impair the ability of the recipient or class of recipients 
to provide benefits or services.



Sec. 17.209  Effect of State or local law or other requirements and effect of employment opportunities.

    (a) The obligation to comply with this subpart is not obviated or 
alleviated by the existence of any State or local law or other 
requirement that, on the basis of handicap, imposes prohibitions or 
limits upon the eligibility of qualified handicapped persons to receive 
services or to practice any occupation or profession.
    (b) The obligation to comply with this subpart is not obviated or 
alleviated because employment opportunities in any occupation or 
profession are or may be more limited for handicapped persons than for 
nonhandicapped persons.



Sec. 17.210  Employment practices.

    (a) General. (1) No qualified handicapped person shall, on the basis 
of handicap, be subjected to discrimination in employment under any 
program or activity to which this subpart applies.
    (2) A recipient that receives assistance under the Education of the 
Handicapped Act shall take positive steps to employ and advance in 
employment qualified handicapped persons in programs or activities 
assisted under the Act.
    (3) A recipient shall make all decisions concerning employment under 
any program or activity to which this subpart applies in a manner which 
insures that discrimination on the basis of handicap does not occur, and 
may not limit, segregate, or classify applicants or employees in any way 
that adversely affects their opportunities or status because of 
handicap.
    (4) A recipient may not participate in a contractual or other 
relationship that has the effect of subjecting qualified handicapped 
applicants or employees to discrimination prohibited by this subpart. 
The relationships referred to in this subparagraph include relationships 
with employment and referral agencies, with labor unions, with 
organizations providing or administering fringe benefits to employees of 
the recipient, and with organizations providing training and 
apprenticeships.
    (b) Specific activities. The provisions of this subpart apply to:
    (1) Recruitment, advertising, and the processing of applications for 
employment;
    (2) Hiring, upgrading, promotion, award of tenure, demotion, 
transfer, layoff, termination, right of return from layoff, and 
rehiring;
    (3) Rates of pay or any other form of compensation and changes in 
compensation;
    (4) Job assignments, job classifications, organizational structures, 
position descriptions, lines of progressions, and seniority lists;
    (5) Leaves of absence, sick leave, or any other leave;
    (6) Fringe benefits available by virtue of employment, whether or 
not administered by the recipient;
    (7) Selection and financial support for training, including 
apprenticeship, professional meetings, conferences, and other related 
activities, and selection

[[Page 372]]

for leaves of absence to pursue training;
    (8) Employer-sponsored activities, including those that are social 
or recreation; and
    (9) Any other term, condition, or privilege of employment, such as 
granting awards, recognition and/or monetary recompense for money-saving 
suggestions or superior performance.
    (c) A recipient's obligation to comply with this subpart is not 
affected by any inconsistent term of any collective bargaining agreement 
to which it is a party.



Sec. 17.211  Reasonable accommodation.

    (a) A recipient shall make reasonable accommodation to the known 
physical or mental limitations of an otherwise qualified handicapped 
applicant or employee unless the recipient can demonstrate that the 
accommodation would impose an undue hardship on the operation of its 
program or activity.
    (b) Reasonable accommodation may include but is not limited to: (1) 
Making facilities used by employees readily accessible to and usable by 
handicapped persons, and (2) job restructuring, part-time or modified 
work schedules, acquisition or modification of equipment or devices, the 
provision of readers or interpreters, and other similar actions. This 
list is neither all inclusive nor meant to suggest that employers must 
follow all the actions listed.
    (c) In determining pursuant to paragraph (a) of this section whether 
an accommodation would impose an undue hardship on the operation of a 
recipient's program or activity, factors to be considered include:
    (1) The overall size of the recipient's program or activity with 
respect to number of employees, number and type of facilities, and size 
of budget;
    (2) The type of the recipient's operations, including the 
composition and structure of the recipient's workforce; and
    (3) The nature and cost of the accommodation needed.
    (d) A recipient may not deny any employment opportunity to a 
handicapped employee or applicant if the basis for denial is the need to 
make reasonable accommodation to the physical or mental limitations of 
the employee or applicant.



Sec. 17.212  Employment criteria.

    (a) A recipient may not make use of any employment test or other 
selection criterion that screens out or tends to screen out handicapped 
persons or any class of handicapped persons unless it can be 
demonstrated to the Director that (1) the test score or other selection 
criterion, as used by the recipient, is shown to be job-related for the 
position in question, and (2) alternative job-related tests or criteria 
that do not screen out or tend to screen out as many handicapped persons 
are not shown by the Director to be available.
    (b) A recipient shall select and administer tests concerning 
employment so as best to ensure that, when administered to an applicant 
or employee who has a handicap that impairs sensory, manual, or speaking 
skills the test results accurately reflect the applicant's or employee's 
job skills, aptitude, or whatever other factor the test purports to 
measure, rather than reflecting the applicant's or employee's impaired 
sensory, manual, or speaking skills (except where those skills are the 
factors that the test purports to measure).
    (c) All job qualifications must be shown to be directly related to 
the job in question.



Sec. 17.213  Pre-employment inquiries.

    (a) Except as provided in paragraphs (b) and (c) of this section, a 
recipient may not conduct a pre-employment medical examination or make a 
pre-employment inquiry as to whether the applicant is a handicapped 
person or as to the nature or severity of a handicap. A recipient may, 
however, make a pre-employment inquiry into an applicant's ability to 
perform job-related functions.
    (b) When a recipient is taking remedial action to correct the 
effects of past discrimination pursuant to Sec. 17.205(a), when a 
recipient is taking voluntary action to overcome the effects of 
conditions that resulted in limited participation in its federally 
assisted program or activity pursuant to Sec. 17.205(b), or when a 
recipient is taking

[[Page 373]]

affirmative action pursuant to section 503 of the Act, the recipient may 
invite applicants for employment to indicate whether and to what extent 
they are handicapped, provided that:
    (1) The recipient states clearly on any written questionnaire used 
for this purpose, or makes clear orally if no written questionnaire is 
used, that the information requested is intended for use solely in 
connection with its remedial action obligations or its voluntary or 
affirmative action efforts.
    (2) The recipient states clearly that the information is being 
requested on a voluntary basis, that it will be kept confidential as 
provided in paragraph (d) of this section, that refusal to provide it 
will not subject the applicant or employee to any adverse treatment, and 
that it will be used only in accordance with this subpart.
    (3) The recipient must communicate with the applicant in a manner 
that will ensure that the applicant understands clearly the reasons for 
the recipient's questions.
    (c) Nothing in this section shall prohibit a recipient from 
conditioning an offer of employment on the results of a medical 
examination conducted prior to the employee's entrance on duty, provided 
that: (1) All entering employees are subjected to such an examination 
regardless of handicap, and (2) the results of such an examination are 
used only in accordance with the requirements of this subpart.
    (d) Information obtained in accordance with this section as to the 
medical condition or history of the applicant shall be collected and 
maintained on separate forms that shall be accorded confidentiality as 
medical records, except that:
    (1) Supervisors and managers may be informed regarding restrictions 
on the work or duties of handicapped persons and regarding necessary 
accommodations;
    (2) First aid and safety personnel may be informed, where 
appropriate, if the condition might require emergency treatment;
    (3) Government officials investigating compliance with the Act shall 
be provided relevant information upon request.



Sec. Sec. 17.214-17.215  [Reserved]



Sec. 17.216  Accessibility.

    No handicapped person shall, because a recipient's facilities are 
inaccessible to or unusable by handicapped persons, be denied the 
benefits of, be excluded from participation in, or otherwise be 
subjected to discrimination under any program or activity to which this 
subpart applies.



Sec. 17.217  Existing facilities.

    (a) Accessibility. A recipient shall operate each program or 
activity so that when each part is viewed in its entirety it is readily 
accessible to and usable by handicapped persons. This paragraph does not 
require a recipient to make each of its existing facilities or every 
part of a facility accessible to and usable by handicapped persons.
    (b) Methods. A recipient may comply with the requirements of 
paragraph (a) of this section through such means as redesigning of 
equipment, reassignment of classes or other services to accessible 
buildings, assignment of aides to beneficiaries, delivery of services at 
alternate accessible sites, alterations of existing facilities and 
construction of new facilities in conformance with the requirements of 
Sec. 17.218, or any other methods that result in making its program or 
activity accessible to handicapped persons. A recipient is not required 
to make structural changes in existing facilities where other methods 
are effective in achieving compliance with paragraph (a) of this 
section. In choosing among available methods for meeting the requirement 
of paragraph (a) of this section, a recipient shall give priority to 
those methods that serve handicapped persons in the most integrated 
setting appropriate.
    (c) Small recipients. If a recipient with fewer than fifteen 
employees that provides services finds, after consultation with a 
handicapped person seeking its services, that there is no method of 
complying with paragraph (a) of this section other than making a 
significant alteration in its existing facilities, the recipient may, as 
an alternative, refer the handicapped person to other providers of those 
services whose facilities are accessible.

[[Page 374]]

    (d) Time period. A recipient shall comply with the requirement of 
paragraph (a) of this section within sixty days of the effective date of 
this subpart except that where structural changes in facilities are 
necessary, such changes shall be made as expeditiously as possible, but 
in no event later than three years after the effective date of this 
subpart. New recipients receiving Federal financial assistance shall 
comply with the requirement of paragraph (a) of this section, except 
that where structural changes in facilities are necessary, such changes 
shall be made as expeditiously as possible, but in no event later than 
three years after the date of approval of the application.
    (e) Transition plan. In the event that structural changes to 
facilities are necessary to meet the requirement of paragraph (a) of 
this section a recipient shall develop, within one year of the effective 
date of this subpart, a transition plan setting forth the steps 
necessary to complete such changes. New recipients, receiving financial 
assistance after the effective date of this regulation, shall develop a 
transition plan within one year of receipt of the financial assistance. 
The plan shall be developed with the assistance of interested persons, 
including handicapped persons or organizations representing handicapped 
persons. A copy of the transition plan shall be made available for 
public inspection. The plan shall, at a minimum:
    (1) Identify physical obstacles in the recipient's facilities that 
limit the accessibility of its program or activity to handicapped 
persons;
    (2) Describe in detail the methods that will be used to make the 
facilities accessible and usable;
    (3) Specify the schedule for taking the steps necessary to achieve 
full accessibility under paragraph (a) of this section and, if the time 
period of the transition plan is longer than one year, identify steps 
that will be taken during each year of the transition period; and
    (4) Indicate the person responsible for implementation of the plan.
    (f) Notice. The recipient shall adopt and implement procedures to 
insure that interested persons, including persons with impaired vision 
or hearing, can obtain information as to the existence and location of 
services, activities, and facilities that are accessible to and usable 
by handicapped persons.

[47 FR 29546, July 7, 1982, as amended at 68 FR 51377, Aug. 26, 2003]



Sec. 17.218  New construction.

    (a) Design and construction. Each facility or part of a facility 
constructed by, on behalf of, or for the use of a recipient shall be 
designed and constructed in such manner that the facility or part of the 
facility is readily accessible to and usable by handicapped persons, if 
the construction was commenced after the effective date of this subpart.
    (b) Alteration. Each facility or part of a facility which is altered 
by, on behalf of, or for the use of a recipient after the effective date 
of this subpart, in a manner that affects or could affect the usability 
of the facility or part of the facility shall, to the maximum extent 
feasible, be altered in such manner that the altered portion of the 
facility is readily accessible to and usable by handicapped persons.
    (c) Conformance with Uniform Federal Accessibility Standards. (1) 
Effective as of August 15, 1990, design, construction, or alteration of 
buildings in conformance with sections 3-8 of the Uniform Federal 
Accessibility Standards (UFAS) (appendix A to 41 CFR subpart 101-19.6) 
shall be deemed to comply with the requirements of this section with 
respect to those buildings. Departures from particular technical and 
scoping requirements of UFAS by the use of other methods are permitted 
where substantially equivalent or greater access to and usability of the 
building is provided.
    (2) For purposes of this section, section 4.1.6(1)(g) of UFAS shall 
be interpreted to exempt from the requirements of UFAS only mechanical 
rooms and other spaces that, because of their intended use, will not 
require accessibility to the public or beneficiaries or result in the 
employment or residence therein of persons with physical handicaps.
    (3) This section does not require recipients to make building 
alterations

[[Page 375]]

that have little likelihood of being accomplished without removing or 
altering a load-bearing structural member.

[47 FR 29546, July 7, 1982, as amended at 55 FR 28912, July 16, 1990]



Sec. 17.219  [Reserved]



Sec. 17.220  Preschool, elementary, and secondary education.

    This section applies to preschool, elementary, secondary, and adult 
education programs or activities that receive Federal financial 
assistance, and to recipients that operate, or that receive Federal 
financial assistance for the operation of such programs or activities. 
For the purposes of this section, recipients shall comply with the 
Section 504 requirements promulgated by the Department of Education at 
34 CFR part 104, subpart D.



Sec. Sec. 17.221-17.231  [Reserved]



Sec. 17.232  Postsecondary education.

    This section applies to postsecondary education and activities, 
including postsecondary vocational education programs or activities, 
that receive Federal financial assistance and to recipients that 
operate, or that receive Federal financial assistance for the operation 
of such programs or activities. For the purposes of this section, all 
recipients shall comply with the section 504 requirements promulgated by 
the Department of Education at 34 CFR part 104, subpart E.



Sec. Sec. 17.233-17.249  [Reserved]



Sec. 17.250  Health, welfare, and social services.

    This subpart applies to health, welfare, and other social service 
programs or activities that receive Federal financial assistance and to 
recipients that operate, or that receive Federal financial assistance 
for the operation of such programs or activities.
    (a) General. In providing health, welfare, or other social services 
or benefits, a recipient may not, on the basis of handicap:
    (1) Deny a qualified handicapped person these benefits or services;
    (2) Afford a qualified handicapped person an opportunity to receive 
benefits or services that is not equal to that offered nonhandicapped 
persons;
    (3) Provide a qualified handicapped person with benefits or services 
that are not as effective, as defined in Sec. 17.203(b), as the 
benefits or services provided to others;
    (4) Provide benefits or services in a manner that limits or has the 
effect of limiting the participation of qualified handicapped persons; 
or
    (5) Provide different or separate benefits or services to 
handicapped persons except where necessary to provide qualified 
handicapped persons with benefits and services that are as effective as 
those provided to others.
    (b) Notice. A recipient that provides notice concerning 
beneficiaries or services, or written material concerning waivers of 
rights or consent to treatment, shall take such steps as are necessary 
to insure that qualified handicapped persons, including those with 
impaired sensory or speaking skills, are not denied effective notice 
because of their handicap.
    (c) Emergency treatment for the hearing impaired. A recipient 
hospital that provides health services or benefits shall establish a 
procedure for effective communication with persons with impaired hearing 
for the purpose of providing emergency health care.
    (d) Auxiliary aids. (1) A recipient that employs fifteen or more 
persons shall provide appropriate auxiliary aids to persons with 
impaired sensory, manual, or speaking skills, where necessary to afford 
such persons an equal opportunity to benefit from the service in 
question.
    (2) The Director may require recipients with fewer than fifteen 
employees to provide auxiliary aids where the provision of aids would 
not significantly impair the ability of the recipient to provide its 
benefits or services.
    (3) For the purpose of this paragraph, auxiliary aids may include 
brailled and taped material, interpreters, visual aids, and other aids 
for persons with impaired hearing or vision.



Sec. 17.251  Drug and alcohol addicts.

    A recipient that operates a general hospital or outpatient facility 
may not discriminate in admission or treatment

[[Page 376]]

against a drug or alcohol abuser or addict who is suffering from a 
medical condition, because of the person's drug or alcohol abuse or 
addiction.



Sec. 17.252  Education of institutionalized persons.

    A recipient that operates or supervises a program or activity that 
provides aid, benefits, or services for persons who are 
institutionalized because of handicap shall ensure that each qualified 
handicapped person, as defined in Sec. 17.202(d)(2), in its program or 
activity is provided an appropriate education, as defined in the 
regulation set forth by the Department of Education at 34 CFR 104.33(b). 
Nothing in this section shall be interpreted as altering in any way the 
obligations of recipients under Sec. 17.216.



Sec. Sec. 17.253-17.259  [Reserved]



Sec. 17.260  Historic Preservation Programs.

    (a) Definitions. For the purposes of this section, Historic 
Preservation Programs are those that receive Federal financial 
assistance that has preservation of historic properties as a primary 
purpose.
    Historic properties means those buildings or facilities that are 
listed or eligible for listing in the National Register of Historic 
Places, or such properties designated as historic under a statute of the 
appropriate State or local governmental body.
    Substantial impairment means a permanent alteration that results in 
a significant loss of the integrity of finished materials, design 
quality or special character.
    (b) Obligations. (1) A recipient shall operate any program or 
activity involving Historic Preservation Programs so that when each part 
is viewed in its entirety it is readily accessible to and usable by 
handicapped persons. This paragraph does not necessarily require a 
recipient to make each of its existing historic properties or every part 
of an historic property accessible to and usable by qualified 
handicapped persons. Methods of achieving accessibility include:
    (i) Making physical alterations which enable qualified handicapped 
persons to have access to otherwise inaccessible areas or features of 
historic properties;
    (ii) Using audio-visual materials and devices to depict otherwise 
inaccessible areas or features of historic properties;
    (iii) Assigning persons to guide qualified handicapped persons into 
or through otherwise inaccessible portions of historic properties;
    (iv) Adopting other innovative methods to achieve accessibility.

Because the primary benefit of an Historic Preservation Program is the 
experience of the historic property itself, in taking steps to achieve 
accessibility, recipients shall give priority to those means which make 
the historic property, or portions thereof, physically accessible to 
handicapped individuals.
    (2) Where accessibility cannot be achieved without causing a 
substantial impairment of significant historic features, the Secretary 
may grant a waiver of the accessibility requirement. In determining 
whether accessibility can be achieved without causing a substantial 
impairment, the Secretary shall consider the following factors:
    (i) Scale of property, reflecting its ability to absorb alterations;
    (ii) Use of the property, whether primarily for public or private 
purpose;
    (iii) Importance of the historic features of the property to the 
conduct of the program or activity; and,
    (iv) Cost of alterations in comparison to the increase in 
accessibility.

The Secretary shall periodically review any waiver granted under this 
section and may withdraw it if technological advances or other changes 
so warrant.
    (c) Advisory Council comments. Where the property is federally owned 
or where Federal funds may be used for alterations, the comments of the 
Advisory Council on Historic Preservation shall be obtained when 
required by section 106 of the National Historic Preservation Act of 
1966, as amended (16 U.S.C. 470), and 36 CFR part 800, prior to 
effectuation of structural alterations.

[47 FR 29546, July 7, 1982, as amended at 55 FR 28912, July 16, 1990; 68 
FR 51377, Aug. 26, 2003]

[[Page 377]]



Sec. 17.270  Recreation.

    This section applies to recipients that operate, or that receive 
Federal financial assistance for the operation of programs or activities 
involving recreation.
    (a) Accessibility in existing recreation facilities. In the case of 
existing recreation facilities, accessibility of programs or activities 
shall mean accessibility of programs or activities when viewed in their 
entirety as provided at Sec. 17.217. When it is not reasonable to alter 
natural and physical features, the following other methods of achieving 
accessibility may include, but are not limited to:
    (1) Reassigning aid, benefits, or services to accessible locations.
    (2) Delivering aid, benefits, or services at alternate accessible 
sites operated by or available for such use by the recipient.
    (3) Assignments of aides to beneficiaries.
    (4) Construction of new facilities in conformance with the 
requirements of Sec. 17.218.
    (5) Other methods that result in making the aid, benefits, or 
services accessible to handicapped persons.
    (b) [Reserved]

[47 FR 29546, July 7, 1982, as amended at 68 FR 51377, Aug. 26, 2003]



Sec. Sec. 17.271-17.279  [Reserved]



Sec. 17.280  Enforcement procedures.

    The compliance and enforcement provisions applicable to title VI of 
the Civil Rights Act of 1964 apply to this subpart. These procedures are 
found in 43 CFR part 17, subpart A, Sec. Sec. 17.5-17.11 and 43 CFR 
part 4, subpart I.



             Subpart C_Nondiscrimination on the Basis of Age

    Authority: Age Discrimination Act of 1975, as amended, 42 U.S.C. 
6101 et seq.; 45 CFR part 90.

    Source: 54 FR 3598, Jan. 25, 1989, unless otherwise noted.

                                 General



Sec. 17.300  What is the purpose of the Age Discrimination Act of 1975?

    The Age Discrimination Act of 1975, as amended, is designed to 
prohibit discrimination on the basis of age in programs or activities 
receiving Federal financial assistance. The Act also permits federally 
assisted programs or activities, and recipients of Federal funds, to 
continue to use certain age distinctions and factors other than age 
which meet the requirements of the Act and these regulations.



Sec. 17.301  What is the purpose of DOI's age discrimination regulations?

    The purpose of these regulations is to set out DOI's policies and 
procedures under the Age Discrimination Act of 1975 and the general age 
discrimination regulations at 45 CFR part 90. The Act and the general 
regulations prohibit discrimination on the basis of age in programs or 
activities receiving Federal financial assistance. The Act and the 
general regulations permit federally assisted programs or activities, 
and recipients of Federal funds, to continue to use age distinctions and 
factors other than age which meet the requirements of the Act and its 
implementing regulations.



Sec. 17.302  To what programs or activities do these regulations apply?

    (a) The Act and these regulations apply to each DOI recipient and to 
each program or activity operated by the recipient which receives 
Federal financial assistance provided by DOI.
    (b) The Act and these regulations do not apply to:
    (1) An age distinction contained in that part of a Federal, State or 
local statute or ordinance adopted by an elected, general purpose 
legislative body which:
    (i) Provides any benefits or assistance to persons based on age; or,
    (ii) Establishes criteria for participation in age-related terms; 
or,
    (iii) Describes intended beneficiaries or target groups in age-
related terms; or
    (2) Any employment practice of any employer, employment agency, or 
labor-management joint apprenticeship

[[Page 378]]

training program, except for any program or activity receiving Federal 
financial assistance for public service employment under the Job 
Partnership Training Act (29 U.S.C. 1501 et seq.).



Sec. 17.303  Definitions.

    As used in these regulations, the term:
    (a) Act means the Age Discrimination Act of 1975, as amended (Title 
III of Pub. L. 94-135).
    (b) Action means any act, activity, policy, rule, standard, or 
method of administration; or the use of any policy, rule, standard, or 
method of administration.
    (c) Age means how old a person is, or the number of years from the 
date of a person's birth.
    (d) Age distinction means any action using age or an age-related 
term.
    (e) Age-related term means a word or words which necessarily imply a 
particular age or range of ages (for example, ``children,'' ``adult,'' 
``older persons,'' but not ``student'').
    (f) Discrimination means unlawful treatment based on age.
    (g) DOI means the United States Department of the Interior.
    (h) Federal financial assistance means any grant, entitlement, loan, 
cooperative agreement, contract (other than a procurement contract or a 
contract of insurance or guaranty), or any other arrangement by which 
the agency provides or otherwise makes available assistance in the form 
of:
    (1) Funds;
    (2) Services of Federal personnel;
    (3) Real and personal property or any interest in or use of 
property, including:
    (i) Transfers or leases of property for less than fair market value 
or for reduced consideration; and
    (ii) Proceeds from a subsequent transfer or lease of property if the 
Federal share of its fair market value is not returned to the Federal 
Government.
    (i) FMCS means the Federal Mediation and Conciliation Service.
    (j) Program or activity means all of the operations of any entity 
described in paragraphs (j)(1) through (4) of this section, any part of 
which is extended Federal financial assistance:
    (1)(i) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (ii) The entity of such State or local government that distributes 
such assistance and each such department or agency (and each other State 
or local government entity) to which the assistance is extended, in the 
case of assistance to a State or local government;
    (2)(i) A college, university, or other postsecondary institution, or 
a public system of higher education; or
    (ii) A local educational agency (as defined in 20 U.S.C. 7801), 
system of vocational education, or other school system;
    (3)(i) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (A) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (B) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (ii) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (4) Any other entity which is established by two or more of the 
entities described in paragraph (j)(1), (2), or (3) of this section.
    (k) Recipient means any State or its political subdivision, any 
instrumentality of a State or its political subdivision, any public or 
private agency, institution, organization, or other entity, or any 
person to which Federal assistance is extended, directly or through 
another recipient. Recipient includes any successor, assignee, 
transferee, or subrecipient, but excludes the ultimate beneficiary of 
the assistance.
    (l) Secretary means the Secretary of the Department of the Interior 
or his or her designee.
    (m) Subrecipient means any of the entities in the definition of 
``recipient'' to which a recipient extends or passes

[[Page 379]]

on Federal financial assistance. A subrecipient is generally regarded as 
a recipient of Federal financial assistance and has all the duties of a 
recipient in these regulations.
    (n) United States means the fifty states, the District of Columbia, 
Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, the 
Commonwealth of the Northern Marianas, and the territories and 
possessions of the United States.

[54 FR 3598, Jan. 25, 1989, as amended at 68 FR 51378, Aug. 26, 2003]

              Standards for Determining Age Discrimination



Sec. 17.310  Rules against age discrimination.

    The rules stated in this section are limited by the exceptions 
contained in Sec. 17.311.
    (a) General rule. No person in the United States shall, on the basis 
of age, be excluded from participation in, be denied the benefits of, or 
be subjected to discrimination under any program or activity receiving 
Federal financial assistance.
    (b) Specific rules. A recipient may not, in any program or activity 
receiving Federal financial assistance, directly or through contractual, 
licensing, or other arrangements, use age distinctions or take any other 
actions which have the effect, on the basis of age, of:
    (1) Excluding individuals from, denying them the benefits of, or 
subjecting them to, discrimination under a program or activity receiving 
Federal financial assistance; or
    (2) Denying or limiting individuals in their opportunity to 
participate in any program or activity receiving Federal financial 
assistance.
    (c) The specific forms of age discrimination listed in paragraph (b) 
of this section do not necessarily constitute a complete list.



Sec. 17.311  Exceptions to the rules against age discrimination.

    (a) Definitions. For purposes of this section, the terms ``normal 
operation'' and ``statutory objective'' shall have the following 
meaning:
    (1) Normal operation means the operation of a program or activity 
without significant changes that would impair its ability to meet its 
objectives.
    (2) Statutory objective means any purpose of a program or activity 
expressly stated in any Federal, State, or local statute or ordinance 
adopted by an elected, general purpose legislative body.
    (b) Exceptions to the rules against age discrimination: Normal 
operation or statutory objective of any program or activity.

A recipient is permitted to take an action otherwise prohibited by Sec. 
17.310 if the action reasonably takes into account age as a factor 
necessary to the normal operation or the achievement of any statutory 
objective of a program or activity. An action reasonably takes into 
account age as a factor necessary to the normal operation or the 
achievement of any statutory objective of a program or activity, if:
    (1) Age is used as a measure or approximation of one or more other 
characteristics; and
    (2) The other characteristic(s) must be measured or approximated in 
order for the normal operation of the program or activity to continue, 
or to achieve any statutory objective of the program or activity; and
    (3) The other characteristic(s) can be reasonably measured or 
approximated by the use of age; and
    (4) The other characteristic(s) are impractical to measure directly 
on an individual basis.
    (c) Exceptions to the rules against age discrimination: Reasonable 
factors other than age. A recipient is permitted to take an action 
otherwise prohibited by Sec. 17.310 which is based on a factor other 
than age, even though that action may have a disproportionate effect on 
persons of different ages. An action may be based on a factor other than 
age only if the factor bears a direct and substantial relationship to 
the normal operation of the program or activity or to the achievement of 
a statutory objective.



Sec. 17.312  Burden of proof.

    The burden of proving that an age distinction or other action falls 
within the exceptions outlined in Sec. Sec. 17.311(b) and 17.311(c), is 
on the recipient of Federal financial assistance.

[[Page 380]]



Sec. 17.313  Special benefits for children and the elderly.

    If a recipient operating a program or activity provides special 
benefits to the elderly or to children, such use of age distinctions 
shall be presumed to be necessary to the normal operation of the program 
or activity, notwithstanding the provisions of Sec. 17.311.



Sec. 17.314  Age distinctions contained in DOI regulations.

    Any age distinctions contained in a rule or regulation issued by DOI 
shall be presumed to be necessary to the achievement of a statutory 
objective of the program or activity to which the rule or regulation 
applies, notwithstanding the provisions of Sec. 17.311.



Sec. 17.315  Affirmative action by recipients.

    Even in the absence of a finding of discrimination, a recipient may 
take affirmative action to overcome the effects of conditions that 
resulted in limited participation in the recipient's program or activity 
on the basis of age.

                        Duties of DOI Recipients



Sec. 17.320  General responsibilities.

    Each DOI recipient has primary responsibility to ensure that its 
programs or activities are in compliance with the Act and these 
regulations, and shall take steps to eliminate violations of the Act. A 
recipient also has responsibility to maintain records, provide 
information, and to afford DOI access to its records to the extent DOI 
finds necessary to determine whether the recipient is in compliance with 
the Act and these regulations.



Sec. 17.321  Notice to subrecipients and beneficiaries.

    (a) Where a recipient extends Federal financial assistance from DOI 
to subrecipients, the recipient shall provide the subrecipients written 
notice of their obligations under the Act and these regulations.
    (b) Each recipient shall make necessary information about the Act 
and these regulations available to its beneficiaries in order to inform 
them of the protections against discrimination provided by the Act and 
these regulations.



Sec. 17.322  Assurance of compliance and recipient assessment of age distinctions.

    (a) Each recipient of Federal financial assistance from DOI shall 
sign a written assurance as specified by DOI that it will comply with 
the Act and these regulations.
    (b) Recipient assessment of age distinctions. (1) As part of a 
compliance review under Sec. 17.330 or complaint investigation under 
Sec. 17.331, DOI may require a recipient employing the equivalent of 15 
or more employees to complete a written self-evaluation, in a manner 
specified by the responsible Department official, of any age distinction 
imposed in its program or activity receiving Federal financial 
assistance from DOI to assess the recipient's compliance with the Act.
    (2) Whenever an assessment indicates a violation of the Act and the 
DOI regulations, the recipient shall take corrective action.



Sec. 17.323  Information collection requirements.

    Each recipient shall:
    (a) Keep records in a form and containing information which DOI 
determines may be necessary to ascertain whether the recipient is 
complying with the Act and these regulations.
    (b) Provide to DOI, upon request, information and reports which DOI 
determines are necessary to ascertain whether the recipient is complying 
with the Act and these regulations.
    (c) Permit reasonable access by DOI to the books, records, accounts, 
and other recipient facilities and sources of information to the extent 
DOI determines necessary to ascertain whether the recipient is complying 
with the Act and these regulations.
    (d) The information collection requirements contained in this 
section have been approved by the Office of Management and Budget under 
44 U.S.C. 3501 et seq. and assigned clearance number 1084-0027. The 
information will be collected and used to assess recipients' compliance 
with the Act. Response is required to obtain a benefit.
    (e) Public reporting burden for this information is estimated to 
average 8 hours per response, including the time for reviewing 
instructions, searching

[[Page 381]]

existing data sources, gathering and maintaining the data needed; and 
completing and reviewing the collection of information. Send comments 
regarding this burden estimate or any other aspect of this collection of 
information, including suggestions for reducing the burden, to: 
Departmental Clearance Officer, U.S. Department of the Interior, 18th 
and C Streets, NW., Washington, DC 20240, Mail Stop 2242; and the Office 
of Information and Regulatory Affairs, Office of Management and Budget, 
Washington, DC 20503.

         Investigation, Conciliation, and Enforcement Procedures



Sec. 17.330  Compliance reviews.

    (a) DOI may conduct compliance reviews and pre-award reviews of 
recipients or use other similar procedures that will permit it to 
investigate and correct violations of the Act and these regulations. DOI 
may conduct these reviews even in the absence of a complaint against a 
recipient. The reviews may be as comprehensive as necessary to determine 
whether a violation of the Act and these regulations has occurred.
    (b) If a compliance review or pre-award review indicates a violation 
of the Act or these regulations, DOI will attempt to secure voluntary 
compliance with the Act. If voluntary compliance cannot be achieved, DOI 
will arrange for enforcement as described in Sec. 17.335.



Sec. 17.331  Complaints.

    (a) Any person, individually or as a member of a class or on behalf 
of others, may file a complaint with DOI, alleging discrimination 
prohibited by the Act or these regulations based on an action occurring 
on or after July 1, 1979. A complaint must be filed within 180 days from 
the date the complainant had knowledge of the alleged act of 
discrimination. For good cause shown, however, DOI may extend this time 
limit.
    (b) DOI will consider the date a complaint is filed to be the date 
upon which the complaint sufficiently meets the criteria for acceptance 
as described in paragraphs (a) and (c)(1) of this section.
    (c) DOI will attempt to facilitate the filing of complaints wherever 
possible, including taking the following measures:
    (1) Accepting as a sufficient complaint, any written statement which 
identifies the parties involved and the date the complainant first had 
knowledge of the alleged violation, describes generally the action or 
practice complained of, and is signed by the complainant.
    (2) Freely permitting a complainant to add information to the 
complaint to meet the requirements of a sufficient complaint, as 
described in paragraphs (a) and (c)(1) of this section.
    (3) Notifying the complainant and the recipient of their rights and 
obligations under the complaint procedure, including the right to have a 
representative at all stages of the complaint procedure.
    (4) Notifying the complainant and the recipient (or their 
representatives) of their right to contact DOI for information and 
assistance regarding the complaint resolution process.
    (d) DOI will return to the complainant any complaint outside the 
jurisdiction of these regulations, and will state the reason(s) why it 
is outside the jurisdiction of these regulations.



Sec. 17.332  Mediation.

    (a) Referral of complaints for mediation. DOI will promptly refer to 
the FMCS all sufficient complaints that:
    (1) Fall within the jurisdiction of the Act and these regulations 
unless the age distinction complained of is clearly within an exception; 
and,
    (2) Contain all information necessary for further processing.
    (b) Both the complainant and the recipient shall participate in the 
mediation process to the extent necessary to reach an agreement or make 
an informed judgment that an agreement is not possible.
    (c) If the complainant and the recipient reach an agreement, FMCS 
shall prepare a written statement of the agreement and have the 
complainant and the recipient sign it. The FMCS shall send the agreement 
to DOI. DOI, however, retains the right to monitor the recipient's 
compliance with the agreement.

[[Page 382]]

    (d) The FMCS shall protect the confidentiality of all information 
obtained in the course of the mediation process. No mediator shall 
testify in any adjudicative proceeding, produce any document, or 
otherwise disclose any information obtained in the course of the 
mediation process without prior approval of the head of the mediation 
agency.
    (e) DOI will use the mediation process for a maximum of 60 days 
after receiving a complaint. Mediation ends if:
    (1) 60 days elapse from the time the complaint is filed; or
    (2) Prior to the end of that 60 day period, an agreement is reached; 
or
    (3) Prior to the end of that 60 day period, the FMCS determines that 
an agreement cannot be reached.
    (f) The FMCS shall return unresolved complaints to DOI.



Sec. 17.333  Investigation.

    (a) Informal investigation. (1) DOI will investigate complaints that 
are unresolved after mediation or are reopened because of a violation of 
a mediation agreement.
    (2) As part of the initial investigation, DOI will use informal fact 
finding methods, including joint or separate discussions with the 
complainant and recipient to establish the facts, and, if possible, 
settle the complaint on terms that are mutually agreeable to the 
parties. DOI may seek the assistance of any involved State agency.
    (3) DOI will put any agreement in writing and have it signed by the 
parties and an authorized official at DOI.
    (4) The settlement shall not affect the operation of any other 
enforcement effort of DOI, including compliance reviews and 
investigation of other complaints which may involve the recipient.
    (5) The settlement is not a finding of discrimination against a 
recipient.
    (b) Formal investigation. If DOI cannot resolve the complaint 
through informal means, it will develop formal findings through further 
investigation of the complaint. If the investigation indicates a 
violation of these regulations, DOI will attempt to obtain voluntary 
compliance. If DOI cannot obtain voluntary compliance, it will begin 
enforcement as described in Sec. 17.335.



Sec. 17.334  Prohibition against intimidation or retaliation.

    A recipient may not engage in acts of intimidation or retaliation 
against any person who:
    (a) Attempts to assert a right protected by the Act or these 
regulations; or
    (b) Cooperates in any mediation, inquiry, hearing, or other part of 
DOI's investigation, conciliation, and enforcement process.



Sec. 17.335  Compliance procedure.

    (a) DOI may enforce the Act and these regulations through:
    (1) Termination of a recipient's Federal financial assistance from 
DOI under the program or activity involved where the recipient has 
violated the Act or these regulations. The determination of the 
recipient's violation may be made only after a recipient has had an 
opportunity for a hearing on the record before an administrative law 
judge.
    (2) Any other means authorized by law including but not limited to:
    (i) Referral to the Department of Justice for proceedings to enforce 
any rights of the United States or obligations of the recipient created 
by the Act or these regulations.
    (ii) Use of any requirement of, or referral to, any Federal, State 
or local government agency that will have the effect of correcting a 
violation of the Act or these regulations.
    (b) DOI will limit any termination under Sec. 17.335(a)(1) to the 
particular recipient and particular program or activity or part of such 
program or activity DOI finds in violation of these regulations. DOI 
will not base any part of a termination on a finding with respect to any 
program or activity of the recipient that does not receive Federal 
financial assistance from DOI.
    (c) DOI will take no action under paragraph (a) of this section 
until:
    (1) The Secretary or his/her designee has advised the recipient of 
its failure to comply with the Act and these regulations and has 
determined that voluntary compliance cannot be obtained.
    (2) Thirty days have elapsed after the Secretary or his/her designee 
has sent a written report of the circumstances

[[Page 383]]

and grounds of the action to the committees of Congress having 
legislative jurisdiction over the program or activity involved. The 
Secretary or his/her designee will file a report whenever any action is 
taken under paragraph (a) of this section.
    (d) DOI also may defer granting new Federal financial assistance 
from DOI to a recipient when a hearing under Sec. 17.335(a)(l) is 
initiated.
    (1) New Federal financial assistance from DOI includes all 
assistance for which DOI requires an application or approval, including 
renewal or continuation of existing activities or authorization of new 
activities, during the deferral period. New Federal financial assistance 
from DOI does not include increases in funding as a result of changed 
computation of formula awards or assistance approved prior to the 
beginning of a hearing under Sec. 17.335(a)(1).
    (2) DOI will not begin a deferral until the recipient has received a 
notice of an opportunity for a hearing under Sec. 17.335(a)(1). DOI 
will not continue a deferral for more than 60 days unless a hearing has 
begun within that time or the time for beginning the hearing has been 
extended by mutual consent of the recipient and the Secretary. DOI will 
not continue a deferral for more than 30 days after the close of the 
hearing, unless the hearing results in a finding against the recipient.



Sec. 17.336  Hearings, decisions, post-termination proceedings.

    Certain DOI procedural provisions applicable to title VI of the 
Civil Rights Act of 1964 apply to DOI's enforcement of these 
regulations. The procedural provisions of DOI's Title VI regulations can 
be found at 43 CFR 17.8 through 17.10 and 43 CFR part 4, subpart I.



Sec. 17.337  Remedial action by recipients.

    Where DOI finds a recipient has discriminated on the basis of age, 
the recipient shall take any remedial action that DOI may require to 
overcome the effects of the discrimination. If another recipient 
exercises control over the recipient that has discriminated, DOI may 
require both recipients to take remedial action.



Sec. 17.338  Alternate funds disbursal procedure.

    (a) When DOI withholds funds from a recipient under these 
regulations, where permissible the Secretary may disburse the withheld 
funds directly to an alternate recipient under the applicable 
regulations of the bureau or office providing the assistance.
    (b) The Secretary will require any alternative recipient to 
demonstrate:
    (1) The ability to comply with these regulations; and
    (2) The ability to achieve the goals of the Federal statute 
authorizing the Federal financial assistance.



Sec. 17.339  Exhaustion of administrative remedies.

    (a) A complainant may file a civil action following the exhaustion 
of administrative remedies under the Act. Administrative remedies are 
exhausted if:
    (1) 180 days have elapsed since the complainant filed the complaint 
and DOI has made no finding with regard to the complaint; or
    (2) DOI issues any finding in favor of the recipient.
    (b) If DOI fails to make a finding within 180 days or issues a 
finding in favor of the recipient, DOI will:
    (1) Promptly advise the complainant of this fact;
    (2) Advise the complainant of his or her right to bring a civil 
action for injunctive relief; and
    (3) Inform the complainant:
    (i) That he or she may bring a civil action only in a United States 
district court for the district in which the recipient is found or 
transacts business;
    (ii) That a complainant prevailing in a civil action has the right 
to be awarded the costs of the action, including reasonable attorney's 
fees, but that the complainant must demand these costs in the complaint;
    (iii) That before commencing the action the complainant shall give 
30 days notice by registered mail to the Secretary of HHS, the Attorney 
General of the United States, the Secretary of the Interior, and the 
recipient;
    (iv) That the notice must state: the alleged violation of the Act; 
the relief requested; the court in which the complainant is bringing the 
action; and

[[Page 384]]

whether or not attorney's fees are demanded in the event the complainant 
prevails; and
    (v) That the complainant may not bring an action if the same alleged 
violation of the Act by the same recipient is the subject of a pending 
action in any court of the United States.

Subpart D [Reserved]



 Subpart E_Enforcement of Nondiscrimination on the Basis of Handicap in 
   Programs or Activities Conducted by the Department of the Interior

    Authority: 29 U.S.C. 794.

    Source: 52 FR 6553, Mar. 5, 1987, unless otherwise noted.



Sec. 17.501  Purpose.

    The purpose of this part is to effectuate section 119 of the 
Rehabilitation, Comprehensive Services, and Developmental Disabilities 
Amendments of 1978, which amended section 504 of the Rehabilitation Act 
of 1973 to prohibit discrimination on the basis of handicap in programs 
or activities conducted by Executive agencies or the U.S. Postal 
Service.



Sec. 17.502  Application.

    This part applies to all programs and activities conducted and/or 
administered and/or maintained by the agency except for programs or 
activities conducted outside the United States that do not involve 
handicapped persons in the United States.



Sec. 17.503  Definitions.

    For purposes of this part, the term--
    Agency means Department of the Interior.
    Auxiliary aids means services or devices that enable persons with 
impaired sensory, manual, or speaking skills to have an equal 
opportunity to participate in, and enjoy the benefits of, programs or 
activities conducted by the agency. For example, auxiliary aids useful 
for persons with impaired vision include readers, Brailled materials, 
audio recordings, and other similar services and devices. Auxiliary aids 
useful for persons with impaired hearing include telephone handset 
amplifiers, telephones compatible with hearing aids, telecommunication 
devices for deaf persons (TDD's), interpreters, notetakers, written 
materials, and other similar services and devices.
    Complete complaint means a written statement that contains the 
complainant's name and address and describe the agency's actions in 
sufficient detail to inform the agency of the nature and date of the 
alleged violation of section 504. It shall be signed by the complainant 
or by someone authorized to do so on his or her behalf. Complainant or 
behalf of classes or third parties shall describe or identify (by name, 
if possible) the alleged victims of discrimination.
    Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, outdoor recreation and program 
spaces, park sites, developed sites, rolling stock or other conveyances, 
or other real or personal property.
    Handicapped person means any person who has a physical, mental, or 
sensory impairment that substantially limits one or more major life 
activities, has a record of such an impairment, or is regarded as having 
such an impairment. As used in this definition, the phrase:
    (1) Physical, mental, or sensory impairment includes--
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
Neurological; musculoskeletal; special sense organs; respiratory, 
including speech organs; cardiovascular; reproductive; digestive; 
genitourinary; hemic and lymphatic; skin; and endocrine; or
    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities. The term ``physical, mental or sensory 
impairment'' includes, but is not limited to, such diseases and 
conditions as orthopedic, visual, speech, and hearing impairments, 
cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, 
cancer, heart disease, diabetes, mental retardation, emotional illness, 
drug addiction, and alcoholism.

[[Page 385]]

    (2) Major life activities includes functions such as caring for 
one's self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (3) Has a record of such impairment means has a history of, or has 
been misclassified as having, a mental, physical, or sensory impairment 
that substantially limits one or more major life activities.
    (4) Is regarded as having an impairment means--
    (i) Has a physical, mental, or sensory impairment that does not 
substantially limit major life activities but is treated by the agency 
as constituting such a limitation;
    (ii) Has a physical, mental, or sensory impairment that 
substantially limits major life activities only as a result of the 
attitudes of others toward such impairment; or
    (iii) Has none of the impairments defined in paragraph (1) of this 
definition but is treated by the agency as having such an impairment.
    Historic preservation programs means programs conducted by the 
agency that have preservation of historic properties as a primary 
purpose.
    Historic properties means those properties that are listed or 
eligible for listing in the National Register of Historic Places or 
properties designated as historic under a statute of the appropriate 
state or local government body.
    Qualified handicapped person means--
    (1) With respect to preschool, elementary, or secondary education 
services provided by the agency, a handicapped person who is a member of 
a class of persons otherwise entitled by statute, regulation, or agency 
policy to receive education services from the agency.
    (2) With respect to any other agency program or activity under which 
a person is required to perform services or to achieve a level of 
accomplishment, a handicapped person who meets the essential eligibility 
requirements and who can achieve the purpose of the program or activity 
without modifications in the program or activity that the agency can 
demonstrate would result in a fundamental alteration in its nature; or
    (3) With respect to any other program or activity, a handicapped 
person who meets the essential eligibility requirements for 
participation in, or receipt of benefits from that program or activity.
    (4) Qualified handicapped person is defined for purposes of 
employment in 29 CFR 1613.702(f), which is made applicable to this part 
by Sec. 17.540.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the 
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617), 
and the Rehabilitation, Comprehensive Services, and Developmental 
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955). As used 
in this part, section 504 applies only to programs or activities 
conducted by Executive agencies and not to federally assisted programs.
    Substantial impairment means a significant loss of the integrity of 
finished materials, design quality, or special character resulting from 
a permanent alteration.



Sec. Sec. 17.504-17.509  [Reserved]



Sec. 17.510  Self-evaluation.

    (a) The agency shall, within one year of the effective date of this 
part, evaluate, with the assistance of interested persons, including 
handicapped persons or organizations representing handicapped persons, 
its current policies and practices, and the effects thereof, that do not 
or may not meet the requirements of this part, and, to the extent 
modification of any such policies and practices is required, the agency 
shall proceed to make the necessary modifications.
    (b) The agency shall, for at least three years following completion 
of the evaluation required under paragraph (a) of this section, maintain 
on file and make available for public inspection--
    (1) A list of the interested persons consulted;
    (2) A description of areas examined and any problems identified; and
    (3) A description of any modifications made.



Sec. 17.511  Notice.

    The agency shall make available to employees, applicants, 
participants,

[[Page 386]]

beneficiaries, and other interested persons such information regarding 
the provisions of this part and its applicability to the programs or 
activities conducted by the agency, and make such information available 
to them in such manner as the agency head finds necessary to apprise 
such persons of the protections against discrimination assured them by 
section 504 and this regulation.



Sec. Sec. 17.512-17.529  [Reserved]



Sec. 17.530  General prohibitions against discrimination.

    (a) No qualified handicapped person shall, on the basis of handicap, 
be excluded from participation in, be denied the benefits of, or 
otherwise be subjected to discrimination under any program or activity 
conducted by the agency.
    (b)(1) The agency, in providing any aid, benefit, or service, may 
not, directly or through contractual, licensing, or other arrangements, 
on the basis of handicap--
    (i) Deny a qualified handicapped person the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified handicapped person an opportunity to 
participate in or benefit from the aid, benefit or service that is not 
equal to that afforded others;
    (iii) Provide a qualified handicapped person with an aid, benefit, 
or service that is not as effective in affording equal opportunity to 
obtain the same result, to gain the same benefit, or to reach the same 
level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
handicapped persons or to any class of handicapped persons than is 
provided to others unless such action is necessary to provide qualified 
handicapped persons with aid, benefits, or services that are as 
effective as those provided to others;
    (v) Deny a qualified handicapped person the opportunity to 
participate as a member of planning or advisory boards; or
    (vi) Otherwise limit a qualified handicapped person in the enjoyment 
of any right, privilege, advantage, or opportunity enjoyed by others 
receiving the aid, benefit, or service.
    (2) The agency may not deny a qualified handicapped person the 
opportunity to participate in programs or activities that are not 
separate or different, despite the existence of permissibly separate or 
different programs or activities.
    (3) The agency may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration the purpose 
or effect of which would--
    (i) Subject qualified handicapped persons to discrimination on the 
basis of handicap; or
    (ii) Defeat or substantially impair accomplishment of the objectives 
of a program or activity with respect to handicapped persons.
    (4) The agency may not, in determining the site or location of a 
facility, make selections the purpose or effect of which would--
    (i) Exclude handicapped persons from, deny them the benefits of, or 
otherwise subject them to discrimination under any program or activity 
conducted by the agency; or
    (ii) Defeat or substantially impair the accomplishment of the 
objectives of a program or activity with respect to handicapped persons.
    (5) The agency, in the selection of procurement contractors, may not 
use criteria that subject qualified handicapped persons to 
discrimination on the basis of handicap.
    (6) The agency may not administer a licensing or certification 
program in a manner that subjects qualified handicapped persons to 
discrimination on the basis of handicap, nor may the agency establish 
requirements for the programs or activities of licensees or certified 
entities that subject qualified handicapped persons to discrimination on 
the basis of handicap. However, the programs or activities of entities 
that are licensed or certified by the agency are not, themselves, 
covered by this part.
    (c) The exclusion of nonhandicapped persons from the benefits of a 
program limited by Federal statute or Executive order to handicapped 
persons or the exclusion of a specific class of handicapped persons from 
a program

[[Page 387]]

limited by Federal statute or Executive order to a different class of 
handicapped persons is not prohibited by this part.
    (d) The agency shall administer programs or activities in the most 
integrated setting appropriate to the needs of qualified handicapped 
persons.



Sec. Sec. 17.531-17.539  [Reserved]



Sec. 17.540  Employment.

    No qualified handicapped person shall, on the basis of handicap, be 
subjected to discrimination in employment under any program or activity 
conducted by the agency. The definitions, requirements and procedures of 
section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), as 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1613, shall apply to employment in federally conducted programs or 
activities.



Sec. Sec. 17.541-17.548  [Reserved]



Sec. 17.549  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec. 17.550, no qualified 
handicapped person shall, because the agency's facilities are 
inaccessible to or unusable by handicapped persons, be denied the 
benefits of, be excluded from participation in, or otherwise be 
subjected to discrimination under any program or activity conducted by 
the agency.



Sec. 17.550  Program accessibility: Existing facilities.

    (a) General. The agency shall operate each program or activity so 
that the program or activity, when viewed in its entirety, is readily 
accessible to and usable by handicapped persons. This paragraph does 
not--
    (1) Necessarily require the agency to make each of its existing 
facilities or every part of a facility accessible to and usable by 
handicapped persons;
    (2) In the case of historic preservation programs, require the 
agency to take any action that would result in a substantial impairment 
of significant historic features of an historic property; or
    (3) Require the agency to take any action that it can demonstrate 
would result in a fundamental alteration in the nature of a program or 
activity or in undue financial and administrative burdens. In those 
circumstances where agency personnel believe that the proposed action 
would fundamentally alter the program or activity or would result in 
undue financial and administrative burdens, the agency has the burden of 
proving that compliance with Sec. 17.550(a) would result in such an 
alteration or burdens. The decision that compliance would result in such 
alteration or burdens must be made by the agency head or his or her 
designee after considering all agency resources available for use in the 
funding and operation of the conducted program or activity, and must be 
accompanied by a written statement of the reasons for reaching that 
conclusion. If an action would result in such an alteration or such 
burdens, the agency shall take any other action that would not result in 
such an alteration or such burdens but would nevertheless ensure that 
handicapped persons receive the benefits and services of the program or 
activity.
    (b) Methods--(1) General. The agency may comply with the 
requirements of this section through such means as redesign of 
equipment, reassignment of services to accessible locations, assignment 
of aides to beneficiaries, home visits, delivery of services at 
alternate accessible sites, alteration of existing facilities and 
construction of new facilities, use of accessible rolling stock, or any 
other methods that result in making its programs or activities readily 
accessible to and usable by handicapped persons. The agency is not 
required to make structural changes in existing facilities where other 
methods are effective in achieving compliance with this section. The 
agency, in making alterations to existing buildings, shall meet 
accessibility requirements to the extent compelled by the Architectural 
Barriers Act of 1968, as amended (42 U.S.C. 4151-4157) and any 
regulations implementing it. In choosing among available methods for 
meeting the requirements of this section, the agency shall give priority 
to those methods that offer programs and activities to qualified 
handicapped persons in the most integrated setting appropriate.

[[Page 388]]

    (2) Historic preservation programs. In meeting the requirements of 
paragraph (a) of this section in historic preservation programs, the 
agency shall give priority to methods that provide physical access to 
handicapped persons. In cases where a physical alteration to an historic 
property is not required because of paragraph (a)(2) or (a)(3) of this 
section, alternative, methods of achieving program accessibility 
include--
    (i) Using audio-visual materials and devices to depict those 
portions of an historic property that cannot otherwise be made 
accessible.
    (ii) Assigning persons to guide handicapped persons into or through 
portions of historic properties that cannot otherwise be made 
accessible; or
    (iii) Adopting other innovative methods.
    (3) Recreation programs. In meeting the requirements of paragraph 
(a) in recreation programs, the agency shall provide that the program or 
activity, when viewed in its entirety, is readily accessible to and 
usable by handicapped persons. When it is not reasonable to alter 
natural and physical features, accessibility may be achieved by 
alternative methods as noted in paragraph (b)(1) of this section.
    (c) Time period for compliance. The agency shall comply with the 
obligations established under this section within sixty (60) days of the 
effective date of this part except that where structural changes in 
facilities are necessary, such changes shall be made within three years 
of the effective date of this part, but in any event as expeditiously as 
possible.
    (d) Transition plan. In the event that structural changes to 
facilities are necessary to achieve program accessibility, the agency 
shall develop, within six months of the effective date of this part, a 
transition plan setting forth the steps necessary to complete such 
changes. The plan shall be developed with the assistance of interested 
persons, including handicapped persons or organizations representing 
handicapped persons. A copy of the transition plan shall be made 
available for public inspection. The plan shall, at a minimum--
    (1) Identify physical obstacles in the agency's facilities that 
limit the accessibility of its programs or activities to handicapped 
persons;
    (2) Describe in detail the methods that will be used to make the 
facilities accessible;
    (3) Specify the schedule for taking the steps necessary to achieve 
compliance with this section and, if the time period of the transition 
plan is longer than one year, identify steps that will be taken during 
each year of the transition period;
    (4) Indicate the official responsible for implementation of the 
plan; and
    (5) Identify the persons or groups with whose assistance the plan 
was prepared.



Sec. 17.551  Program accessibility: New construction and alterations.

    Each building or part of a building that is constructed or altered 
by, on behalf of, or for the use of the agency shall be designed, 
constructed, or altered so as to be readily accessible to and usable by 
handicapped persons. The definitions, requirements, and standards of the 
Architectural Barriers Act (42 U.S.C. 4151-4157) as established in 41 
CFR 101-19.600 to 101-19.607 apply to buildings covered by this section.



Sec. Sec. 17.552-17.559  [Reserved]



Sec. 17.560  Communications.

    (a) The agency shall take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public.
    (1) The agency shall furnish appropriate auxiliary aids where 
necessary to afford a handicapped person an equal opportunity to 
participate in, and enjoy the benefits of, a program or activity 
conducted by the agency.
    (i) In determining what type of auxiliary aid is necessary, the 
agency shall give primary consideration to the requests of the 
handicapped person.
    (ii) The agency need not provide individually prescribed devices, 
readers for personal use or study, attendant services, or other devices 
of a personal nature.
    (2) Where the agency communicate with applicants and beneficiaries 
by

[[Page 389]]

telephone, telecommunications devices for deaf persons (TDD's) or 
equally effective telecommunication systems shall be used.
    (b) The agency shall ensure that interested persons, including 
persons with impaired vision or hearing, can obtain information as to 
the existence and location of accessible services, activities, and 
facilities.
    (c) The agency shall provide signage at a primary entrance to each 
of its inaccessible facilities, directing users to a location at which 
they can obtain information about accessible facilities. The 
international symbol for accessibility shall be used at each primary 
entrance of an accessible facility.
    (d) This section does not require the agency to take any action that 
it can demonstrate would result in a fundamental alteration in the 
nature of a program or activity or in undue financial and administrative 
burdens. In those circumstances where agency personnel believe that the 
proposed action would fundamentally alter the program or activity or 
would result in undue financial and administrative burdens, the agency 
has the burden of proving that compliance with Sec. 17.560 would result 
in such alteration or burdens. The decision that compliance would result 
in such alteration or burdens must be made by the agency head or his or 
her designee after considering all agency resources available for use in 
the funding and operation of the conducted program or activity, and must 
be accompanied by a written statement of the reasons for reaching that 
conclusion. If an action required to comply with this section would 
result in such alteration or such burdens, the agency shall take any 
other action that would not result in such an alteration or such burdens 
but would nevertheless ensure that, to the maximum extent possible, 
handicapped persons receive the benefits and services of the program or 
activity.



Sec. Sec. 17.561-17.569  [Reserved]



Sec. 17.570  Compliance procedures.

    (a) Except as provided in paragraph (b) of this section, this 
section applies to all allegations of discrimination on the basis of 
handicap in programs or activities conducted by the agency.
    (b) The agency shall process complaints alleging violations of 
section 504 with respect to employment according to the procedures 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29 
U.S.C. 791).
    (c) Responsibility for implementation and operation of this section 
shall be vested in the Director of the Office for Equal Opportunity. 
Complaints filed pursuant to this section shall be delivered or mailed 
to the Director, Office for Equal Opportunity, U.S. Department of the 
Interior, Washington, DC 20240. If any agency official other than the 
Director of the Office for Equal Opportunity receives a complaint, he or 
she shall immediately forward the complaint to the agency's Director of 
the Office for Equal Opportunity.
    (d)(1) The agency shall accept and investigate all complete 
complaints for which it has jurisdiction. All complete complaints must 
be filed within 180 days of the alleged act of discrimination. The 
agency may extend this time period for good cause.
    (2) If the agency Director for the Office of Equal Opportunity 
receives a complaint that is not complete, he or she shall notify the 
complainant, within thirty (30) days of receipt of the incomplete 
complaint, that additional information is needed. If the complainant 
fails to complete and submit the requested information within thirty 
(30) days of receipt of this notice the agency Director of the Office 
for Equal Opportunity shall dismiss the complaint without prejudice.
    (3) The agency Director of the Office for Equal Opportunity may 
require agency employees to cooperate and participate in the 
investigation and resolution of complaints. Employees who are required 
to cooperate and participate in any investigation under this section 
shall do so as part of their official duties.
    (e) If the agency receives a complaint over which it does not have 
jurisdiction, it shall promptly notify the complainant and shall refer 
the complaint to the appropriate government entity.
    (f) The agency shall notify the Architectural and Transportation 
Barriers

[[Page 390]]

Compliance Board upon receipt of any complaint alleging that a building 
or facility that is subject to the Architectural Barriers Act of 1968, 
as amended (42 U.S.C. 4151-4157), or section 502 of the Rehabilitation 
Act of 1973, as amended (29 U.S.C. 792), is not readily accessible to 
and usable by handicapped persons.
    (g) Within 180 days of the receipt of a complete complaint for which 
it has jurisdiction, the agency shall notify the complainant of the 
results of the investigation in a letter containing--
    (1) Findings of fact and conclusions of law:
    (2) A description of a remedy for each violation found; and
    (3) A notice of the right to appeal.
    (h) Appeals of the findings of fact and conclusions of law or 
remedies must be filed by the complainant within ninety (90) days of 
receipt from the agency of the letter required by Sec. 17.570(g). The 
agency may extend this time for good cause.
    (i) Timely appeals shall be accepted and processed by the Under 
Secretary.
    (j) The agency shall notify the complainant of the results of the 
appeal within sixty (60) days of the receipt of the request. If the 
agency determines that it needs additional information from the 
complainant, it shall have sixty (60) days from the date it receives the 
additional information to make its determination on the appeal.
    (k) The time limits cited in paragraphs (g) and (j) of this may be 
extended for an individual case when the Under Secretary determines that 
there is good cause, based on the particular circumstances of that case, 
for the extension.
    (l) The agency may delegate its authority for conducting complaint 
investigations to other Federal agencies, except that the authority for 
making the final determination may not be delegated.



PART 18_NEW RESTRICTIONS ON LOBBYING--Table of Contents



                            Subpart A_General

Sec.
18.100 Conditions on use of funds.
18.105 Definitions.
18.110 Certification and disclosure.

                  Subpart B_Activities by Own Employees

18.200 Agency and legislative liaison.
18.205 Professional and technical services.
18.210 Reporting.

            Subpart C_Activities by Other Than Own Employees

18.300 Professional and technical services.

                   Subpart D_Penalties and Enforcement

18.400 Penalties.
18.405 Penalty procedures.
18.410 Enforcement.

                          Subpart E_Exemptions

18.500 Secretary of Defense.

                        Subpart F_Agency Reports

18.600 Semi-annual compilation.
18.605 Inspector General report.

Appendix A to Part 18--Certification Regarding Lobbying
Appendix B to Part 18--Disclosure Form To Report Lobbying

    Authority: Sec. 319, Pub. L. 101-121 (31 U.S.C. 1352); 5 U.S.C. 301.

    Cross Reference: See also Office of Management and Budget notice 
published at 54 FR 52306, December 20, 1989.

    Source: 55 FR 6737, 6753, Feb. 26, 1990, unless otherwise noted.



                            Subpart A_General



Sec. 18.100  Conditions on use of funds.

    (a) No appropriated funds may be expended by the recipient of a 
Federal contract, grant, loan, or cooperative agreement to pay any 
person for influencing or attempting to influence an officer or employee 
of any agency, a Member of Congress, an officer or employee of Congress, 
or an employee of a Member of Congress in connection with any of the 
following covered Federal actions: the awarding of any Federal contract, 
the making of any Federal grant, the making of any Federal loan, the 
entering into of any cooperative agreement, and the extension, 
continuation, renewal, amendment, or modification of any Federal 
contract, grant, loan, or cooperative agreement.
    (b) Each person who requests or receives from an agency a Federal 
contract, grant, loan, or cooperative agreement shall file with that 
agency a

[[Page 391]]

certification, set forth in appendix A to this part, that the person has 
not made, and will not make, any payment prohibited by paragraph (a) of 
this section.
    (c) Each person who requests or receives from an agency a Federal 
contract, grant, loan, or a cooperative agreement shall file with that 
agency a disclosure form, set forth in appendix B to this part, if such 
person has made or has agreed to make any payment using nonappropriated 
funds (to include profits from any covered Federal action), which would 
be prohibited under paragraph (a) of this section if paid for with 
appropriated funds.
    (d) Each person who requests or receives from an agency a commitment 
providing for the United States to insure or guarantee a loan shall file 
with that agency a statement, set forth in appendix A to this part, 
whether that person has made or has agreed to make any payment to 
influence or attempt to influence an officer or employee of any agency, 
a Member of Congress, an officer or employee of Congress, or an employee 
of a Member of Congress in connection with that loan insurance or 
guarantee.
    (e) Each person who requests or receives from an agency a commitment 
providing for the United States to insure or guarantee a loan shall file 
with that agency a disclosure form, set forth in appendix B to this 
part, if that person has made or has agreed to make any payment to 
influence or attempt to influence an officer or employee of any agency, 
a Member of Congress, an officer or employee of Congress, or an employee 
of a Member of Congress in connection with that loan insurance or 
guarantee.



Sec. 18.105  Definitions.

    For purposes of this part:
    (a) Agency, as defined in 5 U.S.C. 552(f), includes Federal 
executive departments and agencies as well as independent regulatory 
commissions and Government corporations, as defined in 31 U.S.C. 
9101(1).
    (b) Covered Federal action means any of the following Federal 
actions:
    (1) The awarding of any Federal contract;
    (2) The making of any Federal grant;
    (3) The making of any Federal loan;
    (4) The entering into of any cooperative agreement; and,
    (5) The extension, continuation, renewal, amendment, or modification 
of any Federal contract, grant, loan, or cooperative agreement.

Covered Federal action does not include receiving from an agency a 
commitment providing for the United States to insure or guarantee a 
loan. Loan guarantees and loan insurance are addressed independently 
within this part.
    (c) Federal contract means an acquisition contract awarded by an 
agency, including those subject to the Federal Acquisition Regulation 
(FAR), and any other acquisition contract for real or personal property 
or services not subject to the FAR.
    (d) Federal cooperative agreement means a cooperative agreement 
entered into by an agency.
    (e) Federal grant means an award of financial assistance in the form 
of money, or property in lieu of money, by the Federal Government or a 
direct appropriation made by law to any person. The term does not 
include technical assistance which provides services instead of money, 
or other assistance in the form of revenue sharing, loans, loan 
guarantees, loan insurance, interest subsidies, insurance, or direct 
United States cash assistance to an individual.
    (f) Federal loan means a loan made by an agency. The term does not 
include loan guarantee or loan insurance.
    (g) Indian tribe and tribal organization have the meaning provided 
in section 4 of the Indian Self-Determination and Education Assistance 
Act (25 U.S.C. 450B). Alaskan Natives are included under the definitions 
of Indian tribes in that Act.
    (h) Influencing or attempting to influence means making, with the 
intent to influence, any communication to or appearance before an 
officer or employee or any agency, a Member of Congress, an officer or 
employee of Congress, or an employee of a Member of Congress in 
connection with any covered Federal action.
    (i) Loan guarantee and loan insurance means an agency's guarantee or 
insurance of a loan made by a person.

[[Page 392]]

    (j) Local government means a unit of government in a State and, if 
chartered, established, or otherwise recognized by a State for the 
performance of a governmental duty, including a local public authority, 
a special district, an intrastate district, a council of governments, a 
sponsor group representative organization, and any other instrumentality 
of a local government.
    (k) Officer or employee of an agency includes the following 
individuals who are employed by an agency:
    (1) An individual who is appointed to a position in the Government 
under title 5, U.S. Code, including a position under a temporary 
appointment;
    (2) A member of the uniformed services as defined in section 101(3), 
title 37, U.S. Code;
    (3) A special Government employee as defined in section 202, title 
18, U.S. Code; and,
    (4) An individual who is a member of a Federal advisory committee, 
as defined by the Federal Advisory Committee Act, title 5, U.S. Code 
appendix 2.
    (l) Person means an individual, corporation, company, association, 
authority, firm, partnership, society, State, and local government, 
regardless of whether such entity is operated for profit or not for 
profit. This term excludes an Indian tribe, tribal organization, or any 
other Indian organization with respect to expenditures specifically 
permitted by other Federal law.
    (m) Reasonable compensation means, with respect to a regularly 
employed officer or employee of any person, compensation that is 
consistent with the normal compensation for such officer or employee for 
work that is not furnished to, not funded by, or not furnished in 
cooperation with the Federal Government.
    (n) Reasonable payment means, with respect to professional and other 
technical services, a payment in an amount that is consistent with the 
amount normally paid for such services in the private sector.
    (o) Recipient includes all contractors, subcontractors at any tier, 
and subgrantees at any tier of the recipient of funds received in 
connection with a Federal contract, grant, loan, or cooperative 
agreement. The term excludes an Indian tribe, tribal organization, or 
any other Indian organization with respect to expenditures specifically 
permitted by other Federal law.
    (p) Regularly employed means, with respect to an officer or employee 
of a person requesting or receiving a Federal contract, grant, loan, or 
cooperative agreement or a commitment providing for the United States to 
insure or guarantee a loan, an officer or employee who is employed by 
such person for at least 130 working days within one year immediately 
preceding the date of the submission that initiates agency consideration 
of such person for receipt of such contract, grant, loan, cooperative 
agreement, loan insurance commitment, or loan guarantee commitment. An 
officer or employee who is employed by such person for less than 130 
working days within one year immediately preceding the date of the 
submission that initiates agency consideration of such person shall be 
considered to be regularly employed as soon as he or she is employed by 
such person for 130 working days.
    (q) State means a State of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, a territory or possession of 
the United States, an agency or instrumentality of a State, and a multi-
State, regional, or interstate entity having governmental duties and 
powers.



Sec. 18.110  Certification and disclosure.

    (a) Each person shall file a certification, and a disclosure form, 
if required, with each submission that initiates agency consideration of 
such person for:
    (1) Award of a Federal contract, grant, or cooperative agreement 
exceeding $100,000; or
    (2) An award of a Federal loan or a commitment providing for the 
United States to insure or guarantee a loan exceeding $150,000.
    (b) Each person shall file a certification, and a disclosure form, 
if required, upon receipt by such person of:
    (1) A Federal contract, grant, or cooperative agreement exceeding 
$100,000; or

[[Page 393]]

    (2) A Federal loan or a commitment providing for the United States 
to insure or guarantee a loan exceeding $150,000, unless such person 
previously filed a certification, and a disclosure form, if required, 
under paragraph (a) of this section.
    (c) Each person shall file a disclosure form at the end of each 
calendar quarter in which there occurs any event that requires 
disclosure or that materially affects the accuracy of the information 
contained in any disclosure form previously filed by such person under 
paragraph (a) or (b) of this section. An event that materially affects 
the accuracy of the information reported includes:
    (1) A cumulative increase of $25,000 or more in the amount paid or 
expected to be paid for influencing or attempting to influence a covered 
Federal action; or
    (2) A change in the person(s) or individual(s) influencing or 
attempting to influence a covered Federal action; or,
    (3) A change in the officer(s), employee(s), or Member(s) contacted 
to influence or attempt to influence a covered Federal action.
    (d) Any person who requests or receives from a person referred to in 
paragraph (a) or (b) of this section:
    (1) A subcontract exceeding $100,000 at any tier under a Federal 
contract;
    (2) A subgrant, contract, or subcontract exceeding $100,000 at any 
tier under a Federal grant;
    (3) A contract or subcontract exceeding $100,000 at any tier under a 
Federal loan exceeding $150,000; or,
    (4) A contract or subcontract exceeding $100,000 at any tier under a 
Federal cooperative agreement,

shall file a certification, and a disclosure form, if required, to the 
next tier above.
    (e) All disclosure forms, but not certifications, shall be forwarded 
from tier to tier until received by the person referred to in paragraph 
(a) or (b) of this section. That person shall forward all disclosure 
forms to the agency.
    (f) Any certification or disclosure form filed under paragraph (e) 
of this section shall be treated as a material representation of fact 
upon which all receiving tiers shall rely. All liability arising from an 
erroneous representation shall be borne solely by the tier filing that 
representation and shall not be shared by any tier to which the 
erroneous representation is forwarded. Submitting an erroneous 
certification or disclosure constitutes a failure to file the required 
certification or disclosure, respectively. If a person fails to file a 
required certification or disclosure, the United States may pursue all 
available remedies, including those authorized by section 1352, title 
31, U.S. Code.
    (g) For awards and commitments in process prior to December 23, 
1989, but not made before that date, certifications shall be required at 
award or commitment, covering activities occurring between December 23, 
1989, and the date of award or commitment. However, for awards and 
commitments in process prior to the December 23, 1989 effective date of 
these provisions, but not made before December 23, 1989, disclosure 
forms shall not be required at time of award or commitment but shall be 
filed within 30 days.
    (h) No reporting is required for an activity paid for with 
appropriated funds if that activity is allowable under either subpart B 
or C.



                  Subpart B_Activities by Own Employees



Sec. 18.200  Agency and legislative liaison.

    (a) The prohibition on the use of appropriated funds, in Sec. 
18.100 (a), does not apply in the case of a payment of reasonable 
compensation made to an officer or employee of a person requesting or 
receiving a Federal contract, grant, loan, or cooperative agreement if 
the payment is for agency and legislative liaison activities not 
directly related to a covered Federal action.
    (b) For purposes of paragraph (a) of this section, providing any 
information specifically requested by an agency or Congress is allowable 
at any time.
    (c) For purposes of paragraph (a) of this section, the following 
agency and legislative liaison activities are allowable at any time only 
where they are not related to a specific solicitation for any covered 
Federal action:
    (1) Discussing with an agency (including individual demonstrations) 
the

[[Page 394]]

qualities and characteristics of the person's products or services, 
conditions or terms of sale, and service capabilities; and,
    (2) Technical discussions and other activities regarding the 
application or adaptation of the person's products or services for an 
agency's use.
    (d) For purposes of paragraph (a) of this section, the following 
agencies and legislative liaison activities are allowable only where 
they are prior to formal solicitation of any covered Federal action:
    (1) Providing any information not specifically requested but 
necessary for an agency to make an informed decision about initiation of 
a covered Federal action;
    (2) Technical discussions regarding the preparation of an 
unsolicited proposal prior to its official submission; and,
    (3) Capability presentations by persons seeking awards from an 
agency pursuant to the provisions of the Small Business Act, as amended 
by Public Law 95-507 and other subsequent amendments.
    (e) Only those activities expressly authorized by this section are 
allowable under this section.



Sec. 18.205  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec. 
18.100 (a), does not apply in the case of a payment of reasonable 
compensation made to an officer or employee of a person requesting or 
receiving a Federal contract, grant, loan, or cooperative agreement or 
an extension, continuation, renewal, amendment, or modification of a 
Federal contract, grant, loan, or cooperative agreement if payment is 
for professional or technical services rendered directly in the 
preparation, submission, or negotiation of any bid, proposal, or 
application for that Federal contract, grant, loan, or cooperative 
agreement or for meeting requirements imposed by or pursuant to law as a 
condition for receiving that Federal contract, grant, loan, or 
cooperative agreement.
    (b) For purposes of paragraph (a) of this section, ``professional 
and technical services'' shall be limited to advice and analysis 
directly applying any professional or technical discipline. For example, 
drafting of a legal document accompanying a bid or proposal by a lawyer 
is allowable. Similarly, technical advice provided by an engineer on the 
performance or operational capability of a piece of equipment rendered 
directly in the negotiation of a contract is allowable. However, 
communications with the intent to influence made by a professional (such 
as a licensed lawyer) or a technical person (such as a licensed 
accountant) are not allowable under this section unless they provide 
advice and analysis directly applying their professional or technical 
expertise and unless the advice or analysis is rendered directly and 
solely in the preparation, submission or negotiation of a covered 
Federal action. Thus, for example, communications with the intent to 
influence made by a lawyer that do not provide legal advice or analysis 
directly and solely related to the legal aspects of his or her client's 
proposal, but generally advocate one proposal over another are not 
allowable under this section because the lawyer is not providing 
professional legal services. Similarly, communications with the intent 
to influence made by an engineer providing an engineering analysis prior 
to the preparation or submission of a bid or proposal are not allowable 
under this section since the engineer is providing technical services 
but not directly in the preparation, submission or negotiation of a 
covered Federal action.
    (c) Requirements imposed by or pursuant to law as a condition for 
receiving a covered Federal award include those required by law or 
regulation, or reasonably expected to be required by law or regulation, 
and any other requirements in the actual award documents.
    (d) Only those services expressly authorized by this section are 
allowable under this section.



Sec. 18.210  Reporting.

    No reporting is required with respect to payments of reasonable 
compensation made to regularly employed officers or employees of a 
person.

[[Page 395]]



            Subpart C_Activities by Other Than Own Employees



Sec. 18.300  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec. 
18.100 (a), does not apply in the case of any reasonable payment to a 
person, other than an officer or employee of a person requesting or 
receiving a covered Federal action, if the payment is for professional 
or technical services rendered directly in the preparation, submission, 
or negotiation of any bid, proposal, or application for that Federal 
contract, grant, loan, or cooperative agreement or for meeting 
requirements imposed by or pursuant to law as a condition for receiving 
that Federal contract, grant, loan, or cooperative agreement.
    (b) The reporting requirements in Sec. 18.110 (a) and (b) regarding 
filing a disclosure form by each person, if required, shall not apply 
with respect to professional or technical services rendered directly in 
the preparation, submission, or negotiation of any commitment providing 
for the United States to insure or guarantee a loan.
    (c) For purposes of paragraph (a) of this section, ``professional 
and technical services'' shall be limited to advice and analysis 
directly applying any professional or technical discipline. For example, 
drafting or a legal document accompanying a bid or proposal by a lawyer 
is allowable. Similarly, technical advice provided by an engineer on the 
performance or operational capability of a piece of equipment rendered 
directly in the negotiation of a contract is allowable. However, 
communications with the intent to influence made by a professional (such 
as a licensed lawyer) or a technical person (such as a licensed 
accountant) are not allowable under this section unless they provide 
advice and analysis directly applying their professional or technical 
expertise and unless the advice or analysis is rendered directly and 
solely in the preparation, submission or negotiation of a covered 
Federal action. Thus, for example, communications with the intent to 
influence made by a lawyer that do not provide legal advice or analysis 
directly and solely related to the legal aspects of his or her client's 
proposal, but generally advocate one proposal over another are not 
allowable under this section because the lawyer is not providing 
professional legal services. Similarly, communications with the intent 
to influence made by an engineer providing an engineering analysis prior 
to the preparation or submission of a bid or proposal are not allowable 
under this section since the engineer is providing technical services 
but not directly in the preparation, submission or negotiation of a 
covered Federal action.
    (d) Requirements imposed by or pursuant to law as a condition for 
receiving a covered Federal award include those required by law or 
regulation, or reasonably expected to be required by law or regulation, 
and any other requirements in the actual award documents.
    (e) Persons other than officers or employees of a person requesting 
or receiving a covered Federal action include consultants and trade 
associations.
    (f) Only those services expressly authorized by this section are 
allowable under this section.



                   Subpart D_Penalties and Enforcement



Sec. 18.400  Penalties.

    (a) Any person who makes an expenditure prohibited herein shall be 
subject to a civil penalty of not less than $10,000 and not more than 
$100,000 for each such expenditure.
    (b) Any person who fails to file or amend the disclosure form (see 
Appendix B to this part) to be filed or amended if required herein, 
shall be subject to a civil penalty of not less than $10,000 and not 
more than $100,000 for each such failure.
    (c) A filing or amended filing on or after the date on which an 
administrative action for the imposition of a civil penalty is commenced 
does not prevent the imposition of such civil penalty for a failure 
occurring before that date. An administrative action is commenced with 
respect to a failure when an investigating official determines in 
writing to commence an investigation of an allegation of such failure.

[[Page 396]]

    (d) In determining whether to impose a civil penalty, and the amount 
of any such penalty, by reason of a violation by any person, the agency 
shall consider the nature, circumstances, extent, and gravity of the 
violation, the effect on the ability of such person to continue in 
business, any prior violations by such person, the degree of culpability 
of such person, the ability of the person to pay the penalty, and such 
other matters as may be appropriate.
    (e) First offenders under paragraph (a) or (b) of this section shall 
be subject to a civil penalty of $10,000, absent aggravating 
circumstances. Second and subsequent offenses by persons shall be 
subject to an appropriate civil penalty between $10,000 and $100,000, as 
determined by the agency head or his or her designee.
    (f) An imposition of a civil penalty under this section does not 
prevent the United States from seeking any other remedy that may apply 
to the same conduct that is the basis for the imposition of such civil 
penalty.



Sec. 18.405  Penalty procedures.

    Agencies shall impose and collect civil penalties pursuant to the 
provisions of the Program Fraud and Civil Remedies Act, 31 U.S.C. 
sections 3803 (except subsection (c)), 3804, 3805, 3806, 3807, 3808, and 
3812, insofar as these provisions are not inconsistent with the 
requirements herein.
    (a) The Department of the Interior implementation of the Program 
Fraud and Civil Remedies Act of 1985 is found at 43 CFR part 35.
    (b) [Reserved]

[55 FR 6737, 6753, Feb. 26, 1990, as amended at 55 FR 6754, Feb. 26, 
1990]



Sec. 18.410  Enforcement.

    The head of each agency shall take such actions as are necessary to 
ensure that the provisions herein are vigorously implemented and 
enforced in that agency.



                          Subpart E_Exemptions



Sec. 18.500  Secretary of Defense.

    (a) The Secretary of Defense may exempt, on a case-by-case basis, a 
covered Federal action from the prohibition whenever the Secretary 
determines, in writing, that such an exemption is in the national 
interest. The Secretary shall transmit a copy of each such written 
exemption to Congress immediately after making such a determination.
    (b) The Department of Defense may issue supplemental regulations to 
implement paragraph (a) of this section.



                        Subpart F_Agency Reports



Sec. 18.600  Semi-annual compilation.

    (a) The head of each agency shall collect and compile the disclosure 
reports (see appendix B to this part) and, on May 31 and November 30 of 
each year, submit to the Secretary of the Senate and the Clerk of the 
House of Representatives a report containing a compilation of the 
information contained in the disclosure reports received during the six-
month period ending on March 31 or September 30, respectively, of that 
year.
    (b) The report, including the compilation, shall be available for 
public inspection 30 days after receipt of the report by the Secretary 
and the Clerk.
    (c) Information that involves intelligence matters shall be reported 
only to the Select Committee on Intelligence of the Senate, the 
Permanent Select Committee on Intelligence of the House of 
Representatives, and the Committees on Appropriations of the Senate and 
the House of Representatives in accordance with procedures agreed to by 
such committees. Such information shall not be available for public 
inspection.
    (d) Information that is classified under Executive Order 12356 or 
any successor order shall be reported only to the Committee on Foreign 
Relations of the Senate and the Committee on Foreign Affairs of the 
House of Representatives or the Committees on Armed Services of the 
Senate and the House of Representatives (whichever such committees have 
jurisdiction of matters involving such information) and to the 
Committees on Appropriations of the Senate and the House of 
Representatives in accordance with procedures agreed to by such 
committees. Such information shall not be available for public 
inspection.

[[Page 397]]

    (e) The first semi-annual compilation shall be submitted on May 31, 
1990, and shall contain a compilation of the disclosure reports received 
from December 23, 1989 to March 31, 1990.
    (f) Major agencies, designated by the Office of Management and 
Budget (OMB), are required to provide machine-readable compilations to 
the Secretary of the Senate and the Clerk of the House of 
Representatives no later than with the compilations due on May 31, 1991. 
OMB shall provide detailed specifications in a memorandum to these 
agencies.
    (g) Non-major agencies are requested to provide machine-readable 
compilations to the Secretary of the Senate and the Clerk of the House 
of Representatives.
    (h) Agencies shall keep the originals of all disclosure reports in 
the official files of the agency.



Sec. 18.605  Inspector General report.

    (a) The Inspector General, or other official as specified in 
paragraph (b) of this section, of each agency shall prepare and submit 
to Congress each year, commencing with submission of the President's 
Budget in 1991, an evaluation of the compliance of that agency with, and 
the effectiveness of, the requirements herein. The evaluation may 
include any recommended changes that may be necessary to strengthen or 
improve the requirements.
    (b) In the case of an agency that does not have an Inspector 
General, the agency official comparable to an Inspector General shall 
prepare and submit the annual report, or, if there is no such comparable 
official, the head of the agency shall prepare and submit the annual 
report.
    (c) The annual report shall be submitted at the same time the agency 
submits its annual budget justifications to Congress.
    (d) The annual report shall include the following: All alleged 
violations relating to the agency's covered Federal actions during the 
year covered by the report, the actions taken by the head of the agency 
in the year covered by the report with respect to those alleged 
violations and alleged violations in previous years, and the amounts of 
civil penalties imposed by the agency in the year covered by the report.



      Sec. Appendix A to Part 18--Certification Regarding Lobbying

 Certification for Contracts, Grants, Loans, and Cooperative Agreements

    The undersigned certifies, to the best of his or her knowledge and 
belief, that:
    (1) No Federal appropriated funds have been paid or will be paid, by 
or on behalf of the undersigned, to any person for influencing or 
attempting to influence an officer or employee of an agency, a Member of 
Congress, an officer or employee of Congress, or an employee of a Member 
of Congress in connection with the awarding of any Federal contract, the 
making of any Federal grant, the making of any Federal loan, the 
entering into of any cooperative agreement, and the extension, 
continuation, renewal, amendment, or modification of any Federal 
contract, grant, loan, or cooperative agreement.
    (2) If any funds other than Federal appropriated funds have been 
paid or will be paid to any person for influencing or attempting to 
influence an officer or employee of any agency, a Member of Congress, an 
officer or employee of Congress, or an employee of a Member of Congress 
in connection with this Federal contract, grant, loan, or cooperative 
agreement, the undersigned shall complete and submit Standard Form-LLL, 
``Disclosure Form to Report Lobbying,'' in accordance with its 
instructions.
    (3) The undersigned shall require that the language of this 
certification be included in the award documents for all subawards at 
all tiers (including subcontracts, subgrants, and contracts under 
grants, loans, and cooperative agreements) and that all subrecipients 
shall certify and disclose accordingly.
    This certification is a material representation of fact upon which 
reliance was placed when this transaction was made or entered into. 
Submission of this certification is a prerequisite for making or 
entering into this transaction imposed by section 1352, title 31, U.S. 
Code. Any person who fails to file the required certification shall be 
subject to a civil penalty of not less than $10,000 and not more than 
$100,000 for each such failure.

            Statement for Loan Guarantees and Loan Insurance

    The undersigned states, to the best of his or her knowledge and 
belief, that:
    If any funds have been paid or will be paid to any person for 
influencing or attempting to influence an officer or employee of any 
agency, a Member of Congress, an officer or employee of Congress, or an 
employee of a Member of Congress in connection with this commitment 
providing for the United States

[[Page 398]]

to insure or guarantee a loan, the undersigned shall complete and submit 
Standard Form-LLL, ``Disclosure Form to Report Lobbying,'' in accordance 
with its instructions.
    Submission of this statement is a prerequisite for making or 
entering into this transaction imposed by section 1352, title 31, U.S. 
Code. Any person who fails to file the required statement shall be 
subject to a civil penalty of not less than $10,000 and not more than 
$100,000 for each such failure.

[[Page 399]]



     Sec. Appendix B to Part 18--Disclosure Form To Report Lobbying
[GRAPHIC] [TIFF OMITTED] TC01JA91.000


[[Page 400]]


[GRAPHIC] [TIFF OMITTED] TC01JA91.001


[[Page 401]]


[GRAPHIC] [TIFF OMITTED] TC01JA91.002


[[Page 402]]





PART 19_WILDERNESS PRESERVATION--Table of Contents



            Subpart A_National Wilderness Preservation System

Sec.
19.1 Scope and purpose.
19.2 Definitions.
19.3 Reviews of roadless areas and roadless islands.
19.4 Liaison with other governmental agencies and submission of views by 
          interested persons.
19.5 Hearing procedures.
19.6 Regulations respecting administration and uses of wilderness areas 
          under jurisdiction of the Secretary.
19.7 Private contributions and gifts.
19.8 Prospecting, mineral locations, mineral patents, and mineral 
          leasing within National Forest Wilderness.

Subpart B [Reserved]

    Authority: 78 Stat. 890, R.S. 2478; 16 U.S.C. 1131-1136, 43 U.S.C. 
1201.

    Source: Circ. 2203, 31 FR 3011, Feb. 22, 1966, unless otherwise 
noted.



            Subpart A_National Wilderness Preservation System



Sec. 19.1  Scope and purpose.

    This subpart sets forth sections dealings with the administration by 
the Department of the Interior of certain provisions of the Wilderness 
Act (78 Stat. 890; 16 U.S.C. 1131-1136).



Sec. 19.2  Definitions.

    As used in this subpart the term:
    (a) National Forest Wilderness means an area or part of an area of 
national forest lands designated by the Wilderness Act or by a 
subsequent act of Congress as a wilderness area.
    (b) National Park System means all federally owned or controlled 
areas administered by the Secretary through the National Park Service.
    (c) National Wilderness Preservation System means the Federally 
owned areas designated by the Wilderness Act or subsequent acts of 
Congress as wilderness areas.
    (d) National Wildlife Refuge System means those lands and waters 
administered by the Secretary as wildlife refuges, wildlife ranges, game 
ranges, wildlife management areas, and waterfowl production areas 
established under any statute, proclamation, executive order, or public 
land order.
    (e) Roadless area means a reasonably compact area of undeveloped 
Federal land which possesses the general characteristics of a wilderness 
and within which there is no improved road that is suitable for public 
travel by means of four-wheeled, motorized vehicles intended primarily 
for highway use.
    (f) Roadless island means a roadless area that is surrounded by 
permanent waters or that is markedly distinguished from surrounding 
lands by topographical or ecological features such as precipices, 
canyons, thickets, or swamps.
    (g) Secretary means the Secretary of the Interior or an official of 
the Department of the Interior who exercises authority delegated by the 
Secretary of the Interior.
    (h) Wilderness means a wilderness as defined in section 2(c) of the 
Wilderness Act.



Sec. 19.3  Reviews of roadless areas and roadless islands.

    (a) The Secretary is required by section 3(c) of the Wilderness Act 
to review every roadless area of 5,000 contiguous acres or more in each 
unit of the National Park System and every roadless area of 5,000 
contiguous acres or more and every roadless island in the national 
wildlife refuges and game ranges of the National Wildlife Refuge System, 
which was under the supervision of the Secretary on September 3, 1964. 
The Secretary is further required to recommend to the President whether 
each such area and island is suitable or not suitable for preservation 
as wilderness. Reports and recommendations must be submitted by the 
Secretary in time to permit the President to advise the Congress of his 
recommendations thereon:
    (1) Covering not less than one-third of such areas and islands by 
September 3, 1967;
    (2) Covering not less than an additional one-third by not later than 
September 3, 1971; and
    (3) Covering the remainder by not later than September 3, 1974.
    (b) The primary objective of the Department of the Interior's review 
of

[[Page 403]]

roadless areas and roadless islands pursuant to section 3(c) of the 
Wilderness Act and the regulations of this part shall be to identify and 
recommend for preservation as wilderness, by inclusion in the National 
Wilderness Preservation System, those areas which, after consideration 
of all relevant factors, it is concluded will achieve the policy of the 
Congress, as expressed in section 2(a) of the Wilderness Act.
    (c) Nothing in the sections of this part shall, by implication or 
otherwise, be construed to lessen the authority of the Secretary with 
respect to the maintenance of roadless areas within units of the 
National Park System or the maintenance of roadless areas and islands 
within units of the National Wildlife Refuge System.



Sec. 19.4  Liaison with other governmental agencies and submission of views by interested persons.

    (a) When a review is initiated under the provisions of section 3(c) 
of the Wilderness Act and the sections of this part, arrangements shall 
be made for appropriate consideration of problems of mutual concern with 
other Federal agencies and with regional, State, and local governmental 
agencies.
    (b) Any person desiring to submit recommendations as to the 
suitability or nonsuitability for preservation as wilderness of any 
roadless area in any unit of the National Park System, or of any such 
area or any roadless island in any unit of the National Wildlife Refuge 
System, may submit such recommendations at any time to the 
superintendent or manager in charge of the unit. Such recommendations 
will be accorded careful consideration and shall be forwarded with the 
report of review to the Office of the Secretary.



Sec. 19.5  Hearing procedures.

    (a) Before any recommendation of the Secretary concerning the 
suitability or nonsuitability of any roadless area or island for 
preservation as wilderness is submitted to the President, a public 
hearing or hearings shall be held thereon at a location or locations 
convenient to the area or areas affected. If the lands involved are 
located in more than one State, at least one such hearing shall be held 
in each State. At least 30 days before the date of any such hearing, 
public notice thereof shall be published in the Federal Register and in 
newspapers of general circulation in the area. The public notice shall 
contain or make reference to a map of the lands involved and a 
definition of boundaries and a statement of the action proposed to be 
taken by the Secretary thereon.
    (1) Any hearing held under this section shall be presided over by a 
hearing officer designated by the Secretary.
    (2) Any person may present testimony at the hearing orally or in 
writing, or both, by notification to the hearing officer in accordance 
with the published notice of the hearing. Witnesses shall not be 
subjected to cross-examination but the hearing officer may invite 
responses by witnesses to questions he may ask for the purpose of 
clarifying the testimony presented.
    (3) The witnesses shall not be sworn, but statements made by them 
orally or in writing are subject to the provisions of 18 U.S.C. 1001, 
which makes it a crime for any person knowingly and willfully to make to 
any agency of the United States any false, fictitious, or fraudulent 
statement as to any matter within its jurisdiction.
    (4) A verbatim record of the hearing shall be kept.
    (5) The hearing officer may be instructed by the Secretary to 
prepare and submit a recommendation concerning the suitability or 
nonsuitability of the area or areas for preservation as wilderness.
    (6) A copy of the transcript of the hearing record, and of any 
recommendation made by the hearing officer as a result thereof, shall, 
during the pendency of the subject matter, be maintained for public 
examination (i) in an office of the Department of the Interior 
convenient to the area or areas affected and (ii) in the headquarters 
office of the Department in Washington, DC.
    (7) The Secretary reserves the right at all times to consider 
information available to his office from any source not limited to the 
record of the public hearing or hearings, in the further consideration 
of proposed recommendations concerning the suitability or the

[[Page 404]]

nonsuitability of the area or areas for preservation as wilderness.
    (b) At least 30 days before the date of any such public hearing, the 
hearing officer shall advise the Governor of each State and the 
governing board of each county, or in Alaska the borough, in which the 
lands are located, and the other Federal departments and agencies 
concerned, and invite such officials and agencies to submit their views 
at the hearing. The Governor, the governing board, and the other Federal 
agencies may also submit views following the hearing but such views must 
be received in the Office of the Secretary by no later than 30 days 
following the date of the hearing to assure that they will receive 
consideration.
    (c) Any public views received pursuant to the provisions of this 
section will be accorded careful consideration and a summary thereof 
shall be forwarded with the recommendations of the Secretary to the 
President with respect to the area under consideration.

[31 FR 3011, Feb. 22, 1966, as amended at 37 FR 16079, Aug. 10, 1972]



Sec. 19.6  Regulations respecting administration and uses of wilderness areas under jurisdiction of the Secretary.

    Regulations respecting administration and use of areas under the 
jurisdiction of the Secretary which may be designated as wilderness 
areas by statute shall be developed with a view to protecting such areas 
and preserving their wilderness character for the use and enjoyment of 
the American people in such manner as will leave them unimpaired for 
future use and enjoyment as wilderness, with inconsistent uses held to a 
minimum.



Sec. 19.7  Private contributions and gifts.

    (a) The Secretary is authorized by section 6(b) of the Wilderness 
Act to accept on behalf of the United States private contributions and 
gifts to be used to further the purposes of the act. The Secretary, 
under the authorization of section 6(b), may accept on behalf of the 
United States any sums of money, marketable securities or other personal 
property (but not real property) to be used for such things as 
expediting reviews of roadless areas and islands under his jurisdiction, 
expediting mineral resource surveys of National Forest Wilderness, or 
fostering public information and research related to wilderness 
preservation.
    (b) Anyone desiring to make a contribution or gift under the 
provisions of this section may submit an offer to the Secretary of the 
Interior, Washington, DC 20240, stating the amount of money or 
describing the securities or other personal property involved. If the 
offer involves property other than cash, the statement should set forth 
that the offeror is the owner of the property free and clear of all 
encumbrances and adverse claims. The offeror may specify a particular 
purpose for which the offer is made, but the Secretary may in his 
discretion reject any offer entailing purposes, terms, or conditions 
unacceptable to him.
    (c) Sums of money and marketable securities received under this 
section that are not otherwise restricted and are allocated to 
furthering the purposes of the Wilderness Act as it relates to lands 
within the National Park System shall be transferred to a special 
account in the National Park Trust Fund and shall be administered in 
accordance with the provisions of 36 CFR part 9.
    (d) Offers of gifts of land to promote the purposes of a grazing 
district or facilitate administration of public lands, including 
preservation and management of wilderness, values, may be tendered to 
the Secretary under the provisions of section 8(a) of the Taylor Grazing 
Act of June 28, 1934 (48 Stat. 1272) as amended (43 U.S.C. 315g). Offers 
of gifts of land or interests in land to facilitate administration or 
contribute to improvement, management, use, or protection of public 
lands and their resources, including the preservation and management of 
wilderness values, may be tendered to the Secretary under the provisions 
of section 103(a) of the Public Land Administration Act of July 14 1960 
(74 Stat. 506: 43 U.S.C. 1364). Persons desiring to make such offers 
should follow the procedures established by 43 CFR subpart 2111.
    (e) Under the provisions of the Act of June 5, 1920 (41 Stat. 917; 
16 U.S.C. 6),

[[Page 405]]

the Secretary is authorized, in his discretion, to accept donations of 
patented lands, rights-of-way over patented lands or other lands, 
buildings, or other property within the various national parks and 
national monuments for the purposes of the National Park System. Persons 
desiring to offer lands, rights-of-way, or buildings under the 
provisions of the Act of June 5, 1920, should make inquiry of the 
superintendent of the national park or monument within which the 
property is located.



Sec. 19.8  Prospecting, mineral locations, mineral patents, and mineral leasing within National Forest Wilderness.

    Regulations issued under the provisions of the Wilderness Act 
pertaining to prospecting, mineral locations, mineral patents, and 
mineral leasing within National Forest Wilderness are contained in parts 
3327 and 3638 of subchapter C of chapter II of this title.

    Editorial Note: See Redesignation Table No. 2 of 43 CFR, which 
appears in Volume II of the List of CFR Sections Affected, 1964-1972, 
for the appropriate sections to former parts 3327 and 3638.

Subpart B [Reserved]



PART 20_EMPLOYEE RESPONSIBILITIES AND CONDUCT--Table of Contents



Sec.
20.101 Cross-references to ethical conduct, financial disclosure and 
          other applicable regulations.
20.102 Definitions.
20.103 Employee responsibilities.

                   Subpart B_Department Ethics Program

20.201 Ethics officials.
20.202 Ethics program responsibilities.
20.203 Exclusion from confidential financial disclosure requirement for 
          certain special Government employees.

     Subpart C_Acceptance and Payment of Travel and Related Expenses

20.301 General policy.
20.302 Exclusions.

   Subpart D_Special Provisions Governing Financial and Other Outside 
            Interests of Certain Employees of the Department

20.401 Interests in Federal lands.
20.402 Interests in underground or surface coal mining operations.
20.403 Certificates of disclaimer.

               Subpart E_Other Employee Conduct Provisions

20.501 General policy.
20.502 Conformance with policy and subordination to authority.
20.503 Scope of authority.
20.504 Selling or soliciting.
20.505 Habitual use of intoxicants.
20.506 Appropriations, legislation and lobbying.
20.507 Unlawful organizations.
20.508 Notary.
20.509 Penalty mail and official stationery.
20.510 Fraud or false statements in a Government matter.
20.511 Carrying of firearms.
20.512 Labor practices.

               Subpart F_Disciplinary and Remedial Actions

20.601 General.
20.602 Remedial action.
20.603 Appealing an order for remedial action.

    Authority: 5 U.S.C. 301, 7301; 5 U.S.C. App. (Reorganization Plan 
No. 3 of 1950); 30 U.S.C. 1211; 43 U.S.C. 11, 31(a); 5 CFR 2634.903, 
2634.905.

    Source: 62 FR 53720, Oct. 16, 1997, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 20.101  Cross-references to ethical conduct, financial disclosure and other applicable regulations.

    In addition to the rules in this part, employees of the Department 
of the Interior also should refer to the Standards of Ethical Conduct 
for Employees of the Executive Branch, at 5 CFR part 2635; the 
Department's regulations that supplement those executive branch-wide 
standards at 5 CFR part 3501; the employee responsibilities and conduct 
regulations at 5 CFR part 735; and the executive branch financial 
disclosure regulations at 5 CFR part 2634.

[[Page 406]]



Sec. 20.102  Definitions.

    (a) The following terms are used throughout this part and have the 
following meanings:
    (1) Department means the U.S. Department of the Interior and any of 
its components.
    (2) Secretary means the Secretary of the Interior.
    (3) Bureau means each major program operating component of the 
Department, the Office of the Secretary, the Office of the Solicitor, 
and the Office of the Inspector General.
    (4) Employee means a regular employee, a special Government 
employee, and a contract education employee in the Office of the 
Assistant Secretary--Indian Affairs or the Bureau of Indian Affairs, 
unless the text of a particular subpart, section, or paragraph indicates 
that either regular employees or special Government employees are not 
intended to be covered by that subpart, section or paragraph. Volunteers 
in National Parks whose services are accepted pursuant to 16 U.S.C. 18g 
are not employees.
    (b) Specific definitions. Additional definitions of terms 
specifically associated with a particular subpart, section, or paragraph 
are found in that subpart, section, or paragraph.



Sec. 20.103  Employee responsibilities.

    It is the responsibility of each employee:
    (a) To be familiar with and to comply with all Federal statues, 
Executive Orders, and regulations that govern his or her conduct. 
Employees are expected to consult with their supervisors and servicing 
ethics counselors on questions they may have regarding the applicability 
of any ethics or other conduct provision. Ethics advice may also be 
obtained from the Solicitor's Office and the Department Ethics Office.
    (b) To report directly or through appropriate channels to the Office 
of Inspector General or other appropriate authority matters coming to 
their attention which do or may involve violations of law or regulation 
by employees, contractors, sub-contractors, grantees, subgrantees, 
lessees, licensees or other persons having official business with the 
Department.



                   Subpart B_Department Ethics Program



Sec. 20.201  Ethics officials.

    (a) Designated Agency Ethics Official refers to the official 
designated under 5 CFR 2638.201 to coordinate and manage the 
Department's ethics program.
    (b) The head of each bureau is the ``Ethics Counselor'' for that 
bureau, except that the Deputy Assistant Secretary for Policy is the 
Ethics Counselor for employees in the Office of the Secretary and 
related offices. The Solicitor is the Ethics Counselor for the Office of 
the Solicitor and the Inspector General is the Ethics Counselor for the 
Office of Inspector General.
    (c) The personnel officer for each bureau or other qualified 
employee who has been delegated responsibility for the operational 
duties of the Ethics Counselor for the bureau, it the ``Deputy Ethics 
Counselor'' for that bureau.
    (d) A bureau, regional, or area personnel officer or other qualified 
employee may be assigned to serve as an ``Associate Ethics Counselor'' 
or ``Assistant Ethics Counselor,'' with delegated responsibility to 
perform the operational duties of the Ethics Counselor at the field 
level. Associate Ethics Counselors or Assistant Ethics Counselors may 
also be designated within the bureau headquarters.

[62 FR 53720, Oct. 16, 1997, as amended at 63 FR 34259, June 24, 1998]



Sec. 20.202  Ethics program responsibilities.

    (a) The Designated Agency Ethics Official (or the alternate agency 
ethics official in his or her absence) shall coordinate and manage the 
department's ethics program in accordance with 5 CFR 2638.203.
    (b) Each Ethics Counselor shall, for his or her bureau:
    (1) Order disciplinary or remedial action in accordance with the 
provisions of subpart F of this part. This authority may not be 
redelegated.
    (2) Designate: (i) The Bureau Personnel Officer (or other qualified 
headquarters employee) as Deputy Ethics Counselor to carry out 
operational duties of the Ethics Counselor within

[[Page 407]]

their bureaus under the general direction of the Ethics Counselor; and
    (ii) Headquarters bureau, regional, or area personnel officers (or 
other qualified employees) as Associate Ethics Counselors or Assistant 
Ethics Counselors to perform ethics counseling and the collection and 
review of financial disclosure reports.
    (3) Ensure that vacancy announcements for positions which require a 
public or confidential financial disclosure report alert applicants to 
the filing requirement.
    (4) Establish and maintain internal procedures and guidelines to 
adequately and systematically inform employees of the content, meaning, 
and importance of ethical conduct and other conduct regulations.
    (c) All supervisors may make decisions as to whether conduct by 
employees under their supervision would result in the appearance that 
the employee would violate or is violating the ethical standards set 
forth in 5 CFR 2635; all supervisors are expected, therefore, to be 
familiar with those standards. In addition, any supervisor who grants 
prior approval of an employee's outside employment under 5 CFR 
3501.105(b) is expected, at a minimum, to provide information to the 
employee about the prohibitions in 18 U.S.C. 203, 205 and 208 at the 
time such approval is granted.



Sec. 20.203  Exclusion from confidential financial disclosure requirement for certain special Government employees.

    In an instance involving the proposed employment of a special 
Government employee for highly specialized and limited duties, the head 
of the bureau or office may propose to the Designated Agency Ethics 
Official (DAEO) a reporting of financial interests restricted to such 
interests as may be determined to be relevant to the duties the special 
Government employee is to perform. The DAEO may, under the provisions of 
5 CFR 2634.905, exclude the special Government employee from all or a 
portion of the confidential reporting requirements of the OGE Form 450. 
Any confidential financial disclosure requirement must be satisfied by 
the special Government employee before he begins his employment.



     Subpart C_Acceptance and Payment of Travel and Related Expenses



Sec. 20.301  General policy.

    (a) Except as specifically authorized by law, when an employee is on 
official duty (no leave status), all travel and accommodations shall be 
at Government expense and his or her acceptance of outside reimbursement 
for travel expenses or services in kind from private sources, either in 
his or her behalf or in behalf of the Government, is not allowed.
    (b) Under certain circumstances, the Department may charge a fee or 
accept reimbursement for providing a service or thing of value to a 
private source when the service or thing of value provided benefits to 
both the Government and the particular private source (31 U.S.C. 9701). 
In such instances only a portion of the costs can be accepted from the 
private source. The Department must pay expenses associated with its 
usual official business and for the benefits it receives from 
participating in the event. The private source can be charged or may 
reimburse the Department for that portion of the service provided that 
exceeds the Department's usual expenses and the benefits to the 
Government. Under this provision, payments from private sources must be 
deposited in the U.S. Treasury unless the bureau receiving the payment 
is authorized by statute to accept such payments.
    (c) When a bureau is authorized by statute other than 31 U.S.C. 1353 
to accept gifts, and 31 U.S.C. 1353 does not apply, the travel expenses 
incurred by an employee directed to participate in a convention, 
seminar, or similar meeting sponsored by a private source for the mutual 
interest of the Government and the private source may be reimbursed to 
the bureau and credited to its appropriation. The employee shall be paid 
by the bureau in accordance with the law relating to reimbursement for 
official travel and any accommodations and goods or services in kind 
furnished an employee shall be treated as a donation to the bureau and

[[Page 408]]

an appropriate reduction shall be made to the employee's reimbursement 
(46 CG 689 (1967)).
    (d) When participation at a function is not in an official capacity, 
an employee may accept reimbursement of travel and accommodation 
expenses from a private source, provided that such acceptance is 
permitted by law and Federal regulations. Participation as a private 
citizen must occur on one's own time, such as while on leave. If 
participation should occur during the course of official travel (i.e., 
evening or weekend hours during official travel status), the travel 
voucher submitted for Government reimbursement of official duty expenses 
must be adjusted to claim only that per diem and travel attributable to 
official duty. Employees who are in positions for which the rate of pay 
is specified in 5 U.S.C. 5311-5318 (the Executive Schedule) are on 24-
hour duty, and determinations of what constitutes official duty and what 
is private participation should be carefully made.



Sec. 20.302  Exclusions.

    (a) Where employee travel is for attendance at a meeting or similar 
function (31 U.S.C. 1353(a)), the Department may accept payment for the 
employee and/or the employee's spouse's travel from a non-Federal source 
when proper consideration is given to the conditions in paragraph (a)(1) 
of this section and a written authorization to accept payment is issued 
in advance of the travel.
    (1) Conditions. Such travel expenses paid for by a non-Federal 
source may be accepted by the Department only if all of the following 
conditions are met:
    (i) The travel relates to the employee's official duties;
    (ii) The travel, subsistence and related expenses are with respect 
to the attendance of an employee (and/or the accompanying spouse of such 
employee when applicable) at a meeting or similar function. This 
includes a conference, seminar, speaking engagement, symposium, training 
course, or similar event that takes place away from the employee's 
official station, and is sponsored or cosponsored by a non-Federal 
source;
    (iii) The non-Federal source is not disqualified because of a real 
or apparent conflict of interest as determined under paragraph (a)(2) of 
this section; and
    (iv) The travel event is not required to carry out the Department's 
statutory or regulatory functions. Examples of statutory or regulatory 
functions that are essential to the Department's mission include 
investigations, inspections, audits, site visits, compliance reviews or 
program evaluations.
    (2) Conflict of interest analysis. (i) The Department's acceptance 
of any payment from a non-Federal source under the authority of 31 
U.S.C. 1353 shall not be approved when an Authorized Approving Official, 
identified in paragraph (a)(2)(iii) of this section, determines that 
under the circumstances, acceptance of the travel expenses would cause a 
reasonable person with knowledge of all relevant facts to:
    (A) Question the integrity of the work to be performed by the 
employee receiving the benefit; or
    (B) Question the integrity of the Department's other program 
operations.
    (ii) When making these determinations, an Authorized Approving 
Official shall be guided by all relevant considerations including, but 
not limited to:
    (A) The identity of the non-Federal source and the source's 
relationship to the Department;
    (B) The purpose of the meeting or similar function and its 
relationship to the Department's programs or operations;
    (C) The identity of other expected participants and their 
relationship to the Department;
    (D) The nature and sensitivity of any pending Department matter 
which, when decided, may affect the interests of the non-Federal source;
    (E) The significance of the employee's role in any such pending 
matter;
    (F) The monetary value and character of the travel benefits offered 
by the non-Federal source; and
    (G) The potential reaction from Department customers, including the 
public, if the acceptance of travel expenses was made known to them.
    (iii) An ``Authorized Approving Official'' means that Department 
official who has been delegated authority to approve the usual travel 
authorizations

[[Page 409]]

of the employee who will benefit from the non-Federal travel payment.
    (iv) The procedures stated below must be satisfied before the 
employee (and/or the accompanying spouse) begin his or her travel:
    (A) Each employee (and/or the accompanying spouse) must have an 
approved Travel Authorization (Form DI-1020). Section 10 (``Purpose and 
Remarks'') of this Form must contain a statement that the authority to 
accept payment from a non-Federal source for the specified travel event 
is 31 U.S.C. 1353, and the travel situation complies with the conditions 
for acceptance under 41 CFR 304-1.4.
    (B) The supplementary form entitled, ``Report of Payments Accepted 
From Non-Federal Sources Under 31 U.S.C. 1353'' (Form DI-2000) must also 
be completed and signed by the employee and the Authorized Approving 
Official. A copy of Form DI-1020 and Form DI-2000 must be filed with the 
employee's Deputy Ethics Counselor.
    (C) Payment from a non-Federal source to cover the travel related 
expenses of an employee may be made in the form of a check or similar 
instrument made payable to the Department. Employees should not accept 
cash or negotiate checks or similar instruments payable to them. Any 
negotiable instruments received by an employee shall be transmitted 
immediately to the appropriate accounting office.
    (b) When on official duty, contributions and awards incident to 
training in non-Government facilities, and payment of travel, 
subsistence, and other expenses incident to attendance at meetings may 
be accepted by an employee when the payment is made by a non-profit, tax 
exempt organization as described in 26 U.S.C. 501(c)(3) and when no real 
or apparent conflict of interest will result. Prior advice should be 
obtained from the employee's ethics counselor in this circumstance (5 
U.S.C. 4111).
    (c) Employees may accept reimbursement by the Department for travel 
and related expenses when on detail under the Intergovernmental 
Personnel Act, in accordance with 5 U.S.C. 3375.
    (d) Should the Director of the United States Information Agency, 
with the approval of the employing agency, assign an employee to a 
foreign government, reimbursement for the employee's pay and allowances 
shall be made to the United States in an amount equal to the 
compensation, travel expenses, and allowances payable to such person 
during the period of such assignment, in accordance with 22 U.S.C. 1451.
    (e) Should an employee be detailed by the Secretary to an 
international organization which requests services, the employee is 
deemed to be (for the purpose of preserving his or her allowances, 
privileges, rights, seniority, and other benefits) an employee of the 
Department and the employee is entitled to pay, allowances, and benefits 
from funds available to the Department. The international organization 
may reimburse the Department for all or part of the pay, travel 
expenses, and allowances payable during the detail; or, the detailed 
employee may be paid or reimbursed directly by the international 
organization for allowances or expenses incurred in the performance of 
duties required by the detail without regard to 18 U.S.C. 209 (5 U.S.C. 
3343).



   Subpart D_Special Provisions Governing Financial and Other Outside 
            Interests of Certain Employees of the Department



Sec. 20.401  Interests in Federal lands.

    (a) Statutory prohibition applicable to employees of the Bureau of 
Land Management. (1) In accordance with 43 U.S.C. 11, employees of the 
Bureau of Land Management are prohibited from voluntarily acquiring a 
direct or indirect interest in Federal lands.
    (2) Definitions. For purposes of applying the prohibition in 43 
U.S.C. 11:
    (i) Federal lands. means public lands or resources or an interest in 
lands or resources administered or controlled by the Department, 
including, but not limited to, all submerged lands lying seaward outside 
of the area of ``lands beneath navigable water'' as defined in 43 U.S.C. 
1301(a), and of which the subsoil and seabed appertain to the United 
States and are subject to its jurisdiction and control.

[[Page 410]]

    (ii) Direct interest in Federal lands means any employee ownership 
or part ownership in Federal lands or any participation in the earnings 
therefrom, or the right to occupy or use the property or to take any 
benefits there from, based upon a contract, grant, lease, permit, 
easement, rental agreement, or application. Direct interest in Federal 
lands also includes:
    (A) Membership or outside employment in a business which has 
interests in Federal lands; and.
    (B) Ownership of stock or other securities in corporations 
determined by the Department to have an interest in Federal lands 
directly or through a subsidiary.
    (iii) Indirect interest in Federal lands means any ownership or part 
ownership of an interest in Federal lands by an employee in the name of 
another where the employee still reaps the benefits. Indirect interest 
in Federal lands also includes:
    (A) Holdings in land, mineral rights, grazing rights or livestock 
which in any manner are connected with or involve the substantial use of 
the resources or facilities of the Federal lands; or
    (B) Substantial holdings of a spouse or minor child.
    (b) Statutory prohibition applicable to employees of the U.S. 
Geological Survey. (1) In accordance with 43 U.S.C. 31(a), the Director 
and members of the U.S. Geological Survey are prohibited from having any 
personal or private interests in the lands or mineral wealth of the 
region under survey.
    (2) Definitions. For purposes of applying the prohibition in 43 
U.S.C. 31(a):
    (i) Personal or private interest means ownership of an interest in, 
or employment with a person or enterprise which leases or uses, Federal 
lands for commercial purposes.
    (ii) Region under survey means Federal lands which are administered 
or controlled by the Department.
    (c) Exclusions. (1)(i) Except for U.S. mineral surveyors, an 
individual employed on an intermittent or seasonal basis for a period 
not exceeding 180 working days in each calendar year, and a special 
Government employee (SGE) engaged in field work relating to land, range, 
forest, and mineral conservation and management activities, and the 
spouse of such an individual or SGE, shall not be precluded from 
retaining any interest, including renewal or continuation of existing 
rights, in Federal lands, provided that such individual or SGE or spouse 
shall not acquire any additional interest in Federal lands during 
employment.
    (ii) A U.S. mineral surveyor is a person appointed under the 
authority of 30 U.S.C. 39, and as such is included within the term 
``officers, clerks, and employees'' of the Bureau of Land Management as 
that term is used in 43 U.S.C. 11 and construed in Waskey v. Hammer, 223 
U.S. 85 (1912). U.S. mineral surveyors are also considered to be special 
government employees.
    (2) A Bureau of Land Management employee or any member of the 
employee's family may acquire wild free-roaming horses or burros from 
Federal lands for maintenance and protection through a cooperative 
agreement entered into in accordance with 43 CFR part 4700.
    (3) A Bureau of Land Management employee may retain a direct or 
indirect interest in Federal lands when:
    (i) There is little or no relationship between the employee's 
functions or duties and the particular interest in Federal lands, and
    (ii) The employee, or the spouse or dependent child of the employee, 
acquired such an interest:
    (A) By gift, devise, bequest, or court award or settlement, or
    (B) Prior to the time the employee entered on duty in the 
Department.
    (4) Pursuant to 43 U.S.C. 1621(d), 43 U.S.C. 11 does not apply to 
any land grants or other rights granted under 43 U.S.C. chapter 33.
    (5) The recreational or other personal and noncommercial use of the 
Federal lands by an employee, the employee's spouse or dependent child, 
on the same terms as use of the Federal lands is available to the 
general public, is not prohibited.
    (6) Advisory councils. Nothing in 43 U.S.C. 11 shall disqualify 
individuals appointed pursuant to the Federal Land Policy and Management 
Act of 1976, 43 U.S.C. 1739, as members of advisory boards or councils, 
from acquiring or retaining grazing licenses or permits

[[Page 411]]

issued pursuant to section 3 of the Taylor Grazing Act (43 U.S.C. 315b), 
or any other interest in land or resources administered by the Bureau of 
Land Management: Provided, that in no case shall the member of any such 
board or council participate in any advice or recommendation concerning 
such license or permit in which such member is directly or indirectly 
interested.
    (d) Request for advice. When an employee is in doubt as to whether 
the acquisition or retention of any interest in lands or resources 
administered by the Department would violate the provisions of this 
section, a statement of the facts should be submitted promptly by the 
individual involved to his or her servicing ethics counselor for 
guidance.



Sec. 20.402  Interests in underground or surface coal mining operations.

    (a) Definitions. As used in this section:
    (1) Direct financial interest in underground or surface coal mining 
operations means ownership or part ownership by an employee of lands, 
stocks, bonds, debentures, warrants, partnership shares, or other 
holdings and also means any other arrangement where the employee may 
benefit from his or her holding in or salary from coal mining operation. 
Direct financial interests also include employment, pensions, creditor, 
real property and other financial relationships.
    (2) Indirect financial interest in underground or surface coal 
mining operations means the same financial relationships as for direct 
ownership, but where the employee reaps the benefits of such interests 
including interests held by his or her spouse, dependent child and other 
relatives, including in-laws, residing in the employee's home. The 
employee will not be deemed to have an indirect financial interest if 
there is no relationship between the employee's functions or duties and 
the coal mining operation in which the spouse, dependent child or other 
resident relative holds a financial interest.
    (3) Coal mining operation means the business of developing, 
producing, preparing or loading bituminous coal, subbituminous coal, 
anthracite or lignite or of reclaiming the areas upon which such 
activities occur.
    (4) Performing any function or duty under the Surface Mining Control 
and Reclamation Act of 1977 means those decisions or actions, which if 
performed or not performed by an employee, affect the programs under the 
Act.
    (b) Prohibitions. (1) Neither the Director nor any other employee of 
the Office of Surface Mining Reclamation and Enforcement or any other 
employee who performs functions or duties under the Surface Mining 
Control and Reclamation Act of 1977, 30 U.S.C. 1201 et seq., shall have 
a direct or indirect financial interest in underground or surface coal 
mining operations.
    (2) The Surface Mining Control and Reclamation Act of 1977, at 30 
U.S.C. 1211(f), provides that anyone who knowingly violates the 
prohibitions in that Act shall, upon conviction, be punished by a fine 
of not more than $2,500, or by imprisonment for not more than one year, 
or both.
    (c) Employees are encouraged to review regulations contained in 30 
CFR part 706 which pertain to the prohibitions restated in this section.



Sec. 20.403  Certificates of disclaimer.

    (a) Each employee of the U.S. Geological Survey, Bureau of Land 
Management, Minerals Management Service, and Office of Surface Mining 
Reclamation and Enforcement shall sign a certificate of disclaimer upon 
entrance to or upon transfer to a position within any of these bureaus. 
The employee's signature will indicate that he or she:
    (1) Is aware of the specific restrictions pertinent to his or her 
employment; and
    (2) Is in compliance with such restrictions.
    (b) If an employee is unable to sign the certificate, he or she must 
submit a statement of facts to the appropriate ethics counselor for 
review and appropriate action.
    (c) Signed certificates of disclaimer shall be filed and maintained 
by the employee's deputy ethics counselor.



               Subpart E_Other Employee Conduct Provisions



Sec. 20.501  General policy.

    Employees of the Department are expected to maintain especially high

[[Page 412]]

standards of honesty, integrity, impartiality, and conduct to ensure the 
proper performance of Government business and the continual trust and 
confidence of citizens in their Government. Employees are expected to 
comply with all Federal statutes, Executive Orders, Office of Government 
Ethics and Office of Personnel Management regulations, and Departmental 
regulations. The conduct of employees should reflect the qualities of 
courtesy, consideration, loyalty to the United States, a deep sense of 
responsibility for the public trust, promptness in dealing with and 
serving the public, and a standard of personal behavior which will be a 
credit to the individual and the Department. These principles apply to 
official conduct and to private conduct which affects in any way the 
ability of the employee or the Department to effectively accomplish the 
work of the Department.



Sec. 20.502  Conformance with policy and subordination to authority.

    Employees are required to carry out the announced policies and 
programs of the Department and to obey proper requests and directions or 
supervisors. While policies related to one's work are under 
consideration employees may, and are expected to, express their 
professional opinions and points of view. Once a decision has been 
rendered by those in authority, each employee is expected to comply with 
the decision and work to ensure the success of programs or issues 
affected by the decision. An employee is subject to appropriate 
disciplinary action, including removal, if he or she fails to:
    (a) Comply with any lawful regulations, orders, or policies; or
    (b) Obey the proper requests of supervisors having responsibility 
for his or her performance.



Sec. 20.503  Scope of authority.

    Employes shall not engage in any conduct or activity which is in 
excess of his or her authority, or is otherwise contrary to any law or 
announced Departmental policy.



Sec. 20.504  Selling or soliciting.

    Employees and other persons are prohibited from selling or 
soliciting for personal gain within any building or on any lands 
occupied or used by the Department. Exception is granted for Department-
authorized operations, including, but not limited to, the Interior 
Department Recreation Association, the Indian Arts and Crafts store, and 
for cafeteria, newsstand, snack bar and vending machine operations which 
are authorized by the Department of the benefit of employees or the 
public.



Sec. 20.505  Habitual use of intoxicants.

    An employee who habitually uses intoxicants to excess may be subject 
to removal (5 U.S.C. 7352).



Sec. 20.506  Appropriations, legislation and lobbying.

    (a) Unless expressly authorized by Congress, employees are 
prohibited from using any part of the money appropriated by any 
enactment of Congress to pay for any personal service, advertisement, 
telegram, telephone, letter, printed or written matter, or other device, 
intended or designed to influence in any manner a Member of Congress, to 
favor or oppose, by vote or otherwise, any legislation or appropriation 
by Congress, whether before or after the introduction of any bill or 
resolution proposing such legislation or appropriation; this prohibition 
does not prevent any employee from communicating to Members of Congress 
on the request of any Member or through proper official channels, 
requests for legislation or appropriations which they deem necessary for 
the efficient conduct of the public business (18 U.S.C. 1913).
    (b) When acting in their official capacity, employees are required 
to refrain from promoting or opposing legislation relating to programs 
of the Department without the official sanction of the property 
Departmental authority.
    (c) The rights of employees, individually or collectively, to 
otherwise petition Congress, or to a Committee or Member thereof, shall 
not be interfered with or denied (5 U.S.C. 7211).



Sec. 20.507  Unlawful organizations.

    An employee may not advocate the violent overthrow of our 
constitutional

[[Page 413]]

form of government nor may an employee be a member of an organization 
that he or she knows advocates the violent overthrow of our 
constitutional form of government (5 U.S.C. 7311).



Sec. 20.508  Notary.

    An employee is prohibited from charging fees for performance of any 
notarial act for any employee of the Federal Government who is acting in 
his or her official capacity, or for any person during the hours of such 
notary's service to the Government (E.O. 977, Nov. 24, 1908).



Sec. 20.509  Penalty mail and official stationery.

    (a) An employee is prohibited from using any official envelope, 
label, or indorsement authorized by law, to avoid the payment of postage 
or registry fee on his or her private letter, packet, package, or other 
matter in the mail (18 U.S.C. 1719).
    (b) Official Government envelopes and official letterhead stationery 
are Government property that may only be used for authorized purposes. 
Employees' use of Government envelopes to mail their own personal job 
applications is not authorized.



Sec. 20.510  Fraud or false statements in a Government matter.

    An employees shall not, in any matter within the jurisdiction of any 
department or agency of the United States, knowingly or willfully 
falsify, conceal or cover up by any trick, scheme, or device a material 
fact, or make any false, fictitious, fraudulent statements or 
representations, or make or use any false writing or document knowing 
the same to contain any false, fictitious or fraudulent statement or 
entry (18 U.S.C. 1001). Special attention is required in the 
certification of time and attendance reports, applications for 
employment, request for travel reimbursement, and purchase orders and 
receiving forms.



Sec. 20.511  Carrying of firearms.

    Employees, except those specifically designated to perform 
enforcement, police or other official duties requiring the use of 
firearms, are prohibited from carrying or having in their possession 
firearms on property under the control of the Secretary. Employees who 
are officially stationed in parks, refuges, Indian reservations, other 
Tribal lands or other wilderness areas which are known to be inhabited 
by wild animals, are permitted, when on those lands, to carry and use 
firearms for personal protection as permitted by existing policy or as 
authorized by the park, refuge or area supervisor. Notwithstanding this 
paragraph, employees who are not on official duty may carry firearms on 
Departmental lands under the same conditions and in accordance with 
procedures and authorizations established for members of the general 
public.



Sec. 20.512  Labor practices.

    Employees are prohibited from striking against the Government of the 
United States (5 U.S.C. 7311). Additional information regarding 
affiliation with employee organizations is found in the Department 
Manual, Part 370, Chapter 711, Labor Management Relations.



               Subpart F_Disciplinary and Remedial Actions



Sec. 20.601  General.

    This subpart deals with disciplinary actions and remedial actions 
for violations, or potential violations, of conflict of interest laws or 
of the regulations in this part or in 5 CFR part 2635 or 5 CFR part 
3501. Disciplinary action may include oral or written warning or 
admonishment, reprimand, suspension, reduction in grade or pay, removal 
from position or removal from office. Such action shall be taken in 
accordance with Departmental policies and procedures, applicable 
statutes, Executive Orders, regulations, and any applicable collective 
bargaining agreement provisions. Disciplinary action may be imposed 
independently from and without prior application of remedial actions, 
including those remedial actions listed in Sec. 20.602.



Sec. 20.602  Remedial action.

    (a)(1) Remedial action should normally be considered only after 
attempts to obtain voluntary resolution

[[Page 414]]

have failed. Voluntary resolution may include:
    (i) Voluntary divestiture;
    (ii) Voluntary conversion to securities which are not prohibited, or 
the holding of which would not violate law or regulation; or
    (iii) Voluntary reassignment to another position.
    (2) If the bureau Ethics Counselor decides that remedial action is 
required, such action shall be initiated within a reasonable time, 
usually 90 days.
    (b) Remedial action may include:
    (1) Reassignment or disqualification of the employee. It may be 
possible for the employee to be reassigned to another job, or to be 
disqualified from performing particular duties. Although the number of 
cases where this remedy can be used should be rare, the possibility 
should be explored before divestiture of an interest is ordered.
    (2) Waiver. (i) The Designated Agency Ethics Official (DAEO) is 
authorized to make a written advance determination pursuant to 18 U.S.C. 
208(b)(1) waiving the prohibitions of 18 U.S.C. 208(a) for any 
Department employee except the Secretary and those employees in the same 
organization as the DEAO, i.e., the Department's Office of Policy, 
Management and Budget. The Secretary or the Deputy Secretary shall issue 
individual waivers pursuant to 18 U.S.C. 208(b)(1) for employees in the 
Office of Policy, Management and Budget.
    (ii) In the case of a special Government employee serving on an 
advisory committee within the meaning of the Federal Advisory Committee 
Act, 5 U.S.C. App. (including an individual being considered for an 
appointment to such a position), the DAEO, after review of the financial 
disclosure report filed by the individual pursuant to the Ethics in 
Government Act of 1978, 5 U.S.C. App., is authorized to certify in 
writing that the need for the individual's services outweighs the 
potential for a conflict of interest created by the financial interest 
involved.
    (iii) The DAEO may grant a waiver under 5 CFR 3501.103(e) from the 
regulatory restrictions at 5 CFR 3501.103 (b) and (c).
    (3) Divestiture of the interest. An employee may be required to 
divest an interest, including outside employment, that is prohibited by 
law or regulation. Divestiture of the interest shall be ordered in all 
situations where it is determined by the appropriate official that there 
is no other satisfactory remedy. Evidence of divestiture must be 
provided in the form of broker's sale receipt or other appropriate 
document.

    Note to paragraph (b)(3): It may be possible in certain cases for 
the tax consequences of divestiture to be delayed, if the interest is 
sold pursuant to a certificate of divestiture issued before the sale by 
the Director, U.S. Office of Government Ethics. See 5 CFR part 2634, 
subpart J.

    (c) Authority to order remedial action. (1) Each bureau Ethics 
Counselor is authorized to order remedial actions within his or her 
bureau. The advice of the appropriate Regional Solicitor, the Associate 
Solicitor--Division of General Law, or the Designated Agency Ethics 
Official or his or her designee may be sought before such an order is 
issued. This authority to order remedial action may not be redelegated.
    (2) The Deputy Assistant Secretary for Policy is authorized to order 
remedial actions for employees within the Office of the Secretary, 
except that the Secretary shall order remedial actions in situations 
involving the Deputy Secretary.
    (d) An employee who fails to comply with an order for remedial 
action is considered to be in violation of this part and shall be 
subject to disciplinary action.



Sec. 20.603  Appealing an order for remedial action.

    (a) When and how to appeal. An employee has the right to appeal an 
order for remedial action under Sec. 20.602, and shall have 30 days 
from the date of the remedial action order to exercise this right before 
any disciplinary action may be initiated. For appeals of remedial orders 
issued under Sec. 20.602, the procedures described in 370 DM 771 may 
not be used in lieu of or in addition to those of this section. Each 
appeal shall be in writing and shall contain:
    (1) The basis for appeal;
    (2) Fact(s) supporting the basis; and
    (3) The telephone number where appellant can be reached to discuss 
facts pertinent to the appeal.

[[Page 415]]

    (b) Where to appeal. (1) Orders for remedial action issued by an 
Ethics Counselor may be appealed to the Deputy Secretary, whose decision 
shall be final.
    (2) Orders for remedial action issued by the Deputy Secretary may be 
appealed to the Secretary, whose decision shall be final.
    (c) Review Board analysis and recommendations. (1)(i) Each appeal 
shall be considered by a Review Board consisting of:
    (A) A program Assistant Secretary selected by the Designated Agency 
Ethics Official;
    (B) The Associate Solicitor or the Deputy Associate Solicitor, 
Division of General law; and
    (C) The Director or Deputy Director of the Departmental Office of 
Personnel within the Department.
    (ii) Assistant Secretaries may delegate authority to serve on the 
Review Board to a Deputy Assistant Secretary who has not been involved, 
and who has not advised or made a decision on the issue or on the order 
for remedial action.
    (2) The Deputy Agency Ethics Official or his or her assistant shall 
serve as secretary to the Review Board, except for cases in which he or 
she has previously participated. In such cases, the Review Board shall 
designate an employee who has not previously been involved with the case 
to serve as secretary.
    (3) The Review Board members shall: (i) Obtain from the appropriate 
ethics counselor a full statement of actions and considerations which 
led to the order for remedial action including any supporting 
documentation or files used by the Ethics Counselor.
    (ii) Obtain from the employee all facts, information, exhibits for 
documents which he or she feels should be considered before a final 
decision is made.
    (iii) The secretary to the Review Board shall prepare a summary of 
the facts pertinent to the appeal. When appropriate, the Review Board 
may provide for personal appearance by the appellant before the Review 
Board if necessary to ascertain the circumstances concerning the appeal 
or may designate the Review Board secretary or another employee to 
conduct further fact finding, or may do both. Fact finding procedures 
shall be carried out by a person(s) who:
    (A) Has not been involved in the matter being appealed; and
    (B) Does not occupy a position subordinate to any official who 
recommended, advised, made a decision on, or who otherwise is or was 
involved in, the matter being appealed.
    (iv) Establish a file containing all documents related to the 
appeal, which shall be available to the appellant and his or her 
representative.
    (v) Provide to the official who will decide the appeal an advisory 
recommendation on the appeal. The views of dissenting members of the 
Review Board shall also be provided.
    (d) Assurances to the appellant. Each appellant is assured of:
    (1) Freedom from restraint, interference, coercion, discrimination 
or reprisal in presenting an appeal;
    (2) A reasonable amount of official time to present the appeal if 
the employee is otherwise in a duty status;
    (3) The right to obtain counseling from an ethics counselor of the 
Department; and
    (4) The right to be accompanied, represented, and advised by a 
representative of his or her own choosing, except that the Review Board 
may disallow the choice of an individual as a representative if such 
representation would result in a conflict of interest or position, would 
conflict with the priority needs of the Department, or which would give 
rise to unreasonable costs to the Government.
    (e) Assurances to the appellant's representative. Each person chosen 
to represent an appellant is assured of:
    (1) Freedom from restraint, interference, coercion, discrimination 
or reprisal; and
    (2) A reasonable amount of official time to present the appeal if 
the representative is an employee of the Department and is otherwise in 
a duty status.

[[Page 416]]



PART 21_OCCUPANCY OF CABIN SITES ON PUBLIC CONSERVATION AND RECREATION AREAS--Table of Contents



Sec.
21.1 Purpose.
21.2 Scope of regulations.
21.3 Definitions.
21.4 Occupancy under permit of privately owned cabins on recreation 
          areas and conservation areas.
21.5 Occupancy under permit of Government-owned cabins on public 
          recreation and conservation areas.
21.6 Cabin site occupancy where a recreation or conservation area has 
          been leased to, or turned over to, another Federal or non-
          Federal public agency for administration.
21.7 Occupancy by trespassers.
21.8 Appeals.

    Authority: Sec. 10, 32 Stat. 390; 43 U.S.C. 373; 52 Stat. 609, as 
amended, 43 U.S.C. 682; R.S. 2478, 43 U.S.C. 1201; 44 Stat. 471, as 
amended, 43 U.S.C. 869; 76 Stat. 653, 16 U.S.C. 460; 48 Stat. 402, as 
amended, 16 U.S.C. 664; 33 Stat. 614, 16 U.S.C. 686; 45 Stat. 448, 16 
U.S.C. 690; 43 Stat. 651, 16 U.S.C. 725; 48 Stat. 1270, 43 U.S.C. 315; 
39 Stat. 535, 16 U.S.C. 3.

    Source: 32 FR 8361, June 10, 1967, unless otherwise noted.



Sec. 21.1  Purpose.

    This part establishes (a) when, and by what standards, use of 
conservation and recreation areas under private cabin permits must be 
modified or discontinued so as to allow the public use of such areas and 
(b) the procedures for renewing, extending, phasing out, or terminating 
private cabin permits. No current permits or any valid existing rights, 
are, per se, canceled by the provisions of this part. However, permits 
may be canceled for cause, or pursuant to termination provisions within 
the permit itself.



Sec. 21.2  Scope of regulations.

    The provisions of this part apply to all recreation or conservation 
areas administered by the Department of the Interior, including 
recreation or conservation areas leased or transferred for 
administration to other Federal and non-Federal public agencies, 
wherever the Department of the Interior retains jurisdiction over the 
issuance of cabin site permits by such other agencies. The provisions of 
this part do not modify or cancel any existing arrangement whereby the 
Department of the Interior or bureau or office thereof has leased, or 
turned over for administration, a public recreation or conservation area 
to another Federal or non-Federal public agency. The provisions of this 
part will also provide policy guidelines for the Departmental handling 
of assignments, amendments, or modifications of existing permits or 
agreements, but do not apply to areas transferred by deed where the 
United States retains a reversionary interest, nor to areas of the 
National Park System other than those where private cabin sites are 
located.
    (a) The policies set out in this part shall not affect occupancy by 
private persons who have private rights, or rights of occupancy 
adjudicated or confirmed by court action, statute, or pursuant to a 
contract by which they conveyed to the Government the land on which a 
cabin or other substantial improvement is located.
    (b) The policies set out in this part shall not apply to any 
concession contract or to any other permit or occupancy primarily 
granted to serve public rather than private or individual purposes--such 
as, permits granted to groups who assist in maintaining historic trails, 
or permits for youth and church group camp facilities, etc.
    (c) The regulations in this part shall not supersede or 
substantially contravene the implementation of the Lower Colorado River 
Land Use Plan.



Sec. 21.3  Definitions.

    (a) Public recreation area or recreation area means any land, title 
to which is in the United States and under the administration or 
jurisdiction of the Department of the Interior that is suitable for 
recreational purposes, including all such areas of the National Park 
System not excepted by Sec. 21.2, Bureau of Reclamation Reservoir 
areas, and any other areas dedicated to or administered by the 
Department for public recreational use.
    (b) Conservation area means any land, title to which is in the 
United States and under the administration or jurisdiction of the 
Department of the Interior that is designated for fish, wildlife,

[[Page 417]]

or other conservation purposes, including all such areas of the National 
Wildlife Refuge Systems, National Fish Hatchery Systems, and any other 
such areas administered by the U.S. Fish and Wildlife Service; also, 
land administered by the Bureau of Land Management and suitable for 
conservation or protection of fish or wildlife.
    (c) Permit means any lease, license, or other contract whereby a 
public recreation or conservation area is made available, in whole or 
part, to an individual or group for recreational purposes for a 
stipulated period of time, but does not include leases or transfers to 
other Federal or non-Federal public agencies.
    (d) Cabin site means any area within a public recreation or 
conservation area whose occupancy and use is granted to an individual or 
group for a period of time by permit.
    (e) Substantial improvement means any building, structure, or other 
relatively permanent facility or improvement affixed to a cabin site, 
utilized for human occupancy or related purposes, and costing or worth 
$1,000 or more. It does not include trailers or similar removable 
facilities.
    (f) Investment in a substantial improvement refers to the basic 
expenditure of moneys or property in kind in connection with a 
particular improvement. Thus, for example, where property is conveyed by 
testamentary or inter vivos gift, the donee will be seen only as 
occupying the position of the donor with respect to the time and amount 
of the investment since it was the donor who made the investment.
    (g) Amortization is the process whereby the investor in a 
substantial improvement derives sufficient use and/or economic benefit 
from the improvement over a period of time as to reasonably compensate 
for his investment.
    (h) Trespasser means any person who is occupying land in a public 
recreation or conservation area without a valid permit.
    (i) Authorized Officer means any person or persons designated by the 
head of any bureau or office of the Department with administrative 
jurisdiction over a particular conservation or recreation area, to make 
determinations and take other actions, consistent with the regulations 
in this part with respect to such area.



Sec. 21.4  Occupancy under permit of privately owned cabins on recreation areas and conservation areas.

    (a) In any areas where the Authorized Officer determines that the 
recreational requirements of the general public are limited, and is an 
area where private cabin site use has heretofore been permitted, he may 
extend or renew permits. Each such existing permit and any extension or 
renewal thereof will be:
    (1) Reviewed at least once in every 5-year period to determine that 
the continued use of the individual cabin site is not inconsistent with 
the needs of the general public for use of the area. In periodically 
reviewing whether the existence of private cabin sites conflicts with 
the best public use of an area, consideration shall be given to (i) 
existing and projected public need for the area, (ii) compatibility 
between public uses and private cabin sites, (iii) development potential 
and plans for the area, and (iv) other relevant factors.
    (2) Whenever the Authorized Officer determines that the public need 
for use of a recreation or conservation area has grown to a point where 
continued private cabin site use is no longer in the public interest, 
the procedures set forth in paragraph (b) of this section will be 
invoked to phase out existing permits by reducing and eliminating 
renewals, or extensions, consistent with protection of legitimate 
investment in improvements. These determinations and the reasons 
therefor shall be published in the Federal Register, together with such 
other forms of public notice as may be appropriate and necessary as 
determined by the Authorized Officer.
    (3) Except as otherwise provided in an existing permit, no 
substantial improvement may hereafter be placed on any cabin site under 
permit without the prior approval of the Authorized Officer, and on such 
terms as the Authorized Officer may provide, consistent with public 
need. All renewed or extended permits shall contain this provision. Any 
such provision shall expressly state that the permission to

[[Page 418]]

place a substantial improvement on the site is a limited license subject 
to public need for the area and does not give the owner of the 
improvement any interest in the land or any special rights or equities, 
other than the right to remove the improvement at any time, subject to 
the land being left in reasonably unimpaired condition. This provision 
shall expressly stipulate that the owner shall have as a time period 
within which to amortize his investment in a substantial improvement 
placed on the site after the date of the regulations in this part, only 
the period of his existing permit, together with such extensions of his 
permit as may be granted consistent with the regulations in this part.
    (b) Whenever the Authorized Officer determines, pursuant to 
paragraph (a)(2) of this section that the needs of the general public 
for a particular public recreation or conservation area are sufficient 
to be inconsistent with further use of that area for private cabin 
sites, no further extension, or renewals of permits for any individual 
site shall, except as otherwise required by law, be granted for any 
period extending more than 5 years after the effective date of that 
determination: Provided, however, That, except as otherwise required by 
law, if an investment was made in a substantial improvement upon a site 
before the effective date of this part, the extension or renewal of the 
permit for such site shall be made for a period sufficient to permit 20 
years amortization of the investment from the date of the investment in 
the improvement upon the site, unless the Authorized Officer finds that 
the needs of the general public for that site require that the extension 
or renewal be for a lesser period. Thus, for example, if a permit for 
the site is purchased before the effective date of the regulations in 
this part with the substantial improvement then in place, for a 
consideration of $1,000 or more, such amortization period runs from the 
purchase date, and is not affected, in any event, by the date of the 
determination under paragraph (a) of this section. The amortization 
period for any investment in a substantial improvement on or after the 
effective date of the regulations in this part is covered by paragraph 
(a)(3) of this section, this paragraph (b), and paragraph (b)(5) of this 
section.
    (1) Any permit, in an area required for general public recreation or 
conservation use, that expires prior to 5 years after the determination 
described in this paragraph (b), may, if otherwise authorized by law, be 
extended to the end of such 5 years if the Authorized Officer determines 
that such extension is necessary to the fair and efficient 
administration of this part.
    (2) Any renewal or extension of a permit pursuant to this part shall 
be subject to the condition that the occupant maintain the site and the 
improvements thereon in a good and serviceable condition, ordinary wear 
and tear excluded.
    (3) Any renewal or extension of a permit shall expressly state its 
termination date and that there will be no extension or renewal 
thereafter, except as provided by this part. Permits shall expressly 
state that they grant no vested property right but afford only a limited 
license to occupy the land, pending a greater public use.
    (4) Upon termination of occupancy under a permit, its renewal or 
extension, the permittee shall remove his improvements from the site 
within 90 days from the date of termination, and the land shall be left 
in reasonably unimpaired condition and as near to its original 
undisturbed condition as possible. Any property not so removed shall 
become the property of the United States or may be moved off the site, 
at the cost of the permittee. Any renewal, or extension, of a permit 
shall state these requirements.
    (5) Voluntary and involuntary transfers of cabin site permits, 
including by sale, devise, inheritance, or otherwise, may be permitted, 
subject to approval by the Authorized Officer, subject to the terms, 
conditions, and restrictions in the permit. No such transfer shall 
operate to extend the terms of a permit. A transfer after the effective 
date of the regulations in this part shall give the transferee no rights 
in addition to those which the transferor had. Where any transfer of a 
cabin site permit is approved, the approval shall state in writing the 
requirements of

[[Page 419]]

this paragraph, and include the statement that the amortization period 
for any substantial improvement located on the site shall be limited to 
the period to which the transferor would have been entitled under the 
regulations in this part.
    (6) Nonuse of a site for a period of more than 2 consecutive 
calendar years shall terminate the permit without right of renewal 
(subject to the specific terms of the permit): Provided, however, That 
where the nonuse is the result of the death, illness, or military 
service of the permittee the Authorized Officer may waive such nonuse. 
In such case, sale or transfer of the improvement may be made for the 
unexpired portion of the permit and subject to the provisions for 
amortization set forth in this section. The Authorized Officer may make 
exceptions to this termination provision in any case where he determines 
that the needs of the general public so require (see introductory text 
of this paragraph (b)). All permits renewed, or extended after the 
effective date of this part shall state the requirements of this 
paragraph.



Sec. 21.5  Occupancy under permit of Government-owned cabins on public recreation and conservation areas.

    (a) Those permittees who occupy Government-owned cabins, including 
those whose permits currently have expired, but previously have been 
renewed on a year-to-year basis, may have their permits renewed up to 
July 1, 1969. After that date, the permits shall not be renewed and 
shall be terminated finally except upon a determination by the 
Authorized Officer that a renewal or extension is fully consistent with 
the public use of the area.
    (b) The provisions for amortization of substantial improvements do 
not apply to this type of occupancy.



Sec. 21.6  Cabin site occupancy where a recreation or conservation 

area has been leased to, or turned over to, another Federal or non-Federal public agency for 
          administration.

    (a) After the effective date of this part, any agreement whereby a 
recreation or conservation area is leased or turned over to another 
Federal or non-Federal public agency for administration, shall include 
the requirement that any permits to individuals, groups or others issued 
or extended by another Federal or non-Federal public agency to whom an 
area has been leased or transferred for administration, shall comply 
with, and set forth on the face of the permit, the requirements stated 
in this part. Similar requirements shall be applied in situations where 
an existing agreement reserves such authority to this Department.
    (b) All such arrangements between another public agency and a 
permittee (see Sec. 21.2) shall be reviewed by the Authorized Officer 
to assure full compliance with those provisions of the permit which are 
designed to assure performance in the best interests of the general 
public.
    (c) Renewals, extensions, or new leases or transfers to other 
Federal, State, or local agencies for administration of public 
recreation areas, shall be granted only pursuant to the policies set 
forth in this part, and only upon an affirmative finding by the 
Authorized Officer that they are fully consistent with present and 
future public uses. All applicable safeguards set forth in this part, 
including the protection of future public uses, shall be expressly 
incorporated into such leases or transfers.



Sec. 21.7  Occupancy by trespassers.

    Occupants of cabin sites who do not hold a valid permit for the 
occupancy or use of the site, shall be required to surrender occupancy, 
failing which legal action shall be taken. Nothing herein shall grant 
any rights to a trespasser.



Sec. 21.8  Appeals.

    Any determination made pursuant to any of the provisions of this 
part may be appealed to the Director, Office of Hearings and Appeals, in 
accordance with the general rules set forth in subpart B of part 4 of 
this title and the special procedural rules in subpart G of part 4 of 
this title, applicable to proceedings in appeals cases which do not lie 
within the appellate jurisdiction of an established Appeals Board of the 
Office of Hearings and Appeals.

[36 FR 7206, Apr. 15, 1971]

[[Page 420]]



PART 22_ADMINISTRATIVE CLAIMS UNDER THE FEDERAL TORT CLAIMS ACT AND INDEMNIFICATION OF DEPARTMENT OF THE INTERIOR EMPLOYEES--Table of Contents



                  Subpart A_Administrative Tort Claims

Sec.
22.1 Purpose.
22.2 Provisions of law and regulations thereunder.
22.3 Procedure for filing claims.
22.4 Denial of claims.
22.5 Payment of claims.

    Subpart B_Indemnification of Department of the Interior Employees

22.6 Policy.

    Authority: 28 U.S.C. 2671-2680; 5 U.S.C. 301.

    Source: 32 FR 6683, May 2, 1967, unless otherwise noted.



                  Subpart A_Administrative Tort Claims



Sec. 22.1  Purpose.

    (a) The purpose of this part is to establish procedures for the 
filing and settlement of claims accruing on and after January 18, 1967, 
under the Federal Tort Claims Act (in part, 28 U.S.C. 2401(b), 2671-
2680, as amended by Pub. L. 89-506, 80 Stat. 306).
    (b) [Reserved]

[32 FR 6683, May 2, 1967, as amended at 47 FR 38329, Aug. 31, 1982]



Sec. 22.2  Provisions of law and regulations thereunder.

    (a) Section 2672 of title 28 U.S. Code, as above amended, provides 
that:

    The head of each Federal agency or his designee, in accordance with 
regulations prescribed by the Attorney General, may consider, ascertain, 
adjust, determine, compromise, and settle any claim for injury or death 
caused by the negligent or wrongful act or omission of any employee of 
the agency while acting within the scope of his office or employment, 
under circumstances where the United States, if a private person, would 
be liable to the claimant in accordance with the law of the place where 
the act or omission occurred: Provided, That any award, compromise, or 
settlement in excess of $25,000 shall be effected only with the prior 
written approval of the Attorney General or his designee.
    Subject to the provisions of this title relating to civil actions on 
tort claims against the United States, any such award, compromise, 
settlement, or determination shall be final and conclusive on all 
officers of the Government, except when procured by means of fraud.
    Any award, compromise, or settlement in an amount of $2,500 or less 
made pursuant to this section shall be paid by the head of the Federal 
agency concerned out of appropriations available to that agency. Payment 
of any award, compromise, or settlement in an amount in excess of $2,500 
made pursuant to this section or made by the Attorney General in any 
amount pursuant to section 2677 of this title shall be paid in a manner 
similar to judgments and compromises in like causes and appropriations 
or funds available for the payment of such judgments and compromises are 
hereby made available for the payment of awards, compromises, or 
settlements under this chapter.
    The acceptance by the claimant of any such award, compromise, or 
settlement shall be final and conclusive on the claimant, and shall 
constitute a complete release of any claim against the United States and 
against the employee of the Government whose act or omission gave rise 
to the claim, by reason of the same subject matter.

    (b) Subsection (a) of section 2675 of said title 28 provides that:

    An action shall not be instituted upon a claim against the United 
States for money damages for injury or death caused by the negligent or 
wrongful act or omission of any employee of the Government while acting 
within the scope of his office or employment, unless the claimant shall 
have first presented the claim to the appropriate Federal agency and his 
claim shall have been finally denied by the agency in writing and sent 
by certified or registered mail. The failure of any agency to make final 
disposition of a claim within 6 months after it is filed shall, at the 
option of the claimant any time thereafter, be deemed a final denial of 
the claim for purposes of this section. The provisions of this 
subsection shall not apply to such claims as may be asserted under the 
Federal Rules of Civil Procedure by third party complaint, cross-claim, 
or counter-claim.

    (c) Section 2678 of said title 28, as amended, provides that no 
attorney shall charge fees in excess of 25 percent of a judgment or 
settlement after litigation, or in excess of 20 percent of 
administrative settlements.
    (d) Subsection (b) of section 2679 of said title 28 provides that 
tort remedies against the United States resulting from the operation of 
any employee of

[[Page 421]]

the Government of any motor vehicle while acting within the scope of his 
employment shall be exclusive of any other civil action or proceeding 
against the employee or his estate.
    (e) Subsection (b) of section 2401 of said title 28 provides:

    A tort claim against the United States shall be forever barred 
unless it is presented in writing to the appropriate Federal agency 
within 2 years after such claim accrues or unless action is begun within 
6 months after the date of mailing, by certified or registered mail, of 
notice of final denial of the claim by the agency to which it was 
presented.

    (f) The Federal Tort Claims Act, as amended, shall apply to claims 
accruing 6 months or more after date of its enactment (date of 
enactment, July 18, 1966).
    (g) Pursuant to section 2672 of title 28, United States Code, as 
amended, the Attorney General has issued regulations (herein referred to 
as ``the Regulations''; 28 CFR part 14), prescribing standards and 
procedures for settlement of tort claims (31 FR 16616). The officers to 
whom authority is delegated to settle tort claims shall follow and be 
guided by such Regulations (28 CFR part 14).



Sec. 22.3  Procedure for filing claims.

    (a) The procedure for filing and the contents of claims shall be 
pursuant to Sec. Sec. 14.2, 14.3 and 14.4 of the regulations (28 CFR 
part 14).
    (b) Claims shall be filed directly with the local field office of 
the Bureau or Office of the Department out of whose activities the 
accident or incident occurred.
    (c) Upon receipt of a claim, the time and date of receipt shall be 
recorded. The claim shall be forwarded with the investigative file 
immediately to the appropriate Associate, Regional, or Field Solicitor 
for determination.

(5 U.S.C. 301, 5 U.S.C. 552)

[40 FR 53591, Nov. 19, 1975]



Sec. 22.4  Denial of claims.

    Denial of a claim shall be communicated as provided by Sec. 14.9 of 
the regulations (28 CFR part 14).



Sec. 22.5  Payment of claims.

    (a) When an award of $2,500 or less is made, the voucher signed by 
the claimant shall be transmitted for payment to the appropriate Bureau 
or Office of the Department. When an award over $2,500 is made, 
transmittal for payment will be made as prescribed by Sec. 14.10 of the 
regulations (28 CFR part 14).
    (b) Prior to payment appropriate releases shall be obtained as 
provided in said section.



    Subpart B_Indemnification of Department of the Interior Employees



Sec. 22.6  Policy.

    (a) The Department of the Interior may indemnify a Department 
employee, who is personally named as a defendant in any civil suit in 
state or federal court or an arbitration proceeding or other proceeding 
seeking damages against a Department employee personally, for any 
verdict, judgment, or other monetary award which is rendered against 
such employee, provided that the conduct giving rise to the verdict, 
judgment, or award was taken within the scope of his or her employment 
and that such indemnification is in the interest of the Department of 
the Interior as determined by the Secretary or his designee.
    (b) The Department of the Interior may settle or compromise a 
personal damage claim against a Department employee by the payment of 
available funds, at any time, provided the alleged conduct giving rise 
to the personal damage claim was taken within the employee's scope of 
employment and that such settlement or compromise is in the interest of 
the Department of the Interior as determined by the Secretary or his 
designee.
    (c) Absent exceptional circumstances as determined by the Secretary 
or his designee, the Department will not entertain a request either to 
agree to indemnify or to settle a personal damage claim before entry of 
an adverse verdict, judgment, or award.
    (d) A Department employee may request indemnification to satisfy a 
verdict, judgment, or award entered

[[Page 422]]

against the employee. The employee shall submit a written request, with 
appropriate documentation including copies of the verdict, judgment, 
award, or settlement proposal, in a timely manner to the Solicitor, who 
shall make a recommended disposition of the request. Where appropriate, 
the Department shall seek the views of the Department of Justice. The 
Solicitor shall forward the request, the accompanying documentation, and 
the Solicitor's recommendation to the Secretary or his designee for 
decision.
    (e) Any payment under this section either to idemnify a Department 
of the Interior employee or to settle a personal damage claim shall be 
contingent upon the availability of appropriated funds of the Department 
of the Interior.

[55 FR 4610, Feb. 9, 1990]



PART 23_SURFACE EXPLORATION, MINING AND RECLAMATION OF LANDS--Table of Contents



Sec.
23.1 Purpose.
23.2 Scope.
23.3 Definitions.
23.4 Application for permission to conduct exploration operations.
23.5 Technical examination of prospective surface exploration and mining 
          operations.
23.6 Basis for denial of a permit, lease, or contract.
23.7 Approval of exploration plan.
23.8 Approval of mining plan.
23.9 Performance bond.
23.10 Reports: Inspection.
23.11 Notice of noncompliance: Revocation.
23.12 Appeals.
23.13 Consultation.

    Authority: Sec. 32, 41 Stat. 450, as amended; 30 U.S.C. 189; sec. 5, 
44 Stat. 1058; 30 U.S.C. 285; sec. 10, 61 Stat. 915; 30 U.S.C. 359; and 
sec. 2, 48 Stat. 1270; 43 U.S.C. 315.

    Source: 34 FR 852, Jan. 18, 1969, unless otherwise noted.



Sec. 23.1  Purpose.

    It is the policy of this Department to encourage the development of 
the mineral resources under its jurisdiction where mining is authorized. 
However, the public interest requires that, with respect to the 
exploration for, and the surface mining of, such minerals, adequate 
measures be taken to avoid, minimize, or correct damage to the 
environment--land, water, and air--and to avoid, minimize, or correct 
hazards to the public health and safety. The regulations in this part 
prescribe procedures to that end.



Sec. 23.2  Scope.

    (a) Except as provided in paragraph (b) of this section, the 
regulations in this part provide for the protection and conservation of 
nonmineral resources during operations for the discovery, development, 
surface mining, and onsite processing of minerals under permits, leases, 
or contracts issued pursuant to: The Mineral Leasing Act of February 25, 
1920, as amended (30 U.S.C. 181-287); the Mineral Leasing Act for 
Acquired Lands (30 U.S.C. 251-359); and title 23, United States Code, 
section 317, relating to appropriation for highway purposes of lands 
owned by the United States.
    (b) The regulations in this part do not cover the exploration for 
oil and gas or the issuance of leases, or operations thereunder, for oil 
and gas under the mineral leasing acts, which are covered by regulations 
in subpart 3107 and part 3120 of this title and 30 CFR part 221; neither 
do they cover minerals underlying Indian tribal or allotted lanes, which 
are subject to regulations in title 25 CFR, nor minerals subject to the 
general mining laws (30 U.S.C. 21 through 54); nor minerals under the 
Materials Act; nor minerals underlying lands, the surface of which is 
not owned by the U.S. Government; nor minerals or operations subject to 
the provisions of 43 CFR subpart 3041.

    Note: See Redesignation Table 2 of 43 CFR part 4000 to End, for 
appropriate sections of former subpart 3107 and part 3120 referred to in 
the above paragraph (b).

    (c) The regulations in this part shall apply only to permits, 
leases, or contracts issued subsequent to the date on which the 
regulations become effective.

[34 FR 852, Jan. 18, 1969, as amended at 37 FR 12801, June 29, 1972; 41 
FR 20273, May 17, 1976; 48 FR 27016, June 10, 1983]

[[Page 423]]



Sec. 23.3  Definitions.

    As used in the regulations in this part:
    (a) Mineral leasing acts means the Mineral Leasing Act of February 
25, 1920, as amended and supplemented (30 U.S.C. 181-287) and the 
Mineral Leasing Act for Acquired Lands (30 U.S.C. 351-359);
    (b) Mining Supervisor means the Area Mining Supervisor, or his 
authorized representative, of the Geological Survey authorized as 
provided in 30 CFR 211.3 and 231.2 to supervise operations on the land 
covered by a permit or lease;
    (c) District manager means the manager of the district office or 
other authorized officer of the Bureau of Land Management having 
administrative jurisdiction of and responsibility for the land covered 
by a permit, lease, contract, application, or offer;
    (d) Overburden means all the earth and other materials which lie 
above a natural deposit of minerals and such earth and other materials 
after removal from their natural state in the process of mining;
    (e) Area of land to be affected or area of land affected means the 
area of land from which overburden is to be or has been removed and upon 
which the overburden or waste is to be or has been deposited, and 
includes all lands affected by the construction of new roads or the 
improvement or use of existing roads to gain access to an operation and 
for haulage;
    (f) Operation means all of the premises, facilities, roads, and 
equipment used in the process of determining the location, composition 
or quality of a mineral deposit, or in developing, extracting, or onsite 
processing of a mineral deposit in a designated area;
    (g) Method of operation means the method or manner by which a cut or 
open pit is made, the overburden is placed or handled, water is 
controlled or affected and other pacts performed by the operator in the 
process of exploring or uncovering and removing or onsite processing of 
a mineral deposit;
    (h) Holder or Operator means the permittee, leasee, or contractor 
designated in a permit, lease, or contract;
    (i) Reclamation means measures undertaken to bring about the 
necessary reconditioning or restoration of land or water that has been 
affected by exploration or mineral development, mining or onsite 
processing operations, and waste disposal, in ways which will prevent or 
control onsite and offsite damage to the environment.

[34 FR 852, Jan. 18, 1969, as amended at 38 FR 10009, Apr. 23, 1973; 48 
FR 27016, June 10, 1983]



Sec. 23.4  Application for permission to conduct exploration operations.

    No person shall, in any manner or by any means which will cause the 
surface of lands to be disturbed, explore, test, or prospect for 
minerals (other than oil and gas) subject to disposition under the 
mineral leasing acts without first filing an application for, and 
obtaining, a permit, lease or contract which authorizes such exploring, 
testing, or prospecting.

[34 FR 852, Jan. 18, 1969, as amended at 48 FR 27016, June 10, 1983]



Sec. 23.5  Technical examination of prospective surface exploration and mining operations.

    (a)(1) In connection with an application for a permit or lease under 
the mineral leasing acts, the district manager shall make, or cause to 
be made, a technical examination of the prospective effects of the 
proposed exploration or surface mining operations upon the environment. 
The technical examination shall take into consideration the need for the 
preservation and protection of other resources, including recreational, 
scenic, historic, and ecological values; the control of erosion, 
flooding, and pollution of water; the isolation of toxic materials; the 
prevention of air pollution; the reclamation by revegetation, 
replacement of soil, or by other means, of lands affected by the 
exploration or mining operations; the prevention of slides; the 
protection of fish and wildlife and their habitat; and the prevention of 
hazards to public health and safety.
    (2) A technical examination of an area should be made with the 
recognition that actual potential mining sites and mining operations 
vary widely with respect to topography, climate, surrounding land uses, 
proximity to densely used areas, and other environmental influences and 
that mining and

[[Page 424]]

reclamation requirements should provide sufficient flexibility to permit 
adjustment to local conditions.
    (b) Based upon the technical examination, the district manager shall 
formulate the general requirements which the applicant must meet for the 
protection of nonmineral resources during the conduct of exploration or 
mining operations and for the reclamation of lands or waters affected by 
exploration or mining operations. The general requirements shall be made 
known in writing to the applicant before the issuance of a permit or 
lease or the making of a contract, and upon acceptance thereof by the 
applicant, shall be incorporated in the permit, lease, or contract. If 
an application or offer is made under the Mineral Leasing Act for 
Acquired Lands and if the lands are under the jurisdiction of an agency 
other than the Department of the Interior, the requirements must 
incorporate provisions prescribed by that agency. If the application or 
offer is made under the Mineral Leasing Act of February 25, 1920, and if 
the lands are under the jurisdiction of an agency other than the 
Department of the Interior, the district manager shall consult 
representatives of the agency administering the land and obtain their 
recommendations for provisions to be incorporated in the general 
requirements. If the district manager does not concur in the 
recommendations, the issues shall be referred for resolution to the 
Under Secretary of the Department of the Interior and the comparable 
officer of the agency submitting the recommendations. In the case of 
disagreement on the issues which are so referred, the Secretary of the 
Interior shall make a determination on the recommendations which shall 
be final and binding.
    (c) In each instance in which an application or offer is made under 
the mineral leasing acts, the mining supervisor shall participate in the 
technical examination and in the formulation of the general 
requirements. If the lands covered by an application or offer are under 
the jurisdiction of a bureau of the Department of the Interior other 
than the Bureau of Land Management, the district manager shall consult 
representatives of the bureau administering the land. If the lands 
covered by the application or offer are under the jurisdiction of an 
agency other than the Department of the Interior and that agency makes a 
technical examination of the type provided for in paragraph (a) of this 
section, district managers and mining supervisors are authorized to 
participate in that examination.
    (d) Whenever it is determined that any part of the area described in 
an application or offer for a permit, lease, or contract is such that 
previous experience under similar conditions has shown that operations 
cannot feasibly be conducted by any known methods or measures to avoid--
    (1) Rock or landslides which would be a hazard to human lives or 
endanger or destroy private or public property; or
    (2) Substantial deposition of sediment and silt into streams, lakes, 
reservoirs; or
    (3) A lowering of water quality below standards established by the 
appropriate State water pollution control agency, or by the Secretary of 
the Interior; or
    (4) A lowering of the quality of waters whose quality exceeds that 
required by the established standards--unless and until it has been 
affirmatively demonstrated to the State water pollution control agency 
and to the Department of the Interior that such lowering of quality is 
necessary to economic and social development and will not preclude any 
assigned uses made of such waters; or
    (5) The destruction of key wildlife habitat or important scenic, 
historical, or other natural or cultural features; the district manager 
may prohibit or otherwise restrict operations on such part of an area.
    (e) If, on the basis of a technical examination, the district 
manager determines that there is a likelihood that there will be a 
lowering of water quality as described in paragraphs (d) (3) and (4) of 
this section caused by the operation, no lease or permit shall be issued 
or contract made until after consultation with the Federal Water 
Pollution Control Administration and a finding by the Administration 
that the proposed operation would not be in

[[Page 425]]

violation of the Federal Water Pollution Control Act, as amended (33 
U.S.C. section 466 et seq.) or of Executive Order No. 11288 (31 FR 
9261). Where a permit or lease is involved the district manager's 
determination shall be made in consultation with the mining supervisor.
    (f) Each notice of a proposed appropriation of a materials site 
filed by the Department of Transportation under 23 U.S.C. 317 shall be 
transmitted to the proper district manager. The district manager shall 
cause a technical examination to be made as provided in paragraph (a) of 
this section and shall formulate the requirements which the State 
highway department or its nominee must meet. If the land covered by the 
proposed appropriation is under the jurisdiction of a bureau of the 
Department other than the Bureau of Land Management, the district 
manager shall consult representatives of the bureau administering the 
land. If the district manager determines, or, in an instance in which 
the land is administered by another bureau, a representative of that 
bureau determines that the proposed appropriation is contrary to the 
public interest or is inconsistent with the purposes for which such land 
or materials are reserved, the district manager shall promptly submit 
the matter to the Secretary of the Interior for his decision. In other 
instances, the district manager shall notify the Department of 
Transportation of the requirements and conditions which the State 
highway department or its nominee must meet.

[34 FR 852, Jan. 18, 1969, as amended at 48 FR 27016, June 10, 1983]



Sec. 23.6  Basis for denial of a permit, lease, or contract.

    An application or offer for a permit, lease, or contract to conduct 
exploratory or extractive operations may be denied any applicant or 
offeror who has forfeited a required bond because of failure to comply 
with an exploration or mining plan. However, a permit, lease, or 
contract may not be denied an applicant or offeror because of the 
forfeiture of a bond if the lands disturbed under his previous permit, 
lease, or contract have subsequently been reclaimed without cost to the 
Federal Government.



Sec. 23.7  Approval of exploration plan.

    (a) Before commencing any surface disturbing operations to explore, 
test, or prospect for minerals covered by the mineral leasing acts the 
operator shall file with the mining supervisor a plan for the proposed 
exploration operations. The mining supervisor shall consult with the 
district manager with respect to the surface protection and reclamation 
aspects before approving said plan.
    (b) Depending upon the size and nature of the operation and the 
requirements established pursuant to Sec. 23.5 the mining supervisor or 
the district manager may require that the exploration plan submitted by 
the operator include any or all of the following:
    (1) A description of the area within which exploration is to be 
conducted;
    (2) Two copies of a suitable map or aerial photograph showing 
topographic, cultural and drainage features;
    (3) A statement of proposed exploration methods, i.e. drilling, 
trenching, etc., and the location of primary support roads and 
facilities;
    (4) A description of measures to be taken to prevent or control 
fire, soil erosion, pollution of surface and ground water, damage to 
fish and wildlife or other natural resources, and hazards to public 
health and safety both during and upon abandonment of exploration 
activities.
    (c) The mining supervisor or the district manager shall promptly 
review the exploration plan submitted to him by the operator and shall 
indicate to the operator any changes, additions, or amendments necessary 
to meet the requirements formulated pursuant to Sec. 23.5, the 
provisions of the regulations in this part, and the terms of the permit.
    (d) The operator shall comply with the provisions of an approved 
exploration plan. The mining supervisor and the district manager may, 
with respect to such a plan, exercise the authority provided by 
paragraphs (f) and (g) of Sec. 23.8 respecting a mining plan.

[34 FR 852, Jan. 18, 1969, as amended at 48 FR 27016, June 10, 1983]

[[Page 426]]



Sec. 23.8  Approval of mining plan.

    (a) Before surface mining operations may commence under any permit 
or lease issued under the mineral leasing acts the operator must file a 
mining plan with the mining supervisor and obtain his approval of the 
plan. Paragraphs (b) through (g) of this section confer authority upon 
mining supervisors with respect to mining plans pertaining to permits or 
leases issued under the mineral leasing acts. The mining supervisor 
shall consult with the district manager with respect to the surface 
protection and reclamation aspects before approving said plan.
    (b) Depending on the size and nature of the operation and the 
requirements established pursuant to Sec. 23.5, the mining supervisor 
or the district manager may require that the mining plan submitted by 
the operator include any or all of the following:
    (1) A description of the location and area to be affected by the 
operations;
    (2) Two copies of a suitable map, or aerial photograph showing the 
topography, the area covered by the permit, lease, or contract, the name 
and location of major topographic and cultural features, and the 
drainage plan away from the area to be affected;
    (3) A statement of proposed methods of operating, including a 
description of proposed roads or vehicular trails; the size and location 
of structures and facilities to be built;
    (4) An estimate of the quantity of water to be used and pollutants 
that are expected to enter any receiving waters;
    (5) A design for the necessary impoundment, treatment or control of 
all runoff water and drainage from workings so as to reduce soil erosion 
and sedimentation and to prevent the pollution of receiving waters;
    (6) A description of measures to be taken to prevent or control 
fire, soil erosion, pollution of surface and ground water, damage to 
fish and wildlife, and hazards to public health and safety; and
    (7) A statement of the proposed manner and time of performance of 
work to reclaim areas disturbed by the holder's operation.
    (c) In those instances in which the permit, lease, or contract 
requires the revegetation of an area of land to be affected the mining 
plan shall show:
    (1) Proposed methods of preparation and fertilizing the soil prior 
to replanting;
    (2) Types and mixtures of shrubs, trees, or tree seedlings, grasses 
or legumes to be planted; and
    (3) Types and methods of planting, including the amount of grasses 
or legumes per acre, or the number and spacing of trees, or tree 
seedlings, or combinations of grasses and trees.
    (d) In those instances in which the permit, lease, or contract 
requires regrading and backfilling, the mining plan shall show the 
proposed methods and the timing of grading and backfilling of areas to 
be affected by the operation.
    (e) The mining supervisor or the district manager shall review the 
mining plan submitted to him by the operator and shall promptly indicate 
to the operator any changes, additions, or amendments necessary to meet 
the requirements formulated pursuant to Sec. 23.5, the provisions of 
the regulations in this part and the terms of the permit, lease, or 
contract. The operator shall comply with the provisions of an approved 
mining plan.
    (f) A mining plan may be changed by mutual consent of the mining 
supervisor or the district manager and the operator at any time to 
adjust to changed conditions or to correct any oversight. To obtain 
approval of a change or supplemental plan the operator shall submit a 
written statement of the proposed changes or supplement and the 
justification for the changes proposed. The mining supervisor or the 
district manager shall promptly notify the operator that he consents to 
the proposed changes or supplement or, in the event he does not consent, 
he shall specify the modifications thereto under which the proposed 
changes or supplement would be acceptable. After mutual acceptance of a 
change of a plan the operator shall not depart therefrom without further 
approval.
    (g) If circumstances warrant, or if development of a mining plan for 
the entire operation is dependent upon unknown factors which cannot or 
will not be determined except during the progress of the operations, a 
partial

[[Page 427]]

plan may be approved and supplemented from time to time. The operator 
shall not, however, perform any operation except under an approved plan.

[34 FR 852, Jan. 18, 1969, as amended at 48 FR 27016, June 10, 1983]



Sec. 23.9  Performance bond.

    (a)(1) Upon approval of an exploration plan or mining plan, the 
operator shall be required to file a suitable performance bond of not 
less than $2,000 with satisfactory surety, payable to the Secretary of 
the Interior, and the bond shall be conditioned upon the faithful 
compliance with applicable regulations, the terms and conditions of the 
permit, lease, or contract, and the exploration or mining plan as 
approved, amended or supplemented. The bond shall be in an amount 
sufficient to satisfy the reclamation requirements of an approved 
exploration or mining plan, or an approved partial or supplemental plan. 
In determining the amount of the bond consideration shall be given to 
the character and nature of the reclamation requirements and the 
estimated costs of reclamation in the event that the operator forfeits 
his performance bond.
    (2) In lieu of a performance bond an operator may elect to deposit 
cash or negotiable bonds of the U.S. Government. The cash deposit or the 
market value of such securities shall be equal at least to the required 
sum of the bond.
    (b) A bond may be a nationwide or statewide bond which the operator 
has filed with the Department under the provisions of the applicable 
leasing regulations in subchapter C of chapter II of this title, if the 
terms and conditions thereof are sufficient to comply with the 
regulations in this part.
    (c) The district manager shall set the amount of a bond and take the 
necessary action for an increase or for a complete or partial release of 
a bond. He shall take action with respect to bonds for leases or permits 
only after consultation with the mining supervisor.
    (d) Performance bonds will not be required of Federal, State, or 
other governmental agencies. Where the exploration or mining is actually 
performed for such Federal, State, or governmental agencies by a 
contractor who would have to post a bond under the terms of paragraph 
(a) of this section if he were the operator, such agencies shall require 
the contractor to furnish a bond payable to the United States which 
meets the requirements of paragraph (a) of this section. If, for some 
other purpose, the contractor furnishes a performance bond, an amendment 
to that bond which meets the requirements of paragraph (a) of this 
section will be acceptable in lieu of an additional or separate bond.

[34 FR 852, Jan. 18, 1969, as amended at 35 FR 11237, July 14, 1970]



Sec. 23.10  Reports: Inspection.

    (a)(1) The holder of a permit or lease under the mineral leasing 
acts shall file the reports required by this section with the mining 
supervisor.
    (2) The provisions of this section confer authority and impose 
duties upon mining supervisors with respect to permits or leases issued 
under the mineral leasing acts.
    (b) Operations report: Within 30 days after the end of each calendar 
year, or if operations cease before the end of a calendar year, within 
30 days after the cessation of operations, the operator shall submit an 
operations report containing the following information:
    (1) An identification of the permit, lease, or contract and the 
location of the operation;
    (2) A description of the operations performed during the period of 
time for which the report is filed;
    (3) An identification of the area of land affected by the operations 
and a description of the manner in which the land has been affected;
    (4) A statement as to the number of acres disturbed by the 
operations and the number of acres which were reclaimed during the 
period of time;
    (5) A description of the method utilized for reclamation and the 
results thereof;
    (6) A statement and description of reclamation work remaining to be 
done.
    (c) Grading and backfilling report: Upon completion of such grading 
and backfilling as may be required by an approved exploration or mining 
plan,

[[Page 428]]

the operator shall make a report thereon and request inspection for 
approval. Whenever it is determined by such inspection that backfilling 
and grading has been carried out in accordance with the established 
requirements and approved exploration or mining plan, the district 
manager shall issue a release of an appropriate amount of the 
performance bond for the area graded and backfilled. Appropriate amounts 
of the bond shall be retained to assure that satisfactory planting, if 
required, is carried out.
    (d) Planting report: (1) Whenever planting is required by an 
approved exploration or mining plan, the operator shall file a report 
with the mining supervisor or district manager whenever such planting is 
completed. The report shall--
    (i) Identify the permit, lease, or contract;
    (ii) Show the type of planting or seeding, including mixtures and 
amounts;
    (iii) Show the date of planting or seeding;
    (iv) Identify or describe the areas of the lands which have been 
planted:
    (v) Contain such other information as may be relevant.
    (2) The mining supervisor or district manager, as soon as possible 
after the completion of the first full growing season, shall make an 
inspection and evaluation of the vegetative cover and planting to 
determine if a satisfactory growth has been established.
    (3) If it is determined that a satisfactory vegetative cover has 
been established and is likely to continue to grow, any remaining 
portion of the performance bond may be released if all requirements have 
been met by the operator.
    (e) Report of cessation or abandonment of operations: (1) Not less 
than 30 days prior to cessation or abandonment of operations, the 
operator shall report his intention to cease or abandon operations, 
together with a statement of the exact number of acres of land affected 
by his operations, the extent of reclamation accomplished and other 
relevant information.
    (2)(i) Upon receipt of such report the mining supervisor or the 
district manager shall make an inspection to determine whether 
operations have been carried out and completed in accordance with the 
approved exploration or mining plan.
    (ii) Whenever the lands in a permit, lease or contract issued under 
the mineral leasing acts are under the jurisdiction of a bureau of the 
Department of the Interior other than the Bureau of Land Management the 
mining supervisor or the district manager, as appropriate, shall obtain 
the concurrence of the authorized officer of such bureau that the 
operation has been carried out and completed in accordance with the 
approved exploration or mining plan with respect to the surface 
protection and reclamation aspects of such plan before releasing the 
performance bond.
    (iii) Whenever the lands in a permit, lease or contract issued under 
the Mineral Leasing Act of 1920 are under the jurisdiction of an agency 
other than the Department of the Interior, the mining supervisor or the 
district manager, as appropriate, shall consult representatives of the 
agency administering the lands and obtain their recommendations as to 
whether the operation has been carried out and completed in accordance 
with the approved exploration or mining plan with respect to the surface 
protection and reclamation aspects of such plan before releasing the 
performance bond. If the mining supervisor or district manager, as 
appropriate, do not concur in the recommendations of the agency 
regarding compliance with the surface protection and reclamation aspects 
of the approved exploration or mining plan, the issues shall be referred 
for resolution to the Under Secretary of the Department of the Interior 
and the comparable officer of the agency submitting the recommendations. 
In the case of disagreement on issues which are so referred, the 
Secretary of the Interior shall make a determination which shall be 
final and binding. In cases in which the recommendations are not 
concurred in by the mining supervisor or district manager, the 
performance bond shall not be released until resolution of the issues or 
until a final determination by the Secretary of the Interior.

[[Page 429]]

    (iv) Whenever the lands in a permit or lease issued under the 
Mineral Leasing Act for Acquired Lands are under the jurisdiction of an 
agency other than the Department of the Interior, the mining supervisor 
or the district manager, as appropriate, shall obtain the concurrence of 
the authorized officer of such agency that the operation has been 
carried out and completed in accordance with the approved exploration or 
mining plan with respect to the surface protection and reclamation 
aspects of such plan before releasing the performance bond.

[34 FR 852, Jan. 18, 1969, as amended at 48 FR 27016, June 10, 1983]



Sec. 23.11  Notice of noncompliance: Revocation.

    (a) The provisions of this section confer authority and impose 
duties upon mining supervisors with respect to permits or leases issued 
under the mineral leasing acts. The Mining supervisor shall consult with 
the district manager before taking any action under this section.
    (b) The mining supervisor or district manager shall have the right 
to enter upon the lands under a permit, lease, or contract, at any 
reasonable time, for the purpose of inspection or investigation to 
determine whether the terms and conditions of the permit, lease, or 
contract, and the requirements of the exploration or mining plan have 
been complied with.
    (c) If the mining supervisor or the district manager determines that 
an operator has failed to comply with the terms and conditions of a 
permit, lease, or contract, or with the requirements of an exploration 
or mining plan, or with the provisions of applicable regulations under 
this part the supervisor or manager shall serve a notice of 
noncompliance upon the operator by delivery in person to him or his 
agent or by certified or registered mail addressed to the operator at 
his last known address.
    (d) A notice of noncompliance shall specify in what respects the 
operator has failed to comply with the terms and conditions of a permit, 
lease, or contract, or the requirements of an exploration or mining 
plan, or the provisions of applicable regulations, and shall specify the 
action which must be taken to correct the noncompliance and the time 
limits within which such action must be taken.
    (e) Failure of the operator to take action in accordance with the 
notice of noncompliance shall be grounds for suspension by the mining 
supervisor or the district manager of operations or for the initiation 
of action for the cancellation of the permit, lease, or contract and for 
forfeiture of the performance bond required under Sec. 23.9.

[34 FR 852, Jan. 18, 1969, as amended at 48 FR 27016, June 10, 1983]



Sec. 23.12  Appeals.

    (a) A person adversely affected by a decision or order of a district 
manager or of a mining supervisor made pursuant to the provisions of 
this part shall have a right of appeal to the Board of Land Appeals, 
Office of Hearings and Appeals, whenever the decision appealed from was 
rendered by a district manager, or to the Director of the Geological 
Survey if the decision or order appealed from was rendered by a mining 
supervisor, and the further right to appeal to the Board of Land Appeals 
from an adverse decision of the Director of the Geological Survey unless 
such decision was approved by the Secretary prior to promulgation.
    (b) Appeals to the Board of Land Appeals shall be made pursuant to 
part 4 of this title. Appeals to the Director of the Geological Survey 
shall be made in the manner provided in 30 CFR part 290.
    (c) In any case involving a permit, lease, or contract for lands 
under the jurisdiction of an agency other than the Department of the 
Interior, or a bureau of the Department of the Interior other than the 
Bureau of Land Management, the officer rendering a decision or order 
shall designate the authorized officer of such agency as an adverse 
party on whom a copy of any notice of appeal and any statement of 
reasons, written arguments, or briefs must be served.
    (d) Hearings to present evidence on an issue of fact before an 
administrative law judge may be ordered by the Board of Land Appeals or 
the Director of the Geological Survey, as the case

[[Page 430]]

may be, in accordance with the procedure set forth in part 4 of this 
title.

[35 FR 10009, June 18, 1970, as amended at 36 FR 7206, Apr. 15, 1971; 38 
FR 10009, Apr. 23, 1973]



Sec. 23.13  Consultation.

    Whenever the lands included in a permit, lease, or contract are 
under the jurisdiction of an agency other than the Department of the 
Interior or under the jurisdiction of a bureau of the Department of the 
Interior other than the Bureau of Land Management, the mining supervisor 
or the district manager, as appropriate, shall consult the authorized 
officer of such agency before taking any final action under Sec. Sec. 
23.7, 23.8, 23.10 (c) and (d) (2) and (3), and 23.11(c).



PART 24_DEPARTMENT OF THE INTERIOR FISH AND WILDLIFE POLICY: STATE-FEDERAL RELATIONSHIPS--Table of Contents



Sec.
24.1 Introduction.
24.2 Purpose.
24.3 General jurisdictional principles.
24.4 Resource management and public activities on Federal lands.
24.5 International agreements.
24.6 Cooperative agreements.
24.7 Exemptions.

    Authority: 43 U.S.C. 1201.

    Source: 48 FR 11642, Mar. 18, 1983, unless otherwise noted.



Sec. 24.1  Introduction.

    (a) In 1970, the Secretary of the Interior developed a policy 
statement on intergovernmental cooperation in the preservation, use and 
management of fish and wildlife resources. The purpose of the policy (36 
FR 21034, Nov. 3, 1971) was to strengthen and support the missions of 
the several States and the Department of the Interior respecting fish 
and wildlife. Since development of the policy, a number of Congressional 
enactments and court decisions have addressed State and Federal 
responsibilities for fish and wildlife with the general effect of 
expanding Federal jurisdiction over certain species and uses of fish and 
wildlife traditionally managed by the States. In some cases, this 
expansion of jurisdiction has established overlapping authorities, 
clouded agency jurisdictions and, due to differing agency 
interpretations and accountabilities, has contributed to confusion and 
delays in the implementation of management programs. Nevertheless, 
Federal authority exists for specified purposes while State authority 
regarding fish and resident wildlife remains the comprehensive backdrop 
applicable in the absence of specific, overriding Federal law.
    (b) The Secretary of the Interior reaffirms that fish and wildlife 
must be maintained for their ecological, cultural, educational, 
historical, aesthetic, scientific, recreational, economic, and social 
values to the people of the United States, and that these resources are 
held in public trust by the Federal and State governments for the 
benefit of present and future generations of Americans. Because fish and 
wildlife are fundamentally dependent upon habitats on private and public 
lands managed or subject to administration by many Federal and State 
agencies, and because provisions for the protection, maintenance and 
enhancement of fish and wildlife and the regulation for their use are 
established in many laws and regulations involving a multitude of 
Federal and State administrative structures, the effective stewardship 
of fish and wildlife requires the cooperation of the several States and 
the Federal Government.
    (c) It is the intent of the Secretary to strengthen and support, to 
the maximum legal extent possible, the missions of the States \1\ and 
the Department of the Interior to conserve and manage effectively the 
nation's fish and wildlife. It is, therefore, important that a 
Department of the Interior Fish and Wildlife Policy be implemented to 
coordinate and facilitate the efforts of

[[Page 431]]

Federal and State agencies in the attainment of this objective.
---------------------------------------------------------------------------

    \1\``States'' refers to all of the several States, the District of 
Columbia, the Commonwealth of Puerto Rico, American Samoa, the Virgin 
Islands, Guam, the Trust Territory of the Pacific Islands, the 
Commonwealth of Northern Mariana Islands and other territorial 
possessions, and the constituent units of government upon which these 
entities may have conferred authorities related to fish and wildlife 
matters.
---------------------------------------------------------------------------



Sec. 24.2  Purpose.

    (a) The purpose of the Department of the Interior Fish and Wildlife 
Policy is to clarify and support the broad authorities and 
responsibilities of Federal \2\ and State agencies responsible for the 
management of the nation's fish and wildlife and to identify and promote 
cooperative agency management relationships which advance 
scientifically-based resource management programs. This policy is 
intended to reaffirm the basic role of the States in fish and resident 
wildlife management, especially where States have primary authority and 
responsibility, and to foster improved conservation of fish and 
wildlife.
---------------------------------------------------------------------------

    \2\ Hereinafter, the Bureau of Reclamation, Bureau of Land 
Management, Fish and Wildlife Service, and National Park Service will be 
referred to collectively as ``Federal agencies.''
---------------------------------------------------------------------------

    (b) In developing and implementing this policy, this Department will 
be furthering the manifest Congressional policy of Federal-State 
cooperation that pervades statutory enactments in the area of fish and 
wildlife conservation. Moreover, in recognition of the scope of its 
activities in managing hundreds of millions of acres of land within the 
several States, the Department of the Interior will continue to seek new 
opportunities to foster a ``good neighbor'' policy with the States.



Sec. 24.3  General jurisdictional principles.

    (a) In general the States possess broad trustee and police powers 
over fish and wildlife within their borders, including fish and wildlife 
found on Federal lands within a State. Under the Property Clause of the 
Constitution, Congress is given the power to ``make all needful Rules 
and Regulations respecting the Territory or other Property belonging to 
the United States.'' In the exercise of power under the Property Clause, 
Congress may choose to preempt State management of fish and wildlife on 
Federal lands and, in circumstances where the exercise of power under 
the Commerce Clause is available, Congress may choose to establish 
restrictions on the taking of fish and wildlife whether or not the 
activity occurs on Federal lands, as well as to establish restrictions 
on possessing, transporting, importing, or exporting fish and wildlife. 
Finally, a third source of Federal constitutional authority for the 
management of fish and wildlife is the treaty making power. This 
authority was first recognized in the negotiation of a migratory bird 
treaty with Great Britain on behalf of Canada in 1916.
    (b) The exercise of Congressional power through the enactment of 
Federal fish and wildlife conservation statutes has generally been 
associated with the establishment of regulations more restrictive than 
those of State law. The power of Congress respecting the taking of fish 
and wildlife has been exercised as a restrictive regulatory power, 
except in those situations where the taking of these resources is 
necessary to protect Federal property. With these exceptions, and 
despite the existence of constitutional power respecting fish and 
wildlife on Federally owned lands, Congress has, in fact, reaffirmed the 
basic responsibility and authority of the States to manage fish and 
resident wildlife on Federal lands.
    (c) Congress has charged the Secretary of the Interior with 
responsibilities for the management of certain fish and wildlife 
resources, e.g., endangered and threatened species, migratory birds, 
certain marine mammals, and certain aspects of the management of some 
anadromous fish. However, even in these specific instances, with the 
limited exception of marine mammals, State jurisdiction remains 
concurrent with Federal authority.



Sec. 24.4  Resource management and public activities on Federal lands.

    (a) The four major systems of Federal lands administered by the 
Department of the Interior are lands administered by the Bureau of 
Reclamation, Bureau of Land Management, units of the National Wildlife 
Refuge System and national fish hatcheries, and units of the National 
Park System.
    (b) The Bureau of Reclamation withdraws public lands and acquires 
non-

[[Page 432]]

Federal lands for construction and operation of water resource 
development projects within the 17 Western States. Recreation and 
conservation or enhancement of fish and wildlife resources are often 
designated project purposes. General authority for Reclamation to modify 
project structures, develop facilities, and acquire lands to accommodate 
fish and wildlife resources is given to the Fish and Wildlife 
Coordination Act of 1946, as amended (16 U.S.C. 661-667e). That act 
further provides that the lands, waters and facilities designated for 
fish and wildlife management purposes, in most instances, should be made 
available by cooperative agreement to the agency exercising the 
administration of these resources of the particular State involved. The 
Federal Water Project Recreation Act of 1965, as amended, also directs 
Reclamation to encourage non-Federal public bodies to administer project 
land and water areas for recreation and fish and wildlife enhancement. 
Reclamation withdrawal, however, does not enlarge the power of the 
United States with respect to management of fish and resident wildlife 
and, except for activities specified in Section III.3 above, basic 
authority and responsibility for management of fish and resident 
wildlife on such lands remains with the State.
    (c) BLM-administered lands comprise in excess of 300 million acres 
that support significant and diverse populations of fish and wildlife. 
Congress in the Federal Land Policy and Management Act of 1976 (43 
U.S.C. 1701 et seq.) directed that non-wilderness BLM lands be managed 
by the Secretary under principles of multiple use and sustained yield, 
and for both wilderness and non-wilderness lands explicitly recognized 
and reaffirmed the primary authority and responsibility of the States 
for management of fish and resident wildlife on such lands. 
Concomitantly, the Secretary of the Interior is charged with the 
responsibility to manage non-wilderness BLM lands for multiple uses, 
including fish and wildlife conservation. However, this authority to 
manage lands for fish and wildlife values is not a preemption of State 
jurisdiction over fish and wildlife. In exercising this responsibility 
the Secretary is empowered to close areas to hunting, fishing or 
trapping for specified reasons viz., public safety, administration, or 
compliance with provisions of applicable law. The closure authority of 
the Secretary is thus a power to close areas to particular activities 
for particular reasons and does not in and of itself constitute a grant 
of authority to the Secretary to manage wildlife or require or authorize 
the issuance of hunting and/or fishing permits or licenses.
    (d) While the several States therefore possess primary authority and 
responsibility for management of fish and resident wildlife on Bureau of 
Land Management lands, the Secretary, through the Bureau of Land 
Management, has custody of the land itself and the habitat upon which 
fish and resident wildlife are dependent. Management of the habitat is a 
responsibility of the Federal Government. Nevertheless, Congress in the 
Sikes Act has directed the Secretary of the Interior to cooperate with 
the States in developing programs on certain public lands, including 
those administered by BLM and the Department of Defense, for the 
conservation and rehabilitation of fish and wildlife including specific 
habitat improvement projects.
    (e) Units of the National Wildlife Refuge System occur in nearly 
every State and constitute Federally owned or controlled areas set aside 
primarily as conservation areas for migratory waterfowl and other 
species of fish or wildlife. Units of the system also provide outdoor 
enjoyment for millions of visitors annually for the purpose of hunting, 
fishing and wildlife-associated recreation. In 1962 and 1966, Congress 
authorized the use of National Wildlife Refuges for outdoor recreation 
provided that it is compatible with the primary purposes for which the 
particular refuge was established. In contrast to multiple use public 
lands, the conservation, enhancement and perpetuation of fish and 
wildlife is almost invariably the principal reason for the establishment 
of a unit of the National Wildlife Refuge System. In consequence, 
Federal activity respecting management of migratory waterfowl and other 
wildlife residing on units of the National Wildlife Refuge System

[[Page 433]]

involves a Federal function specifically authorized by Congress. It is 
therefore for the Secretary to determine whether units of the System 
shall be open to public uses, such as hunting and fishing, and on what 
terms such access shall be granted. However, in recognition of the 
existing jurisdictional relationship between the States and the Federal 
Government, Congress, in the National Wildlife Refuge System 
Administration Act of 1966 (16 U.S.C. 668dd), has explicitly stated that 
nothing therein shall be construed as affecting the authority of the 
several States to manage fish and resident wildlife found on units of 
the system. Thus, Congress has directed that, to the maximum extent 
practicable, such public uses shall be consistent with State laws and 
regulations. Units of the National Wildlife Refuge System, therefore, 
shall be managed, to the extent practicable and compatible with the 
purposes for which they were established, in accordance with State laws 
and regulations, comprehensive plans for fish and wildlife developed by 
the States, and Regional Resource Plans developed by the Fish and 
Wildlife Service in cooperation with the States.
    (f) Units of the National Park System contain natural, recreation, 
historic, and cultural values of national significance as designated by 
Executive and Congressional action. Specific enabling legislation has 
authorized limited hunting, trapping or fishing activity within certain 
areas of the system. As a general rule, consumptive resource utilization 
is prohibited. Those areas which do legislatively allow hunting, 
trapping, or fishing, do so in conformance with applicable Federal and 
State laws. The Superintendent may, in consultation with the appropriate 
State agency, fix times and locations where such activities will be 
prohibited. Areas of the National Park System which permit fishing 
generally will do so in accordance with applicable State and Federal 
Laws.
    (g) In areas of exclusive Federal jurisdiction, State laws are not 
applicable. However, every attempt shall be made to consult with the 
appropriate States to minimize conflicting and confusing regulations 
which may cause undue hardship.
    (h) The management of habitat for species of wildlife, populations 
of wildlife, or individual members of a population shall be in 
accordance with a Park Service approved Resource Management Plan. The 
appropriate States shall be consulted prior to the approval of 
management actions, and memoranda of understanding shall be executed as 
appropriate to ensure the conduct of programs which meet mutual 
objectives.
    (i) Federal agencies of the Department of the Interior shall:
    (1) Prepare fish and wildlife management plans in cooperation with 
State fish and wildlife agencies and other Federal (non-Interior) 
agencies where appropriate. Where such plans are prepared for Federal 
lands adjoining State or private lands, the agencies shall consult with 
the State or private landowners to coordinate management objectives;
    (2) Within their statutory authority and subject to the management 
priorities and strategies of such agencies, institute fish and wildlife 
habitat management practices in cooperation with the States to assist 
the States in accomplishing their fish and wildlife resource plans;
    (3) Provide for public use of Federal lands in accordance with State 
and Federal laws, and permit public hunting, fishing and trapping within 
statutory and budgetary limitations and in a manner compatible with the 
primary objectives for which the lands are administered. The hunting, 
fishing, and trapping, and the possession and disposition of fish, game, 
and fur animals, shall be conducted in all other respects within the 
framework of applicable State and Federal laws, including requirements 
for the possession of appropriate State licenses or permits.
    (4) For those Federal lands that are already open for hunting, 
fishing, or trapping, closure authority shall not be exercised without 
prior consultation with the affected States, except in emergency 
situations. The Bureau of Land Management may, after consultation with 
the States, close all or any portion of public land under its 
jurisdiction to public hunting, fishing, or trapping for reasons of 
public safety, administration, or compliance with

[[Page 434]]

provisions of applicable law. The National Park Service and Fish and 
Wildlife Service may, after consultation with the States, close all or 
any portion of Federal land under their jurisdictions, or impose such 
other restrictions as are deemed necessary, for reasons required by the 
Federal laws governing the management of their areas; and
    (5) Consult with the States and comply with State permit 
requirements in connection with the activities listed below, except in 
instances where the Secretary of the Interior determines that such 
compliance would prevent him from carrying out his statutory 
responsibilities:
    (i) In carrying out research programs involving the taking or 
possession of fish and wildlife or programs involving reintroduction of 
fish and wildlife;
    (ii) For the planned and orderly removal of surplus or harmful 
populations of fish and wildlife except where emergency situations 
requiring immediate action make such consultation and compliance with 
State regulatory requirements infeasible; and
    (iii) In the disposition of fish and wildlife taken under paragraph 
(i) (5)(i) or (i) (5)(ii) of this section.



Sec. 24.5  International agreements.

    (a) International conventions have increasingly been utilized to 
address fish and wildlife issues having dimensions beyond national 
boundaries. The authority to enter into such agreements is reserved to 
the President by and with the advice and consent of the Senate. However, 
while such agreements may be valuable in the case of other nations, in a 
Federal system such as ours sophisticated fish and wildlife programs 
already established at the State level may be weakened or not enhanced.
    (b) To ensure that effective fish and wildlife programs already 
established at the State level are not weakened, the policy of the 
Department of the Interior shall be to recommend that the United States 
negotiate and accede to only those international agreements that give 
strong consideration to established State programs designed to ensure 
the conservation of fish and wildlife populations.
    (c) It shall be the policy of the Department to actively solicit the 
advice of affected State agencies and to recommend to the U.S. 
Department of State that representatives of such agencies be involved 
before and during negotiation of any new international conventions 
concerning fish and wildlife.



Sec. 24.6  Cooperative agreements.

    (a) By reason of the Congressional policy (e.g., Fish and Wildlife 
Coordination Act of 1956) of State-Federal cooperation and coordination 
in the area of fish and wildlife conservation, State and Federal 
agencies have implemented cooperative agreements for a variety of fish 
and wildlife programs on Federal lands. This practice shall be continued 
and encouraged. Appropriate topics for such cooperative agreements 
include but are not limited to:
    (1) Protection, maintenance, and development of fish and wildlife 
habitat;
    (2) Fish and wildlife reintroduction and propagation;
    (3) Research and other field study programs including those 
involving the taking or possession of fish and wildlife;
    (4) Fish and wildlife resource inventories and data collection;
    (5) Law enforcement;
    (6) Educational programs;
    (7) Toxicity/mortality investigations and monitoring;
    (8) Animal damage management;
    (9) Endangered and threatened species;
    (10) Habitat preservation;
    (11) Joint processing of State and Federal permit applications for 
activities involving fish, wildlife and plants;
    (12) Road management activities affecting fish and wildlife and 
their habitat;
    (13) Management activities involving fish and wildlife; and,
    (14) Disposition of fish and wildlife taken in conjunction with the 
activities listed in this paragraph.
    (b) The cooperating parties shall periodically review such 
cooperative agreements and adjust them to reflect changed circumstances.

[[Page 435]]



Sec. 24.7  Exemptions.

    (a) Exempted from this policy are the following:
    (1) The control and regulation by the United States, in the area in 
which an international convention or treaty applies, of the taking of 
those species and families of fish and wildlife expressly named or 
otherwise covered under any international treaty or convention to which 
the United States is a party;
    (2) Any species of fish and wildlife, control over which has been 
ceded or granted to the United States by any State; and
    (3) Areas over which the States have ceded exclusive jurisdiction to 
the United States.
    (b) Nothing in this policy shall be construed as affecting in any 
way the existing authorities of the States to establish annual harvest 
regulations for fish and resident wildlife on Federal lands where public 
hunting, fishing or trapping is permitted.



PART 26_GRANTS TO STATES FOR ESTABLISHING YOUTH CONSERVATION CORPS PROGRAMS--Table of Contents



Sec.
26.1 Introduction.
26.2 Definitions.
26.3 Program purpose and objectives.
26.4 Legislation.
26.5 Administrative requirements.
26.6 Request for grant.
26.7 Application format and instructions.
26.8 Program reporting requirements.
26.9 Consideration and criteria for awarding grants.

    Authority: Sec. 4, 86 Stat. 1320, as amended, 88 Stat. 1067 (16 
U.S.C. 1704)

    Source: 43 FR 41004, Sept. 13, 1978, unless otherwise noted.



Sec. 26.1  Introduction.

    (a) The Youth Conservation Corps (YCC) is a program of summer 
employment for young men and women, aged 15 through 18, who work, earn, 
and learn together by doing projects which further the development and 
conservation of the natural resources of the United States. The corps is 
open to youth of both sexes, and youth of all social, economic, and 
racial classifications who are permanent residents of the United States, 
its territories, possessions, trust territories or commonwealths.
    (b) The Youth Conservation Corps Act of 1970 (Pub. L. 91-378) 
provided for a 3-year pilot program to be carried out on lands and 
waters under the jurisdiction of the Secretary of Agriculture or the 
Secretary of the Interior. Public Law 92-597 amended the 1970 Act to 
include a pilot program (beginning in fiscal year 1974) of grants to 
States to assist them in meeting the cost of Youth Conservation Corps 
projects on non-Federal public lands and waters within the States. 
Public Law 93-408 made the Youth Conservation Corps program permanent.



Sec. 26.2  Definitions.

    (a) Terms used in these Regulations are defined as follows:
    (1) Act. The Youth Conservation Corps Act of 1970. Public Law 91-
378, as amended.
    (2) Secretaries. The Secretaries of Agriculture and the Interior, or 
their designated representatives, who jointly administer the grant 
program. Within the Department of Agriculture, the YCC program is 
administered by the Forest Service; within the Department of the 
Interior it is administered by the Office of Youth Programs.
    (3) States. Any of the several States of the United States, the 
District of Columbia, the Commonwealth of Puerto Rico, the Virgin 
Islands, Guam, the Trust Territory of the Pacific Islands, American 
Samoa, and the Commonwealth of the Northern Mariana Islands.
    (4) Grant. Money or property provided in lieu of money, paid or 
furnished by the Secretaries pursuant to the Act to a State to carry out 
a YCC program on non-Federal public lands and waters. The amount of any 
grant shall be determined jointly by the Secretaries, except that no 
grant for any project may exceed 80 per centum of the cost (as 
determined by the Secretaries) of said project.
    (5) Grantee. Any State which is a recipient of a Federal grant for 
the operation of a YCC program.
    (6) Subgrantee. Any public organization, municipality, county, or 
agency which administers non-Federal public

[[Page 436]]

lands and waters which successfully applied through a State for the 
operation of a Youth Conservation Corps project within that State.
    (7) Contractor. Any public agency or organization or any private 
nonprofit agency or organization which has been in existence for at 
least 5 years which operates a YCC project for a grantee or subgrantee.
    (8) Program agent. Individual designated in writing by the Governor 
to have program responsibility for all aspects of YCC operations in that 
State except for those projects conducted under Federal auspices.
    (9) State grant program. That part of the YCC program carried out on 
non-Federal public lands and waters by States receiving YCC grants-in-
aid.
    (10) Project. The operating unit of the State YCC grant program. A 
project will be designated as either residential or nonresidential.
    (i) Residential project. One in which youth reside either 7 or 5 
days per week at a site on or in proximity to the public lands where 
they conduct their work-learning program.
    (ii) Nonresidential project. One in which youth reside at home and 
daily commute to the public lands to conduct their work-learning 
program.
    (11) Operating year. January 1 through December 31.
    (12) Non-Federal public lands and waters. Any lands or waters within 
the territorial limits of a State owned either in fee simple by a State 
or political subdivision thereof or over which a State or political 
subdivision thereof has, as determined by the Secretaries, sufficient 
long-term jurisdiction so that improvements made as the result of a 
grant will accrue primarily to the benefit of the public as a whole. 
Federally owned public lands and waters administered by a State or 
political subdivision thereof under agreement with a Department or 
Agency of the Federal Government are eligible under such definition if 
the Secretaries determine that the State or political subdivision 
thereof is entitled to or is likely to retain administrative 
responsibility for an extended period of time sufficient to justify 
classification as non-Federal public lands or waters.



Sec. 26.3  Program purpose and objectives.

    (a) The purpose of the Act is to further the development and 
maintenance of the natural resources of the United States by American 
youth and in so doing prepare them for the ultimate responsibility of 
maintaining and managing these resources for the American people. The 
Departments of Agriculture and the Interior have stressed the following 
three equally important objectives of the Youth Conservation Corps as 
reflected in the law:
    (1) Accomplish needed conservation work on public lands.
    (2) Provide gainful employment for 15- through 18-year-old males and 
females from all social, economic, and racial backgrounds.
    (3) Develop an understanding and appreciation of the Nation's 
environment and heritage in participating youth.
    (b) These objectives will be accomplished in a manner that will 
provide the youth with an opportunity to acquire increased self-dignity 
and self-discipline, better work and relate with peers and supervisors, 
and build lasting cultural bridges between youth from various social, 
ethnic, racial and economic backgrounds.
    (c) Each YCC project will have, to the maximum extent possible as 
determined by the Secretaries' representatives, the following 
characteristics:
    (1) A properly balanced and integrated environmental work-learning 
program in which environmental knowledge and awareness derives 
principally from meaningful work activities on public lands.
    (2) A mixture of youth of both sexes from various social, economic, 
ethnic, and racial backgrounds which is representative of the youth 
residing within the recruiting area.
    (3) A group-living component, both in residential and nonresidential 
programs, wherein enrollees have an opportunity to relate to each other 
and to staff during nonworking hours in activities which promote social 
interaction and group learning (e.g., evening cookouts, overnight or 
weekend camping).
    (4) An enrollment of sufficient size (not less than 10 enrollees) 
that will permit social interaction and group learning. The program 
encourages

[[Page 437]]

projects of a size of 20 to 50 enrollees as the most desirable size.



Sec. 26.4  Legislation.

    State programs must meet all of the requirements of section 4 of the 
act. Section 4 of the act which applies to the grant program reads as 
follows:

    Sec. 4(a). The Secretary of the Interior and the Secretary of 
Agriculture shall jointly establish a program under which grants shall 
be made to States to assist them in meeting the cost of projects for the 
employment of young men and women to develop, preserve, and maintain 
non-Federal public lands and waters within the States. For purposes of 
this section, the term ``States'' includes the District of Columbia, the 
Commonwealth of Puerto Rico, the Virgin Islands, Guam, the Trust 
Territory of the Pacific Islands, and American Samoa.
    (b)(1) No grant may be made under this section unless an application 
therefor has been submitted to, and approved by, the Secretary of the 
Interior and the Secretary of Agriculture. Such application shall be in 
such form, and submitted in such manner, as the Secretaries shall 
jointly by regulation prescribe, and shall contain--
    (A) Assurances satisfactory to the Secretaries that individuals 
employed under the project for which the application is submitted shall: 
(i) Have attained the age of 15 but not attained the age of 19, (ii) be 
permanent residents of the United States or its territories, 
possessions, or the Trust Territory of the Pacific Islands, (iii) be 
employed without regard to the personnel laws, rules, and regulations 
applicable to full-time employees of the applicant, (iv) be employed for 
a period of not more than 90 days in any calendar year, and (v) be 
employed without regard to their sex or social, economic, or racial 
classification; and
    (B) Such other information as the Secretaries may jointly by 
regulation prescribe.
    (2) The Secretaries may approve applications which they determine 
(A) meet the requirements of paragraph (1), and (B) are for projects 
which will further the development, preservation, or maintenance of non-
Federal public lands or waters within the jurisdiction of the applicant.
    (c)(1) The amount of any grant under this section shall be 
determined jointly by the Secretaries, except that no grant for any 
project may exceed 80 per centum of the cost (as determined by the 
Secretaries) of such project.
    (2) Payments under grants under this section may be made in advance 
or by way of reimbursement and at such intervals and on such conditions 
as the Secretaries find necessary.
    (d) Thirty per centum of the sum appropriated under section 6 for 
any fiscal year shall be made available for grants under this section 
for such fiscal year.



Sec. 26.5  Administrative requirements.

    The following administrative requirements must be met:
    (a) Recruitment and selection will be conducted in accordance with a 
Statewide plan designed to assure:
    (1) An equal opportunity for both sexes, for all urban and rural 
youth regardless of social, economic, ethnic or racial background, with 
special outreach efforts toward minority, disadvantaged, non-public 
school youth, and youth having left school before graduation;
    (2) That selections will be made on a random basis, without 
consideration of race, creed, religion, or national origin. Each project 
should be assigned as near as possible an equal number of slots for 
males and females;
    (3) That enrollees have attained age 15 by June 1 but not age 19 by 
August 30;
    (4) That not more than 10 percent of the enrollees in a project have 
been YCC enrollees in previous years and all returnees be designated as 
youth leaders and paid $1.50 per day in addition to their hourly rate of 
pay.
    (b) To the maximum extent practicable, enrollees should be selected 
from an area within 1 day's surface travel from their home to a 
residential YCC project.
    (c) Capital outlays for facilities should be kept at a minimum. No 
grant is to be made for construction of residential facilities other 
than to provide temporary facilities and their necessary basic 
infrastructure, and necessary renovation or modification of existing 
facilities.
    (d) Operation of a project or session will be for a minimum of 26 
consecutive calendar days. Projects during nonsummer periods may be 
authorized by the Secretaries when it can clearly be demonstrated that 
enrollment will not interfere with the established educational systems.
    (e) The enrollee is an employee of the grantee or subgrantee. 
Depending on grantee's or subgrantee's work-week, grantees will insure 
that enrollees are engaged in up to 40 hours of work-

[[Page 438]]

learning activities each week, 25 percent of which will be in 
environmental awareness.
    (f) To arrive at the enrollee weekly pay rate, the Federal or State 
minimum hourly wage (whichever is higher) should be multiplied by 30 
hours per week, or 75 percent of the number of hours in the grantee or 
subgrantee established work-week, if less than 40 hours. To the maximum 
extent possible, the grantee should apply the same meal and lodging 
deduction as used by the Federal program.
    (g) The Federal Government will cost-share as part of the grant 
enrollee pay based on up to 30 hours per week; any cost based on 
enrollee compensation for more than 30 hours per week will be assumed by 
the grantee or sub-grantee and will not be part of the grant.
    (h) Grantees must provide for an effective accident control, health, 
and safety program. As a minimum, grantees shall follow U.S. Department 
of Labor Bulletin No. 101, ``A Guide to Child Labor Provisions of the 
Fair Labor Standards Act.''
    (i) Grantees will have a financial management system which will 
provide the information called for in attachment G of the Office of 
Management and Budget (OMB) circular A-102 (formerly FMC 74-7).
    (j) ``Request for Advance or Reimbursement,'' as outlined in OMB 
circular A-102, attachment H, item 4(a), will be used to obtain an 
advance to start and/or maintain the program. It can also be used to 
obtain a reimbursement during or at the end of a project. An advance, 
not to exceed 1 month's needs, may be made after approval of the grant 
application.
    (k) Grantees will prepare a ``Financial Status Report'' required by 
OMB circular A-102, attachment H, item (3)a. This report will be 
prepared on a cash basis. Instructions and forms will be supplied each 
grantee at the time of grant award. Grantees shall require similar 
reports from all subgrantees and contractors to facilitate their own 
reporting to the grantor agencies. The Financial Status Report will be 
prepared as of December 31 of each operating year. This report will be 
forwarded in time to reach the Secretaries by March 31 of the following 
operating year.
    (l) Allowable costs under the grant program are defined in FMC 74-4 
and OMB circular A-102.
    (m) Records retention and custodial requirements for records are 
prescribed by attachment C to OMB circular A-102.
    (n) A budget revision is required in advance when the scope of the 
grant is to be changed through (1) addition or elimination of a project, 
(2) reduction in the State's grant program of 5 percent or more of 
enrollees, and/or (3) determination that the grantee will not utilize 
Federal funds in amount in excess of $5,000 or 5 percent of the Federal 
grant, whichever is greater. A budget revision must also be submitted 
when the State's matching ratio is reduced. No budget revision may be 
submitted later than March 31 following the end of the operating year. 
Procedures in attachment K of OMB circular A-102 will be followed.
    (o) Grantees shall comply with the provisions of attachments N and O 
of OMB circular A-102 in regard to nonexpendable personal property and 
procurement standards.
    (p) The Secretaries or their designees shall periodically review the 
conduct of the program of the State.
    (q) Grantees will supervise those projects in the State being 
administered by subgrantees and contractors. Subgrantees and contractors 
will be required to operate in accordance with the procedures outlined 
in these regulations and the grant agreement with the State. Periodic 
inspection of subgrantee projects will be made by the grantee under the 
direction of the program agent or his designee. Grantees or subgrantees 
may contract with any public agency or organization or any private 
nonprofit agency or organization which has been in existence for at 
least 5 years.
    (r) Grantees will meet the financial audit requirements of 
attachment G to OMB circular A-102 and will require the same of 
subgrantees. Copies of audits will be made available to the Secretaries 
upon request.
    (s) Grantees shall provide accidental injury compensation and tort 
claims

[[Page 439]]

coverage under State laws for its enrollees. Enrollees shall be employed 
without regard to State personnel laws, rules, and regulations 
applicable to full-time employees. It is not intended that State 
enrollees be covered for retirement, unemployment compensation, health 
and life insurance purposes, or that they earn or be granted leave-with-
pay or sick leave; such charges shall not be considered a qualifiying 
expense for Federal cost-share purposes.
    (t) If the grantee fails to comply with the grant award 
stipulations, standards, or conditions, the Secretaries may jointly 
suspend the grant, in whole or in part, pending corrective action. 
Subsequent to or during any period of suspension of the grant, the 
Federal Government shall not be obligated to reimburse the grantee for 
any incurrence of obligations for suspended projects other than direct 
pay of enrollees and then only for a period of time which both the 
Secretaries shall determine to be reasonable. In addition, the 
Secretaries may jointly terminate the grant, in whole or in part. 
Termination shall be effected by notice of termination. Upon receipt of 
a notice of termination, the grantee shall:
    (1) Discontinue further commitments of grant funds for the 
terminated project(s).
    (2) Cancel all sub-grants or contracts, where possible, scheduled 
for payment with funds budgeted for the terminated project(s).
    (3) Within 90 days after receipt of the notice of termination for 
the entire grant, supply either of the Secretaries with a financial 
status report, along with a refund check for any unused portion of funds 
advanced, or a request for reimbursement for allowable expenditures 
incurred in the grant program.



Sec. 26.6  Request for grant.

    (a) Of the amount available for Youth Conservation Corps projects, 
30 percent will be allocated for State projects. All States will be 
given an opportunity to participate in the program. Allocated funds not 
needed by a State will be reallocated, based on the merit of proposals 
submitted in accordance with paragraph (c) of this section.
    (b) Pursuant to section (4)(c)(1) of Public Law 93-408, States may 
receive grants up to but not to exceed 80 percent of the cost of funding 
any project from the Federal Government. The combined Federal/State 
costs of individual projects and other program expenses as established 
in the grant application determine the Federal/State cost-sharing ratio. 
Matching State costs can consist of either direct expenditures or 
services of an in-kind nature.
    (c) Application for Federal Assistance (Standard Form 424) will be 
used by applicants in applying for grants under this program. 
Application forms will be supplied to Program Agents. Only a Program 
Agent may submit an application. A single grant application must be 
submitted for the entire summer program within each State. A separate 
application must be used for non-summer projects. A non-summer project 
is defined as one which extends beyond September 30, or begins prior to 
May 1.
    (d) The Secretaries have designated individuals for each State who 
will jointly represent them. Grant applications (original and two 
copies) must be submitted to the designated reresentative of either 
Secretary. January 1 has been established as the deadline date for 
acceptance of applications for each operating year. Names and addresses 
of designated representatives will be furnished to each State. The 
Secretaries' representatives must jointly approve grant proposals. 
Approval or disapproval of proposals will be documented by a formal 
letter to the Program Agent. The Secretaries' representatives will also 
be available for technical assistance and will monitor the program.



Sec. 26.7  Application format and instructions.

    Grant application must be made using the Office of Management and 
Budget approved form (SF-424) entitled ``Federal Assistance.'' Specific 
instructions and requirements which must be followed are included in the 
Secretaries' State Grant Procedures Handbook. General instructions for 
completing the form by part numbers are:

[[Page 440]]

    (a) Part I--(SF-424 Cover Sheet, Sections I and II) shall be 
completed.
    (b) Part II--(Budget Data). See YCC State Grant Procedures Handbook 
for definitions of cost categories and for budget narrative 
instructions.
    (c) Part III--(Program Narrative Statement). Complete a separate 
description of each project, which will include the following 
information (Items 13, 14, 15, and 16 may be consolidated, if common to 
all projects):
    (1) Project number.
    (2) Project name and address.
    (3) Project location (nearest city or town and county).
    (4) Name of grantee, sub-grantee and/or contractor.
    (5) Land Ownership class(es) benefiting from the program--State, 
county, municipal or other non-Federal public lands (identify).
    (6) Number of male and female youth planned for project, including 
youth leaders.
    (7) Type of project (7-day residential; 5-day residential; non-
residential; other).
    (8) Length of session(s) (e.g., number of weeks) and proposed 
beginning and ending dates per session.
    (9) Cost of project.
    (10) Description of living conditions, if residential project (types 
of facilities, age, condition, tents, cabins, dormitories, food 
service).
    (11) Project staff (number and position titles).
    (12) Work-learning program. (Describe major projects, planned units 
of production if applicable, and any constraints that are anticipated. 
Explain how environmental learning will be integrated into projects.)
    (13) Complete calculation for daily rate of enrollee pay, including 
deduction for food lodging.
    (14) Description of health and safety program.
    (15) Description of enrollee recruiting and selection system. (The 
Statewide recruiting and selection plan may be substituted.)
    (16) Description of staff recruiting and selection system, including 
affirmative action measures to be taken.
    (d) Part IV--(Assurances) is preprinted within Attachment M, Exhibit 
M-5, OMB Circular A-102, and is to be included as part of the 
application. The following assurance is not preprinted and must be 
included by the grantee in the grant application: The grantee agrees to 
administer tests and questionnaires; conduct interviews; submit enrollee 
statistical and work accomplishment data; and otherwise assist the 
Federal Government in collecting information.



Sec. 26.8  Program reporting requirements.

    (a) Monitoring and reporting of program performance will be in 
accordance with Attachment I of OMB Circular A-102.
    (b) The reporting and/or recordkeeping requirements contained herein 
have been approved by the Office of Management and Budget in accordance 
with the Federal Reports Act of 1942.



Sec. 26.9  Consideration and criteria for awarding grants.

    The decision by both of the Secretaries' representatives on grants 
to individual States will consider the following:
    (a) The amount of grant funds allocated to the State.
    (b) The quality of the proposed program in terms of meeting program 
characteristics and objectives.
    (c) The overall cost per enrollee 8-week position.
    (d) Actual prior performance of the State in administering YCC 
projects.
    (e) The performance of the grantee in meeting the conditions of the 
grant and the requirements of OMB Circular A-102 and FMC 74-4.



  PART 27_NONDISCRIMINATION IN ACTIVITIES CONDUCTED UNDER PERMITS, RIGHTS-OF-WAY, PUBLIC LAND ORDERS, AND OTHER FEDERAL AUTHORIZATIONS GRANTED OR ISSUED UNDER 
TITLE II OF PUBLIC LAW 93	153--Table of Contents



Sec.
27.1 Purpose.
27.2 Application.
27.3 Discrimination prohibited.
27.4 Assurances.
27.5 Equal opportunity terms.
27.6 Equal opportunity implementation.
27.7 Compliance information.

[[Page 441]]

27.8 Compliance procedures.
27.9 Procedures for effecting compliance.
27.10 Hearings.
27.11 Decisions and notices.
27.12 Judicial review.
27.13 Effect on other regulations; forms and instructions.
27.14 Definitions.

    Authority: Sec. 403, 87 Stat. 576 (1973)

    Source: 39 FR 34285, Sept. 24, 1974, unless otherwise noted.



Sec. 27.1  Purpose.

    The purpose of this part is to effectuate section 403 of Public Law 
93-153 (87 Stat. 576) to the end that no person shall on the grounds of 
race, creed, color, national origin, or sex, be excluded from receiving, 
or participating in any activity conducted under, any permit, right-of-
way, public land order, or other Federal authorization granted or issued 
under title II of Public Law 93-153, 87 Stat. 584, the Trans-Alaska 
Pipeline Authorization Act.



Sec. 27.2  Application.

    This part applies to all activities, including contracting, 
employment, services, financial aids, and other benefits, conducted 
under permits, rights-of-way, public land orders, and other Federal 
authorizations granted or issued under title II of the Act by recipients 
of those authorizations, their agents, contractors, and subcontractors 
at each of their facilities conducting such activities.



Sec. 27.3  Discrimination prohibited.

    (a) General. No person shall on the grounds of race, creed, color, 
national origin, or sex, be excluded from receiving or participating in 
any activity conducted under, any permit, right-of-way, public land 
order, or other Federal authorization to which this part applies.
    (b) Specific discriminatory actions prohibited. No recipient of any 
permit, right-of-way, public land order, or other Federal authorization 
to which this part applies, or its contractors, or subcontractors to 
which this part applies may directly or through contractual or other 
arrangements, on the grounds of race, creed, color, national origin, or 
sex, discriminate in offering or providing employment, contracting, 
services, financial aids, or other benefits as follows:
    (1) Employment practices. No recipient, contractor, or subcontractor 
to which this part applies may, directly or through contractual or other 
arrangements, subject an individual to discrimination on the grounds of 
race, creed, color, national origin, or sex in its employment practices, 
including recruitment advertising, hiring, firing, up-grading, 
promotion, demotion, or transfer, layoff, or terminations, rates of pay 
or other forms of compensation, or benefits, selection for training, or 
apprenticeship, use of facilities, treatment of employees or any other 
employment practice.
    (2) Contracting practices. No recipient, contractor, or 
subcontractor to which this part applies may discriminate on the grounds 
of race, creed, color, national origin, or sex in its contracting 
practices, including but not limited to, determining qualification for 
placement on bidder lists, composition of bidder lists, pre-bid 
conferences, solicitation for bids, designation of quantities, or other 
specifications, delivery schedules, contract award and performance, or 
any other contracting practice.
    (3) Services, financial aids and other benefits. No recipient, 
contractor, or subcontractor to which this part applies may, directly or 
through contractual or other arrangements, on the grounds of race, 
creed, color, national origin, or sex, discriminate in offering or 
providing services, financial aids, or other benefits as follows:
    (i) Deny an individual any service, financial aid, or other benefit 
provided, in whole or in part, because of any Federal authorization to 
which this part applies;
    (ii) Provide any service, financial aid, or other benefit to an 
individual which is different, or is provided in a different manner, 
from that provided to others;
    (iii) Subject an individual to segregation or separate treatment in 
any matter related to his receipt of any service, financial aid, or 
other benefit provided, in whole or in part, because of any Federal 
authorization to which this part applies;
    (iv) Restrict an individual in any way in the enjoyment of any 
advantage or

[[Page 442]]

privilege enjoyed by others receiving any service, financial aid, or 
other benefit provided, in whole or in part, because of any Federal 
authorization to which this part applies;
    (v) Treat an individual differently from others in determining 
whether he satisfies any admission, enrollment, eligibility, membership 
or other requirement or condition which individuals must meet in order 
to be provided any service, financial aid, or other benefit offered, in 
whole or in part, because of any Federal authorization to which this 
part applies;
    (vi) Deny an individual an opportunity to participate in any 
activity made possible, in whole or in part, because of any Federal 
authorization to which this part applies, through the provision of 
services or otherwise, or afford him an opportunity to do so which is 
different from that afforded others;
    (vii) Deny an individual the opportunity to participate as a member 
of a planning or advisory body participating in the provision of any 
service, financial aid, or other benefit which is integrally associated 
with any Federal authorization to which this part applies;
    (4) Determining and administering services, financial aids and other 
benefits. In determining the types of services, financial aids or other 
benefits, or facilities which will be provided because of any Federal 
authorization to which this part applies, or the class of individuals or 
establishments to whom, or the situations in which, such services, 
financial aids, other benefits or facilities will be provided, or the 
class of individuals or establishments to be afforded an opportunity to 
participate in any activity made possible, in whole or in part, because 
of any Federal authorization to which this part applies, a recipient, 
contractor, or subcontractor to which this part applies, may not, 
directly or through contractual or other arrangements, utilize criteria 
or methods of administration which have the effect of subjecting 
individuals or establishments to discrimination because of their race, 
creed, color, national origin, or sex.
    (5) Site or location of facilities. In determining the site or 
location of facilities, for the provision of services, financial aids, 
or other benefits, a recipient, contractor or subcontractor to which 
this part applies, may not make selections with the purpose or effect of 
excluding individuals or establishments from, denying them the benefits 
of, or subjecting them to discrimination on the grounds of race, creed, 
color, national origin, or sex, or with the purpose or effect of 
defeating or substantially impairing the accomplishment of the 
objectives of section 403 of Public Law 93-153 and implementing rules, 
regulations, and orders.
    (6) References to services, financial aides or other benefits. 
References to services, financial aids or other benefits shall be deemed 
to include all services, financial aids, or other benefits provided in 
or through facilities, programs, or operations made possible, in whole 
or in part, because of any Federal authorizations to which this part 
applies.
    (7) Scope of prohibited discrimination. The enumeration of specific 
forms of prohibited discrimination in this paragraph (b) does not limit 
the generality of the prohibitions in paragraph (a) of this section.



Sec. 27.4  Assurances.

    Every application for a permit, right-of-way, public land order, or 
other Federal authorization to which this part applies, filed after the 
effective date of these regulations, and every contract covered 
hereunder to provide goods, services or facilities in the amount of 
$10,000 or more to the recipient of any Federal authorization to which 
this part applies, must contain an assurance that the recipient, 
contractor, or subcontractor does not and will not maintain any 
facilities in a segregated manner, and that all requirements imposed by 
or pursuant to section 403 of PubLic Law 93-153 shall be met, and that 
it will require a similar assurance in every subcontract over $10,000. 
The assurances shall be in a form specified by the Department Compliance 
Officer.



Sec. 27.5  Equal opportunity terms.

    Each permit, right-of-way, public land order, or other Federal 
authorization to which this part applies, shall include by reference or 
incorporation

[[Page 443]]

by operation of law the terms, conditions, obligations, and 
responsibilities of this section, as follows:
    (a) The recipient hereby agrees that it will not, directly or 
through contractual or other arrangements, on the grounds of race, 
creed, color, national origin, or sex, discriminate against any 
individual or establishment in offering or providing contracts, 
employment, services, financial aids, or other benefits. Recipient will 
take affirmative action to utilize minority business enterprises in the 
performance of contracts awarded by recipient, to assure that applicants 
for employment are employed and that employees are treated during 
employment, and that individuals are offered and provided services, 
financial aids, and other benefits without regard to their race, creed, 
color, national origin, or sex. Recipient agrees to post in conspicuous 
places available to contractors, employees, and other interested 
individuals, notices which set forth these equal opportunity terms and 
to notify interested individuals, such as bidders, purchasers, and labor 
unions or representatives of workers with whom it has collective 
bargaining agreements of recipient's obligations under section 403 of 
Public Law 93-153.
    (b) The recipient will comply with all rules, regulations, and 
orders of the Department of the Interior which implement section 403 of 
Public Law 93-153.
    (c) The recipient will furnish all information and reports required 
by or pursuant to rules, regulations, and orders implementing section 
403 of Public Law 93-153 and permit access to its books, records, and 
accounts by the Secretary of the Interior, the Department Compliance 
Officer, or other designee of the Secretary, for purposes of 
investigation to ascertain compliance with rules, regulations, and 
orders of the Department of the Interior which implement section 403 of 
Public Law 93-153.
    (d) The recipient recognizes and agrees that its obligation for 
compliance with section 403 of Public Law 93-153 and implementing rules, 
regulations, and orders extends not only to direct activities, but also 
to require that contractors, subcontractors, suppliers, and lessees, 
comply with section 403 and implementing rules, regulations and orders. 
To that end the recipient agrees that with regard to all contracts over 
$10,000 and all contracts of indefinite quantity (unless there is reason 
to believe that the amount to be ordered in any year under the contract 
will not exceed $10,000) to:
    (1) Obtain as part of its contractual arrangements with such 
parties, as a minimum form of assurance an agreement in writing, that:
    (i) The contractor hereby agrees that it will not, directly or 
through contractual or other arrangements, on the grounds of race, 
creed, color, national origin, or sex, discriminate against any 
individual or establishment in offering or providing contracts, 
employment, services, financial aids, or other benefits. Contractor will 
take affirmative action to utilize minority business enterprises in the 
performance of subcontracts which is awards, and to assure that 
applicants are employed and that employees are treated during 
employment, and that individuals are offered and provided services, 
financial aids, and other benefits without regard to their race, creed, 
color, national origin, or sex. Contractor agrees to post in conspicuous 
places available to contractors, employees, and other interested 
individuals notices which set forth these equal opportunity terms and to 
notify interested individuals, such as bidders, purchasers, and labor 
unions or representatives of workers with whom it has collective 
bargaining agreements of contractor's obligations under section 403 of 
Public Law 93-153.
    (ii) The contractor will comply with all rules, regulations, and 
orders of the Department of the Interior which implement section 403 of 
Public Law 93-153.
    (iii) The contractor will furnish all information and reports 
required by or pursuant to rules, regulations, and orders implementing 
section 403 of Public Law 93-153 and permit access to its books, 
records, and accounts by the Secretary of the Interior, the Department 
Compliance Officer, or other designee of the Secretary, for purposes of 
investigation to ascertain compliance with rules, regulations, and 
orders of the Department of the Interior which

[[Page 444]]

implement section 403 of Public Law 93-153.
    (iv) Contractor's noncompliance with the nondiscrimination clauses 
of this contract or with any of said rules, regulations, and orders 
shall constitute a breach of its contractual arrangements whereby said 
arrangements may be cancelled, terminated, or suspended, or may be 
subject to enforcement otherwise by appropriate legal proceedings.
    (v) Contractor will obtain the provisions of paragraph (d)(1) (i) 
through (v) of this section in all subcontracts over $10,000 and all 
subcontracts of indefinite quantity (unless there is reason to believe 
that the amount to be ordered in any year under the contract will not 
exceed $10,000).
    (2) Recipient will make every good faith effort to secure the 
compliance and will assist and cooperate actively with the Department 
Compliance Officer and the Secretary or his designee in obtaining and 
enforcing the compliance of said contracting parties with the 
requirements of section 403 and implementing rules, regulations, and 
orders, and with their respective contractual arrangements; and will 
take such action with respect to any contract or purchase order that the 
Secretary of the Interior, the Department Compliance Officer, or other 
designee of the Secretary may direct as a means of enforcing such 
provisions: Provided, however, That in the event the recipient becomes 
involved in litigation with a noncomplying party, it may request the 
Department of the Interior to enter into such litigation to protect the 
interests of the United States in the enforcement of these obligations, 
and
    (3) Recipient will obtain and furnish to the Department Compliance 
Officer such information as he may require for the supervision or 
securing of such compliance.
    (e) In the event of the recipient's noncompliance with the equal 
opportunity terms, compliance may be effected by the suspension or 
termination or refusal to grant or to continue providing the Federal 
authorization in accordance with procedures authorized by section 403 of 
Public Law 93-153, and set forth in implementing rules, regulations, or 
orders, or by any other means authorized by law.



Sec. 27.6  Equal opportunity implementation.

    Within sixty (60) days of the effective date of these regulations, 
or within sixty (60) days from the commencement of a Federal 
authorization to which this part applies, whichever occurs later, 
recipients of Federal authorizations to which this part applies, shall 
prepare and submit an affirmative action plan for each of their 
establishments to which this part applies, to assure that the 
requirements of this part will be met. In addition, recipients and each 
of their prime contractors and subcontractors shall require each 
contractor and subcontractor with a contract of $50,000 or more and 50 
or more employees to develop within sixty (60) days from the 
commencement of the contract and to keep on file a written affirmative 
action plan for each of its establishments, to which this part applies, 
with the exception of those establishments which the Department 
Compliance Officer determines are in all respects separate and distinct 
from performance of the activities of the prime contractor or 
subcontractor conducted under the Federal authorizations. Such plans 
shall include a set of specific and result-oriented procedures which the 
recipient, contractor or subcontractor commits itself to apply every 
good faith effort to achieve equal opportunity in all aspects of its 
operations. An acceptable program must include an analysis of all areas 
of operation of the recipient, contractor, or subcontractor in which it 
could be deficient in offering services, opportunities, or benefits to 
minority groups and women, and all areas of employment in which it could 
be deficient in the utilization of minority groups and women and all 
areas of contracting in which it could be deficient in the utilization 
of minority business enterprises, and, further, specific goals and 
specific timetables to which its efforts will be directed, to correct 
all deficiencies and thus to increase materially the participation of 
minorities and women in all aspects of its operation. The implementing 
affirmative action plans shall include the following:
    (a) Services, financial aids, and other benefits. The implementing 
program is required to specifically address all

[[Page 445]]

areas of operation of the recipient, contractor or subcontractor which 
offer and provide services, financial aids, and other benefits; it shall 
identify those services, financial aids, and benefits; analyze the 
opportunities available to minorities and women in each area; and set 
forth affirmative action, including goals and time- tables, which will 
be taken to materially increase participation of minorities and women.
    (b) Employment practices. The implementing plan shall address all 
aspects of employment operations and is required to contain all analyses 
and commitments, including goals and timetables, which are required in 
rules, regulations, and orders implementing Executive Order 11246, as 
amended, and to include additional commitments to employment goals for 
minorities and women in construction operations, to the extent that 
those goals are not established under Executive Order 11246.
    (c) Contracting practices. Recipients to which this part applies and 
each of their contractors and subcontractors with a contract of $150,000 
or more shall also include in their affirmative action plan a program in 
which the recipient, contractor or subcontractor agrees to take specific 
affirmative action as set forth below to utilize minority business 
enterprises as subcontractors and suppliers. For this purpose, the term 
minority business enterprise means a business enterprise that is owned 
or controlled by minority group members or women. The plan shall 
identify specific actions which the recipient, contractor or 
subcontractor will take to:
    (1) Designate a liaison officer who will administer the minority 
business enterprises program;
    (2) Provide adequate and timely consideration of the potentialities 
of minority business enterprises in all contracting decisions;
    (3) Afford minority business enterprises an equitable opportunity to 
compete for contracts and subcontracts by arranging solicitations, time 
for preparation of bids, quantities, specifications, and delivery 
schedules so as to facilitiate the participation of minority business 
enterprises;
    (4) Submit periodic reports of contracting opportunities, 
procedures, and awards to minority business enterprises, at such times, 
and in such form, and containing such information as the Department 
Compliance Officer may prescribe, including reports showing:
    (i) Procedures which have been adopted to comply with the policies 
set forth in this clause, including the establishment of a source list 
of minority business enterprises;
    (ii) Awards to minority business enterprises on the source lists, 
and
    (iii) Specific efforts to identify and award contracts to minority 
business enterprises.
    (5) Establish specific goals and timetables to utilize minority 
business enterprises in the performance of contracts awarded.
    (6) Inform minority business enterprises and organizations of 
minority business enterprises of contracting opportunities and 
procedures.
    (7) Cooperate with the Department Compliance Officer in any studies 
and surveys of the recipient's minority business enterprise procedures 
and practices that the Department Compliance Officer may from time to 
time conduct.
    (8) Assist potential minority business enterprises in obtaining and 
maintaining suitable bonding capabilities, in those instances where 
bonds are required.
    (d) Exemption. Contracts and subcontracts are exempt from the 
requirements of the equal opportunity clause with regard to work 
performed outside the United States by employees who were not recruited 
within the United States.



Sec. 27.7  Compliance information.

    (a) Records, reports, and access to books. Each recipient, 
contractor, or subcontractor to which this part applies, shall keep such 
records and submit to the Department Compliance Officer complete and 
accurate reports, at such times, and in such form, and containing such 
information, as he may determine to be necessary to enable him to 
ascertain whether the recipient, contractor or subcontractor has 
complied or is complying with rules, regulations and orders implementing 
section 403 of Public Law 93-153. In the case where the recipient, 
contractor or

[[Page 446]]

subcontractor contracts with another, such other contractor shall also 
submit such compliance reports to the recipient, contractor or 
subcontractor as may be necessary to enable the recipient, contractor or 
subcontractor to determine and carry out his obligations under section 
403 of Public Law 93-153 and implementing rules, regulations, and 
orders.
    (b) Access to sources of information. Each recipient, contractor and 
subcontractor to which this part applies, shall permit access by the 
Department Compliance Officer or his designee or by the Secretary or his 
designee during normal business hours to such of his books, records, 
accounts, and other sources of information, and his facilities, as may 
be pertinent to ascertain compliance with rules, regulations, and orders 
implementing section 403 of Public Law 93-153.
    (c) Information in possession of other agency, institution, or 
person. Where any information required of a recipient, contractor or 
subcontractor is in the exclusive possession of any other agency, 
institution, or person and such agency, institution or person shall fail 
or refuse to furnish this information, the recipient, contractor or 
subcontractor shall so certify in a report and shall set forth what 
efforts it has made to obtain the information.
    (d) Failure to submit reports. Failure to file timely, complete and 
accurate reports as required constitutes noncompliance with the equal 
opportunity clause and is ground for the imposition by the agency, 
recipient, contractor, or subcontractor of any sanctions as authorized 
by section 403 of Public Law 93-153 and implementating rules, 
regulations, and orders.
    (e) Information to beneficiaries and participants. Each recipient, 
contractor and subcontractor to which this part applies, shall make 
available to participants in and beneficiaries of its operations and 
services, information regarding the provisions of this part and the 
details of the recipient's, contractor's or subcontractor's compliance 
with this part, to the extent that it will enhance their participation 
in nondiscrimination programs of recipient, contractor, or 
subcontractor, and aid the recipient, contractor, or subcontractor in 
meeting its obligations under this part.



Sec. 27.8  Compliance procedures.

    (a) Approval of affirmative action plans. The Department Compliance 
Officer shall from time to time review the recipient's, contractor's or 
subcontractor's affirmative action plans to determine whether they meet 
the requirements of rules, regulations and orders implementing section 
403 of Public Law 93-153. Where deficiencies are found to exist, the 
Department Compliance Officer or his designee will so inform the 
recipient, contractor or subcontractor and the matter will be resolved 
by informal means whenever possible. If it has been determined that the 
matter cannot be resolved by informal means, action will be taken as 
provided for in Sec. 27.9.
    (b) Periodic compliance reviews. The Department Compliance Officer 
shall from time to time review the practices of recipients, contractors 
and subcontractors to determine whether they are complying with the 
rules, regulations and orders implementing section 403 of Public Law 93-
153. The purpose of the compliance review is to determine if the 
recipient, contractor or subcontractor maintains nondiscriminatory 
operations and practices and whether it is taking the action required by 
the rules, regulations, and orders implementing section 403 of Public 
Law 93-153 to assure that no person on the grounds of race, creed, 
color, national origin or sex is excluded from receiving or 
participating in any activity conducted under any permit, right-of-way, 
public land order or other Federal authorization to which this part 
applies. It shall consist of a comprehensive analysis of all aspects of 
the recipient's, contractor's or subcontractor's operations and 
practices which may be involved, and the policies and conditions 
resulting therefrom. Where necessary, recommendations for appropriate 
sanctions shall be made.
    (c) Complaints. Any person who believes himself or any other 
individual to be subjected to discrimination prohibited by this part may 
file with the Department Compliance Officer or his designee, a written 
complaint. A complaint must be filed not later than 180

[[Page 447]]

days from the date of the alleged discrimination, unless the time for 
filing is extended by the Department Compliance Officer or his designee.
    (d) Investigations. The Department Compliance Officer or his 
designee will make a prompt investigation whenever a compliance review 
report, complaint, or any other information indicates a possible failure 
to comply with the rules, regulations, and orders implementing section 
403 of Public Law 93-153. The investigation should include, where 
appropriate, a review of the pertinent practices and policies of the 
recipient, contractor, or subcontractor, the circumstances under which 
the possible noncompliance occurred and other factors relevant to a 
determination as to whether the recipient, contractor or subcontractor 
has failed to comply with section 403 of Public Law 93-153 and 
implementing rules, regulations, and orders.
    (e) Resolution of matters. (1) If an investigation pursuant to 
paragraph (a), (b), (c), or (d) of this section indicates a failure to 
comply with the rules, regulations, and orders implementing section 403 
of Public Law 93-153, the Department Compliance Officer or his designee 
will so inform the recipient, contractor or subcontractor and the matter 
will be resolved by informal means whenever possible. Before the 
recipient, contractor or subcontractor can be found to be in compliance, 
he must make specific commitments in writing, to correct all 
deficiencies. The commitments must include the precise actions to be 
taken and dates for completion. The time periods allotted shall be no 
longer than the minimum periods necessary to effect such changes. Upon 
approval of the Department Compliance Officer, the recipient, contractor 
or subcontractor, may be considered in compliance, on condition that the 
commitments are faithfully kept. The recipient, contractor or 
subcontractor shall be notified that making such commitments does not 
preclude future determinations of noncompliance when the commitments are 
not being met or when there is a determination by the Department 
Compliance Officer that the full facts were not known at the time 
commitments were accepted, and that commitments are not sufficient to 
correct deficiencies.
    (2) If an investigation does not warrant action pursuant to 
paragraph (e)(1) of this section, the Department Compliance Officer 
shall so inform the recipient, contractor or subcontractor, and the 
complainant, if any, in writing.
    (f) Intimidatory or retaliatory acts prohibited. No recipient, 
contractor or subcontractor shall intimidate, threaten, coerce, or 
discriminate against any individual for the purpose of interfering with 
any right or privilege secured by section 403 of Public Law 93-153 and 
implementing rules, regulations, and orders, or because he has made a 
complaint, testified, assisted, benefited from, or participated in any 
manner in an investigation, compliance review, proceeding, or hearing 
under this part. The identity of complainants shall be kept confidential 
except to the extent necessary to carry out the purposes of this part 
including the conduct of any investigation, hearing, or judicial 
proceeding arising thereunder.
    (g) Approval of action by Authorized Officer. During the period of 
construction of the Trans-Alaska Pipeline, and until such time as this 
paragraph (g) is rescinded by the Secretary, the Department Compliance 
Officer shall coordinate all actions taken pursuant to this part with 
the Authorized Officer and shall secure the approval of the Authorized 
Officer prior to the taking of any final act hereunder.



Sec. 27.9  Procedures for effecting compliance.

    (a) General. If there appears to be a failure or refusal of any 
recipient, contractor, or subcontractor to observe or comply 
substantially with section 403 of Public Law 93-153, or implementing 
rules, regulations, and orders, compliance may be effected through the 
use of conciliation conferences, informal hearings, and procedures to 
cause termination or suspension of or refusal to grant or to continue 
the permit, or other Federal authorization to which this part applies, 
or of the contracts to which this part applies, or by any other means 
authorized by law. Such other means may include, but are not limited to:

[[Page 448]]

    (1) A reference to the Department of Justice with a recommendation 
that appropriate proceedings be brought to enforce any rights of the 
United States under any law of the United States or any assurance or 
other contractural undertaking, and
    (2) Any applicable proceeding under State or local law.
    (b) Noncompliance with Sec. 27.4. In the event that a recipient 
fails or refuses to furnish an assurance required under Sec. 27.4, or 
otherwise fails or refuses to comply with a requirement imposed by or 
pursuant to that section the failure or refusal may, at the option of 
the Secretary, be grounds for authorizing proceedings to cause refusal 
of the Federal authorization in accordance with the procedures of 
paragraph (c) of this section. The Department of the Interior shall not 
be required to provide the authorization in such a case during the 
pendency of the administrative proceedings under such paragraph.
    (c) Termination of or refusal to grant or to continue the Federal 
authorization--(1) General. In those instances where a recipient fails 
or refuses to observe or comply substantially with section 403 of Public 
Law 93-153 or implementing rules, regulations, and orders, noncompliance 
at the option of the Secretary, may be grounds for termination, 
suspension, refusal to grant or continue the Federal authorization.
    (i) Recommendation to proceed. The Department Compliance Officer may 
request that the Secretary commence procedures to suspend, terminate, or 
refuse to grant or continue the Federal authorization or to cause such 
suspension, termination, or refusal to grant. He shall indicate the 
specific grounds for alleging noncompliance with section 403 and 
implementing rules, regulations, and orders, the actions which would 
create compliance, and the time necessary to achieve compliance.
    (ii) Commencement of proceedings. Before the Secretary authorizes 
the commencement of an administrative proceeding for termination, 
suspension, or refusal to grant any Federal authorization to which this 
part applies, the Secretary or his designee shall give the recipient 
notice in writing of the alleged ground or grounds for termination or 
formal suspension, or refusal to grant, with sufficient particularity to 
enable the recipient to comply with section 403 of Public Law 93-153 and 
implementing rules, regulations and orders. The recipient shall have 
sixty (60) days from the date of delivery of the notice within which to 
comply. If compliance cannot be achieved in sixty (60) days, the 
recipient shall be entitled to additional time if he demonstrates that 
compliance is not possible within the sixty (60) day period and that the 
necessary curative actions were undertaken promptly and have been 
diligently prosecuted toward completion; Provided further that the 
aforesaid additional time shall not exceed ninety (90) days from the 
last day of the said sixty (60) day period, without the prior written 
consent of the Secretary or his designee which shall specify the last 
day upon which the curative action must be completed to the satisfaction 
of the Secretary or his designee.
    (iii) Opportunity for a hearing. No order suspending, terminating or 
refusing to grant or continue any Federal authorization to which this 
part applies shall become effective until there has been an express 
finding on the record, after opportunity for a formal hearing, of a 
failure by the applicant or recipient to comply substantially with 
section 403 of Public Law 93-153 or implementing rules, regulations, and 
orders and the action has been approved by the Secretary pursuant to 
Sec. 27.11(e).
    (2) [Reserved]
    (d) Other means authorized by law. No action to effect compliance by 
any other means authorized by law shall be taken until (1) the action 
has been approved by the Secretary, (2) the recipient or other person 
has been notified of its failure to comply and of the action to be taken 
to effect compliance, and (3) the expiration of at least 10 days from 
the mailing of such notice to the recipient or other person. During this 
period of at least 10 days additional efforts shall be made to persuade 
the recipient or other person to comply and to take such corrective 
action as may be appropriate.



Sec. 27.10  Hearings.

    (a) Informal hearings--(1) Purpose. The Department Compliance 
Officer may convene such informal hearings as may

[[Page 449]]

be deemed appropriate for the purpose of inquiring into the status of 
compliance of any recipient, contractor, or subcontractor to which this 
part applies.
    (2) Notice. Recipients, contractors, and subcontractors shall be 
advised in writing as to the time and place of the informal hearings and 
may be directed to bring specific documents and records, or furnish 
other relevant information concerning their compliance status. When so 
requested, the recipient, contractor, or subcontractor shall attend and 
bring requested documents and records, or other requested information.
    (3) Conduct of hearings. The hearing shall be conducted by hearing 
officers appointed by the Department Compliance Officer. Parties to 
informal hearings may be represented by counsel or other authorized 
representative as provided in 43 CFR part 1 and shall have a fair 
opportunity to present any relevant material. Formal rules of evidence 
will not apply to such proceedings.
    (b) Formal hearings--(1) Opportunity for hearing. Whenever an 
opportunity for a hearing is required by Sec. 27.9(c), reasonable 
notice shall be given by registered or certified mail, return receipt 
requested, to the affected applicant or recipient. This notice shall 
advise the applicant or recipient of the action proposed to be taken, 
the specific provision under which the proposed action against it is to 
be taken, and the matters of fact or law asserted as the basis for this 
action, and either (i) fix a date not less than twenty (20) days after 
the date of such notice within which the applicant or recipient may 
request of the Secretary or his designee or the administrative law judge 
to whom the matter has been assigned that the matter be scheduled for 
hearing or (ii) advise the applicant or recipient that the matter in 
question has been set down for hearing at a stated place and time. The 
time and place so fixed shall be reasonable and shall be subject to 
change for cause. The complainant, if any, shall be advised of the time 
and place of the hearing. An applicant or recipient may waive a hearing 
and submit written information and argument for the record. The failure 
of an applicant or recipient to request a hearing under this paragraph 
or to appear at a hearing for which a date has been set shall be deemed 
to be a waiver of the right to a hearing under section 403 of Public Law 
93-153 and implementing rules, regulations, and orders and consent to 
the making of a decision on the basis of information on the record.
    (2) Time and place of hearing. Hearings shall be conducted by the 
Office of Hearings and Appeals of the Department, at a time and place 
fixed by the administrative law judge to whom the matter has been 
assigned. Hearings shall be held before an administrative law judge 
designated by the Office of Hearings and Appeals in accordance with its 
procedures.
    (3) Right to Counsel. In all proceedings under this section, the 
applicant or recipient and the Department shall have the right to be 
represented by counsel or other authorized representative as provided in 
43 CFR part 1.
    (4) Procedures, evidence, and record. (i) The hearing, decision, and 
any administrative review thereof shall be conducted in conformity with 
5 U.S.C. 554 through 557 and in accordance with such rules of procedure 
as are proper (and not inconsistent with this section) relating to the 
conduct of the hearing, giving of notices subsequent to those provided 
for in paragraph (b)(1) of this section, taking of testimony, exhibits, 
arguments and briefs, requests for findings, and other related matters. 
Both the Department and the applicant or recipient shall be entitled to 
introduce all relevant evidence on the issues as stated in the notice 
for hearing or as determined by the administrative law judge conducting 
the hearing at the outset of or during the hearing.
    (ii) Technical rules of evidence shall not apply to hearings 
conducted pursuant to this part, but rules or principles designed to 
assure production of the most credible evidence available and to subject 
testimony to test by cross-examination shall be applied where determined 
reasonably necessary by the administrative law judge conducting the 
hearing. The administrative law judge may exclude irrelevant, 
immaterial, or unduly repetitious evidence. All documents and other 
evidence offered or taken for the record shall be open to

[[Page 450]]

examination by the parties and opportunity shall be given to refute 
facts and arguments advanced on either side of the issues. A transcript 
shall be made of the oral evidence except to the extent that the 
substance thereof is stipulated for the record. All decisions shall be 
based upon the hearing record and written findings shall be made.
    (5) Consolidated or joint hearings. In cases in which the same or 
related facts are asserted to constitute noncompliance with this part 
with respect to two or more Federal authorizations to which this part 
applies, or asserted to constitute noncompliance with this part and the 
regulations of one or more other Federal departments or agencies, the 
Secretary may, by agreement with such other departments or agencies, 
where applicable, provide for the conduct of consolidated or joint 
hearings, and for the application to such hearings of rules of procedure 
not inconsistent with this part. Final decisions in such cases, insofar 
as this part is concerned, shall be made in accordance with Sec. 27.11.



Sec. 27.11  Decisions and notices.

    (a) Initial decision by an administrative law judge. The 
administrative law judge shall make an initial decision and a copy of 
such initial decision shall be sent by registered mail, return receipt 
requested, to the recipient or applicant.
    (b) Review of the initial decision. The applicant or recipient may 
file his exceptions to the initial decision, with his reasons therefor, 
with the Director, Office of Hearings and Appeals, within thirty (30) 
days of receipt of the initial decision. In the absence of exceptions, 
the Director, Office of Hearings and Appeals, on his own motion within 
forty-five (45) days after the initial decision, may notify the 
applicant or recipient that he will review the decision. In the absence 
of exceptions or a notice of review, the initial decision shall 
constitute the final decision subject to the approval of the Secretary 
pursuant to paragraph (f) of this section.
    (c) Decisions by the Director, Office of Hearings and Appeals. 
Whenever the Director, Office of Hearings and Appeals, reviews the 
decision of an administrative law judge pursuant to paragraph (b) of 
this section, the applicant or recipient shall be given reasonable 
opportunity to file with him briefs or other written statements of its 
contention, and a copy of the final decision of the Director, Office of 
Hearings and Appeals, shall be given to the applicant or recipient and 
to the complainant, if any.
    (d) Decisions on record where a hearing is waived. Whenever a 
hearing is waived pursuant to Sec. 27.10 (b)(1), a decision shall be 
made by the Director, Office of Hearings and Appeals, on the record and 
a copy of such decision shall be given in writing to the applicant or 
recipient and to the complainant, if any.
    (e) Rulings required. Each decision of an administrative law judge 
or the Director, Office of Hearings and Appeals, shall set forth his 
ruling on each finding, conclusion, or exception presented, and shall 
identify the requirement or requirements imposed by or pursuant to this 
part with which it is found that the applicant or recipient has failed 
to comply.
    (f) Approval by Secretary. Any final decision of an administrative 
law judge or of the Director, Office of Hearings and Appeals, which 
provides for the suspension or termination of, or the refusal to grant 
or continue a Federal authorization, or the imposition of any other 
sanction available under this part, shall promptly be transmitted to the 
Secretary, who may approve such decision, may vacate it, or remit or 
mitigate any sanction imposed.
    (g) Content of decisions. The final decision may provide for 
suspension or termination of, or refusal to grant or continue a Federal 
authorization, in whole or in part, and may contain such terms, 
conditions, and other provisions as are consistent with and will 
effectuate the purposes of section 403 of Public Law 93-153 and 
implementing rules, regulations, and orders, including provisions 
designated to assure that no Federal authorization will be extended 
under title II of Public Law 93-153 to the applicant or recipient 
determined by such decision to be in default in its performance of an 
assurance given by it pursuant to section 403 and implementing rules, 
regulations, and orders or to have otherwise failed

[[Page 451]]

to comply with this part, unless and until it corrects its noncompliance 
and satisfies the Secretary that it will fully comply with this part.
    (h) Post termination decisions. An applicant or recipient adversely 
affected by an order issued under paragraph (g) of this section shall be 
restored to full eligibility to receive the Federal authorization if it 
satisfies the terms and conditions of that order for such eligibility 
and if it provides reasonable assurance that it will fully comply with 
this part.



Sec. 27.12  Judicial review.

    Action taken pursuant to this part is subject to judicial review.



Sec. 27.13  Effect on other regulations; forms and instructions.

    (a) Effect on other regulations. Nothing in these regulations shall 
be deemed to supersede any of the following (including future amendments 
thereof):
    (1) Executive Order 11246, as amended, and regulations therefor;
    (2) Executive Order 11063 and regulations issued thereunder, or any 
other regulations or instructions insofar as such Order, regulations, or 
instructions prohibit discrimination on the ground of race, creed, 
color, national origin, or sex in any program or situation to which this 
part is inapplicable, or prohibit discrimination on any other ground.
    (3) Regulations to effectuate title VI of the Civil Rights Act of 
1964.
    (b) Forms and instructions. The Department Compliance Officer may 
issue and make available to interested persons instructions and 
procedures for effectuating this part.
    (c) Supervision and coordination. The Secretary may from time to 
time assign to such officials of the Department as he deems appropriate, 
or to officials of other departments or agencies of the Government with 
the consent of such departments or agencies, responsibilities in 
connection with the effectuation of the purposes of this part (other 
than responsibility for final decision as provided in Sec. 27.11), 
including the achievement of effective coordination and maximum 
uniformity within the Department and within the Executive Branch of the 
Government in the application of this part. Any action taken, 
determination made, or requirement imposed by an official of another 
department or agency acting pursuant to an assignment of responsibility 
under this paragraph shall have the same effect as though such action 
had been taken by the Secretary of the Interior.



Sec. 27.14  Definitions.

    As used in this part:
    (a) The term Secretary means the Secretary of the Interior.
    (b) The term applicant means one who submits an application for any 
Federal authorization to which this part applies.
    (c) The term recipient means any entity or individual who receives a 
permit, right-of-way, public land order, or other Federal authorization 
granted or issued under title II of Public Law 93-153 and its agent or 
agents.
    (d) The term contract means any agreement or arrangement between a 
recipient and any person (in which the parties do not stand in the 
relationship of an employer and an employee) in any way related to the 
activities of the recipient conducted under any permit, right-of-way, 
public land order, or other Federal authorization granted or issued 
under title II.
    (e) The term subcontract means any agreement or arrangement between 
a contractor and any person (in which the parties do not stand in the 
relationship of an employer and an employee) in any way related to the 
performance of any one or more contracts as defined above.
    (f) The Authorized Officer means the employee of the Department, 
designated to act on behalf of the Secretary pursuant to the Agreement 
and Grant of Right-of-Way for Trans-Alaska Pipeline or such other person 
to whom the Authorized Officer redelegates his authority pursuant to the 
delegation of authority to the Authorized Officer from the Secretary.
    (g) The Department Compliance Officer means that officer of the 
Department of the Interior so designated by the Secretary.

[[Page 452]]



PART 28_FIRE PROTECTION EMERGENCY ASSISTANCE--Table of Contents



Sec.
28.1 Purpose.
28.2 Definitions.
28.3 Emergency assistance.

    Authority: Act of May 27, 1955 (42 U.S.C. 1856, 1856b).

    Source: 41 FR 51794, Nov. 24, 1976, unless otherwise noted.



Sec. 28.1  Purpose.

    The purpose of this part is to provide criteria for agencies in the 
Department to render fire protection emergency assistance to fire 
organizations not within the Department.



Sec. 28.2  Definitions.

    As used in this part:
    (a) The term agency head means the Secretary of the Interior or an 
official of the Department of the Interior who exercises authority 
delegated by the Secretary of the Interior.
    (b) The term fire protection includes personnel services and 
equipment required for fire prevention, the protection of life and 
property, and firefighting; and



Sec. 28.3  Emergency assistance.

    In the absence of a reciprocal fire protection agreement, each 
agency head may provide emergency fire protection will not jeopardize 
the property of the United States by making it impossible for the agency 
head to protect the property of the United States and such assistance is 
determined to be in the best interest of the United States. The 
providing of emergency assistance shall not be in the best interest of 
the United States and may not be granted by an agency head if:
    (a) Persons other than those currently employed by the agency at the 
time of the emergency and trained in the type of emergency assistance 
being provided would be used in the providing of the emergency 
assistance.
    (b) Assistance is provided to a place more than an hour's travel 
from where the agency maintains fire protection facilities. Assistance 
which requires more than an hour's travel may be given for those fire 
emergencies threatening to last more than 12 hours, or endangering human 
life.



PART 29_TRANS-ALASKA PIPELINE LIABILITY FUND--Table of Contents



Sec.
29.1 Definitions.
29.2 Creation of the Fund.
29.3 Fund administration.
29.4 General powers.
29.5 Officers and employees.
29.6 Financing, accounting, and audit.
29.7 Imposition of strict liability.
29.8 Notification and advertisement.
29.9 Claims, settlement and adjudication.
29.10 Subrogation.
29.11 Investment.
29.12 Borrowing.
29.13 Termination.
29.14 Information collection.

    Authority: Sec. 204(c), Trans-Alaska Pipeline Authorization Act, 43 
U.S.C. 1653(c); secs. 311(p)(1) and 311(p)(2) of the Federal Water 
Pollution Control Act, 33 U.S.C. 1321 (p)(1), (2).

    Source: 53 FR 3396, Feb. 5, 1988, unless otherwise noted.



Sec. 29.1  Definitions.

    As used in this part:
    (a) Act means the Trans-Alaska Pipeline Authorization Act, title II 
of Public Law 93-153, 43 U.S.C. secs. 1651, et seq.
    (b) Affiliated means:
    (1) Any person owned or effectively controlled by the vessel Owner 
or Operators; or
    (2) Any person that effectively controls or has the power to 
effectively control the vessel Owner or Operator by--
    (i) Stock interest, or
    (ii) Representation on a board of directors or similar body, or
    (iii) Contract or other agreement with other stockholders, or
    (iv) Otherwise, or;
    (3) Any person which is under common ownership or control with the 
vessel Owner or Operator.
    (c) Claim means a demand in writing for payment for damage allegedly 
caused by an incident.
    (d) Contact person means a person designated by the Owner or 
Operator and identified to the Fund Administrator and the National 
Response Center operated by the Coast Guard as the official

[[Page 453]]

responsible for coordinating with the Fund the resolution of claims 
filed as a result of a TAPS oil spill.
    (e) Damage or damages means any economic loss, arising out of or 
directly resulting from an incident, including but not limited to:
    (1) Removal costs;
    (2) Injury to, or destruction of, real or personal property;
    (3) Loss of use of real or personal property;
    (4) Injury to, or destruction of, natural resources;
    (5) Loss of use of natural resources; or
    (6) Loss of profits or impairment of earning capacity due to injury 
or destruction of real or personal property or natural resources, 
including loss of subsistence hunting, fishing and gathering 
opportunities.
    (f) Fund means the Trans-Alaska Pipeline Liability Fund established 
as a non-profit corporate entity by section 204(c)(4) of the Trans-
Alaska Pipeline Authorization Act.
    (g) Guarantor means the person, other than the Owner or Operator who 
provides evidence of financial responsibility for an Owner or Operator, 
and includes an underwriter, insurer or surety company.
    (h) Incident (or ``spill'') means a discharge of oil from a vessel 
which is carrying TAPS oil loaded on that vessel at the terminal 
facilities of the Pipeline and which:
    (1) Violates applicable water quality standards, or
    (2) Causes a film or sheen upon or discoloration of the surface of 
the water or adjoining shorelines or causes a sludge or emulsion to be 
deposited beneath the surface of the water or upon adjoining shorelines.
    (i) Operator of the Pipeline means the common agent designated by 
the Permittees to operate the Pipeline.
    (j) Owner of the oil means the Owner of TAPS oil at the time that 
such oil is loaded on a vessel at the terminal facilities of the 
Pipeline.
    (k)(1) Owner means, in the case of a vessel, the person owning the 
vessel carrying TAPS oil at the time of an incident, and
    (2) Operator means, in the case of a vessel, the person operating, 
or chartering by demise, the vessel carrying TAPS oil at the time of an 
incident.
    (l) Person means an individual, a corporation, a partnership, an 
association, a joint stock company, a business trust, an unincorporated 
organization, or a Government entity.
    (m) Person in charge of the vessel means the individual on board the 
vessel with the ultimate responsibility for vessel navigation and 
operations.
    (n) Permittees means the holders of the Pipeline right-of-way for 
the Trans-Alaska Pipeline System.
    (o) Pipeline means any Pipeline in the Trans-Alaska Pipeline System.
    (p) Secretary means the Secretary of the Interior or an authorized 
representative of the Secretary.
    (q) TAPS oil means oil which was transported through the Trans-
Alaska Pipeline and loaded on a vessel at the terminal facilities of the 
Pipeline.
    (r) Terminal facilities means those facilities of the Trans-Alaska 
Pipeline System at which oil is taken from the Pipeline and loaded on 
vessels or placed in storage for future loading onto vessels.
    (s) Trans-Alaska Pipeline System or System means any Pipeline or 
terminal facilities constructed by the Permittees under the authority of 
the Act.
    (t) United States includes the various States of the United States, 
the District of Columbia, the Commonwealth of Puerto Rico, the Canal 
Zone, Guam, the Virgin Islands, American Samoa, the Commonwealth of the 
Northern Mariana Islands, and the Trust Territory of the Pacific 
Islands.
    (u) Vessel means any type of water-craft or other artificial 
contrivance, used or capable of being used as a means of transportation 
on water, which is engaged in any segment of transportation between the 
terminal facilities of the Pipeline and ports under the jurisdiction of 
the United States, and which is carrying TAPS oil.



Sec. 29.2  Creation of the Fund.

    (a) The Trans-Alaska Pipeline Liability Fund (Fund) was created by 
the Act as a non-profit corporation to be administered by the holders of 
the Trans-Alaska Pipeline right-of-way under

[[Page 454]]

regulations prescribed by the Secretary. The vessel Owner and Operator 
are strickly liable for the first $14 million of claims for any one 
incident. The vessel Owner and Operator remain liable for claims over 
that amount whenever the damages involved were caused by the 
unseaworthiness of the vessel or by negligence and should the Fund pay 
any claims under those circumstances, the Fund retains the right of 
subrogation. The Fund's maximum liability for any one incident is the 
amount of the claims over $14 million but not to exceed $100 million.
    (b) The Fund shall be subject to, and shall take all steps necessary 
to carry out its responsibilities under, the Act and these implementing 
regulations.
    (c) The right to repeal, alter, or amend these regulations is 
expressly reserved.



Sec. 29.3  Fund administration.

    (a) The Fund shall be administered by a Board of Trustees designated 
by the Permittees and the Secretary as provided in paragraph (b) of this 
section.
    (b)(1) The Board of Trustees shall be comprised of one member 
designated by each Permittee and three members designated by the 
Secretary. At least one member designated by the Secretary shall be 
chosen from persons nominated by the Governor of the State of Alaska. 
Each member shall serve for a period of three years and may succeed 
himself or herself. Each member shall have the right to vote. If 
additional persons become holders of rights-of-way, each such additional 
Permittee shall have the right to designate a trustee, and if any holder 
of right-of-way sells the interest in such right-of-way, such holder's 
designated trustee shall resign from the Board. The Board shall elect by 
a majority vote a Chairman and a Secretary annually.
    (2) Where any activity of the Fund creates a conflict of interest, 
or the appearance of a conflict of interest, on the part of any member 
of the Board of Trustees, the member involved shall excuse himself or 
herself from any consideration of such activity by the Board of 
Trustees.
    (c) The Board of Trustees by a majority vote shall select an 
Administrator to direct the day-to-day operations of the Fund.
    (d) The Board of Trustees shall hold meetings every six months, or 
more frequently when necessary to consider pressing matters, including 
pending claims under Sec. 29.9.
    (e)(1) Each Board Member and officer of the Fund now or hereafter 
serving as such, shall be indemnified by the Fund against any and all 
claims and liabilities to which he or she has or shall become subject by 
reason of serving or having served as such Board Member or officer, or 
by reason of any action alleged to have been taken, omitted, or 
neglected by him or her as such Board Member or officer; and the Fund 
shall reimburse each such person for all legal expenses reasonably 
incurred by him or her in connection with any such claim or liability: 
Provided, however, That no such person shall be indemnified against, or 
be reimbursed for any expenses incurred in connection with, any claim or 
liability arising out of his or her own willful misconduct or gross 
negligence.
    (2) The amount paid to any officer or Board Member by way of 
indemnification shall not exceed his or her actual liabilities and 
actual, reasonable, and necessary expenses incurred in connection with 
the matter involved. Expenses incurred in defending a civil or criminal 
action, suit, or proceeding may be paid by the Fund in advance of the 
final disposition of such action, suit, or proceeding as authorized by 
the Board in the specific case upon receipt of an undertaking by or on 
behalf of the Board Member or officer to repay such amount if it shall 
ultimately be determined that he or she is not entitled to be 
indemnified by the Fund as authorized herein.
    (3) The indemnification provided by this section shall continue as 
to a person who has ceased to be a Board Member or officer and shall 
inure to the benefit of the heirs, executors, and administrators of such 
a person. The right of indemnification hereinabove provided for shall 
not be exclusive of any rights to which any Board Member or officer of 
the Fund may otherwise be entitled by law.

[[Page 455]]



Sec. 29.4  General powers.

    The Fund shall have such powers as may be necessary and appropriate 
for the exercise of the powers herein specifically and impliedly 
conferred upon the Fund and all such incidental powers as are customary 
in non-profit corporations generally, including but not limited to the 
following:
    (a) By resolution of the Board of Trustees, the fund shall adopt a 
corporate seal.
    (b) The Fund may sue and be sued in its corporate name and may 
employ counsel to represent it.
    (c) The Fund shall be a resident of the State of Alaska with its 
principal place of business in Alaska, and the Board of Trustees shall 
establish a business office or offices as deemed necessary for the 
operation of the Fund.
    (d) In any civil action for the recovery of damages resulting from 
an incident, the Fund shall waive personal jurisdiction upon being 
furnished with a copy of the summons and complaint in the action.
    (e) The Board of Trustees of the Fund, by a majority of those 
present and voting, shall adopt and may amend and repeal by-laws 
governing the performance of its statutory duties.
    (f) The Fund shall do all things necessary and proper in conducting 
its activities as Trustee including
    (1) Receipt of fee collections pursuant to section 204(c)(6) of the 
Act;
    (2) Payment of costs and expenses reasonably necessary to the 
administration of the Fund as well as costs required to satisfy claims 
against the Fund;
    (3) Investment of all sums not needed for administration and the 
satisfaction of claims in income-producing securities as hereinafter 
provided; and
    (4) Seeking recovery of any monies to which it is entitled as 
subrogee under circumstances set forth in section 204(c)(8) of the Act.
    (g) The Fund shall determine the character of and the necessity for 
its obligations and expenditures, and the manner in which they shall be 
incurred, allowed, and paid. The Board of Trustees shall establish an 
annual budget, subject to the approval of the Secretary.
    (h) All costs and expenses reasonably necessary to the 
administration of the Fund, including costs and expenses incident to the 
termination, settlement, or payment of claims, are properly chargeable 
as expenses and payable out of fees or other income of the Fund.



Sec. 29.5  Officers and employees.

    (a) The Administrator is the Chief Executive Officer of the Fund and 
is responsible for carrying out all executive and administrative 
functions as authorized by the Board of Trustees in accordance with the 
Act including the receipt and verification of fees collected from Owners 
of TAPS oil pursuant to Sec. 29.6(a), the investment of Fund assets in 
securities according to guidelines approved by the Board of Trustees and 
consistent with these regulations, and the disbursement of such assets 
in payment of expenses and approved claims.
    (b) The Fund may employ such other persons as may be necessary to 
carry out its functions.



Sec. 29.6  Financing, accounting, and audit.

    (a)(1) The Operator of the Pipeline shall notify each Permittee 
within a reasonable time as to the date of the tanker loadings and the 
volumes of TAPS oil loaded. The Permittee will send an invoice for 
transportation charges for TAPS oil (which includes five cents per 
barrel for the Fund) to the Owner of the oil. The Permittee will receive 
the five cents per barrel fee from the Owner of the oil in accordance 
with the terms of its particular pipeline tariff, filed with the 
appropriate governmental agency, and shall transfer the fee on or before 
the next business day to a Fund bank account designated by the 
Administrator. Collection of fees shall cease at the end of the month 
following the month in which $100 million has been accumulated in the 
Fund from any source. Collection of fees shall be resumed when the 
accumulation falls below $100 million. The Administrator shall notify 
the Pipeline carriers by the fifteenth of the month if fees are to be 
collected during the following month.
    (2) The value of the Fund shall be the current market value of the 
Fund on

[[Page 456]]

the day at the end of each month or other agreed upon accounting period.
    (b) Costs of the administration shall be paid from the money 
received by the Fund, and all sums not needed for administration and the 
satisfaction of claims shall be invested in accordance with Sec. 29.11. 
The interest on and the proceeds from the sale of any obligations held 
in the Fund shall be credited to and form a part of the Fund. Income 
from such securities shall be added to the principal of the Fund if not 
used for costs of administration or settlement of claims.
    (c) At the end of each month that fees are payable under the Act, or 
other agreed upon accounting period, the Operator of the Pipeline shall 
provide the Fund with a statement of the respective volumes of crude oil 
transported by the Operator of the Pipeline and delivered to vessels, 
the amount of fees charged and collected, and the Owners of TAPS oil 
from whom such fees were or are due. The Administrator shall provide a 
copy of the statement to the Owners of the oil, and to the State of 
Alaska.
    (d) The Fund shall undertake an annual accounting.
    (e) The Fund shall be subject to an annual audit by the Comptroller 
General, in coordination with the Administrator and the Secretary. 
Authorized representatives of the Comptroller General and the Secretary 
shall have complete access, for purposes of the audit or otherwise, to 
all books, accounts, financial records, reports, files, and all other 
papers, things, or property belonging to or in use by the Fund and they 
shall be afforded full facilities for verifying among other things, 
transactions with the balances on securities held by depositories, 
fiscal agents, and custodians. A report of each audit made by the 
Comptroller General shall be submitted to the Congress.



Sec. 29.7  Imposition of strict liability.

    (a) Notwithstanding the provisions of any other law, where a vessel 
is engaged in any segment of transportation between the terminal 
facilities of the Pipeline and ports under the jurisdiction of the 
United States, and is carrying TAPS oil, the Owner and Operator (jointly 
and severally), and the Fund established by section 204(c) of the Act, 
shall be strictly liable without regard to fault in accordance with that 
section for all damages, including clean-up costs, sustained by any 
person or entity, public or private, including residents of Canada, as a 
result of any discharge of TAPS oil from such vessel. Strict liability 
under this section shall cease when the TAPS oil has first been brought 
ashore at a port under the jurisdiction of the United States.
    (b) Strict liability shall not be imposed under this part if the 
Owner or Operator of the vessel, or the Fund, can prove that the damages 
were caused by an act of war or by the negligence of the United States 
or other governmental agency. Strict liability shall not be imposed 
under the Act with respect to the claim of a damaged party if the Owner 
or Operator of the vessel, or the Fund, can prove that the damage was 
caused by the negligence of such damaged party.
    (c)(1) Strict liability for all claims arising out of any one 
incident shall not exceed $100 million. The Owner and Operator of the 
vessel shall be jointly and severally liable for the first $14 million 
of the claims that meet the definition of damages as provided for in 
these regulations. The Fund shall be liable for the balance of the 
claims that meet the same definition up to $100 million. If the total of 
these claims exceeds $100 million, they shall be reduced 
proportionately. The unpaid portion of any claim may be asserted and 
adjudicated under other applicable Federal or State law.
    (2) The Fund shall establish uniform procedures to determine whether 
claims from a TAPS oil spill might exceed $14 million and $100 million. 
These procedures shall provide that when a determination is made that 
claims may exceed $100 million, payment of claims may be withheld in 
full or in part for a twenty-four month period so that claims may be 
proportionately reduced prior to payment.
    (d)(1) Each Owner or Operator of a vessel shall obtain from the 
Federal Maritime Commission a ``Certificate of Financial Responsibility 
(Alaska Pipeline)'' demonstrating compliance with the provisions of 
section 311(p) of the

[[Page 457]]

Federal Water Pollution Control Act, as amended (33 U.S.C. 1321(p)), and 
regulations promulgated pursuant to such act (33 CFR part 131). 
Notwithstanding inconsistent language in such act, financial 
responsibility in the amount of $14 million for all such vessels must be 
established.
    (2) The certificate obtained in accordance with this subsection 
shall be carried on board the vessel. No TAPS oil may be loaded on any 
vessel which has not been issued a valid certificate which is still in 
effect at the time of loading.



Sec. 29.8  Notification and advertisement.

    (a) As soon as the person in charge of a vessel has knowledge of an 
incident in which the vessel is involved, he shall immediately notify 
the Owner or Operator and the National Response Center, (800) 424-6802, 
of the incident. Notification under this section is in addition to any 
notification requirements under section 311(b)(5) of the Federal Water 
Pollution Control Act, as amended, and the regulations of the Coast 
Guard and the Environmental Protection Agency promulgated thereunder (33 
CFR 153.203 and 40 CFR 110.10, respectively).
    (b) Upon receiving notice of an incident, the National Response 
Center shall immediately notify the Fund.
    (c)(1) At the time of a spill of TAPS oil, the vessel Owner and 
Operator shall consult with each other and identify a single contact 
person to both the Fund Administrator and the National Response Center 
as the official who is responsible for coordinating with the Fund the 
resolution of claims from a spill of TAPS oil. The National Response 
Center shall provide the identity of the contact person to appropriate 
officials of the Coast Guard.
    (2) The Fund shall establish procedures for coordination of the 
handling of claims with the contact person.
    (d) Pursuant to its procedures, the Fund shall ascertain if the 
spill may result in damage claims in excess of $14 million. If it 
concludes that that level may be reached, the Fund shall commence 
advertisement no later than 45 days from the date the Fund receives 
notice of the incident and shall continue advertising for a period of 
not less than thirty days.
    (e) The advertisement must appear in one or more local newspapers of 
general circulation and the Fund shall establish procedures governing 
the format and the information to be included in the advertisement of an 
incident. All advertisements must include:
    (1) The date and location of the incident;
    (2) The name of the Owner or Operator;
    (3) The name and address of the contact person or of the Fund 
Administrator to whom claims should be sent.



Sec. 29.9  Claims, settlement and adjudication.

    (a)(1) Claims in accordance with this section may be submitted by 
any damaged party, his or her duly authorized agent, or his or her 
successor in interest.
    (2) Claims submitted in accordance with this section must contain 
the following information:
    (i) A detailed statement of the circumstances, if known, by which 
the claimed loss occurred.
    (ii) A detailed listing of damages incurred, categorized according 
to the type of damage involved (Sec. 29.1(e)), and including a monetary 
claim for each type of damage listed.
    (iii) Documentation of all monetary claims asserted.
    (b) The contact person must provide copies of all claims filed with 
the vessel Owner or Operator to the Fund Administrator upon request of 
the Administrator. Once such claims are paid, the contact person shall 
notify the Fund and upon request of the Administrator supply any 
adjuster's reports.
    (c) Prior to reaching $14 million in claims filed, the contact 
person shall notify the Fund whether the vessel Owner or Operator will 
assume responsibility to pay damages over the $14 million level.
    (d)(1) In the event the vessel Owner or Operator refuses to pay 
claims over the $14 million level, the Fund shall determine if the $14 
million in claims already filed meet the definition of damage as 
established by this section. The Fund shall pay the claims, or portion 
of claims, over $14 million, which have been determined to meet that 
definition.

[[Page 458]]

    (2) The Fund shall establish uniform procedures and standards for 
the appraisal and settlement of claims against the Fund, including but 
not limited to procedures for appraising claims made to the vessel Owner 
or Operator to determine when $14 million of claims meeting the 
definition of damages has been reached; procedures to determine whether 
claims over the $14 million level which it receives meet the definition 
of damages; and procedures for determining when the services of a 
private insurance and claims adjuster shall be used.
    (e) In the event the vessel Owner or Operator refuses payment of any 
claims up to $14 million, the injured parties have recourse to the 
district court for the Federal district in which the spill occurred or 
the appropriate State court for the State in which the spill occurred. 
The Fund only becomes liable after $14 million in claims meeting the 
definition of damages have been paid or have been acknowledged as 
payable by the vessel Owner or Operator.
    (f) The Fund may settle or compromise any claim presented to it.
    (g) No claim may be presented, nor any action be commenced, for 
damages recoverable under this part unless that claim is presented to or 
that action is commenced against the vessel Owner or Operator, or their 
guarantor, or against the Fund, as to their respective liabilities, 
within two years from the date of discovery of the damages caused by an 
incident, or of the date of the incident causing the damages, whichever 
is earlier.
    (h)(1) The Board of Trustees, by a majority vote, shall decide to 
allow or deny claims or settlements presented to the Fund in accordance 
with this section. In its discretion the Board may delegate the 
authority to settle classes of claims to the Administrator.
    (2)(i) Where a claim is presented to the Fund by or on behalf of any 
person having a close business, personal or governmental association 
with any member of the Board of Trustees, such as to create a conflict 
of interest or the appearance of such conflict of interest on the part 
of such member of the Board of Trustees, the member involved shall 
excuse himself or herself from any consideration of such claim.
    (ii) Where a claim presented to the Fund has previously been 
presented to the Owner or Operator and such Owner or Operator has a 
close business, personal or governmental association with any member of 
the Board of Trustees, such as to create a conflict of interest or the 
appearance of a conflict of interest on the part of such member of the 
Board of Trustees, the member involved shall excuse himself or herself 
from any consideration of such claim.
    (i) Any claimant aggrieved by the Fund's decision on a claim under 
this section may appeal the decision in the appropriate Federal district 
court.



Sec. 29.10  Subrogation.

    If the Fund pays compensation to any claimant, the Fund shall be 
subrogated to all rights, claims, and causes of action which that 
claimant has to the extent permitted by law.



Sec. 29.11  Investment.

    (a) The monies accumulated in the Fund shall be prudently invested 
in the following types of income-producing obligations having a high 
degree of reliability and security, or in such other obligations as the 
Secretary may approve:
    (1) Fixed income securities issued by the United States or any of 
its agencies, at the same interest rates and terms available to private 
investors; and
    (2) Fixed income securities or obligations issued by a corporation 
or issued or guaranteed by a State or local government or any political 
subdivision, agency or instrumentality thereof, provided such 
obligations have a rating by Standard and Poors, or Moody, of ``A'' or 
better, or an equivalent rating, or provided further that the security 
or obligation is of the same priority as another security or obligation 
of the same issuer which has been rated ``A'' or better, and provided 
that the portfolio has an overall rating of ``AA.'' Provided, however, 
That no securities or obligations of the permittees or their affiliates 
or of any investment advisor or custodian to the Fund, or their 
affiliates may be purchased or held by the Fund.

[[Page 459]]

    (3) Time certificates of deposit and commercial paper provided that 
the commercial paper has a rating of either ``A1'' or ``P1'' or both.
    (b) No more than two percent of the total principal amount 
outstanding of fixed income obligations of a single issuer may be held 
by the Fund at any one time, Provided, however, That this restriction 
shall not apply to obligations of the United States or any of its 
agencies.



Sec. 29.12  Borrowing.

    In the event the Fund is unable to satisfy a claim determined to be 
justified, or is in need of money with which to initiate the operation 
of the Fund, the Fund may borrow the money needed from any commercial 
credit source at the lowest available rate of interest. If the amount to 
be borrowed is $500,000 or less, the Administrator may arrange to pledge 
the credit of the Fund pursuant to a resolution of the Board of 
Trustees. If the proposed borrowing exceeds $500,000, the Administrator 
shall, prior to issuance of a note or other security pledging the credit 
of the Fund, secure the approval of the Secretary. No money may be 
borrowed from any of the Permittees or their affiliates.



Sec. 29.13  Termination.

    Upon termination of operations of the Pipeline, the full disposition 
of all claims, and the expiration of time for the filing of claims 
against the Fund, all assets remaining in the Fund shall be placed in a 
temporary trust fund account within the State of Alaska. The terms of 
the trust arrangement shall be determined by the Secretary. During the 
next succeeding session of Congress, the Secretary shall request that 
Congress provide for final disposition of the Fund. If Congress at any 
time establishes a comprehensive oil pollution liability fund which 
supersedes or repeals the Fund, the Fund assets and any pending claims 
shall be disposed of as Congress or the Secretary shall direct.



Sec. 29.14  Information collection.

    The information collection requirements contained in 43 CFR 29.9 
have been approved by the Office of Management and Budget under 44 
U.S.C. 3501 et seq. and assigned approval No. 1084-0026. The information 
being collected is the information required to substantiate claims 
submitted to the Fund. The information will be used to determine whether 
the claims are appropriate for payment by the Fund. Submission of this 
information is required of claimants before a claim can be considered.



PART 30_INDIAN PROBATE HEARINGS PROCEDURES--Table of Contents



                  Subpart A_Scope of Part; Definitions

Sec.
30.100 How do I use this part?
30.101 What definitions do I need to know?
30.102 Will the Secretary probate all the land or assets in an estate?

              Subpart B_Commencement of Probate Proceedings

30.110 When does OHA commence a probate case?
30.111 How does OHA commence a probate case?
30.112 What must a complete probate file contain?
30.113 What will OHA do if it receives an incomplete probate file?
30.114 Will I receive notice of the probate proceeding?
30.115 May I review the probate record?

                 Subpart C_Judicial Authority and Duties

30.120 What authority does the judge have in probate cases?
30.121 May a judge appoint a master in a probate case?
30.122 Is the judge required to accept the master's recommended 
          decision?
30.123 Will the judge determine matters of status and nationality?
30.124 When may a judge make a finding of death?
30.125 May a judge reopen a probate case to correct errors and 
          omissions?
30.126 What happens if property was omitted from the inventory of the 
          estate?
30.127 What happens if property was improperly included in the 
          inventory?
30.128 What happens if an error in BIA's estate inventory is alleged?

                   Subpart D_Recusal of a Judge or ADM

30.130 How does a judge or ADM recuse himself or herself from a probate 
          case?
30.131 How will the case proceed after the judge's or ADM's recusal?
30.132 May I appeal the judge's or ADM's recusal decision?

[[Page 460]]

                            Subpart E_Claims

30.140 Where and when may I file a claim against the probate estate?
30.141 How must I file a claim against a probate estate?
30.142 Will a judge authorize payment of a claim from the trust estate 
          if the decedent's non-trust estate was or is available?
30.143 Are there any categories of claims that will not be allowed?
30.144 May the judge authorize payment of the costs of administering the 
          estate?
30.145 When can a judge reduce or disallow a claim?
30.146 What property is subject to claims?
30.147 What happens if there is not enough trust personalty to pay all 
          the claims?
30.148 Will interest or penalties charged after the date of death be 
          paid?

            Subpart F_Consolidation and Settlement Agreements

30.150 What action will the judge take if the interested parties agree 
          to settle matters among themselves?
30.151 May the devisees or eligible heirs in a probate proceeding 
          consolidate their interests?
30.152 May the parties to an agreement waive valuation of trust 
          property?
30.153 Is an order approving an agreement considered a partition or sale 
          transaction?

                      Subpart G_Purchase at Probate

30.160 What may be purchased at probate?
30.161 Who may purchase at probate?
30.162 Does property purchased at probate remain in trust or restricted 
          status?
30.163 Is consent required for a purchase at probate?
30.164 What must I do to purchase at probate?
30.165 Whom will OHA notify of a request to purchase at probate?
30.166 What will the notice of the request to purchase at probate 
          include?
30.167 How does OHA decide whether to approve a purchase at probate?
30.168 How will the judge allocate the proceeds from a sale?
30.169 What may I do if I do not agree with the appraised market value?
30.170 What may I do if I disagree with the judge's determination to 
          approve a purchase at probate?
30.171 What happens when the judge grants a request to purchase at 
          probate?
30.172 When must the successful bidder pay for the interest purchased?
30.173 What happens after the successful bidder submits payment?
30.174 What happens if the successful bidder does not pay within 30 
          days?
30.175 When does a purchased interest vest in the purchaser?

                   Subpart H_Renunciation of Interest

30.180 May I give up an inherited interest in trust or restricted 
          property or trust personalty?
30.181 How do I renounce an inherited interest?
30.182 Who may receive a renounced interest in trust or restricted land?
30.183 Who may receive a renounced interest of less than 5 percent in 
          trust or restricted land?
30.184 Who may receive a renounced interest in trust personalty?
30.185 May my designated recipient refuse to accept the interest?
30.186 Are renunciations that predate the American Indian Probate Reform 
          Act of 2004 valid?
30.187 May I revoke my renunciation?
30.188 Does a renounced interest vest in the person who renounced it?

                  Subpart I_Summary Probate Proceedings

30.200 What is a summary probate proceeding?
30.201 What does a notice of a summary probate proceeding contain?
30.202 May I file a claim or renounce or disclaim an interest in the 
          estate in a summary probate proceeding?
30.203 May I request that a formal probate proceeding be conducted 
          instead of a summary probate proceeding?
30.204 What must a summary probate decision contain?
30.205 How do I seek review of a summary probate proceeding?
30.206 What happens after I file a request for de novo review?
30.207 What happens if nobody files for de novo review?

                  Subpart J_Formal Probate Proceedings

                                 Notice

30.210 How will I receive notice of the formal probate proceeding?
30.211 Will the notice be published in a newspaper?
30.212 May I waive notice of the hearing or the form of notice?
30.213 What notice to a tribe is required in a formal probate 
          proceeding?
30.214 What must a notice of hearing contain?

            Depositions, Discovery, and Prehearing Conference

30.215 How may I obtain documents related to the probate proceeding?
30.216 How do I obtain permission to take depositions?

[[Page 461]]

30.217 How is a deposition taken?
30.218 How may the transcript of a deposition be used?
30.219 Who pays for the costs of taking a deposition?
30.220 How do I obtain written interrogatories and admission of facts 
          and documents?
30.221 May the judge limit the time, place, and scope of discovery?
30.222 What happens if a party fails to comply with discovery?
30.223 What is a prehearing conference?

                                Hearings

30.224 May a judge compel a witness to appear and testify at a hearing 
          or deposition?
30.225 Must testimony in a probate proceeding be under oath or 
          affirmation?
30.226 Is a record made of formal probate hearings?
30.227 What evidence is admissible at a probate hearing?
30.228 Is testimony required for self-proved wills, codicils, or 
          revocations?
30.229 When will testimony be required for approval of a will, codicil, 
          or revocation?
30.230 Who pays witnesses' costs?
30.231 May a judge schedule a supplemental hearing?
30.232 What will the official record of the probate case contain?
30.233 What will the judge do with the original record?
30.234 What happens if a hearing transcript has not been prepared?

                     Decisions in Formal Proceedings

30.235 What will the judge's decision in a formal probate proceeding 
          contain?
30.236 What notice of the decision will the judge provide?
30.237 May I file a petition for rehearing if I disagree with the 
          judge's decision in the formal probate hearing?
30.238 Does any distribution of the estate occur while a petition for 
          rehearing is pending?
30.239 How will the judge decide a petition for rehearing?
30.240 May I submit another petition for rehearing?
30.241 When does the judge's decision on a petition for rehearing become 
          final?
30.242 May a closed probate case be reopened?
30.243 How will the judge decide my petition for reopening?
30.244 What happens if the judge reopens the case?
30.245 When will the decision on reopening become final?

                   Subpart K_Miscellaneous Provisions

30.250 When does the anti-lapse provision apply?
30.251 What happens if an heir or devisee participates in the killing of 
          the decedent?
30.252 May a judge allow fees for attorneys representing interested 
          parties?
30.253 How must minors or other legal incompetents be represented?
30.254 What happens when a person dies without a valid will and has no 
          heirs?

      Subpart L_Tribal Purchase of Interests Under Special Statutes

30.260 What land is subject to a tribal purchase option at probate?
30.261 How does a tribe exercise its statutory option to purchase?
30.262 When may a tribe exercise its statutory option to purchase?
30.263 May a surviving spouse reserve a life estate when a tribe 
          exercises its statutory option to purchase?
30.264 When must BIA furnish a valuation of a decedent's interests?
30.265 What determinations will a judge make with respect to a tribal 
          purchase option?
30.266 When is a final decision issued?
30.267 What if I disagree with the probate decision regarding tribal 
          purchase option?
30.268 May I demand a hearing regarding the tribal purchase option 
          decision?
30.269 What notice of the hearing will the judge provide?
30.270 How will the hearing be conducted?
30.271 How must the tribe pay for the interests it purchases?
30.272 What are BIA's duties on payment by the tribe?
30.273 What action will the judge take to record title?
30.274 What happens to income from land interests during pendency of the 
          probate?

    Authority: 5 U.S.C. 301, 503; 25 U.S.C. 9, 372-74, 410, 2201 et 
seq.; 43 U.S.C. 1201, 1457.

    Cross Reference: For regulations pertaining to the processing of 
Indian probate matters within the Bureau of Indian Affairs, see 25 CFR 
part 15. For regulations pertaining to the appeal of decisions of the 
Probate Hearings Division, Office of Hearings and Appeals, to the Board 
of Indian Appeals, Office of Hearings and Appeals, see 43 CFR part 4, 
subpart D. For regulations generally applicable to proceedings before 
the Hearings Divisions and Appeal Boards of the Office of Hearings and 
Appeals, see 43 CFR part 4, subpart B.

    Source: 73 FR 67289, Nov. 13, 2008, unless otherwise noted.

[[Page 462]]



                  Subpart A_Scope of Part; Definitions



Sec. 30.100  How do I use this part?

    (a) The following table is a guide to the relevant contents of this 
part by subject matter.

------------------------------------------------------------------------
     For provisions relating to . . .               consult . . .
------------------------------------------------------------------------
(1) All proceedings in part 30............  Sec. Sec.  30.100 through
                                             30.102.
(2) Claims against probate estate.........  Sec. Sec.  30.140 through
                                             30.148.
(3) Commencement of probate...............  Sec. Sec.  30.110 through
                                             30.115.
(4) Consolidation of interests............  Sec. Sec.  30.150 through
                                             30.153.
(5) Formal probate proceedings before an    Sec. Sec.  30.210 through
 administrative law judge or Indian          30.246.
 probate judge.
(6) Probate of trust estates of Indians     All sections except Sec.
 who die possessed of trust property.        Sec.  30.260 through
                                             30.274.
(7) Purchases at probate..................  Sec. Sec.  30.160 through
                                             30.175.
(8) Renunciation of interests.............  Sec. Sec.  30.180 through
                                             30.188.
(9) Summary probate proceedings before an   Sec. Sec.  30.200 through
 attorney decision maker.                    30.207.
(10) Tribal purchase of certain property    Sec. Sec.  30.260 through
 interests of decedents under special laws   30.274.
 applicable to particular tribes.
------------------------------------------------------------------------

    (b) Except as limited by the provisions of this part, the 
regulations in part 4, subparts A and B of this subtitle apply to these 
proceedings.
    (c) The following provisions do not apply to Alaska property 
interests:
    (1) Sec. 30.151;
    (2) Sec. Sec. 30.160 through 30.175;
    (3) Sec. 30.182 through 30.185, except for Sec. 30.184(c);
    (4) Sec. 30.213; and
    (5) Sec. 30.214(f) and (g).



Sec. 30.101  What definitions do I need to know?

    Act means the Indian Land Consolidation Act and its amendments, 
including the American Indian Probate Reform Act of 2004 (AIPRA), Public 
Law 108-374, as codified at 25 U.S.C. 2201 et seq.
    Administrative law judge (ALJ) means an administrative law judge 
with OHA appointed under the Administrative Procedure Act, 5 U.S.C. 
3105.
    Affidavit means a written declaration of facts by a person that is 
signed by that person, swearing or affirming under penalty of perjury 
that the facts declared are true and correct to the best of that 
person's knowledge and belief.
    Agency means:
    (1) The Bureau of Indian Affairs (BIA) agency office, or any other 
designated office in BIA, having jurisdiction over trust or restricted 
land and trust personalty; and
    (2) Any office of a tribe that has entered into a contract or 
compact to fulfill the probate function under 25 U.S.C. 450f or 458cc.
    Attorney decision maker (ADM) means an attorney with OHA who 
conducts a summary proceeding and renders a decision that is subject to 
de novo review by an administrative law judge or Indian probate judge.
    BIA means the Bureau of Indian Affairs within the Department.
    BLM means the Bureau of Land Management within the Department.
    Board means the Interior Board of Indian Appeals within OHA.
    Chief ALJ means the Chief Administrative Law Judge, Probate Hearings 
Division, OHA.
    Child means a natural or adopted child.
    Codicil means a supplement or addition to a will, executed with the 
same formalities as a will. It may explain, modify, add to, or revoke 
provisions in an existing will.
    Consolidation agreement means a written agreement under the 
provisions of 25 U.S.C. 2206(e) or 2206(j)(9), entered during the 
probate process, approved by the judge, and implemented by the probate 
order, by which a decedent's heirs and devisees consolidate interests in 
trust or restricted land.
    Creditor means any individual or entity that has a claim for payment 
from a decedent's estate.
    Day means a calendar day.
    Decedent means a person who is deceased.
    Decision or order (or decision and order) means:
    (1) A written document issued by a judge making determinations as to 
heirs, wills, devisees, and the claims of creditors, and ordering 
distribution of trust or restricted land or trust personalty;
    (2) The decision issued by an ADM in a summary probate proceeding; 
or

[[Page 463]]

    (3) A decision issued by a judge finding that the evidence is 
insufficient to determine that a person is deceased by reason of 
unexplained absence.
    De novo review means a process in which an administrative law judge 
or Indian probate judge, without regard to the decision previously 
issued in the case, will:
    (1) Review all the relevant facts and issues in a probate case;
    (2) Reconsider the evidence introduced at a previous hearing;
    (3) Conduct a formal hearing as necessary or appropriate; and
    (4) Issue a decision.
    Department means the Department of the Interior.
    Deposition means a proceeding in which a party takes testimony from 
a witness during discovery.
    Devise means a gift of property by will. Also, to give property by 
will.
    Devisee means a person or entity that receives property under a 
will.
    Discovery means a process through which a party to a probate 
proceeding obtains information from another party. Examples of discovery 
include interrogatories, depositions, requests for admission, and 
requests for production of documents.
    Eligible heir means, for the purposes of the Act, any of a 
decedent's children, grandchildren, great grandchildren, full siblings, 
half siblings by blood, and parents who are:
    (1) Indian;
    (2) Lineal descendents within two degrees of consanguinity of an 
Indian; or
    (3) Owners of a trust or restricted interest in a parcel of land for 
purposes of inheriting--by descent, renunciation, or consolidation 
agreement--another trust or restricted interest in such a parcel from 
the decedent.
    Estate means the trust or restricted land and trust personalty owned 
by the decedent at the time of death.
    Formal probate proceeding means a proceeding, conducted by a judge, 
in which evidence is obtained through the testimony of witnesses and the 
receipt of relevant documents.
    Heir means any individual or entity eligible to receive property 
from a decedent in an intestate proceeding.
    Individual Indian Money (IIM) account means an interest bearing 
account for trust funds held by the Secretary that belong to a person 
who has an interest in trust assets. These accounts are under the 
control and management of the Secretary.
    Indian means, for the purposes of the Act:
    (1) Any person who is a member of a federally recognized Indian 
tribe, is eligible to become a member of any federally recognized Indian 
tribe, or is an owner (as of October 27, 2004) of a trust or restricted 
interest in land;
    (2) Any person meeting the definition of Indian under 25 U.S.C. 479; 
or
    (3) With respect to the inheritance and ownership of trust or 
restricted land in the State of California under 25 U.S.C. 2206, any 
person described in paragraph (1) or (2) of this definition or any 
person who owns a trust or restricted interest in a parcel of such land 
in that State.
    Indian probate judge (IPJ) means an attorney with OHA, other than an 
ALJ, to whom the Secretary has delegated the authority to hear and 
decide Indian probate cases.
    Interested party means:
    (1) Any potential or actual heir;
    (2) Any devisee under a will;
    (3) Any person or entity asserting a claim against a decedent's 
estate;
    (4) Any tribe having a statutory option to purchase the trust or 
restricted property interest of a decedent; or
    (5) Any co-owner exercising a purchase option.
    Interrogatories means written questions submitted to another party 
for responses as part of discovery.
    Intestate means that the decedent died without a valid will as 
determined in the probate proceeding.
    Judge means an ALJ or IPJ.
    Lockbox means a centralized system within OST for receiving and 
depositing trust fund remittances collected by BIA.
    LTRO means the Land Titles and Records Office within BIA.
    Master means a person who has been specially appointed by a judge to 
assist with the probate proceedings.
    Minor means an individual who has not reached the age of majority as 
defined by the applicable law.
    OHA means the Office of Hearings and Appeals within the Department.

[[Page 464]]

    OST means the Office of the Special Trustee for American Indians 
within the Department.
    Per stirpes means by right of representation, dividing an estate 
into equal shares based on the number of decedent's surviving children 
and predeceased children who left issue who survive the decedent. The 
share of a predeceased child of the decedent is divided equally among 
the predeceased child's surviving children.
    Probate means the legal process by which applicable tribal, Federal, 
or State law that affects the distribution of a decedent's estate is 
applied in order to:
    (1) Determine the heirs;
    (2) Determine the validity of wills and determine devisees;
    (3) Determine whether claims against the estate will be paid from 
trust personalty; and
    (4) Order the transfer of any trust or restricted land or trust 
personalty to the heirs, devisees, or other persons or entities entitled 
by law to receive them.
    Purchase option at probate means the process by which eligible 
purchasers can purchase a decedent's interest during the probate 
proceeding.
    Restricted property means real property whose title is held by an 
Indian but which cannot be alienated or encumbered without the consent 
of the Secretary. For the purposes of probate proceedings, restricted 
property is treated as if it were trust property. Except as the law may 
provide otherwise, the term ``restricted property'' as used in this part 
does not include the restricted lands of the Five Civilized Tribes of 
Oklahoma or the Osage Nation.
    Secretary means the Secretary of the Interior or an authorized 
representative.
    Summary probate proceeding means the consideration of a probate file 
without a hearing. A summary probate proceeding may be conducted if the 
estate involves only an IIM account that does not exceed $5,000 in value 
on the date of the death of the decedent.
    Superintendent means a BIA Superintendent or other BIA official, 
including a field representative or one holding equivalent authority.
    Testate means that the decedent executed a valid will as determined 
in the probate proceeding.
    Testator means a person who has executed a valid will as determined 
in the probate proceeding.
    Trust personalty means all tangible personal property, funds, and 
securities of any kind that are held in trust in an IIM account or 
otherwise supervised by the Secretary.
    Trust property means real or personal property, or an interest 
therein, the title to which is held in trust by the United States for 
the benefit of an individual Indian or tribe.
    We or us means the Secretary or an authorized representative as 
defined in this section.
    Will means a written testamentary document that was executed by the 
decedent and attested to by two disinterested adult witnesses, and that 
states who will receive the decedent's trust or restricted property.
    You or I means an interested party, as defined herein, with an 
interest in the decedent's trust estate unless a specific section states 
otherwise.



Sec. 30.102  Will the Secretary probate all the land or assets in an estate?

    (a) We will probate only the trust or restricted land or trust 
personalty in an estate.
    (b) We will not probate the following property:
    (1) Real or personal property other than trust or restricted land or 
trust personalty in an estate of a decedent;
    (2) Restricted land derived from allotments in the estates of 
members of the Five Civilized Tribes (Cherokee, Choctaw, Chickasaw, 
Creek, and Seminole) in Oklahoma; and
    (3) Restricted interests derived from allotments made to Osage 
Indians in Oklahoma (Osage Nation) and Osage headright interests owned 
by Osage decedents.
    (c) We will probate that part of the estate of a deceased member of 
the Five Civilized Tribes or Osage Nation who owned either:
    (1) A trust interest in land; or
    (2) A restricted interest in land derived from an individual Indian 
who was a member of a tribe other than the Five Civilized Tribes or 
Osage Nation.

[[Page 465]]



              Subpart B_Commencement of Probate Proceedings



Sec. 30.110  When does OHA commence a probate case?

    OHA commences probate of a trust estate when OHA receives a probate 
file from the agency.



Sec. 30.111  How does OHA commence a probate case?

    OHA commences a probate case by confirming the case number assigned 
by BIA, assigning the case to a judge or ADM, and designating the case 
as a summary probate proceeding or formal probate proceeding.



Sec. 30.112  What must a complete probate file contain?

    A probate file must contain the documents and information described 
in 25 CFR 15.202 and any other relevant information.



Sec. 30.113  What will OHA do if it receives an incomplete probate file?

    If OHA determines that the probate file received from the agency is 
incomplete or lacks the certification described in 25 CFR 15.204, OHA 
may do any of the following:
    (a) Request the missing information from the agency;
    (b) Dismiss the case and return the probate file to the agency for 
further processing;
    (c) Issue a subpoena, interrogatories, or requests for production of 
documents as appropriate to obtain the missing information; or
    (d) Proceed with a hearing in the case.



Sec. 30.114  Will I receive notice of the probate proceeding?

    (a) If the case is designated as a formal probate proceeding, OHA 
will send a notice of hearing to:
    (1) Potential heirs and devisees named in the probate file;
    (2) Those creditors whose claims are included in the probate file; 
and
    (3) Other interested parties identified by OHA.
    (b) In a case designated a summary probate proceeding, OHA will send 
a notice of the designation to potential heirs and devisees and will 
inform them that a formal probate proceeding may be requested instead of 
the summary probate proceeding.



Sec. 30.115  May I review the probate record?

    After OHA receives the case, you may examine the probate record at 
the relevant office during regular business hours and make copies at 
your own expense. Access to records in the probate file is governed by 
25 U.S.C. 2216(e), the Privacy Act, and the Freedom of Information Act.



                 Subpart C_Judicial Authority and Duties



Sec. 30.120  What authority does the judge have in probate cases?

    A judge who is assigned a probate case under this part has the 
authority to:
    (a) Determine the manner, location, and time of any hearing 
conducted under this part, and otherwise to administer the cases;
    (b) Determine whether an individual is deemed deceased by reason of 
extended unexplained absence or other pertinent circumstances;
    (c) Determine the heirs of any Indian or eligible heir who dies 
intestate possessed of trust or restricted property;
    (d) Approve or disapprove a will disposing of trust or restricted 
property;
    (e) Accept or reject any full or partial renunciation of interest in 
either a testate or intestate proceeding;
    (f) Approve or disapprove any consolidation agreement;
    (g) Conduct sales at probate and provide for the distribution of 
interests in the probate decision and order;
    (h) Allow or disallow claims by creditors;
    (i) Order the distribution of trust property to heirs and devisees 
and determine and reserve the share to which any potential heir or 
devisee who is missing but not found to be deceased is entitled;
    (j) Determine whether a tribe has jurisdiction over the trust or 
restricted property and, if so, the right of the tribe to receive a 
decedent's trust or restricted property under 25 U.S.C. 
2206(a)(2)(B)(v), 2206(a)(2)(D)(iii)(IV), or other applicable law;

[[Page 466]]

    (k) Issue subpoenas for the appearance of persons, the testimony of 
witnesses, and the production of documents at hearings or depositions 
under 25 U.S.C. 374, on the judge's initiative or, within the judge's 
discretion, on the request of an interested party;
    (l) Administer oaths and affirmations;
    (m) Order the taking of depositions and determine the scope and use 
of deposition testimony;
    (n) Order the production of documents and determine the scope and 
use of the documents;
    (o) Rule on matters involving interrogatories and any other requests 
for discovery, including requests for admissions;
    (p) Grant or deny stays, waivers, and extensions;
    (q) Rule on motions, requests, and objections;
    (r) Rule on the admissibility of evidence;
    (s) Permit the cross-examination of witnesses;
    (t) Appoint a guardian ad litem for any interested party who is a 
minor or found by the judge not to be competent to represent his or her 
own interests;
    (u) Regulate the course of any hearing and the conduct of witnesses, 
interested parties, attorneys, and attendees at a hearing;
    (v) Determine and impose sanctions and penalties allowed by law; and
    (w) Take any action necessary to preserve the trust assets of an 
estate.



Sec. 30.121  May a judge appoint a master in a probate case?

    (a) In the exercise of any authority under this part, a judge may 
appoint a master to do all of the following:
    (1) Conduct hearings on the record as to all or specific issues in 
probate cases as assigned by the judge;
    (2) Make written reports including findings of fact and conclusions 
of law; and
    (3) Propose a recommended decision to the judge.
    (b) When the master files a report under this section, the master 
must also mail a copy of the report and recommended decision to all 
interested parties.



Sec. 30.122  Is the judge required to accept the master's recommended decision?

    No, the judge is not required to accept the master's recommended 
decision.
    (a) An interested party may file objections to the report and 
recommended decision within 30 days of the date of mailing. An objecting 
party must simultaneously mail or deliver copies of the objections to 
all other interested parties.
    (b) Any other interested party may file responses to the objections 
within 15 days of the mailing or delivery of the objections. A 
responding party must simultaneously mail or deliver a copy of his or 
her responses to the objecting party.
    (c) The judge will review the record of the proceedings heard by the 
master, including any objections and responses filed, and determine 
whether the master's report and recommended decision are supported by 
the evidence of record.
    (1) If the judge finds that the report and recommended decision are 
supported by the evidence of record and are consistent with applicable 
law, the judge will enter an order adopting the recommended decision.
    (2) If the judge finds that the report and recommended decision are 
not supported by the evidence of record, the judge may do any of the 
following:
    (i) Remand the case to the master for further proceedings consistent 
with instructions in the remand order;
    (ii) Make new findings of fact based on the evidence in the record, 
make conclusions of law, and enter a decision; or
    (iii) Hear the case de novo, make findings of fact and conclusions 
of law, and enter a decision.
    (3) The judge may find that the master's findings of fact are 
supported by the evidence in the record but the conclusions of law or 
the recommended decision is not consistent with applicable law. In this 
case, the judge will issue an order adopting the findings of fact, 
making conclusions of law, and entering a decision.

[[Page 467]]



Sec. 30.123  Will the judge determine matters of status and nationality?

    (a) The judge in a probate proceeding will determine:
    (1) The status of eligible heirs or devisees as Indians;
    (2) If relevant, the nationality or citizenship of eligible heirs or 
devisees; and
    (3) Whether any of the Indian heirs or devisees with U.S. 
citizenship are individuals for whom the supervision and trusteeship of 
the United States has been terminated.
    (b) A judge may make determinations under this section in a current 
probate proceeding or in a completed probate case after a reopening 
without regard to a time limit.



Sec. 30.124  When may a judge make a finding of death?

    (a) A judge may make a finding that an heir, devisee, or person for 
whom a probate case has been opened is deceased, by reason of extended 
unexplained absence or other pertinent circumstances. The judge must 
include the date of death in the finding. The judge will make a finding 
of death only on:
    (1) A determination from a court of competent jurisdiction; or
    (2) Clear and convincing evidence.
    (b) In any proceeding to determine whether a person is deceased, the 
following rebuttable presumptions apply:
    (1) The absent person is presumed to be alive if credible evidence 
establishes that the absent person has had contact with any person or 
entity during the 6-year period preceding the hearing; and
    (2) The absent person is presumed to be deceased if clear and 
convincing evidence establishes that no person or entity with whom the 
absent person previously had regular contact has had any contact with 
the absent person during the 6 years preceding the hearing.



Sec. 30.125  May a judge reopen a probate case to correct errors and omissions?

    (a) On the written request of an interested party, or on the basis 
of the judge's own order, at any time, a judge has the authority to 
reopen a probate case to:
    (1) Determine the correct identity of the original allottee, or any 
heir or devisee;
    (2) Determine whether different persons received the same allotment;
    (3) Decide whether trust patents covering allotments of land were 
issued incorrectly or to a non-existent person; or
    (4) Determine whether more than one allotment of land had been 
issued to the same person under different names and numbers or through 
other errors in identification.
    (b) The judge will notify interested parties if a probate case is 
reopened and will conduct appropriate proceedings under this part.



Sec. 30.126  What happens if property was omitted from the inventory of the estate?

    This section applies when, after issuance of a decision and order, 
it is found that trust or restricted property or an interest therein 
belonging to a decedent was not included in the inventory.
    (a) A judge can issue an order modifying the inventory to include 
the omitted property for distribution under the original decision. The 
judge must furnish copies of any modification order to the agency and to 
all interested parties who share in the estate.
    (b) When the property to be included takes a different line of 
descent from that shown in the original decision, the judge will:
    (1) Conduct a hearing, if necessary, and issue a decision; and
    (2) File a record of the proceeding with the designated LTRO.
    (c) The judge's modification order or decision will become final at 
the end of the 30 days after the date on which it was mailed, unless a 
timely notice of appeal is filed with the Board within that period.
    (d) Any interested party who is adversely affected by the judge's 
modification order or decision may appeal it to the Board within 30 days 
after the date on which it was mailed.
    (e) The judge's modification order or decision must include a notice 
stating that interested parties who are adversely affected have a right 
to appeal the decision to the Board within 30

[[Page 468]]

days after the decision is mailed, and giving the Board's address. The 
judge's modification order or decision will become final at the end of 
this 30-day period, unless a timely notice of appeal is filed with the 
Board.



Sec. 30.127  What happens if property was improperly included in the inventory?

    (a) When, after a decision and order in a formal probate proceeding, 
it is found that property has been improperly included in the inventory 
of an estate, the inventory must be modified to eliminate this property. 
A petition for modification may be filed by the superintendent of the 
agency where the property is located, or by any interested party. The 
petitioner must serve the petition on all parties whose interests may be 
affected by the requested modification.
    (b) A judge will review the merits of the petition and the record of 
the title from the LTRO on which the modification is to be based, enter 
an appropriate decision, and give notice of the decision as follows:
    (1) If the decision is entered without a formal hearing, the judge 
must give notice of the decision to all interested parties whose rights 
are affected.
    (2) If a formal hearing is held, the judge must:
    (i) Enter a final decision based on his or her findings, modifying 
or refusing to modify the property inventory; and
    (ii) Give notice of the decision to all interested parties whose 
rights are affected.
    (c) Where appropriate, the judge may conduct a formal hearing at any 
stage of the modification proceeding. The hearing must be scheduled and 
conducted under this part.
    (d) The judge's decision must include a notice stating that 
interested parties who are adversely affected have a right to appeal the 
decision to the Board within 30 days after the date on which the 
decision was mailed, and giving the Board's address. The judge's 
decision will become final at the end of this 30-day period, unless a 
timely notice of appeal is filed with the Board.
    (e) The judge must forward the record of all proceedings under this 
section to the designated LTRO.



Sec. 30.128  What happens if an error in BIA's estate inventory is alleged?

    This section applies when, during a probate proceeding, an 
interested party alleges that the estate inventory prepared by BIA is 
inaccurate and should be corrected.
    (a) Alleged inaccuracies may include, but are not limited to, the 
following:
    (1) Trust property interests should be removed from the inventory 
because the decedent executed a gift deed or gift deed application 
during the decedent's lifetime, and BIA had not, as of the time of 
death, determined whether to approve the gift deed or gift deed 
application;
    (2) Trust property interests should be removed from the inventory 
because a deed through which the decedent acquired the property is 
invalid;
    (3) Trust property interests should be added to the inventory; and
    (4) Trust property interests included in the inventory are 
improperly described, although an erroneous recitation of acreage alone 
is not considered an improper description.
    (b) When an error in the estate inventory is alleged, the OHA 
deciding official will refer the matter to BIA for resolution under 25 
CFR parts 150, 151, or 152 and the appeal procedures at 25 CFR part 2.
    (1) If BIA makes a final determination resolving the inventory 
challenge before the judge issues a final decision in the probate 
proceeding, the probate decision will reflect the inventory 
determination.
    (2) If BIA does not make a final determination resolving the 
inventory challenge before the judge issues a final decision in the 
probate proceeding, the final probate decision will:
    (i) Include a reference to the pending inventory challenge; and
    (ii) Note that the probate decision is subject to administrative 
modification once the inventory dispute has been resolved.

[[Page 469]]



                   Subpart D_Recusal of a Judge or ADM



Sec. 30.130  How does a judge or ADM recuse himself or herself from a probate case?

    If a judge or ADM must recuse himself or herself from a probate case 
under Sec. 4.27(c) of this title, the judge or ADM must immediately 
file a certificate of recusal in the file of the case and notify the 
Chief ALJ, all interested parties, any counsel in the case, and the 
affected BIA agencies. The judge or ADM is not required to state the 
reason for recusal.



Sec. 30.131  How will the case proceed after the judge's or ADM's recusal?

    Within 30 days of the filing of the certificate of recusal, the 
Chief ALJ will appoint another judge or ADM to hear the case, and will 
notify the parties identified in Sec. 30.130 of the appointment.



Sec. 30.132  May I appeal the judge's or ADM's recusal decision?

    (a) If you have filed a motion seeking disqualification of a judge 
or ADM under Sec. 4.27(c)(2) of this title and the judge or ADM denies 
the motion, you may seek immediate review of the denial by filing a 
request with the Chief ALJ under Sec. 4.27(c)(3) of this title.
    (b) If a judge or ADM recuses himself from a probate case, you may 
not seek review of the recusal.



                            Subpart E_Claims



Sec. 30.140  Where and when may I file a claim against the probate estate?

    You may file a claim against the trust estate of an Indian with BIA 
or, after the agency transfers the probate file to OHA, with OHA.
    (a) In a formal probate proceeding, you must file your claim before 
the conclusion of the first hearing. Claims that are not filed by the 
conclusion of the first hearing are barred.
    (b) In a summary probate proceeding, if you are a devisee or 
eligible heir, you must file your claim with OHA within 30 days after 
the mailing of the notice of summary probate proceeding. Claims of 
creditors who are not devisees or eligible heirs will not be considered 
in a summary probate proceeding unless they were filed with the agency 
before it transferred the probate file to OHA.



Sec. 30.141  How must I file a claim against a probate estate?

    You must file your claim under 25 CFR 15.302 through 15.305.



Sec. 30.142  Will a judge authorize payment of a claim from the trust estate if the decedent's non-trust estate was or is available?

    The judge will not authorize payment of a claim from trust or 
restricted property if the judge determines that the decedent's non-
trust estate was or is available to pay the claim. This provision does 
not apply to a claim that is secured by trust or restricted property.



Sec. 30.143  Are there any categories of claims that will not be allowed?

    (a) Claims for care will not be allowed except upon clear and 
convincing evidence that the care was given on a promise of compensation 
and that compensation was expected.
    (b) A claim will not be allowed if it:
    (1) Has existed for such a period as to be barred by the applicable 
statute of limitations at date of decedent's death;
    (2) Is a tort claim that has not been reduced to judgment in a court 
of competent jurisdiction;
    (3) Is unliquidated; or
    (4) Is from a government entity and relates to payments for:
    (i) General assistance, welfare, unemployment compensation or 
similar benefits; or
    (ii) Social Security Administration supplemental security income or 
old-age, disability, or survivor benefits.



Sec. 30.144  May the judge authorize payment of the costs of administering the estate?

    On motion of the superintendent or an interested party, the judge 
may authorize payment of the costs of administering the estate as they 
arise and before the allowance of any claims against the estate.



Sec. 30.145  When can a judge reduce or disallow a claim?

    The judge has discretion to decide whether part or all of an 
otherwise

[[Page 470]]

valid claim is unreasonable, and if so, to reduce the claim to a 
reasonable amount or disallow the claim in its entirety. If a claim is 
reduced, the judge will order payment only of the reduced amount.



Sec. 30.146  What property is subject to claims?

    Except as prohibited by law, all intangible trust personalty of a 
decedent on hand or accrued at the date of death may be used for the 
payment of claims, including:
    (a) IIM account balances;
    (b) Bonds;
    (c) Unpaid judgments; and
    (d) Accounts receivable.



Sec. 30.147  What happens if there is not enough trust personalty to pay all the claims?

    If, as of the date of death, there was not enough trust personalty 
to pay all allowed claims, the judge may order them paid on a pro rata 
basis. The unpaid balance of any claims will not be enforceable against 
the estate after the estate is closed.



Sec. 30.148  Will interest or penalties charged after the date of death be paid?

    Interest or penalties charged against claims after the date of death 
will not be paid.



            Subpart F_Consolidation and Settlement Agreements



Sec. 30.150  What action will the judge take if the interested parties agree to settle matters among themselves?

    (a) A judge may approve a settlement agreement among interested 
parties resolving any issue in the probate proceeding if the judge finds 
that:
    (1) All parties to the agreement are advised as to all material 
facts;
    (2) All parties to the agreement understand the effect of the 
agreement on their rights; and
    (3) It is in the best interest of the parties to settle.
    (b) In considering the proposed settlement agreement, the judge may 
consider evidence of the respective values of specific items of property 
and all encumbrances.
    (c) If the judge approves the settlement agreement under paragraph 
(a) of this section, the judge will issue an order approving the 
settlement agreement and distributing the estate in accordance with the 
agreement.



Sec. 30.151  May the devisees or eligible heirs in a probate proceeding consolidate their interests?

    The devisees or eligible heirs may consolidate interests under 25 
U.S.C. 2206(e) in trust property already owned by the heirs or under 25 
U.S.C. 2206(j)(9) in property from the inventory of the decedent's 
estate, or both.
    (a) A judge may approve a written agreement among devisees or 
eligible heirs in a probate case to consolidate the interests of a 
decedent's devisees or eligible heirs.
    (1) To accomplish a consolidation, the agreement may include 
conveyances among decedent's devisees or eligible heirs of:
    (i) Interests in trust or restricted land in the decedent's trust 
inventory; and
    (ii) Interests of the devisees or eligible heirs in trust or 
restricted land which are not part of the decedent's trust inventory.
    (2) The parties must offer evidence sufficient to satisfy the judge 
of the percentage of ownership held and offered by a party.
    (3) If the decedent's devisees or eligible heirs enter into an 
agreement, the parties to the agreement are not required to comply with 
the Secretary's rules and requirements otherwise applicable to 
conveyances by deed.
    (b) If the judge approves an agreement, the judge will issue an 
order distributing the estate in accordance with the agreement.
    (c) In order to approve an agreement, the judge must find that:
    (1) The agreement to consolidate is voluntary;
    (2) All parties to the agreement know the material facts;
    (3) All parties to the agreement understand the effect of the 
agreement on their rights; and
    (4) The agreement accomplishes consolidation.

[[Page 471]]

    (d) An interest included in an approved agreement may not be 
purchased at probate without consent of the owner of the consolidated 
interest.



Sec. 30.152  May the parties to an agreement waive valuation of trust property?

    The parties to a settlement agreement or a consolidation agreement 
may waive valuation of trust property otherwise required by regulation 
or the Secretary's rules and requirements. If the parties waive 
valuation, the waiver must be included in the written agreement.



Sec. 30.153  Is an order approving an agreement considered a partition or sale transaction?

    An order issued by a judge approving a consolidation or settlement 
agreement will not be considered a partition or sale transaction under 
25 CFR part 152.



                      Subpart G_Purchase at Probate



Sec. 30.160  What may be purchased at probate?

    An eligible purchaser may purchase, during the probate of a trust or 
restricted estate, all or part of the estate of a person who died on or 
after June 20, 2006.
    (a) Any interest in trust or restricted property, including a life 
estate that is part of the estate (i.e., a life estate owned by the 
decedent but measured by the life of someone who survives the decedent), 
may be purchased at probate with the following exceptions:
    (1) If an interest is included in an approved consolidation 
agreement, that interest may not be purchased at probate without consent 
of the owner of the consolidated interest; and
    (2) An interest that a devisee will receive under a valid will 
cannot be purchased without the consent of the devisee.
    (b) A purchase option must be exercised before a decision or order 
is entered and must be included as part of the order in the estate.



Sec. 30.161  Who may purchase at probate?

    An eligible purchaser is any of the following:
    (a) Any devisee or eligible heir who is taking an interest in the 
same parcel of land in the probate proceeding;
    (b) Any person who owns an undivided trust or restricted interest in 
the same parcel of land;
    (c) The Indian tribe with jurisdiction over the parcel containing 
the interest; or
    (d) The Secretary on behalf of the tribe.



Sec. 30.162  Does property purchased at probate remain in trust or restricted status?

    Yes. The property interests purchased at probate must remain in 
trust or restricted status.



Sec. 30.163  Is consent required for a purchase at probate?

    (a) Consent is required for a purchase at probate if both of the 
following conditions are met:
    (1) If the interest in trust or restricted property meets the 
criteria in Sec. 30.160(a)(1) or (2); and
    (2) If the interest an heir will receive by intestate succession in 
the parcel subject to the probate proceeding meets either of the 
following criteria:
    (i) It is 5 percent or more of the entire undivided ownership 
interest in the parcel; or
    (ii) It is less than 5 percent of the entire undivided ownership 
interest in the parcel and the heir was residing on the parcel on the 
date of the decedent's death.
    (b) A devisee's consent is always required for a purchase at 
probate.



Sec. 30.164  What must I do to purchase at probate?

    Any eligible purchaser must submit a written request to OHA to 
purchase at probate before the decision or order is issued.



Sec. 30.165  Who will OHA notify of a request to purchase at probate?

    OHA will provide notice of a request to purchase at probate as shown 
in the following table:

------------------------------------------------------------------------
     OHA will provide notice to . . .                 By . . .
------------------------------------------------------------------------
(a) The heirs or devisees and the Indian    First class mail.
 tribe with jurisdiction over the interest.

[[Page 472]]

 
(b) The BIA agency with jurisdiction over   First class mail.
 the interest.
(c) All parties who have submitted a        First class mail.
 written request for purchase.
(d) To all other eligible purchasers......  Posting written notice in:
                                            (1) At least five
                                             conspicuous places in the
                                             vicinity of the place of
                                             the hearing; and
                                            (2) One conspicuous place at
                                             the agency with
                                             jurisdiction over the
                                             parcel.
------------------------------------------------------------------------



Sec. 30.166  What will the notice of the request to purchase at probate include?

    The notice under Sec. 30.165 will include:
    (a) The type of sale;
    (b) The date, time, and place of the sale;
    (c) A description of the interest to be sold; and
    (d) The appraised market value, determined in accordance with Sec. 
30.167(b), of the parcel containing the interest to be sold, a 
description of the interest to be sold, and an estimate of the market 
value allocated to the interest being sold.



Sec. 30.167  How does OHA decide whether to approve a purchase at probate?

    (a) OHA will approve a purchase at probate if an eligible purchaser 
submits a bid in an amount equal to or greater than the market value of 
the interest. OHA will sell the interest to the eligible purchaser 
submitting the highest such bid.
    (b) The market value of the interest to be sold at probate must be 
based on an appraisal that meets the standards in the Uniform Standards 
for Professional Appraisal Practice (USPAP), or on a valuation method 
developed by the Secretary pursuant to 25 U.S.C. 2214.



Sec. 30.168  How will the judge allocate the proceeds from a sale?

    (a) The judge will allocate the proceeds of sale among the heirs 
based on the fractional ownership interests in the parcel.
    (b) For the sale of an interest subject to a life estate, the judge 
must use the ratios in 25 CFR part 179 to allocate the proceeds of the 
sale among the holder of the life estate and the holders of any 
remainder interests.



Sec. 30.169  What may I do if I do not agree with the appraised market value?

    (a) If you are the heir whose interest is to be sold or a potential 
purchaser and you disagree with the appraised market value, you may:
    (1) File a written objection with OHA within 30 days after the date 
on which the notice provided under Sec. 30.165 was mailed, stating the 
reasons for the objection; and
    (2) Submit any supporting documentation showing why the market value 
should be modified within 15 days after filing a written objection.
    (b) The judge will consider your objection, make a determination of 
the market value, determine whether to approve the purchase under Sec. 
30.167, and notify all interested parties. The determination must 
include a notice stating that interested parties who are adversely 
affected may file written objections and request an interlocutory appeal 
to the Board as provided in Sec. 30.170.



Sec. 30.170  What may I do if I disagree with the judge's determination to approve a purchase at probate?

    (a) If you are adversely affected by the judge's determination to 
approve a purchase at probate under Sec. 30.167(a), you may file a 
written objection with the judge within 15 days after the mailing of a 
determination under Sec. 30.169(b).
    (1) The written objection must state the reasons for the objection 
and request an interlocutory appeal of the determination to the Board.
    (2) You must serve a copy of the written objection on the other 
interested parties and the agencies, stating that you have done so in 
your written objection.
    (b) If the objection is timely filed, the judge must forward a 
certified copy of the complete record in the case to the Board, together 
with a table of contents for the record, for review of the 
determination. The judge will not issue the decision in the probate case 
until the Board has issued its decision on interlocutory review of the 
determination.

[[Page 473]]

    (c) If the objection is not timely filed, the judge will issue an 
order denying the request for review as untimely and will furnish copies 
of the order to the interested parties and the agencies. If you disagree 
with the decision of the judge as to whether your objection was timely 
filed, you may file a petition for rehearing under Sec. 30.237 after 
the judge issues a decision under Sec. 30.235.



Sec. 30.171  What happens when the judge grants a request to purchase at probate?

    When the judge grants a request to purchase at probate, the judge 
will:
    (a) Notify all bidders by first class mail; and
    (b) Notify OST, the agency that prepared the probate file, and the 
agency having jurisdiction over the interest sold, including the 
following information:
    (1) The estate involved;
    (2) The parcel and interest sold;
    (3) The identity of the successful bidder; and
    (4) The amount of the bid.



Sec. 30.172  When must the successful bidder pay for the interest purchased?

    The successful bidder must pay to OST, by cashier's check or money 
order via the lockbox, or by electronic funds transfer, the full amount 
of the purchase price within 30 days after the mailing of the notice of 
successful bid.



Sec. 30.173  What happens after the successful bidder submits payment?

    (a) When OST receives payment, it will notify OHA, and the judge 
will enter an order approving the sale and directing the LTRO to record 
the transfer of title of the interest to the successful bidder. The 
order will state the date of the title transfer, which is the date 
payment was received.
    (b) OST will deposit the payment in the decedent's estate account.



Sec. 30.174  What happens if the successful bidder does not pay within 30 days?

    (a) If the successful bidder fails to pay the full amount of the bid 
within 30 days, the sale will be canceled and the interest in the trust 
or restricted property will be distributed as determined by the judge.
    (b) The time for payment may not be extended.
    (c) Any partial payment received from the successful bidder will be 
returned.



Sec. 30.175  When does a purchased interest vest in the purchaser?

    An interest in trust or restricted property purchased under this 
subpart is considered to have vested in the purchaser on the date 
specified in Sec. 30.173(a).



                   Subpart H_Renunciation of Interest



Sec. 30.180  May I give up an inherited interest in trust or restricted property or trust personalty?

    You may renounce an inherited or devised interest in trust or 
restricted property, including a life estate, or in trust personalty if 
you are 18 years old and not under a legal disability.



Sec. 30.181  How do I renounce an inherited interest?

    To renounce an interest under Sec. 30.180, you must file with the 
judge, before the issuance of the final order in the probate case, a 
signed and acknowledged declaration specifying the interest renounced.
    (a) In your declaration, you may retain a life estate in a specified 
interest in trust or restricted land and renounce the remainder 
interest, or you may renounce the complete interest.
    (b) If you renounce an interest in trust or restricted land, you may 
either:
    (1) Designate an eligible person or entity meeting the requirements 
of Sec. 30.182 or Sec. 30.183 as the recipient; or
    (2) Renounce without making a designation.
    (c) If you choose to renounce your interests in favor of a 
designated recipient, the judge must notify the designated recipient.



Sec. 30.182  Who may receive a renounced interest in trust or restricted land?

    (a) If the interest renounced is an interest in land, you may 
renounce only in favor of:

[[Page 474]]

    (1) An eligible heir of the decedent;
    (2) A person eligible to be a devisee of the interest, if you are a 
devisee of the interest under a valid will; or
    (3) The tribe with jurisdiction over the interest.
    (b) For purposes of paragraph (a)(2) of this section, a person 
eligible to be a devisee of the interest is:
    (1) A lineal descendant of the testator;
    (2) A person who owns a preexisting undivided trust or restricted 
interest in the same parcel;
    (3) Any Indian; or
    (4) The tribe with jurisdiction over the interest.



Sec. 30.183  Who may receive a renounced interest of less than 5 percent in trust or restricted land?

    You may renounce an interest in trust or restricted land that is not 
disposed of by a valid will and that represents less than 5 percent of 
the entire undivided ownership of a parcel of land only in favor of:
    (a) One other eligible heir;
    (b) One Indian who is related to you by blood;
    (c) One co-owner of another trust or restricted interest in the same 
parcel; or
    (d) The Indian tribe with jurisdiction over the interest.



Sec. 30.184  Who may receive a renounced interest in trust personalty?

    (a) You may renounce an interest in trust personalty in favor of any 
person or entity.
    (b) The Secretary will maintain and continue to manage trust 
personalty transferred by renunciation to:
    (1) A lineal descendant of the testator;
    (2) A tribe; or
    (3) Any Indian.
    (c) The Secretary will directly disburse and distribute trust 
personalty transferred by renunciation to a person or entity other than 
those listed in paragraph (b) of this section.



Sec. 30.185  May my designated recipient refuse to accept the interest?

    Yes. Your designated recipient may refuse to accept the interest, in 
which case the renounced interest passes to the devisees or heirs of the 
decedent as if you had predeceased the decedent. The refusal must be 
made in writing and filed with the judge before the judge issues the 
final order in the probate case.



Sec. 30.186  Are renunciations that predate the American Indian Probate Reform Act of 2004 valid?

    Any renunciation filed and included as part of a probate decision or 
order issued before the effective date of the American Indian Probate 
Reform Act of 2004 remains valid.



Sec. 30.187  May I revoke my renunciation?

    A written renunciation is irrevocable after the judge enters the 
final order in the probate proceeding. A revocation will not be 
effective unless the judge actually receives it before entry of a final 
order.



Sec. 30.188  Does a renounced interest vest in the person who renounced it?

    No. An interest in trust or restricted property renounced under 
Sec. 30.181 is not considered to have vested in the renouncing heir or 
devisee, and the renunciation is not considered a transfer by gift of 
the property renounced.
    (a) If the renunciation directs the interest to an eligible person 
or entity, the interest passes directly to that person or entity.
    (b) If the renunciation does not direct the interest to an eligible 
person or entity, the renounced interest passes to the heirs of the 
decedent as if the person renouncing the interest had predeceased the 
decedent, or if there are no other heirs, to the residuary devisees.



                  Subpart I_Summary Probate Proceedings



Sec. 30.200  What is a summary probate proceeding?

    (a) A summary probate proceeding is the disposition of a probate 
case without a formal hearing on the basis of the probate file received 
from the agency. A summary probate proceeding may be conducted by a 
judge or an ADM, as determined by the supervising judge.

[[Page 475]]

    (b) A decedent's estate may be processed summarily if the estate 
involves only cash and the total value of the estate does not exceed 
$5,000 on the date of death.



Sec. 30.201  What does a notice of a summary probate proceeding contain?

    The notice of summary probate proceeding under Sec. 30.114(b) will 
contain the following:
    (a) Notice of the right of any interested party to request that OHA 
handle the probate case as a formal probate proceeding;
    (b) A summary of the proposed distribution of the decedent's estate, 
a statement of the IIM account balance, and a copy of the death 
certificate;
    (c) A notice that the only claims that will be considered are those 
from eligible heirs or devisees, or from any person or entity who filed 
a claim with BIA before the transfer of the probate file to OHA, with a 
copy of any such claim;
    (d) A notice that an interested party may renounce or disclaim an 
interest, in writing, either generally or in favor of a designated 
person or entity; and
    (e) Any other information that OHA determines to be relevant.



Sec. 30.202  May I file a claim or renounce or disclaim an interest in the estate in a summary probate proceeding?

    (a) Claims that have been filed with the agency before the probate 
file is transferred to OHA will be considered in a summary probate 
proceeding.
    (b) If you are a devisee or eligible heir, you may also file a claim 
with OHA as a creditor within 30 days after the mailing of the notice of 
the summary probate proceeding.
    (c) You may renounce or disclaim an interest in the estate within 30 
days after the mailing of the notice of the summary probate.



Sec. 30.203  May I request that a formal probate proceeding be conducted instead of a summary probate proceeding?

    Yes. Interested parties who are devisees or eligible heirs have 30 
days after the mailing of the notice to file a written request for a 
formal probate hearing.



Sec. 30.204  What must a summary probate decision contain?

    The written decision in a summary probate proceeding must be in the 
form of findings of fact and conclusions of law, with a proposed 
decision and order for distribution. The judge or ADM must mail or 
deliver a notice of the decision, together with a copy of the decision, 
to each affected agency and to each interested party. The decision must 
satisfy the requirements of this section.
    (a) Each decision must contain one of the following:
    (1) If the decedent did not leave heirs or devisees a statement to 
that effect; or
    (2) If the decedent left heirs or devisees:
    (i) The names of each heir or devisee and their relationships to the 
decedent;
    (ii) The distribution of shares to each heir or devisee; and
    (iii) The names of the recipients of renounced or disclaimed 
interests.
    (b) Each decision must contain all of the following:
    (1) Citations to the law of descent and distribution under which the 
decision is made;
    (2) A statement allowing or disallowing claims against the estate 
under this part, and an order directing the amount of payment for all 
approved claims;
    (3) A statement approving or disapproving any renunciation;
    (4) A statement advising all interested parties that they have a 
right to seek de novo review under Sec. 30.205, and that, if they fail 
to do so, the decision will become final 30 days after it is mailed; and
    (5) A statement of whether the heirs or devisees are:
    (i) Indian;
    (ii) Non-Indian but eligible to hold property in trust status; or
    (iii) Non-Indian and ineligible to hold property in trust status.
    (c) In a testate case only, the decision must contain a statement 
that:
    (1) Approves or disapproves a will;
    (2) Interprets provisions of the approved will; and
    (3) Describes the share each devisee is to receive, subject to any 
encumbrances.

[[Page 476]]



Sec. 30.205  How do I seek review of a summary probate proceeding?

    (a) If you are adversely affected by the written decision in a 
summary probate proceeding, you may seek de novo review of the case. To 
do this, you must file a request with the OHA office that issued the 
decision within 30 days after the date the decision was mailed.
    (b) The request for de novo review must be in writing and signed, 
and must contain the following information:
    (1) The name of the decedent;
    (2) A description of your relationship to the decedent;
    (3) An explanation of what errors you allege were made in the 
summary probate decision; and
    (4) An explanation of how you are adversely affected by the 
decision.



Sec. 30.206  What happens after I file a request for de novo review?

    (a) Within 10 days of receiving a request for de novo review, OHA 
will notify the agency that prepared the probate file, all other 
affected agencies, and all interested parties of the de novo review, and 
assign the case to a judge.
    (b) The judge will review the merits of the case, conduct a hearing 
as necessary or appropriate under the regulations in this part, and 
issue a new decision under this part.



Sec. 30.207  What happens if nobody files for de novo review?

    If no interested party requests de novo review within 30 days of the 
date of the written decision, it will be final for the Department. OHA 
will send:
    (a) The complete original record and the final order to the agency 
that prepared the probate file; and
    (b) A copy of any relevant portions of the record to any other 
affected agency.



                  Subpart J_Formal Probate Proceedings

                                 Notice



Sec. 30.210  How will I receive notice of the formal probate proceeding?

    OHA will provide notice of the formal probate proceeding under Sec. 
30.114(a) by mail and by posting. A posted and published notice may 
contain notices for more than one hearing, and need only specify the 
names of the decedents, the captions of the cases and the dates, times, 
places, and purposes of the hearings.
    (a) The notice must:
    (1) Be sent by first class mail;
    (2) Be sent and posted at least 21 days before the date of the 
hearing; and
    (3) Include a certificate of mailing with the date of mailing, 
signed by the person mailing the notice.
    (b) A presumption of actual notice exists with respect to any person 
to whom OHA sent a notice under paragraph (a) of this section, unless 
the notice is returned by the Postal Service as undeliverable to the 
addressee.
    (c) OHA must post the notice in each of the following locations:
    (1) Five or more conspicuous places in the vicinity of the 
designated place of hearing; and
    (2) The agency with jurisdiction over each parcel of trust or 
restricted property in the estate.
    (d) OHA may also post the notice in other places and on other 
reservations as the judge deems appropriate.



Sec. 30.211  Will the notice be published in a newspaper?

    The judge may cause advance notice of hearing to be published in a 
newspaper of general circulation in the vicinity of the designated place 
of hearing. The cost of publication may be paid from the assets of the 
estate under Sec. 30.144.



Sec. 30.212  May I waive notice of the hearing or the form of notice?

    You may waive your right to notice of the hearing and the form of 
notice by:
    (a) Appearing at the hearing and participating in the hearing 
without objection; or
    (b) Filing a written waiver with the judge before the hearing.



Sec. 30.213  What notice to a tribe is required in a formal probate proceeding?

    (a) In probate cases in which the decedent died on or after June 20, 
2006, the judge must notify any tribe with

[[Page 477]]

jurisdiction over the trust or restricted land in the estate of the 
pendency of a proceeding.
    (b) A certificate of mailing of a notice of probate hearing to the 
tribe at its record address will be conclusive evidence that the tribe 
had notice of the decedent's death, of the probate proceedings, and of 
the right to purchase.



Sec. 30.214  What must a notice of hearing contain?

    The notice of hearing under Sec. 30.114(a) must:
    (a) State the name of the decedent and caption of the case;
    (b) Specify the date, time, and place that the judge will hold a 
hearing to determine the heirs of the decedent and, if a will is offered 
for probate, to determine the validity of the will;
    (c) Name all potential heirs of the decedent known to OHA, and, if a 
will is offered for probate, the devisees under the will and the 
attesting witnesses to the will;
    (d) Cite this part as the authority and jurisdiction for holding the 
hearing;
    (e) Advise all persons who claim to have an interest in the estate 
of the decedent, including persons having claims against the estate, to 
be present at the hearing to preserve the right to present evidence at 
the hearing;
    (f) Include notice of the opportunity to consolidate interests at 
the probate hearing, including that the heirs or devisees may propose 
additional interests for consolidation, and include notice of the 
opportunity for renunciation either generally or in favor of a 
designated recipient;
    (g) In estates for decedents whose date of death is on or after June 
20, 2006, include notice of the possibilities of purchase and sale of 
trust or restricted property by heirs, devisees, co-owners, a tribe, or 
the Secretary; and
    (h) State that the hearing may be continued to another time and 
place.

            Depositions, Discovery, and Prehearing Conference



Sec. 30.215  How may I obtain documents related to the probate proceeding?

    (a) You may make a written demand to produce documents for 
inspection and copying. This demand:
    (1) May be made at any stage of the proceeding before the conclusion 
of the hearing;
    (2) May be made on any other party to the proceeding or on a 
custodian of records concerning interested parties or their trust 
property;
    (3) Must be made in writing, and a copy must be filed with the 
judge; and
    (4) May demand copies of any documents, photographs, or other 
tangible things that are relevant to the issues, not privileged, and in 
another party's or custodian's possession, custody, or control.
    (b) Custodians of official records will furnish and reproduce 
documents, or permit their reproduction, under the rules governing the 
custody and control of the records.
    (1) Subject to any law to the contrary, documents may be made 
available to any member of the public upon payment of the cost of 
producing the documents, as determined reasonable by the custodians of 
the records.
    (2) Information within federal records will be maintained and 
disclosed as provided in 25 U.S.C. 2216(e), the Privacy Act, and the 
Freedom of Information Act.



Sec. 30.216  How do I obtain permission to take depositions?

    (a) You may take the sworn testimony of any person by deposition on 
oral examination for the purpose of discovery or for use as evidence at 
a hearing:
    (1) On stipulation of the parties; or
    (2) By order of the judge.
    (b) To obtain an order from the judge for the taking of a 
deposition, you must file a motion that sets forth:
    (1) The name and address of the proposed witness;
    (2) The reasons why the deposition should be taken;
    (3) The name and address of the person qualified under Sec. 
30.217(a) to take depositions; and

[[Page 478]]

    (4) The proposed time and place of the examination, which must be at 
least 20 days after the date of the filing of the motion.
    (c) An order for the taking of a deposition must be served upon all 
interested parties and must state:
    (1) The name of the witness;
    (2) The time and place of the examination, which must be at least 15 
days after the date of the order; and
    (3) The name and address of the officer before whom the examination 
is to be made.
    (d) The officer and the time and place specified in paragraphs 
(c)(2) and (c)(3) of this section need not be the same as those 
requested in the motion under paragraph (b) of this section.
    (e) You may request that the judge issue a subpoena for the witness 
to be deposed under Sec. 30.224.



Sec. 30.217  How is a deposition taken?

    (a) The witness to be deposed must appear before the judge or before 
an officer authorized to administer oaths by the laws of the United 
States or by the laws of the place of the examination, as specified in:
    (1) The judge's order under Sec. 30.216(c); or
    (2) The stipulation of the parties under Sec. 30.216(a)(1).
    (b) The witness must be examined under oath or affirmation and 
subject to cross-examination. The witness's testimony must be recorded 
by the officer or someone in the officer's presence.
    (c) When the testimony is fully transcribed, it must be submitted to 
the witness for examination and must be read to or by him or her, unless 
examination and reading are waived.
    (1) Any changes in form or substance that the witness desires to 
make must be entered on the transcript by the officer, with a statement 
of the reasons given by the witness for making them.
    (2) The transcript must then be signed by the witness, unless the 
interested parties by stipulation waive the signing, or the witness is 
unavailable or refuses to sign.
    (3) If the transcript is not signed by the witness, the officer must 
sign it and state on the record the fact of the waiver, the 
unavailability of the witness, or the refusal to sign together with the 
reason given, if any. The transcript may then be used as if it were 
signed, unless the judge determines that the reason given for refusal to 
sign requires rejection of the transcript in whole or in part.
    (d) The officer must certify on the transcript that the witness was 
duly sworn by the officer and that the transcript is a true record of 
the witness's testimony. The officer must then hand deliver or mail the 
original and two copies of the transcript to the judge.



Sec. 30.218  How may the transcript of a deposition be used?

    A transcript of a deposition taken under this part may be offered by 
any party or the judge in a hearing if the judge finds that the evidence 
is otherwise admissible and if either:
    (a) The witness is unavailable; or
    (b) The interest of fairness is served by allowing the transcript to 
be used.



Sec. 30.219  Who pays for the costs of taking a deposition?

    The party who requests the taking of a deposition must make 
arrangements for payment of any costs incurred. The judge may assign the 
costs in the order.



Sec. 30.220  How do I obtain written interrogatories and admission of facts and documents?

    (a) You may serve on any other interested party written 
interrogatories and requests for admission of facts and documents if:
    (1) The interrogatories and requests are served in sufficient time 
to permit answers to be filed before the hearing, or as otherwise 
ordered by the judge; and
    (2) Copies of the interrogatories and requests are filed with the 
judge.
    (b) A party receiving interrogatories or requests served under 
paragraph (a) of this section must:
    (1) Serve answers upon the requesting party within 30 days after the 
date of service of the interrogatories or requests, or within another 
deadline agreed to by the parties or prescribed by the judge; and
    (2) File a copy of the answers with the judge.

[[Page 479]]



Sec. 30.221  May the judge limit the time, place, and scope of discovery?

    Yes. The judge may limit the time, place, and scope of discovery 
either:
    (a) On timely motion by any interested party, if that party also 
gives notice to all interested parties and shows good cause; or
    (b) When the judge determines that limits are necessary to prevent 
delay of the proceeding or prevent undue hardship to a party or witness.



Sec. 30.222  What happens if a party fails to comply with discovery?

    (a) If a party fails to respond to a request for admission, the 
facts for which admission was requested will be deemed to be admitted, 
unless the judge finds good cause for the failure to respond.
    (b) If a party fails without good cause to comply with any other 
discovery under this part or any order issued, the judge may:
    (1) Draw inferences with respect to the discovery request adverse to 
the claims of the party who has failed to comply with discovery or the 
order, or
    (2) Make any other ruling that the judge determines just and proper.
    (c) Failure to comply with discovery includes failure to:
    (1) Produce a document as requested;
    (2) Appear for examination;
    (3) Respond to interrogatories; or
    (4) Comply with an order of the judge.



Sec. 30.223  What is a prehearing conference?

    Before a hearing, the judge may order the parties to appear for a 
conference to:
    (a) Simplify or clarify the issues;
    (b) Obtain stipulations, admissions, agreements on documents, 
understandings on matters already of record, or similar agreements that 
will avoid unnecessary proof;
    (c) Limit the number of expert or other witnesses to avoid 
excessively cumulative evidence;
    (d) Facilitate agreements disposing of all or any of the issues in 
dispute; or
    (e) Resolve such other matters as may simplify and shorten the 
hearing.

                                Hearings



Sec. 30.224  May a judge compel a witness to appear and testify at a hearing or deposition?

    (a) The judge can issue a subpoena for a witness to appear and 
testify at a hearing or deposition and to bring documents or other 
material to the hearing or deposition.
    (1) You may request that the judge issue a subpoena for the 
appearance of a witness to testify. The request must state the name, 
address, and telephone number or other means of contacting the witness, 
and the reason for the request. The request must be timely. The 
requesting party must mail the request to all other interested parties 
and to the witness at the time of filing.
    (2) The request must specify the documents or other material sought 
for production under the subpoena.
    (3) The judge will grant or deny the request in writing and mail 
copies of the order to all the interested parties and the witness.
    (4) A person subpoenaed may seek to avoid a subpoena by filing a 
motion to quash with the judge and sending copies to the interested 
parties.
    (b) Anyone whose legal residence is more than 100 miles from the 
hearing location may ask the judge to excuse his or her attendance under 
subpoena. The judge will inform the interested parties in writing of the 
request and the judge's decision on the request in writing in a timely 
manner.
    (c) A witness who is subpoenaed to a hearing under this section is 
entitled to the fees and allowances provided by law for a witness in the 
courts of the United States (see 28 U.S.C. 1821).
    (d) If a subpoenaed person fails or refuses to appear at a hearing 
or to testify, the judge may file a petition in United States District 
Court for issuance of an order requiring the subpoenaed person to appear 
and testify.



Sec. 30.225  Must testimony in a probate proceeding be under oath or affirmation?

    Yes. Testimony in a probate proceeding must be under oath or 
affirmation.

[[Page 480]]



Sec. 30.226  Is a record made of formal probate hearings?

    (a) The judge must make a verbatim recording of all formal probate 
hearings. The judge will order the transcription of recordings of 
hearings as the judge determines necessary.
    (b) If the judge orders the transcription of a hearing, the judge 
will make the transcript available to interested parties on request.



Sec. 30.227  What evidence is admissible at a probate hearing?

    (a) A judge conducting probate proceedings under this part may admit 
any written, oral, documentary, or demonstrative evidence that is:
    (1) Relevant, reliable, and probative;
    (2) Not privileged under Federal law; and
    (3) Not unduly repetitious or cumulative.
    (b) The judge may exclude evidence if its probative value is 
substantially outweighed by the risk of undue confusion of the issues or 
delay.
    (c) Hearsay evidence is admissible. The judge may consider the fact 
that evidence is hearsay when determining its probative value.
    (d) A judge may admit a copy of a document into evidence or may 
require the admission of the original document. After examining the 
original document, the judge may substitute a copy of the original 
document and return the original.
    (e) The Federal Rules of Evidence do not directly apply to the 
hearing, but may be used as guidance by the judge and the parties in 
interpreting and applying the provisions of this section.
    (f) The judge may take official notice of any public record of the 
Department and of any matter of which federal courts may take judicial 
notice.
    (g) The judge will determine the weight given to any evidence 
admitted.
    (h) Any party objecting to the admission or exclusion of evidence 
must concisely state the grounds. A ruling on every objection must 
appear in the record.
    (i) There is no privilege under this part for any communication 
that:
    (1) Occurred between a decedent and any attorney advising a 
decedent; and
    (2) Pertained to a matter relevant to an issue between parties, all 
of whom claim through the decedent.



Sec. 30.228  Is testimony required for self-proved wills, codicils, or revocations?

    The judge may approve a self-proved will, codicil, or revocation, if 
uncontested, and order distribution, with or without the testimony of 
any attesting witness.



Sec. 30.229  When will testimony be required for approval of a will, codicil, or revocation?

    (a) The judge will require testimony if someone contests the 
approval of a self-proved will, codicil, or revocation, or submits a 
non-self-proved will for approval. In any of these cases, the attesting 
witnesses who are in the reasonable vicinity of the place of hearing 
must appear and be examined, unless they are unable to appear and 
testify because of physical or mental infirmity.
    (b) If an attesting witness is not in the reasonable vicinity of the 
place of hearing or is unable to appear and testify because of physical 
or mental infirmity, the judge may:
    (1) Order the deposition of the attesting witness at a location 
reasonably near the residence of the witness;
    (2) Admit the testimony of other witnesses to prove the testamentary 
capacity of the testator and the execution of the will; and
    (3) As evidence of the execution, admit proof of the handwriting of 
the testator and of the attesting witnesses, or of any of them.



Sec. 30.230  Who pays witnesses' costs?

    Interested parties who desire a witness to testify at a hearing must 
make their own financial and other arrangements for the witness.



Sec. 30.231  May a judge schedule a supplemental hearing?

    Yes. A judge may schedule a supplemental hearing if he or she deems 
it necessary.

[[Page 481]]



Sec. 30.232  What will the official record of the probate case contain?

    The official record of the probate case will contain:
    (a) A copy of the posted public notice of hearing showing the 
posting certifications;
    (b) A copy of each notice served on interested parties with proof of 
mailing;
    (c) The record of the evidence received at the hearing, including 
any transcript made of the testimony;
    (d) Claims filed against the estate;
    (e) Any wills, codicils, and revocations;
    (f) Inventories and valuations of the estate;
    (g) Pleadings and briefs filed;
    (h) Interlocutory orders;
    (i) Copies of all proposed or accepted settlement agreements, 
consolidation agreements, and renunciations and acceptances of renounced 
property;
    (j) In the case of sale of estate property at probate, copies of 
notices of sale, appraisals and objections to appraisals, requests for 
purchases, all bids received, and proof of payment;
    (k) The decision, order, and the notices thereof; and
    (l) Any other documents or items deemed material by the judge.



Sec. 30.233  What will the judge do with the original record?

    (a) The judge must send the original record to the designated LTRO 
under 25 CFR part 150.
    (b) The judge must also send a copy of:
    (1) The order to the agency originating the probate, and
    (2) The order and inventory to other affected agencies.



Sec. 30.234  What happens if a hearing transcript has not been prepared?

    When a hearing transcript has not been prepared:
    (a) The recording of the hearing must be retained in the office of 
the judge issuing the decision until the time allowed for rehearing or 
appeal has expired; and
    (b) The original record returned to the LTRO must contain a 
statement indicating that no transcript was prepared.

                     Decisions in Formal Proceedings



Sec. 30.235  What will the judge's decision in a formal probate proceeding contain?

    The judge must decide the issues of fact and law involved in any 
proceeding and issue a written decision that meets the requirements of 
this section.
    (a) In all cases, the judge's decision must:
    (1) Include the name, birth date, and relationship to the decedent 
of each heir or devisee;
    (2) State whether the heir or devisee is Indian or non-Indian;
    (3) State whether the heir or devisee is eligible to hold property 
in trust status;
    (4) Provide information necessary to identify the persons or 
entities and property interests involved in any settlement or 
consolidation agreement, renunciations of interest, and purchases at 
probate;
    (5) Approve or disapprove any renunciation, settlement agreement, 
consolidation agreement, or purchase at probate;
    (6) Allow or disallow claims against the estate under this part, and 
order the amount of payment for all approved claims;
    (7) Include the probate case number that has been assigned to the 
case in any case management or tracking system then in use within the 
Department;
    (8) Make any other findings of fact and conclusions of law necessary 
to decide the issues in the case; and
    (9) Include the signature of the judge and date of the decision.
    (b) In a case involving a will, the decision must include the 
information in paragraph (a) of this section and must also:
    (1) Approve or disapprove the will;
    (2) Interpret provisions of an approved will as necessary; and
    (3) Describe the share each devisee is to receive under an approved 
will, subject to any encumbrances.
    (c) In all intestate cases, including a case in which a will is not 
approved, and any case in which an approved will does not dispose of all 
of the decedent's trust or restricted property, the decision will 
include the information in

[[Page 482]]

paragraph (a) of this section and must also:
    (1) Cite the law of descent and distribution under which the 
decision is made; and
    (2) Describe the distribution of shares to which the heirs are 
entitled; and
    (3) Include a determination of any rights of dower, curtesy, or 
homestead that may constitute a burden upon the interest of the heirs.



Sec. 30.236  What notice of the decision will the judge provide?

    When the judge issues a decision, the judge must mail or deliver a 
notice of the decision, together with a copy of the decision, to each 
affected agency and to each interested party. The notice must include a 
statement that interested parties who are adversely affected have a 
right to file a petition for rehearing with the judge within 30 days 
after the date on which notice of the decision was mailed. The decision 
will become final at the end of this 30-day period, unless a timely 
petition for rehearing is filed with the judge.



Sec. 30.237  May I file a petition for rehearing if I disagree with the judge's decision in the formal probate hearing?

    (a) If you are adversely affected by the decision, you may file with 
the judge a written petition for rehearing within 30 days after the date 
on which the decision was mailed under Sec. 30.236.
    (b) If the petition is based on newly discovered evidence, it must:
    (1) Be accompanied by one or more affidavits of witnesses stating 
fully the content of the new evidence; and
    (2) State the reasons for the failure to discover and present that 
evidence at the hearings held before the issuance of the decision.
    (c) A petition for rehearing must state specifically and concisely 
the grounds on which it is based.
    (d) The judge must forward a copy of the petition for rehearing to 
the affected agencies.



Sec. 30.238  Does any distribution of the estate occur while a petition for rehearing is pending?

    The agencies must not initiate payment of claims or distribute any 
portion of the estate while the petition is pending, unless otherwise 
directed by the judge.



Sec. 30.239  How will the judge decide a petition for rehearing?

    (a) If proper grounds are not shown, or if the petition is not 
timely filed, the judge will:
    (1) Issue an order denying the petition for rehearing and including 
the reasons for denial; and
    (2) Furnish copies of the order to the petitioner, the agencies, and 
the interested parties.
    (b) If the petition appears to show merit, the judge must:
    (1) Cause copies of the petition and supporting papers to be served 
on all persons whose interest in the estate might be adversely affected 
if the petition is granted;
    (2) Allow all persons served a reasonable, specified time in which 
to submit answers or legal briefs in response to the petition; and
    (3) Consider, with or without a hearing, the issues raised in the 
petition.
    (c) The judge may affirm, modify, or vacate the former decision.
    (d) On entry of a final order, the judge must distribute the order 
as provided in this part. The order must include a notice stating that 
interested parties who are adversely affected have a right to appeal the 
final order to the Board, within 30 days of the date on which the order 
was mailed, and giving the Board's address.



Sec. 30.240  May I submit another petition for rehearing?

    No. Successive petitions for rehearing are not permitted. The 
jurisdiction of the judge terminates when he or she issues a decision 
finally disposing of a petition for rehearing, except for:
    (a) The issuance of necessary orders nunc pro tunc to correct 
clerical errors in the decision; and
    (b) The reopening of a case under this part.



Sec. 30.241  When does the judge's decision on a petition for rehearing become final?

    The decision on a petition for rehearing will become final on the 
expiration of the 30 days allowed for the filing of

[[Page 483]]

a notice of appeal, as provided in this part and Sec. 4.320 of this 
chapter.



Sec. 30.242  May a closed probate case be reopened?

    (a) The judge may reopen a closed probate case as shown in the 
following table.

------------------------------------------------------------------------
                                                        Standard for
How the case can be reopened   Applicable deadline   reopening the case
------------------------------------------------------------------------
(1) On the judge's own        (i) Initiated within  To correct an error
 motion.                       3 years after the     of fact or law in
                               date of the           the original
                               original decision.    decision.
                              (ii) Initiated more   To correct an error
                               than 3 years after    of fact or law in
                               the date of the       the original
                               original decision.    decision which, if
                                                     not corrected,
                                                     would result in a
                                                     manifest injustice.
(2) On a petition filed by    (i) Filed within 3    To correct an error
 the agency.                   years after the       of fact or law in
                               date of the           the original
                               original decision.    decision.
                              (ii) Filed more than  To correct an error
                               3 years after the     of fact or law in
                               date of the           the original
                               original decision.    decision which, if
                                                     not corrected,
                                                     would result in a
                                                     manifest injustice.
(2) On a petition filed by    (i) Filed within 3    To correct an error
 the interested party.         years after the       of fact or law in
                               date of the           the original
                               original decision     decision.
                               and within 1 year
                               after the
                               petitioner's
                               discovery of an
                               alleged error.
                              (ii) Filed more than  To correct an error
                               3 years after the     of act or law in
                               date of the           the original
                               original decision     decision which, if
                               and within 1 year     not corrected,
                               after the             would result in a
                               petitioner's          manifest injustice.
                               discovery of an
                               alleged error.
------------------------------------------------------------------------

    (b) All grounds for reopening must be set forth fully in the 
petition.
    (c) A petition filed by an interested party must:
    (1) Include all relevant evidence, in the form of documents or 
affidavits, concerning when the petitioner discovered the alleged error; 
and
    (2) If the grounds for reopening are based on alleged errors of 
fact, be supported by affidavit.



Sec. 30.243  How will the judge decide my petition for reopening?

    (a) If the judge finds that proper grounds are not shown, the judge 
will issue an order denying the petition for reopening and giving the 
reasons for the denial. An order denying reopening must include a notice 
stating that interested parties who are adversely affected have a right 
to appeal the order to the Board within 30 days of the date on which the 
order was mailed, and giving the Board's address. Copies of the judge's 
decision must be mailed to the petitioner, the agencies, and those 
persons whose rights would be affected.
    (b) If the petition appears to show merit, the judge must cause 
copies of the petition and all papers filed by the petitioner to be 
served on those persons whose interest in the estate might be affected 
if the petition is granted. They may respond to the petition by filing 
answers, cross-petitions, or briefs. The filings must be made within the 
time periods set by the judge.



Sec. 30.244  What happens if the judge reopens the case?

    On reopening, the judge may affirm, modify, or vacate the former 
decision.
    (a) The final order on reopening must include a notice stating that 
interested parties who are adversely affected have a right to appeal the 
final order to the Board within 30 days of the date on which the order 
was mailed, and giving the Board's address.
    (b) Copies of the judge's decision on reopening must be mailed to 
the petitioner and to all persons who received copies of the petition.
    (c) By order directed to the agency, the judge may suspend further 
distribution of the estate or income during the reopening proceedings.
    (d) The judge must file the record made on a reopening petition with 
the designated LTRO and must furnish a duplicate record to the affected 
agencies.



Sec. 30.245  When will the decision on reopening become final?

    The decision on reopening will become final on the expiration of the 
30 days allowed for the filing of a notice of appeal, as provided in 
this part.

[[Page 484]]



                   Subpart K_Miscellaneous Provisions



Sec. 30.250  When does the anti-lapse provision apply?

    (a) The following table illustrates how the anti-lapse provision 
applies.

------------------------------------------------------------------------
          If . . .                  And . . .            Then . . .
------------------------------------------------------------------------
A testator devises trust      The devisee dies      The lineal
 property to any of his or     before the            descendants take
 her grandparents or to the    testator, leaving     the right, title,
 lineal descendant of a        lineal descendants.   or interest given
 grandparent.                                        by the will per
                                                     stirpes.
------------------------------------------------------------------------

    (b) For purposes of this section, relationship by adoption is 
equivalent to relationship by blood.



Sec. 30.251  What happens if an heir or devisee participates in the killing of the decedent?

    Any person who knowingly participates, either as a principal or as 
an accessory before the fact, in the willful and unlawful killing of the 
decedent may not take, directly or indirectly, any inheritance or devise 
under the decedent's will. This person will be treated as if he or she 
had predeceased the decedent.



Sec. 30.252  May a judge allow fees for attorneys representing interested parties?

    (a) Except for attorneys representing creditors, the judge may allow 
fees for attorneys representing interested parties.
    (1) At the discretion of the judge, these fees may be charged 
against the interests of the party represented or as a cost of 
administration.
    (2) Petitions for allowance of fees must be filed before the close 
of the last hearing.
    (b) Nothing in this section prevents an attorney from petitioning 
for additional fees to be considered at the disposition of a petition 
for rehearing and again after an appeal on the merits. An order allowing 
attorney fees is subject to a petition for rehearing and to an appeal.



Sec. 30.253  How must minors or other legal incompetents be represented?

    Minors and other legal incompetents who are interested parties must 
be represented by legally appointed guardians, or by guardians ad litem 
appointed by the judge. In appropriate cases, the judge may order the 
payment of fees to the guardian ad litem from the assets of the estate.



Sec. 30.254  What happens when a person dies without a valid will and has no heirs?

    The judge will determine whether a person with trust or restricted 
property died intestate and without heirs, and the judge will determine 
whether 25 U.S.C. 2206(a) applies, as shown in the following table.

 
------------------------------------------------------------------------
          If . . .                 Then . . .             Or . . .
------------------------------------------------------------------------
(a) 25 U.S.C. 2206(a)         The judge will order  The judge will order
 applies.                      distribution of the   distribution of the
                               property under Sec.  property under Sec.
                                 2206(a)(2)(B)(v)
                               through (a)(2)(C).    2206(a)(2)(D)(iii)(
                                                     IV) through (V).
(b) 25 U.S.C. 2206(a) does    If the trust or       If the trust or
 not apply.                    restricted property   restricted property
                               is not on the         is on the public
                               public domain, the    domain, the judge
                               judge will order      will order the
                               the escheat of the    escheat of the
                               property under 25     property under 25
                               U.S.C. 373a.          U.S.C. 373b.
------------------------------------------------------------------------


[[Page 485]]



      Subpart L_Tribal Purchase of Interests Under Special Statutes



Sec. 30.260  What land is subject to a tribal purchase option at probate?

    Sections 30.260 through 30.274 apply to formal Indian probate 
proceedings that relate to the tribal purchase of a decedent's interests 
in trust and restricted land under the statutes shown in the following 
table.

------------------------------------------------------------------------
  Location of trust or restricted land     Statutes governing purchase
------------------------------------------------------------------------
(a) Yakima Reservation or within the     The Act of December 31, 1970
 area ceded by the Treaty of June 9,      (Pub. L. 91-627; 84 Stat.
 1855 (12 Stat. 1951).                    1874; 25 U.S.C. 607 (1976)),
                                          amending section 7 of the Act
                                          of August 9, 1946 (60 Stat.
                                          968).
(b) Warm Springs Reservation or within   The Act of August 10, 1972
 the area ceded by the Treaty of June     (Pub. L. 92-377; 86 Stat.
 25, 1855 (12 Stat. 37).                  530).
(c) Nez Perce Indian Reservation or      The Act of September 29, 1972
 within the area ceded by the Treaty of   (Pub. L. 92-443; 86 Stat.
 June 11, 1855 (12 Stat. 957).            744).
------------------------------------------------------------------------



Sec. 30.261  How does a tribe exercise its statutory option to purchase?

    (a) To exercise its option to purchase, the tribe must file with the 
agency:
    (1) A written notice of purchase; and
    (2) A certification that the tribe has mailed copies of the notice 
on the same date to the judge and to the affected heirs or devisees.
    (b) A tribe may purchase all or part of the available interests 
specified in the probate decision. A tribe may not, however, claim an 
interest less than decedent's total interest in any one individual 
tract.



Sec. 30.262  When may a tribe exercise its statutory option to purchase?

    (a) A tribe may exercise its statutory option to purchase:
    (1) Within 60 days after mailing of the probate decision unless a 
petition for rehearing has been filed under Sec. 30.237 or a demand for 
hearing has been filed under Sec. 30.268; or
    (2) If a petition for rehearing or a demand for hearing has been 
filed, within 20 days after the date of the decision on rehearing or 
hearing, whichever is applicable, provided the decision on rehearing or 
hearing is favorable to the tribe.
    (b) On failure to timely file a notice of purchase, the right to 
distribution of all unclaimed interests will accrue to the heirs or 
devisees.



Sec. 30.263  May a surviving spouse reserve a life estate when a tribe exercises its statutory option to purchase?

    Yes. When the heir or devisee whose interests are subject to the 
tribal purchase option is a surviving spouse, the spouse may reserve a 
life estate in one-half of the interests.
    (a) To reserve a life estate, the spouse must, within 30 days after 
the tribe has exercised its option to purchase the interest, file with 
the agency both:
    (1) A written notice to reserve a life estate; and
    (2) A certification that copies of the notice have been mailed on 
the same date to the judge and the tribe.
    (b) Failure to file the notice on time, as required by paragraph 
(a)(1) of this section, constitutes a waiver of the option to reserve a 
life estate.



Sec. 30.264  When must BIA furnish a valuation of a decedent's interests?

    (a) BIA must furnish a valuation report of the decedent's interests 
when the record reveals to the agency:
    (1) That the decedent owned interests in land located on one or more 
of the reservations designated in Sec. 30.260; and
    (2) That one or more of the probable heirs or devisees who may 
receive the interests either:
    (i) Is not enrolled in the tribe of the reservation where the land 
is located; or
    (ii) Does not have the required blood quantum in the tribe to hold 
the interests against a claim made by the tribe.

[[Page 486]]

    (b) When required by paragraph (a) of this section, BIA must furnish 
a valuation report in the probate file when it is submitted to OHA. 
Interested parties may examine and copy, at their expense, the valuation 
report at the agency.
    (c) The valuation must be made on the basis of the fair market value 
of the property, as of the date of decedent's death.
    (d) If there is a surviving spouse whose interests may be subject to 
the tribal purchase option, the valuation must include the value of a 
life estate based on the life of the surviving spouse in one-half of 
such interests.



Sec. 30.265  What determinations will a judge make with respect to a tribal purchase option?

    (a) If a tribe files a written notice of purchase under Sec. 
30.261(a), a judge will determine:
    (1) The entitlement of a tribe to purchase a decedent's interests in 
trust or restricted land under the applicable statute;
    (2) The entitlement of a surviving spouse to reserve a life estate 
in one-half of the surviving spouse's interests that have been purchased 
by a tribe; and
    (3) The fair market value of such interests, as determined by an 
appraisal or other valuation method developed by the Secretary under 25 
U.S.C. 2214, including the value of any life estate reserved by a 
surviving spouse.
    (b) In making a determination under paragraph (a)(1) of this 
section, the following issues will be determined by the official tribal 
roll, which is binding on the judge:
    (1) Enrollment or refusal of the tribe to enroll a specific 
individual; and
    (2) Specification of blood quantum, where pertinent.
    (c) For good cause shown, the judge may stay the probate proceeding 
to permit an interested party who is adversely affected to pursue an 
enrollment application, grievance, or appeal through the established 
procedures applicable to the tribe.



Sec. 30.266  When is a final decision issued?

    This section applies when a decedent is shown to have owned land 
interests in any one or more of the reservations designated in Sec. 
30.260.
    (a) The probate proceeding relative to the determination of heirs, 
approval or disapproval of a will, and the claims of creditors must 
first be concluded as final for the Department under this part. This 
decision is referred to in this section as the ``probate decision.''
    (b) At the formal probate hearing, a finding must be made on the 
record showing those interests in land, if any, that are subject to the 
tribal purchase option.
    (1) The finding must be included in the probate decision and must 
state:
    (i) The apparent rights of the tribe as against affected heirs or 
devisees; and
    (ii) The right of a surviving spouse whose interests are subject to 
the tribal purchase option to reserve a life estate in one-half of the 
interests.
    (2) If the finding is that there are no interests subject to the 
tribal purchase option, the decision must so state.
    (3) A copy of the probate decision, together with a copy of the 
valuation report, must be distributed to all interested parties under 
Sec. 30.236.



Sec. 30.267  What if I disagree with the probate decision regarding tribal purchase option?

    If you are an interested party who is adversely affected by the 
probate decision, you may, within 30 days after the date on which the 
probate decision was mailed, file with the judge a written petition for 
rehearing under this part.



Sec. 30.268  May I demand a hearing regarding the tribal purchase option decision?

    Yes. You may file with the judge a written demand for hearing if you 
are an interested party who is adversely affected by the exercise of the 
tribal purchase option or by the valuation of the interests in the 
valuation report.
    (a) The demand for hearing must be filed by whichever of the 
following deadlines is applicable:
    (1) Within 30 days after the date of the probate decision;

[[Page 487]]

    (2) Within 30 days after the date of the decision on rehearing; or
    (3) Within 20 days after the date on which the tribe exercises its 
option to purchase available interests.
    (b) The demand for hearing must:
    (1) Include a certification that copies of the demand have been 
mailed on the same date to the agency and to each interested party; and
    (2) State specifically and concisely the grounds on which it is 
based.



Sec. 30.269  What notice of the hearing will the judge provide?

    On receiving a demand for hearing, the judge must:
    (a) Set a time and place for the hearing after expiration of the 30-
day period fixed for the filing of the demand for hearing as provided in 
Sec. 30.268; and
    (b) Mail a notice of the hearing to all interested parties not less 
than 20 days in advance of the hearing.



Sec. 30.270  How will the hearing be conducted?

    (a) At the hearing, each party challenging the tribe's claim to 
purchase the interests in question or the valuation of the interests in 
the valuation report will have the burden of proving his or her 
position.
    (b) On conclusion of the hearing, the judge will issue a decision 
that determines all of the issues including, but not limited to:
    (1) The fair market value of the interests purchased by the tribe; 
and
    (2) Any adjustment to the fair market value made necessary by the 
surviving spouse's decision to reserve a life estate in one-half of the 
interests.
    (c) The decision must include a notice stating that interested 
parties who are adversely affected have a right to appeal the decision 
to the Board within 30 days after the date on which the decision was 
mailed, and giving the Board's address.
    (d) The judge must:
    (1) Forward the complete record relating to the demand for hearing 
to the LTRO as provided in Sec. 30.233;
    (2) Furnish a duplicate record thereof to the agency; and
    (3) Mail a notice of such action together with a copy of the 
decision to each interested party.



Sec. 30.271  How must the tribe pay for the interests it purchases?

    (a) A tribe must pay the full fair market value of the interests 
purchased, as set forth in the appraisal or other valuation report, or 
as determined after hearing under Sec. 30.268, whichever is applicable.
    (b) Payment must be made within 2 years from the date of decedent's 
death or within 1 year from the date of notice of purchase, whichever is 
later.



Sec. 30.272  What are BIA's duties on payment by the tribe?

    On payment by the tribe of the interests purchased, the 
Superintendent must:
    (a) Issue a certificate to the judge that payment has been made; and
    (b) File with the certificate all supporting documents required by 
the judge.



Sec. 30.273  What action will the judge take to record title?

    After receiving the certificate and supporting documents, the judge 
will:
    (a) Issue an order that the United States holds title to the 
interests in trust for the tribe;
    (b) File the complete record, including the decision, with the LTRO 
as provided in Sec. 30.233;
    (c) Furnish a duplicate copy of the record to the agency; and
    (d) Mail a notice of the action together with a copy of the decision 
to each interested party.



Sec. 30.274  What happens to income from land interests during pendency of the probate?

    During the pendency of the probate, there may be income received or 
accrued from the land interests purchased by the tribe, including the 
payment from the tribe. This income will be credited to the estate and 
paid to the heirs. For purposes of this section, pendency of the probate 
ends on the date of transfer of title to the United States in trust for 
the tribe under Sec. 30.273.

[[Page 488]]



PART 32_GRANTS TO STATES FOR ESTABLISHING YOUNG ADULT CONSERVATION CORPS (YACC) PROGRAM--Table of Contents



Sec.
32.1 Introduction.
32.2 Definitions.
32.3 Program purpose and objectives.
32.4 Program operation requirements.
32.5 Administrative requirements.
32.6 Request for grant.
32.7 Application format, instructions, and guidelines.
32.8 Program reporting requirements.
32.9 Consideration and criteria for awarding grants.

    Authority: Pub. L. 95-93, sec. 806, 91 Stat. 630 (29 U.S.C. 801).

    Source: 43 FR 12266, Mar. 23, 1978, unless otherwise noted.



Sec. 32.1  Introduction.

    (a) The Young Adult Conservation Corps (YACC) is authorized by title 
I of the Youth Employment and Demonstration Projects Act of 1977 (Pub. 
L. 95-93), which amends the Comprehensive Employment and Training Act 
(CETA) of 1973 by adding a new title VIII.
    (b) The Young Adult Conservation Corps (YACC) is a year-round 
employment program for young men and women aged 16 through 23 inclusive. 
Financial assistance is available through grants-in-aid for employment 
and work to be performed on projects affecting both Federal and non-
Federal public lands and waters or projects limited to non-Federal 
public lands and waters. YACC grants do not require matching.
    (c) The YACC grant program is jointly managed by the Secretaries of 
the Interior and Agriculture under an interagency agreement with the 
Secretary of Labor.
    (d) Thirty percent of the sums appropriated to carry out the YACC 
program for any fiscal year will be available for grants during such 
year. Grant funds will be allocated on the basis of the total youth 
population within each State. State YACC programs must consist of both 
residential and nonresidential projects. At least 25 percent of the 
State YACC program must be residential by September 30, 1978.



Sec. 32.2  Definitions.

    The terms used in these regulations are defined as follows:
    (a) Act. The Comprehensive Employment and Training Act of 1973, as 
amended.
    (b) YACC. Young Adult Conservation Corps.
    (c) Secretaries. The Secretaries of the Interior and Agriculture or 
their designated representatives. The YACC program is managed within 
Interior by the Office of Youth Programs, and within Agriculture, by the 
Forest Service.
    (d) State. Any of the several States of the United States, District 
of Columbia, Commonwealth of Puerto Rico, Virgin Islands, Guam, American 
Samoa, and The Trust Territories of the Pacific Islands and the Northern 
Marianas.
    (e) Refugee/parolee. An alien who is admitted into the United States 
under the Immigration and Nationality Act, and who is legally authorized 
to take permanent employment in the United States.
    (f) Enrollee. An individual enrolled in the YACC grant program.
    (g) Grant. Funding furnished by the Secretaries to a State pursuant 
to the Act in order to carry out the YACC program.
    (h) Grantee. Any State recipient of a grant for the operation of a 
YACC program affecting both Federal and non-Federal public lands and 
waters, or projects limited to non-Federal public lands and waters as 
designated by the Governor in each State.
    (i) Subgrantee. Any unit of general local government or any public 
agency or organization or any private non-profit agency or organization 
which has been in existence at least 2 years which has successfully 
applied to a State for funds to operate a YACC project affecting both 
Federal and non-Federal public lands and waters within that State or 
projects limited to non-Federal public lands and waters.
    (j) Contractor. Any public agency or organization, or any private 
non-profit agency or organization which has been in existence for at 
least 2 years and is under contract with the grantee or sub-grantee for 
the conduct of a YACC project affecting both Federal and non-

[[Page 489]]

Federal public lands or waters, or projects limited to non-Federal 
public lands and waters.
    (k) State grant program. The YACC program consisting of one or more 
projects operated by a State with Federal Funding.
    (l) Project. A YACC residential camp operation or nonresidential 
project:
    (1) Residential camp. A YACC facility established and maintained to 
provide 7 days-per-week, 24 hours-per-day residential support services 
for enrollees.
    (2) Nonresidential project. A designated area from which daily work 
activities are assigned and to/from which nonresidential enrollees 
commute daily.
    (m) In consultation with. Advance discussion shall occur on the 
matter under consideration.
    (n) Non-Federal public lands and waters. Any lands or waters within 
the territorial limits of a State owned either in fee simple by a State 
or political subdivision thereof or over which a State or political 
subdivision thereof has, as determined by the Secretaries, sufficient 
long-term jurisidiction so that improvements made as the result of a 
grant will accrue primarily to the benefit of the public as a whole. 
Federally owned public lands and waters administered by a State or 
political subdivision thereof under agreements with a Department or 
Agency of the Federal Government are eligible under such definition if 
the Secretaries determine that the State or political subdivision 
thereof is entitled or is likely to retain administrative responsibility 
for an extended period of time sufficient to justify treatment as non-
Federal public lands or waters.
    (o) Total youth population. Number of youth in a State ages 16 
through 23, consistent with the most current Bureau of Census estimate.
    (p) Labor. U.S. Department of Labor.
    (q) Interior. U.S. Department of the Interior.
    (r) Forest Service. Agency within the U.S. Department of 
Agriculture.



Sec. 32.3  Program purpose and objectives.

    It is the purpose of the Young Adult Conservation Corps to provide 
employment and other benefits to youths of both sexes from all social, 
economic and racial classifications who would not otherwise be currently 
productively employed. The youths will be employed for a period of 
service during which they engage in useful conservation work which would 
otherwise be accomplished if adequate funding were made available.



Sec. 32.4  Program operation requirements.

    (a) The State agencies cooperating with Interior and Forest Service 
having natural resource management responsibilities should be involved 
in the planning and implementation of the program.
    (b) Grantees shall be responsible for the management of each Corps 
camp and project, final selection of enrollees, determination of 
enrollee work assignments, training, discipline and termination, and 
camp operations in accordance with this part and guidelines issued by 
Interior and Forest Service.
    (1) Grantees shall assure that YACC program activities will not 
result in the displacement of employed workers (including partial 
displacement such as reduction in the hours of non-overtime work or 
wages or employment benefits), or impair existing contracts for 
services, or result in the substitution of YACC funds for other funds in 
connection with work that would otherwise be performed, or substitute 
jobs assisted under YACC for existing Federally-assisted jobs, or result 
in the hiring of any youth when any other person is on layoff from the 
same or any substantially equivalent job.
    (2) Grantees shall assure that the activities in which the YACC 
enrollees are employed will result in an increase in employment 
opportunities over those opportunities which would otherwise be 
available.
    (3) In addition, Grantees shall see that YACC enrollees do not, at 
the same time, share common facilities or property with, or work with 
members of the Job Corps, under title IV of the Act, except in emergency 
situations as outlined in paragraph (l)(4)(i) of this section.
    (c) Enrollee eligibility: Membership in the Corps will be limited to 
youths between the ages of 16 to 23, inclusive who are unemployed at the 
time of application. Citizens, lawfully permanent

[[Page 490]]

residents of the United States, or lawfully admitted refugees, or 
parolees, may apply for enrollment. Applicants also must be capable of 
carrying out the work of the Corps for the estimated duration of their 
enrollment.
    (d) Candidate recruitment and referral: (1) Interested youth may 
apply to their local Employment Service/Job Service for enrollment. 
State Employment Security Agencies (SESA) and their local Employment 
Service/Job Service (ES/JS) offices shall take applications for YACC 
from all interested youth and shall refer all candidates who self-
certify that they meet eligibility requirements to Grantees for 
selection of those to be enrolled. Self-certification by applicants ages 
16 through 18 who have left school shall include an assurance that they 
did not leave school for the purpose of enrolling in the Corps. Such 
referrals shall include all interested youth, including veterans, from 
both sexes, and all social, economic and racial classifications. Labor 
shall recruit candidates for YACC through the SESA and their local ES/JS 
offices, prime sponsors qualified under section 102 of the act, sponsors 
of Native-American programs qualified under section 302 of the act, 
sponsors of migrant and seasonal farmworkers programs under section 303 
of the act, Interior and Agriculture and such other agencies and 
organizations as deemed appropriate by Labor. All candidates must be 
referred through the local ES/JS offices.
    (2) An equitable proportion of candidates shall be referred from 
each State, based on the State's total youth population. For YACC 
program purposes, total youth population is the number of youth, 16 
through 23, as determined on the basis of the best available data. Youth 
of both sexes and of all social, economic, and racial classifications 
shall be referred equitably.
    (e) Enrollee selection: Grantees shall--(1) Notify ES offices when 
openings are available;
    (2) Select enrollees for the Corps only from those candidates 
referred by Labor and, in selection and assignment, shall provide, to 
the extent feasible, for equitable participation for youth of both sexes 
and of all social, economic, and racial classifications, and for 
equitable participation of youth from each State;
    (3) Notify selected applicants of the date, time and place to which 
they should report for work, and that enrollees must provide their own 
transportation to and from the project or camp;
    (4) Require that enrollees complete physical examinations prior to 
official enrollment (expenses, if any, for the physical examination will 
be borne by the prospective enrollee);
    (5) Require parental consent for those youth who have not reached 
the age of majority as defined by State law;
    (6) Require enrollees to provide their own clothing, with the 
exception of certain safety equipment which will be furnished;
    (7) Notify the referring ES/JS office as soon as possible but no 
later than 30 days after receipt of application, which applicants have 
been selected and have reported for employment and which have not been 
so selected.

Preference in enrollee selection shall be given to applicants in rural 
and urban areas having substantial unemployment rates equal to or in 
excess of 6.5 per centum as determined by the Department of Labor. 
Grantees shall comply with section 808 of the act, concerning 
antidiscrimination.
    (f) Enrollment duration: (1) Grantees shall assure that no 
individual is enrolled in the Corps for a total period of more than 12 
months. Such period may be completed in up to three separate enrollment 
periods so long as the youth meets the eligibility requirements at the 
time of each separate enrollment. An individual who attains age 24 while 
enrolled may remain in the program to complete the current period of 
enrollment.
    (2) No youth shall be enrolled if he or she desires such enrollment 
only for the normal periods between school terms.
    (g) Corpsmember activities. Grantees shall assure that work project 
activities on which YACC enrollees are employed are consistent with the 
Forest and Rangeland Renewable Resource Planning Act of 1974, as amended 
by the National Forest Management Act of 1976. Enrollees will be 
assigned to

[[Page 491]]

work projects which are designed to diminish the backlog of work in such 
fields as:
    (1) Tree nursery operations, planting, pruning, thinning and other 
silvicultural measures;
    (2) Wildlife habitat improvement and preservation;
    (3) Range management improvements;
    (4) Recreation development, rehabilitation and maintenance;
    (5) Fish habitat and culture measures;
    (6) Forest insect and disease prevention and control;
    (7) Road and trail maintenance and improvements;
    (8) General sanitation, cleanup, and maintenance and improvements;
    (9) Erosion control and flood damage;
    (10) Drought damage measures; and
    (11) Other natural disaster damage measures.
    (h) Project criteria. YACC projects will be operated on a 
residential and nonresidential basis. Each project location will be 
jointly approved by Interior and Forest Service through their Regional/
Area Offices. To the maximum extent practicable, projects shall:
    (1) Be labor-intensive;
    (2) Be projects for which work plans exist or can be readily 
developed;
    (3) Be able to be initiated promptly;
    (4) Be productive with positive impacts on both the Enrollee as well 
as the Corps from the standpoint of work performed and benefit to 
participating youth;
    (5) Provide work experience to participants in skill areas required 
for the projects;
    (6) If a residential camp, to the maximum extent feasible, be 
located in areas where existing residential facilities are available. 
The use of existing but unoccupied or underutilized Federal, State, and 
local government facilities and equipment shall be maximized; such 
utilization is subject to the approval of the Federal agency, State or 
local government having administrative control thereof;
    (7) If a non-residential project, be located within acceptable 
normal commuting distance from the geographic center of areas of 
substantial unemployment as designated by Labor;
    (8) Be similar to activities of persons employed in seasonal and 
part-time work by Federal natural resource agencies.
    (i) Cooperation with agencies and institutions: (1) Grantees shall, 
to the extent feasible, arrange for local linkages with educational 
systems, CETA and other employment and training programs, employment 
service offices, local apprenticeship sponsors and information centers, 
and employers, in order to arrange for the provision of available 
services to enrollees, both during non-work hours while enrolled, and 
after termination from YACC. Grantees shall establish procedures to 
ensure that enrollees are made aware of established linkages and related 
information and opportunities.
    (2) Grantees shall notify appropriate local ES/JS offices regarding 
enrollee status, in advance of the end of the enrollment period or upon 
termination and shall, to the extent feasible, assist the enrollee in 
making contact with ES/JS or other organizations to enhance the 
possibilities for placement.
    (3) Labor shall work with the Department of Health, Education, and 
Welfare to make suitable arrangements whereby academic credit may be 
awarded by educational institutions and agencies for competencies 
derived from work experience obtained through the YACC program. Labor 
shall also encourage Grantees, through Interior and Forest Service, to 
make necessary arrangements with local education agencies so that 
academic credit for such work experience may be granted.
    (j) Enrollee wages and hours of work: (1) Grantees shall assure that 
enrollees in the State Grant Program are paid at the Federal minimum 
wage rate specified in section 6(a)(1) of the Fair Labor Standards Act 
of 1938, as amended. As an exception, Grantees shall provide for an 
additional cost-of-living adjustment for enrollees in the State of 
Alaska, not to exceed 25 percent of the Federal Wage Rate.
    (2) Wages in the Commonwealth of Puerto Rico, the Virgin Islands, 
American Samoa, and the Northern Marianas shall be consistent with 
provisions of Federal, State, or local laws,

[[Page 492]]

otherwise applicable. Wages in the Trust Territory of the Pacific 
Islands shall be consistent with local law, except on Eniwetok and 
Kwajalein Atoll where section 6(a)(1) of the Fair Labor Standards Act 
applies.
    (3) As an incentive, Grantees may authorize incremental increases, 
above the minimum wage, for a limited number of enrollees, to reflect 
additional responsibilities or competencies. For this purpose, two 
promotional categories may be established: (i) Enrollee Leader, and (ii) 
Enrollee Assistant Leader. No more than 15 percent of the enrollment of 
any individual camp or project shall be given such increases. For each 
enrollee thus compensated, the wage increase shall be 50 percent for the 
enrollee leader and 15 percent for the enrollee assistant leader, of the 
applicable basic hourly minimum wage.
    (4) Grantees shall reduce enrollee wages for each hour of unexcused 
absence.
    (5) Enrollees assigned to residential camps may be required to 
assume responsibility for housekeeping and maintenance duties. Such 
duties shall not be considered compensable, unless scheduled during the 
regular work day, in which case enrollees shall be paid at the same rate 
as for regular work assignments.
    (6) Enrollees may not be required to work more than 8 hours per day 
or 40 hours per week, except that Grantees may authorize overtime which 
shall not exceed 10 hours per week per enrollee, in which event they 
shall pay them at his or her regular rate.
    (7) Enrollees assigned to residential camps shall be charged for 
daily food and lodging as follows: 75 cents per meal furnished and 75 
cents per day lodging. Grantees shall arrange for payment of such 
charges by payroll deduction.
    (8) Grantees shall establish a collection procedure for collecting 
payments made by program staff and visitors for meals, lodging, or other 
items requiring reimbursement. Amounts collected shall be treated as 
program income and shall be netted against total YACC program outlays by 
Grantees.
    (9) Income taxes shall be withheld from enrollee wages pursuant to 
the Federal Internal Revenue Code of 1954 (26 U.S.C. 1 et seq.), and 
such State income tax laws as are applicable. Grantees shall provide 
each enrollee with the forms required to effect income tax deductions 
and withholding exemptions and shall assure that appropriate wage and 
tax statements are provided to enrollees.
    (10) Interior and Forest Service shall assure that the payroll 
procedures for both the Federal and State programs are the same. State 
and local grantees shall utilize the payroll forms used by the Federal 
Government for payment of enrollees in accordance with the guidelines 
issued by Forest Service and Interior as appropriate.
    (11) Grantees may utilize the payroll services of the Administrative 
Service Center (ASC), Bureau of Reclamation, P.O. Box 11568, Salt Lake 
City, Utah 84147 for enrollee pay at no direct cost to the Grantee. 
Grantees may elect to payroll the enrollees through their own payroll 
system if the payroll system is consistent with regulations contained 
herein. Those Grantees electing to payroll enrollees through ASC will be 
furnished appropriate forms and instructions.
    (k) Enrollee leave: (1) Grantees shall provide enrollees with paid 
annual leave at a rate of 4 hours for every full pay period which shall 
consist of 2 normal work weeks. Accrual shall commence at the beginning 
of the first full pay period after the day of official enrollment, and 
shall end on the date of official termination. Such leave may be accrued 
up to a maximum of 13 days for 52 weeks of uninterrupted enrollment: 
Enrollees may use accrued leave at any time, subject to approval by the 
Grantee, but shall use all accrued leave prior to each formal 
termination. Accrued leave may be used for such purposes as personal 
business and sick time. The date of formal termination shall be the 
final date upon which the youth is eligible to receive pay, whether this 
is a work day or an accrued but unused leave day. Compensation shall not 
be paid for unused accrued leave.
    (2) Grantees may grant administrative leave with pay for enrollee 
participation in job search and employment development activities. Such 
leave

[[Page 493]]

with pay is to be counted as time in employment.
    (3) Emergency or administrative leave, without pay may be granted at 
the discretion of the Grantee. Such leave without pay shall not be 
counted as time in employment.
    (4) Grantees shall pay enrollees for all regular State holidays, if 
they are in a pay status for 8 hours on the workdays immediately 
preceding and following the holiday. Approved leave with pay shall count 
as time in employment for approved paid holidays. Such holidays shall 
not count as annual leave.
    (l) Federal status of enrollees: Except as otherwise specifically 
provided in this subpart, YACC enrollees in the State Grant Program 
shall not be deemed Federal employees, and shall not be subject to the 
provisions of law relating to Federal employment including those 
regarding hours of work, rates of compensation, leave, unemployment 
compensation, and Federal employee benefits. Enrollees in the State 
Grant Program shall be considered Federal employees for the following 
purposes:
    (1) For purposes of section 5911 of title 5 of the U.S. Code, 
relating to allowances for living quarters, enrollees whose housing is 
provided by the Federal Government shall be deemed civil employees of 
the United States within the meaning of the term ``employee'' as defined 
in that section, and provisions of that section shall apply.
    (2) For purposes of the Internal Revenue code of 1954 (26 U.S.C. 1 
et seq.) and title II of the Social Security Act (42 U.S.C. 401 et 
seq.), enrollees shall be deemed employees of the United States, and any 
service performed by a person as an enrollee shall be deemed to be 
performed in the employ of the United States.
    (3) For purposes of chapter 171 of title 28 of the U.S. Code, 
relating to tort claims procedures, enrollees in the State Grant Program 
shall be deemed employees of the United States within the meaning of the 
term ``employee of the Government'' as defined in section 2671 of title 
28 U.S. Code, and provisions of that chapter shall apply.
    (i) In the event an enrollee is alleged to be involved in the 
damage, loss or destruction of the property of others or of causing 
personal injury to or the death of other individual(s) while in the 
performance of duty, claims may be filed by the owner(s) of the 
property, the injured person(s) or by a duly authorized agent or legal 
representative of the claimant to the Grantee who shall collect all of 
the facts and submit the claim to the Regional/Area Offices, Interior 
and Forest Service for appropriate action.
    (ii) Tort claims shall be made on Standard Form 95, Claim for Damage 
or Injury form or a similar document, supported by necessary 
justification.
    (4) For purposes of subchapter 1 of chapter 81 of title 5 of the 
U.S. Code, relating to compensation to Federal employees for work 
injuries, enrollees in the State Grant Program shall be deemed employees 
of the United States within the meaning of the term ``employee'' as 
defined in section 8101 of title 5 U.S. Code and provisions of that 
subchapter shall apply, except that the term ``performance of duty'' 
shall not include any act of an enrollee while absent without 
authorization from the enrollee's assigned post of duty, but shall 
include time spent participating in an activity (including an activity 
while on pass or during travel to or from such post of duty) authorized 
by or under the direction of YACC program staff.
    (i) Residential enrollees are generally considered under Federal 
Employees' Compensation Act to be Federal employees from the time each 
begins Government authorized travel to the assigned YACC camp, to the 
time each completes Government authorized travel after termination from 
the program. Residential enrollees shall be generally considered in 
``performance of duty'' at all times during any and all of their 
activities, 24 hours a day, 7 days a week, except when they are absent 
without authorization from their assigned post of duty. Whether a 
residential enrollee is in ``performance of duty'' shall be determined 
by the Office of Workers' Compensation Programs (OWCP).

[[Page 494]]

    (ii) Nonresidential enrollees, after official enrollment are 
generally considered, under Federal Employees Compensation Act (FECA), 
to be in ``performance of duty'' as Federal employees from the time they 
arrive daily at the designated area from which activities are assigned, 
until they leave such designated area or activity. Nonresidential 
enrollees are generally not covered by FECA while commuting between a 
designated area/authorized activity and their residence. Whether a 
nonresidential enrollee is in ``performance of duty'' shall be 
determined by OWCP.
    (iii) Whenever an enrollee is injured, develops an occupation 
related illness, or dies while in the performance of duty, the Grantee 
shall immediately comply with the procedures set out in the Employment 
Standards Administration regulations of 20 CFR chapter 1. The Grantee 
shall also see that a thorough investigation of the circumstances, and a 
medical evaluation are made, and shall see that required forms are 
submitted to the Regional/Area Offices, Interior and Forest Service, for 
appropriate action.
    (iv) If an enrollee dies, the Grantee, in addition to making proper 
notifications, in accordance with procedures established by Interior and 
Forest Service shall:
    (A) Notify the appropriate district office of Workers' Compensation 
Programs (OWCP) through the Regional/Area Office, Interior and Forest 
Service of the death and the circumstances surrounding it, and file 
appropriate forms with that office.
    (B) Be responsible for assuring that the next of kin is informed of 
benefits which may be available from Federal Employees' Compensation;
    (C) Consult the decedent's family as to the final disposition of the 
remains before any final action is taken in this regard; and
    (D) If the next of kin refuses to accept the remains, arrange for 
burial at a site close to the camp/project and at a cost not to exceed 
the amount authorized in section 8134(a) of the Federal Employees' 
Compensation Act (FECA).
    (v) Safety and health: (A) Grantees shall assure that enrollees are 
not required or permitted to work or receive services in buildings or 
surroundings or under condition which are unsanitary, hazardous, or lack 
proper ventilation. Such work or services shall be conducted or provided 
in accordance with the standards set forth in the regulations under the 
Occupational Safety and Health Act of 29 CFR parts 1910, 1926, and 1960 
subpart B.
    (B) Grantees shall conduct safety and health inspections of every 
residential camp and work project area connected therewith, at least 
annually, consistent with the requirements of 29 CFR 1960.26(d).
    (C) Grantees shall issue such items of protective and safety 
clothing and equipment to enrollees as are necessary and appropriate to 
insure a maximum of safety in field and construction activities, 
including, at a minimum, hard hats, gloves, and boots. Grantees shall 
also see that proper use of such clothing and equipment is taught to 
enrollees and enforced. Enrollees are expected to provide all other 
clothing.
    (D) Grantees shall provide complete safety orientation to enrollees 
in all work situations to alert them to any hazards to which they may be 
exposed.
    (vi) Residential living conditions: (A) Grantees shall provide for 
residential support facilities and services which ensure healthful and 
secure living conditions, 7 days a week, 24 hours a day.
    (B) Grantees shall assure that all residential facilities are well 
maintained and shall comply with applicable Federal, State and local 
safety, health, and housing codes for multipurpose group residences. 
Adequate supervision and assistance are to be provided for the safety 
and welfare of the enrollees.
    (vii) Enrollee services: Grantees shall provide enrollees with such 
transportation related to camp and/or project operations, lodging, 
subsistence, medical treatment and other services, supplies, equipment 
and faciliies as may be needed consistent with this part.
    (viii) Enrollee complaints: Grantees shall establish procedures for 
resolving enrollee complaints and issues which arise between the grantee 
and any enrollee regarding adverse action, civil rights, equal 
employment opportunity, enrollment, or upgrading from the time

[[Page 495]]

at which their referrals are received from ES/JS to the time of formal 
termination. Such procedure shall:
    (1) Provide the enrollee with the opportunity for an informal 
conference,
    (2) Provide prior notice of intended adverse action against the 
enrollee setting forth the grounds and permitting response,
    (3) Provide an opportunity for a formal hearing, and if the enrollee 
is not satisfied, with an opportunity for an appeal and
    (4) Provide an offer of assistance in preparation for hearings and 
appeals.
    (ix) Emergency disaster work: (A) Grantees may utilize enrollees 
aged 18 years and over to perform work in emergency disaster situations. 
Enrollees may volunteer but may not be required to participate while 
natural disasters are occurring; enrollees may, however, be required to 
perform work on damage which has been caused by such disasters. The use 
of YACC enrollees in such activities must provide for qualified 
supervision and training for the enrollee. All such activity shall be 
conducted in accordance with regular Grantee policy: and procedures 
shall meet health, safety and work standards established by Labor in 29 
CFR parts 97B, 22, 23, 24, and 25.
    (B) Such enrollees shall be used only to supplement compensated 
firefighters, and shall be paid at the rates set by the Grantee as 
established in pay plans for emergency firefighters, in accordance with 
established policies, procedures and practices.
    (C) No YACC enrollee is required to work for a greater number of 
hours per day than other firefighters.
    (D) Cost incurred in using YACC enrollees in emergency disaster 
situations shall be borne by the funds of the benefitting organizations 
whenever possible; however, YACC funds may be used to provide such 
assistance subject to the approval of the Secretaries.
    (E) Grantees shall see that the work activity of enrollees under age 
18 is in compliance with Hazardous Occupation Orders issued pursuant to 
the Fair Labor Standards Act (29 CFR 570.50 et seq.).
    (F) All YACC work and services are to be conducted consistent with 
the requirement of the Occupational Health & Safety Act (29 CFR parts 
1910, 1926, and 1960 subpart B).
    (x) Prohibited activities: Grantees shall not permit YACC enrollees 
to participate in emergency relief in connection with labor stoppages, 
strikes, riots, or civil disturbances. Enrollees shall not participate 
in activities on private property except as incidental to emergency work 
provided for in paragraph (i) of this section.
    (xi) Transportation: Grantees shall assign selected enrollees to the 
residential camps nearest to their home as practicable; and to 
nonresidential projects within normal commuting distance from their 
homes. Daily transportation to and from home and work site for 
nonresidential enrollees may not be provided, except from established 
staging areas to work site and return to staging area. YACC will not pay 
the initial transportation from home to residential camp; however, 
residential YACC enrollees may be advanced a portion of their wages for 
the purpose of traveling to the camp upon a determination by the grantee 
that the youth is in need thereof. Grantees shall arrange for repayment 
of such advances by payroll deduction.
    (xii) Project identification: Buildings, campgrounds and other 
permanent projects shall be marked with appropriate signs identifying 
each project as built by or under construction by the YACC.
    (xiii) Post termination assistance: Grantees shall notify 
appropriate local ES/JS offices regarding enrollee status, in advance of 
the end of the enrollment period or upon termination, and shall, to the 
extent feasible, assist the enrollee in making contact with ES/JS or 
other organizations to enhance the possibilities for placement.



Sec. 32.5  Administrative requirements.

    (a) The Governor in each State shall designate the State agency 
having program administration responsibility as the recipient YACC 
grantee. The non-Federal component of YACC in each State will be carried 
out by the designated agency. Other State agencies, lower tier 
governmental organizations, units of local government, any public agency 
or organization or any private nonprofit agency or organization which

[[Page 496]]

has been in operation at least 2 years, may apply to the designated 
State agency for a YACC sub-grant or contract.
    (b) At least 25 percent of the enrollees in each State YACC program 
must be residential by September 30, 1978. However, the Secretaries may 
waive this residential requirement where State funding allocations 
provide for minimum enrollment numbers. Cost per enrollee limitations 
imposed on Interior and Forest Service in the total program will also be 
applicable to Grantee programs; limitation information will be furnished 
through planning advice to Grantees.
    (c) All grantee camp/project site selections/locations shall be 
approved by Interior and Forest Service through their Regional/Area 
Offices.
    (d) Federal Management Circular (FMC) 74-4 and Office of Management 
and Budget Circular (OMB) A-102 (formerly FMC 74-7) are applicable to 
all grants, agreements, and contracts entered into under this part. 
Copies of these documents can be obtained through any of the several 
regional offices of the Secretaries.
    (e) Grantees shall establish procedures to insure that operational 
directives, guidelines, controls, and records, including appropriate and 
sufficient enrollee records, are established, promulgated, and 
maintained, in accordance with established policies and procedures 
contained herein and consistent with the requirements in Attachment C to 
OMB Circular A-102.
    (f) ``Request for advance or reimbursement'' as outlined in 
Attachment H to OMB Circular A-102 will be used to obtain advance 
funding or for reimbursement. Advances are limited to 30-day needs and 
may not be made before approval of the grant application.
    (g) Except where specifically excluded in Circulars 74-4 and A-102, 
grantees shall impose the requirements of this part on all State and 
local government subgrantees and contractors. Grantees are responsible 
for administering their subgrants and contracts under these guidelines, 
and shall make a periodic review of all non-Federal YACC projects under 
its administrative control during each operating year.



Sec. 32.6  Request for grant.

    (a) All States will be given an opportunity to participate in the 
program. Thirty percent of each appropriation will be allocated among 
the States on the basis of total youth population as defined in Sec. 
32.2(o) of this part.
    (b) States may apply for grants under the program in accordance with 
Attachment M of OMB Circular A-102. Forms and instructions may be 
obtained from either Forest Service or Interior Regional/Area locations 
throughout the country.
    (c) The Grantee shall submit a consolidated application for all YACC 
projects included in its program.
    (d) Allocated grant funds not needed by a State may be reallocated 
to another State at the discretion of the Secretaries. The Secretaries 
may choose to reallocate such funds to any one or several of the 
applicants in order to maximize employment. Section 32.9 of this part 
shall also apply to fund reallocation.
    (e) The Secretaries have designated officials at their respective 
Regional/Area Offices to receive and approve State applications for YACC 
grants. These officials must jointly act on all applications and will 
furnish technical assistance and advice concerning all YACC program 
matters. The names and addresses of these designated Federal officials 
will be furnished to each State.
    (f) The initial YACC State Grant Program year shall be from April 1, 
1978, to March 31, 1979. Program years beginning in FY 79 will be 
consistent with the Federal fiscal year (October 1 to September 30).



Sec. 32.7  Application format, instructions, and guidelines.

    Grant Applications will be made using the Office of Management and 
Budget approved form entitled ``Application for Federal Assistance'' 
(short form)--Attachment M. Exhibit M-5 of OMB Circular A-102, Uniform 
Administrative Requirements for Grants-in-Aid to States and Local 
Governments. The application form consists of 4 parts. The application 
shall be prepared in accordance with Attachment M and the following 
supplemental criteria:

[[Page 497]]

    (a) Part III--Program Narrative Statement. Complete a consolidated 
description of all Grant projects summarizing all Grantee, Sub-grantees, 
and Contractor projects.
    Complete a separate profile for each project location and each 
residential or non-residential project which will include the following 
information:

    Name of Grantee, Sub-grantee or Contractor for each project.
    Type project--Residential or Nonresidential.
    The name of the Project Manager/Camp Director.
    The project number--Number projects consecutively.
    The name and address for the project.
    The project location--Show county, nearest city or town, and State.
    The land ownership class(es) benefiting from the program--State, 
county, municipal or other non-Federal public (identify).
    The number of enrollees at full project capacity.
    The planned start-up date.
    The type of work enrollees will engage in--State the primary mission 
of the project, brief explanation of units of expected accomplishments 
and any hazards that might be encountered.
    The staff--Show official position titles, the tour of duty days and 
hours, and a brief description of the duties and/or responsibilities for 
all project staff.
    Health and safety--A statement as to the project's conformance to 
health and safety policies and procedures which are consistent with the 
standards set forth in the Secretaries' Regulations.

    (b) Priority should be given to project proposals according to the 
following general work categories.
    (1) Conservation projects which protect or expand the availability 
of natural resources and/or enhance the care and use thereof.
    (2) Projects designed for general sanitation, clean-up maintenance 
and/or improvements.



Sec. 32.8  Program reporting requirements.

    Grantees shall submit the following reports to the Secretaries 
quarterly within 15 days after the end of December, March, June, and 
September. In addition, a final report is required within 60 days from 
the end of each grant period. Forms for completing the reports will be 
supplied to the grantee at time of grant award. The required reports 
are:
    (a) Quarterly Financial and Program Progress Reports: (1) Financial 
Status. Grantees shall submit a quarterly accrual basis ``Financial 
Status Report'' and a final report.
    (2) Enrollee Characteristics and Program Progress. Based on the 
payroll data system, Administrative Service Center (ASC) provides a 
quarterly summary of enrollee characteristics and program progress to 
Forest Service, Departments of the Interior, and Labor within 15 days of 
the end of the quarter. For States not using the ASC, the same data is 
required to be submitted to the ASC. All States shall submit the 
required final report.
    (b) ``YACC Work Accomplishment'' (YACC Form 5): The purpose of this 
form is to provide program data such as enrollee man-years worked and 
quantity of work accomplished as expressed in normal units of measure. 
Instructions regarding this report will accompany the form.
    (c) The reporting requirements contained herein have been approved 
by the Office of Management and Budget in accordance with the Federal 
Reports Act of 1942.



Sec. 32.9  Consideration and criteria for awarding grants.

    (a) The decision by the Secretaries' designated officials for award 
of YACC grants will consider the following:
    (1) Amount of grant funds appropriated and available.
    (2) The total youth population ages 16 to 23, inclusive, in each 
State in relation to the total for all States.
    (3) The ability of State agencies to operate at the funding level 
provided in any given Federal fiscal year.
    (4) The quality of each proposed project in terms of meeting program 
objectives as reflected in each application. After the initial grant 
year, actual performance of the Grantee in administering the YACC 
program in prior years will be considered.
    (5) The cost to the Federal Government of the State program in 
relation to the quality and quantity of projects proposed.

[[Page 498]]

    (6) The following imposed limitations: (i) National average cost per 
enrollee, (ii) Percent in residential program.
    (7) The capability and past performance by Grantees in meeting their 
responsibilities as required by FMC 74-4 and OMB Circular A-102.
    (8) Project Location Approval. Each project location will be 
approved by Forest Service and Interior through their Regional/Area 
Offices.
    (b) The demonstrated capability of the Grantee to establish and 
implement an effective mechanism to assure equal employment opportunity 
in staff hiring by the Grantee or any subgrantees will be considered 
prior to award. If the Grantee's performance is found to be so 
unsatisfactory or inadequate as to warrant denial, suspension, 
modification or termination, then appropriate action will be taken in 
accordance with the regulations implementing title VI of the Civil 
Rights Act of 1964, 42 U.S.C. 2000d.



PART 33_ALLOCATION OF DUTY-FREE WATCHES FROM THE VIRGIN ISLANDS, GUAM, AND AMERICAN SAMOA [NOTE]--Table of Contents



    Note: Public Law 89-805 (19 U.S.C. 1202) authorizes the Secretary of 
the Interior and the Secretary of Commerce to issue joint regulations 
governing the allocation of duty-free quotas for watches and watch 
movements assembled in the Virgin Islands, Guam, and American Samoa. For 
the text of these joint regulations, see 15 CFR part 303, published at 
42 FR 62907, Dec. 14, 1977, and revised at 49 FR 17740, Apr. 25, 1984.



PART 34_REQUIREMENTS FOR EQUAL OPPORTUNITY DURING CONSTRUCTION AND OPERATION OF THE ALASKA NATURAL GAS TRANSPORTATION SYSTEM--Table of Contents



Sec.
34.1 Statement of purpose.
34.2 Applicability.
34.3 Definitions.
34.4 Discrimination prohibited.
34.5 Assurances.
34.6 Equal opportunity clause.
34.7 Incorporation by operation of law.
34.8 Affirmative action plans.
34.9 Compliance reporting.
34.10 Compliance reviews.
34.11 Enforcement sanctions.

    Authority: Sec. 17, Pub. L. 94-586, 15 U.S.C. 719 (1976).

    Source: 45 FR 31104, May 12, 1980, unless otherwise noted.



Sec. 34.1  Statement of purpose.

    The purpose of these regulations is to implement both section 17 of 
the ANGTA and Condition 11 of the President's Decision.



Sec. 34.2  Applicability.

    These regulations apply to all activities including, but not limited 
to, contracting for goods and services, employment, and any other 
benefits that flow from activities conducted under permits, rights-of-
way, public land orders, and other Federal authorizations granted or 
issued pursuant to ANGTA, by recipients of those authorizations, their 
agents, contractors, and subcontractors, including labor unions or other 
persons.



Sec. 34.3  Definitions.

    (a) As used in this part, the term, ANGTA means the Alaska Natural 
Gas Transportation Act of 1976, Public Law 94-586, 15 U.S.C. 719.
    (b) ANGTS means the Alaska Natural Gas Transportation System as 
designated and described in the President's Decision and Report to 
Congress on the Alaska Natural Gas Transportation System, September 
1977, pursuant to section 7(a) of ANGTA, S.J. Res. 82, 91 Stat. 1268 
(1977).
    (c) The term affirmative action plan means a statement of those 
actions appropriate to overcome the effects of past or present 
practices, policies, or other barriers to equal opportunity in 
employment, procurement, and the provision of services, financial aid or 
other benefits, and includes goals for achieving equal opportunity and a 
description of specific result-oriented procedures to which the 
recipient, contractor or subcontractor commits itself to apply a good 
faith effort in order to achieve the goals.
    (d) The term applicant means a person who has applied for and is 
seeking Federal authorization under ANGTA to construct and operate the 
ANGTS, but has not received or been denied the authorization sought.

[[Page 499]]

    (e) The term contract means any agreement or arrangement (in which 
the parties do not stand in the relationship of employer and employee) 
between a recipient or an applicant and any person for the furnishing of 
supplies or services to a recipient or applicant, or for the use of real 
or personal property including lease arrangements by a recipient or 
applicant. The term contract also includes any agreement or arrangement, 
whether oral or written, express or implied, between two persons and 
which is related in any way to the activities conducted under any 
certificate, permit, right-of-way, lease or other Federal authorization 
granted or issued pursuant to ANGTA, or in any way connected with ANGTS.
    (f) The term contractor means a person who is a party to a contract 
with a recipient or an applicant.
    (g) The term discrimination means an action or a failure to act 
which has the effect or would tend to have the effect of excluding a 
person from participation, denying a person benefits, subjecting a 
person to unequal treatment, or harassing a person because of and on the 
basis of race, creed, color, national origin or sex.
    (h) The term Federal Inspector means the official appointed by the 
President pursuant to section 7(a)(5) of ANGTA to coordinate 
governmental actions with respect to ANGTS, including the monitoring and 
enforcement of the terms and conditions attached to government 
authorizations issued under ANGTA. The term also includes authorized 
representatives of the Federal Inspector.
    (i) The term female business enterprise (FBE) means a sole 
proprietorship, partnership, unincorporated association, joint venture 
or corporation that is owned and controlled by women. To qualify as an 
enterprise owned and controlled by women, 51% of the beneficial 
ownership interests and 51% of the voting interests must be held and 
actually voted by women. Further, the enterprise must in fact be 
controlled and managed by women.
    (j) The terms minority and minority groups include:
    (1) Black, all persons having origins in any of the Black African 
racial groups not of Hispanic origin;
    (2) Hispanic, all persons of Mexican, Puerto Rican, Cuban, Central 
or South American or other Spanish culture or origin regardless of race;
    (3) Asian and Pacific Islander, all persons having origins in any of 
the Far East, Southeast Asia, the Indian Subcontinent, or the Pacific 
Islands including persons having origin, for example, in China, India, 
Japan, Korea, the Philippine Islands, Samoa; and
    (4) American Indian or Alaskan Native, all persons having origins in 
any of the original people of North America and maintaining identifiable 
tribal affiliations through membership and participation or community 
identification.
    (k) The term minority business enterprise (MBE) means a sole 
proprietorship, partnership, unincorporated association, joint venture 
or corporation that is owned and controlled by minorities. To qualify as 
an enterprise owned and controlled by minorities, 51% of the beneficial 
ownership interest and 51% of the voting interests must be held and 
actually voted by minority people. Further, the enterprise must in fact 
be controlled and managed by minority people.
    (l) The term person includes recipients, contractors, 
subcontractors, governmental agencies, corporations, associations, 
firms, partnerships, joint stock companies, labor unions, employment 
agencies, and individuals.
    (m) The term President's Decision means the President's Decison and 
Report to Congress on the Alaska Natural Gas Transportation System, 
September 1977, pursuant to section 7(a) of ANGTA, approved and adopted 
S.J. Res. 82, 91 Stat. 1268 (1977).
    (n) The term procurement means the acquisition (and directly related 
matters) of personal property and nonpersonal services (including 
construction) by such means as purchasing, renting, leasing, (including 
real property) contracting, or bartering, but not by condemnation or 
donation.
    (o) The term procurement practice means any course of conduct or 
activity taken to effect procurement.

[[Page 500]]

    (p) The term recipient means any corporation association, joint 
stock company, partnership, firm, agency or individual who receives a 
certificate, permit, right-of-way, lease, or other Federal authorization 
granted or issued under ANGTA to construct and operate the ANGTS, 
whether directly or through another recipient including any successor, 
assignee or transferee thereof.
    (q) The term subcontract means any agreement or arrangement between 
a contractor and any person, regardless of tier, (in which the parties 
do not stand in the relationship of employer and employee) in any way 
related to the performance of any one or more contracts as defined 
above.
    (r) The term vendor means a person who sells or provides goods or 
services for the construction and operation of ANGTS. A vendor may be a 
contractor or subcontractor.



Sec. 34.4  Discrimination prohibited.

    (a) General. No person shall, on the grounds of race, creed, color, 
national origin, or sex, be discriminated against or excluded from 
receiving any benefit from or participating in any activity conducted 
under any certificates, permits, rights-of-way, leases, and other 
Federal authorizations to which this part applies.
    (b) Specific actions in which discrimination is prohibited. No 
person shall directly or through contractural or other arrangements, 
discriminate in any activity to which this part applies, including the 
following:
    (1)(i) Employment policies and practices of employers, including 
advertising, hiring or firing, up-grading, promotion, or demotion, 
transfer, layoff, or termination, rates of pay, and other forms of 
compensation or benefits, or other terms and conditions of employment;
    (ii) Employment policies and practices of labor unions, including, 
acceptance of applications for membership, enrolling or expelling 
members, classification of members, referrals for employment, training 
and apprenticeship programs, and the provision of other benefits of 
membership;
    (iii) Employment policies and practices of employment agencies 
including acceptance of applications for employment services, referrals 
for employment, classification of individuals for employment, and the 
provision of other benefits and services.
    (2) Procurement practices, including manner of procurement, 
qualification for contracting or placement on procurement source lists, 
the composition of sources solicited, the use of pre-bid conferences, 
solicitation for proposals or bids, the designation of quantities, 
delivery schedules or other specifications, selection procedures, or 
performance standards.
    (3) The provision of services, financial aid and other benefits 
provided in whole or in part, under any Federal authorization to which 
this part applies, more specifically including actions that result in 
the:
    (i) Denial to an individual or establishment of any service, 
financial aid, or other benefits;
    (ii) Provision of any service, financial aid, or other benefit to an 
individual, or establishment which is different, or is provided in a 
different manner, from that provided to others;
    (iii) Subjection of an individual to segregation or separate 
treatment in any matter related to the receipt of any service, financial 
aid, or other benefits;
    (iv) Restriction of an individual in any way in the enjoyment of any 
advantage or privilege enjoyed by others receiving any service, 
financial aid, or other benefit;
    (v) Treatment of an individual that is different from others in the 
determination of any admission, enrollment, eligibility, membership 
requirements or other conditions which individuals must meet in order to 
be provided any service, financial aid, or other benefit;
    (vi) Denial to an individual of an opportunity to participate in any 
activity that is different from that afforded others;
    (vii) Denial to an individual of the opportunity to participate as a 
member of any planning or advisory body that participates in the 
provision of any service, financial aid, or other benefit;
    (viii) Use of criteria or methods of administration which have the 
effect of

[[Page 501]]

subjecting individuals or establishments to discrimination in the 
determination of the types of services, financial aid, or other 
benefits, or the facilities that will be provided; or the class of 
individuals or establishments to which, or the situation in which, such 
services, financial aids, other benefits, or facilities will be 
provided; or the class of individuals or establishments to be provided 
an opportunity to participate in any activity; and
    (ix) Selection of a site or location for facilities for the 
provision of services, financial aid, or other benefits, with the 
purpose or effect of substantially impairing the objectives of section 
17, the President's Decision, and implementing rules, regulations, and 
orders.
    (c) Scope of prohibited discrimination. (1) The enumeration of 
specific forms of prohibited discrimination in paragraph (b) of this 
section does not limit the general prohibition in paragraph (b) of this 
section.
    (2) Action taken in compliance with an affirmative action plan 
developed pursuant to these regulations shall not be deemed a violation 
of this section.



Sec. 34.5  Assurances.

    Every application for a certificate, permit, right-of-way, lease, 
public land order, or other Federal authorization to which this part 
applies, filed after the effective date of these regulations, and every 
contract covered hereunder to provide goods, services, or facilities in 
the amount of $10,000 or more to a recipient, contractor, or 
subcontractor to which this Part applies, must contain an assurance that 
the recipient, contractor, or subcontractor does not and will not 
maintain any segregated facilities, and that all requirements imposed by 
or pursuant to section 17, Condition 11 of the President's Decision and 
implementing rules, regulations, and orders shall be met, and that it 
will require a similar assurance in every subcontract of $10,000 or 
more.



Sec. 34.6  Equal opportunity clause.

    Each certificate, permit, right-of-way, lease, or other Federal 
authorization to which this part applies, shall include the following 
Equal Opportunity Clause:
    (a) The recipient, contractor, or subcontractor hereby agrees that 
it will not discriminate directly or indirectly against any individual 
or establishment in offering or providing procurements, employment, 
services, financial aid, other benefits, or other activities to which 
these regulations apply. The recipient, contractor, or subcontractor 
will take affirmative action to utilize business enterprises owned and 
controlled by minorities and/or women in its procurement practices; to 
assure that applicants for employment are employed, and that employees 
are treated during employment, without discrimination on the basis of 
race, creed, color, national origin, or sex; and to assure that 
individuals and establishments are offered and provided services, 
financial aid, and other benefits without discrimination on the basis of 
race, creed, color, national origin, or sex. The recipient, contractor, 
or subcontractor agrees to post in conspicuous places available to 
contractors, subcontractors, employees, and other interested 
individuals, notices which set forth these equal opportunity terms; and 
to notify interested individuals, such as bidders, contractors, 
purchasers, and labor unions or representatives of workers with whom it 
has collective bargaining agreements, of its obligations under section 
17, Condition 11 of the President's Decision, and the implementing 
rules, regulations, and orders thereunder;
    (b) The recipient, contractor, or subcontractor will comply with all 
rules, regulations, and orders which implement section 17 and Condition 
11 of the President's Decision;
    (c) The recipient, contractor, or subcontractor will furnish all 
information and reports required by or pursuant to rules, regulations, 
and orders implementing section 17 and Condition 11 of the President's 
Decision, and will permit access to its facilities, books, records, and 
accounts by the Federal Inspector for purposes of ascertaining 
compliance with such rules, regulations, and orders;
    (d) In the event of a recipient's, contractor's, or subcontractor's 
noncompliance with these equal opportunity terms, compliance may be 
effected through procedures authorized

[[Page 502]]

by ANGTA and set forth in implementing rules, regulations, and orders, 
or by any other means authorized by law;
    (e) The recipient, contractor, or subcontractor will include the 
provisions of paragraphs (a) to (e) of this section in all agreements to 
assign authorizations, all contracts over $10,000, and all contracts of 
indefinite quantity, unless there is reason to believe that the amount 
to be ordered in any year under the contract will not exceed $10,000. 
The recipient, contractor, or subcontractor will take such action with 
respect to any contract or purchase order that the Federal Inspector may 
direct as a means of enforcing such provisions, including sanctions for 
noncompliance: Provided, however, That in the event the recipient, 
contractor, or subcontractor becomes involved in or is threatened with 
litigation with a subcontractor or vendor, the contractor may request 
the United States to enter into such litigation to protect the interests 
of the United States.
    (f) Any project labor agreement which may be entered into between 
the applicants and any union must be consistent with the provisions of 
these regulations and must contain an Equal Opportunity Clause.



Sec. 34.7  Incorporation by operation of law.

    (a) The Equal Opportunity Clause shall be deemed incorporated into 
every Federal authorization, agreement to assign an authorization, 
contract and subcontract where Sec. 34.6(e) of these regulations 
requires the inclusion of such a clause whether or not the clause is 
physically incorporated in such Federal authorization, agreement to 
assign authorization, contract or subcontract, and whether or not the 
agreement or contract is written.
    (b) The affirmative action plans prepared pursuant to this part 
shall be deemed incorporated into the Federal authorizations, contracts, 
and subcontracts to which these regulations apply.



Sec. 34.8  Affirmative action plans.

    (a)(1) Within one hundred and twenty (120) days after the effective 
date of this part, applicants or recipients shall have an acceptable 
affirmative action plan which has been approved by the Federal Inspector 
pursuant to paragraph (d) of this section and which conforms to the 
requirements of paragraph (c) of this section. The affirmative action 
plan must set forth overall goals and timetables for the employment of 
minorities and women and the utilization of MBE's and FBE's in the 
construction and operation of the applicant's or recipient's segment of 
the Alaska Natural Gas Transportation System. The approved goals and 
timetables shall be published in accordance with paragraph (d)(4) of 
this section and included in contract bid specifications in accordance 
with paragraph (b)(1) of this section.
    (2) Each contractor and subcontractor with fifty (50) or more 
employees and with a contract of $1,000,000 or more that is in effect on 
the effective date of this part shall, within one hundred and fifty 
(150) days after the effective date of this part, submit an affirmative 
action plan to the Federal Inspector for approval pursuant to paragraph 
(d) of this section. All contractors and subcontractors, with fifty (50) 
or more employees, which are awarded contracts for $1,000,000 or more 
after the effective date of this part shall submit an affirmative action 
plan to the Federal Inspector pursuant to paragraph (d) of this section 
at the time the contract is awarded or 150 days after the effective date 
of this part, whichever is later.
    (b)(1) In addition, recipients and each of their contractors and 
subcontractors shall require, as one of the specifications for all bids 
for contracts in the amount of $50,000 or more, that all bidders which 
have, or would have if awarded the contract, a workforce of 50 or more 
employees, must develop a written affirmative action plan consistent 
with paragraphs (c) (1) and (2) of this section prior to bidding, unless 
an exemption under paragraph (d)(5) of this section has been obtained by 
the bidder. Such a plan must apply to each of the bidder's facilities 
which are associated with any activities conducted pursuant to Federal 
authorizations to which this part applies. A summary of such plan should 
be included with the

[[Page 503]]

bid submitted to the contractor or subcontractor. The ability of the 
bidder to comply with these regulations shall be a factor considered in 
evaluating the bid. The plan must be included in the contract which is 
executed between the contractor or subcontractor and the bidder subject 
to whatever revision may be required by the Federal Inspector.
    (2) The requirements of paragraph (b)(1) of this section also apply 
to any bidder which has previously been awarded a contract or contracts 
where the total amount of such contract or contracts taken together with 
the amount of the contract upon which the bid is to be made total 
$50,000 or more and the bidder has a workforce of 50 or more employees.
    (3) All bidders for contracts of $150,000 or more must develop a 
written affirmative action plan under paragraph (c)(3) of this section 
regarding procurement and contracting practices. All such plans 
developed under paragraph (c)(3) of this section must be submitted to 
the Federal Inspector for approval at the time the contract is awarded.
    (c) An acceptable affirmative action plan must include an analysis 
of all areas of operation of the recipient, contractor, or subcontractor 
in which it could be deficient in offering services, opportunities, or 
benefits to minority groups and women, all areas of employment in which 
it could be deficient in the utilization of minority groups and women, 
and all areas of procurement in which it could be deficient in the 
utilization of MBE's and FBE's; and, further, the plan must include 
specific goals and specific timetables to which the recipient, 
contractor, or subcontractor will direct its best efforts and undertake 
specific action to correct all deficiencies, and to materially increase 
the participation of minorities and women in all aspects of its 
operation. Such plans shall be updated annually.

In addition, the affirmative action plan shall include the following:
    (1) Services, financial aid, and other benefits. The recipient, 
contractor, or subcontractor is required to specifically address and 
analyze all areas of its operation in which services, financial aid, and 
other benefits are offered or provided at each of its facilities to 
which this part applies. The analysis should include:
    (i) An identification of services, financial aid, and other benefits 
that the recipient, contractor or subcontractor provides or may provide;
    (ii) A description of the population eligible to be served or to 
participate, by race, color, national origin, and sex;
    (iii) An identification of specific actions that will be taken to 
assure that no discrimination occurs in providing services, financial 
aid, and other benefits;
    (iv) If relevant, the location of all existing or proposed 
facilities connected with the services, financial aid, or other 
benefits, as well as related information adequate for determining 
whether the location has or could have the effect of denying access to 
any individual on the basis of prohibited discrimination;
    (v) Where relocation of facilities is involved, the steps that will 
be taken to guard against adverse socioeconomic effects on individuals 
on the basis of race, color, creed, national origin, or sex;
    (vi) Information on all areas of the recipient's, contractor's, or 
subcontractor's operations that require change to assure that specific 
actions prohibited in paragraph (b)(3) of this section do not occur in 
the provision of any of its services, financial aid, or benefits;
    (vii) A monitoring system to assure that no discrimination occurs.
    (2) Employment practices. (i) The affirmative action plan shall 
address all aspects of employment in construction and non-construction 
operations and shall contain the analysis and commitments which are 
required in regulations promulgated by the Department of Labor pursuant 
to Executive Order 11246, specifically, those at 41 CFR 60-4.3(a)(7), 
(13), and (14) for the employment of construction employees, and those 
at 41 CFR 60-2.21, 60-2.22, 60-2.24, 60-2.26 for the employment of non-
construction employees.
    (ii)(A) The affirmative action plan of the applicants or recipients 
shall contain goals and timetables applicable to each segment of the 
ANGTS, employing the method of analysis set forth at

[[Page 504]]

41 CFR 60-2.11(b). In developing goals the standards set out at 41 CFR 
60-2.12(a)-(j) should be followed as well as the specific guidelines set 
forth below:
    (1) Current national statistics, such as those available from the 
U.S. Bureau of the Census, should be used to determine the available 
minority and female workforce populations unless it can be shown that a 
particular part of the project can be reasonably expected to draw labor 
only from a small area. If such a showing is made then statistics from 
such smaller area shall be employed in setting goals for that part of 
the project.
    (2) Goals should be set separately for each minority group, as set 
out in paragraph (j) of this section, and for women, by each job group.
    (3) Goals should be set in proportion to the group's general 
availability in the population taking into consideration
    (i) The number of group members currently available in that job 
group,
    (ii) The reason members of the group are not available in that job 
group in proportion to their existence in the general population, and
    (iii) The degree to which the provision of training could be 
expected to increase the availability of the group's members in the 
particular job group within the time available.
    (B) The affirmative action plan of each contractor and subcontractor 
shall contain goals and timetables based upon the overall goals and 
timetables set by the applicant or recipient for the segment of the 
ANGTS upon which the contractor or subcontractor will work.
    (iii) It shall not be a violation of this part for a recipient, 
contractor or subcontractor to extend a preference in employment 
consistent with 41 CFR 60-2.12(j). For the purpose of this section the 
term ``reservation'' in Alaska shall be the same as in 25 CFR 80.1, 
91.1, and 93.1. \1\
---------------------------------------------------------------------------

    \1\ Editorial Note: In the March 30, 1982, Federal Register, these 
sections were redesignated as 25 CFR 286.1, 101.1, and 103.1, 
respectively.
---------------------------------------------------------------------------

    (3) Procurement and contracting practices. (i) Applicants or 
recipients and each of their contractors and subcontractors with 
contracts of $150,000 or more shall develop for the Federal Inspector's 
approval an affirmative action plan that identifies specific actions 
which the applicant or recipient, contractor or subcontractor, will take 
to afford MBE's and FBE's the maximum practicable opportunity to 
participate in the construction and operation of ANGTS.
    (ii) The affirmative action plan of the applicant or recipient shall 
contain specific dollar goals set separately for MBE's and FBE's, and 
timetables for achieving these goals. The applicant's or recipient's 
goals and timetables shall be applicable to all procurement and 
contracting on its respective segment of the ANGTS. In setting goals the 
following factors should be considered:
    (A) The availability and capability of existing MBE's and FBE's in 
each procurement and contracting area;
    (B) The anticipated levels of procurement and contracting 
activities;
    (C) The extent to which procurement and contracting procedures can 
be amended to utilize contract breakouts and other methods, as described 
in paragraph (c)(3)(iii)(D)(2) of this section, to increase 
opportunities for MBE's and FBE's;
    (D) The extent to which new firms can be organized and the 
capability of existing firms expanded either through the efforts of the 
applicant or recipient and its contractors and subcontractors or through 
the efforts of government or other organizations and institutions.
    (iii) Affirmative action plans developed and submitted pursuant to 
paragraph (c)(3)(i) of this section shall contain the following 
elements:
    (A) An in-depth analysis of all areas of procurement and contracting 
procedures to determine if these procedures offer maximum opportunity 
for the utilization of MBE's and FBE's. All deficiencies must be 
identified along with steps that will be taken to correct them.
    (B) A description of all contracting opportunities to be offered in 
the succeeding year, or for such longer period of time for which 
projections are available. The plan shall identify the types

[[Page 505]]

of services and supplies for which contracts are to be let, with as much 
specificity as possible, indicating the anticipated dollar amounts of 
such contracts.
    (C) Specific dollar goals for MBE's and FBE's and timetables for 
achieving such goals based upon the overall goals and timetables set by 
the applicant or recipient for the segment of ANGTS upon which the 
contractor or subcontractor will work.
    (D) A description of all actions that will be taken to provide the 
maximum practicable opportunity for MBE's and FBE's to participate in 
the construction and operation of the ANGTS including the following:
    (1) The appointment of a liaison officer who will administer the MBE 
and FBE program, the identification of that officer, and a description 
of the officer's duties and authority;
    (2) Identification of steps that will be taken to insure timely and 
full consideration of MBE's and FBE's in all procurement and contracting 
decisions, and the identification of how those procedures will be 
implemented. This shall include procedures relevant to (i) the 
arrangement of solicitations, (ii) time for preparation of bids, (iii) 
quantity requirements, (iv) determination of specifications, (v) 
determination of delivery schedules, (vi) the determination of the 
manner of contracting, and (vii) breaking out contracts into smaller 
subcontracts;
    (3) An identification of contracting arrangements that will be 
adopted to increase the use of MBE's and FBE's, including analysis of 
the circumstances in which and the extent to which the following types 
of contracting practices can be used: (i) Noncompetitive contracting, 
(ii) contracting based upon competition between a limited number of 
enterprises, and (iii) negotiated contracts;
    (4) Specific procedures for identifying capable MBE's and FBE's and 
for the dissemination of information on business opportunities and 
procurement practices to minority and women's business organizations and 
associations, in sufficient detail, and affording sufficient time, to 
offer full opportunities for participation by MBE's and FBE's;
    (5) An identification of financial assistance, such as investment in 
Minority Enterprise Small Business Investment Companies (MESBIC) and 
direct investment in MBE's and FBE's, that the recipient, contractor, or 
subcontractor determines to be feasible and financially appropriate to 
offer MBE's and FBE's;
    (6) The identification and elimination of non-essential technical 
requirements and procedures, including non-essential bonding and 
insurance requirements;
    (7) Holding regularly scheduled meetings with procurement and 
contracting officials of the recipient, contractor, or subcontractor to 
explain MBE and FBE policies and procedures;
    (8) Identification of specific procedures for certifying and 
verifying ownership and control of companies identified as MBE's and 
FBE's. The plan shall include the requirements that firms submit 
affidavits as to their status as MBE's and FBE's as defined in Sec. 
34.3.
    (E) As an integral part of the affirmative action plan, develop and 
maintain separate source listings of MBE's and FBE's. Such lists or 
files should contain whenever possible the following information on each 
company:
    (1) A description of each business, including the type of 
organization,
    (2) The product or service offered,
    (3) Information on ownership and control,
    (4) All relevant data and affidavits which establish that the 
enterprise is in fact owned, controlled, and managed by minorities and/
or women.
    (4) Complaint system for affirmative action plans. (i) The 
affirmative action plan must include a grievance mechanism for resolving 
disputes arising from the implementation of the plan.
    (ii) A copy of all complaints, related records, and specific 
resolutions must be maintained.
    (5) Data to support affirmative action plans and access to plans. 
(i) Data supporting the analyses and plans required by these regulations 
shall be compiled and maintained as part of the affirmative action plan.
    (ii) Copies of the affirmative action plan and supporting data shall 
be made available to the Federal Inspector upon

[[Page 506]]

his request as may be appropriate for the fulfillment of the Inspector's 
responsibilities under these regulations.
    (d) Review of affirmative action plan. (1) Applicants and their 
contractors and subcontractors which are required by paragraphs (a) and 
(b) of this section to submit affirmative action plans to the Federal 
Inspector for approval shall provide the Federal Inspector with the 
following information at the time the affirmative action plan is 
submitted:
    (i) A brief description of pending applications to any Federal 
agency for Federal financial assistance or the award of a government 
contract, as well as any Federal assistance being received, or any 
government contracts or subcontracts being performed;
    (ii) Whether the applicant, contractor, or subcontractor has been 
the subject of a compliance review conducted by the Department of Labor 
pursuant to 41 CFR part 60-1 within the preceding twelve months;
    (iii) Whether any Federal, State or local government agency has 
found the applicant, contractor, or subcontractor in non-compliance or 
has found reasonable cause to believe the applicant, contractor, or 
subcontractor is in violation of, or in non-conpliance with, any civil 
rights requirements;
    (iv) A description of the methods by which the applicant, 
contractor, or subcontractor will insure that its contractors and 
subcontractors comply with the provisions of the affirmative action 
plans during the term of the contracts;
    (2) The Federal Inspector shall consider conducting an on-site 
review before the award of any Federal authorizations, agreements to 
assign Federal authorizations, contracts or subcontracts under which 
substantial employment or procurement opportunities will be offered;
    (3) The Federal Inspector will determine whether the affirmative 
action plans are adequate. If deficiencies are found to exist in a plan, 
the recipient, contractor, or subcontractor shall correct the 
deficiencies in consultation with the Federal Inspector. If deficiencies 
are not corrected to the satisfaction of the Federal Inspector, the 
Inspector may enforce compliance with this section through measures 
authorized by ANGTA or any other provision of law.
    (4) Upon approval of the affirmative action plan--including the 
goals and timetables--of the applicants or recipients, the Federal 
Inspector shall publicize the goals and timetables which are approved 
for each segment. Notice should be sent to all parties who submitted 
comments to the Department of the Interior in response to the Notice of 
Proposed Rulemaking issued about these regulations on October 12, 1979 
(44 FR 59096).
    (5) The Federal Inspector may, upon request, grant exemptions from 
the requirements of paragraph (b) of this section to any bidder which 
can demonstrate that no significant employment opportunities will result 
from an award of a contract to the bidder.



Sec. 34.9  Compliance reporting.

    (a) Records, reports, and access to books. Each recipient, 
contractor, or subcontractor to which these regulations apply shall 
submit to the Federal Inspector reports in the form and manner that the 
Federal Inspector determines to be necessary to insure compliance with 
the rules, regulations, and orders implementing section 17 and Condition 
11 of the President's Decision.
    (b) Access to sources of information. Each person to whom this part 
applies shall permit access by the Federal Inspector during normal 
business hours to books, records, accounts, and other sources of 
information, and to facilities, as the Federal Inspector determines to 
be necessary to insure compliance with the rules, regulations, and 
orders implementing section 17 and the President's Decision.
    (c) Failure to submit reports. Failure to file timely, complete, and 
accurate reports, or failure to permit access to sources of information 
as required constitutes non-compliance with the Equal Opportunity Clause 
and with these regulations and, therefore, constitutes grounds for 
action by the Federal Inspector, recipient, contractor, or subcontractor 
to enforce compliance or levy sanctions as authorized by ANGTA, by the 
implementing rules, regulations, and orders thereunder, by

[[Page 507]]

contractual agreement, or by any other means authorized by law.
    (d) Information for beneficiaries and participants. Each recipient 
or other entity required to develop an affirmative action plan pursuant 
to these regulations shall make the plan available for inspection by 
employees, participants, beneficiaries, local, State, and Federal 
government officials, and members of the public upon request. A copy of 
the plan shall be maintained at each place of employment, and a notice 
posted at each such place to advise employees and members of the public 
that the plan is available for inspection upon request.



Sec. 34.10  Compliance reviews.

    (a) Periodic compliance procedures. (1) The Federal Inspector will 
review the practices of recipients, contractors, or subcontractors, 
which offer significant opportunities for employment or procurement, to 
determine whether such recipient, contractor, or subcontractor are 
complying with its affirmative action plans and the rules, regulations, 
and orders implementing section 17 and Condition 11 of the President's 
Decision. The review will consist of a comprehensive analysis of all 
aspects of the recipient's, contractor's, or subcontractor's operations 
and practices and the conditions resulting therefrom. The review will 
include an on-site visit if the Federal Inspector determines that such a 
review is necessary.
    (2) The Federal Inspector will continually monitor and verify the 
status of MBE's and FBE's through procedures as the Inspector may 
determine appropriate.
    (b) Complaints. (1) Complaints alleging discrimination or non-
compliance with affirmative action plans shall be filed with the Federal 
Inspector.
    (2) A complaint must be filed within 180 days from the date of the 
alleged discrimination, unless the time for filing is extended by the 
Federal Inspector for good cause shown.
    (3) The complaint should include the name, address, and telephone 
number of the complainant; the name and address of the person alleged to 
have discriminated; a description of the alleged discriminatory acts; 
and any other pertinent information which will assist the investigation 
and resolution of the complaint. The complaint should be signed by the 
complainant or his or her authorized representative.
    (4) The filing of a complaint with the Federal Inspector shall not 
constitute the filing of a complaint pursuant to title VII of the Civil 
Rights Act of 1964 with the Equal Opportunity Commission unless, by 
agreement between the two agencies, the Federal Inspector and the Equal 
Employment Opportunity Commission so provide.
    (c) Investigations. The Federal Inspector will make a prompt 
investigation whenever information indicates that a person may have 
failed to comply with section 17 or Condition 11 of the President's 
Decision or the implementing rules, regulations, or orders thereunder. 
The investigation should include, where appropriate, a review of the 
pertinent practices and policies of the person under investigation, the 
circumstances under which the possible noncompliance occurred, and other 
factors relevant to determine whether the person has failed to comply 
with section 17, Condition 11 of the President's Decision, or the 
implementing rules, regulations, and orders thereunder.
    (d) Resolution of complaints and investigations. (1) In exercising 
the broad authority to enforce these regulations, the Federal Inspector 
shall, within 90 days of the effective date of these regulations, 
establish the procedures to be followed in enforcing these regulations. 
These regulations shall thereafter be amended to incorporate these 
procedures. The procedures shall, to the extent consistent with ANGTA, 
be similar to those proposed to be adopted by the Department of Energy 
to resolve complaints of violations of title VI of the Civil Rights Act 
of 1964. See regulations proposed to be codified at 10 CFR 1040.104, 
(Nov. 16, 1978). At a minimum the procedures must incorporate the 
following paragraphs (d) (2) through (5) of this section.
    (2) The Federal Inspector will initiate action upon all complaints 
within 35 days of the date the complaint is filed with the Federal 
Inspector.
    (3) If an investigation pursuant to paragraphs (a) through (c) of 
this section indicates probable non-compliance with section 17, 
Condition 11 of the

[[Page 508]]

President's Decision, or the implementing rules, regulations, or orders 
thereunder, the Federal Inspector will attempt to resolve the matter by 
informal methods of conference, conciliation, and persuasion.
    (4) Resolution shall be effected through a written agreement between 
the Federal Inspector, the complainant, if any, and the person who has 
failed to comply. The agreement shall contain commitments to promptly 
eliminate all discriminatory conditions, shall identify the precise 
remedial actions to be taken and dates for completion of remedial 
actions, and shall include a provision that breath of the agreement may 
result in further enforcement actions by the Federal Inspector. The 
Federal Inspector will then certify compliance, on condition that the 
commitments are kept. Such certification will not preclude a subsequent 
determination by the Federal Inspector that the full facts were not 
known at the time agreement was executed, or the commitments undertaken 
are not sufficient to correct deficiencies.
    (5) If the Federal Inspector's investigation does not warrant 
enforcement action, the Federal Inspector shall so inform the 
complainant, if any, and the person who was investigated. The 
complainant shall also be notified of any action taken including the 
achievement of voluntary compliance.
    (6) Between the period of these effective dates of these regulations 
and the effective date of the enforcement procedures established by the 
Federal Inspector, pursuant to paragraph (d)(1) of this section, the 
Federal Inspector shall at a minimum adhere to paragraphs (d)(2) through 
(5) of this section.
    (e) Acts of intimidation or retaliation prohibited. No person shall 
intimidate, threaten, coerce, harass, or retaliate against any 
individual for the purpose of interfering with any right or privilege 
secured by section 17, Condition 11 the President's Decision, and 
implementing rules, regulations, orders, because such individual has 
opposed a practice prohibited by section 17 or by this part, made a 
complaint, testified, assisted in, benefited from, or participated in 
any manner in an investigation, compliance review, proceeding or 
hearing, conducted pursuant to these regulations. The identity of 
complainants may be kept confidential except to the extent necessary to 
carry out the purpose of this part, including investigatory actions, 
hearings, or judicial proceedings.



Sec. 34.11  Enforcement sanctions.

    The provisions of section 17, the President's Decision, and 
implementing rules, regulations, and orders, as appropriate, will be 
enforced through:
    (a) The issuance of a compliance order by the Federal Inspector 
pursuant to section 11 of ANGTA; or
    (b) The commencement of a civil action for appropriate relief, 
including a permanent or temporary injunction, or a civil penalty not to 
exceed $25,000 per day; or
    (c) By any other means authorized by law.



PART 35_ADMINISTRATIVE REMEDIES FOR FRAUDULENT CLAIMS AND STATEMENTS--Table of Contents



Sec.
35.1 Basis and purpose.
35.2 Definitions.
35.3 Basis for civil penalties and assessments.
35.4 Investigation.
35.5 Review by reviewing official.
35.6 Prerequisites for issuing a complaint.
35.7 Complaint.
35.8 Service of complaint.
35.9 Answer.
35.10 Default upon failure to file an answer.
35.11 Referral of complaint and answer to the ALJ.
35.12 Notice of hearing.
35.13 Parties to the hearing.
35.14 Separation of functions.
35.15 Ex parte contacts.
35.16 Disqualification of reviewing official or ALJ.
35.17 Rights of parties.
35.18 Authority of the ALJ.
35.19 Pre-hearing conferences.
35.20 Disclosure of documents.
35.21 Discovery.
35.22 Exchange of witness lists, statements and exhibits.
35.23 Subpoenas for attendance at hearing.
35.24 Protective order.
35.25 Fees.
35.26 Form, filing and service of papers.
35.27 Computation of time.
35.28 Motions.
35.29 Sanctions.
35.30 The hearing and burden of proof.

[[Page 509]]

35.31 Determining the amount of penalties and assessments.
35.32 Location of hearing.
35.33 Witnesses.
35.34 Evidence.
35.35 The record.
35.36 Post-hearing briefs.
35.37 Initial decision.
35.38 Reconsideration of initial decision.
35.39 Appeal to the Secretary of the Interior.
35.40 Stays ordered by the Department of Justice.
35.41 Stay pending appeal.
35.42 Judicial review.
35.43 Collection of civil penalties and assessments.
35.44 Right to administrative offset.
35.45 Deposit in Treasury of United States.
35.46 Compromise or settlement.
35.47 Limitations.

    Authority: 5 U.S.C. 301; 31 U.S.C. 3801-3812.

    Source: 53 FR 4160, Feb. 12, 1988, unless otherwise noted.



Sec. 35.1  Basis and purpose.

    (a) Basis. This part implements the Program Fraud Civil Remedies Act 
of 1986, Public Law 99-509, sections 6101-6104, 100 Stat. 1874 (Oct. 21, 
1986), to be codified at 31 U.S.C. 3801-3812. 31 U.S.C. 3809 of the 
statute requires each authority head to promulgate regulations necessary 
to implement the provisions of the statute.
    (b) Purpose. This part:
    (1) Establishes administrative procedures for imposing civil 
penalties and assessments against persons who make, submit, or present, 
or cause to be made, submitted, or presented, false, fictitious, or 
fraudulent claims or written statements to authorities or to their 
agents, and
    (2) Specifies the hearing and appeal rights of persons subject to 
allegations of liability for such penalties and assessments.



Sec. 35.2  Definitions.

    As used in this part:
    (a) ALJ means an administrative law judge in the Department of the 
Interior appointed pursuant to 5 U.S.C. 3105 or detailed to the 
Department of the Interior pursuant to 5 U.S.C. 3344.
    (b) Benefit means, in the context of ``statement'', anything of 
value, including but not limited to any advantage, preference, 
privilege, license, permit, favorable decision, ruling, status, or loan 
guarantee.
    (c) Claim means any request, demand, or submission--
    (1) Made to the Department of the Interior for property, services, 
or money (including money representing grants, loans, insurance, or 
benefits);
    (2) Made to a recipient of property, services, or money from the 
Department of the Interior or to a party to a contract with the 
Department of the Interior--
    (i) For property or services if the United States--
    (A) Provided such property or services;
    (B) Provided any portion of the funds for the purchase of such 
property or services; or
    (C) Will reimburse such recipient or party for the purchase of such 
property or services; or
    (ii) For the payment of money (including money representing grants, 
loans, insurance, or benefits) if the United States--
    (A) Provided any portion of the money requested or demanded; or
    (B) Will reimburse such recipient or party for any portion of the 
money paid on such request or demand; or
    (3) Made to the Department of the Interior which has the effect of 
decreasing an obligation to pay or account for property, services, or 
money.
    (d) Complaint means the administrative complaint served by the 
reviewing official on the defendant under Sec. 35.7 of this part.
    (e) Defendant means any person alleged in a complaint under Sec. 
35.7 to be liable for a civil penalty or assessment under Sec. 35.3 of 
this part.
    (f) Department means the Department of the Interior.
    (g) Director means the Director of the Office of Hearings and 
Appeals, Office of the Secretary, who is the designee of the Secretary 
of the Interior authorized to consider and decide finally for the 
Department appeals under this part. The authority delegated to the 
Director includes the authority to redelegate appellate review authority 
to an ad hoc board of appeals appointed in accordance with 43 CFR 
4.1(b)(4). Appeals to the Secretary under this part

[[Page 510]]

should be mailed or delivered to the Director, Office of Hearings and 
Appeals, U.S. Department of the Interior, 801 North Quincy Street, 
Arlington, Virginia 22203. Documents will be considered filed when 
received in the office of the Director.
    (h) Government means the U.S. Government.
    (i) Individual means a natural person.
    (j) Initial decision means the written decision of the ALJ required 
by Sec. 35.10 or Sec. 35.37 of this part, and includes a revised 
initial decision issued following a remand or a motion for 
reconsideration
    (k) Investigating official means the Inspector General of the 
Department of the Interior or an officer or employee of the Office of 
Inspector General designated by the Inspector General and serving in a 
position for which the rate of basic pay is not less than the minimum 
rate of basic pay for grade GS-16 under the General Schedule.
    (l) Knows or has reason to know, means that a person, with respect 
to a claim or statement--
    (1) Has actual knowledge that the claim or statement is false, 
fictitious, or fraudulent;
    (2) Acts in deliberate ignorance of the truth or falsity of the 
claim or statement; or
    (3) Acts in reckless disregard of the truth or falsity of the claim 
or statement.
    (m) Makes, wherever it appears, shall include the terms 
``presents,'' ``submits,'' and ``causes to be made, presented, or 
submitted.'' As the context requires, ``making'' or ``made'', shall 
likewise include the corresponding forms of such terms.
    (n) Person means any individual, partnership, corporation, 
association, or private oganization, and includes the plural of that 
term.
    (o) Representative means an attorney who is a member in good 
standing of the bar of any State, Territory, or possession of the United 
States or of the District of Columbia or the Commonwealth of Puerto 
Rico, or other representative meeting the qualifications of a non-
attorney representative found at 43 CFR 1.3 and designated in writing.
    (p) Reviewing official means the Solicitor of the Department of the 
Interior or his designated representative, who is:
    (1) Not subject to supervision by, or required to report to, the 
investigating official; and
    (2) Serving in a position for which the rate of basic pay is not 
less than the minimum rate of basic pay for grade GS-16 under the 
General Schedule.
    (q) Secretary means the Secretary of the Interior or his designated 
representative.
    (r) Statement means any representation, certification, affirmation, 
document, record, or accounting or bookkeeping entry made--
    (1) With respect to a claim or to obtain the approval or payment of 
a claim (including relating to eligibility to make a claim); or
    (2) With respect to (including relating to eligibility for)--
    (i) A contract with, or a bid or proposal for a contract with; or
    (ii) A grant, loan, or benefit from, the Department of the Interior, 
or any State, political subdivision of a State, or other party, if the 
United States Government provides any portion of the money or property 
under such contract or for such grant, loan, or benefit, or if the 
Government will reimburse such State, political subdivision, or party 
for any portion of the money or property under such contract or for such 
grant, loan, or benefit.

[53 FR 4160, Feb. 12, 1988, as amended at 67 FR 4369, Jan. 30, 2002; 67 
FR 12885, Mar. 20, 2002]



Sec. 35.3  Basis for civil penalties and assessments.

    (a) Claims. (1) Except as provided in paragraph (c) of this section, 
any person who makes a claim that the person knows or has reason to 
know--
    (i) Is false, fictitious, or fraudulent;
    (ii) Includes or is supported by any written statement which asserts 
a material fact which is false, fictitious, or fraudulent,
    (iii) Includes or is supported by any written statement that--
    (A) Omits a material fact;
    (B) Is false, fictitious, or fraudulent as a result of such 
omission; and

[[Page 511]]

    (C) Is a statement in which the person making such statement has a 
duty to include such material fact; or
    (iv) Is for payment for the provision of property or services which 
the person has not provided as claimed, shall be subject, in addition to 
any other remedy that may be prescribed by law, to a civil penalty of 
not more than $5,000 for each such claim.
    (2) Each voucher, invoice, claim form, or other individual request 
or demand for property, services, or money constitutes a separate claim.
    (3) A claim shall be considered made to the Department, a recipient, 
or party when such claim is actually made to an agent, fiscal 
intermediary, or other entity, including any State or Territory, or 
political subdivision thereof, acting for or on behalf of the 
Department, recipient, or party.
    (4) Each claim for property, services or money is subject to a civil 
penalty regardless of whether such property, services, or money is 
actually delivered or paid.
    (5) If the Government has made any payment (including transferred 
property or provided services) on a claim, a person subject to a civil 
penalty under paragraph (a)(1) of this section shall also be subject to 
an assessment of not more than twice the amount of such claim or that 
portion thereof that is determined to be in violation of paragraph 
(a)(1) of this section. Such assessment shall be in lieu of damages 
sustained by the Government because of such claim.
    (b) Statements. (1) Except as provided in paragraph (c) of this 
section, any person who makes a written statement that--
    (i) The person knows or has reason to know--
    (A) Asserts a material fact which is false, fictitious, or 
fraudulent; or
    (B) Is false, fictitious, or fraudulent because it omits a material 
fact that the person making the statement has a duty to include in such 
statement; and
    (ii) Contains or is accompanied by an express certification or 
affirmation of the truthfulness and accuracy of the contents of the 
statement, shall be subject, in addition to any other remedy that may be 
prescribed by law, to a civil penalty of not more than $5,000 for each 
such statement.
    (2) Each written representation, certification, or affirmation 
constitutes a separate statement.
    (3) A statement shall be considered made to the Department when such 
statement is actually made to an agent, fiscal intermediary, or other 
entity, including any State or Territory, or political subdivision 
thereof, acting for or on behalf of the Department.
    (c) No proof of specific intent to defraud is required to establish 
liability under this section.
    (d) In any case in which it is determined that more than one person 
is liable for making a claim or statement, each such person may be held 
liable for a civil penalty under this section.
    (e) In any case in which it is determined that more than one person 
is liable for making a claim under this section on which the Government 
has made payment (including transferred property or provided services), 
an assessment may be imposed against any such person or jointly and 
severally against any combination of such persons.



Sec. 35.4  Investigation.

    (a) If the investigating official concludes that a subpoena pursuant 
to the authority conferred by 31 U.S.C. 3804(a) is warranted--
    (1) The subpoena so issued shall notify the person to whom it is 
addressed of the authority under which the subpoena is issued and shall 
identify the records or documents sought;
    (2) The investigating official may designate a person to act on his 
or her behalf to receive the documents sought; and
    (3) The person receiving such subpoena shall be required to tender 
to the investigating official or the person designated to receive the 
documents a certification that the documents sought have been produced, 
or that such documents are not available and the reasons therefor, or 
that such documents, suitably identified, have been withheld based upon 
the assertion of an identified privilege.
    (b) If the investigating official concludes that an action under the 
Program Fraud Civil Remedies Act may be

[[Page 512]]

warranted, the investigating official shall submit a report containing 
the findings and conclusions of such investigation to the reviewing 
official.
    (c) Nothing in this section shall preclude or limit the 
investigating official's discretion to refer allegations directly to the 
Department of Justice for suit under the False Claims Act or other civil 
relief, or to defer or postpone a report or referral to the reviewing 
official to avoid interference with a criminal investigation or 
prosecution.
    (d) Nothing in this section modifies any responsibility of the 
investigating official to report violations of criminal law to the 
Attorney General.



Sec. 35.5  Review by reviewing official.

    (a) If, based on the report of the investigating official under 
Sec. 35.4(b), the reviewing official determines that there is adequate 
evidence to believe that a person is liable under Sec. 35.3, the 
reviewing official shall transmit to the Attorney General a written 
notice of the reviewing official's intention to issue a complaint under 
Sec. 35.7 of this part.
    (b) Such notice shall include--
    (1) A statement of the reviewing official's reasons for issuing a 
complaint;
    (2) A statement specifying the evidence that supports the 
allegations of liability;
    (3) A description of the claims or statements upon which the 
allegations of liability are based;
    (4) An estimate of the amount of money, or the value of property, 
services, or other benefits, requested or demanded in violation of Sec. 
35.3 of this part;
    (5) A statement of any exculpatory or mitigating circumstances that 
may relate to the claims or statements known by the reviewing official 
or the investigating official; and
    (6) A statement that there is a reasonable prospect of collecting an 
appropriate amount of penalties and assessments.



Sec. 35.6  Prerequisites for issuing a complaint.

    (a) The reviewing official may issue a complaint under Sec. 35.7 of 
this part only if--
    (1) The Department of Justice approves the issuance of a complaint 
in a written statement described in 31 U.S.C. 3803(b)(1), and
    (2) In the case of allegations of liability under Sec. 35.3(a) with 
respect to a claim, the reviewing official determines that, with respect 
to such claim or a group of related claims submitted at the same time 
such claim is submitted (as defined in paragraph (b) of this section), 
the amount of money, or the value of property or services, demanded or 
requested in violation of Sec. 35.3(a) of this part does not exceed 
$150,000.
    (b) For the purposes of this section, a related group of claims 
submitted at the same time shall include only those claims arising from 
the same transaction (e.g., grant, loan, application, or contract) that 
are submitted simultaneously as part of a single request, demand, or 
submission.
    (c) Nothing in this section shall be construed to limit the 
reviewing official's authority to join in a single complaint against a 
person claims that are unrelated or were not submitted simultaneously, 
regardless of the amount of money, or the value of property or services, 
demanded or requested.



Sec. 35.7  Complaint.

    (a) On or after the date the Department of Justice approves the 
issuance of a complaint in accordance with 31 U.S.C. 3803(b)(1), the 
reviewing official may serve a complaint on the defendant, as provided 
in Sec. 35.8 of this part.
    (b) The complaint shall state--
    (1) The allegations of liability against the defendant, including 
the statutory basis for liability, an identification of the claims or 
statements that are the basis for the alleged liability, and the reasons 
why liability allegedly arises from such claims or statements;
    (2) The maximum amount of penalties and assessments for which the 
defendant may be held liable;
    (3) Instructions for filing an answer to request a hearing, 
including a specific statement of the defendant's right to request a 
hearing by filing an answer and to be represented by a representative; 
and

[[Page 513]]

    (4) That failure to file an answer within 30 days of service of the 
complaint will result in the imposition of the maximum amount of 
penalties and assessments without right to appeal, as provided in Sec. 
35.10.
    (c) At the same time the reviewing official serves the complaint, he 
or she shall serve the defendant with a copy of these regulations.



Sec. 35.8  Service of complaint.

    (a) Service of a complaint must be made by certified or registered 
mail or by delivery in any manner authorized by Rule 4(d) of the Federal 
Rules of Civil Procedure. Service is complete upon receipt.
    (b) Proof of service, stating the name and address of the person on 
whom the complaint was served, and the manner and date of service, may 
be made by--
    (1) Affidavit of the individual serving the complaint by delivery;
    (2) A United States Postal Service return receipt card acknowledging 
receipt; or
    (3) Written acknowledgement of receipt by the defendant or his or 
her representative.



Sec. 35.9  Answer.

    (a) The defendant may request a hearing by filing an answer with the 
reviewing official within 30 days of service of the complaint. An answer 
shall be deemed to be a request for hearing.
    (b) In the answer, the defendant--
    (1) Shall admit or deny each of the allegations of liability made in 
the complaint;
    (2) Shall state any defense on which the defendant intends to rely;
    (3) May state any reasons why the defendant contends that the 
penalties and assessments should be less than the statutory maximum; and
    (4) Shall state the name, address, and telephone number of the 
person authorized by the defendant to act as defendant's representative, 
if any.
    (c) If the defendant is unable to file an answer meeting the 
requirements of paragraph (b) of this section within the time provided, 
the defendant may, before the expiration of 30 days from service of the 
complaint, file with the reviewing official a general answer denying 
liability and requesting a hearing, and a request for an extension of 
time within which to file an answer meeting the requirements of 
paragraph (b) of this section. The reviewing official shall file 
promptly with the ALJ the complaint, the general answer denying 
liability, and the request for an extension of time as provided in Sec. 
35.11. For good cause shown, the ALJ may grant the defendant up to 30 
additional days within which to file an answer meeting the requirements 
of paragraph (b) of this section.



Sec. 35.10  Default upon failure to file an answer.

    (a) If the defendant does not file an answer within the time 
prescribed in Sec. 35.9(a) of this part, the reviewing official may 
refer the complaint to the Office of Hearings and Appeals, Hearings 
Division, Department of the Interior, for assignment to an ALJ.
    (b) Upon the referral of the complaint, the ALJ shall promptly serve 
on defendant in the manner prescribed in Sec. 35.8 of this part, a 
notice that an initial decision will be issued under this section.
    (c) The ALJ shall assume the facts alleged in the complaint to be 
true and, if such facts establish liability under Sec. 35.3 of this 
part, the ALJ shall issue an initial decision imposing the maximum 
amount of penalties and assessments allowed under the statute.
    (d) Except as otherwise provided in this section, by failing to file 
a timely answer the defendant waives any right to further review of the 
penalties and assessments imposed under paragraph (c) of this section, 
and the initial decision shall become final and binding upon the parties 
30 days after it is issued.
    (e) If, before such an initial decision becomes final, the defendant 
files a motion with the ALJ seeking to reopen on the grounds that 
extraordinary circumstances prevented the defendant from filing an 
answer, the initial decision shall be stayed pending the ALJ's decision 
on the motion.
    (f) If, on such motion, the defendant can demonstrate extraordinary 
circumstances excusing the failure to file a timely answer, the ALJ 
shall withdraw the initial decision in paragraph

[[Page 514]]

(c) of this section, if such a decision has been issued, and shall grant 
the defendant an opportunity to answer the complaint.
    (g) A decision of the ALJ denying a defendant's motion under 
paragraph (e) of this section is not subject to reconsideration under 
Sec. 35.38 of this part.
    (h) The defendant may appeal the decision denying a motion to reopen 
by filing a notice of appeal with the Director within 15 days after the 
ALJ denies the motion. The timely filing of a notice of appeal shall 
stay the initial decision until the appeal is decided.
    (i) If the defendant files a timely notice of appeal with the 
Director, the ALJ shall forward the record of the proceeding to the 
Director.
    (j) The Director shall decide expeditiously whether extraordinary 
circumstances excuse the defendant's failure to file a timely answer 
based solely on the record before the ALJ.
    (k) If the Director decides that extraordinary circumstances excused 
the defendant's failure to file a timely answer, the Director shall 
remand the case to the ALJ with instructions to grant the defendant an 
opportunity to answer.
    (l) If the Director decides that the defendant's failure to file a 
timely answer is not excused, the Director shall reinstate the initial 
decision of the ALJ, which shall become final and binding upon the 
parties 30 days after the Director issues such decision.



Sec. 35.11  Referral of complaint and answer to the ALJ.

    Upon receipt of an answer, the reviewing offical shall file the 
complaint and answer with the Office of Hearings and Appeals, Hearings 
Division, Department of the Interior, for assignment to an ALJ. The 
reviewing official shall include the name, address, and telephone number 
of a representative for the Government.



Sec. 35.12  Notice of hearing.

    (a) When the ALJ receives the complaint and answer, the ALJ shall 
promptly serve a notice of hearing upon the defendant in the manner 
prescribed by Sec. 35.8 of this part. At the same time, the ALJ shall 
send a copy of such notice to the representative for the Government.
    (b) Such notice shall include--
    (1) The time and place, and the nature of the hearing;
    (2) The legal authority and jurisdiction under which the hearing is 
to be held;
    (3) The matters of fact and law to be asserted;
    (4) A description of the procedures for the conduct of the hearing;
    (5) The name, address, and telephone number of the representative of 
the Government and of the defendant, if any; and
    (6) Such other matters as the ALJ deems appropriate.



Sec. 35.13  Parties to the hearing.

    (a) The parties to the hearing shall be the defendant and the 
Department of the Interior.
    (b) Pursuant to 31 U.S.C. 3730(c)(5), a private plaintiff under the 
False Claims Act may participate in these proceedings to the extent 
authorized by the provisions of that Act.



Sec. 35.14  Separation of functions.

    (a) The investigating official, the reviewing official, and any 
employee or agent of the Department who takes part in investigating, 
preparing, or presenting a particular case may not, in such case or a 
factually related case--
    (1) Participate in the hearing as the ALJ;
    (2) Participate or advise in the initial decision or the review of 
the initial decision, except as a witness or a representative in public 
proceedings; or
    (3) Make the collection of penalties and assessments under 31 U.S.C. 
3806.
    (b) The ALJ shall not be responsible to, or subject to the 
supervision or direction of, the investigating official or the reviewing 
official.
    (c) Except as provided in paragraph (a) of this section, the 
representative for the Government may be employed anywhere in the 
Department, including in the offices of either the investigating 
official or the reviewing official.



Sec. 35.15  Ex parte contacts.

    No party or person (except employees of the ALJ's office) shall 
communicate

[[Page 515]]

in any way with the ALJ on any matter at issue in a case, unless on 
notice and opportunity for all parties to participate. This provision 
does not prohibit a person or party from inquiring about the status of a 
case or asking routine questions concerning administrative functions or 
procedures.



Sec. 35.16  Disqualification of reviewing official or ALJ.

    (a) A reviewing offical or ALJ in a particular case may disqualify 
himself or herself at any time.
    (b) A party may file with the ALJ a motion for disqualification of a 
reviewing official or an ALJ. Such motion shall be accompanied by an 
affidavit alleging personal bias or other reason for disqualification.
    (c) Such motion and affidavit shall be filed promptly upon the 
party's discovery of reasons requiring disqualification, or such 
objections shall be deemed waived.
    (d) Such affidavit shall state specific facts that support the 
party's belief that personal bias or other reason for disqualification 
exists and the time and circumstances of the party's discovery of such 
facts. It shall be accompanied by a certificate of the representative of 
record that it is made in good faith.
    (e) Upon the filing of such a motion and affidavit, the ALJ shall 
proceed no further in the case until he or she resolves the matter of 
disqualification in accordance with paragraph (f) of this section.
    (f)(1) If the ALJ determines that a reviewing official is 
disqualified, the ALJ shall dismiss the complaint without prejudice.
    (2) If the ALJ disqualifies himself or herself, the case shall be 
reassigned promptly to another ALJ.
    (3) If the ALJ denies a motion to disqualify, the Director may 
determine the matter only as part of the review of the initial decision 
upon appeal, if any.



Sec. 35.17  Rights of parties.

    Except as otherwise limited by this part, all parties may--
    (a) Be accompanied, represented, and advised by a representative;
    (b) Participate in any conference held by the ALJ;
    (c) Conduct discovery;
    (d) Agree to stipulations of fact or law, which shall be made part 
of the record;
    (e) Present evidence relevant to the issues at the hearing;
    (f) Present and cross-examine witnesses;
    (g) Present oral arguments at the hearing as permitted by the ALJ; 
and
    (h) Submit written briefs and proposed findings of fact and 
conclusions of law after the hearing.



Sec. 35.18  Authority of the ALJ.

    (a) The ALJ shall conduct a fair and impartial hearing, avoid delay, 
maintain order, and assure that a record of the proceeding is made.
    (b) The ALJ has the authority to--
    (1) Set and change the date, time, and place of the hearing upon 
reasonable notice to the parties;
    (2) Continue or recess the hearing in whole or in part for a 
reasonable period of time;
    (3) Hold conferences to identify or simplify the issues, or to 
consider other matters that may aid in the expeditious disposition of 
the proceeding;
    (4) Administer oaths and affirmations;
    (5) Issue subpoenas requiring the attendance of witnesses and the 
production of documents at depositions or at hearings;
    (6) Rule on motions and other procedural matters;
    (7) Regulate the scope and timing of discovery;
    (8) Regulate the course of the hearing and the conduct of 
representatives and parties;
    (9) Examine witnesses;
    (10) Receive, rule on, exclude, or limit evidence;
    (11) Take official notice of facts;
    (12) Upon motion of a party, decide cases, in whole or in part, by 
summary judgment where there is no disputed issue of material fact;
    (13) Conduct any conference, argument, or hearing on motions in 
person or by telephone; and
    (14) Exercise such other authority as is necessary to carry out the 
responsibilities of the ALJ under this part.

[[Page 516]]

    (c) The ALJ does not have the authority to find Federal statutes or 
regulations invalid.



Sec. 35.19  Pre-hearing conferences.

    (a) The ALJ may schedule pre-hearing conferences as appropriate.
    (b) Upon the motion of any party, the ALJ shall schedule at least 
one pre-hearing conference at a reasonable time in advance of the 
hearing.
    (c) The ALJ may use pre-hearing conferences to discuss the 
following:
    (1) Simplification of the issues;
    (2) The necessity or desirability of amendments to the pleadings, 
including the need for a more definite statement;
    (3) Stipulations and admissions of fact or as to the contents and 
authenticity of documents;
    (4) Whether the parties can agree to submission of the case on a 
stipulated record;
    (5) Whether a party chooses to waive appearance at an oral hearing 
and to submit only documentary evidence (subject to the objection of 
other parties) and written argument;
    (6) Limitation of the number of witnesses;
    (7) Scheduling dates for the exchange of witness lists and of 
proposed exhibits;
    (8) Discovery;
    (9) The time and place for the hearing; and
    (10) Such other matters as may tend to expedite the fair and just 
disposition of the proceedings.
    (d) The ALJ may issue an order containing all matters agreed upon by 
the parties or ordered by the ALJ at a pre-hearing conference.



Sec. 35.20  Disclosure of documents.

    (a) Upon written request to the reviewing official, the defendant 
may review any relevant and material documents, transcripts, records, 
and other materials that relate to the allegations set out in the 
complaint and upon which the findings and conclusions of the 
investigating official under Sec. 35.4(b) of this part are based, 
unless such documents are subject to a privilege under Federal law. Upon 
payment of fees for duplication, the defendant may obtain copies of such 
documents.
    (b) Upon written request to the reviewing official, the defendant 
also may obtain a copy of all exculpatory information in the possession 
of the reviewing official or investigating official relating to the 
allegations in the complaint, even if it is contained in a document that 
would otherwise be privileged. If the document would otherwise be 
privileged, only that portion containing exculpatory information must be 
disclosed.
    (c) The notice sent to the Attorney General from the reviewing 
official as described in Sec. 35.5 of this part is not discoverable 
under any circumstances.
    (d) The defendant may file a motion to compel disclosure of the 
documents subject to the provisions of this section. Such a motion may 
only be filed with the ALJ following the filing of an answer pursuant to 
Sec. 35.9 of this part.



Sec. 35.21  Discovery.

    (a) The following types of discovery are authorized:
    (1) Requests for production of documents for inspection and copying;
    (2) Requests for admissions of the authenticity of any relevant 
document or of the truth of any relevant fact;
    (3) Written interrogatories; and
    (4) Depositions.
    (b) For the purposes of this section and Sec. Sec. 35.22 and 35.23 
of this part, the term ``documents'' includes information, documents, 
reports, answers, records, accounts, papers, and other data and 
documentary evidence. Nothing contained herein shall be interpreted to 
require the creation of a document.
    (c) Unless mutually agreed to by the parties, discovery is available 
only as ordered by the ALJ. The ALJ shall regulate the timing of 
discovery.
    (d) Motions for discovery. (1) A party seeking discovery may file a 
motion with the ALJ. Such a motion shall be accompanied by a copy of the 
requested discovery, or in the case of depositions, a summary of the 
scope of the proposed deposition.
    (2) Within ten days of service, a party may file an opposition to 
the motion and/or a motion for protective order as provided in Sec. 
35.24 of this part.

[[Page 517]]

    (3) The ALJ may grant a motion for discovery only if he or she finds 
that the discovery sought--
    (i) Is necessary for the expeditious, fair, and reasonable 
consideration of the issues;
    (ii) Is not unduly costly or burdensome;
    (iii) Will not unduly delay the proceeding; and
    (iv) Does not seek privileged information.
    (4) The burden of showing that discovery should be allowed is on the 
party seeking discovery.
    (5) The ALJ may grant discovery subject to a protective order under 
Sec. 35.24 of this part.
    (e) Depositions. (1) If a motion for deposition is granted, the ALJ 
shall issue a subpoena for the deponent, which may require the deponent 
to produce documents. The subpoena shall specify the time and place at 
which the deposition will be held.
    (2) The party seeking to depose shall serve the subpoena in the 
manner prescribed in Sec. 35.8 of this part.
    (3) The deponent may file with the ALJ a motion to quash the 
subpoena or a motion for a protective order within ten days of service.
    (4) The party seeking to depose shall provide for the taking of a 
verbatim transcript of the deposition, which it shall make available to 
all other parties for inspection and copying.
    (f) Each party shall bear its own costs of discovery.



Sec. 35.22  Exchange of witness lists, statements and exhibits.

    (a) At least 15 days before the hearing or at such other time as may 
be ordered by the ALJ, the parties shall exchange witness lists, copies 
of prior statements of proposed witnesses, and copies of proposed 
hearing exhibits, including copies of any written statements that the 
party intends to offer in lieu of live testimony in accordance with 
Sec. 35.33(b) of this part. At the time the above documents are 
exchanged, any party that intends to rely on the transcript of 
deposition testimony in lieu of live testimony at the hearing, if 
permitted by the ALJ, shall provide each party with a copy of the 
specific pages of the transcript it intends to introduce into evidence.
    (b) If a party objects, the ALJ shall not admit into evidence the 
testimony of any witness whose name does not appear on the witness list 
or any exhibit not provided to the opposing party as provided above 
unless the ALJ finds good cause for the failure or that there is no 
prejudice to the objecting party.
    (c) Unless another party objects within the time set by the ALJ, 
documents exchanged in accordance with paragraph (a) of this section 
shall be deemed to be authentic for the purpose of admissibility at the 
hearing.



Sec. 35.23  Subpoenas for attendance at hearing.

    (a) A party wishing to procure the appearance and testimony of any 
individual at the hearing may request that the ALJ issue a subpoena.
    (b) A subpoena requiring the attendance and testimony of an 
individual may also require the individual to produce documents at the 
hearing.
    (c) A party seeking a subpoena shall file a written request therefor 
not less than 15 days before the date fixed for the hearing unless 
otherwise allowed by the ALJ for good cause shown. Such request shall 
specify any documents to be produced and shall designate the witnesses 
and describe the address and location thereof with sufficient 
particularity to permit such witnesses to be found.
    (d) The subpoena shall specify the time and place at which the 
witness is to appear and any documents the witness is to produce.
    (e) The party seeking the subpoena shall serve it in the manner 
prescribed in Sec. 35.8 of this part. A subpoena on a party or upon an 
individual under the control of a party may be served by first class 
mail.
    (f) A party or the individual to whom the subpoena is directed may 
file with the ALJ a motion to quash the subpoena within ten days after 
service or on or before the time specified in the subpoena for 
compliance if it is less than ten days after service.



Sec. 35.24  Protective order.

    (a) A party or a prospective witness or deponent may file a motion 
for a

[[Page 518]]

protective order with respect to discovery sought by an opposing party 
or with respect to the hearing, seeking to limit the availability or 
disclosure of evidence.
    (b) In issuing a protective order, the ALJ may make any order which 
justice requires to protect a party or person from annoyance, 
embarrassment, oppression, or undue burden or expense, including one or 
more of the following:
    (1) That the discovery not be had;
    (2) That the discovery may be had only on specified terms and 
conditions, including a designation of the time or place;
    (3) That the discovery may be had only through a method of discovery 
other than that requested;
    (4) That certain matters not be inquired into, or that the scope of 
discovery be limited to certain matters;
    (5) That discovery be conducted with no one present except persons 
designated by the ALJ;
    (6) That the contents of discovery or evidence be sealed;
    (7) That a deposition after being sealed be opened only by order of 
the ALJ;
    (8) That a trade secret or other confidential research, development, 
or commercial information, or facts pertaining to any criminal 
investigation, proceeding, or other administrative investigation not be 
disclosed or be disclosed only in a designated way; or
    (9) That the parties simultaneously file specified documents or 
information enclosed in sealed envelopes to be opened as directed by the 
ALJ.



Sec. 35.25  Fees.

    The party requesting a subpoena shall pay the cost of the fees and 
mileage of any witness subpoenaed in the amounts that would be payable 
to a witness in a proceeding in U.S. District Court. A check for witness 
fees and mileage shall accompany the subpoena when served, except that 
when a subpoena is issued on behalf of the Department, a check for 
witness fees and mileage need not accompany the subpoena.



Sec. 35.26  Form, filing and service of papers.

    (a) Form. (1) Every pleading and paper filed in the proceeding shall 
contain a caption setting forth the title of the action, the case number 
assigned by the ALJ, and a designation of the paper (e.g., motion to 
quash subpoena).
    (2) Every pleading and paper shall be signed by, and shall contain 
the address and telephone number of the party or the person on whose 
behalf the paper was filed, or his or her representative.
    (3) Papers are considered filed when they are mailed. Date of 
mailing may be established by a certificate from the party or its 
representative or by proof that the document was sent by certified or 
registered mail.
    (b) Service. A party filing a document with the ALJ shall, at the 
time of filing, serve a copy of such document on every other party. 
Service upon any party of any document other than those required to be 
served as prescribed in Sec. 35.8 shall be made by delivering a copy, 
or by placing a copy of the document in the U.S. mail, postage prepaid 
and addressed, to the party's last known address. When a party is 
represented by a representative, service shall be made upon such 
representative in lieu of the actual party.
    (c) Proof of service. A certificate of the individual serving the 
document by personal delivery or by mail, setting forth the manner of 
service, shall be proof of service.



Sec. 35.27  Computation of time.

    (a) In computing any period of time under this part or in an order 
issued thereunder, the time begins with the day following the act, 
event, or default, and includes the last day of the period, unless it is 
a Saturday, Sunday, or legal holiday observed by the Federal government, 
in which event it includes the next business day.
    (b) When the period of time allowed is less than seven days, 
intermediate Saturdays, Sundays, and legal holidays observed by the 
Federal government shall be excluded from the computation.
    (c) Where a document has been served or issued by placing it in the 
mail, an

[[Page 519]]

additional five days will be added to the time permitted for any 
response.



Sec. 35.28  Motions.

    (a) Any application to the ALJ for an order or ruling shall be by 
motion. Motions shall state the relief sought, the authority relied 
upon, and the facts alleged, and shall be filed with the ALJ and served 
on all other parties.
    (b) Except for motions made during a pre-hearing conference or at 
the hearing, all motions shall be in writing. The ALJ may require that 
oral motions be reduced to writing.
    (c) Within 15 days after a written motion is served, or such other 
time as may be fixed by the ALJ, any party may file a response to such 
motion.
    (d) The ALJ may not grant a written motion before the time for 
filing responses thereto has expired, except upon consent of the parties 
or following a hearing on the motion, but may overrule or deny such 
motion without awaiting a response.
    (e) The ALJ shall make a reasonable effort to dispose of all 
outstanding motions prior to the beginnings of the hearing.



Sec. 35.29  Sanctions.

    (a) The ALJ may sanction a person, including any party or 
representative, for--
    (1) Failing to comply with an order, rule, or procedure governing 
the proceeding;
    (2) Failing to prosecute or defend an action; or
    (3) Engaging in other misconduct that interferes with the speedy, 
orderly, or fair conduct of the hearing.
    (b) Any such sanction, including but not limited to those listed in 
paragraphs (c), (d), and (e) of this section, shall reasonably relate to 
the severity and nature of the failure or misconduct.
    (c) When a party fails to comply with an order, including an order 
for taking a deposition, the production of evidence within the party's 
control, or a request for admission, the ALJ may--
    (1) Draw an inference in favor of the requesting party with regard 
to the information sought;
    (2) In the case of requests for admission, deem each matter of which 
an admission is requested to be admitted;
    (3) Prohibit the party failing to comply with such order from 
introducing evidence concerning, or otherwise relying upon, testimony 
relating to the information sought; and
    (4) Strike any part of the pleadings or other submissions of the 
party failing to comply with such request.
    (d) If a party fails to prosecute or defend an action under this 
part commenced by service of a notice of hearing, the ALJ may dismiss 
the action or may issue an initial decision imposing penalties and 
assessments.
    (e) The ALJ may refuse to consider any motion, request, response, 
brief or other document which is not filed in a timely fashion.



Sec. 35.30  The hearing and burden of proof.

    (a) The ALJ shall conduct a hearing on the record in order to 
determine whether the defendant is liable for a civil penalty or 
assessment under Sec. 35.3 of this part and, if so, the appropriate 
amount of any such civil penalty or assessment considering any 
aggravating or mitigating factors.
    (b) The authority shall prove defendant's liability and any 
aggravating factors by a preponderance of the evidence.
    (c) The defendant shall prove any affirmative defenses and any 
mitigating factors by a preponderance of the evidence.
    (d) The hearing shall be open to the public unless otherwise ordered 
by the ALJ for food cause shown.



Sec. 35.31  Determining the amount of penalties and assessments.

    (a) In determining an appropriate amount of civil penalties and 
assessments, the ALJ and the Director, upon appeal, should evaluate any 
circumstances that mitigate or aggravate the violation and should 
articulate in their opinions the reasons that support the penalties and 
assessments they impose. Because of the intangible costs of fraud, the 
expense of investigating such conduct, and the need to deter others who 
might be similarly tempted, ordinarily double damages and a

[[Page 520]]

significant civil penalty should be imposed.
    (b) Although not exhaustive, the following factors are among those 
that may influence the ALJ and the Director in determining the amount of 
penalties and assessments to impose with respect to the misconduct 
(i.e., the false, fictitious, or fraudulent claims or statements) 
charged in the complaint:
    (1) The number of false, fictitious, or fraudulent claims or 
statements;
    (2) The time period over which such claims or statements were made;
    (3) The degree of the defendant's culpability with respect to the 
misconduct;
    (4) The amount of money or the value of the property, services, or 
benefit falsely claimed;
    (5) The value of the Government's actual loss as a result of the 
misconduct, including foreseeable consequential damages and the costs of 
investigation.
    (6) The relationship of the amount imposed as civil penalties to the 
amount of the Government's loss;
    (7) The potential or actual impact of the misconduct upon national 
defense, public health or safety, or public confidence in the management 
of Government programs and operations, including particularly the impact 
on the intended beneficiaries of such programs;
    (8) Whether the defendant has engaged in a pattern of the same or 
similar misconduct;
    (9) Whether the defendant attempted to conceal the misconduct;
    (10) The degree to which the defendant has involved others in the 
misconduct or in concealing it;
    (11) Where the misconduct of employees or agents is imputed to the 
defendant, the extent to which the defendant's practices fostered or 
attempted to preclude such misconduct;
    (12) Whether the defendant cooperated in or obstructed an 
investigation of the misconduct;
    (13) Whether the defendant assisted in identifying and prosecuting 
other wrongdoers;
    (14) The complexity of the program or transaction, and the degree of 
the defendant's sophistication with respect to it, including the extent 
of the defendant's prior participation in the program or in similar 
transactions;
    (15) Whether the defendant has been found, in any criminal, civil, 
or administrative proceeding to have engaged in similar misconduct or to 
have dealt dishonestly with the government of the United States or of a 
State, directly or indirectly; and
    (16) The need to deter the defendant and others from engaging in the 
same or similar misconduct.
    (c) Nothing in this section shall be construed to limit the ALJ or 
the Director from considering any other factors that in any given case 
may mitigate or aggravate the offense for which penalties and 
assessments are imposed.



Sec. 35.32  Location of hearing.

    (a) The hearing may be held--
    (1) In any judicial district of the United States in which the 
defendant resides or transacts business;
    (2) In any judicial district of the United States in which the claim 
or statement in issue was made; or
    (3) In such other place as may be agreed upon by the defendant and 
the ALJ.
    (b) Each party shall have the opportunity to present argument with 
respect to the location of the hearing.
    (c) The hearing shall be held at the place and at the time ordered 
by the ALJ.



Sec. 35.33  Witnesses.

    (a) Except as provided in paragraph (b) of this section, testimony 
at the hearing shall be given orally by witnesses under oath or 
affirmation.
    (b) At the discretion of the ALJ, testimony may be admitted in the 
form of a written statement or deposition. Any such written statement 
must be provided to all other parties along with the last known address 
of such witness, in a manner which allows sufficient time for other 
parties to subpoena such witness for cross-examination at the hearing. 
Prior written statements of witnesses proposed to testify at the hearing 
and deposition transcripts shall be exchanged as provided in Sec. 
35.22(a) of this part.

[[Page 521]]

    (c) The ALJ shall exercise reasonable control over the mode and 
order of interrogating witnesses and presenting evidence so as to
    (1) Make the interrogation and presentation effective for the 
ascertainment of the truth,
    (2) Avoid needless consumption of time, and
    (3) Protect witnesses from harassment or undue embarrassment.
    (d) The ALJ shall permit the parties to conduct such cross-
examination as may be required for a full and true disclosure of the 
facts.
    (e) At the discretion of the ALJ, a witness may be cross-examined on 
matters relevant to the proceeding without regard to the scope of his or 
her direct examination. To the extent permitted by the ALJ, cross-
examination on matters outside the scope of direct examination shall be 
conducted in the manner of direct examination and may proceed by leading 
questions only if the witness is a hostile witness, an adverse party, or 
a witness identified with an adverse party.
    (f) Upon motion of any party, the ALJ shall order witnesses excluded 
so that they cannot hear the testimony of other witnesses. The rule does 
not authorize exclusion of--
    (1) A party who is an individual;
    (2) In the case of a party that is not an individual, an officer or 
employee of the party appearing for the entity pro se or designated by 
the party's representative; or
    (3) An individual whose presence is shown by a party to be essential 
to the presentation of its case, including an individual employed by the 
Government engaged in assisting the representative for the Government.



Sec. 35.34  Evidence.

    (a) The ALJ shall determine the admissibility of evidence.
    (b) Except as provided in this part, the ALJ shall not be bound by 
the Federal Rules of Evidence. However, the ALJ may apply the Federal 
Rules of Evidence where appropriate, e.g., to exclude unreliable 
evidence.
    (c) The ALJ shall exclude irrelevant and immaterial evidence.
    (d) Although relevant, evidence may be excluded if its probative 
value is substantially outweighed by the danger of unfair prejudice, 
confusion of the issues, or by considerations of undue delay or needless 
presentation of cumulative evidence.
    (e) Although relevant, evidence may be excluded if it is privileged 
under Federal law.
    (f) Evidence concerning offers of compromise or settlement shall be 
inadmissible to the extent provided in Rule 408 of the Federal Rules of 
Evidence.
    (g) The ALJ shall permit the parties to introduce rebuttal witnesses 
and evidence.
    (h) All documents and other evidence offered or taken for the record 
shall be open to examination by all parties, unless otherwise ordered by 
the ALJ pursuant to Sec. 35.24.



Sec. 35.35  The record.

    (a) The hearing will be recorded and transcribed. Transcripts may be 
obtained following the hearing from the ALJ at a cost not to exceed the 
actual cost of duplication.
    (b) The transcript of testimony, exhibits and other evidence 
admitted at the hearing, and all papers and requests filed in the 
proceeding constitute the record for the decision by the ALJ and the 
Director.
    (c) The record may be inspected and copied (upon payment of a 
reasonable fee) by anyone, unless otherwise ordered by the ALJ pursuant 
to Sec. 35.24 of this part.



Sec. 35.36  Post-hearing briefs.

    The ALJ may require the parties to file post-hearing briefs. In any 
event, any party may file a post-hearing brief. The ALJ shall fix the 
time for filing such briefs, not to exceed 60 days from the date the 
parties receive the transcript of the hearing or, if applicable, the 
stipulated record. Such briefs may be accompanied by proposed findings 
of fact and conclusions of law. The ALJ may permit the parties to file 
reply briefs.



Sec. 35.37  Initial decision.

    (a) The ALJ shall issue an initial decision based only on the 
record, which shall contain findings of fact, conclusions of law, and 
the amount of any penalties and assessments imposed.

[[Page 522]]

    (b) The findings of fact shall include a finding on each of the 
following issues:
    (1) Whether the claims or statements identified in the complaint, or 
any portions thereof, violate Sec. 35.3 of this part;
    (2) If the person is liable for penalties or assessments, the 
appropriate amount of any such penalties or assessments considering any 
mitigating or aggravating factors that he or she finds in the case, such 
as those described in Sec. 35.31 of this part.
    (c) The ALJ shall promptly serve the initial decision on all parties 
within 90 days after the time for submission of post-hearing briefs and 
reply briefs (if permitted) has expired. The ALJ shall at the same time 
serve all parties with a statement describing the right of any defendant 
determined to be liable for a civil penalty or assessment to file a 
motion for reconsideration with the ALJ or a notice of appeal with the 
Director. If the ALJ fails to meet the deadline contained in this 
paragraph, he or she shall notify the parties of the reason for the 
delay and shall set a new deadline.
    (d) Unless the initial decision of the ALJ is timely appealed to the 
Secretary, or a motion for reconsideration of the initial decision is 
timely filed, the initial decision shall constitute the final decision 
of the Department and shall be final and binding on the parties 30 days 
after it is issued by the ALJ.



Sec. 35.38  Reconsideration of initial decision.

    (a) Except as provided in paragraph (d) of this section, any party 
may file a motion for reconsideration of the initial decision within 20 
days of receipt of the initial decision. If service was made by mail, 
receipt will be presumed to be five days from the date of mailing in the 
absence of contrary proof.
    (b) Every such motion must set forth the matters claimed to have 
been erroneously decided and the nature of the alleged errors. Such 
motion shall be accompanied by a supporting brief.
    (c) Responses to such motions shall be allowed only upon request of 
the ALJ.
    (d) No party may file a motion for reconsideration of an initial 
decision that has been revised in response to a previous motion for 
reconsideration.
    (e) The ALJ may dispose of a motion for reconsideration by denying 
it or by issuing a revised initial decision.
    (f) If the ALJ denies a motion for reconsideration, the initial 
decision shall constitute the final decision of the Department and shall 
be final and binding on the parties 30 days after the ALJ denies the 
motion, unless the initial decision is timely appealed to the Secretary 
in accordance with Sec. 35.39 of this part.
    (g) If the ALJ issues a revised initial decision, that decision 
shall constitute the final decision of the Department and shall be final 
and binding on the parties 30 days after it is issued, unless it is 
timely appealed to the Secretary in accordance with Sec. 35.39 of this 
part.



Sec. 35.39  Appeal to the Secretary of the Interior.

    (a) Any defendant who as filed a timely answer and who is determined 
in an initial decision to be liable for a civil penalty or assessment 
may appeal such decision to the Secretary by filing a notice of appeal 
with the Director in accordance with this section.
    (b)(1) A notice of appeal may be filed at any time within 30 days 
after the ALJ issues an initial decision. However, if another party 
files a motion for reconsideration under Sec. 35.38 of this part, 
consideration of the appeal shall be stayed automatically pending 
resolution of the motion for reconsideration.
    (2) If a motion for reconsideration is timely filed, a notice of 
appeal may be filed within 30 days after the ALJ denies the motion or 
issues a revised initial decision, whichever applies.
    (3) The Director may extend the initial 30 day period for an 
additional 30 days if the defendant files with the Director a request 
for an extension within the initial 30 day period and shows good cause.
    (c) If the defendant files a timely notice of appeal with the 
Director and the time for filing motions for reconsideration under Sec. 
35.38 of this part has expired, the ALJ shall forward the record of the 
proceeding to the Director.

[[Page 523]]

    (d) A notice of appeal shall be accompanied by a written brief 
specifying exceptions to the initial decision and reasons supporting the 
exceptions.
    (e) The representative for the Government may file a brief in 
opposition to exceptions within 30 days of receiving the notice of 
appeal and accompanying brief.
    (f) There is no right to appear personally before the Director.
    (g) There is no right to appeal any interlocutory ruling by the ALJ.
    (h) In reviewing the initial decision, the Director shall not 
consider any objection that was not raised before the ALJ unless a 
demonstration is made of extraordinary circumstances causing the failure 
to raise the objection.
    (i) If any party demonstrates to the satisfaction of the Director 
that additional evidence not presented at such hearing is material and 
that there were reasonable grounds for the failure to present such 
evidence at such hearing, the Director shall remand the matter to the 
ALJ for consideration of such additional evidence.
    (j) The Director may affirm, reduce, reverse, compromise, remand, or 
settle any penalty or assessment determined by the ALJ in any initial 
decision.
    (k) The Director shall promptly serve each party to the appeal with 
a copy of the Department's decision and a statement describing the right 
of any person determined to be liable for a civil penalty or assessment 
to seek judicial review.
    (l) Unless a petition for review is filed as provided in 31 U.S.C. 
3805 after a defendant has exhausted all administrative remedies under 
this part and within 60 days after the date on which the Director serves 
the defendant with a copy of the Department's decision, a determination 
that a defendant is liable under Sec. 35.33 of this part is final and 
is not subject to judicial review.



Sec. 35.40  Stays ordered by the Department of Justice.

    If at any time the Attorney General or an Assistant Attorney General 
designated by the Attorney General transmits to the Secretary a written 
finding that continuation of the administrative process described in 
this part with respect to a claim or statement may adversely affect any 
pending or potential criminal or civil action related to such claim or 
statement, the Secretary shall stay the process immediately. The 
Secretary may order the process resumed only upon receipt of the written 
authorization of the Attorney General.



Sec. 35.41  Stay pending appeal.

    (a) An initial decision is stayed automatically pending disposition 
of a motion for reconsideration or of an appeal to the Secretary.
    (b) No administrative stay is available following a final decision 
of the Secretary.



Sec. 35.42  Judicial review.

    Section 3805 of title 31, U.S. Code, authorizes judicial review by 
an appropriate U.S. District Court of a final decision of the Secretary 
imposing penalties or assessment under this part and specifies the 
procedures for such review.



Sec. 35.43  Collection of civil penalties and assessments.

    Sections 3806 and 3808(b) of title 31, U.S. Code, authorize actions 
for collection of civil penalties and assessments imposed under this 
part and specify the procedures for such actions.



Sec. 35.44  Right to administrative offset.

    The amount of any penalty or assessment which has become final, or 
for which a judgment has been entered under Sec. 35.42 or Sec. 35.43, 
or any amount agreed upon in a compromise or settlement under Sec. 
35.46 of this part, may be collected by administrative offset under 31 
U.S.C. 3716, except that an administrative offset may not be made under 
this section against a refund of an overpayment of Federal taxes, then 
or later owing by the United States to the defendant.



Sec. 35.45  Deposit in Treasury of United States.

    All amounts collected pursuant to this part shall be deposited as 
miscellaneous receipts in the Treasury of the United States, except as 
provided in 31 U.S.C. 3806(g).

[[Page 524]]



Sec. 35.46  Compromise or settlement.

    (a) Parties may make offers of compromise or settlement at any time.
    (b) The reviewing official has the exclusive authority to compromise 
or settle a case under this part at any time after the date on which the 
reviewing official is permitted to issue a complaint and before the date 
on which the ALJ issues an initial decision.
    (c) The Secretary has exclusive authority to compromise or settle a 
case under this part at any time after the date on which the ALJ issues 
an initial decision, except during the pendency of any review under 
Sec. 35.42 or during the pendency of any action to collect penalties 
and assessments under Sec. 35.43 of this part.
    (d) The Attorney General has exclusive authority to compromise or 
settle a case under this part during the pendency of any review under 
Sec. 35.42 of this part or of any action to recover penalties and 
assessments under 31 U.S.C. 3806.
    (e) The investigating official may recommend settlement terms to the 
reviewing official, the Secretary, or the Attorney General, as 
appropriate. The reviewing official may recommend settlement terms to 
the Secretary, or the Attorney General, as appropriate.
    (f) Any compromise or settlement must be in writing.



Sec. 35.47  Limitations.

    (a) The notice of hearing with respect to a claim or statement must 
be served in the manner specified in Sec. 35.8 of this part within 6 
years after the date on which such claim or statement is made.
    (b) If the defendant fails to file a timely answer, service of a 
notice under Sec. 35.10(b) of this part shall be deemed a notice of 
hearing for purposes of this section.
    (c) The statute of limitations may be extended by agreement of the 
parties.



PART 36_TRANSPORTATION AND UTILITY SYSTEMS IN AND ACROSS, AND ACCESS INTO, CONSERVATION SYSTEM UNITS IN ALASKA--Table of Contents



Sec.
36.1 Applicability and scope.
36.2 Definitions.
36.3 Preapplication.
36.4 Filing of application.
36.5 Application review.
36.6 NEPA compliance and lead agency.
36.7 Decision process.
36.8 Administrative appeals.
36.9 Issuing permit.
36.10 Access to inholdings.
36.11 Special access.
36.12 Temporary access.
36.13 Special provisions.

    Authority: 16 U.S.C. 1, 3, 668dd et seq., and 3101 et seq.; 43 
U.S.C. 1201.

    Source: 51 FR 31629, Sept. 4, 1986, unless otherwise noted.



Sec. 36.1  Applicability and scope.

    (a) The regulations in this part apply to any application for access 
in the following forms within any conservation system unit (CSU), 
national recreation area or national conservation area within the State 
of Alaska which is administered by the Bureau of Land Management (BLM), 
Fish and Wildlife Service (FWS) or National Park Service (NPS):
    (1) A transportation or utility system (TUS) is any portion of the 
route of the system within any of the aforementioned areas and the 
system is not one which the Department or agency having jurisdiction 
over the unit or area is establishing incident to its management of the 
unit or area;
    (2) Access to inholdings within these areas, as well as within 
public lands administered by the BLM designated as wilderness study 
areas;
    (3) Special access within these areas, as well as within public 
lands administered by the BLM designated as wilderness study areas;
    (4) Temporary access within the aforementioned areas, as well as the 
National Petroleum Reserve in Alaska and public lands administered by 
the BLM designated as wilderness study areas or managed to maintain the 
wilderness character or potential thereof.

[[Page 525]]

    (b) Except as specifically provided in this part, applicable law 
shall apply with respect to the authorization and administration of 
TUSs.



Sec. 36.2  Definitions.

    As used in this part, the term:
    (a) ANILCA means the Alaska National Interest Lands Conservation Act 
(94 Stat. 2371; Pub. L. 96-487).
    (b) Applicable law means a law or regulation of general 
applicability, other than title XI of ANILCA, under which a Federal 
department or agency has jurisdiction to grant an authorization 
(including but not limited to, a right-of-way permit, license, lease or 
certificate) without which a TUS cannot, in whole or in part, be 
established or operated.
    (c) Applicant means an individual, partnership, corporation, 
association or other business entity, and a Federal, State or local 
government entity including a municipal corporation submitting an 
application under this part.
    (d) Appropriate Federal agency means a Federal agency (or the agency 
official to whom the authority has been delegated) that has jurisdiction 
to grant any authorization without which a TUS cannot, in whole or in 
part, be established or operated.
    (e) Area means a CSU, National Recreation Area, or National 
Conservation Area in Alaska administered by the NPS, the FWS or the BLM.
    (f) Compatible with the purposes for which the unit was established 
means that the system will not significantly interfere with or detract 
from the purposes for which the area was established.
    (g) Conservation System Unit (CSU) means any unit in Alaska of the 
National Park System, National Wildlife Refuge System, National Wild and 
Scenic Rivers System, National Trails System or the National Wilderness 
Preservation System administered by the NPS, the FWS or the BLM.
    (h) Economically feasible and prudent alternative route means a 
route either within or outside an area that is based on sound 
engineering practices and is economically practicable, but does not 
necessarily mean the least costly alternative route.
    (i) Improved right-of-ways means routes which are of a permanent 
nature and would involve substantial alteration of the terrain or 
vegetation such as grading and graveling of surfaces or other such 
construction. Trail right-of-ways which are annually or periodically 
marked, brushed, or broken for off-road vehicles are excluded.
    (j) Incident to its management of the unit or area means a type of 
TUS which is used directly or indirectly in support of authorized 
activities, and which is built by or for the Federal agency which has 
jurisdiction over the area.
    (k) Other system of general transportation means private and 
commercial transportation of passengers and/or shipment of goods or 
materials.
    (l) Public values means those values relating to the purposes for 
which the area was established as defined by the enabling legislation 
for the area.
    (m) Related structures and facilities means those structures, 
facilities and right-of-ways which are reasonably and minimally 
necessary for the construction, operation and maintenance of a TUS, and 
which are listed as part of the TUS on the consolidated application 
form, Standard Form 299, ``Application for Transportation and Utility 
Systems and Facilities on Federal Lands'' (SF 299).
    (n) Right-of-way permit means a right-of-way permit, lease, license, 
certificate or other authorization for all or part of a TUS in an area.
    (o) Secretary means the Secretary of the Interior.
    (p) Transportation or utility system (TUS) means any of the systems 
listed in paragraphs (p) (1) through (7) of this section, if a portion 
of the route of the system will be within an area and the system is not 
one that the Department or agency having jurisdiction over the area is 
establishing incident to its management of the area. The systems shall 
include related structures and facilities.
    (1) Canals, ditches, flumes, laterals, pipes, pipelines, tunnels and 
other systems for the transportation of water.
    (2) Pipelines and other systems for the transportation of liquids 
other than water, including oil, natural gas, synthetic liquid and 
gaseous fuels and

[[Page 526]]

any refined product produced therefrom.
    (3) Pipelines, slurry and emulsion systems and conveyor belts for 
the transportation of solid materials.
    (4) Systems for the transmission and distribution of electric 
energy.
    (5) Systems for transmission or reception of radio, television, 
telephone, telegraph and other electronic signals and other means of 
communication.
    (6) Improved rights-of-way for snowmachines, air cushion vehicles 
and other all-terrain vehicles.
    (7) Roads, highways, railroads, tunnels, tramways, airports, landing 
strips, docks and other systems of general transportation.

[51 FR 31629, Sept. 4, 1986, as amended at 62 FR 52510, Oct. 8, 1997]



Sec. 36.3  Preapplication.

    (a) Anyone interested in obtaining approval of a TUS is encouraged 
to establish early contact with each appropriate Federal agency so that 
filing procedures and details may be discussed, resource concerns and 
potential constraints may be identified, the proposal may be considered 
in agency planning, preapplication activities may be discussed and 
processing of an application may be tentatively scheduled.
    (b) Reasonable preapplication activities in areas shall be permitted 
following a determination by the appropriate Federal agency that the 
activities are necessary to obtain information for filing the SF 299, 
that the activities would not cause significant or permanent damage to 
the values for which the area was established or unreasonably interfere 
with other authorized uses or activities and that it would not 
significantly restrict subsistence uses. In areas administered by the 
NPS or the FWS, a permit shall be obtained from the appropriate agency 
prior to engaging in any preapplication activities. Prior to approval 
and issuance of such a permit, the appropriate Federal agencies must 
find that the proposed preapplication activity is compatible with the 
purposes for which the area was established.



Sec. 36.4  Filing of application.

    (a) A SF 299, which may be obtained from an appropriate Federal 
agency, shall be completed by the applicant according to the 
instructions on the form. The form shall be filed on the same day 
(except in compliance with paragraph (c) of this section) with each 
appropriate Federal agency from which an authorization, such as a 
permit, license, lease or certificate is required for the TUS. Filing 
with any appropriate Interior agency in Alaska shall be considered to be 
a filing with all of its agencies. Any filing fee required by the 
appropriate Federal agency pursuant to applicable law must be paid at 
the time of filing.
    (b) Prior to filing the SF 299, the applicant shall determine 
whether additional information to that requested on the form is required 
by the appropriate Federal agencies. If so, the applicant shall file the 
additional information as an attachment to the SF 299.
    (c) When, because of separate filing points, an applicant is not 
able to file with each appropriate Federal agency on the same day, the 
applicant shall file all applications as soon as possible. All 
applications must be filed within a 15 calendar day period. For purposes 
of the time requirements provided for in this part, the application 
shall not be considered to have been filed until the last appropriate 
Federal agency receives the application. The lead agency, determined 
pursuant to Sec. 36.5(a), shall determine the date of filing or that 
the application was not filed within the 15 day period and inform all 
appropriate Federal agencies.
    (d) The information collection requirements contained in these 
regulations have been approved by the Office of Management and Budget 
under 44 U.S.C. 3501 et seq. and assigned clearance numbers 1024-0026 
and 1004-0060. The information collected by the appropriate Federal 
agency will be used to determine whether or not to issue a permit to 
obtain a benefit. A response is required to obtain or retain a benefit.



Sec. 36.5  Application review.

    (a) When there is more than one appropriate Federal agency, the 
Federal agency having management jurisdiction over the longest lineal 
portion of the right-of-way requested in the TUS application shall be 
the lead agency for

[[Page 527]]

the purpose of coordinating appropriate Federal agency actions in the 
review and processing of the SF 299, as well as for the purpose of 
compliance with the provisions of the National Environmental Policy Act 
(NEPA), 42 U.S.C. 4321 et seq.
    (1) By agreement among the appropriate Federal agencies, a different 
Federal agency may be designated the lead agency for any or all parts of 
the review, processing or NEPA compliance.
    (2) Upon identification of the lead agency, other involved agencies 
will provide assistance as requested by the lead agency.
    (b) Upon receipt of an application, the lead agency will review it 
and determine the filing date pursuant to Sec. 36.4. If it is 
determined that the applicant has not met the 15 calendar day filing 
deadline, pursuant to Sec. 36.4(c) of this part, the lead agency shall 
notify each appropriate Federal agency to return the application to the 
applicant without further action.
    (c) Within 60 days of the date of filing, each appropriate Federal 
agency shall inform the applicant and the lead agency, in writing, 
whether the application on its face:
    (1) Contains the required information; or
    (2) Is insufficient, together with a specific listing of the 
additional information the applicant must submit.
    (d) When the application is insufficient, the applicant must furnish 
the specific information requested within 30 days of receipt of 
notification of deficiency:
    (1) If the applicant needs more time to obtain information, 
additional time may be granted by the appropriate Federal agency upon 
request of the applicant, provided the applicant agrees that the 
application filing date will change to the date of filing of the 
specific additional information.
    (2) Unless extended pursuant to the provisions of paragraph (d)(1) 
of this section, failure of the applicant to respond within the 30 day 
period will result in return of the application without further action.
    (3) The lead agency shall keep all appropriate Federal agencies 
informed of actions occurring under paragraphs (d) (1) and (2) of this 
section, in order that such agencies may note their application records 
accordingly.
    (e) Within 30 days of the receipt of additional information 
requested by the appropriate Federal agency, the applicant shall be 
notified in writing whether the supplemental information is sufficient.
    (1) If the applicant fails to provide all the requested information, 
the application shall be rejected and returned to the applicant along 
with a list of the specific deficiencies.
    (2) When the applicant furnishes the additional information, the 
application will be reinstated, and it will be considered filed as of 
the date the final supplemental information is actually received by the 
appropriate Federal agency.
    (3) The lead agency shall notify appropriate Federal agencies of any 
final rejection under paragraph (e)(1) of this section.



Sec. 36.6  NEPA compliance and lead agency.

    (a) The provisions of NEPA and the Council for Environmental Quality 
regulations (40 CFR parts 1500-1508) will be applied to determine 
whether an Environmental Assessment (EA) or an Environmental Impact 
Statement (EIS) is required, or that a categorical exclusion applies.
    (1) The lead agency, with cooperation of all appropriate Federal 
agencies, shall complete an EA or a draft environmental impact statement 
(DEIS) within nine months of the date the SF 299 was filed.
    (2) If the lead agency determines, for good cause, that the nine-
month period is insufficient, it may extend such period for a reasonable 
specific time. Notification of the extension, together with the reasons 
therefore, shall be provided to the applicant and published in the 
Federal Register at least 30 days prior to the end of the nine-month 
period.
    (3) If the lead agency determines that an EIS is not required, a 
Finding of No Significant Impact (FONSI) will be prepared.
    (4) If an EIS is determined to be necessary, the lead agency shall 
hold a public hearing on the joint DEIS in

[[Page 528]]

Washington, DC, and at least one location in Alaska.
    (5) The appropriate Federal agencies shall solicit and consider the 
views of other Federal departments and agencies, the Alaska Land Use 
Council, the State, affected units of local government in the State and 
affected corporations formed pursuant to the Alaska Native Claims 
Settlement Act. After public notice, the agencies shall receive and 
consider statements and recommendations regarding the application 
submitted by interested individuals and organizations.
    (6) The lead agency shall ensure compliance with section 810 of 
ANILCA.
    (b) When an EIS is determined to be necessary, within three months 
of completing the DEIS or within one year of the filing of the 
application, whichever is later, the lead agency shall complete the EIS 
and publish a notice of its availability in the Federal Register.
    (c) Cost reimbursement. (1) The costs to the United States of 
application processing, other than costs for EIS preparation and review 
as provided in paragraph (c)(2) of this section, shall be reimbursed by 
the applicant, if such reimbursement is required pursuant to the 
applicable law and procedures of the appropriate Federal agency 
incurring the costs.
    (2) The reasonable administrative and other costs of EIS preparation 
shall be reimbursed by the applicant, according to the BLM's cost 
recovery procedures and regulations implementing section 304 of FLPMA, 
43 U.S.C. 1734.



Sec. 36.7  Decision process.

    There are two separate decision processes. The first is used when 
the appropriate Federal agencies have an applicable law to issue a 
right-of-way permit and the area involved is outside the National 
Wilderness Preservation System. The second is used when an area involved 
in the application is within the National Wilderness Preservation System 
or an appropriate Federal agency has no applicable law with respect to 
issuing a right-of-way permit across all or any area covered by a TUS 
application.
    (a) When the appropriate Federal agencies have an applicable law and 
the area involved is outside the National Wilderness Preservation 
System:
    (1) Within four months of the date of the notice of availability of 
a FONSI or final EIS, each appropriate Federal agency shall make a 
decision based on applicable law to approve or disapprove the TUS and so 
notify the applicant in writing.
    (2) Each appropriate Federal agency in making its decision shall 
consider and make detailed findings supported by substantial evidence as 
to the portion of the TUS, within that agency's jurisdiction, with 
respect to:
    (i) The need for and economic feasibility of the TUS;
    (ii) Alternative routes and modes of access, including a 
determination with respect to whether there is any economically feasible 
and prudent alternative to routing the system through or within an area 
and, if not, whether there are alternate routes or modes which would 
result in fewer or less severe adverse impacts upon the area;
    (iii) The feasibility and impacts of including different TUSs in the 
same area;
    (iv) Short and long term social, economic and environmental impacts 
of national, State or local significance, including impacts on fish and 
wildlife and their habitat and on rural, traditional lifestyles;
    (v) The impacts, if any, on the national security interests of the 
United States, that may result from approval or denial of the 
application for the TUS;
    (vi) Any impacts that would affect the purposes for which the 
Federal unit or area concerned was established;
    (vii) Measures which should be instituted to avoid or minimize 
negative impacts;
    (viii) The short and long term public values which may be adversely 
affected by approval of the TUS versus the short and long term public 
benefits which may accrue from such approval; and
    (ix) Impacts, if any, on subsistence uses.
    (3) To the extent the appropriate Federal agencies agree, the 
decisions may be developed jointly, singularly or in some combination 
thereof.

[[Page 529]]

    (4) If an appropriate Federal agency disapproves any portion of the 
TUS, the application in its entirety is disapproved and the applicant 
may file an administrative appeal pursuant to section 1106(a) of ANILCA.
    (b) When an area involved is within the National Wilderness 
Preservation System or an appropriate Federal agency has no applicable 
law with respect to granting all or any part of a TUS application:
    (1) Within four months of the date of publication of the notice of 
the availability of the final EIS or FONSI, each appropriate Federal 
agency shall determine whether to tentatively approve or disapprove each 
right-of-way permit within its jurisdiction that applies with respect to 
the TUS and the Secretary of the Interior shall make notification 
pursuant to section 1106(b) of ANILCA.
    (i) The Federal agency having jurisdiction over a portion of a TUS 
for which there is no applicable law shall recommend approval of that 
portion of the TUS if it is determined that:
    (A) Such system would be compatible with the purposes for which the 
area was established; and
    (B) There is no economically feasible and prudent alternate route 
for the system.
    (ii) If there is applicable law for a portion of the TUS which is 
outside the National Wilderness Preservation System, the applicable law 
shall be applied in making the determination to approve or disapprove 
that portion of the TUS.
    (2) The notification shall be accompanied by a statement of the 
reasons and findings supporting each appropriate Federal agency's 
position. The findings shall include, but not be limited to, the 
findings required in paragraph (a)(2) of this section. The notification 
shall also be accompanied by the final EIS, the EA or statement that a 
categorical exclusion applies and any comments of the public and other 
Federal agencies.



Sec. 36.8  Administrative appeals.

    (a) If any appropriate Federal agency disapproves a TUS application 
pursuant to Sec. 36.7(a), the applicant may appeal the denial pursuant 
to section 1106(a) of ANILCA.
    (b) There is no administrative appeal for a denial issued under the 
provisions of Sec. 36.7(b).



Sec. 36.9  Issuing permit.

    (a) Once an application is approved under the provisions of Sec. 
36.7(a), a right-of-way permit will be issued by the appropriate Federal 
agency or agencies, according to that agency's authorizing statutes and 
regulations or, if approved pursuant to the provisions of Sec. 36.7(b), 
according to the provisions of title V of the Federal Land Policy 
Management Act of 1976 (43 U.S.C. 1701) or other applicable law. The 
permit shall not be issued until all fees and other charges have been 
paid in accordance with applicable law.
    (b) All TUS right-of-way permits shall include, but not be limited 
to, the following terms and conditions:
    (1) Requirements to ensure that to the maximum extent feasible, the 
right-of-way is used in a manner compatible with the purposes for which 
the affected area was established or is managed;
    (2) Requirements for restoration, revegetation and curtailment of 
erosion of the surface of the land;
    (3) Requirements to ensure that activities in connection with the 
right-of-way will not violate applicable air and water quality standards 
and related facility siting standards established pursuant to law;
    (4) Requirements, including the minimum necessary width, designed to 
control or prevent:
    (i) Damage to the environment (including damage to fish and wildlife 
habitat);
    (ii) Damage to public or private property; and
    (iii) Hazards to public health and safety.
    (5) Requirements to protect the interests of individuals living in 
the general area of the right-of-way permit who rely on the fish, 
wildlife and biotic resources of the area for subsistence purposes; and
    (6) Requirements to employ measures to avoid or minimize adverse 
environmental, social or economic impacts.

[[Page 530]]

    (c) Any TUS approved pursuant to this part which occupies, uses or 
traverses any area within the boundaries of a unit of the National Wild 
and Scenic Rivers System shall be subject to such conditions as may be 
necessary to assure that the stream flow of, and transportation on, such 
river are not interfered with or impeded and that the TUS is located and 
constructed in an environmentally sound manner.
    (d) In the case of a pipeline described in section 28(a) of the 
Mineral Leasing Act of 1920, a right-of-way permit issued pursuant to 
this part shall be issued in the same manner as a right-of-way is 
granted under section 28, and the provisions of subsections (c) through 
(j), (1) through (q), and (u) through (y) of section 28 shall apply to 
right-of-way permits issued pursuant to this part.



Sec. 36.10  Access to inholdings.

    (a) This section sets forth the procedures to provide adequate and 
feasible access to inholdings within areas in accordance with section 
1110(b) of ANILCA. As used in this section, the term:
    (1) Adequate and feasible access means a route and method of access 
that is shown to be reasonably necessary and economically practicable 
but not necessarily the least costly alternative for achieving the use 
and development by the applicant on the applicant's nonfederal land or 
occupancy interest.
    (2) Area also includes public lands administered by the BLM 
designated as wilderness study areas.
    (3) Effectively surrounded by means that physical barriers prevent 
adequate and feasible access to State or private lands or valid 
interests in lands except across an area(s). Physical barriers include 
but are not limited to rugged mountain terrain, extensive marsh areas, 
shallow water depths and the presence of ice for large periods of the 
year.
    (4) Inholding means State-owned or privately owned land, including 
subsurface rights of such owners underlying public lands or a valid 
mining claim or other valid occupancy that is within or is effectively 
surrounded by one or more areas.
    (b) It is the purpose of this section to ensure adequate and 
feasible access across areas for any person who has a valid inholding. A 
right-of-way permit for access to an inholding pursuant to this section 
is required only when this part does not provide for adequate and 
feasible access without a right-of-way permit.
    (c) Applications for a right-of-way permit for access to an 
inholding shall be filed with the appropriate Federal agency on a SF 
299. Mining claimants who have acquired their rights under the General 
Mining Law of 1872 may file their request for access as a part of their 
plan of operations. The appropriate Federal agency may require the 
mining claimant applicant to file a SF 299, if in its discretion, it 
determines that more complete information is needed. Applicants should 
ensure that the following information is provided:
    (1) Documentation of the property interest held by the applicant 
including, for claimants under the General Mining Law of 1872, as 
amended (30 U.S.C. 21-54), a copy of the location notice and 
recordations required by 43 U.S.C. 1744;
    (2) A detailed description of the use of the inholding for which the 
applied for right-of-way permit is to serve; and
    (3) If applicable, rationale demonstrating that the inholding is 
effectively surrounded by an area(s).
    (d) The application shall be filed in the same manner as under Sec. 
36.4 and shall be reviewed and processed in accordance with Sec. Sec. 
36.5 and 36.6.
    (e)(1) For any applicant who meets the criteria of paragraph (b) of 
this section, the appropriate Federal agency shall specify in a right-
of-way permit the route(s) and method(s) of access across the area(s) 
desired by the applicant, unless it is determined that:
    (i) The route or method of access would cause significant adverse 
impacts on natural or other values of the area and adequate and feasible 
access otherwise exists; or
    (ii) The route or method of access would jeopardize public health 
and safety and adequate and feasible access otherwise exists; or
    (iii) The route or method is inconsistent with the management 
plan(s) for the area or purposes for which the

[[Page 531]]

area was established and adequate and feasible access otherwise exists; 
or
    (iv) The method is unnecessary to accomplish the applicant's land 
use objective.
    (2) If the appropriate Federal agency makes one of the findings 
described in paragraph (e)(1) of this section, another alternate 
route(s) and/or method(s) of access that will provide the applicant 
adequate and feasible access shall be specified by that Federal agency 
in the right-of-way permit after consultation with the applicant.
    (f) All right-of-way permits issued pursuant to this section shall 
be subject to terms and conditions in the same manner as right-of-way 
permits issued pursuant to Sec. 36.9.
    (g) The decision by the appropriate Federal agency under this 
section is the final administrative decision.



Sec. 36.11  Special access.

    (a) This section implements the provisions of section 1110(a) of 
ANILCA regarding use of snowmachines, motorboats, nonmotorized surface 
transportation, aircraft, as well as off-road vehicle use.

As used in this section, the term:
    (1) Area also includes public lands administered by the BLM and 
designated as wilderness study areas.
    (2) Adequate snow cover shall mean snow of sufficient depth, 
generally 6-12 inches or more, or a combination of snow and frost depth 
sufficient to protect the underlying vegetation and soil.
    (b) Nothing in this section affects the use of snowmobiles, 
motorboats and nonmotorized means of surface transportation 
traditionally used by rural residents engaged in subsistence activities, 
as defined in Tile VIII of ANILCA.
    (c) The use of snowmachines (during periods of adquate snow cover 
and frozen river conditions) for traditional activities (where such 
activities are permitted by ANILCA or other law) and for travel to and 
from villages and homesites and other valid occupancies is permitted 
within the areas, except where such use is prohibited or otherwise 
restricted by the appropriate Federal agency in accordance with the 
procedures of paragraph (h) of this section.
    (d) Motorboats may be operated on all area waters, except where such 
use is prohibited or otherwise restricted by the appropriate Federal 
agency in accordance with the procedures of paragraph (h) of this 
section.
    (e) The use of nonmotorized surface transportation such as domestic 
dogs, horses and other pack or saddle animals is permitted in areas 
except where such use is prohibited or otherwise restricted by the 
appropriate Federal agency in accordance with the procedures of 
paragraph (h) of this section.
    (f) Aircraft. (1) Fixed-wing aircraft may be landed and operated on 
lands and waters within areas, except where such use is prohibited or 
otherwise restricted by the appropriate Federal agency, including 
closures or restrictions pursuant to the closures of paragraph (h) of 
this section. The use of aircraft for access to or from lands and waters 
within a national park or monument for purposes of taking fish and 
wildlife for subsistence uses therein is prohibited, except as provided 
in 36 CFR 13.45. The operation of aircraft resulting in the harassment 
of wildlife is prohibited.
    (2) In imposing any prohibitions or restrictions on fixed-wing 
aircraft use the appropriate Federal agency shall:
    (i) Publish notice of prohibition or restrictions in ``Notices to 
Airmen'' issued by the Department of Transportation; and
    (ii) Publish permanent prohibitions or restrictions as a regulatory 
notice in the United States Flight Information Service ``Supplement 
Alaska.''
    (3) Except as provided in paragraph (f)(3)(i) of this section, the 
owners of any aircraft downed after December 2, 1980, shall remove the 
aircraft and all component parts thereof in accordance with procedures 
established by the appropriate Federal agency. In establishing a removal 
procedure, the appropriate Federal agency is authorized to establish a 
reasonable date by which aircraft removal operations must be complete 
and determine times and means of access to and from the downed aircraft.
    (i) The appropriate Federal agency may waive the requirements of 
this paragraph upon a determination that the removal of downed aircraft 
would

[[Page 532]]

constitute an unacceptable risk to human life, or the removal of a 
downed aircraft would result in extensive resource damage, or the 
removal of a downed aircraft is otherwise impracticable or impossible.
    (ii) Salvaging, removing, possessing or attempting to salvage, 
remove or possess any downed aircraft or component parts thereof is 
prohibited, except in accordance with a removal procedure established 
under this paragraph and as may be controlled by the other laws and 
regulations.
    (4) The use of a helicopter in any area other than at designated 
landing areas pursuant to the terms and conditions of a permit issued by 
the appropriate Federal agency, or pursuant to a memorandum of 
understanding between the appropriate Federal agency and another party, 
or involved in emergency or search and rescue operations is prohibited.
    (g) Off-road vehicles. (1) The use of off-road vehicles (ORV) in 
locations other than established roads and parking areas is prohibited, 
except on routes or in areas designated by the appropriate Federal 
agency in accordance with Executive Order 11644, as amended or pursuant 
to a valid permit as prescribed in paragraph (g)(2) of this section or 
in Sec. 36.10 or Sec. 36.12.
    (2) The appropriate Federal agency is authorized to issue permits 
for the use of ORVs on existing ORV trails located in areas (other than 
in areas designated as part of the National Wilderness Preservation 
System) upon a finding that such ORV use would be compatible with the 
purposes and values for which the area was established. The appropriate 
Federal agency shall include in any permit such stipulations and 
conditions as are necessary for the protection of those purposes and 
values.
    (h) Closure procedures. (1) The appropriate Federal agency may close 
an area on a temporary or permanent basis to use of aircraft, 
snowmachines, motorboats or nonmotorized surface transportation only 
upon a finding by the agency that such use would be detrimental to the 
resource values of the area.
    (2) Temporary closures. (i) Temporary closures shall not be 
effective prior to notice and hearing in the vicinity of the area(s) 
directly affected by such closures and other locations as appropriate.
    (ii) A temporary closure shall not exceed 12 months.
    (3) Permanent closures shall be published by rulemaking in the 
Federal Register with a minimum public comment period of 60 days and 
shall not be effective until after a public hearing(s) is held in the 
affected vicinity and other locations as deemed appropriate by the 
appropriate Federal agency.
    (4) Temporary and permanent closures shall be: (i) Published at 
least once in a newspaper of general circulation in Alaska and in a 
local newspaper, if available; posted at community post offices within 
the vicinity affected; made available for broadcast on local radio 
stations in a manner reasonably calculated to inform residents in the 
affected vicinity; and designated on a map which shall be available for 
public inspection at the office of the appropriate Federal agency and 
other places convenient to the public; or
    (ii) Designated by posting the area with appropriate signs; or
    (iii) Both.
    (5) In determining whether to open an area that has previously been 
closed pursuant to the provisions of this section, the appropriate 
Federal agency shall provide notice in the Federal Register and shall, 
upon request, hold a hearing in the affected vicinity and other 
locations as appropriate prior to making a final determination.
    (6) Nothing in this section shall limit the authority of the 
appropriate Federal agency to restrict or limit uses of an area under 
other statutory authority.
    (i) Except as otherwise specifically permitted under the provisions 
of this section, entry into closed areas or failure to abide by 
restrictions established under this section is prohibited.
    (j) Any person convicted of violating any provision of the 
regulations contained in this section, or as the same may be amended or 
supplemented, may be punished by a fine or by imprisonment in accordance 
with the penalty provisions applicable to the area.

[51 FR 31629, Sept. 4, 1986; 51 FR 36011, Oct. 8, 1986]

[[Page 533]]



Sec. 36.12  Temporary access.

    (a) For the purposes of this section, the term:
    (1) Area also includes public lands administered by the BLM 
designated as wilderness study areas or managed to maintain the 
wilderness character or potential thereof, and the National Petroleum 
Reserve--Alaska.
    (2) Temporary access means limited, short-term (i.e., up to one year 
from issuance of the permit) access which does not require permanent 
facilities for access to State or private lands.
    (b) This section is applicable to State and private landowners who 
desire temporary access across an area for the purposes of survey, 
geophysical, exploratory and other temporary uses of such non-federal 
lands, and where such temporary access is not affirmatively provided for 
in Sec. Sec. 36.10 and 36.11. State and private landowners meeting the 
criteria of Sec. 36.10(b) are directed to use the procedures of Sec. 
36.10 to obtain temporary access.
    (c) A landowner requiring temporary access across an area for 
survey, geophysical, exploratory or similar temporary activities shall 
apply to the appropriate Federal agency for an access permit by 
providing the relevant information requested in the SF 299.
    (d) The appropriate Federal agency shall grant the desired temporary 
access whenever it is determined, after compliance with the requirements 
of NEPA, that such access will not result in permanent harm to the 
area's resources. The area manager shall include in any permit granted 
such stipulations and conditions on temporary access as are necessary to 
ensure that the access granted would not be inconsistent with the 
purposes for which the area was established and to ensure that no 
permanent harm will result to the area's resources and section 810 of 
ANILCA is complied with.



Sec. 36.13  Special provisions.

    (a) Gates of the Arctic National Park and Preserve. (1) Access for 
surface transportation purposes across Gates of the Arctic National Park 
and Preserve (from the Ambler Mining District to the Alaska Pipeline 
Haul Road (Dalton Highway)) shall be permitted in accordance with the 
provisions of this section.
    (2) Upon the filing of an application in accordance with Sec. 36.4 
for a right-of-way across the western (Kobuk River) unit of the 
preserve, including the Kobuk Wild River, the Secretary shall give 
notice in the Federal Register, and other such notice as may be 
appropriate, of a 30 day period for other applicants to apply for 
access. The original application and any additional applications 
received during the 30 day period will be reviewed in accordance with 
Sec. 36.5.
    (3) The Secretary and the Secretary of Transportation shall jointly 
prepare an environmental and economic analysis solely for the purpose of 
determining the most desirable route for the right-of-way and terms and 
conditions which may be required for the issuance of that right-of-way. 
This analysis shall be completed within one year and the draft thereof 
within nine months of the receipt of the application and shall be 
prepared in lieu of an EIS which would otherwise be required under 
section 102(2)(C) of NEPA. This analysis shall be deemed to satisfy all 
requirements of that Act and shall not be subject to judicial review. 
This analysis shall be prepared in accordance with the procedural 
requirements of Sec. 36.6.
    (4) The Secretaries, in preparing this analysis, shall consider the 
following:
    (i) Alternate routes including the consideration of economically 
feasible and prudent alternate routes across the preserve which would 
result in fewer, or less severe, adverse impacts upon the preserve.
    (ii) The environmental, social and economic impacts of the right-of-
way including impacts upon wildlife, fish, and their habitat, and rural 
and traditional lifestyles including subsistence activities and measures 
which should be instituted to avoid or minimize negative impacts and 
enhance positive impacts.
    (5) Within 60 days of the completion of the enviornmental and 
economic analysis, the Secretaries shall jointly agree upon a route for 
issuance of the right-of-way across the preserve. Such right-of-way 
shall be issued in accordance with the provisions of Sec. 36.9.

[[Page 534]]

    (b) Yukon-Charley Rivers National Preserve. (1) Any application 
filed by Doyon, Limited, for a right-of-way to provide access in a 
southerly direction across the Yukon River from its landholdings in the 
watersheds of the Kandik and Nation Rivers shall be processed in 
accordance with this part.
    (2) No right-of-way shall be granted which would cross the Charley 
River or which would involve any lands within the watershed of the 
Charley River.
    (3) An application shall be approved by the appropriate Federal 
agency if it is determined that there exists no economically feasible or 
otherwise reasonably available alternate route.
    (c) Oil and Gas Pipelines--Arctic Slope Regional Corporation. (1) 
Upon the filing by Arctic Slope Regional Corporation for an oil and gas 
TUS across lands identified in section 1431(j) of ANILCA, the 
appropriate Federal agency shall review the filing, determine the 
alignment and location of facilities across/on Federal lands, and issue 
such authorizations as are necessary with respect to the establishment 
of the TUS.
    (2) No environmental document pursuant to NEPA shall be required.
    (3) Investigations as to the proper final alignment of the pipeline 
and location of related facilities are at the discretion of the Federal 
agency and the costs associated with such investigations are not 
recoverable under Sec. 36.6.
    (d) Forty Mile Component of National Wild and Scenic Rivers System. 
The classification of segments of the Forty Mile Components as Wild 
Rivers shall not preclude access across those river segments where the 
appropriate Federal agency determines such access is necessary to permit 
commercial development of asbestos deposits in the North Fork drainage.

[51 FR 31629, Sept. 4, 1986; 51 FR 36011, Oct. 8, 1986]



PART 37_CAVE MANAGEMENT--Table of Contents



                    Subpart A_Cave Management_General

Sec.
37.1 Purpose.
37.2 Policy.
37.3 Authority.
37.4 Definitions.
37.5 Collection of information.

                       Subpart B_Cave Designation

37.11 Nomination, evaluation, and designation of significant caves.
37.12 Confidentiality of cave location information.

    Authority: 16 U.S.C. 4301-4309; 43 U.S.C. 1740.

    Source: 58 FR 51554, Oct. 1, 1993, unless otherwise noted.



                    Subpart A_Cave Management_General



Sec. 37.1  Purpose.

    The purpose of this part is to provide the basis for identifying and 
managing significant caves on Federal lands administered by the 
Secretary of the Interior.



Sec. 37.2  Policy.

    It is the policy of the Secretary that Federal lands be managed in a 
manner which, to the extent practical, protects and maintains 
significant caves and cave resources. The type and degree of protection 
will be determined through the agency resource management planning 
process with full public participation.



Sec. 37.3  Authority.

    Section 4 of the Federal Cave Resources Protection Act of 1988 (102 
Stat. 4546; 16 U.S.C. 4301) authorizes the Secretary to issue 
regulations providing for the identification of significant caves. 
Section 5 authorizes the Secretary to withhold information concerning 
the location of significant caves under certain circumstances.



Sec. 37.4  Definitions.

    (a) Authorized officer means the agency employee delegated the 
authority to perform the duties described in this part.
    (b) Cave means any naturally occurring void, cavity, recess, or 
system of interconnected passages beneath the surface of the earth or 
within a cliff or ledge, including any cave resource therein, and which 
is large enough to permit a person to enter, whether the entrance is 
excavated or naturally formed. Such term shall include any natural pit, 
sinkhole, or other feature

[[Page 535]]

that is an extension of a cave entrance or which is an integral part of 
the cave.
    (c) Cave resources means any materials or substances occurring in 
caves on Federal lands, including, but not limited to, biotic, cultural, 
mineralogic, paleontologic, geologic, and hydrologic resources.
    (d) Federal lands, as defined in the Federal Cave Resources 
Protection Act, means lands the fee title to which is owned by the 
United States and administered by the Secretary of the Interior.
    (e) Secretary means the Secretary of the Interior.
    (f) Significant cave means a cave located on Federal lands that has 
been determined to meet the criteria in Sec. 37.11(c).



Sec. 37.5  Collection of information.

    (a) The collections of information contained in this part have been 
approved by the Office of Management and Budget under 44 U.S.C. 3501 et 
seq. and assigned clearance numbers 1004-0165 (cave nominations) and 
1004-0166 (confidential information). The information provided for the 
cave nominations will be used to determine which caves will be listed as 
``significant'' and the information in the requests to obtain 
confidential cave information will be used to decide whether to grant 
access to this information. Response to the call for cave nominations is 
voluntary. No action may be taken against a person for refusing to 
supply the information requested. Response to the information 
requirements for obtaining confidential cave information is required to 
obtain a benefit in accordance with Section 5 of the Federal Cave 
Resources Protection Act of 1988 (102 Stat. 4546; 16 U.S.C. 4301).
    (b) The public reporting burden is estimated to average 3 hours per 
response for the cave nomination and one-half hour per response for the 
confidential cave information request. The estimated response time for 
both of the information burdens includes time for reviewing 
instructions, searching existing data sources, gathering and maintaining 
the data needed, and completing and reviewing the collection of 
information. Send comments regarding this burden estimate or any other 
aspect of this collection of information, including suggestions for 
reducing the burden, to Bureau of Land Management Clearance Officer, WO-
873, Mail Stop 401 LS, 1849 C Street NW., Washington, DC 20240; and the 
Office of Management and Budget, Paperwork Reduction Project 1004-0165/
6, Washington, D.C. 20503.



                       Subpart B_Cave Designation



Sec. 37.11  Nomination, evaluation, and designation of significant caves.

    (a) Nominations for initial and subsequent listings. The authorized 
officer will give governmental agencies and the public, including those 
who utilize caves for scientific, educational, and recreational 
purposes, the opportunity to nominate potential significant caves. The 
authorized officer will give public notice, including a notice published 
in the Federal Register, calling for nominations for the initial 
listing, including procedures for preparing and submitting the 
nominations. Nominations for subsequent listings will be accepted from 
governmental agencies and the public by the agency that manages the land 
where the cave is located as new cave discoveries are made or as new 
information becomes available. Nominations not approved for designation 
during the listing process may be resubmitted if better documentation or 
new information becomes available.
    (b) Evaluation for initial and subsequent listings. The evaluation 
of the nominations for significant caves will be carried out in 
consultation with individuals and organizations interested in the 
management and use of cave resources, within the limits imposed by the 
confidentiality provisions of Sec. 37.12 of this part. Nominations will 
be evaluated using the criteria in Sec. 37.11(c).
    (c) Criteria for significant caves. A significant cave on Federal 
lands shall possess one or more of the following features, 
characteristics, or values.
    (1) Biota. The cave provides seasonal or yearlong habitat for 
organisms or animals, or contains species or subspecies of flora or 
fauna that are native to caves, or are sensitive to disturbance, or are 
found on State or Federal

[[Page 536]]

sensitive, threatened, or endangered species lists.
    (2) Cultural. The cave contains historic properties or 
archaeological resources (as described in 36 CFR 60.4 and 43 CFR 7.3) or 
other features that are included in or eligible for inclusion in the 
National Register of Historic Places because of their research 
importance for history or prehistory, historical associations, or other 
historical or traditional significance.
    (3) Geologic/Mineralogic/Paleontologic. The cave possesses one or 
more of the following features:
    (i) Geologic or mineralogic features that are fragile, or that 
exhibit interesting formation processes, or that are otherwise useful 
for study.
    (ii) Deposits of sediments or features useful for evaluating past 
events.
    (iii) Paleontologic resources with potential to contribute useful 
educational and scientific information.
    (4) Hydrologic. The cave is a part of a hydrologic system or 
contains water that is important to humans, biota, or development of 
cave resources.
    (5) Recreational. The cave provides or could provide recreational 
opportunities or scenic values.
    (6) Educational or Scientific. The cave offers opportunities for 
educational or scientific use; or, the cave is virtually in a pristine 
state, lacking evidence f contemporary human disturbance or impact; or, 
the length, volume, total depth, pit depth, height, or similar 
measurements are notable.
    (d) National Park Service policy. The policy of the National Park 
Service, pursuant to its Organic Act of 1916 (16 U.S.C. 1, et seq.) and 
Management Policies (Chapter 4:20, Dec. 1988), is that all caves are 
afforded protection and will be managed in compliance with approved 
resource management plans. Accordingly, all caves on National Park 
Service-administered lands are deemed to fall within the definition of 
``significant cave.''
    (e) Special management areas. Within special management areas that 
are designated wholly or in part due to cave resources found therein, 
all caves within the so-designated special management area shall be 
determined to be significant.
    (f) Designation and documentation. If the authorized officer 
determines that a cave nominated and evaluated under paragraphs (a) and 
(b) of this section meets one or more of the criteria in paragraph (c), 
the authorized officer will designate the cave as significant. The 
authorized officer will designate all caves identified in paragraphs (d) 
and (e) of this section to be significant. The authorized officer will 
notify the nominating party of the results of the evaluation and 
designation. Each agency Field Office will retain appropriate 
documentation for all significant caves located within its 
administrative boundaries. At a minimum, documentation shall include a 
statement of finding signed and dated by the authorized officer, and the 
information used to make the determination. This documentation will be 
retained as a permanent record in accordance with the confidentiality 
provision in Sec. 37.12 of this part.
    (g) Decision final. Decisions to designate or not designate a cave 
as significant are made at the sole discretion of the authorized officer 
and are not subject to further administrative review or appeal under 43 
CFR part 4.
    (h) If a cave is determined to be significant, its entire extent, 
including passages not mapped or discovered at the time of the 
determination, is deemed significant. This includes caves that extend 
from lands managed by any Federal agency into lands managed by one or 
more other bureaus or agencies of the Department of the Interior, as 
well as caves initially believed to be separate for which 
interconnecting passages are discovered after significance is 
determined.



Sec. 37.12  Confidentiality of cave location information.

    (a) Information disclosure. No Department of the Interior employee 
shall disclose information that could be used to determine the location 
of any significant cave or cave under consideration for determination, 
unless the authorized officer determines that disclosure will further 
the purposes of the Act and will not create a substantial risk to cave 
resources of harm, theft, or destruction.

[[Page 537]]

    (b) Requesting confidential information. Notwithstanding paragraph 
(a) of this section, the authorized officer may make confidential cave 
information available to a Federal or State governmental agency, bona 
fide educational or research institute, or individual or organization 
assisting the land managing agency with cave management activities. To 
request confidential cave information, such entities shall make a 
written request to the authorized officer that includes the following:
    (1) Name, address, and telephone number of the individual 
responsible for the security of the information received.
    (2) A legal description of the area for which the information is 
sought.
    (3) A statement of the purpose for which the information is sought, 
and
    (4) Written assurances that the requesting party will maintain the 
confidentiality of the information and protect the cave and its 
resources.
    (c) Decision final. Decisions to permit or deny access to 
confidential cave information are made at the sole discretion of the 
authorized officer and are not subject to further administrative review 
or appeal under 5 U.S.C. 552 or 43 CFR parts 2 or 4.



PART 38_PAY OF U.S. PARK POLICE_INTERIM GEOGRAPHIC ADJUSTMENTS--Table of Contents



Sec.
38.1 Definitions.
38.2 Computation of hourly, daily, weekly, and biweekly adjusted rates 
          of pay.
38.3 Administration of adjusted rates of pay.

    Authority: 104 Stat. 1462.

    Source: 56 FR 33719, July 23, 1991, unless otherwise noted.



Sec. 38.1  Definitions.

    In this subpart: Adjusted annual rate of pay means an employee's 
scheduled annual rate of pay multiplied by 1.08 and rounded to the 
nearest whole dollar, counting 50 cents and over as a whole dollar.
    Employee means a U.S. Park Police officer whose official duty 
station is located in an interim geographic adjustment area.
    Interim geographic adjustment area means any of the following 
Consolidated Metropolitan Statistical Areas (CMSAs) as defined by the 
Office of Management and Budget (OMB).
    (1) New York-Northern New Jersey-Long Island, NY-NJ-CT; and
    (2) San Francisco-Oakland-San Jose, CA.
    Official duty station means the duty station for an employee's 
position of record as indicated on his or her most recent notification 
of personnel action.
    Scheduled annual rate of pay means--
    (1) The U.S. Park Police rate of basic pay for the employee's rank 
and step, exclusive of additional pay of any kind;
    (2) A retained rate of pay, where applicable, exclusive of 
additional pay of any kind.



Sec. 38.2  Computation of hourly, daily, weekly, and biweekly adjusted rates of pay.

    When it is necessary to convert the adjusted annual rate of pay to 
an hourly, daily, weekly, or biweekly rate, the following methods apply:
    (a) To derive an hourly rate, divide the adjusted annual rate of pay 
by 2,087 and round to the nearest cent, counting one-half cent and over 
as a whole cent;
    (b) To derive a daily rate, multiply the hourly rate by the number 
of daily hours of service required;
    (c) To derive a weekly or biweekly rate, multiply the hourly rate by 
40 or 80, as the case may be.



Sec. 38.3  Administration of adjusted rates of pay.

    (a) An employee is entitled to be paid the greater of--
    (1) The adjusted annual rate of pay; or
    (2) His or her rate of basic pay (including a local special salary 
rate, where applicable), without regard to any adjustment under this 
section.
    (b) An adjusted rate of pay is considered basic pay for purposes of 
computing:
    (1) Retirement deductions and benefits;
    (2) Life insurance premiums and benefits;
    (3) Premium pay;
    (4) Severance pay;

[[Page 538]]

    (c) When an employee's official duty station is changed from a 
location not in an interim geographic adjustment area to a location in 
an interim geographic adjustment area, payment of the adjusted rate of 
pay begins on the effective date of the change in official duty station.
    (d) An adjusted rate of pay is paid only for those hours for which 
an employee is in a pay status.
    (e) An adjusted rate of pay shall be adjusted as of the effective 
date of any change in the applicable scheduled rate of pay.
    (f) Except as provided in paragraph (g) of this section, entitlement 
to an adjusted rate of pay under this subpart terminates on the date.
    (1) An employee's official duty station is no longer located in an 
interim geographic adjustment area;
    (2) An employee moves to a position not covered;
    (3) An employee separates from Federal service; or
    (4) An employee's local special salary rate exceeds his or her 
adjusted rate of pay.
    (g) In the event of a change in the geographic area covered by a 
CMSA, the effective date of a change in an employee's entitlement to an 
adjusted rate of pay under this subpart shall be the first day of the 
first pay period beginning on or after the date on which a change in the 
definition of a CMSA is made effective.
    (h) Payment of or an increase in, an adjusted rate of pay is not an 
equivalent increase in pay.
    (i) An adjusted rate of pay is included in an employee's ``total 
remuneration,'' and ``straight time rate of pay,'' for the purpose of 
computations under the Fair Labor Standards Act of 1938, as amended.
    (j) Termination of an adjusted rate of pay under paragraph (f) of 
this section is not an adverse action.



PART 39_COLLECTION OF DEBTS BY ADMINISTRATIVE WAGE GARNISHMENT--Table of Contents



Sec.
39.1 Procedures for collection of debts by administrative wage 
          garnishment.
39.2 Requests for Hearings.

    Authority: 31 U.S.C. 3720D.

    Source: 70 FR 44513, Aug. 3, 2005, unless otherwise noted.



Sec. 39.1  Procedures for collection of debts by administrative wage garnishment.

    The Department hereby adopts the administrative wage garnishment 
rules issued by the Department of the Treasury at 31 CFR 285.11.



Sec. 39.2  Requests for Hearings.

    Any request for a hearing under 31 CFR 285.11 must be filed with the 
Director, Office of Hearings and Appeals, U.S. Department of the 
Interior, 801 N. Quincy Street, Suite 300, Arlington, Virginia 22203.



PART 41_NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE--Table of Contents



                         Subpart A_Introduction

Sec.
41.100 Purpose and effective date.
41.105 Definitions.
41.110 Remedial and affirmative action and self-evaluation.
41.115 Assurance required.
41.120 Transfers of property.
41.125 Effect of other requirements.
41.130 Effect of employment opportunities.
41.135 Designation of responsible employee and adoption of grievance 
          procedures.
41.140 Dissemination of policy.

                           Subpart B_Coverage

41.200 Application.
41.205 Educational institutions and other entities controlled by 
          religious organizations.
41.210 Military and merchant marine educational institutions.
41.215 Membership practices of certain organizations.
41.220 Admissions.
41.225 Educational institutions eligible to submit transition plans.
41.230 Transition plans.
41.235 Statutory amendments.

     Subpart C_Discrimination on the Basis of Sex in Admission and 
                         Recruitment Prohibited

41.300 Admission.
41.305 Preference in admission.

[[Page 539]]

41.310 Recruitment.

 Subpart D_Discrimination on the Basis of Sex in Education Programs or 
                          Activities Prohibited

41.400 Education programs or activities.
41.405 Housing.
41.410 Comparable facilities.
41.415 Access to course offerings.
41.420 Access to schools operated by LEAs.
41.425 Counseling and use of appraisal and counseling materials.
41.430 Financial assistance.
41.435 Employment assistance to students.
41.440 Health and insurance benefits and services.
41.445 Marital or parental status.
41.450 Athletics.
41.455 Textbooks and curricular material.

Subpart E_Discrimination on the Basis of Sex in Employment in Education 
                    Programs or Activities Prohibited

41.500 Employment.
41.505 Employment criteria.
41.510 Recruitment.
41.515 Compensation.
41.520 Job classification and structure.
41.525 Fringe benefits.
41.530 Marital or parental status.
41.535 Effect of state or local law or other requirements.
41.540 Advertising.
41.545 Pre-employment inquiries.
41.550 Sex as a bona fide occupational qualification.

                          Subpart F_Procedures

41.600 Notice of covered programs.
41.605 Enforcement procedures.

    Authority: 20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688.

    Source: 65 FR 52865, 52891, Aug. 30, 2000, unless otherwise noted.



                         Subpart A_Introduction



Sec. 41.100  Purpose and effective date.

    The purpose of these Title IX regulations is to effectuate Title IX 
of the Education Amendments of 1972, as amended (except sections 904 and 
906 of those Amendments) (20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 
1688), which is designed to eliminate (with certain exceptions) 
discrimination on the basis of sex in any education program or activity 
receiving Federal financial assistance, whether or not such program or 
activity is offered or sponsored by an educational institution as 
defined in these Title IX regulations. The effective date of these Title 
IX regulations shall be September 29, 2000.



Sec. 41.105  Definitions.

    As used in these Title IX regulations, the term:
    Administratively separate unit means a school, department, or 
college of an educational institution (other than a local educational 
agency) admission to which is independent of admission to any other 
component of such institution.
    Admission means selection for part-time, full-time, special, 
associate, transfer, exchange, or any other enrollment, membership, or 
matriculation in or at an education program or activity operated by a 
recipient.
    Applicant means one who submits an application, request, or plan 
required to be approved by an official of the Federal agency that awards 
Federal financial assistance, or by a recipient, as a condition to 
becoming a recipient.
    Designated agency official means Deputy Assistant Secretary for 
Workforce Diversity.
    Educational institution means a local educational agency (LEA) as 
defined by 20 U.S.C. 8801(18), a preschool, a private elementary or 
secondary school, or an applicant or recipient that is an institution of 
graduate higher education, an institution of undergraduate higher 
education, an institution of professional education, or an institution 
of vocational education, as defined in this section.
    Federal financial assistance means any of the following, when 
authorized or extended under a law administered by the Federal agency 
that awards such assistance:
    (1) A grant or loan of Federal financial assistance, including funds 
made available for:
    (i) The acquisition, construction, renovation, restoration, or 
repair of a building or facility or any portion thereof; and
    (ii) Scholarships, loans, grants, wages, or other funds extended to 
any entity for payment to or on behalf of students admitted to that 
entity, or extended directly to such students for payment to that 
entity.

[[Page 540]]

    (2) A grant of Federal real or personal property or any interest 
therein, including surplus property, and the proceeds of the sale or 
transfer of such property, if the Federal share of the fair market value 
of the property is not, upon such sale or transfer, properly accounted 
for to the Federal Government.
    (3) Provision of the services of Federal personnel.
    (4) Sale or lease of Federal property or any interest therein at 
nominal consideration, or at consideration reduced for the purpose of 
assisting the recipient or in recognition of public interest to be 
served thereby, or permission to use Federal property or any interest 
therein without consideration.
    (5) Any other contract, agreement, or arrangement that has as one of 
its purposes the provision of assistance to any education program or 
activity, except a contract of insurance or guaranty.
    Institution of graduate higher education means an institution that:
    (1) Offers academic study beyond the bachelor of arts or bachelor of 
science degree, whether or not leading to a certificate of any higher 
degree in the liberal arts and sciences;
    (2) Awards any degree in a professional field beyond the first 
professional degree (regardless of whether the first professional degree 
in such field is awarded by an institution of undergraduate higher 
education or professional education); or
    (3) Awards no degree and offers no further academic study, but 
operates ordinarily for the purpose of facilitating research by persons 
who have received the highest graduate degree in any field of study.
    Institution of professional education means an institution (except 
any institution of undergraduate higher education) that offers a program 
of academic study that leads to a first professional degree in a field 
for which there is a national specialized accrediting agency recognized 
by the Secretary of Education.
    Institution of undergraduate higher education means:
    (1) An institution offering at least two but less than four years of 
college-level study beyond the high school level, leading to a diploma 
or an associate degree, or wholly or principally creditable toward a 
baccalaureate degree; or
    (2) An institution offering academic study leading to a 
baccalaureate degree; or
    (3) An agency or body that certifies credentials or offers degrees, 
but that may or may not offer academic study.
    Institution of vocational education means a school or institution 
(except an institution of professional or graduate or undergraduate 
higher education) that has as its primary purpose preparation of 
students to pursue a technical, skilled, or semiskilled occupation or 
trade, or to pursue study in a technical field, whether or not the 
school or institution offers certificates, diplomas, or degrees and 
whether or not it offers full-time study.
    Recipient means any State or political subdivision thereof, or any 
instrumentality of a State or political subdivision thereof, any public 
or private agency, institution, or organization, or other entity, or any 
person, to whom Federal financial assistance is extended directly or 
through another recipient and that operates an education program or 
activity that receives such assistance, including any subunit, 
successor, assignee, or transferee thereof.
    Student means a person who has gained admission.
    Title IX means Title IX of the Education Amendments of 1972, Public 
Law 92-318, 86 Stat. 235, 373 (codified as amended at 20 U.S.C. 1681-
1688) (except sections 904 and 906 thereof), as amended by section 3 of 
Public Law 93-568, 88 Stat. 1855, by section 412 of the Education 
Amendments of 1976, Public Law 94-482, 90 Stat. 2234, and by Section 3 
of Public Law 100-259, 102 Stat. 28, 28-29 (20 U.S.C. 1681, 1682, 1683, 
1685, 1686, 1687, 1688).
    Title IX regulations means the provisions set forth at Sec. Sec. 
41.100 through 41.605.
    Transition plan means a plan subject to the approval of the 
Secretary of Education pursuant to section 901(a)(2) of the Education 
Amendments of 1972, 20 U.S.C. 1681(a)(2), under which an educational 
institution operates in making the transition from being an educational 
institution that admits only students of one sex to being one that

[[Page 541]]

admits students of both sexes without discrimination.

[65 FR 52865, 52891, 52892, Aug. 30, 2000]



Sec. 41.110  Remedial and affirmative action and self-evaluation.

    (a) Remedial action. If the designated agency official finds that a 
recipient has discriminated against persons on the basis of sex in an 
education program or activity, such recipient shall take such remedial 
action as the designated agency official deems necessary to overcome the 
effects of such discrimination.
    (b) Affirmative action. In the absence of a finding of 
discrimination on the basis of sex in an education program or activity, 
a recipient may take affirmative action consistent with law to overcome 
the effects of conditions that resulted in limited participation therein 
by persons of a particular sex. Nothing in these Title IX regulations 
shall be interpreted to alter any affirmative action obligations that a 
recipient may have under Executive Order 11246, 3 CFR, 1964-1965 Comp., 
p. 339; as amended by Executive Order 11375, 3 CFR, 1966-1970 Comp., p. 
684; as amended by Executive Order 11478, 3 CFR, 1966-1970 Comp., p. 
803; as amended by Executive Order 12086, 3 CFR, 1978 Comp., p. 230; as 
amended by Executive Order 12107, 3 CFR, 1978 Comp., p. 264.
    (c) Self-evaluation. Each recipient education institution shall, 
within one year of September 29, 2000:
    (1) Evaluate, in terms of the requirements of these Title IX 
regulations, its current policies and practices and the effects thereof 
concerning admission of students, treatment of students, and employment 
of both academic and non-academic personnel working in connection with 
the recipient's education program or activity;
    (2) Modify any of these policies and practices that do not or may 
not meet the requirements of these Title IX regulations; and
    (3) Take appropriate remedial steps to eliminate the effects of any 
discrimination that resulted or may have resulted from adherence to 
these policies and practices.
    (d) Availability of self-evaluation and related materials. 
Recipients shall maintain on file for at least three years following 
completion of the evaluation required under paragraph (c) of this 
section, and shall provide to the designated agency official upon 
request, a description of any modifications made pursuant to paragraph 
(c)(2) of this section and of any remedial steps taken pursuant to 
paragraph (c)(3) of this section.



Sec. 41.115  Assurance required.

    (a) General. Either at the application stage or the award stage, 
Federal agencies must ensure that applications for Federal financial 
assistance or awards of Federal financial assistance contain, be 
accompanied by, or be covered by a specifically identified assurance 
from the applicant or recipient, satisfactory to the designated agency 
official, that each education program or activity operated by the 
applicant or recipient and to which these Title IX regulations apply 
will be operated in compliance with these Title IX regulations. An 
assurance of compliance with these Title IX regulations shall not be 
satisfactory to the designated agency official if the applicant or 
recipient to whom such assurance applies fails to commit itself to take 
whatever remedial action is necessary in accordance with Sec. 41.110(a) 
to eliminate existing discrimination on the basis of sex or to eliminate 
the effects of past discrimination whether occurring prior to or 
subsequent to the submission to the designated agency official of such 
assurance.
    (b) Duration of obligation. (1) In the case of Federal financial 
assistance extended to provide real property or structures thereon, such 
assurance shall obligate the recipient or, in the case of a subsequent 
transfer, the transferee, for the period during which the real property 
or structures are used to provide an education program or activity.
    (2) In the case of Federal financial assistance extended to provide 
personal property, such assurance shall obligate the recipient for the 
period during which it retains ownership or possession of the property.
    (3) In all other cases such assurance shall obligate the recipient 
for the period during which Federal financial assistance is extended.

[[Page 542]]

    (c) Form. (1) The assurances required by paragraph (a) of this 
section, which may be included as part of a document that addresses 
other assurances or obligations, shall include that the applicant or 
recipient will comply with all applicable Federal statutes relating to 
nondiscrimination. These include but are not limited to: Title IX of the 
Education Amendments of 1972, as amended (20 U.S.C. 1681-1683, 1685-
1688).
    (2) The designated agency official will specify the extent to which 
such assurances will be required of the applicant's or recipient's 
subgrantees, contractors, subcontractors, transferees, or successors in 
interest.



Sec. 41.120  Transfers of property.

    If a recipient sells or otherwise transfers property financed in 
whole or in part with Federal financial assistance to a transferee that 
operates any education program or activity, and the Federal share of the 
fair market value of the property is not upon such sale or transfer 
properly accounted for to the Federal Government, both the transferor 
and the transferee shall be deemed to be recipients, subject to the 
provisions of Sec. Sec. 41.205 through 41.235(a).



Sec. 41.125  Effect of other requirements.

    (a) Effect of other Federal provisions. The obligations imposed by 
these Title IX regulations are independent of, and do not alter, 
obligations not to discriminate on the basis of sex imposed by Executive 
Order 11246, 3 CFR, 1964-1965 Comp., p. 339; as amended by Executive 
Order 11375, 3 CFR, 1966-1970 Comp., p. 684; as amended by Executive 
Order 11478, 3 CFR, 1966-1970 Comp., p. 803; as amended by Executive 
Order 12087, 3 CFR, 1978 Comp., p. 230; as amended by Executive Order 
12107, 3 CFR, 1978 Comp., p. 264; sections 704 and 855 of the Public 
Health Service Act (42 U.S.C. 295m, 298b-2); Title VII of the Civil 
Rights Act of 1964 (42 U.S.C. 2000e et seq.); the Equal Pay Act of 1963 
(29 U.S.C. 206); and any other Act of Congress or Federal regulation.
    (b) Effect of State or local law or other requirements. The 
obligation to comply with these Title IX regulations is not obviated or 
alleviated by any State or local law or other requirement that would 
render any applicant or student ineligible, or limit the eligibility of 
any applicant or student, on the basis of sex, to practice any 
occupation or profession.
    (c) Effect of rules or regulations of private organizations. The 
obligation to comply with these Title IX regulations is not obviated or 
alleviated by any rule or regulation of any organization, club, athletic 
or other league, or association that would render any applicant or 
student ineligible to participate or limit the eligibility or 
participation of any applicant or student, on the basis of sex, in any 
education program or activity operated by a recipient and that receives 
Federal financial assistance.



Sec. 41.130  Effect of employment opportunities.

    The obligation to comply with these Title IX regulations is not 
obviated or alleviated because employment opportunities in any 
occupation or profession are or may be more limited for members of one 
sex than for members of the other sex.



Sec. 41.135  Designation of responsible employee and adoption of grievance procedures.

    (a) Designation of responsible employee. Each recipient shall 
designate at least one employee to coordinate its efforts to comply with 
and carry out its responsibilities under these Title IX regulations, 
including any investigation of any complaint communicated to such 
recipient alleging its noncompliance with these Title IX regulations or 
alleging any actions that would be prohibited by these Title IX 
regulations. The recipient shall notify all its students and employees 
of the name, office address, and telephone number of the employee or 
employees appointed pursuant to this paragraph.
    (b) Complaint procedure of recipient. A recipient shall adopt and 
publish grievance procedures providing for prompt and equitable 
resolution of student and employee complaints alleging any action that 
would be prohibited by these Title IX regulations.



Sec. 41.140  Dissemination of policy.

    (a) Notification of policy. (1) Each recipient shall implement 
specific and

[[Page 543]]

continuing steps to notify applicants for admission and employment, 
students and parents of elementary and secondary school students, 
employees, sources of referral of applicants for admission and 
employment, and all unions or professional organizations holding 
collective bargaining or professional agreements with the recipient, 
that it does not discriminate on the basis of sex in the educational 
programs or activities that it operates, and that it is required by 
Title IX and these Title IX regulations not to discriminate in such a 
manner. Such notification shall contain such information, and be made in 
such manner, as the designated agency official finds necessary to 
apprise such persons of the protections against discrimination assured 
them by Title IX and these Title IX regulations, but shall state at 
least that the requirement not to discriminate in education programs or 
activities extends to employment therein, and to admission thereto 
unless Sec. Sec. 41.300 through 41.310 do not apply to the recipient, 
and that inquiries concerning the application of Title IX and these 
Title IX regulations to such recipient may be referred to the employee 
designated pursuant to Sec. 41.135, or to the designated agency 
official.
    (2) Each recipient shall make the initial notification required by 
paragraph (a)(1) of this section within 90 days of September 29, 2000 or 
of the date these Title IX regulations first apply to such recipient, 
whichever comes later, which notification shall include publication in:
    (i) Newspapers and magazines operated by such recipient or by 
student, alumnae, or alumni groups for or in connection with such 
recipient; and
    (ii) Memoranda or other written communications distributed to every 
student and employee of such recipient.
    (b) Publications. (1) Each recipient shall prominently include a 
statement of the policy described in paragraph (a) of this section in 
each announcement, bulletin, catalog, or application form that it makes 
available to any person of a type, described in paragraph (a) of this 
section, or which is otherwise used in connection with the recruitment 
of students or employees.
    (2) A recipient shall not use or distribute a publication of the 
type described in paragraph (b)(1) of this section that suggests, by 
text or illustration, that such recipient treats applicants, students, 
or employees differently on the basis of sex except as such treatment is 
permitted by these Title IX regulations.
    (c) Distribution. Each recipient shall distribute without 
discrimination on the basis of sex each publication described in 
paragraph (b)(1) of this section, and shall apprise each of its 
admission and employment recruitment representatives of the policy of 
nondiscrimination described in paragraph (a) of this section, and shall 
require such representatives to adhere to such policy.



                           Subpart B_Coverage



Sec. 41.200  Application.

    Except as provided in Sec. Sec. 41.205 through 41.235(a), these 
Title IX regulations apply to every recipient and to each education 
program or activity operated by such recipient that receives Federal 
financial assistance.



Sec. 41.205  Educational institutions and other entities controlled by religious organizations.

    (a) Exemption. These Title IX regulations do not apply to any 
operation of an educational institution or other entity that is 
controlled by a religious organization to the extent that application of 
these Title IX regulations would not be consistent with the religious 
tenets of such organization.
    (b) Exemption claims. An educational institution or other entity 
that wishes to claim the exemption set forth in paragraph (a) of this 
section shall do so by submitting in writing to the designated agency 
official a statement by the highest-ranking official of the institution, 
identifying the provisions of these Title IX regulations that conflict 
with a specific tenet of the religious organization.



Sec. 41.210  Military and merchant marine educational institutions.

    These Title IX regulations do not apply to an educational 
institution whose primary purpose is the training

[[Page 544]]

of individuals for a military service of the United States or for the 
merchant marine.



Sec. 41.215  Membership practices of certain organizations.

    (a) Social fraternities and sororities. These Title IX regulations 
do not apply to the membership practices of social fraternities and 
sororities that are exempt from taxation under section 501(a) of the 
Internal Revenue Code of 1954, 26 U.S.C. 501(a), the active membership 
of which consists primarily of students in attendance at institutions of 
higher education.
    (b) YMCA, YWCA, Girl Scouts, Boy Scouts, and Camp Fire Girls. These 
Title IX regulations do not apply to the membership practices of the 
Young Men's Christian Association (YMCA), the Young Women's Christian 
Association (YWCA), the Girl Scouts, the Boy Scouts, and Camp Fire 
Girls.
    (c) Voluntary youth service organizations. These Title IX 
regulations do not apply to the membership practices of a voluntary 
youth service organization that is exempt from taxation under section 
501(a) of the Internal Revenue Code of 1954, 26 U.S.C. 501(a), and the 
membership of which has been traditionally limited to members of one sex 
and principally to persons of less than nineteen years of age.



Sec. 41.220  Admissions.

    (a) Admissions to educational institutions prior to June 24, 1973, 
are not covered by these Title IX regulations.
    (b) Administratively separate units. For the purposes only of this 
section, Sec. Sec. 41.225 and 41.230, and Sec. Sec. 41.300 through 
41.310, each administratively separate unit shall be deemed to be an 
educational institution.
    (c) Application of Sec. Sec. 41.300 through .310. Except as 
provided in paragraphs (d) and (e) of this section, Sec. Sec. 41.300 
through 41.310 apply to each recipient. A recipient to which Sec. Sec. 
41.300 through 41.310 apply shall not discriminate on the basis of sex 
in admission or recruitment in violation of Sec. Sec. 41.300 through 
41.310.
    (d) Educational institutions. Except as provided in paragraph (e) of 
this section as to recipients that are educational institutions, 
Sec. Sec. 41.300 through 41.310 apply only to institutions of 
vocational education, professional education, graduate higher education, 
and public institutions of undergraduate higher education.
    (e) Public institutions of undergraduate higher education. 
Sec. Sec. 41.300 through 41.310 do not apply to any public institution 
of undergraduate higher education that traditionally and continually 
from its establishment has had a policy of admitting students of only 
one sex.



Sec. 41.225  Educational institutions eligible to submit transition plans.

    (a) Application. This section applies to each educational 
institution to which Sec. Sec. 41.300 through 41.310 apply that:
    (1) Admitted students of only one sex as regular students as of June 
23, 1972; or
    (2) Admitted students of only one sex as regular students as of June 
23, 1965, but thereafter admitted, as regular students, students of the 
sex not admitted prior to June 23, 1965.
    (b) Provision for transition plans. An educational institution to 
which this section applies shall not discriminate on the basis of sex in 
admission or recruitment in violation of Sec. Sec. 41.300 through 
41.310.



Sec. 41.230  Transition plans.

    (a) Submission of plans. An institution to which Sec. 41.225 
applies and that is composed of more than one administratively separate 
unit may submit either a single transition plan applicable to all such 
units, or a separate transition plan applicable to each such unit.
    (b) Content of plans. In order to be approved by the Secretary of 
Education, a transition plan shall:
    (1) State the name, address, and Federal Interagency Committee on 
Education Code of the educational institution submitting such plan, the 
administratively separate units to which the plan is applicable, and the 
name, address, and telephone number of the person to whom questions 
concerning the plan may be addressed. The person who submits the plan 
shall be the chief administrator or president of the institution, or 
another individual legally authorized to bind the institution to all 
actions set forth in the plan.

[[Page 545]]

    (2) State whether the educational institution or administratively 
separate unit admits students of both sexes as regular students and, if 
so, when it began to do so.
    (3) Identify and describe with respect to the educational 
institution or administratively separate unit any obstacles to admitting 
students without discrimination on the basis of sex.
    (4) Describe in detail the steps necessary to eliminate as soon as 
practicable each obstacle so identified and indicate the schedule for 
taking these steps and the individual directly responsible for their 
implementation.
    (5) Include estimates of the number of students, by sex, expected to 
apply for, be admitted to, and enter each class during the period 
covered by the plan.
    (c) Nondiscrimination. No policy or practice of a recipient to which 
Sec. 41.225 applies shall result in treatment of applicants to or 
students of such recipient in violation of Sec. Sec. 41.300 through 
41.310 unless such treatment is necessitated by an obstacle identified 
in paragraph (b)(3) of this section and a schedule for eliminating that 
obstacle has been provided as required by paragraph (b)(4) of this 
section.
    (d) Effects of past exclusion. To overcome the effects of past 
exclusion of students on the basis of sex, each educational institution 
to which Sec. 41.225 applies shall include in its transition plan, and 
shall implement, specific steps designed to encourage individuals of the 
previously excluded sex to apply for admission to such institution. Such 
steps shall include instituting recruitment programs that emphasize the 
institution's commitment to enrolling students of the sex previously 
excluded.



Sec. 41.235  Statutory amendments.

    (a) This section, which applies to all provisions of these Title IX 
regulations, addresses statutory amendments to Title IX.
    (b) These Title IX regulations shall not apply to or preclude:
    (1) Any program or activity of the American Legion undertaken in 
connection with the organization or operation of any Boys State 
conference, Boys Nation conference, Girls State conference, or Girls 
Nation conference;
    (2) Any program or activity of a secondary school or educational 
institution specifically for:
    (i) The promotion of any Boys State conference, Boys Nation 
conference, Girls State conference, or Girls Nation conference; or
    (ii) The selection of students to attend any such conference;
    (3) Father-son or mother-daughter activities at an educational 
institution or in an education program or activity, but if such 
activities are provided for students of one sex, opportunities for 
reasonably comparable activities shall be provided to students of the 
other sex;
    (4) Any scholarship or other financial assistance awarded by an 
institution of higher education to an individual because such individual 
has received such award in a single-sex pageant based upon a combination 
of factors related to the individual's personal appearance, poise, and 
talent. The pageant, however, must comply with other nondiscrimination 
provisions of Federal law.
    (c) Program or activity or program means:
    (1) All of the operations of any entity described in paragraphs 
(c)(1)(i) through (iv) of this section, any part of which is extended 
Federal financial assistance:
    (i)(A) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (B) The entity of such State or local government that distributes 
such assistance and each such department or agency (and each other State 
or local government entity) to which the assistance is extended, in the 
case of assistance to a State or local government;
    (ii)(A) A college, university, or other postsecondary institution, 
or a public system of higher education; or
    (B) A local educational agency (as defined in section 8801 of title 
20), system of vocational education, or other school system;
    (iii)(A) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--

[[Page 546]]

    (1) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (2) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (B) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (iv) Any other entity that is established by two or more of the 
entities described in paragraphs (c)(1)(i), (ii), or (iii) of this 
section.
    (2)(i) Program or activity does not include any operation of an 
entity that is controlled by a religious organization if the application 
of 20 U.S.C. 1681 to such operation would not be consistent with the 
religious tenets of such organization.
    (ii) For example, all of the operations of a college, university, or 
other postsecondary institution, including but not limited to 
traditional educational operations, faculty and student housing, campus 
shuttle bus service, campus restaurants, the bookstore, and other 
commercial activities are part of a ``program or activity'' subject to 
these Title IX regulations if the college, university, or other 
institution receives Federal financial assistance.
    (d)(1) Nothing in these Title IX regulations shall be construed to 
require or prohibit any person, or public or private entity, to provide 
or pay for any benefit or service, including the use of facilities, 
related to an abortion. Medical procedures, benefits, services, and the 
use of facilities, necessary to save the life of a pregnant woman or to 
address complications related to an abortion are not subject to this 
section.
    (2) Nothing in this section shall be construed to permit a penalty 
to be imposed on any person or individual because such person or 
individual is seeking or has received any benefit or service related to 
a legal abortion. Accordingly, subject to paragraph (d)(1) of this 
section, no person shall be excluded from participation in, be denied 
the benefits of, or be subjected to discrimination under any academic, 
extracurricular, research, occupational training, employment, or other 
educational program or activity operated by a recipient that receives 
Federal financial assistance because such individual has sought or 
received, or is seeking, a legal abortion, or any benefit or service 
related to a legal abortion.



     Subpart C_Discrimination on the Basis of Sex in Admission and 
                         Recruitment Prohibited



Sec. 41.300  Admission.

    (a) General. No person shall, on the basis of sex, be denied 
admission, or be subjected to discrimination in admission, by any 
recipient to which Sec. Sec. 41.300 through Sec. Sec. 41.310 apply, 
except as provided in Sec. Sec. 41.225 and Sec. Sec. 41.230.
    (b) Specific prohibitions. (1) In determining whether a person 
satisfies any policy or criterion for admission, or in making any offer 
of admission, a recipient to which Sec. Sec. 41.300 through 41.310 
apply shall not:
    (i) Give preference to one person over another on the basis of sex, 
by ranking applicants separately on such basis, or otherwise;
    (ii) Apply numerical limitations upon the number or proportion of 
persons of either sex who may be admitted; or
    (iii) Otherwise treat one individual differently from another on the 
basis of sex.
    (2) A recipient shall not administer or operate any test or other 
criterion for admission that has a disproportionately adverse effect on 
persons on the basis of sex unless the use of such test or criterion is 
shown to predict validly success in the education program or activity in 
question and alternative tests or criteria that do not have such a 
disproportionately adverse effect are shown to be unavailable.
    (c) Prohibitions relating to marital or parental status. In 
determining whether a person satisfies any policy or criterion for 
admission, or in making any offer of admission, a recipient to which 
Sec. Sec. 41.300 through 41.310 apply:
    (1) Shall not apply any rule concerning the actual or potential 
parental, family, or marital status of a student or applicant that 
treats persons differently on the basis of sex;

[[Page 547]]

    (2) Shall not discriminate against or exclude any person on the 
basis of pregnancy, childbirth, termination of pregnancy, or recovery 
therefrom, or establish or follow any rule or practice that so 
discriminates or excludes;
    (3) Subject to Sec. 41.235(d), shall treat disabilities related to 
pregnancy, childbirth, termination of pregnancy, or recovery therefrom 
in the same manner and under the same policies as any other temporary 
disability or physical condition; and
    (4) Shall not make pre-admission inquiry as to the marital status of 
an applicant for admission, including whether such applicant is ``Miss'' 
or ``Mrs.'' A recipient may make pre-admission inquiry as to the sex of 
an applicant for admission, but only if such inquiry is made equally of 
such applicants of both sexes and if the results of such inquiry are not 
used in connection with discrimination prohibited by these Title IX 
regulations.



Sec. 41.305  Preference in admission.

    A recipient to which Sec. Sec. 41.300 through 41.310 apply shall 
not give preference to applicants for admission, on the basis of 
attendance at any educational institution or other school or entity that 
admits as students only or predominantly members of one sex, if the 
giving of such preference has the effect of discriminating on the basis 
of sex in violation of Sec. Sec. 41.300 through 41.310.



Sec. 41.310  Recruitment.

    (a) Nondiscriminatory recruitment. A recipient to which Sec. Sec. 
41.300 through 41.310 apply shall not discriminate on the basis of sex 
in the recruitment and admission of students. A recipient may be 
required to undertake additional recruitment efforts for one sex as 
remedial action pursuant to Sec. 41.110(a), and may choose to undertake 
such efforts as affirmative action pursuant to Sec. 41.110(b).
    (b) Recruitment at certain institutions. A recipient to which 
Sec. Sec. 41.300 through 41.310 apply shall not recruit primarily or 
exclusively at educational institutions, schools, or entities that admit 
as students only or predominantly members of one sex, if such actions 
have the effect of discriminating on the basis of sex in violation of 
Sec. Sec. 41.300 through 41.310.



 Subpart D_Discrimination on the Basis of Sex in Education Programs or 
                          Activities Prohibited



Sec. 41.400  Education programs or activities.

    (a) General. Except as provided elsewhere in these Title IX 
regulations, no person shall, on the basis of sex, be excluded from 
participation in, be denied the benefits of, or be subjected to 
discrimination under any academic, extracurricular, research, 
occupational training, or other education program or activity operated 
by a recipient that receives Federal financial assistance. Sections 
41.400 through 41.455 do not apply to actions of a recipient in 
connection with admission of its students to an education program or 
activity of a recipient to which Sec. Sec. 41.300 through 41.310 do not 
apply, or an entity, not a recipient, to which Sec. Sec. 41.300 through 
41.310 would not apply if the entity were a recipient.
    (b) Specific prohibitions. Except as provided in Sec. Sec. 41.400 
through 41.455, in providing any aid, benefit, or service to a student, 
a recipient shall not, on the basis of sex:
    (1) Treat one person differently from another in determining whether 
such person satisfies any requirement or condition for the provision of 
such aid, benefit, or service;
    (2) Provide different aid, benefits, or services or provide aid, 
benefits, or services in a different manner;
    (3) Deny any person any such aid, benefit, or service;
    (4) Subject any person to separate or different rules of behavior, 
sanctions, or other treatment;
    (5) Apply any rule concerning the domicile or residence of a student 
or applicant, including eligibility for in-state fees and tuition;
    (6) Aid or perpetuate discrimination against any person by providing 
significant assistance to any agency, organization, or person that 
discriminates on the basis of sex in providing any aid, benefit, or 
service to students or employees;

[[Page 548]]

    (7) Otherwise limit any person in the enjoyment of any right, 
privilege, advantage, or opportunity.
    (c) Assistance administered by a recipient educational institution 
to study at a foreign institution. A recipient educational institution 
may administer or assist in the administration of scholarships, 
fellowships, or other awards established by foreign or domestic wills, 
trusts, or similar legal instruments, or by acts of foreign governments 
and restricted to members of one sex, that are designed to provide 
opportunities to study abroad, and that are awarded to students who are 
already matriculating at or who are graduates of the recipient 
institution; Provided, that a recipient educational institution that 
administers or assists in the administration of such scholarships, 
fellowships, or other awards that are restricted to members of one sex 
provides, or otherwise makes available, reasonable opportunities for 
similar studies for members of the other sex. Such opportunities may be 
derived from either domestic or foreign sources.
    (d) Aids, benefits or services not provided by recipient. (1) This 
paragraph (d) applies to any recipient that requires participation by 
any applicant, student, or employee in any education program or activity 
not operated wholly by such recipient, or that facilitates, permits, or 
considers such participation as part of or equivalent to an education 
program or activity operated by such recipient, including participation 
in educational consortia and cooperative employment and student-teaching 
assignments.
    (2) Such recipient:
    (i) Shall develop and implement a procedure designed to assure 
itself that the operator or sponsor of such other education program or 
activity takes no action affecting any applicant, student, or employee 
of such recipient that these Title IX regulations would prohibit such 
recipient from taking; and
    (ii) Shall not facilitate, require, permit, or consider such 
participation if such action occurs.



Sec. 41.405  Housing.

    (a) Generally. A recipient shall not, on the basis of sex, apply 
different rules or regulations, impose different fees or requirements, 
or offer different services or benefits related to housing, except as 
provided in this section (including housing provided only to married 
students).
    (b) Housing provided by recipient. (1) A recipient may provide 
separate housing on the basis of sex.
    (2) Housing provided by a recipient to students of one sex, when 
compared to that provided to students of the other sex, shall be as a 
whole:
    (i) Proportionate in quantity to the number of students of that sex 
applying for such housing; and
    (ii) Comparable in quality and cost to the student.
    (c) Other housing. (1) A recipient shall not, on the basis of sex, 
administer different policies or practices concerning occupancy by its 
students of housing other than that provided by such recipient.
    (2)(i) A recipient which, through solicitation, listing, approval of 
housing, or otherwise, assists any agency, organization, or person in 
making housing available to any of its students, shall take such 
reasonable action as may be necessary to assure itself that such housing 
as is provided to students of one sex, when compared to that provided to 
students of the other sex, is as a whole:
    (A) Proportionate in quantity; and
    (B) Comparable in quality and cost to the student.
    (ii) A recipient may render such assistance to any agency, 
organization, or person that provides all or part of such housing to 
students of only one sex.



Sec. 41.410  Comparable facilities.

    A recipient may provide separate toilet, locker room, and shower 
facilities on the basis of sex, but such facilities provided for 
students of one sex shall be comparable to such facilities provided for 
students of the other sex.



Sec. 41.415  Access to course offerings.

    (a) A recipient shall not provide any course or otherwise carry out 
any of its education program or activity separately on the basis of sex, 
or require or refuse participation therein by any of its students on 
such basis, including

[[Page 549]]

health, physical education, industrial, business, vocational, technical, 
home economics, music, and adult education courses.
    (b)(1) With respect to classes and activities in physical education 
at the elementary school level, the recipient shall comply fully with 
this section as expeditiously as possible but in no event later than one 
year from September 29, 2000. With respect to physical education classes 
and activities at the secondary and post-secondary levels, the recipient 
shall comply fully with this section as expeditiously as possible but in 
no event later than three years from September 29, 2000.
    (2) This section does not prohibit grouping of students in physical 
education classes and activities by ability as assessed by objective 
standards of individual performance developed and applied without regard 
to sex.
    (3) This section does not prohibit separation of students by sex 
within physical education classes or activities during participation in 
wrestling, boxing, rugby, ice hockey, football, basketball, and other 
sports the purpose or major activity of which involves bodily contact.
    (4) Where use of a single standard of measuring skill or progress in 
a physical education class has an adverse effect on members of one sex, 
the recipient shall use appropriate standards that do not have such 
effect.
    (5) Portions of classes in elementary and secondary schools, or 
portions of education programs or activities, that deal exclusively with 
human sexuality may be conducted in separate sessions for boys and 
girls.
    (6) Recipients may make requirements based on vocal range or quality 
that may result in a chorus or choruses of one or predominantly one sex.



Sec. 41.420  Access to schools operated by LEAs.

    A recipient that is a local educational agency shall not, on the 
basis of sex, exclude any person from admission to:
    (a) Any institution of vocational education operated by such 
recipient; or
    (b) Any other school or educational unit operated by such recipient, 
unless such recipient otherwise makes available to such person, pursuant 
to the same policies and criteria of admission, courses, services, and 
facilities comparable to each course, service, and facility offered in 
or through such schools.



Sec. 41.425  Counseling and use of appraisal and counseling materials.

    (a) Counseling. A recipient shall not discriminate against any 
person on the basis of sex in the counseling or guidance of students or 
applicants for admission.
    (b) Use of appraisal and counseling materials. A recipient that uses 
testing or other materials for appraising or counseling students shall 
not use different materials for students on the basis of their sex or 
use materials that permit or require different treatment of students on 
such basis unless such different materials cover the same occupations 
and interest areas and the use of such different materials is shown to 
be essential to eliminate sex bias. Recipients shall develop and use 
internal procedures for ensuring that such materials do not discriminate 
on the basis of sex. Where the use of a counseling test or other 
instrument results in a substantially disproportionate number of members 
of one sex in any particular course of study or classification, the 
recipient shall take such action as is necessary to assure itself that 
such disproportion is not the result of discrimination in the instrument 
or its application.
    (c) Disproportion in classes. Where a recipient finds that a 
particular class contains a substantially disproportionate number of 
individuals of one sex, the recipient shall take such action as is 
necessary to assure itself that such disproportion is not the result of 
discrimination on the basis of sex in counseling or appraisal materials 
or by counselors.



Sec. 41.430  Financial assistance.

    (a) General. Except as provided in paragraphs (b) and (c) of this 
section, in providing financial assistance to any of its students, a 
recipient shall not:
    (1) On the basis of sex, provide different amounts or types of such 
assistance, limit eligibility for such assistance that is of any 
particular type or

[[Page 550]]

source, apply different criteria, or otherwise discriminate;
    (2) Through solicitation, listing, approval, provision of 
facilities, or other services, assist any foundation, trust, agency, 
organization, or person that provides assistance to any of such 
recipient's students in a manner that discriminates on the basis of sex; 
or
    (3) Apply any rule or assist in application of any rule concerning 
eligibility for such assistance that treats persons of one sex 
differently from persons of the other sex with regard to marital or 
parental status.
    (b) Financial aid established by certain legal instruments. (1) A 
recipient may administer or assist in the administration of 
scholarships, fellowships, or other forms of financial assistance 
established pursuant to domestic or foreign wills, trusts, bequests, or 
similar legal instruments or by acts of a foreign government that 
require that awards be made to members of a particular sex specified 
therein; Provided, that the overall effect of the award of such sex-
restricted scholarships, fellowships, and other forms of financial 
assistance does not discriminate on the basis of sex.
    (2) To ensure nondiscriminatory awards of assistance as required in 
paragraph (b)(1) of this section, recipients shall develop and use 
procedures under which:
    (i) Students are selected for award of financial assistance on the 
basis of nondiscriminatory criteria and not on the basis of availability 
of funds restricted to members of a particular sex;
    (ii) An appropriate sex-restricted scholarship, fellowship, or other 
form of financial assistance is allocated to each student selected under 
paragraph (b)(2)(i) of this section; and
    (iii) No student is denied the award for which he or she was 
selected under paragraph (b)(2)(i) of this section because of the 
absence of a scholarship, fellowship, or other form of financial 
assistance designated for a member of that student's sex.
    (c) Athletic scholarships. (1) To the extent that a recipient awards 
athletic scholarships or grants-in-aid, it must provide reasonable 
opportunities for such awards for members of each sex in proportion to 
the number of students of each sex participating in interscholastic or 
intercollegiate athletics.
    (2) A recipient may provide separate athletic scholarships or 
grants-in-aid for members of each sex as part of separate athletic teams 
for members of each sex to the extent consistent with this paragraph (c) 
and Sec. 41.450.



Sec. 41.435  Employment assistance to students.

    (a) Assistance by recipient in making available outside employment. 
A recipient that assists any agency, organization, or person in making 
employment available to any of its students:
    (1) Shall assure itself that such employment is made available 
without discrimination on the basis of sex; and
    (2) Shall not render such services to any agency, organization, or 
person that discriminates on the basis of sex in its employment 
practices.
    (b) Employment of students by recipients. A recipient that employs 
any of its students shall not do so in a manner that violates Sec. Sec. 
41.500 through 41.550.



Sec. 41.440  Health and insurance benefits and services.

    Subject to Sec. 41.235(d), in providing a medical, hospital, 
accident, or life insurance benefit, service, policy, or plan to any of 
its students, a recipient shall not discriminate on the basis of sex, or 
provide such benefit, service, policy, or plan in a manner that would 
violate Sec. Sec. 41.500 through 41.550 if it were provided to 
employees of the recipient. This section shall not prohibit a recipient 
from providing any benefit or service that may be used by a different 
proportion of students of one sex than of the other, including family 
planning services. However, any recipient that provides full coverage 
health service shall provide gynecological care.



Sec. 41.445  Marital or parental status.

    (a) Status generally. A recipient shall not apply any rule 
concerning a student's actual or potential parental, family, or marital 
status that treats students differently on the basis of sex.
    (b) Pregnancy and related conditions. (1) A recipient shall not 
discriminate against any student, or exclude any student from its 
education program or

[[Page 551]]

activity, including any class or extracurricular activity, on the basis 
of such student's pregnancy, childbirth, false pregnancy, termination of 
pregnancy, or recovery therefrom, unless the student requests 
voluntarily to participate in a separate portion of the program or 
activity of the recipient.
    (2) A recipient may require such a student to obtain the 
certification of a physician that the student is physically and 
emotionally able to continue participation as long as such a 
certification is required of all students for other physical or 
emotional conditions requiring the attention of a physician.
    (3) A recipient that operates a portion of its education program or 
activity separately for pregnant students, admittance to which is 
completely voluntary on the part of the student as provided in paragraph 
(b)(1) of this section, shall ensure that the separate portion is 
comparable to that offered to non-pregnant students.
    (4) Subject to Sec. 41.235(d), a recipient shall treat pregnancy, 
childbirth, false pregnancy, termination of pregnancy and recovery 
therefrom in the same manner and under the same policies as any other 
temporary disability with respect to any medical or hospital benefit, 
service, plan, or policy that such recipient administers, operates, 
offers, or participates in with respect to students admitted to the 
recipient's educational program or activity.
    (5) In the case of a recipient that does not maintain a leave policy 
for its students, or in the case of a student who does not otherwise 
qualify for leave under such a policy, a recipient shall treat 
pregnancy, childbirth, false pregnancy, termination of pregnancy, and 
recovery therefrom as a justification for a leave of absence for as long 
a period of time as is deemed medically necessary by the student's 
physician, at the conclusion of which the student shall be reinstated to 
the status that she held when the leave began.



Sec. 41.450  Athletics.

    (a) General. No person shall, on the basis of sex, be excluded from 
participation in, be denied the benefits of, be treated differently from 
another person, or otherwise be discriminated against in any 
interscholastic, intercollegiate, club, or intramural athletics offered 
by a recipient, and no recipient shall provide any such athletics 
separately on such basis.
    (b) Separate teams. Notwithstanding the requirements of paragraph 
(a) of this section, a recipient may operate or sponsor separate teams 
for members of each sex where selection for such teams is based upon 
competitive skill or the activity involved is a contact sport. However, 
where a recipient operates or sponsors a team in a particular sport for 
members of one sex but operates or sponsors no such team for members of 
the other sex, and athletic opportunities for members of that sex have 
previously been limited, members of the excluded sex must be allowed to 
try out for the team offered unless the sport involved is a contact 
sport. For the purposes of these Title IX regulations, contact sports 
include boxing, wrestling, rugby, ice hockey, football, basketball, and 
other sports the purpose or major activity of which involves bodily 
contact.
    (c) Equal opportunity. (1) A recipient that operates or sponsors 
interscholastic, intercollegiate, club, or intramural athletics shall 
provide equal athletic opportunity for members of both sexes. In 
determining whether equal opportunities are available, the designated 
agency official will consider, among other factors:
    (i) Whether the selection of sports and levels of competition 
effectively accommodate the interests and abilities of members of both 
sexes;
    (ii) The provision of equipment and supplies;
    (iii) Scheduling of games and practice time;
    (iv) Travel and per diem allowance;
    (v) Opportunity to receive coaching and academic tutoring;
    (vi) Assignment and compensation of coaches and tutors;
    (vii) Provision of locker rooms, practice, and competitive 
facilities;
    (viii) Provision of medical and training facilities and services;
    (ix) Provision of housing and dining facilities and services;
    (x) Publicity.

[[Page 552]]

    (2) For purposes of paragraph (c)(1) of this section, unequal 
aggregate expenditures for members of each sex or unequal expenditures 
for male and female teams if a recipient operates or sponsors separate 
teams will not constitute noncompliance with this section, but the 
designated agency official may consider the failure to provide necessary 
funds for teams for one sex in assessing equality of opportunity for 
members of each sex.
    (d) Adjustment period. A recipient that operates or sponsors 
interscholastic, intercollegiate, club, or intramural athletics at the 
elementary school level shall comply fully with this section as 
expeditiously as possible but in no event later than one year from 
September 29, 2000. A recipient that operates or sponsors 
interscholastic, intercollegiate, club, or intramural athletics at the 
secondary or postsecondary school level shall comply fully with this 
section as expeditiously as possible but in no event later than three 
years from September 29, 2000.



Sec. 41.455  Textbooks and curricular material.

    Nothing in these Title IX regulations shall be interpreted as 
requiring or prohibiting or abridging in any way the use of particular 
textbooks or curricular materials.



Subpart E_Discrimination on the Basis of Sex in Employment in Education 
                    Programs or Activities Prohibited



Sec. 41.500  Employment.

    (a) General. (1) No person shall, on the basis of sex, be excluded 
from participation in, be denied the benefits of, or be subjected to 
discrimination in employment, or recruitment, consideration, or 
selection therefor, whether full-time or part-time, under any education 
program or activity operated by a recipient that receives Federal 
financial assistance.
    (2) A recipient shall make all employment decisions in any education 
program or activity operated by such recipient in a nondiscriminatory 
manner and shall not limit, segregate, or classify applicants or 
employees in any way that could adversely affect any applicant's or 
employee's employment opportunities or status because of sex.
    (3) A recipient shall not enter into any contractual or other 
relationship which directly or indirectly has the effect of subjecting 
employees or students to discrimination prohibited by Sec. Sec. 41.500 
through 41.550, including relationships with employment and referral 
agencies, with labor unions, and with organizations providing or 
administering fringe benefits to employees of the recipient.
    (4) A recipient shall not grant preferences to applicants for 
employment on the basis of attendance at any educational institution or 
entity that admits as students only or predominantly members of one sex, 
if the giving of such preferences has the effect of discriminating on 
the basis of sex in violation of these Title IX regulations.
    (b) Application. The provisions of Sec. Sec. 41.500 through 41.550 
apply to:
    (1) Recruitment, advertising, and the process of application for 
employment;
    (2) Hiring, upgrading, promotion, consideration for and award of 
tenure, demotion, transfer, layoff, termination, application of nepotism 
policies, right of return from layoff, and rehiring;
    (3) Rates of pay or any other form of compensation, and changes in 
compensation;
    (4) Job assignments, classifications, and structure, including 
position descriptions, lines of progression, and seniority lists;
    (5) The terms of any collective bargaining agreement;
    (6) Granting and return from leaves of absence, leave for pregnancy, 
childbirth, false pregnancy, termination of pregnancy, leave for persons 
of either sex to care for children or dependents, or any other leave;
    (7) Fringe benefits available by virtue of employment, whether or 
not administered by the recipient;
    (8) Selection and financial support for training, including 
apprenticeship, professional meetings, conferences, and other related 
activities, selection for tuition assistance, selection for sabbaticals 
and leaves of absence to pursue training;

[[Page 553]]

    (9) Employer-sponsored activities, including social or recreational 
programs; and
    (10) Any other term, condition, or privilege of employment.



Sec. 41.505  Employment criteria.

    A recipient shall not administer or operate any test or other 
criterion for any employment opportunity that has a disproportionately 
adverse effect on persons on the basis of sex unless:
    (a) Use of such test or other criterion is shown to predict validly 
successful performance in the position in question; and
    (b) Alternative tests or criteria for such purpose, which do not 
have such disproportionately adverse effect, are shown to be 
unavailable.



Sec. 41.510  Recruitment.

    (a) Nondiscriminatory recruitment and hiring. A recipient shall not 
discriminate on the basis of sex in the recruitment and hiring of 
employees. Where a recipient has been found to be presently 
discriminating on the basis of sex in the recruitment or hiring of 
employees, or has been found to have so discriminated in the past, the 
recipient shall recruit members of the sex so discriminated against so 
as to overcome the effects of such past or present discrimination.
    (b) Recruitment patterns. A recipient shall not recruit primarily or 
exclusively at entities that furnish as applicants only or predominantly 
members of one sex if such actions have the effect of discriminating on 
the basis of sex in violation of Sec. Sec. 41.500 through 41.550.



Sec. 41.515  Compensation.

    A recipient shall not make or enforce any policy or practice that, 
on the basis of sex:
    (a) Makes distinctions in rates of pay or other compensation;
    (b) Results in the payment of wages to employees of one sex at a 
rate less than that paid to employees of the opposite sex for equal work 
on jobs the performance of which requires equal skill, effort, and 
responsibility, and that are performed under similar working conditions.



Sec. 41.520  Job classification and structure.

    A recipient shall not:
    (a) Classify a job as being for males or for females;
    (b) Maintain or establish separate lines of progression, seniority 
lists, career ladders, or tenure systems based on sex; or
    (c) Maintain or establish separate lines of progression, seniority 
systems, career ladders, or tenure systems for similar jobs, position 
descriptions, or job requirements that classify persons on the basis of 
sex, unless sex is a bona fide occupational qualification for the 
positions in question as set forth in Sec. 41.550.



Sec. 41.525  Fringe benefits.

    (a) ``Fringe benefits'' defined. For purposes of these Title IX 
regulations, fringe benefits means: Any medical, hospital, accident, 
life insurance, or retirement benefit, service, policy or plan, any 
profit-sharing or bonus plan, leave, and any other benefit or service of 
employment not subject to the provision of Sec. 41.515.
    (b) Prohibitions. A recipient shall not:
    (1) Discriminate on the basis of sex with regard to making fringe 
benefits available to employees or make fringe benefits available to 
spouses, families, or dependents of employees differently upon the basis 
of the employee's sex;
    (2) Administer, operate, offer, or participate in a fringe benefit 
plan that does not provide for equal periodic benefits for members of 
each sex and for equal contributions to the plan by such recipient for 
members of each sex; or
    (3) Administer, operate, offer, or participate in a pension or 
retirement plan that establishes different optional or compulsory 
retirement ages based on sex or that otherwise discriminates in benefits 
on the basis of sex.



Sec. 41.530  Marital or parental status.

    (a) General. A recipient shall not apply any policy or take any 
employment action:
    (1) Concerning the potential marital, parental, or family status of 
an employee or applicant for employment that treats persons differently 
on the basis of sex; or

[[Page 554]]

    (2) Which is based upon whether an employee or applicant for 
employment is the head of household or principal wage earner in such 
employee's or applicant's family unit.
    (b) Pregnancy. A recipient shall not discriminate against or exclude 
from employment any employee or applicant for employment on the basis of 
pregnancy, childbirth, false pregnancy, termination of pregnancy, or 
recovery therefrom.
    (c) Pregnancy as a temporary disability. Subject to Sec. 41.235(d), 
a recipient shall treat pregnancy, childbirth, false pregnancy, 
termination of pregnancy, recovery therefrom, and any temporary 
disability resulting therefrom as any other temporary disability for all 
job-related purposes, including commencement, duration, and extensions 
of leave, payment of disability income, accrual of seniority and any 
other benefit or service, and reinstatement, and under any fringe 
benefit offered to employees by virtue of employment.
    (d) Pregnancy leave. In the case of a recipient that does not 
maintain a leave policy for its employees, or in the case of an employee 
with insufficient leave or accrued employment time to qualify for leave 
under such a policy, a recipient shall treat pregnancy, childbirth, 
false pregnancy, termination of pregnancy, and recovery therefrom as a 
justification for a leave of absence without pay for a reasonable period 
of time, at the conclusion of which the employee shall be reinstated to 
the status that she held when the leave began or to a comparable 
position, without decrease in rate of compensation or loss of 
promotional opportunities, or any other right or privilege of 
employment.



Sec. 41.535  Effect of state or local law or other requirements.

    (a) Prohibitory requirements. The obligation to comply with 
Sec. Sec. 41.500 through 41.550 is not obviated or alleviated by the 
existence of any State or local law or other requirement that imposes 
prohibitions or limits upon employment of members of one sex that are 
not imposed upon members of the other sex.
    (b) Benefits. A recipient that provides any compensation, service, 
or benefit to members of one sex pursuant to a State or local law or 
other requirement shall provide the same compensation, service, or 
benefit to members of the other sex.



Sec. 41.540  Advertising.

    A recipient shall not in any advertising related to employment 
indicate preference, limitation, specification, or discrimination based 
on sex unless sex is a bona fide occupational qualification for the 
particular job in question.



Sec. 41.545  Pre-employment inquiries.

    (a) Marital status. A recipient shall not make pre-employment 
inquiry as to the marital status of an applicant for employment, 
including whether such applicant is ``Miss'' or ``Mrs.''
    (b) Sex. A recipient may make pre-employment inquiry as to the sex 
of an applicant for employment, but only if such inquiry is made equally 
of such applicants of both sexes and if the results of such inquiry are 
not used in connection with discrimination prohibited by these Title IX 
regulations.



Sec. 41.550  Sex as a bona fide occupational qualification.

    A recipient may take action otherwise prohibited by Sec. Sec. 
41.500 through 41.550 provided it is shown that sex is a bona fide 
occupational qualification for that action, such that consideration of 
sex with regard to such action is essential to successful operation of 
the employment function concerned. A recipient shall not take action 
pursuant to this section that is based upon alleged comparative 
employment characteristics or stereotyped characterizations of one or 
the other sex, or upon preference based on sex of the recipient, 
employees, students, or other persons, but nothing contained in this 
section shall prevent a recipient from considering an employee's sex in 
relation to employment in a locker room or toilet facility used only by 
members of one sex.



                          Subpart F_Procedures



Sec. 41.600  Notice of covered programs.

    Within 60 days of September 29, 2000, each Federal agency that 
awards Federal financial assistance shall publish in the Federal 
Register a notice of

[[Page 555]]

the programs covered by these Title IX regulations. Each such Federal 
agency shall periodically republish the notice of covered programs to 
reflect changes in covered programs. Copies of this notice also shall be 
made available upon request to the Federal agency's office that enforces 
Title IX.



Sec. 41.605  Enforcement procedures.

    The investigative, compliance, and enforcement procedural provisions 
of Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d) (``Title 
VI'') are hereby adopted and applied to these Title IX regulations. 
These procedures may be found at 10 CFR 4.21 through 4.75.

[65 FR 52892, Aug. 30, 2000]



PART 43_GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE (FINANCIAL ASSISTANCE)--Table of Contents



                     Subpart A_Purpose and Coverage

Sec.
43.100 What does this part do?
43.105 Does this part apply to me?
43.110 Are any of my Federal assistance awards exempt from this part?
43.115 Does this part affect the Federal contracts that I receive?

      Subpart B_Requirements for Recipients Other Than Individuals

43.200 What must I do to comply with this part?
43.205 What must I include in my drug-free workplace statement?
43.210 To whom must I distribute my drug-free workplace statement?
43.215 What must I include in my drug-free awareness program?
43.220 By when must I publish my drug-free workplace statement and 
          establish my drug-free awareness program?
43.225 What actions must I take concerning employees who are convicted 
          of drug violations in the workplace?
43.230 How and when must I identify workplaces?

        Subpart C_Requirements for Recipients Who Are Individuals

43.300 What must I do to comply with this part if I am an individual 
          recipient?
43.301 Is there a central point to which I may report information 
          required by Sec. 43.300?

   Subpart D_Responsibilities of Department of the Interior Awarding 
                                Officials

43.400 What are my responsibilities as a Department of the Interior 
          awarding official?

           Subpart E_Violations of This Part and Consequences

43.500 How are violations of this part determined for recipients other 
          than individuals?
43.505 How are violations of this part determined for recipients who are 
          individuals?
43.510 What actions will the Federal Government take against a recipient 
          determined to have violated this part?
43.515 Are there any exceptions to those actions?

                          Subpart F_Definitions

43.605 Award.
43.610 Controlled substance.
43.615 Conviction.
43.620 Cooperative agreement.
43.625 Criminal drug statute.
43.630 Debarment.
43.635 Drug-free workplace.
43.640 Employee.
43.645 Federal agency or agency.
43.650 Grant.
43.655 Individual.
43.660 Recipient.
43.665 State.
43.670 Suspension.

    Authority: 5 U.S.C. 301; 31 U.S.C. 6101 note, 7501; 41 U.S.C. 
Sections 252a and 701 et seq.

    Source: 68 FR 66557, 66630, Nov. 26, 2003, unless otherwise noted.



                     Subpart A_Purpose and Coverage



Sec. 43.100  What does this part do?

    This part carries out the portion of the Drug-Free Workplace Act of 
1988 (41 U.S.C. 701 et seq., as amended) that applies to grants. It also 
applies the provisions of the Act to cooperative agreements and other 
financial assistance awards, as a matter of Federal Government policy.



Sec. 43.105  Does this part apply to me?

    (a) Portions of this part apply to you if you are either--
    (1) A recipient of an assistance award from the Department of the 
Interior; or
    (2) A(n) Department of the Interior awarding official. (See 
definitions of

[[Page 556]]

award and recipient in Sec. Sec. 43.605 and 43.660, respectively.)
    (b) The following table shows the subparts that apply to you:

------------------------------------------------------------------------
             If you are . . .                    see subparts . . .
------------------------------------------------------------------------
(1) A recipient who is not an individual..  A, B and E.
(2) A recipient who is an individual......  A, C and E.
(3) A(n) Department of the Interior         A, D and E.
 awarding official.
------------------------------------------------------------------------



Sec. 43.110  Are any of my Federal assistance awards exempt from this part?

    This part does not apply to any award that the Director, Office of 
Acquisition and Property Management determines that the application of 
this part would be inconsistent with the international obligations of 
the United States or the laws or regulations of a foreign government.



Sec. 43.115  Does this part affect the Federal contracts that I receive?

    It will affect future contract awards indirectly if you are debarred 
or suspended for a violation of the requirements of this part, as 
described in Sec. 43.510(c). However, this part does not apply directly 
to procurement contracts. The portion of the Drug-Free Workplace Act of 
1988 that applies to Federal procurement contracts is carried out 
through the Federal Acquisition Regulation in chapter 1 of Title 48 of 
the Code of Federal Regulations (the drug-free workplace coverage 
currently is in 48 CFR part 23, subpart 23.5).



      Subpart B_Requirements for Recipients Other Than Individuals



Sec. 43.200  What must I do to comply with this part?

    There are two general requirements if you are a recipient other than 
an individual.
    (a) First, you must make a good faith effort, on a continuing basis, 
to maintain a drug-free workplace. You must agree to do so as a 
condition for receiving any award covered by this part. The specific 
measures that you must take in this regard are described in more detail 
in subsequent sections of this subpart. Briefly, those measures are to--
    (1) Publish a drug-free workplace statement and establish a drug-
free awareness program for your employees (see Sec. Sec. 43.205 through 
43.220); and
    (2) Take actions concerning employees who are convicted of violating 
drug statutes in the workplace (see Sec. 43.225).
    (b) Second, you must identify all known workplaces under your 
Federal awards (see Sec. 43.230).



Sec. 43.205  What must I include in my drug-free workplace statement?

    You must publish a statement that--
    (a) Tells your employees that the unlawful manufacture, 
distribution, dispensing, possession, or use of a controlled substance 
is prohibited in your workplace;
    (b) Specifies the actions that you will take against employees for 
violating that prohibition; and
    (c) Lets each employee know that, as a condition of employment under 
any award, he or she:
    (1) Will abide by the terms of the statement; and
    (2) Must notify you in writing if he or she is convicted for a 
violation of a criminal drug statute occurring in the workplace and must 
do so no more than five calendar days after the conviction.



Sec. 43.210  To whom must I distribute my drug-free workplace statement?

    You must require that a copy of the statement described in Sec. 
43.205 be given to each employee who will be engaged in the performance 
of any Federal award.



Sec. 43.215  What must I include in my drug-free awareness program?

    You must establish an ongoing drug-free awareness program to inform 
employees about--
    (a) The dangers of drug abuse in the workplace;
    (b) Your policy of maintaining a drug-free workplace;
    (c) Any available drug counseling, rehabilitation, and employee 
assistance programs; and
    (d) The penalties that you may impose upon them for drug abuse 
violations occurring in the workplace.

[[Page 557]]



Sec. 43.220  By when must I publish my drug-free workplace statement and establish my drug-free awareness program?

    If you are a new recipient that does not already have a policy 
statement as described in Sec. 43.205 and an ongoing awareness program 
as described in Sec. 43.215, you must publish the statement and 
establish the program by the time given in the following table:

------------------------------------------------------------------------
                 If . . .                          then you . . .
------------------------------------------------------------------------
(a) The performance period of the award is  must have the policy
 less than 30 days.                          statement and program in
                                             place as soon as possible,
                                             but before the date on
                                             which performance is
                                             expected to be completed.
(b) The performance period of the award is  must have the policy
 30 days or more.                            statement and program in
                                             place within 30 days after
                                             award.
(c) You believe there are extraordinary     may ask the Department of
 circumstances that will require more than   the Interior awarding
 30 days for you to publish the policy       official to give you more
 statement and establish the awareness       time to do so. The amount
 program.                                    of additional time, if any,
                                             to be given is at the
                                             discretion of the awarding
                                             official.
------------------------------------------------------------------------



Sec. 43.225  What actions must I take concerning employees who are convicted of drug violations in the workplace?

    There are two actions you must take if an employee is convicted of a 
drug violation in the workplace:
    (a) First, you must notify Federal agencies if an employee who is 
engaged in the performance of an award informs you about a conviction, 
as required by Sec. 43.205(c)(2), or you otherwise learn of the 
conviction. Your notification to the Federal agencies must--
    (1) Be in writing;
    (2) Include the employee's position title;
    (3) Include the identification number(s) of each affected award;
    (4) Be sent within ten calendar days after you learn of the 
conviction; and
    (5) Be sent to every Federal agency on whose award the convicted 
employee was working. It must be sent to every awarding official or his 
or her official designee, unless the Federal agency has specified a 
central point for the receipt of the notices.
    (b) Second, within 30 calendar days of learning about an employee's 
conviction, you must either--
    (1) Take appropriate personnel action against the employee, up to 
and including termination, consistent with the requirements of the 
Rehabilitation Act of 1973 (29 U.S.C. 794), as amended; or
    (2) Require the employee to participate satisfactorily in a drug 
abuse assistance or rehabilitation program approved for these purposes 
by a Federal, State or local health, law enforcement, or other 
appropriate agency.



Sec. 43.230  How and when must I identify workplaces?

    (a) You must identify all known workplaces under each Department of 
the Interior award. A failure to do so is a violation of your drug-free 
workplace requirements. You may identify the workplaces--
    (1) To the Department of the Interior official that is making the 
award, either at the time of application or upon award; or
    (2) In documents that you keep on file in your offices during the 
performance of the award, in which case you must make the information 
available for inspection upon request by Department of the Interior 
officials or their designated representatives.
    (b) Your workplace identification for an award must include the 
actual address of buildings (or parts of buildings) or other sites where 
work under the award takes place. Categorical descriptions may be used 
(e.g., all vehicles of a mass transit authority or State highway 
department while in operation, State employees in each local 
unemployment office, performers in concert halls or radio studios).
    (c) If you identified workplaces to the Department of the Interior 
awarding official at the time of application or award, as described in 
paragraph (a)(1) of this section, and any workplace that you identified 
changes during the performance of the award, you must inform the 
Department of the Interior awarding official.

[[Page 558]]



        Subpart C_Requirements for Recipients Who Are Individuals



Sec. 43.300  What must I do to comply with this part if I am an individual recipient?

    As a condition of receiving a(n) Department of the Interior award, 
if you are an individual recipient, you must agree that--
    (a) You will not engage in the unlawful manufacture, distribution, 
dispensing, possession, or use of a controlled substance in conducting 
any activity related to the award; and
    (b) If you are convicted of a criminal drug offense resulting from a 
violation occurring during the conduct of any award activity, you will 
report the conviction:
    (1) In writing.
    (2) Within 10 calendar days of the conviction.
    (3) To the Department of the Interior awarding official or other 
designee for each award that you currently have, unless Sec. 43.301 or 
the award document designates a central point for the receipt of the 
notices. When notice is made to a central point, it must include the 
identification number(s) of each affected award.



Sec. 43.301  Is there a central point to which I may report information required by Sec. 43.300?

    No. The Department of the Interior is not designating a central 
location for the receipt of these reports. Therefore you shall provide 
this report to every grant officer, or other designee within a Bureau/
Office of the Department on whose grant activity the convicted employee 
was working.



   Subpart D_Responsibilities of Department of the Interior Awarding 
                                Officials



Sec. 43.400  What are my responsibilities as a(n) Department of the Interior awarding official?

    As a(n) Department of the Interior awarding official, you must 
obtain each recipient's agreement, as a condition of the award, to 
comply with the requirements in--
    (a) Subpart B of this part, if the recipient is not an individual; 
or
    (b) Subpart C of this part, if the recipient is an individual.



           Subpart E_Violations of this Part and Consequences



Sec. 43.500  How are violations of this part determined for recipients other than individuals?

    A recipient other than an individual is in violation of the 
requirements of this part if the Director, Office of Acquisition and 
Property Management determines, in writing, that--
    (a) The recipient has violated the requirements of subpart B of this 
part; or
    (b) The number of convictions of the recipient's employees for 
violating criminal drug statutes in the workplace is large enough to 
indicate that the recipient has failed to make a good faith effort to 
provide a drug-free workplace.



Sec. 43.505  How are violations of this part determined for recipients who are individuals?

    An individual recipient is in violation of the requirements of this 
part if the Director, Office of Acquisition and Property Management 
determines, in writing, that--
    (a) The recipient has violated the requirements of subpart C of this 
part; or
    (b) The recipient is convicted of a criminal drug offense resulting 
from a violation occurring during the conduct of any award activity.



Sec. 43.510  What actions will the Federal Government take against a recipient determined to have violated this part?

    If a recipient is determined to have violated this part, as 
described in Sec. 43.500 or Sec. 43.505, the Department of the 
Interior may take one or more of the following actions--
    (a) Suspension of payments under the award;
    (b) Suspension or termination of the award; and
    (c) Suspension or debarment of the recipient under 2 CFR part 180, 
for a period not to exceed five years.

[68 FR 66557, 66630, Nov. 26, 2003, as amended at 72 FR 33386, June 18, 
2007]

[[Page 559]]



Sec. 43.515  Are there any exceptions to those actions?

    The Secretary of the Interior may waive with respect to a particular 
award, in writing, a suspension of payments under an award, suspension 
or termination of an award, or suspension or debarment of a recipient if 
the Secretary of the Interior determines that such a waiver would be in 
the public interest. This exception authority cannot be delegated to any 
other official.



                          Subpart F_Definitions



Sec. 43.605  Award.

    Award means an award of financial assistance by the Department of 
the Interior or other Federal agency directly to a recipient.
    (a) The term award includes:
    (1) A Federal grant or cooperative agreement, in the form of money 
or property in lieu of money.
    (2) A block grant or a grant in an entitlement program, whether or 
not the grant is exempted from coverage under the Governmentwide rule 43 
CFR part 12 that implements OMB Circular A-102 (for availability, see 5 
CFR 1310.3) and specifies uniform administrative requirements.
    (b) The term award does not include:
    (1) Technical assistance that provides services instead of money.
    (2) Loans.
    (3) Loan guarantees.
    (4) Interest subsidies.
    (5) Insurance.
    (6) Direct appropriations.
    (7) Veterans' benefits to individuals (i.e., any benefit to 
veterans, their families, or survivors by virtue of the service of a 
veteran in the Armed Forces of the United States).



Sec. 43.610  Controlled substance.

    Controlled substance means a controlled substance in schedules I 
through V of the Controlled Substances Act (21 U.S.C. 812), and as 
further defined by regulation at 21 CFR 1308.11 through 1308.15.



Sec. 43.615  Conviction.

    Conviction means a finding of guilt (including a plea of nolo 
contendere) or imposition of sentence, or both, by any judicial body 
charged with the responsibility to determine violations of the Federal 
or State criminal drug statutes.



Sec. 43.620  Cooperative agreement.

    Cooperative agreement means an award of financial assistance that, 
consistent with 31 U.S.C. 6305, is used to enter into the same kind of 
relationship as a grant (see definition of grant in Sec. 43.650), 
except that substantial involvement is expected between the Federal 
agency and the recipient when carrying out the activity contemplated by 
the award. The term does not include cooperative research and 
development agreements as defined in 15 U.S.C. 3710a.



Sec. 43.625  Criminal drug statute.

    Criminal drug statute means a Federal or non-Federal criminal 
statute involving the manufacture, distribution, dispensing, use, or 
possession of any controlled substance.



Sec. 43.630  Debarment.

    Debarment means an action taken by a Federal agency to prohibit a 
recipient from participating in Federal Government procurement contracts 
and covered nonprocurement transactions. A recipient so prohibited is 
debarred, in accordance with the Federal Acquisition Regulation for 
procurement contracts (48 CFR part 9, subpart 9.4) and 2 CFR part 180.

[68 FR 66557, 66630, Nov. 26, 2003, as amended at 72 FR 33386, June 18, 
2007]



Sec. 43.635  Drug-free workplace.

    Drug-free workplace means a site for the performance of work done in 
connection with a specific award at which employees of the recipient are 
prohibited from engaging in the unlawful manufacture, distribution, 
dispensing, possession, or use of a controlled substance.



Sec. 43.640  Employee.

    (a) Employee means the employee of a recipient directly engaged in 
the performance of work under the award, including--
    (1) All direct charge employees;

[[Page 560]]

    (2) All indirect charge employees, unless their impact or 
involvement in the performance of work under the award is insignificant 
to the performance of the award; and
    (3) Temporary personnel and consultants who are directly engaged in 
the performance of work under the award and who are on the recipient's 
payroll.
    (b) This definition does not include workers not on the payroll of 
the recipient (e.g., volunteers, even if used to meet a matching 
requirement; consultants or independent contractors not on the payroll; 
or employees of subrecipients or subcontractors in covered workplaces).



Sec. 43.645  Federal agency or agency.

    Federal agency or agency means any United States executive 
department, military department, government corporation, government 
controlled corporation, any other establishment in the executive branch 
(including the Executive Office of the President), or any independent 
regulatory agency.



Sec. 43.650  Grant.

    Grant means an award of financial assistance that, consistent with 
31 U.S.C. 6304, is used to enter into a relationship--
    (a) The principal purpose of which is to transfer a thing of value 
to the recipient to carry out a public purpose of support or stimulation 
authorized by a law of the United States, rather than to acquire 
property or services for the Federal Government's direct benefit or use; 
and
    (b) In which substantial involvement is not expected between the 
Federal agency and the recipient when carrying out the activity 
contemplated by the award.



Sec. 43.655  Individual.

    Individual means a natural person.



Sec. 43.660  Recipient.

    Recipient means any individual, corporation, partnership, 
association, unit of government (except a Federal agency) or legal 
entity, however organized, that receives an award directly from a 
Federal agency.



Sec. 43.665  State.

    State means any of the States of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, or any territory or 
possession of the United States.



Sec. 43.670  Suspension.

    Suspension means an action taken by a Federal agency that 
immediately prohibits a recipient from participating in Federal 
Government procurement contracts and covered nonprocurement transactions 
for a temporary period, pending completion of an investigation and any 
judicial or administrative proceedings that may ensue. A recipient so 
prohibited is suspended, in accordance with the Federal Acquisition 
Regulation for procurement contracts (48 CFR part 9, subpart 9.4) and 2 
CFR part 180. Suspension of a recipient is a distinct and separate 
action from suspension of an award or suspension of payments under an 
award.

[68 FR 66557, 66630, Nov. 26, 2003, as amended at 72 FR 33386, June 18, 
2007]



PART 44_FINANCIAL ASSISTANCE, LOCAL GOVERNMENTS--Table of Contents



Sec.

                           General Information

44.10 What is the purpose of this subpart?
44.11 What are the definitions of terms used in this subpart?
44.12 Who is eligible to receive PILT payments?

       Payments to Local Governments Containing Entitlements Lands

44.20 How does the Department process payments to local governments 
          whose jurisdictions contain entitlement lands?
44.21 How does the Department calculate payments to local governments 
          whose jurisdictions contain entitlement lands?
44.22 Are there any special circumstances that affect the way the 
          Department calculates PILT payments?
44.23 How does the Department certify payment computations?
44.30 How does the Department make payments for acquired lands?
44.31 How does the Department calculate payments for acquired lands?

[[Page 561]]

   Payments to Local Governments for Interest in Lands in the Redwood 
                    National Park or Lake Tahoe Basin

44.40 How does the Department process payments for lands in the Redwood 
          National Park or Lake Tahoe Basin?
44.41 How does the Department calculate payments for lands in the 
          Redwood National Park or Lake Tahoe Basin?

   State and Local Governments' Responsibilities After the Department 
                          Distributes Payments

44.50 What are the local governments' responsibilities after receiving 
          payments under this part?
44.51 Are there general procedures applicable to all PILT payments?
44.52 May a State enact legislation to reallocate or redistribute PILT 
          payments?
44.53 What will the Department do if a State enacts distribution 
          legislation?
44.54 What happens if a State repeals or amends distribution 
          legislation?
44.55 Can a unit of general local government protest the results of 
          payment computations?
44.56 How does a unit of general local government file a protest?
44.57 Can a unit of general local government appeal a rejection of a 
          protest?

    Authority: Public Law 94-565, 90 Stat. 2662, as amended, 31 U.S.C. 
6901-6907.

    Source: 69 FR 70559, Dec. 7, 2004, unless otherwise noted.

                           General Information



Sec. 44.10  What is the purpose of this subpart?

    This subpart sets forth procedures the Department of the Interior 
uses in disbursing Federal payments in lieu of taxes to local 
governments for entitlement lands within their boundaries.



Sec. 44.11  What are the definitions of terms used in this subpart?

    Entitlement land means land owned by the United States:
    (1) That is in the National Park System or the National Forest 
System, including wilderness areas, and national forest lands in 
northern Minnesota described in 16 U.S.C. 577d-577d-1;
    (2) That is administered by the Secretary of the Interior through 
the Office of the Secretary;
    (3) That is dedicated to the use of the Government for water 
resource development projects;
    (4) On which there are semiactive or inactive installations, 
excluding industrial installations, that the Department of Army keeps 
for mobilization and reserve component training;
    (5) That is a dredge disposal area under the jurisdiction of the 
Army Corps of Engineers;
    (6) That is located in the vicinity of Purgatory River Canyon and 
Pinon Canyon, Colorado, and was acquired by the United States after 
December 23, 1981, to expand the Fort Carson military installation; or
    (7) That is a reserve area as defined in 16 U.S.C. 715s(g)(3), which 
is an area of land withdrawn from the public domain and administered, 
either solely or primarily, by the Secretary of the Interior, through 
the Fish and Wildlife Service.
    Local government means a unit of general local government, which can 
include any of the following:
    (1) A county, parish, township, borough, or city, (other than in 
Alaska), where the city is independent of any other unit of general 
local government, that:
    (i) Is within the class(es) of such political subdivision in a State 
that the Secretary of the Interior determines, in his or her discretion, 
to be the principal provider(s) of governmental services within the 
State; and
    (ii) Is a unit of general local government, as determined by the 
Secretary of the Interior on the basis of the same principles as were 
used by the Secretary of Commerce on January 1, 1983, for general 
statistical purposes;
    (2) Any area in Alaska that is within the boundaries of a census 
area used by the Secretary of Commerce in the decennial census, but that 
is not included within the boundaries of a governmental entity described 
under paragraph (1) of this definition; or
    (3) The Governments of the District of Columbia, the Commonwealth of 
Puerto Rico, Guam, and the Virgin Islands.
    Payments in lieu of taxes (PILT) means Federal payments disbursed to 
local governments to compensate for the exemption of real estate taxes 
on entitlement lands within their boundaries.

[[Page 562]]

    Section 6902 (31 U.S.C. 6902) payments means Federal payments 
disbursed to local governments containing entitlement lands.
    Section 6904 (31 U.S.C. 6904) payments means Federal payments 
disbursed to local governments for acquisitions or interest in lands 
acquired for addition to the National Park System or National Forest 
Wilderness Areas.
    Section 6905 (31 U.S.C. 6905) payments means Federal payments 
disbursed to local governments for lands in the Redwood National Park or 
Lake Tahoe Basin.



Sec. 44.12  Who is eligible to receive PILT payments?

    (a) Each local government containing entitlement lands may receive a 
PILT payment.
    (b) A local government may not receive a payment for land owned or 
administered by a State or local government that was exempt from real 
estate taxes when the land was conveyed to the United States. However, a 
local government may receive a PILT payment for land when:
    (1) A State or local government acquires from a private party to 
donate to the United States within eight years of acquisition;
    (2) A State acquires through an exchange with the United States if 
the land acquired was entitlement land; or
    (3) In the State of Utah, that the United States acquires for 
Federal land, royalties or other assets if, at the time of acquisition, 
a local government was entitled to receive payments in lieu of taxes 
from the State of Utah for the land; provided that the payment to the 
local government does not exceed the payment the State would have 
disbursed if the land had not been acquired.

       Payments to Local Governments Containing Entitlement Lands



Sec. 44.20  How does the Department process payments to local governments whose jurisdictions contain entitlement lands?

    This section describes how the Department processes payments to 
local governments whose jurisdictions contain entitlement lands (section 
6902 payments).
    (a) The Department:
    (1) Determines the eligibility of each local government, conferring 
when necessary with the Bureau of the Census, officials of appropriate 
State and local governments, and officials of the agency administering 
the entitlement land;
    (2) Computes the amount of the payment disbursed to each local 
government; and
    (3) Certifies the amount of the payment disbursed to each local 
government.
    (b) The Department disburses a payment each fiscal year to each 
local government containing entitlement lands.
    (c) The State of Alaska is required to distribute the payment it 
receives to home rule cities and general law cities (as such cities are 
defined by the State) that are located within the boundaries of the 
local government entitled to the payment.



Sec. 44.21  How does the Department calculate payments to local governments whose jurisdictions contain entitlement lands?

    (a) To calculate section 6902 payments, the Department obtains the 
necessary data on Federal and State payments from several sources:
    (1) Federal agencies provide the amount of entitlement land within 
the boundaries of each local government as of the last day of the fiscal 
year preceding the fiscal year for which the Department disburses the 
payment;
    (2) The Governor or designated official provides the amount of money 
transfers (land revenue sharing payments) disbursed by the State during 
the previous fiscal year to eligible local governments under the payment 
laws listed under 31 U.S.C. 6903(a)(1) and in paragraph (d) of this 
section; and
    (3) The Bureau of the Census provides statistics on the population 
of each local government.
    (b) The Department consults with the affected local government and 
the administering agency to resolve conflicts in land records and other 
data sources.
    (c) The Department calculates the amount of payment using:
    (1) The amount of actual appropriations;

[[Page 563]]

    (2) The formula in 31 U.S.C. 6903(b)(1), which includes inflation 
adjustments; and
    (3) Federal and State payments disbursed during the previous fiscal 
year to local governments under the land payment laws listed under 31 
U.S.C. 6903(a)(1).
    (d) The laws listed in 31 U.S.C. 6903(a)(1) and referred to in 
paragraphs (a) and (c) of this section are:
    (1) The Act of June 20, 1910 (Arizona and New Mexico Enabling Acts) 
(ch. 310, 36 Stat 557);
    (2) Section 33 of the Bankhead-Jones Farm Tenant Act (7 U.S.C. 
1012);
    (3) The Act of May 23, 1908 (Knutson-Vandenberg Act regarding Forest 
Service timber sales contracts) (16 U.S.C. 500);
    (4) Section 5 of the Act of June 22, 1948 (Payments to Minnesota 
from northern Minnesota National Forest receipts) (16 U.S.C. 577g-l);
    (5) Section 401(c)(2) of the Act of June 15, 1935 (Payments to local 
governments from National Wildlife Refuge System receipts) (16 U.S.C. 
715s(c)(2));
    (6) Section 17 of the Federal Power Act (16 U.S.C. 810);
    (7) Section 35 of the Act of February 25, 1920 (Mineral Leasing Act) 
(30 U.S.C. 191);
    (8) Section 6 of the Mineral Leasing Act for Acquired Lands (30 
U.S.C. 355);
    (9) Section 3 of the Act of July 31, 1947 (Materials Act of 1947) 
(30 U.S.C. 603); and
    (10) Section 10 of the Act of June 28, 1934 (Taylor Grazing Act) (43 
U.S.C. 315i).



Sec. 44.22  Are there any special circumstances that affect the way the Department calculates PILT payments?

    If a local government eligible for payments under this subpart 
reorganizes, the Department will:
    (a) Calculate payments for the fiscal year in which the 
reorganization occurred as if the reorganization had not occurred; and
    (b) Disburse any payment due to each new unit based on the amount of 
eligible acreage in that unit.



Sec. 44.23  How does the Department certify payment computations?

    (a) The Department will certify a payment computation only after 
receiving a statement showing all land revenue sharing payments that 
each local government received from the State during the previous fiscal 
year. As used in this paragraph, ``land revenue sharing payments'' means 
payments made from revenues derived from the payment laws listed under 
31 U.S.C. 6903(a)(1). The statement must:
    (1) Be signed by the Governor or a designated official of the State 
in which the local government is located; and
    (2) Be accompanied by a certification, signed by a State Auditor, an 
independent Certified Public Accountant, or an independent public 
accountant, that the statement has been audited in accordance with:
    (i) Auditing standards established by the U.S. Comptroller General 
in Standards of Audit of Governmental Organizations, Programs, 
Activities and Function, (available from the Superintendent of 
Documents, U.S. Government Printing Office, Washington, DC 20402); and
    (ii) The Audit Guide for Payments in Lieu of Taxes issued by the 
Department of the Interior.
    (b) The Department's Office of the Inspector General will assist the 
Department, under the provisions of sections 4 and 6 of the Inspector 
General Act of 1978 (5 U.S.C. Appendix), to implement and administer the 
audit requirements in paragraph (a)(2) of this section.
    (c) The Office of the Inspector General will:
    (1) Develop appropriate audit guidelines that State auditors, 
independent Certified Public Accountants, or independent public 
accountants must use to audit the statements of the Governors or their 
designated officials and to certify the audits; and
    (2) Furnish copies of the guides to the Governor or designated 
official each year. You should send questions on the use or application 
of this guide to the Office of Inspector General, U.S. Department of the 
Interior, Washington, DC 20240.
    (d) The Department may waive the requirement to certify audits if 
the

[[Page 564]]

General Accounting Office or the Office of the Inspector General 
verifies the information in statements the Governor or designated 
official furnishes or if the Department determines it is not necessary. 
Payments to Local Governments for Acquisitions or Interest in Lands 
Acquired for Addition to the National Park System or National Forest 
Wilderness Areas (31 U.S.C. 6904).



Sec. 44.30  How does the Department make payments for acquired lands?

    This section describes how the Department disburses payments for 
Acquisitions or Interest in Lands Acquired for Addition to the National 
Park System or National Forest Wilderness Areas (section 6904 payments).
    (a) The Department disburses section 6904 payments to qualified 
local governments only if the administering agency supplies the 
following information for each qualified local government:
    (1) Acreage or interests in land for which the payments are 
authorized; and
    (2) Any other information the Department may require to certify 
payments to each qualified local government.
    (b) The Department disburses payments under this section only for a 
period of 5 years from the date the land was conveyed to the United 
States.



Sec. 44.31  How does the Department calculate payments for acquired lands?

    The Department calculates section 6904 payments by determining 1 
percent of the fair market value of the purchased land and comparing the 
result to the amount of real estate taxes paid on the land in the year 
before Federal acquisition. The payment to qualified local governments 
will be the lesser of the two.

   Payments to Local Governments for Interest in Lands in the Redwood 
                    National Park or Lake Tahoe Basin



Sec. 44.40  How does the Department process payments for lands in the Redwood National Park or Lake Tahoe Basin?

    This section describes how the Department disburses payments for 
lands in the Redwood National Park or Lake Tahoe Basin (section 6905 
payments).
    (a) The Department disburses payments to qualified local governments 
only if the administering agency supplies the following information for 
each qualified local government:
    (1) Acreage or interests in land for which the payments are 
authorized; and
    (2) Any other information the Department may require to certify 
payments to each qualified local government.
    (b) The Department disburses payments until 5 percent of the fair 
market value is paid in full.



Sec. 44.41  How does the Department calculate payments for lands in the Redwood National Park or Lake Tahoe Basin?

    (a) The Department calculates section 6905 payments by determining 1 
percent of the fair market value of the purchased land and comparing the 
result to the amount of real estate taxes paid on the land in the year 
prior to Federal acquisition. The payment to qualified units of general 
local government will be the lesser of the two.
    (b) The Department disburses payments annually for a period of 5 
years beginning in the year immediately following the year of Federal 
acquisition of the land or interest.
    (1) The difference, if any, between the amounts actually paid during 
each of the 5 years and 1 percent of the fair market value will be 
deferred to future years. However, a payment or any portion of a payment 
not paid because Congress appropriated insufficient monies will not be 
deferred.
    (2) The Department will begin annual payment of the deferred amount 
(calculated the same as in paragraph (a) of this section) starting with 
the sixth

[[Page 565]]

fiscal year following Federal acquisition.
    (3) The Department disburses payment of the deferred amount until 
the total amount deferred during the first 5 years is paid in full.

   State and Local Governments' Responsibilities After the Department 
                          Distributes Payments



Sec. 44.50  What are the local governments' responsibilities after receiving payments under this part?

    (a) The local government may use section 6902 payments for any 
governmental purpose.
    (b) Within 90 days of receiving sections 6904 and 6905 payments, the 
local government must distribute the funds to the affected units of 
general local government and affected school districts. The affected 
units of general local government and school districts may use sections 
6904 and 6905 payments for any governmental purpose.
    (c) The local government must distribute section 6904 and 6905 
payments in proportion to the tax revenues assessed and levied by the 
affected units of general local government and school districts in the 
Federal fiscal year before the Federal Government acquired the 
entitlement lands. The Redwoods Community College District in California 
is an affected school district for this purpose.
    (d) Within 120 days of receiving payments, the local government must 
certify to the Department that it has made an appropriate distribution 
of funds.



Sec. 44.51  Are there general procedures applicable to all PILT payments?

    (a) The minimum payment that the Department will disburse to any 
local government is $100.00 (one hundred dollars).
    (b) If Congress appropriates insufficient monies to provide full 
payment to each local government during any fiscal year, the Department 
will reduce proportionally all payments in that fiscal year.



Sec. 44.52  May a State enact legislation to reallocate or redistribute PILT payments?

    A State may enact legislation to reallocate or redistribute PILT 
payments. If a State enacts legislation, it must:
    (a) Notify the Department if the legislation requires reallocating 
or redistributing payments to smaller units of general local government 
(see 31 U.S.C. 6907);
    (b) Provide the Department a copy of the legislation within 60 days 
of enactment;
    (c) Provide the name and address of the State government office to 
which the Department should send the payment;
    (d) Distribute funds to its smaller units of general local 
government within 30 days of receiving the payment; and
    (e) Not reduce the payment made to smaller units of general local 
government to pay the cost of State legislation which reallocates or 
redistributes payments.



Sec. 44.53  What will the Department do if a State enacts distribution legislation?

    If a State enacts distribution legislation, the Department will:
    (a) Notify the State that a single payment will be disbursed to the 
designated State government office beginning with the Federal fiscal 
year following the fiscal year in which the State enacted legislation; 
and
    (b) Provide the State with information that identifies the 
entitlement lands data on which the Department bases the payment.



Sec. 44.54  What happens if a State repeals or amends distribution legislation?

    (a) If a State repeals or amends distribution legislation, the State 
must immediately notify the Department in writing of this fact and send 
the Department a copy of the new law.
    (b) When the Department receives a notification under paragraph (a) 
of this section, it must:
    (1) Determine if the State's process complies with 31 U.S.C. 6907. 
If the Department determines that it does not, we must notify the 
designated State

[[Page 566]]

government office that the Department will disburse payment directly to 
the eligible local governments; and
    (2) Start the payments:
    (i) In the current Federal fiscal year, if the Department receives a 
copy of the State's amendatory legislation before July 1; or
    (ii) Start the payments in the next Federal fiscal year, if the 
Department receives a copy of the State's amendatory legislation after 
July 1.



Sec. 44.55  Can a unit of general local government protest the results of payment computations?

    Any affected local government may file a protest with the 
Department.



Sec. 44.56  How does a unit of general local government file a protest?

    The protesting local government must:
    (a) Submit evidence to indicate the possibility of errors in the 
computations or the data on which the Department bases the computations; 
and
    (b) File the protest by the first business day of the calendar year 
following the end of the fiscal year for which the Department made the 
payments.



Sec. 44.57  Can a unit of general local government appeal a rejection of a protest?

    Any affected local government may appeal the Department's decision 
to reject a protest to the Interior Board of Land Appeals under 43 CFR 
part 4.



PART 45_CONDITIONS AND PRESCRIPTIONS IN FERC HYDROPOWER LICENSES--Table of Contents



                      Subpart A_General Provisions

Sec.
45.1 What is the purpose of this part, and to what license proceedings 
          does it apply?
45.2 What terms are used in this part?
45.3 How are time periods computed?
45.4 What deadlines apply to pending applications?

                        Subpart B_Hearing Process

                             Representatives

45.10 Who may represent a party, and what requirements apply to a 
          representative?

                       Document Filing and Service

45.11 What are the form and content requirements for documents under 
          this subpart?
45.12 Where and how must documents be filed?
45.13 What are the requirements for service of documents?

                      Initiation of Hearing Process

45.20 What supporting information must a bureau provide with its 
          preliminary conditions or prescriptions?
45.21 How do I request a hearing?
45.22 How do I file a notice of intervention and response?
45.23 When will hearing requests be consolidated?
45.24 How will the bureau respond to any hearing requests?
45.25 What will DOI do with any hearing requests?
45.26 What regulations apply to a case referred for a hearing?

                 General Provisions Related to Hearings

45.30 What will the Hearings Division do with a case referral?
45.31 What are the powers of the ALJ?
45.32 What happens if the ALJ becomes unavailable?
45.33 Under what circumstances may the ALJ be disqualified?
45.34 What is the law governing ex parte communications?
45.35 What are the requirements for motions?

                  Prehearing Conferences and Discovery

45.40 What are the requirements for prehearing conferences?
45.41 How may parties obtain discovery of information needed for the 
          case?
45.42 When must a party supplement or amend information it has 
          previously provided?
45.43 What are the requirements for written interrogatories?
45.44 What are the requirements for depositions?
45.45 What are the requirements for requests for documents or tangible 
          things or entry on land?
45.46 What sanctions may the ALJ impose for failure to comply with 
          discovery?
45.47 What are the requirements for subpoenas and witness fees?

                     Hearing, Briefing, and Decision

45.50 When and where will the hearing be held?
45.51 What are the parties' rights during the hearing?
45.52 What are the requirements for presenting testimony?

[[Page 567]]

45.53 How may a party use a deposition in the hearing?
45.54 What are the requirements for exhibits, official notice, and 
          stipulations?
45.55 What evidence is admissible at the hearing?
45.56 What are the requirements for transcription of the hearing?
45.57 What is the standard of proof?
45.58 When will the hearing record close?
45.59 What are the requirements for post-hearing briefs?
45.60 What are the requirements for the ALJ's decision?

                     Subpart C_Alternatives Process

45.70 How must documents be filed and served under this subpart?
45.71 How do I propose an alternative?
45.72 What will the bureau do with a proposed alternative?
45.73 How will the bureau analyze a proposed alternative and formulate 
          its modified condition or prescription?
45.74 Has OMB approved the information collection provisions of this 
          subpart?

    Authority: 16 U.S.C. 797(e), 811, 823d.

    Source: 70 FR 69829, Nov. 17, 2005, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 45.1  What is the purpose of this part, and to what license proceedings does it apply?

    (a) Hearing process. (1) The regulations in subparts A and B of this 
part contain rules of practice and procedure applicable to hearings on 
disputed issues of material fact with respect to mandatory conditions 
and prescriptions that the Department of the Interior (DOI) may develop 
for inclusion in a hydropower license issued under subchapter I of the 
Federal Power Act (FPA), 16 U.S.C. 791 et seq. The authority to develop 
these conditions and prescriptions is granted by FPA sections 4(e) and 
18, 16 U.S.C. 797(e) and 811, which authorize the Secretary of the 
Interior to condition hydropower licenses issued by the Federal Energy 
Regulatory Commission (FERC) and to prescribe fishways.
    (2) The hearing process under this part does not apply to 
recommendations that DOI may submit to FERC under FPA section 10(a) or 
(j), 16 U.S.C. 803(a), (j).
    (3) The FPA also grants the Department of Agriculture the authority 
to develop mandatory conditions, and the Department of Commerce the 
authority to develop mandatory prescriptions, for inclusion in a 
hydropower license. Where DOI and either or both of these other 
Departments develop conditions or prescriptions to be included in the 
same hydropower license and where the Departments agree to consolidate 
the hearings under Sec. 45.23:
    (i) A hearing conducted under this part will also address disputed 
issues of material fact with respect to any condition or prescription 
developed by one of the other Departments; or
    (ii) A hearing requested under this part will be conducted by one of 
the other Departments, pursuant to 7 CFR 1.601 et seq. or 50 CFR 221.1 
et seq., as applicable.
    (4) The regulations in subparts A and B of this part will be 
construed and applied to each hearing process to achieve a just and 
speedy determination, consistent with adequate consideration of the 
issues involved and the provisions of Sec. 45.60(a).
    (b) Alternatives process. The regulations in subparts A and C of 
this part contain rules of procedure applicable to the submission and 
consideration of alternative conditions and prescriptions under FPA 
section 33, 16 U.S.C. 823d. That section allows any party to the license 
proceeding to propose an alternative to a condition deemed necessary by 
DOI under section 4(e) or a fishway prescribed by DOI under section 18.
    (c) Reservation of authority. Where DOI notifies FERC that it is 
reserving its authority to develop one or more conditions or 
prescriptions during the term of the license, the hearing and 
alternatives processes under this part for such conditions or 
prescriptions will be available if and when DOI exercises its reserved 
authority. DOI will consult with FERC and notify the license parties 
regarding how to initiate the hearing process and alternatives process 
at that time.
    (d) Applicability. (1) This part applies to any hydropower license 
proceeding for which the license has not been issued as of November 17, 
2005 and for

[[Page 568]]

which one or more preliminary conditions, conditions, preliminary 
prescriptions, or prescriptions have been or are filed with FERC.
    (2) If DOI has already filed one or more preliminary conditions, 
conditions, preliminary prescriptions, or prescriptions as of November 
17, 2005, the special applicability provisions of Sec. 45.4 also apply.



Sec. 45.2  What terms are used in this part?

    As used in this part:
    ALJ means an administrative law judge appointed under 5 U.S.C. 3105 
and assigned to preside over the hearing process under subpart B of this 
part.
    Alternative means a condition or prescription that a license party 
other than a bureau or Department develops as an alternative to a 
preliminary condition or prescription from a bureau or Department, under 
FPA sec. 33, 16 U.S.C. 823d.
    Bureau means any of the following organizations within DOI that 
develops a preliminary condition or prescription: the Bureau of Indian 
Affairs, Bureau of Land Management, Bureau of Reclamation, Fish and 
Wildlife Service, or National Park Service.
    Condition means a condition under FPA sec. 4(e), 16 U.S.C. 797(e), 
for the adequate protection and utilization of a reservation.
    Day means a calendar day.
    Department means the Department of Agriculture, Department of 
Commerce, or Department of the Interior.
    Discovery means a prehearing process for obtaining facts or 
information to assist a party in preparing or presenting its case.
    DOI means the Department of the Interior, including any bureau, 
unit, or office of the Department, whether in Washington, DC, or in the 
field.
    Ex parte communication means an oral or written communication to the 
ALJ that is made without providing all parties reasonable notice and an 
opportunity to participate.
    FERC means the Federal Energy Regulatory Commission.
    FPA means the Federal Power Act, 16 U.S.C. 791 et seq.
    Hearings Division means the Departmental Cases Hearings Division, 
Office of Hearings and Appeals, Department of the Interior, 139 E. South 
Temple, Suite 600, Salt Lake City, Utah 84111, telephone 801-524-5344, 
facsimile number 801-524-5539.
    Intervention means a process by which a person who did not request a 
hearing under Sec. 45.21 can participate as a party to the hearing 
under Sec. 45.22.
    License party means a party to the license proceeding, as that term 
is defined at 18 CFR 385.102(c).
    License proceeding means a proceeding before FERC for issuance of a 
license for a hydroelectric facility under 18 CFR parts 4 or 5.
    Material fact means a fact that, if proved, may affect a 
Department's decision whether to affirm, modify, or withdraw any 
condition or prescription.
    NEPA document means an environmental assessment or environmental 
impact statement issued to comply with the requirements of the National 
Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq.
    OEPC means the Office of Environmental Policy and Compliance, 
Department of the Interior, 1849 C Street, NW., Mail Stop 2342, 
Washington, DC 20240, telephone 202-208-3891, facsimile number 202-208-
6970.
    Party means, with respect to DOI's hearing process under subpart B 
of this part:
    (1) A license party that has filed a timely request for a hearing 
under:
    (i) Section 45.21; or
    (ii) Either 7 CFR 1.621 or 50 CFR 221.21, with respect to a hearing 
process consolidated under Sec. 45.23;
    (2) A license party that has filed a timely notice of intervention 
and response under:
    (i) Section 45.22; or
    (ii) Either 7 CFR 1.622 or 50 CFR 221.22, with respect to a hearing 
process consolidated under Sec. 45.23;
    (3) Any bureau that has filed a preliminary condition or 
prescription; and
    (4) Any other Department that has filed a preliminary condition or 
prescription, with respect to a hearing process consolidated under Sec. 
45.23.
    Person means an individual; a partnership, corporation, association, 
or other legal entity; an unincorporated organization; and any federal, 
state,

[[Page 569]]

tribal, county, district, territorial, or local government or agency.
    Preliminary condition or prescription means a preliminary condition 
or prescription filed by a Department with FERC under 18 CFR 4.34(b), 
4.34(i), or 5.22(a) for potential inclusion in a hydropower license.
    Prescription means a fishway prescribed under FPA sec. 18, 16 U.S.C. 
811, to provide for the safe, timely, and effective passage of fish.
    Representative means a person who:
    (1) Is authorized by a party to represent the party in a hearing 
process under this subpart; and
    (2) Has filed an appearance under Sec. 45.10.
    Reservation has the same meaning as the term ``reservations'' in FPA 
sec. 3(2), 16 U.S.C. 796(2).
    Secretary means the Secretary of the Interior or his or her 
designee.
    Senior Department employee has the same meaning as the term ``senior 
employee'' in 5 CFR 2637.211(a).
    You refers to a party other than a Department.



Sec. 45.3  How are time periods computed?

    (a) General. Time periods are computed as follows:
    (1) The day of the act or event from which the period begins to run 
is not included.
    (2) The last day of the period is included.
    (i) If that day is a Saturday, Sunday, or federal holiday, the 
period is extended to the next business day.
    (ii) The last day of the period ends at 5 p.m. at the place where 
the filing or other action is due.
    (3) If the period is less than 7 days, any Saturday, Sunday, or 
federal holiday that falls within the period is not included.
    (b) Extensions of time. (1) No extension of time can be granted to 
file a request for a hearing under Sec. 45.21, a notice of intervention 
and response under Sec. 45.22, an answer under Sec. 45.24, or any 
document under subpart C of this part.
    (2) An extension of time to file any other document under subpart B 
of this part may be granted only upon a showing of good cause.
    (i) To request an extension of time, a party must file a motion 
under Sec. 45.35 stating how much additional time is needed and the 
reasons for the request.
    (ii) The party must file the motion before the applicable time 
period expires, unless the party demonstrates extraordinary 
circumstances that justify a delay in filing.
    (iii) The ALJ may grant the extension only if:
    (A) It would not unduly prejudice other parties; and
    (B) It would not delay the decision under Sec. 45.60.



Sec. 45.4  What deadlines apply to pending applications?

    (a) Applicability. (1) This section applies to any case in which a 
bureau has filed a preliminary condition, condition, preliminary 
prescription, or prescription with FERC before November 17, 2005 and 
FERC has not issued a license as of that date.
    (2) The deadlines in this section will apply in such a case, in lieu 
of any inconsistent deadline in other sections of this part.
    (b) Hearing process. (1) Any request for a hearing under Sec. 45.21 
must be filed with OEPC by December 19, 2005.
    (2) Any notice of intervention and response under Sec. 45.22 must 
be filed by January 3, 2006.
    (3) Upon receipt of a hearing request under paragraph (b)(1) of this 
section, the bureau must do the following by March 17, 2006:
    (i) Comply with the requirements of Sec. 45.23;
    (ii) Determine jointly with any other bureau or Department that has 
received a hearing request, after consultation with FERC, a time frame 
for the hearing process and a corresponding deadline for the bureau to 
file an answer under Sec. 45.24; and
    (iii) Issue a notice to each party specifying the time frame for the 
hearing process, including the deadline for the bureau to file an 
answer.
    (c) Alternatives process. (1) Any alternative under Sec. 45.71 must 
be filed with OEPC by December 19, 2005.
    (2) Upon receipt of an alternative under paragraph (c)(1) of this 
section, if no hearing request is filed under paragraph (b)(1) of this 
section, the bureau must do the following by February 15, 2006:

[[Page 570]]

    (i) Determine jointly with any other bureau or Department that has 
received a related alternative, after consultation with FERC, a time 
frame for the filing of a modified condition or prescription under Sec. 
45.72(b); and
    (ii) Issue a notice to the license party that has submitted the 
alternative, specifying the time frame for the filing of a modified 
condition or prescription.
    (3) Upon receipt of an alternative under paragraph (c)(1) of this 
section, if a hearing request is also filed under paragraph (b)(1) of 
this section, the bureau will follow the provisions of paragraph (b)(3) 
of this section.



                        Subpart B_Hearing Process

                             Representatives



Sec. 45.10  Who may represent a party, and what requirements apply to a representative?

    (a) Individuals. A party who is an individual may either represent 
himself or herself in the hearing process under this subpart or 
authorize an attorney to represent him or her.
    (b) Organizations. A party that is an organization or other entity 
may authorize one of the following to represent it:
    (1) An attorney;
    (2) A partner, if the entity is a partnership;
    (3) An officer or full-time employee, if the entity is a 
corporation, association, or unincorporated organization;
    (4) A receiver, administrator, executor, or similar fiduciary, if 
the entity is a receivership, trust, or estate; or
    (5) An elected or appointed official or an employee, if the entity 
is a federal, state, tribal, county, district, territorial, or local 
government or component.
    (c) Appearance. A representative must file a notice of appearance. 
The notice must:
    (1) Meet the form and content requirements for documents under Sec. 
45.11;
    (2) Include the name and address of the person on whose behalf the 
appearance is made;
    (3) If the representative is an attorney, include a statement that 
he or she is a member in good standing of the bar of the highest court 
of a state, the District of Columbia, or any territory or commonwealth 
of the United States (identifying which one); and
    (4) If the representative is not an attorney, include a statement 
explaining his or her authority to represent the entity.
    (d) Disqualification. The ALJ may disqualify any representative for 
misconduct or other good cause.

                       Document Filing and Service



Sec. 45.11  What are the form and content requirements for documents under this subpart?

    (a) Form. Each document filed in a case under this subpart must:
    (1) Measure 8\1/2\ by 11 inches, except that a table, chart, 
diagram, or other attachment may be larger if folded to 8\1/2\ by 11 
inches and attached to the document;
    (2) Be printed on just one side of the page;
    (3) Be clearly typewritten, printed, or otherwise reproduced by a 
process that yields legible and permanent copies;
    (4) Use 10 point font size or larger;
    (5) Be double-spaced except for footnotes and long quotations, which 
may be single-spaced;
    (6) Have margins of at least 1 inch; and
    (7) Be bound on the left side, if bound.
    (b) Caption. Each document filed under this subpart must begin with 
a caption that sets forth:
    (1) The name of the case under this subpart and the docket number, 
if one has been assigned;
    (2) The name and docket number of the license proceeding to which 
the case under this subpart relates; and
    (3) A descriptive title for the document, indicating the party for 
whom it is filed and the nature of the document.
    (c) Signature. The original of each document filed under this 
subpart must be signed by the representative of the person for whom the 
document is filed. The signature constitutes a certification by the 
representative that he or she has read the document; that to the best of 
his or her knowledge, information, and belief, the statements made in 
the document are true; and that the document is not being filed for the 
purpose of causing delay.

[[Page 571]]

    (d) Contact information. Below the representative's signature, the 
document must provide the representative's name, mailing address, street 
address (if different), telephone number, facsimile number (if any), and 
electronic mail address (if any).



Sec. 45.12  Where and how must documents be filed?

    (a) Place of filing. Any documents relating to a case under this 
subpart must be filed with the appropriate office, as follows:
    (1) Before OEPC refers a case for docketing under Sec. 45.25, any 
documents must be filed with OEPC. OEPC's address, telephone number, and 
facsimile number are set forth in Sec. 45.2.
    (2) OEPC will notify the parties of the date on which it refers a 
case for docketing under Sec. 45.25. After that date, any documents 
must be filed with:
    (i) The Hearings Division, if DOI will be conducting the hearing. 
The Hearings Division's address, telephone number, and facsimile number 
are set forth in Sec. 45.2; or
    (ii) The hearings component of or used by another Department, if 
that Department will be conducting the hearing under Sec. 45.25. The 
name, address, telephone number, and facsimile number of the appropriate 
hearings component will be provided in the referral notice from OEPC.
    (b) Method of filing. (1) A document must be filed with the 
appropriate office under paragraph (a) of this section using one of the 
following methods:
    (i) By hand delivery of the original document;
    (ii) By sending the original document by express mail or courier 
service for delivery on the next business day; or
    (iii) By sending the document by facsimile if:
    (A) The document is 20 pages or less, including all attachments;
    (B) The sending facsimile machine confirms that the transmission was 
successful; and
    (C) The original of the document is sent by regular mail on the same 
day.
    (2) Parties are encouraged, but not required, to supplement any 
filing by providing the appropriate office with an electronic copy of 
the document on diskette or compact disc.
    (c) Date of filing. A document under this subpart is considered 
filed on the date it is received. However, any document received after 5 
p.m. at the place where the filing is due is considered filed on the 
next regular business day.
    (d) Nonconforming documents. If any document submitted for filing 
under this subpart does not comply with the requirements of this subpart 
or any applicable order, it may be rejected. If the defect is minor, the 
party may be notified of the defect and given a chance to correct it.



Sec. 45.13  What are the requirements for service of documents?

    (a) Filed documents. Any document related to a case under this 
subpart must be served at the same time the document is delivered or 
sent for filing. Copies must be served as follows:
    (1) A complete copy of any request for a hearing under Sec. 45.21 
must be served on FERC and each license party, using one of the methods 
of service in paragraph (c) of this section.
    (2) A complete copy of any notice of intervention and response under 
Sec. 45.22 must be:
    (i) Served on FERC, the license applicant, any person who has filed 
a request for hearing under Sec. 45.21, and any bureau, using one of 
the methods of service in paragraph (c) of this section; and
    (ii) Sent to any other license party using regular mail.
    (3) A complete copy of any other filed document must be served on 
each party, using one of the methods of service in paragraph (c) of this 
section.
    (b) Documents issued by the Hearings Division or ALJ. A complete 
copy of any notice, order, decision, or other document issued by the 
Hearings Division or the ALJ under this subpart must be served on each 
party, using one of the methods of service in paragraph (c) of this 
section.
    (c) Method of service. Service must be accomplished by one of the 
following methods:
    (1) By hand delivery of the document;
    (2) By sending the document by express mail or courier service for 
delivery on the next business day; or
    (3) By sending the document by facsimile if:

[[Page 572]]

    (i) The document is 20 pages or less, including all attachments;
    (ii) The sending facsimile machine confirms that the transmission 
was successful; and
    (iii) The document is sent by regular mail on the same day.
    (d) Certificate of service. A certificate of service must be 
attached to each document filed under this subpart. The certificate must 
be signed by the party's representative and include the following 
information:
    (1) The name, address, and other contact information of each party's 
representative on whom the document was served;
    (2) The means of service, including information indicating 
compliance with paragraph (c)(3) or (c)(4) of this section, if 
applicable; and
    (3) The date of service.

                      Initiation of Hearing Process



Sec. 45.20  What supporting information must a bureau provide with its preliminary conditions or prescriptions?

    (a) Supporting information. (1) When any bureau files a preliminary 
condition or prescription with FERC, it must include a rationale for the 
condition or prescription and an index to the bureau's administrative 
record that identifies all documents relied upon.
    (2) If any of the documents relied upon are not already in the 
license proceeding record, the bureau must:
    (i) File them with FERC at the time it files the preliminary 
condition or prescription;
    (ii) Provide copies to the license applicant; and
    (iii) In the case of a condition developed by the Bureau of Indian 
Affairs, provide copies to the affected tribe.
    (b) Service. In addition to serving a copy of its preliminary 
condition or prescription on each license party, the bureau must provide 
a copy to OEPC if and when a request for a hearing is filed with respect 
to the preliminary condition or prescription.



Sec. 45.21  How do I request a hearing?

    (a) General. To request a hearing on disputed issues of material 
fact with respect to any condition or prescription filed by a bureau, 
you must:
    (1) Be a license party; and
    (2) File with OEPC a written request for a hearing within 30 days 
after the deadline for the Departments to file preliminary conditions or 
prescriptions with FERC.
    (b) Content. Your hearing request must contain:
    (1) A numbered list of the factual issues that you allege are in 
dispute, each stated in a single, concise sentence; and
    (2) The following information with respect to each issue:
    (i) The specific factual statements made or relied upon by the 
bureau under Sec. 45.20(a) that you dispute;
    (ii) The basis for your opinion that those factual statements are 
unfounded or erroneous;
    (iii) The basis for your opinion that any factual dispute is 
material; and
    (iv) With respect to any scientific studies, literature, and other 
documented information supporting your opinions under paragraphs 
(b)(2)(ii) and (b)(2)(iii) of this section, specific citations to the 
information relied upon. If any such document is not already in the 
license proceeding record, you must provide a copy with the request.
    (c) Witnesses and exhibits. Your hearing request must also list the 
witnesses and exhibits that you intend to present at the hearing, other 
than solely for impeachment purposes.
    (1) For each witness listed, you must provide:
    (i) His or her name, address, telephone number, and qualifications; 
and
    (ii) A brief narrative summary of his or her expected testimony.
    (2) For each exhibit listed, you must specify whether it is in the 
license proceeding record.
    (d) Page limits. (1) For each disputed factual issue, the 
information provided under paragraph (b)(2) of this section may not 
exceed two pages.
    (2) For each witness, the information provided under paragraph 
(c)(1) of this section may not exceed one page.



Sec. 45.22  How do I file a notice of intervention and response?

    (a) General. (1) To intervene as a party to the hearing process, you 
must:
    (i) Be a license party; and

[[Page 573]]

    (ii) File with OEPC a notice of intervention and a written response 
to any request for a hearing within 15 days after the date of service of 
the request for a hearing.
    (2) A license party filing a notice of intervention and response may 
not raise issues of material fact beyond those raised in the hearing 
request.
    (b) Content. In your notice of intervention and response you must 
explain your position with respect to the issues of material fact raised 
in the hearing request under Sec. 45.21(b).
    (1) If you agree with the information provided by the bureau under 
Sec. 45.20(a) or by the requester under Sec. 45.21(b), your response 
may refer to the bureau's explanation or the requester's hearing request 
for support.
    (2) If you wish to rely on additional information or analysis, your 
response must provide the same level of detail with respect to the 
additional information or analysis as required under Sec. 45.21(b).
    (c) Witnesses and exhibits. Your response and notice must also list 
the witnesses and exhibits that you intend to present at the hearing, 
other than solely for impeachment purposes.
    (1) For each witness listed, you must provide:
    (i) His or her name, address, telephone number, and qualifications; 
and
    (ii) A brief narrative summary of his or her expected testimony; and
    (2) For each exhibit listed, you must specify whether it is in the 
license proceeding record.
    (d) Page limits. (1) For each disputed factual issue, the 
information provided under paragraph (b) of this section may not exceed 
two pages.
    (2) For each witness, the information provided under paragraph 
(c)(1) of this section may not exceed one page.



Sec. 45.23  When will hearing requests be consolidated?

    (a) Initial Department coordination. Any bureau that has received a 
copy of a hearing request must contact the other bureaus and Departments 
within 10 days after the deadline for filing hearing requests under 
Sec. 45.21 and determine:
    (1) Whether any of the other bureaus or Departments has also filed a 
preliminary condition or prescription relating to the license with FERC; 
and
    (2) If so, whether the other bureau or Department has also received 
a hearing request with respect to the preliminary condition or 
prescription.
    (b) Decision on consolidation. Within 25 days after the deadline for 
filing hearing requests under Sec. 45.21, any bureau or Department that 
has received a hearing request must:
    (1) Consult with any other bureau or Department that has also 
received a hearing request; and
    (2) Decide jointly with the other bureau or Department:
    (i) Whether to consolidate the cases for hearing under paragraphs 
(c)(3)(ii) through (c)(3)(iv) of this section; and
    (ii) If so, which Department will conduct the hearing on their 
behalf.
    (c) Criteria. Cases will or may be consolidated as follows:
    (1) All hearing requests with respect to any conditions from the 
same Department will be consolidated for hearing.
    (2) All hearing requests with respect to any prescriptions from the 
same Department will be consolidated for hearing.
    (3) Any or all of the following may be consolidated for hearing, if 
the bureaus and Departments involved determine that there are common 
issues of material fact or that consolidation is otherwise appropriate:
    (i) Two or more hearing requests with respect to any condition and 
any prescription from the same Department;
    (ii) Two or more hearing requests with respect to conditions from 
different Departments;
    (iii) Two or more hearing requests with respect to prescriptions 
from different Departments; or
    (iv) Two or more hearing requests with respect to any condition from 
one Department and any prescription from another Department.



Sec. 45.24  How will the bureau respond to any hearing requests?

    (a) General. Within 45 days after the deadline in Sec. 45.21(a)(2), 
the bureau may file with OEPC an answer to any hearing request under 
Sec. 45.21.

[[Page 574]]

    (b) Content. If the bureau files an answer:
    (1) For each of the numbered factual issues listed under Sec. 
45.21(b)(1), the answer must explain the bureau's position with respect 
to the issues of material fact raised by the requester, including one or 
more of the following statements as appropriate:
    (i) That the bureau is willing to stipulate to the facts as alleged 
by the requester;
    (ii) That the bureau believes the issue listed by the requester is 
not a factual issue, explaining the basis for such belief;
    (iii) That the bureau believes the issue listed by the requester is 
not material, explaining the basis for such belief; or
    (iv) That the bureau agrees that the issue is factual, material, and 
in dispute.
    (2) The answer must also indicate whether the hearing request will 
be consolidated with one or more other hearing requests under Sec. 
45.23 and, if so:
    (i) Identify any other hearing request that will be consolidated 
with this hearing request; and
    (ii) State which Department will conduct the hearing and provide 
contact information for the appropriate Department hearings component.
    (c) Witnesses and exhibits. The bureau's answer must also list the 
witnesses and exhibits that it intends to present at the hearing, other 
than solely for impeachment purposes.
    (1) For each witness listed, the bureau must provide:
    (i) His or her name, address, telephone number, and qualifications; 
and
    (ii) A brief narrative summary of his or her expected testimony.
    (2) For each exhibit listed, the bureau must specify whether it is 
in the license proceeding record.
    (d) Page limits. (1) For each disputed factual issue, the 
information provided under paragraph (b)(1) of this section may not 
exceed two pages.
    (2) For each witness, the information provided under paragraph 
(c)(1) of this section may not exceed one page.
    (e) Notice in lieu of answer. If the bureau elects not to file an 
answer to a hearing request:
    (1) The bureau is deemed to agree that the issues listed by the 
requester are factual, material, and in dispute;
    (2) The bureau may file a list of witnesses and exhibits with 
respect to the request only as provided in Sec. 45.42(b); and
    (3) The bureau must file a notice containing the information 
required by paragraph (b)(2) of this section, if the hearing request 
will be consolidated with one or more other hearing requests under Sec. 
45.23.



Sec. 45.25  What will DOI do with any hearing requests?

    (a) Case referral. Within 5 days after receipt of the bureau's 
answer, OEPC will refer the case for a hearing as follows:
    (1) If the hearing is to be conducted by DOI, OEPC will refer the 
case to the Hearings Division.
    (2) If the hearing is to be conducted by another Department, OEPC 
will refer the case to the hearings component used by that Department.
    (b) Content. The case referral will consist of the following:
    (1) A copy of any preliminary condition or prescription under Sec. 
45.20;
    (2) The original of any hearing request under Sec. 45.21;
    (3) The original of any notice of intervention and response under 
Sec. 45.22;
    (4) The original of any answer under Sec. 45.24; and
    (5) An original referral notice under paragraph (c) of this section.
    (c) Notice. At the time OEPC refers the case for a hearing, it must 
provide a referral notice that contains the following information:
    (1) The name, address, telephone number, and facsimile number of the 
Department hearings component that will conduct the hearing;
    (2) The name, address, and other contact information for the 
representative of each party to the hearing process;
    (3) An identification of any other hearing request that will be 
consolidated with this hearing request; and
    (4) The date on which OEPC is referring the case for docketing.
    (d) Delivery and service. (1) OEPC must refer the case to the 
appropriate Department hearings component by

[[Page 575]]

one of the methods identified in Sec. 45.12(b)(1)(i) and (b)(1)(ii).
    (2) OEPC must serve a copy of the referral notice on FERC and each 
party to the hearing by one of the methods identified in Sec. 
45.13(c)(1) and (c)(2).



Sec. 45.26  What regulations apply to a case referred for a hearing?

    (a) If OEPC refers the case to the Hearings Division, the 
regulations in this subpart will continue to apply to the hearing 
process.
    (b) If OEPC refers the case to the United States Department of 
Agriculture's Office of Administrative Law Judges, the regulations at 7 
CFR 1.601 et seq. will apply from that point on.
    (c) If OEPC refers the case to the Department of Commerce's 
designated ALJ office, the regulations at 50 CFR 221.1 et seq. will 
apply from that point on.

                 General Provisions Related to Hearings



Sec. 45.30  What will the Hearings Division do with a case referral?

    Within 5 days after issuance of the referral notice under Sec. 
45.25(c), 7 CFR 1.625(c), or 50 CFR 221.25(c):
    (a) The Hearings Division must:
    (1) Docket the case;
    (2) Assign an ALJ to preside over the hearing process and issue a 
decision; and
    (3) Issue a docketing notice that informs the parties of the docket 
number and the ALJ assigned to the case; and
    (b) The ALJ must issue a notice setting the time, place, and method 
for conducting an initial prehearing conference under Sec. 45.40. This 
notice may be combined with the docketing notice under paragraph (a)(3) 
of this section.



Sec. 45.31  What are the powers of the ALJ?

    The ALJ will have all powers necessary to conduct a fair, orderly, 
expeditious, and impartial hearing process, consistent with the 
requirements of Sec. 45.60(a), including the powers to:
    (a) Administer oaths and affirmations;
    (b) Issue subpoenas to the extent authorized by law;
    (c) Rule on motions;
    (d) Authorize discovery as provided for in this subpart;
    (e) Hold hearings and conferences;
    (f) Regulate the course of hearings;
    (g) Call and question witnesses;
    (h) Exclude any person from a hearing or conference for misconduct 
or other good cause;
    (i) Issue a decision consistent with Sec. 45.60(b) regarding any 
disputed issues of material fact relating to any bureau's or other 
Department's condition or prescription that has been referred to the ALJ 
for hearing; and
    (j) Take any other action authorized by law.



Sec. 45.32  What happens if the ALJ becomes unavailable?

    (a) If the ALJ becomes unavailable or otherwise unable to perform 
the duties described in Sec. 45.31, the Hearings Division shall 
designate a successor.
    (b) If a hearing has commenced and the ALJ cannot proceed with it, a 
successor ALJ may do so. At the request of a party, the successor ALJ 
may recall any witness whose testimony is material and disputed, and who 
is available to testify again without undue burden. The successor ALJ 
may, within his or her discretion, recall any other witness.



Sec. 45.33  Under what circumstances may the ALJ be disqualified?

    (a) The ALJ may withdraw from a case at any time the ALJ deems 
himself or herself disqualified.
    (b) At any time before issuance of the ALJ's decision, any party may 
move that the ALJ disqualify himself or herself for personal bias or 
other valid cause.
    (1) The party must file the motion promptly after discovering facts 
or other reasons allegedly constituting cause for disqualification.
    (2) The party must file with the motion an affidavit or declaration 
setting forth the facts or other reasons in detail.
    (c) The ALJ must rule upon the motion, stating the grounds for the 
ruling.
    (1) If the ALJ concludes that the motion is timely and meritorious, 
he or she must disqualify himself or herself and withdraw from the case.

[[Page 576]]

    (2) If the ALJ does not disqualify himself or herself and withdraw 
from the case, the ALJ must continue with the hearing process and issue 
a decision.



Sec. 45.34  What is the law governing ex parte communications?

    (a) Ex parte communications with the ALJ or his or her staff are 
prohibited in accordance with 5 U.S.C. 554(d).
    (b) This section does not prohibit ex parte inquiries concerning 
case status or procedural requirements, unless the inquiry involves an 
area of controversy in the hearing process.



Sec. 45.35  What are the requirements for motions?

    (a) General. Any party may apply for an order or ruling on any 
matter related to the hearing process by presenting a motion to the ALJ. 
A motion may be presented any time after the Hearings Division issues a 
docketing notice under Sec. 45.30.
    (1) A motion made at a hearing may be stated orally on the record, 
unless the ALJ directs that it be reduced to writing.
    (2) Any other motion must:
    (i) Be in writing;
    (ii) Comply with the requirements of this subpart with respect to 
form, content, filing, and service; and
    (iii) Not exceed 10 pages.
    (b) Content. (1) Each motion must state clearly and concisely:
    (i) Its purpose and the relief sought;
    (ii) The facts constituting the grounds for the relief sought; and
    (iii) Any applicable statutory or regulatory authority.
    (2) A proposed order must accompany the motion.
    (c) Response. Except as otherwise required by this part or by order 
of the ALJ, any other party may file a response to a written motion 
within 10 days after service of the motion. When a party presents a 
motion at a hearing, any other party may present a response orally on 
the record.
    (d) Reply. Unless the ALJ orders otherwise, no reply to a response 
may be filed.
    (e) Effect of filing. Unless the ALJ orders otherwise, the filing of 
a motion does not stay the hearing process.
    (f) Ruling. The ALJ will rule on the motion as soon as practicable, 
either orally on the record or in writing. He or she may summarily deny 
any dilatory, repetitive, or frivolous motion.

                  Prehearing Conferences and Discovery



Sec. 45.40  What are the requirements for prehearing conferences?

    (a) Initial prehearing conference. The ALJ will conduct an initial 
prehearing conference with the parties at the time specified in the 
docketing notice under Sec. 45.30, on or about the 20th day after 
issuance of the referral notice under Sec. 45.25(c).
    (1) The initial prehearing conference will be used:
    (i) To identify, narrow, and clarify the disputed issues of material 
fact and exclude issues that do not qualify for review as factual, 
material, and disputed;
    (ii) To consider the parties' motions for discovery under Sec. 
45.41 and to set a deadline for the completion of discovery;
    (iii) To discuss the evidence on which each party intends to rely at 
the hearing;
    (iv) To set the deadline for submission of written testimony under 
Sec. 45.52; and
    (v) To set the date, time, and place of the hearing.
    (2) The initial prehearing conference may also be used:
    (i) To discuss limiting and grouping witnesses to avoid duplication;
    (ii) To discuss stipulations of fact and of the content and 
authenticity of documents;
    (iii) To consider requests that the ALJ take official notice of 
public records or other matters;
    (iv) To discuss the submission of written testimony, briefs, or 
other documents in electronic form; and
    (v) To consider any other matters that may aid in the disposition of 
the case.
    (b) Other conferences. The ALJ may in his or her discretion direct 
the parties to attend one or more other prehearing conferences, if 
consistent with the need to complete the hearing process within 90 days. 
Any party may by motion request a conference.

[[Page 577]]

    (c) Notice. The ALJ must give the parties reasonable notice of the 
time and place of any conference. A conference will ordinarily be held 
by telephone, unless the ALJ orders otherwise.
    (d) Preparation. (1) Each party's representative must be fully 
prepared for a discussion of all issues properly before the conference, 
both procedural and substantive. The representative must be authorized 
to commit the party that he or she represents respecting those issues.
    (2) Before the date set for the initial prehearing conference, the 
parties' representatives must make a good faith effort:
    (i) To meet in person, by telephone, or by other appropriate means; 
and
    (ii) To reach agreement on discovery and the schedule of remaining 
steps in the hearing process.
    (e) Failure to attend. Unless the ALJ orders otherwise, a party that 
fails to attend or participate in a conference, after being served with 
reasonable notice of its time and place, waives all objections to any 
agreements reached in the conference and to any consequent orders or 
rulings.
    (f) Scope. During a conference, the ALJ may dispose of any 
procedural matters related to the case.
    (g) Order. Within 2 days after the conclusion of each conference, 
the ALJ must issue an order that recites any agreements reached at the 
conference and any rulings made by the ALJ during or as a result of the 
conference.



Sec. 45.41  How may parties obtain discovery of information needed for the case?

    (a) General. By agreement of the parties or with the permission of 
the ALJ, a party may obtain discovery of information to assist the party 
in preparing or presenting its case. Available methods of discovery are:
    (1) Written interrogatories;
    (2) Depositions as provided in paragraph (h) of this section; and
    (3) Requests for production of designated documents or tangible 
things or for entry on designated land for inspection or other purposes.
    (b) Criteria. Discovery may occur only as agreed to by the parties 
or as authorized by the ALJ in a written order or during a prehearing 
conference. The ALJ may authorize discovery only if the party requesting 
discovery demonstrates:
    (1) That the discovery will not unreasonably delay the hearing 
process;
    (2) That the information sought:
    (i) Will be admissible at the hearing or appears reasonably 
calculated to lead to the discovery of admissible evidence;
    (ii) Is not already in the license proceeding record or otherwise 
obtainable by the party;
    (iii) Is not cumulative or repetitious; and
    (iv) Is not privileged or protected from disclosure by applicable 
law;
    (3) That the scope of the discovery is not unduly burdensome;
    (4) That the method to be used is the least burdensome method 
available;
    (5) That any trade secrets or proprietary information can be 
adequately safeguarded; and
    (6) That the standards for discovery under paragraphs (f) through 
(h) of this section have been met, if applicable.
    (c) Motions. A party may initiate discovery:
    (1) Pursuant to an agreement of the parties; or
    (2) By filing a motion that:
    (i) Briefly describes the proposed method(s), purpose, and scope of 
the discovery;
    (ii) Explains how the discovery meets the criteria in paragraphs 
(b)(1) through (b)(6) of this section; and
    (iii) Attaches a copy of any proposed discovery request (written 
interrogatories, notice of deposition, or request for production of 
designated documents or tangible things or for entry on designated 
land).
    (d) Timing of motions. A party must file any discovery motion under 
paragraph (c)(2) of this section within 7 days after issuance of the 
referral notice under Sec. 45.25(c).
    (e) Objections. (1) A party must file any objections to a discovery 
motion or to specific portions of a proposed discovery request within 7 
days after service of the motion.

[[Page 578]]

    (2) An objection must explain how, in the objecting party's view, 
the discovery sought does not meet the criteria in paragraphs (b)(1) 
through (b)(6) of this section.
    (f) Materials prepared for hearing. A party generally may not obtain 
discovery of documents and tangible things otherwise discoverable under 
paragraph (b) of this section if they were prepared in anticipation of 
or for the hearing by or for another party's representative (including 
the party's attorney, expert, or consultant).
    (1) If a party wants to discover such materials, it must show:
    (i) That it has substantial need of the materials in preparing its 
own case; and
    (ii) That the party is unable without undue hardship to obtain the 
substantial equivalent of the materials by other means.
    (2) In ordering discovery of such materials when the required 
showing has been made, the ALJ must protect against disclosure of the 
mental impressions, conclusions, opinions, or legal theories of an 
attorney.
    (g) Experts. Unless restricted by the ALJ, a party may discover any 
facts known or opinions held by an expert concerning any relevant 
matters that are not privileged. Such discovery will be permitted only 
if:
    (1) The expert is expected to be a witness at the hearing; or
    (2) The expert is relied on by another expert who is expected to be 
a witness at the hearing, and the party shows:
    (i) That it has a compelling need for the information; and
    (ii) That it cannot practicably obtain the information by other 
means.
    (h) Limitations on depositions. (1) A party may depose a witness 
only if the party shows that the witness:
    (i) Will be unable to attend the hearing because of age, illness, or 
other incapacity; or
    (ii) Is unwilling to attend the hearing voluntarily, and the party 
is unable to compel the witness's attendance at the hearing by subpoena.
    (2) Paragraph (h)(1)(ii) of this section does not apply to any 
person employed by or under contract with the party seeking the 
deposition.
    (3) A party may depose a senior Department employee only if the 
party shows:
    (i) That the employee's testimony is necessary in order to provide 
significant, unprivileged information that is not available from any 
other source or by less burdensome means; and
    (ii) That the deposition would not significantly interfere with the 
employee's ability to perform his or her government duties.
    (i) Completion of discovery. All discovery must be completed within 
25 days after the initial prehearing conference, unless the ALJ sets a 
different deadline.



Sec. 45.42  When must a party supplement or amend information it has previously provided?

    (a) Discovery. A party must promptly supplement or amend any prior 
response to a discovery request if it learns that the response:
    (1) Was incomplete or incorrect when made; or
    (2) Though complete and correct when made, is now incomplete or 
incorrect in any material respect.
    (b) Witnesses and exhibits. (1) Within 5 days after the date set for 
completion of discovery, each party must file an updated version of the 
list of witnesses and exhibits required under Sec. Sec. 45.21(c), 
45.22(c), or 45.24(c).
    (2) If a party wishes to include any new witness or exhibit on its 
updated list, it must provide an explanation of why it was not feasible 
for the party to include the witness or exhibit on its list under 
Sec. Sec. 45.21(c), 45.22(c), or 45.24(c).
    (c) Failure to disclose. (1) A party that fails to disclose 
information required under Sec. Sec. 45.21(c), 45.22(c), or 45.24(c), 
or paragraphs (a) or (b) of this section, will not be permitted to 
introduce as evidence at the hearing testimony from a witness or other 
information that it failed to disclosed.
    (2) Paragraph (c)(1) of this section does not apply if the failure 
to disclose was substantially justified or is harmless.
    (3) Before or during the hearing, a party may object to the 
admission of evidence under paragraph (c)(1) of this section.

[[Page 579]]

    (4) The ALJ will consider the following in determining whether to 
exclude evidence under paragraphs (c)(1) through (c)(3) of this section:
    (i) The prejudice to the objecting party;
    (ii) The ability of the objecting party to cure any prejudice;
    (iii) The extent to which presentation of the evidence would disrupt 
the orderly and efficient hearing of the case;
    (iv) The importance of the evidence; and
    (v) The reason for the failure to disclose, including any bad faith 
or willfulness regarding the failure.



Sec. 45.43  What are the requirements for written interrogatories?

    (a) Motion. Except upon agreement of the parties, a party wishing to 
propound interrogatories must file a motion under Sec. 45.41(c).
    (b) ALJ order. During or promptly after the initial prehearing 
conference, the ALJ will issue an order under Sec. 45.41(b) with 
respect to any discovery motion requesting the use of written 
interrogatories. The order will:
    (1) Grant the motion and approve the use of some or all of the 
proposed interrogatories; or
    (2) Deny the motion.
    (c) Answers to interrogatories. Except upon agreement of the 
parties, the party to whom the proposed interrogatories are directed 
must file its answers to any interrogatories approved by the ALJ within 
15 days after issuance of the order under paragraph (b) of this section.
    (1) Each approved interrogatory must be answered separately and 
fully in writing.
    (2) The party or its representative must sign the answers to 
interrogatories under oath or affirmation.
    (d) Access to records. A party's answer to an interrogatory is 
sufficient when:
    (1) The information may be obtained from an examination of records, 
or from a compilation, abstract, or summary based on such records;
    (2) The burden of obtaining the information from the records is 
substantially the same for all parties;
    (3) The answering party specifically identifies the individual 
records from which the requesting party may obtain the information and 
where the records are located; and
    (4) The answering party provides the requesting party with 
reasonable opportunity to examine the records and make a copy, 
compilation, abstract, or summary.



Sec. 45.44  What are the requirements for depositions?

    (a) Motion and notice. Except upon agreement of the parties, a party 
wishing to take a deposition must file a motion under Sec. 45.41(c). 
Any notice of deposition filed with the motion must state:
    (1) The time and place that the deposition is to be taken;
    (2) The name and address of the person before whom the deposition is 
to be taken;
    (3) The name and address of the witness whose deposition is to be 
taken; and
    (4) Any documents or materials that the witness is to produce.
    (b) ALJ order. During or promptly after the initial prehearing 
conference, the ALJ will issue an order under Sec. 45.41(b) with 
respect to any discovery motion requesting the taking of a deposition. 
The order will:
    (1) Grant the motion and approve the taking of the deposition, 
subject to any conditions or restrictions the ALJ may impose; or
    (2) Deny the motion.
    (c) Arrangements. If the parties agree to or the ALJ approves the 
taking of the deposition, the party requesting the deposition must make 
appropriate arrangements for necessary facilities and personnel.
    (1) The deposition will be taken at the time and place agreed to by 
the parties or indicated in the ALJ's order.
    (2) The deposition may be taken before any disinterested person 
authorized to administer oaths in the place where the deposition is to 
be taken.
    (3) Any party that objects to the taking of a deposition because of 
the disqualification of the person before whom it is to be taken must do 
so:
    (i) Before the deposition begins; or
    (ii) As soon as the disqualification becomes known or could have 
been discovered with reasonable diligence.

[[Page 580]]

    (4) A deposition may be taken by telephone conference call, if 
agreed to by the parties or approved in the ALJ's order.
    (d) Testimony. Each witness deposed must be placed under oath or 
affirmation, and the other parties must be given an opportunity for 
cross-examination.
    (e) Representation of witness. The witness being deposed may have 
counsel or another representative present during the deposition.
    (f) Recording and transcript. Except as provided in paragraph (g) of 
this section, the deposition must be stenographically recorded and 
transcribed at the expense of the party that requested the deposition.
    (1) Any other party may obtain a copy of the transcript at its own 
expense.
    (2) Unless waived by the deponent, the deponent will have 3 days 
after receiving the transcript to read and sign it.
    (3) The person before whom the deposition was taken must certify the 
transcript following receipt of the signed transcript from the deponent 
or expiration of the 3-day review period, whichever occurs first.
    (g) Video recording. The testimony at a deposition may be recorded 
on videotape, subject to any conditions or restrictions that the parties 
may agree to or the ALJ may impose, at the expense of the party 
requesting the recording.
    (1) The video recording may be in conjunction with an oral 
examination by telephone conference held under paragraph (c)(3) of this 
section.
    (2) After the deposition has been taken, the person recording the 
deposition must:
    (i) Provide a copy of the videotape to any party that requests it, 
at the requesting party's expense; and
    (ii) Attach to the videotape a statement identifying the case and 
the deponent and certifying the authenticity of the video recording.
    (h) Use of deposition. A deposition may be used at the hearing as 
provided in Sec. 45.53.



Sec. 45.45  What are the requirements for requests for documents or tangible things or entry on land?

    (a) Motion. Except upon agreement of the parties, a party wishing to 
request the production of designated documents or tangible things or 
entry on designated land must file a motion under Sec. 45.41(c). A 
request may include any of the following that are in the possession, 
custody, or control of another party:
    (1) The production of designated documents for inspection and 
copying, other than documents that are already in the license proceeding 
record;
    (2) The production of designated tangible things for inspection, 
copying, testing, or sampling; or
    (3) Entry on designated land or other property for inspection and 
measuring, surveying, photographing, testing, or sampling either the 
property or any designated object or operation on the property.
    (b) ALJ order. During or promptly after the initial prehearing 
conference, the ALJ will issue an order under Sec. 45.41(b) with 
respect to any discovery motion requesting the production of documents 
or tangible things or entry on land for inspection, copying, or other 
purposes. The order will:
    (1) Grant the motion and approve the use of some or all of the 
proposed requests; or
    (2) Deny the motion.
    (c) Compliance with order. Except upon agreement of the parties, the 
party to whom any approved request for production is directed must 
permit the approved inspection and other activities within 15 days after 
issuance of the order under paragraph (a) of this section.



Sec. 45.46  What sanctions may the ALJ impose for failure to comply with discovery?

    (a) Upon motion of a party, the ALJ may impose sanctions under 
paragraph (b) of this section if any party:
    (1) Fails to comply with an order approving discovery; or
    (2) Fails to supplement or amend a response to discovery under Sec. 
45.42(a).
    (b) The ALJ may impose one or more of the following sanctions:

[[Page 581]]

    (1) Infer that the information, testimony, document, or other 
evidence withheld would have been adverse to the party;
    (2) Order that, for the purposes of the hearing, designated facts 
are established;
    (3) Order that the party not introduce into evidence, or otherwise 
rely on to support its case, any information, testimony, document, or 
other evidence:
    (i) That the party improperly withheld; or
    (ii) That the party obtained from another party in discovery;
    (4) Allow another party to use secondary evidence to show what the 
information, testimony, document, or other evidence withheld would have 
shown; or
    (5) Take other appropriate action to remedy the party's failure to 
comply.



Sec. 45.47  What are the requirements for subpoenas and witness fees?

    (a) Request for subpoena. (1) Except as provided in paragraph (a)(2) 
of this section, any party may file a motion requesting the ALJ to issue 
a subpoena to the extent authorized by law for the attendance of a 
person, the giving of testimony, or the production of documents or other 
relevant evidence during discovery or for the hearing.
    (2) A party may subpoena a senior Department employee only if the 
party shows:
    (i) That the employee's testimony is necessary in order to provide 
significant, unprivileged information that is not available from any 
other source or by less burdensome means; and
    (ii) That the employee's attendance would not significantly 
interfere with the ability to perform his or her government duties.
    (b) Service. (1) A subpoena may be served by any person who is not a 
party and is 18 years of age or older.
    (2) Service must be made by hand delivering a copy of the subpoena 
to the person named therein.
    (3) The person serving the subpoena must:
    (i) Prepare a certificate of service setting forth:
    (A) The date, time, and manner of service; or
    (B) The reason for any failure of service; and
    (ii) Swear to or affirm the certificate, attach it to a copy of the 
subpoena, and return it to the party on whose behalf the subpoena was 
served.
    (c) Witness fees. (1) A party who subpoenas a witness who is not a 
party must pay him or her the same fees and mileage expenses that are 
paid witnesses in the district courts of the United States.
    (2) A witness who is not a party and who attends a deposition or 
hearing at the request of any party without having been subpoenaed to do 
so is entitled to the same fees and mileage expenses as if he or she had 
been subpoenaed. However, this paragraph does not apply to federal 
employees who are called as witnesses by a bureau or other Department.
    (d) Motion to quash. (1) A person to whom a subpoena is directed may 
request by motion that the ALJ quash or modify the subpoena.
    (2) The motion must be filed:
    (i) Within 5 days after service of the subpoena; or
    (ii) At or before the time specified in the subpoena for compliance, 
if that is less than 5 days after service of the subpoena.
    (3) The ALJ may quash or modify the subpoena if it:
    (i) Is unreasonable;
    (ii) Requires evidence during discovery that is not discoverable; or
    (iii) Requires evidence during a hearing that is privileged or 
irrelevant.
    (e) Enforcement. For good cause shown, the ALJ may apply to the 
appropriate United States District Court for the issuance of an order 
compelling the appearance and testimony of a witness or the production 
of evidence as set forth in a subpoena that has been duly issued and 
served.

                     Hearing, Briefing, and Decision



Sec. 45.50  When and where will the hearing be held?

    (a) Except as provided in paragraph (b) of this section, the hearing 
will be held at the time and place set at the initial prehearing 
conference under Sec. 45.40, generally within 15 days after the date 
set for completion of discovery.

[[Page 582]]

    (b) On motion by a party or on the ALJ's initiative, the ALJ may 
change the date, time, or place of the hearing if he or she finds:
    (1) That there is good cause for the change; and
    (2) That the change will not unduly prejudice the parties and 
witnesses.



Sec. 45.51  What are the parties' rights during the hearing?

    Consistent with the provisions of this subpart, each party has the 
following rights during the hearing, as necessary to assure full and 
accurate disclosure of the facts:
    (a) To present direct and rebuttal evidence;
    (b) To make objections, motions, and arguments; and
    (c) To cross-examine witnesses and to conduct re-direct and re-cross 
examination as permitted by the ALJ.



Sec. 45.52  What are the requirements for presenting testimony?

    (a) Written direct testimony. Unless otherwise ordered by the ALJ, 
all direct hearing testimony must be prepared and submitted in written 
form.
    (1) Prepared written testimony must:
    (i) Have line numbers inserted in the left-hand margin of each page;
    (ii) Be authenticated by an affidavit or declaration of the witness;
    (iii) Be filed within 5 days after the date set for completion of 
discovery, unless the ALJ sets a different deadline; and
    (iv) Be offered as an exhibit during the hearing.
    (2) Any witness submitting written testimony must be available for 
cross-examination at the hearing.
    (b) Oral testimony. Oral examination of a witness in a hearing, 
including on cross-examination or redirect, must be conducted under oath 
and in the presence of the ALJ, with an opportunity for all parties to 
question the witness.
    (c) Telephonic testimony. The ALJ may by order allow a witness to 
testify by telephonic conference call.
    (1) The arrangements for the call must let each party listen to and 
speak to the witness and each other within the hearing of the ALJ.
    (2) The ALJ will ensure the full identification of each speaker so 
the reporter can create a proper record.
    (3) The ALJ may issue a subpoena under Sec. 45.47 directing a 
witness to testify by telephonic conference call.



Sec. 45.53  How may a party use a deposition in the hearing?

    (a) In general. Subject to the provisions of this section, a party 
may use in the hearing any part or all of a deposition taken under Sec. 
45.44 against any party who:
    (1) Was present or represented at the taking of the deposition; or
    (2) Had reasonable notice of the taking of the deposition.
    (b) Admissibility. (1) No part of a deposition will be included in 
the hearing record, unless received in evidence by the ALJ.
    (2) The ALJ will exclude from evidence any question and response to 
which an objection:
    (i) Was noted at the taking of the deposition; and
    (ii) Would have been sustained if the witness had been personally 
present and testifying at a hearing.
    (3) If a party offers only part of a deposition in evidence:
    (i) An adverse party may require the party to introduce any other 
part that ought in fairness to be considered with the part introduced; 
and
    (ii) Any other party may introduce any other parts.
    (c) Videotaped deposition. If the deposition was recorded on 
videotape and is admitted into evidence, relevant portions will be 
played during the hearing and transcribed into the record by the 
reporter.



Sec. 45.54  What are the requirements for exhibits, official notice, and stipulations?

    (a) General. (1) Except as provided in paragraphs (b) through (e) of 
this section, any material offered in evidence, other than oral 
testimony, must be offered in the form of an exhibit.
    (2) Each exhibit offered by a party must be marked for 
identification.
    (3) Any party who seeks to have an exhibit admitted into evidence 
must provide:

[[Page 583]]

    (i) The original of the exhibit to the reporter, unless the ALJ 
permits the substitution of a copy; and
    (ii) A copy of the exhibit to the ALJ.
    (b) Material not offered. If a document offered as an exhibit 
contains material not offered as evidence:
    (1) The party offering the exhibit must:
    (i) Designate the matter offered as evidence;
    (ii) Segregate and exclude the material not offered in evidence, to 
the extent practicable; and
    (iii) Provide copies of the entire document to the other parties 
appearing at the hearing.
    (2) The ALJ must give the other parties an opportunity to inspect 
the entire document and offer in evidence any other portions of the 
document.
    (c) Official notice. (1) At the request of any party at the hearing, 
the ALJ may take official notice of any matter of which the courts of 
the United States may take judicial notice, including the public records 
of any Department party.
    (2) The ALJ must give the other parties appearing at the hearing an 
opportunity to show the contrary of an officially noticed fact.
    (3) Any party requesting official notice of a fact after the 
conclusion of the hearing must show good cause for its failure to 
request official notice during the hearing.
    (d) Stipulations. (1) The parties may stipulate to any relevant 
facts or to the authenticity of any relevant documents.
    (2) If received in evidence at the hearing, a stipulation is binding 
on the stipulating parties.
    (3) A stipulation may be written or made orally at the hearing.



Sec. 45.55  What evidence is admissible at the hearing?

    (a) General. (1) Subject to the provisions of Sec. 45.42(b), the 
ALJ may admit any written, oral, documentary, or demonstrative evidence 
that is:
    (i) Relevant, reliable, and probative; and
    (ii) Not privileged or unduly repetitious or cumulative.
    (2) The ALJ may exclude evidence if its probative value is 
substantially outweighed by the risk of undue prejudice, confusion of 
the issues, or delay.
    (3) Hearsay evidence is admissible. The ALJ may consider the fact 
that evidence is hearsay when determining its probative value.
    (4) The Federal Rules of Evidence do not directly apply to the 
hearing, but may be used as guidance by the ALJ and the parties in 
interpreting and applying the provisions of this section.
    (b) Objections. Any party objecting to the admission or exclusion of 
evidence shall concisely state the grounds. A ruling on every objection 
must appear in the record.



Sec. 45.56  What are the requirements for transcription of the hearing?

    (a) Transcript and reporter's fees. The hearing will be transcribed 
verbatim.
    (1) The Hearings Division will secure the services of a reporter and 
pay the reporter's fees to provide an original transcript to the 
Hearings Division on an expedited basis.
    (2) Each party must pay the reporter for any copies of the 
transcript obtained by that party.
    (b) Transcript Corrections. (1) Any party may file a motion 
proposing corrections to the transcript. The motion must be filed within 
5 days after receipt of the transcript, unless the ALJ sets a different 
deadline.
    (2) Unless a party files a timely motion under paragraph (b)(1) of 
this section, the transcript will be presumed to be correct and 
complete, except for obvious typographical errors.
    (3) As soon as practicable after the close of the hearing and after 
consideration of any motions filed under paragraph (b)(1) of this 
section, the ALJ will issue an order making any corrections to the 
transcript that the ALJ finds are warranted.



Sec. 45.57  What is the standard of proof?

    The standard of proof is a preponderance of the evidence.



Sec. 45.58  When will the hearing record close?

    (a) The hearing record will close when the ALJ closes the hearing, 
unless he or she directs otherwise.
    (b) Evidence may not be added after the hearing record is closed, 
but the

[[Page 584]]

transcript may be corrected under Sec. 45.56(b).



Sec. 45.59  What are the requirements for post-hearing briefs?

    (a) General. (1) Each party may file a post-hearing brief within 10 
days after the close of the hearing, unless the ALJ sets a different 
deadline.
    (2) A party may file a reply brief only if requested by the ALJ. The 
deadline for filing a reply brief, if any, will be set by the ALJ.
    (3) The ALJ may limit the length of the briefs to be filed under 
this section.
    (b) Content. (1) An initial brief must include:
    (i) A concise statement of the case;
    (ii) A separate section containing proposed findings regarding the 
issues of material fact, with supporting citations to the hearing 
record;
    (iii) Arguments in support of the party's position; and
    (iv) Any other matter required by the ALJ.
    (2) A reply brief, if requested by the ALJ, must be limited to any 
issues identified by the ALJ.
    (c) Form. (1) An exhibit admitted in evidence or marked for 
identification in the record may not be reproduced in the brief.
    (i) Such an exhibit may be reproduced, within reasonable limits, in 
an appendix to the brief.
    (ii) Any pertinent analysis of an exhibit may be included in a 
brief.
    (2) If a brief exceeds 20 pages, it must contain:
    (i) A table of contents and of points made, with page references; 
and
    (ii) An alphabetical list of citations to legal authority, with page 
references.



Sec. 45.60  What are the requirements for the ALJ's decision?

    (a) Timing. The ALJ must issue a decision within the shorter of the 
following time periods:
    (1) 30 days after the close of the hearing under Sec. 45.58; or
    (2) 90 days after issuance of the referral notice under Sec. 
45.25(c), 7 CFR 1.625(c), or 50 CFR 221.25(c).
    (b) Content. (1) The decision must contain:
    (i) Findings of fact on all disputed issues of material fact;
    (ii) Conclusions of law necessary to make the findings of fact (such 
as rulings on materiality and on the admissibility of evidence); and
    (iii) Reasons for the findings and conclusions.
    (2) The ALJ may adopt any of the findings of fact proposed by one or 
more of the parties.
    (3) The decision will not contain conclusions as to whether any 
preliminary condition or prescription should be adopted, modified, or 
rejected, or whether any proposed alternative should be adopted or 
rejected.
    (c) Service. Promptly after issuing his or her decision, the ALJ 
must:
    (1) Serve the decision on each party to the hearing; and
    (2) Forward a copy of the decision to FERC, along with the complete 
hearing record, for inclusion in the license proceeding record.
    (d) Finality. The ALJ's decision under this section will be final, 
with respect to the disputed issues of material fact, for any Department 
involved in the hearing. To the extent the ALJ's decision forms the 
basis for any condition or prescription subsequently included in the 
license, it may be subject to judicial review under 16 U.S.C. 825l(b).



                     Subpart C_Alternatives Process



Sec. 45.70  How must documents be filed and served under this subpart?

    (a) Filing. (1) A document under this subpart must be filed using 
one of the methods set forth in Sec. 45.12(b).
    (2) A document is considered filed on the date it is received. 
However, any document received after 5 p.m. at the place where the 
filing is due is considered filed on the next regular business day.
    (b) Service. (1) Any document filed under this subpart must be 
served at the same time the document is delivered or sent for filing. A 
complete copy of the document must be served on each license party and 
FERC, using:
    (i) One of the methods of service in Sec. 45.13(c); or
    (ii) Regular mail.

[[Page 585]]

    (2) The provisions of Sec. 45.13(d) and (e) regarding 
acknowledgment and certificate of service apply to service under this 
subpart.



Sec. 45.71  How do I propose an alternative?

    (a) General. To propose an alternative, you must:
    (1) Be a license party; and
    (2) File a written proposal with OEPC within 30 days after the 
deadline for the bureau to file preliminary conditions or prescriptions 
with FERC.
    (b) Content. Your proposal must include:
    (1) A description of the alternative, in an equivalent level of 
detail to the bureau's preliminary condition or prescription;
    (2) An explanation of how the alternative:
    (i) If a condition, will provide for the adequate protection and 
utilization of the reservation; or
    (ii) If a prescription, will be no less protective than the fishway 
prescribed by the bureau;
    (3) An explanation of how the alternative, as compared to the 
preliminary condition or prescription, will:
    (i) Cost significantly less to implement; or
    (ii) Result in improved operation of the project works for 
electricity production;
    (4) An explanation of how the alternative will affect:
    (i) Energy supply, distribution, cost, and use;
    (ii) Flood control;
    (iii) Navigation;
    (iv) Water supply;
    (v) Air quality; and
    (vi) Other aspects of environmental quality; and
    (5) Specific citations to any scientific studies, literature, and 
other documented information relied on to support your proposal, 
including any assumptions you are making (e.g., regarding the cost of 
energy or the rate of inflation). If any such document is not already in 
the license proceeding record, you must provide a copy with the 
proposal.



Sec. 45.72  What will the bureau do with a proposed alternative?

    If any license party proposes an alternative to a preliminary 
condition or prescription under Sec. 45.71(a)(1), the bureau must do 
the following within 60 days after the deadline for filing comments to 
FERC's NEPA document under 18 CFR 5.25(c):
    (a) Analyze the alternative under Sec. 45.73; and
    (b) File with FERC:
    (1) Any condition or prescription that the bureau adopts as its 
modified condition or prescription; and
    (2) Its analysis of the modified condition or prescription and any 
proposed alternatives under Sec. 45.73(c).



Sec. 45.73  How will the bureau analyze a proposed alternative and formulate its modified condition or prescription?

    (a) In deciding whether to adopt a proposed alternative, the bureau 
must consider evidence and supporting material provided by any license 
party or otherwise available to the bureau, including:
    (1) Any evidence on the implementation costs or operational impacts 
for electricity production of the proposed alternative;
    (2) Any comments received on the bureau's preliminary condition or 
prescription;
    (3) Any ALJ decision on disputed issues of material fact issued 
under Sec. 45.60 with respect to the preliminary condition or 
prescription;
    (4) Comments received on any draft or final NEPA documents; and
    (5) The license party's proposal under Sec. 45.71.
    (b) The bureau must adopt a proposed alternative if the bureau 
determines, based on substantial evidence provided by any license party 
or otherwise available to the bureau, that the alternative:
    (1) Will, as compared to the bureau's preliminary condition or 
prescription:
    (i) Cost significantly less to implement; or
    (ii) Result in improved operation of the project works for 
electricity production; and
    (2) Will:

[[Page 586]]

    (i) If a condition, provide for the adequate protection and 
utilization of the reservation; or
    (ii) If a prescription, be no less protective than the bureau's 
preliminary prescription.
    (c) When the bureau files with FERC the condition or prescription 
that the bureau adopts as its modified condition or prescription under 
Sec. Sec. 45.72(b), it must also file:
    (1) A written statement explaining:
    (i) The basis for the adopted condition or prescription; and
    (ii) If the bureau is not adopting any alternative, its reasons for 
not doing so; and
    (2) Any study, data, and other factual information relied on that is 
not already part of the licensing proceeding record.
    (d) The written statement under paragraph (c)(1) of this section 
must demonstrate that the bureau gave equal consideration to the effects 
of the condition or prescription adopted and any alternative not adopted 
on:
    (1) Energy supply, distribution, cost, and use;
    (2) Flood control;
    (3) Navigation;
    (4) Water supply;
    (5) Air quality; and
    (6) Preservation of other aspects of environmental quality.



Sec. 45.74  Has OMB approved the information collection provisions of this subpart?

    Yes. This rule contains provisions that would collect information 
from the public. It therefore requires approval by the Office of 
Management and Budget (OMB) under the Paperwork Reduction Act of 1995, 
44 U.S.C. 3501 et seq. (PRA). According to the PRA, a Federal agency may 
not conduct or sponsor, and a person is not required to respond to, a 
collection of information unless it displays a currently valid OMB 
control number that indicates OMB approval. OMB has reviewed the 
information collection in this rule and approved it under OMB control 
number 1094-0001.



PART 46_IMPLEMENTATION OF THE NATIONAL ENVIRONMENTAL POLICY ACT OF 1969--Table of Contents



                      Subpart A_General Information

Sec.
46.10 Purpose of this part.
46.20 How to use this part.
46.30 Definitions.

      Subpart B_Protection and Enhancement of Environmental Quality

46.100 Federal action subject to the procedural requirements of NEPA.
46.105 Using a contractor to prepare environmental documents.
46.110 Incorporating consensus-based management.
46.115 Consideration of past actions in analysis of cumulative effects.
46.120 Using existing environmental analyses prepared pursuant to NEPA 
          and the Council on Environmental Quality regulations.
46.125 Incomplete or unavailable information.
46.130 Mitigation measures in analyses.
46.135 Incorporation of referenced documents into NEPA analysis.
46.140 Using tiered documents.
46.145 Using adaptive management.
46.150 Emergency responses.
46.155 Consultation, coordination, and cooperation with other agencies.
46.160 Limitations on actions during the NEPA analysis process.
46.170 Environmental effects abroad of major Federal actions.

                  Subpart C_Initiating the NEPA Process

46.200 Applying NEPA early.
46.205 Actions categorically excluded from further NEPA review.
46.210 Listing of Departmental categorical exclusions.
46.215 Categorical exclusions: Extraordinary circumstances.
46.220 How to designate lead agencies.
46.225 How to select cooperating agencies.
46.230 Role of cooperating agencies in the NEPA process.
46.235 NEPA scoping process.
46.240 Establishing time limits for the NEPA process.

                   Subpart D_Environmental Assessments

46.300 Purpose of an environmental assessment and when it must be 
          prepared.
46.305 Public involvement in the environmental assessment process.
46.310 Contents of an environmental assessment.

[[Page 587]]

46.315 How to format an environmental assessment.
46.320 Adopting environmental assessments prepared by another agency, 
          entity, or person.
46.325 Conclusion of the environmental assessment process.

                Subpart E_Environmental Impact Statements

46.400 Timing of environmental impact statement development.
46.405 Remaining within page limits.
46.415 Environmental impact statement content, alternatives, circulation 
          and filing requirements.
46.420 Terms used in an environmental impact statement.
46.425 Identification of the preferred alternative in an environmental 
          impact statement.
46.430 Environmental review and consultation requirements.
46.435 Inviting comments.
46.440 Eliminating duplication with State and local procedures.
46.445 Preparing a legislative environmental impact statement.
46.450 Identifying the environmentally preferable alternatives.

    Authority: 42 U.S.C. 4321 et seq. (The National Environmental Policy 
Act of 1969, as amended); Executive Order 11514, (Protection and 
Enhancement of Environmental Quality (March 5, 1970, as amended by 
Executive Order 11991, May 24, 1977)); 40 CFR parts 1500-1508 (43 FR 
55978) (National Environmental Policy Act, Implementation of Procedural 
Provisions).

    Source: 73 FR 61314, Oct. 15, 2008, unless otherwise noted.



                      Subpart A_General Information



Sec. 46.10  Purpose of this part.

    (a) This part establishes procedures for the Department, and its 
constituent bureaus, to use for compliance with:
    (1) The National Environmental Policy Act (NEPA) of 1969, as amended 
(42 U.S.C. 4321 et seq.); and
    (2) The Council on Environmental Quality (CEQ) regulations for 
implementing the procedural provisions of NEPA (40 CFR parts 1500-1508).
    (b) Consistent with 40 CFR 1500.3, it is the Department's intention 
that any trivial violation of these regulations will not give rise to 
any independent cause of action.



Sec. 46.20  How to use this part.

    (a) This part supplements, and is to be used in conjunction with, 
the CEQ regulations except where it is inconsistent with other statutory 
requirements. The following table shows the corresponding CEQ 
regulations for the sections in subparts A--E of this part. Some 
sections in those subparts do not have a corresponding CEQ regulation.

                            Subpart A 40 CFR

46.10 Parts 1500-1508
46.20 No corresponding CEQ regulation
46.30 No corresponding CEQ regulation

                                Subpart B

46.100 1508.14, 1508.18, 1508.23
46.105 1506.5
46.110 No corresponding CEQ regulation
46.115 1508.7
46.120 1502.9, 1502.20, 1502.21, 1506.3
46.125 1502.22
46.130 1502.14
46.135 1502.21
46.140 1502.20
46.145 No corresponding CEQ regulation
46.150 1506.11
46.155 1502.25, 1506.2
46.160 1506.1
46.170 No corresponding CEQ regulation

                                Subpart C

46.200 1501.2
46.205 1508.4
46.210 1508.4
46.215 1508.4
46.220 1501.5
46.225 1501.6
46.230 1501.6
46.235 1501.7
46.240 1501.8

                                Subpart D

46.300 1501.3
46.305 1501.7, 1506.6
46.310 1508.9
46.315 No corresponding CEQ regulation
46.320 1506.3
46.325 1501.4

                                Subpart E

46.400 1502.5
46.405 1502.7
46.415 1502.10
46.420 1502.14
46.425 1502.14
46.430 1502.25
46.435 1503
46.440 1506.2
46.445 1506.8
46.450 1505.2


[[Page 588]]


    (b) The Responsible Official will ensure that the decision making 
process for proposals subject to this part includes appropriate NEPA 
review.
    (c) During the decision making process for each proposal subject to 
this part, the Responsible Official shall consider the relevant NEPA 
documents, public and agency comments (if any) on those documents, and 
responses to those comments, as part of consideration of the proposal 
and, except as specified in paragraphs 46.210(a) through (j), shall 
include such documents, including supplements, comments, and responses 
as part of the administrative file.
    (d) The Responsible Official's decision on a proposed action shall 
be within the range of alternatives discussed in the relevant 
environmental document. The Responsible Official's decision may combine 
elements of alternatives discussed in the relevant environmental 
document if the effects of such combined elements of alternatives are 
reasonably apparent from the analysis in the relevant environmental 
document.
    (e) For situations involving an applicant, the Responsible Official 
should initiate the NEPA process upon acceptance of an application for a 
proposed Federal action. The Responsible Official must publish or 
otherwise provide policy information and make staff available to advise 
potential applicants of studies or other information, such as costs, 
foreseeably required for later Federal action.



Sec. 46.30  Definitions.

    For purposes of this part, the following definitions supplement 
terms defined at 40 CFR parts 1500-1508.
    Adaptive management is a system of management practices based on 
clearly identified outcomes and monitoring to determine whether 
management actions are meeting desired outcomes; and, if not, 
facilitating management changes that will best ensure that outcomes are 
met or re-evaluated. Adaptive management recognizes that knowledge about 
natural resource systems is sometimes uncertain.
    Bureau means bureau, office, service, or survey within the 
Department of the Interior.
    Community-based training in the NEPA context is the training of 
local participants together with Federal participants in the workings of 
the environmental planning effort as it relates to the local 
community(ies).
    Controversial refers to circumstances where a substantial dispute 
exists as to the environmental consequences of the proposed action and 
does not refer to the existence of opposition to a proposed action, the 
effect of which is relatively undisputed.
    Environmental Statement Memoranda (ESM) are a series of instructions 
issued by the Department's Office of Environmental Policy and Compliance 
to provide information and explanatory guidance in the preparation, 
completion, and circulation of NEPA documents.
    Environmentally preferable alternative is the alternative required 
by 40 CFR 1505.2(b) to be identified in a record of decision (ROD), that 
causes the least damage to the biological and physical environment and 
best protects, preserves, and enhances historical, cultural, and natural 
resources. The environmentally preferable alternative is identified upon 
consideration and weighing by the Responsible Official of long-term 
environmental impacts against short-term impacts in evaluating what is 
the best protection of these resources. In some situations, such as when 
different alternatives impact different resources to different degrees, 
there may be more than one environmentally preferable alternative.
    No action alternative.
    (1) This term has two interpretations. First ``no action'' may mean 
``no change'' from a current management direction or level of management 
intensity (e.g., if no ground-disturbance is currently underway, no 
action means no ground-disturbance). Second ``no action'' may mean ``no 
project'' in cases where a new project is proposed for implementation.
    (2) The Responsible Official must determine the ``no action'' 
alternative consistent with one of the definitions in paragraph (1) of 
this definition and appropriate to the proposed action to

[[Page 589]]

be analyzed in an environmental impact statement. The no action 
alternative looks at effects of not approving the action under 
consideration.
    Proposed action. This term refers to the bureau activity under 
consideration. It includes the bureau's exercise of discretion over a 
non-Federal entity's planned activity that falls under a Federal 
agency's authority to issue permits, licenses, grants, rights-of-way, or 
other common Federal approvals, funding, or regulatory instruments. The 
proposed action:
    (1) Is not necessarily, but may become, during the NEPA process, the 
bureau preferred alternative or (in a record of decision for an 
environmental impact statement, in accordance with 40 CFR 1505.2) an 
environmentally preferable alternative; and
    (2) Must be clearly described in order to proceed with NEPA 
analysis.
    Reasonably foreseeable future actions include those federal and non-
federal activities not yet undertaken, but sufficiently likely to occur, 
that a Responsible Official of ordinary prudence would take such 
activities into account in reaching a decision. These federal and non-
federal activities that must be taken into account in the analysis of 
cumulative impact include, but are not limited to, activities for which 
there are existing decisions, funding, or proposals identified by the 
bureau. Reasonably foreseeable future actions do not include those 
actions that are highly speculative or indefinite.
    Responsible Official is the bureau employee who is delegated the 
authority to make and implement a decision on a proposed action and is 
responsible for ensuring compliance with NEPA.



      Subpart B_Protection and Enhancement of Environmental Quality



Sec. 46.100  Federal action subject to the procedural requirements of NEPA.

    (a) A bureau proposed action is subject to the procedural 
requirements of NEPA if it would cause effects on the human environment 
(40 CFR 1508.14), and is subject to bureau control and responsibility 
(40 CFR 1508.18). The determination of whether a proposed action is 
subject to the procedural requirements of NEPA depends on the extent to 
which bureaus exercise control and responsibility over the proposed 
action and whether Federal funding or approval are necessary to 
implement it. If Federal funding is provided with no Federal agency 
control as to the expenditure of such funds by the recipient, NEPA 
compliance is not necessary. The proposed action is not subject to the 
procedural requirements of NEPA if it is exempt from the requirements of 
section 102(2) of NEPA.
    (b) A bureau shall apply the procedural requirements of NEPA when 
the proposal is developed to the point that:
    (1) The bureau has a goal and is actively preparing to make a 
decision on one or more alternative means of accomplishing that goal; 
and
    (2) The effects of the proposed action can be meaningfully evaluated 
(40 CFR 1508.23).



Sec. 46.105  Using a contractor to prepare environmental documents.

    A Responsible Official may use a contractor to prepare any 
environmental document in accordance with the standards of 40 CFR 
1506.5(b) and (c). If a Responsible Official uses a contractor, the 
Responsible Official remains responsible for:
    (a) Preparation and adequacy of the environmental documents; and
    (b) Independent evaluation of the environmental documents after 
their completion.



Sec. 46.110  Incorporating consensus-based management.

    (a) Consensus-based management incorporates direct community 
involvement in consideration of bureau activities subject to NEPA 
analyses, from initial scoping to implementation of the bureau decision. 
It seeks to achieve agreement from diverse interests on the goals of, 
purposes of, and needs for bureau plans and activities, as well as the 
methods anticipated to carry out those plans and activities. For the 
purposes of this Part, consensus-based management involves outreach to 
persons, organizations or communities who may be interested in or 
affected by a proposed action with an assurance

[[Page 590]]

that their input will be given consideration by the Responsible Official 
in selecting a course of action.
    (b) In incorporating consensus-based management in the NEPA process, 
bureaus should consider any consensus-based alternative(s) put forth by 
those participating persons, organizations or communities who may be 
interested in or affected by the proposed action. While there is no 
guarantee that any particular consensus-based alternative will be 
considered to be a reasonable alternative or be identified as the 
bureau's preferred alternative, bureaus must be able to show that the 
reasonable consensus-based alternative, if any, is reflected in the 
evaluation of the proposed action and discussed in the final decision. 
To be selected for implementation, a consensus-based alternative must be 
fully consistent with NEPA, the CEQ regulations, and all applicable 
statutory and regulatory provisions, as well as Departmental and bureau 
written policies and guidance.
    (c) The Responsible Official must, whenever practicable, use a 
consensus-based management approach to the NEPA process.
    (d) If the Responsible Official determines that the consensus-based 
alternative, if any, is not the preferred alternative, he or she must 
state the reasons for this determination in the environmental document.
    (e) When practicing consensus-based management in the NEPA process, 
bureaus must comply with all applicable laws, including any applicable 
provisions of the Federal Advisory Committee Act (FACA).



Sec. 46.115  Consideration of past actions in the analysis of cumulative effects.

    When considering the effects of past actions as part of a cumulative 
effects analysis, the Responsible Official must analyze the effects in 
accordance with 40 CFR 1508.7 and in accordance with relevant guidance 
issued by the Council on Environmental Quality, such as ``The Council on 
Environmental Quality Guidance Memorandum on Consideration of Past 
Actions in Cumulative Effects Analysis'' dated June 24, 2005, or any 
superseding Council on Environmental Quality guidance.



Sec. 46.120  Using existing environmental analyses prepared pursuant to NEPA and the Council on Environmental Quality regulations.

    (a) When available, the Responsible Official should use existing 
NEPA analyses for assessing the impacts of a proposed action and any 
alternatives. Procedures for adoption or incorporation by reference of 
such analyses must be followed where applicable.
    (b) If existing NEPA analyses include data and assumptions 
appropriate for the analysis at hand, the Responsible Official should 
use these existing NEPA analyses and/or their underlying data and 
assumptions where feasible.
    (c) An existing environmental analysis prepared pursuant to NEPA and 
the Council on Environmental Quality regulations may be used in its 
entirety if the Responsible Official determines, with appropriate 
supporting documentation, that it adequately assesses the environmental 
effects of the proposed action and reasonable alternatives. The 
supporting record must include an evaluation of whether new 
circumstances, new information or changes in the action or its impacts 
not previously analyzed may result in significantly different 
environmental effects.
    (d) Responsible Officials should make the best use of existing NEPA 
documents by supplementing, tiering to, incorporating by reference, or 
adopting previous NEPA environmental analyses to avoid redundancy and 
unnecessary paperwork.



Sec. 46.125  Incomplete or unavailable information.

    In circumstances where the provisions of 40 CFR 1502.22 apply, 
bureaus must consider all costs to obtain information. These costs 
include monetary costs as well as other non-monetized costs when 
appropriate, such as social costs, delays, opportunity costs, and non-
fulfillment or non-timely fulfillment of statutory mandates.



Sec. 46.130  Mitigation measures in analyses.

    (a) Bureau proposed action. The analysis of the proposed action and 
any alternatives must include an analysis of

[[Page 591]]

the effects of the proposed action or alternative as well as analysis of 
the effects of any appropriate mitigation measures or best management 
practices that are considered. The mitigation measures can be analyzed 
either as elements of alternatives or in a separate discussion of 
mitigation.
    (b) Applicant proposals (i.e., bureau decision-making on such 
proposals is the proposed action). An applicant's proposal presented to 
the bureau for analysis must include any ameliorative design elements 
(including stipulations, conditions, or best management practices), 
required to make the proposal conform to applicable legal requirements, 
as well as any voluntary ameliorative design element(s). The effects of 
any mitigation measures other than the ameliorative design elements 
included in the applicant's proposal must also be analyzed. The analysis 
of these mitigation measures can be structured as a matter of 
consideration of alternatives to approving the applicant's proposal or 
as separate mitigation measures to be imposed on any alternative 
selected for implementation.



Sec. 46.135  Incorporation of referenced documents into NEPA analysis.

    (a) The Responsible Official must determine that the analysis and 
assumptions used in the referenced document are appropriate for the 
analysis at hand.
    (b) Citations of specific information or analysis from other source 
documents should include the pertinent page numbers or other relevant 
identifying information.
    (c) Publications incorporated into NEPA analysis by reference must 
be listed in the bibliography. Such publications must be readily 
available for review and, when not readily available, they must be made 
available for review as part of the record supporting the proposed 
action.



Sec. 46.140  Using tiered documents.

    A NEPA document that tiers to another broader NEPA document in 
accordance with 40 CFR 1508.28 must include a finding that the 
conditions and environmental effects described in the broader NEPA 
document are still valid or address any exceptions.
    (a) Where the impacts of the narrower action are identified and 
analyzed in the broader NEPA document, no further analysis is necessary, 
and the previously prepared document can be used for purposes of the 
pending action.
    (b) To the extent that any relevant analysis in the broader NEPA 
document is not sufficiently comprehensive or adequate to support 
further decisions, the tiered NEPA document must explain this and 
provide any necessary analysis.
    (c) An environmental assessment prepared in support of an individual 
proposed action can be tiered to a programmatic or other broader-scope 
environmental impact statement. An environmental assessment may be 
prepared, and a finding of no significant impact reached, for a proposed 
action with significant effects, whether direct, indirect, or 
cumulative, if the environmental assessment is tiered to a broader 
environmental impact statement which fully analyzed those significant 
effects. Tiering to the programmatic or broader-scope environmental 
impact statement would allow the preparation of an environmental 
assessment and a finding of no significant impact for the individual 
proposed action, so long as any previously unanalyzed effects are not 
significant. A finding of no significant impact other than those already 
disclosed and analyzed in the environmental impact statement to which 
the environmental assessment is tiered may also be called a ``finding of 
no new significant impact.''



Sec. 46.145  Using adaptive management.

    Bureaus should use adaptive management, as appropriate, particularly 
in circumstances where long-term impacts may be uncertain and future 
monitoring will be needed to make adjustments in subsequent 
implementation decisions. The NEPA analysis conducted in the context of 
an adaptive management approach should identify the range of management 
options that may be taken in response to the results of monitoring and 
should analyze the effects of such options. The environmental effects of 
any adaptive management strategy must be evaluated in this or subsequent 
NEPA analysis.

[[Page 592]]



Sec. 46.150  Emergency responses.

    This section applies only if the Responsible Official determines 
that an emergency exists that makes it necessary to take urgently needed 
actions before preparing a NEPA analysis and documentation in accordance 
with the provisions in subparts D and E of this part.
    (a) The Responsible Official may take those actions necessary to 
control the immediate impacts of the emergency that are urgently needed 
to mitigate harm to life, property, or important natural, cultural, or 
historic resources. When taking such actions, the Responsible Official 
shall take into account the probable environmental consequences of these 
actions and mitigate foreseeable adverse environmental effects to the 
extent practical.
    (b) The Responsible Official shall document in writing the 
determination that an emergency exists and describe the responsive 
action(s) taken at the time the emergency exists. The form of that 
documentation is within the discretion of the Responsible Official.
    (c) If the Responsible Official determines that proposed actions 
taken in response to an emergency, beyond actions noted in paragraph (a) 
of this section, are not likely to have significant environmental 
impacts, the Responsible Official shall document that determination in 
an environmental assessment and a finding of no significant impact 
prepared in accordance with this part, unless categorically excluded 
(see subpart C of this part). If the Responsible Official finds that the 
nature and scope of the subsequent actions related to the emergency 
require taking such proposed actions prior to completing an 
environmental assessment and a finding of no significant impact, the 
Responsible Official shall consult with the Office of Environmental 
Policy and Compliance about alternative arrangements for NEPA 
compliance. The Assistant Secretary, Policy Management and Budget or 
his/her designee may grant an alternative arrangement. Any alternative 
arrangement must be documented. Consultation with the Department must be 
coordinated through the appropriate bureau headquarters.
    (d) The Department shall consult with CEQ about alternative 
arrangements as soon as possible if the Responsible Official determines 
that proposed actions, taken in response to an emergency, beyond actions 
noted in paragraph (a) of this section, are likely to have significant 
environmental impacts. The Responsible Official shall consult with 
appropriate bureau headquarters and the Department, about alternative 
arrangements as soon as the Responsible Official determines that the 
proposed action is likely to have a significant environmental effect. 
Such alternative arrangements will apply only to the proposed actions 
necessary to control the immediate impacts of the emergency. Other 
proposed actions remain subject to NEPA analysis and documentation in 
accordance with this part.



Sec. 46.155  Consultation, coordination, and cooperation with other agencies.

    The Responsible Official must whenever possible consult, coordinate, 
and cooperate with relevant State, local, and tribal governments and 
other bureaus and Federal agencies concerning the environmental effects 
of any Federal action within the jurisdictions or related to the 
interests of these entities.



Sec. 46.160  Limitations on actions during the NEPA analysis process.

    During the preparation of a program or plan NEPA document, the 
Responsible Official may undertake any major Federal action in 
accordance with 40 CFR 1506.1 when that action is within the scope of, 
and analyzed in, an existing NEPA document supporting the current plan 
or program, so long as there is adequate NEPA documentation to support 
the individual action.



Sec. 46.170  Environmental effects abroad of major Federal actions.

    (a) In order to facilitate informed decision-making, the Responsible 
Official having ultimate responsibility for authorizing and approving 
proposed actions encompassed by the provisions of Executive Order (EO) 
12114 shall follow the provisions and procedures of that EO. EO 12114 
``represents the United

[[Page 593]]

States government's exclusive and complete determination of the 
procedural and other actions to be taken by Federal agencies to further 
the purpose of the National Environmental Policy Act, with respect to 
the environment outside the United States, its territories and 
possessions.''
    (b) When implementing EO 12114, bureaus shall coordinate with the 
Department. The Department shall then consult with the Department of 
State, which shall coordinate all communications by the Department with 
foreign governments concerning environmental agreements and other 
arrangements in implementing EO 12114.



                  Subpart C_Initiating the NEPA Process



Sec. 46.200  Applying NEPA early.

    (a) For any potentially major proposed Federal action (40 CFR 
1508.23 and 1508.18) that may have potentially significant environmental 
impacts, bureaus must coordinate, as early as feasible, with:
    (1) Any other bureaus or Federal agencies, State, local, and tribal 
governments having jurisdiction by law or special expertise; and
    (2) Appropriate Federal, State, local, and tribal governments 
authorized to develop and enforce environmental standards or to manage 
and protect natural resources or other aspects of the human environment.
    (b) Bureaus must solicit the participation of all those persons or 
organizations that may be interested or affected as early as possible, 
such as at the time an application is received or when the bureau 
initiates the NEPA process for a proposed action.
    (c) Bureaus should provide, where practicable, any appropriate 
community-based training to reduce costs, prevent delays, and facilitate 
and promote efficiency in the NEPA process.
    (d) Bureaus should inform private or non-Federal applicants, to the 
extent feasible, of:
    (1) Any appropriate environmental information that the applicants 
must include in their applications; and
    (2) Any consultation with other Federal agencies, or State, local, 
or tribal governments that the applicant must accomplish before or 
during the application process.
    (e) Bureaus must inform applicants as soon as practicable of any 
responsibility they will bear for funding environmental analyses 
associated with their proposals.



Sec. 46.205  Actions categorically excluded from further NEPA review.

    Categorical Exclusion means a category or kind of action that has no 
significant individual or cumulative effect on the quality of the human 
environment. See 40 CFR 1508.4.
    (a) Except as provided in paragraph (c) of this section, if an 
action is covered by a Departmental categorical exclusion, the bureau is 
not required to prepare an environmental assessment (see subpart D of 
this part) or an environmental impact statement (see subpart E of this 
part). If a proposed action does not meet the criteria for any of the 
listed Departmental categorical exclusions or any of the individual 
bureau categorical exclusions, then the proposed action must be analyzed 
in an environmental assessment or environmental impact statement.
    (b) The actions listed in section 46.210 are categorically excluded, 
Department-wide, from preparation of environmental assessments or 
environmental impact statements.
    (c) The CEQ Regulations at 40 CFR 1508.4 require agency procedures 
to provide for extraordinary circumstances in which a normally excluded 
action may have a significant environmental effect and require 
additional analysis and action. Section 46.215 lists the extraordinary 
circumstances under which actions otherwise covered by a categorical 
exclusion require analyses under NEPA.
    (1) Any action that is normally categorically excluded must be 
evaluated to determine whether it meets any of the extraordinary 
circumstances in section 46.215; if it does, further analysis and 
environmental documents must be prepared for the action.
    (2) Bureaus must work within existing administrative frameworks, 
including any existing programmatic agreements, when deciding how to 
apply any of the section 46.215 extraordinary circumstances.

[[Page 594]]

    (d) Congress may establish categorical exclusions by legislation, in 
which case the terms of the legislation determine how to apply those 
categorical exclusions.



Sec. 46.210  Listing of Departmental categorical exclusions.

    The following actions are categorically excluded under paragraph 
46.205(b), unless any of the extraordinary circumstances in section 
46.215 apply:
    (a) Personnel actions and investigations and personnel services 
contracts.
    (b) Internal organizational changes and facility and bureau 
reductions and closings.
    (c) Routine financial transactions including such things as salaries 
and expenses, procurement contracts (e.g., in accordance with applicable 
procedures and Executive Orders for sustainable or green procurement), 
guarantees, financial assistance, income transfers, audits, fees, bonds, 
and royalties.
    (d) Departmental legal activities including, but not limited to, 
such things as arrests, investigations, patents, claims, and legal 
opinions. This does not include bringing judicial or administrative 
civil or criminal enforcement actions which are outside the scope of 
NEPA in accordance with 40 CFR 1508.18(a).
    (e) Nondestructive data collection, inventory (including field, 
aerial, and satellite surveying and mapping), study, research, and 
monitoring activities.
    (f) Routine and continuing government business, including such 
things as supervision, administration, operations, maintenance, 
renovations, and replacement activities having limited context and 
intensity (e.g., limited size and magnitude or short-term effects).
    (g) Management, formulation, allocation, transfer, and reprogramming 
of the Department's budget at all levels. (This does not exclude the 
preparation of environmental documents for proposals included in the 
budget when otherwise required.)
    (h) Legislative proposals of an administrative or technical nature 
(including such things as changes in authorizations for appropriations 
and minor boundary changes and land title transactions) or having 
primarily economic, social, individual, or institutional effects; and 
comments and reports on referrals of legislative proposals.
    (i) Policies, directives, regulations, and guidelines: that are of 
an administrative, financial, legal, technical, or procedural nature; or 
whose environmental effects are too broad, speculative, or conjectural 
to lend themselves to meaningful analysis and will later be subject to 
the NEPA process, either collectively or case-by-case.
    (j) Activities which are educational, informational, advisory, or 
consultative to other agencies, public and private entities, visitors, 
individuals, or the general public.
    (k) Hazardous fuels reduction activities using prescribed fire not 
to exceed 4,500 acres, and mechanical methods for crushing, piling, 
thinning, pruning, cutting, chipping, mulching, and mowing, not to 
exceed 1,000 acres. Such activities:
    (1) Shall be limited to areas--
    (i) In wildland-urban interface; and
    (ii) Condition Classes 2 or 3 in Fire Regime Groups I, II, or III, 
outside the wildland-urban interface;
    (2) Shall be identified through a collaborative framework as 
described in ``A Collaborative Approach for Reducing Wildland Fire Risks 
to Communities and the Environment 10-Year Comprehensive Strategy 
Implementation Plan;''
    (3) Shall be conducted consistent with bureau and Departmental 
procedures and applicable land and resource management plans;
    (4) Shall not be conducted in wilderness areas or impair the 
suitability of wilderness study areas for preservation as wilderness; 
and
    (5) Shall not include the use of herbicides or pesticides or the 
construction of new permanent roads or other new permanent 
infrastructure; and may include the sale of vegetative material if the 
primary purpose of the activity is hazardous fuels reduction. (Refer to 
the ESM Series for additional, required guidance.)
    (l) Post-fire rehabilitation activities not to exceed 4,200 acres 
(such as tree planting, fence replacement, habitat restoration, heritage 
site restoration,

[[Page 595]]

repair of roads and trails, and repair of damage to minor facilities 
such as campgrounds) to repair or improve lands unlikely to recover to a 
management approved condition from wildland fire damage, or to repair or 
replace minor facilities damaged by fire. Such activities must comply 
with the following (Refer to the ESM Series for additional, required 
guidance.):
    (1) Shall be conducted consistent with bureau and Departmental 
procedures and applicable land and resource management plans;
    (2) Shall not include the use of herbicides or pesticides or the 
construction of new permanent roads or other new permanent 
infrastructure; and
    (3) Shall be completed within three years following a wildland fire.



Sec. 46.215  Categorical exclusions: Extraordinary circumstances.

    Extraordinary circumstances (see paragraph 46.205(c)) exist for 
individual actions within categorical exclusions that may meet any of 
the criteria listed in paragraphs (a) through (l) of this section. 
Applicability of extraordinary circumstances to categorical exclusions 
is determined by the Responsible Official.
    (a) Have significant impacts on public health or safety.
    (b) Have significant impacts on such natural resources and unique 
geographic characteristics as historic or cultural resources; park, 
recreation or refuge lands; wilderness areas; wild or scenic rivers; 
national natural landmarks; sole or principal drinking water aquifers; 
prime farmlands; wetlands (EO 11990); floodplains (EO 11988); national 
monuments; migratory birds; and other ecologically significant or 
critical areas.
    (c) Have highly controversial environmental effects or involve 
unresolved conflicts concerning alternative uses of available resources 
[NEPA section 102(2)(E)].
    (d) Have highly uncertain and potentially significant environmental 
effects or involve unique or unknown environmental risks.
    (e) Establish a precedent for future action or represent a decision 
in principle about future actions with potentially significant 
environmental effects.
    (f) Have a direct relationship to other actions with individually 
insignificant but cumulatively significant environmental effects.
    (g) Have significant impacts on properties listed, or eligible for 
listing, on the National Register of Historic Places as determined by 
the bureau.
    (h) Have significant impacts on species listed, or proposed to be 
listed, on the List of Endangered or Threatened Species or have 
significant impacts on designated Critical Habitat for these species.
    (i) Violate a Federal law, or a State, local, or tribal law or 
requirement imposed for the protection of the environment.
    (j) Have a disproportionately high and adverse effect on low income 
or minority populations (EO 12898).
    (k) Limit access to and ceremonial use of Indian sacred sites on 
Federal lands by Indian religious practitioners or significantly 
adversely affect the physical integrity of such sacred sites (EO 13007).
    (l) Contribute to the introduction, continued existence, or spread 
of noxious weeds or non-native invasive species known to occur in the 
area or actions that may promote the introduction, growth, or expansion 
of the range of such species (Federal Noxious Weed Control Act and EO 
13112).



Sec. 46.220  How to designate lead agencies.

    (a) In most cases, the Responsible Official should designate one 
Federal agency as the lead with the remaining Federal, State, tribal 
governments, and local agencies assuming the role of cooperating agency. 
In this manner, the other Federal, State, and local agencies can work to 
ensure that the NEPA document will meet their needs for adoption and 
application to their related decision(s).
    (b) In some cases, a non-Federal agency (including a tribal 
government) must comply with State or local requirements that are 
comparable to the NEPA requirements. In these cases, the Responsible 
Official may designate the non-Federal agency as a joint lead agency. 
(See 40 CFR 1501.5 and 1506.2 for

[[Page 596]]

a description of the selection of lead agencies, the settlement of lead 
agency disputes, and the use of joint lead agencies.)
    (c) In some cases, the Responsible Official may establish a joint 
lead relationship among several Federal agencies. If there is a joint 
lead, then one Federal agency must be identified as the agency 
responsible for filing the environmental impact statement with EPA.



Sec. 46.225  How to select cooperating agencies.

    (a) An ``eligible governmental entity'' is:
    (1) Any Federal agency that is qualified to participate in the 
development of an environmental impact statement as provided for in 40 
CFR 1501.6 and 1508.5 by virtue of its jurisdiction by law, as defined 
in 40 CFR 1508.15;
    (2) Any Federal agency that is qualified to participate in the 
development of an environmental impact statement by virtue of its 
special expertise, as defined in 40 CFR 1508.26; or
    (3) Any non-Federal agency (State, tribal, or local) with 
qualifications similar to those in paragraphs (a)(1) and (a)(2) of this 
section.
    (b) Except as described in paragraph (c) of this section, the 
Responsible Official for the lead bureau must invite eligible 
governmental entities to participate as cooperating agencies when the 
bureau is developing an environmental impact statement.
    (c) The Responsible Official for the lead bureau must consider any 
request by an eligible governmental entity to participate in a 
particular environmental impact statement as a cooperating agency. If 
the Responsible Official for the lead bureau denies a request, or 
determines it is inappropriate to extend an invitation, he or she must 
state the reasons in the environmental impact statement. Denial of a 
request or not extending an invitation for cooperating agency status is 
not subject to any internal administrative appeals process, nor is it a 
final agency action subject to review under the Administrative Procedure 
Act, 5 U.S.C. 701 et seq.
    (d) Bureaus should work with cooperating agencies to develop and 
adopt a memorandum of understanding that includes their respective 
roles, assignment of issues, schedules, and staff commitments so that 
the NEPA process remains on track and within the time schedule. 
Memoranda of understanding must be used in the case of non-Federal 
agencies and must include a commitment to maintain the confidentiality 
of documents and deliberations during the period prior to the public 
release by the bureau of any NEPA document, including drafts.
    (e) The procedures of this section may be used for an environmental 
assessment.



Sec. 46.230  Role of cooperating agencies in the NEPA process.

    In accordance with 40 CFR 1501.6, throughout the development of an 
environmental document, the lead bureau will collaborate, to the fullest 
extent possible, with all cooperating agencies concerning those issues 
relating to their jurisdiction and special expertise. Cooperating 
agencies may, by agreement with the lead bureau, help to do the 
following:
    (a) Identify issues to be addressed;
    (b) Arrange for the collection and/or assembly of necessary 
resource, environmental, social, economic, and institutional data;
    (c) Analyze data;
    (d) Develop alternatives;
    (e) Evaluate alternatives and estimate the effects of implementing 
each alternative; and
    (f) Carry out any other task necessary for the development of the 
environmental analysis and documentation.



Sec. 46.235  NEPA scoping process.

    (a) Scoping is a process that continues throughout the planning and 
early stages of preparation of an environmental impact statement. 
Scoping is required for an environmental impact statement; scoping may 
be helpful during preparation of an environmental assessment, but is not 
required (see paragraph 46.305(a) Public involvement in the 
environmental assessment process). For an environmental impact 
statement, bureaus must use scoping to engage State, local and tribal 
governments and the public in the early

[[Page 597]]

identification of concerns, potential impacts, relevant effects of past 
actions and possible alternative actions. Scoping is an opportunity to 
introduce and explain the interdisciplinary approach and solicit 
information as to additional disciplines that should be included. 
Scoping also provides an opportunity to bring agencies and applicants 
together to lay the groundwork for setting time limits, expediting 
reviews where possible, integrating other environmental reviews, and 
identifying any major obstacles that could delay the process. The 
Responsible Official shall determine whether, in some cases, the 
invitation requirement in 40 CFR 1501.7(a)(1) may be satisfied by 
including such an invitation in the notice of intent (NOI).
    (b) In scoping meetings, newsletters, or by other communication 
methods appropriate to scoping, the lead agency must make it clear that 
the lead agency is ultimately responsible for determining the scope of 
an environmental impact statement and that suggestions obtained during 
scoping are only options for the bureau to consider.



Sec. 46.240  Establishing time limits for the NEPA process.

    (a) For each proposed action, on a case-by-case basis, bureaus 
shall:
    (1) Set time limits from the start to the finish of the NEPA 
analysis and documentation, consistent with the requirements of 40 CFR 
1501.8 and other legal obligations, including statutory and regulatory 
timeframes;
    (2) Consult with cooperating agencies in setting time limits; and
    (3) Encourage cooperating agencies to meet established time frames.
    (b) Time limits should reflect the availability of Department and 
bureau personnel and funds. Efficiency of the NEPA process is dependent 
on the management capabilities of the lead bureau, which must assemble 
an interdisciplinary team and/or qualified staff appropriate to the type 
of project to be analyzed to ensure timely completion of NEPA documents.



                   Subpart D_Environmental Assessments



Sec. 46.300  Purpose of an environmental assessment and when it must be prepared.

    The purpose of an environmental assessment is to allow the 
Responsible Official to determine whether to prepare an environmental 
impact statement or a finding of no significant impact.
    (a) A bureau must ensure that an environmental assessment is 
prepared for all proposed Federal actions, except those:
    (1) That are covered by a categorical exclusion;
    (2) That are covered sufficiently by an earlier environmental 
document as determined and documented by the Responsible Official; or
    (3) For which the bureau has already decided to prepare an 
environmental impact statement.
    (b) A bureau may prepare an environmental assessment for any 
proposed action at any time to:
    (1) Assist in planning and decision-making;
    (2) Further the purposes of NEPA when no environmental impact 
statement is necessary; or
    (3) Facilitate environmental impact statement preparation.



Sec. 46.305  Public involvement in the environmental assessment process.

    (a) The bureau must, to the extent practicable, provide for public 
notification and public involvement when an environmental assessment is 
being prepared. However, the methods for providing public notification 
and opportunities for public involvement are at the discretion of the 
Responsible Official.
    (1) The bureau must consider comments that are timely received, 
whether specifically solicited or not.
    (2) Although scoping is not required, the bureau may apply a scoping 
process to an environmental assessment.
    (b) Publication of a ``draft'' environmental assessment is not 
required. Bureaus may seek comments on an environmental assessment if 
they determine it to be appropriate, such as when the level of public 
interest or the uncertainty of effects warrants, and may

[[Page 598]]

revise environmental assessments based on comments received without need 
of initiating another comment period.
    (c) The bureau must notify the public of the availability of an 
environmental assessment and any associated finding of no significant 
impact once they have been completed. Comments on a finding of no 
significant impact do not need to be solicited, except as required by 40 
CFR 1501.4(e)(2).
    (d) Bureaus may allow cooperating agencies (as defined in Sec. 
46.225) to participate in developing environmental assessments.



Sec. 46.310  Contents of an environmental assessment.

    (a) At a minimum, an environmental assessment must include brief 
discussions of:
    (1) The proposal;
    (2) The need for the proposal;
    (3) The environmental impacts of the proposed action;
    (4) The environmental impacts of the alternatives considered; and
    (5) A list of agencies and persons consulted.
    (b) When the Responsible Official determines that there are no 
unresolved conflicts about the proposed action with respect to 
alternative uses of available resources, the environmental assessment 
need only consider the proposed action and does not need to consider 
additional alternatives, including the no action alternative. (See 
section 102(2)(E) of NEPA).
    (c) In addition, an environmental assessment may describe a broader 
range of alternatives to facilitate planning and decision-making.
    (d) A proposed action or alternative(s) may include adaptive 
management strategies allowing for adjustment of the action during 
implementation. If the adjustments to an action are clearly articulated 
and pre-specified in the description of the alternative and fully 
analyzed, then the action may be adjusted during implementation without 
the need for further analysis. Adaptive management includes a monitoring 
component, approved adaptive actions that may be taken, and 
environmental effects analysis for the adaptive actions approved.
    (e) The level of detail and depth of impact analysis should normally 
be limited to the minimum needed to determine whether there would be 
significant environmental effects.
    (f) Bureaus may choose to provide additional detail and depth of 
analysis as appropriate in those environmental assessments prepared 
under paragraph 46.300(b).
    (g) An environmental assessment must contain objective analyses that 
support conclusions concerning environmental impacts.



Sec. 46.315  How to format an environmental assessment.

    (a) An environmental assessment may be prepared in any format useful 
to facilitate planning, decision-making, and appropriate public 
participation.
    (b) An environmental assessment may be accompanied by any other 
planning or decision-making document. The portion of the document that 
analyzes the environmental impacts of the proposal and alternatives must 
be clearly and separately identified and not spread throughout or 
interwoven into other sections of the document.



Sec. 46.320  Adopting environmental assessments prepared by another agency, entity, or person.

    (a) A Responsible Official may adopt an environmental assessment 
prepared by another agency, entity, or person, including an applicant, 
if the Responsible Official:
    (1) Independently reviews the environmental assessment; and
    (2) Finds that the environmental assessment complies with this 
subpart and relevant provisions of the CEQ Regulations and with other 
program requirements.
    (b) When appropriate, the Responsible Official may augment the 
environmental assessment to be consistent with the bureau's proposed 
action.
    (c) In adopting or augmenting the environmental assessment, the 
Responsible Official will cite the original environmental assessment.

[[Page 599]]

    (d) The Responsible Official must ensure that its bureau's public 
involvement requirements have been met before it adopts another agency's 
environmental assessment.



Sec. 46.325  Conclusion of the environmental assessment process.

    Upon review of the environmental assessment by the Responsible 
Official, the environmental assessment process concludes with one of the 
following:
    (1) A notice of intent to prepare an environmental impact statement;
    (2) A finding of no significant impact; or
    (3) A result that no further action is taken on the proposal.



                Subpart E_Environmental Impact Statements



Sec. 46.400  Timing of environmental impact statement development.

    The bureau must prepare an environmental impact statement for each 
proposed major Federal action significantly affecting the quality of the 
human environment before making a decision on whether to proceed with 
the proposed action.



Sec. 46.405  Remaining within page limits.

    To the extent possible, bureaus should use techniques such as 
incorporation of referenced documents into NEPA analysis (46.135) and 
tiering (46.140) in an effort to remain within the normal page limits 
stated in 40 CFR 1502.7.



Sec. 46.415  Environmental impact statement content, alternatives, circulation and filing requirements.

    The Responsible Official may use any environmental impact statement 
format and design as long as the statement is in accordance with 40 CFR 
1502.10.
    (a) Contents. The environmental impact statement shall disclose:
    (1) A statement of the purpose and need for the action;
    (2) A description of the proposed action;
    (3) The environmental impact of the proposed action;
    (4) A brief description of the affected environment;
    (5) Any adverse environmental effects which cannot be avoided should 
the proposal be implemented;
    (6) Alternatives to the proposed action;
    (7) The relationship between local short-term uses of the human 
environment and the maintenance and enhancement of long-term 
productivity;
    (8) Any irreversible or irretrievable commitments of resources which 
would be involved in the proposed action should it be implemented; and
    (9) The process used to coordinate with other Federal agencies, 
State, tribal and local governments, and persons or organizations who 
may be interested or affected, and the results thereof.
    (b) Alternatives. The environmental impact statement shall document 
the examination of the range of alternatives (paragraph 46.420(c)). The 
range of alternatives includes those reasonable alternatives (paragraph 
46.420(b)) that meet the purpose and need of the proposed action, and 
address one or more significant issues (40 CFR 1501.7(a)(2-3)) related 
to the proposed action. Since an alternative may be developed to address 
more than one significant issue, no specific number of alternatives is 
required or prescribed. In addition to the requirements in 40 CFR 
1502.14, the Responsible Official has an option to use the following 
procedures to develop and analyze alternatives.
    (1) The analysis of the effects of the no-action alternative may be 
documented by contrasting the current condition and expected future 
condition should the proposed action not be undertaken with the impacts 
of the proposed action and any reasonable alternatives.
    (2) The Responsible Official may collaborate with those persons or 
organization that may be interested or affected to modify a proposed 
action and alternative(s) under consideration prior to issuing a draft 
environmental impact statement. In such cases the Responsible Official 
may consider these modifications as alternatives considered. Before 
engaging in any collaborative processes, the Responsible Official must 
consider the Federal Advisory Committee Act (FACA) implications of such 
processes.

[[Page 600]]

    (3) A proposed action or alternative(s) may include adaptive 
management strategies allowing for adjustment of the action during 
implementation. If the adjustments to an action are clearly articulated 
and pre-specified in the description of the alternative and fully 
analyzed, then the action may be adjusted during implementation without 
the need for further analysis. Adaptive management includes a monitoring 
component, approved adaptive actions that may be taken, and 
environmental effects analysis for the adaptive actions approved.
    (c) Circulating and filing draft and final environmental impact 
statements. (1) The draft and final environmental impact statements 
shall be filed with the Environmental Protection Agency's Office of 
Federal Activities in Washington, DC (40 CFR 1506.9).
    (2) Requirements at 40 CFR 1506.9 ``Filing requirements,'' 40 CFR 
1506.10 ``Timing of agency action,'' 40 CFR 1502.9 ``Draft, final, and 
supplemental statements,'' and 40 CFR 1502.19 ``Circulation of the 
environmental impact statement'' shall only apply to draft, final, and 
supplemental environmental impact statements that are filed with EPA.



Sec. 46.420  Terms used in an environmental impact statement.

    The following terms are commonly used to describe concepts or 
activities in an environmental impact statement:
    (a) Statement of purpose and need. In accordance with 40 CFR 
1502.13, the statement of purpose and need briefly indicates the 
underlying purpose and need to which the bureau is responding.
    (1) In some instances it may be appropriate for the bureau to 
describe its ``purpose'' and its ``need'' as distinct aspects. The 
``need'' for the action may be described as the underlying problem or 
opportunity to which the agency is responding with the action. The 
``purpose'' may refer to the goal or objective that the bureau is trying 
to achieve, and should be stated to the extent possible, in terms of 
desired outcomes.
    (2) When a bureau is asked to approve an application or permit, the 
bureau should consider the needs and goals of the parties involved in 
the application or permit as well as the public interest. The needs and 
goals of the parties involved in the application or permit may be 
described as background information. However, this description must not 
be confused with the bureau's purpose and need for action. It is the 
bureau's purpose and need for action that will determine the range of 
alternatives and provide a basis for the selection of an alternative in 
a decision.
    (b) Reasonable alternatives. In addition to the requirements of 40 
CFR 1502.14, this term includes alternatives that are technically and 
economically practical or feasible and meet the purpose and need of the 
proposed action.
    (c) Range of alternatives. This term includes all reasonable 
alternatives, or when there are potentially a very large number of 
alternatives then a reasonable number of examples covering the full 
spectrum of reasonable alternatives, each of which must be rigorously 
explored and objectively evaluated, as well as those other alternatives 
that are eliminated from detailed study with a brief discussion of the 
reasons for eliminating them. 40 CFR 1502.14. The Responsible Official 
must not consider alternatives beyond the range of alternatives 
discussed in the relevant environmental documents, but may select 
elements from several alternatives discussed. Moreover, the Responsible 
Official must, in fact, consider all the alternatives discussed in an 
environmental impact statement. 40 CFR 1505.1 (e).
    (d) Preferred alternative. This term refers to the alternative which 
the bureau believes would best accomplish the purpose and need of the 
proposed action while fulfilling its statutory mission and 
responsibilities, giving consideration to economic, environmental, 
technical, and other factors. It may or may not be the same as the 
bureau's proposed action, the non-Federal entity's proposal or the 
environmentally preferable alternative.



Sec. 46.425  Identification of the preferred alternative in an environmental impact statement.

    (a) Unless another law prohibits the expression of a preference, the 
draft environmental impact statement should

[[Page 601]]

identify the bureau's preferred alternative or alternatives, if one or 
more exists.
    (b) Unless another law prohibits the expression of a preference, the 
final environmental impact statement must identify the bureau's 
preferred alternative.



Sec. 46.430  Environmental review and consultation requirements.

    (a) Any environmental impact statement that also addresses other 
environmental review and consultation requirements must clearly identify 
and discuss all the associated analyses, studies, or surveys relied upon 
by the bureau as a part of that review and consultation. The 
environmental impact statement must include these associated analyses, 
studies, or surveys, either in the text or in an appendix or indicate 
where such analysis, studies or surveys may be readily accessed by the 
public.
    (b) The draft environmental impact statement must list all Federal 
permits, licenses, or approvals that must be obtained to implement the 
proposal. The environmental analyses for these related permits, 
licenses, and approvals should be integrated and performed concurrently. 
The bureau, however, need not unreasonably delay its NEPA analysis in 
order to integrate another agency's analyses. The bureau may complete 
the NEPA analysis before all approvals by other agencies are in place.



Sec. 46.435  Inviting comments.

    (a) A bureau must seek comment from the public as part of the Notice 
of Intent to prepare an environmental impact statement and notice of 
availability for a draft environmental impact statement;
    (b) In addition to paragraph (a) of this section, a bureau must 
request comments from:
    (1) Federal agencies;
    (2) State agencies through procedures established by the Governor of 
such state under EO 12372;
    (3) Local governments and agencies, to the extent that the proposed 
action affects their jurisdictions; and
    (4) The applicant, if any, and persons or organizations who may be 
interested or affected.
    (c) The bureau must request comments from the tribal governments, 
unless the tribal governments have designated an alternate review 
process, when the proposed action may affect the environment of either:
    (1) Indian trust or restricted land; or
    (2) Other Indian trust resources, trust assets, or tribal health and 
safety.
    (d) A bureau does not need to delay preparation and issuance of a 
final environmental impact statement when any Federal, State, and local 
agencies, or tribal governments from which comments must be obtained or 
requested do not comment within the prescribed time period.



Sec. 46.440  Eliminating duplication with State and local procedures.

    A bureau must incorporate in its directives provisions allowing a 
State agency to jointly prepare an environmental impact statement, to 
the extent provided in 40 CFR 1506.2.



Sec. 46.445  Preparing a legislative environmental impact statement.

    When required under 40 CFR 1506.8, the Department must ensure that a 
legislative environmental impact statement is included as a part of the 
formal transmittal of a legislative proposal to the Congress.



Sec. 46.450  Identifying the environmentally preferable alternative(s).

    In accordance with the requirements of 40 CFR 1505.2, a bureau must 
identify the environmentally preferable alternative(s) in the record of 
decision. It is not necessary that the environmentally preferable 
alternative(s) be selected in the record of decision.

[[Page 603]]

            Subtitle B--Regulations Relating to Public Lands

[[Page 605]]



      CHAPTER I--BUREAU OF RECLAMATION, DEPARTMENT OF THE INTERIOR




  --------------------------------------------------------------------
Part                                                                Page
402             Sale of lands in Federal reclamation 
                    projects................................         607
404             Reclamation Rural Water Supply Program......         610
413             Assessment by irrigation districts of lands 
                    owned by the United States, Columbia 
                    Basin Project, Washington...............         625
414             Offstream storage of Colorado River water 
                    and development and release of 
                    intentionally created unused 
                    apportionment in the Lower Division 
                    States..................................         627
417             Procedural methods for implementing Colorado 
                    River water conservation measures with 
                    lower basin contractors and others......         633
418             Operating criteria and procedures for the 
                    Newlands Reclamation Project, Nevada....         635
419             Truckee River Operating Agreement...........         659
420             Off-road vehicle use........................         661
422             Law enforcement authority at Bureau of 
                    Reclamation projects....................         664
423             Public conduct on Bureau of Reclamation 
                    facilities, lands, and waterbodies......         668
424             Regulations pertaining to standards for the 
                    prevention, control, and abatement of 
                    environmental pollution of Conconully 
                    Lake and Conconully Reservoir, Okanogan 
                    County, Wash............................         682
426             Acreage limitation rules and regulations....         682
427             Water conservation rules and regulations....         718
428             Information requirements for certain farm 
                    operations in excess of 960 acres and 
                    the eligibility of certain formerly 
                    excess land.............................         719
429             Use of Bureau of Reclamation land, 
                    facilities, and waterbodies.............         721
430             Rules for management of Lake Berryessa......         734
431             General regulations for power generation, 
                    operation, maintenance, and replacement 
                    at the Boulder Canyon Project, Arizona/
                    Nevada..................................         734

[[Page 606]]

432-999

[Reserved]

[[Page 607]]



PART 402_SALE OF LANDS IN FEDERAL RECLAMATION PROJECTS--Table of Contents



                         Subpart A_Public Lands

Sec.
402.1 Purpose of this subpart.
402.2 What lands may be sold; method of sale; limit of acreage.
402.3 Power to sell.
402.4 Citizenship requirement.
402.5 Procedures within the Department.
402.6 Price.
402.7 Notice of sale.
402.8 Terms of sale.
402.9 Contracts.
402.10 Patent.
402.11 Termination or cancellation

Subpart B_Small Tracts; Public and Acquired Lands; Gila Project, Arizona

402.21 Purpose of this subpart.
402.22 Provisions of subpart A applicable.
402.23 Special provisions.



                         Subpart A_Public Lands

    Authority: Sec. 10, 32 Stat. 390, as amended, sec. 6, 46 Stat. 368, 
sec. 5, 64 Stat. 40; 43 U.S.C. 373, 424e, 375f. Interpret or apply 41 
Stat. 605, 46 Stat. 367, sec. 11, 53 Stat. 1197, 64 Stat. 39; 43 U.S.C. 
375, 424 through 424d, 375a, 375b through 375f.

    Source: 18 FR 316, Jan. 15, 1953, unless otherwise noted.



Sec. 402.1  Purpose of this subpart.

    The regulations in this subpart apply to the sale of certain classes 
of lands that are subject to the reclamation laws and that may be sold 
under one of the following statutes:
    (a) The Act of May 20, 1920 (41 Stat. 605; 43 U.S.C. 375);
    (b) The Act of May 16, 1930 (46 Stat. 367; 43 U.S.C. 424 through 
424e); or
    (c) The Act of March 31, 1950 (64 Stat. 39; 43 U.S.C. Sup. 375b 
through 375f).



Sec. 402.2  What lands may be sold; method of sale; limit of acreage.

    (a) Lands which may be sold under the Act of May 20, 1920 (41 Stat. 
605; 43 U.S.C. 375) are lands, not otherwise reserved, which have been 
withdrawn in connection with a Federal irrigation project and improved 
at the expense of the reclamation fund for administration or other like 
purposes and which are no longer needed for project purposes. Not more 
than 160 acres of such lands may be sold to any one person. With one 
exception, such lands must be sold at public auction. If, however, a 
tract is appraised at not more than $300, it may be sold at private sale 
or at public auction and without regard to the provisions of the Act of 
May 20, 1920 respecting notice of publication and mode of sale.
    (b) Lands which may be sold under the Act of May 16, 1930 (46 Stat. 
367; 43 U.S.C. 424 through 424e) are tracts of temporarily or 
permanently unproductive land of insufficient size to support a family. 
A purchaser must be a resident farm owner or entryman on the Federal 
irrigation project where such lands are located and is permitted to 
purchase not more than 160 acres or an area which together with lands 
already owned or entered on such project, does not exceed 320 acres. A 
resident farm owner means a farm owner who is actually residing on the 
farm he owns, and a resident entryman means a homestead entryman who is 
actually residing on the land in his homestead entry. These lands may be 
sold either at public auction or at private sale.
    (c) Lands which may be sold under the Act of March 31, 1950 (64 
Stat. 39; 43 U.S.C. Sup., 375b through 375f) are tracts of land too 
small to be classed as farm units under the Federal reclamation laws. A 
purchaser must be a resident farm owner or entryman (as defined in 
paragraph (b) of this section) on the Federal irrigation project where 
such lands are located and is permitted to purchase not more than 160 
acres or an area which, together with land already owned or entered on 
such project, does not exceed 160 irrigable acres. These lands may be 
sold either at public auction or at private sale.



Sec. 402.3  Power to sell.

    The Commissioner of Reclamation may, in accordance with the 
regulations in this subpart, sell lands under each of the three statutes 
listed in Sec. 402.1. An Assistant Commissioner or an official in 
charge of an office, region, division, district, or project of the 
Bureau of Reclamation, if authorized in writing by the Commissioner of 
Reclamation, may also sell lands under the statutes mentioned in 
accordance

[[Page 608]]

with this subpart, and whenever the term ``Commissioner'' is used in 
this subpart, it includes any official so authorized.



Sec. 402.4  Citizenship requirement.

    Before patent may be issued to a purchaser under the regulations in 
this subpart, he must furnish satisfactory evidence that he is a citizen 
of the United States.



Sec. 402.5  Procedures within the Department.

    (a) Before offering any land for sale under any of the statutes 
listed in Sec. 402.1, the Commissioner should determine that the sale 
will be in the best interest of the project in which the lands are 
located and, if the lands sold are to be irrigated, that there is a 
sufficient water supply for such irrigation.
    (b) When a decision is made to offer lands for sale under any of the 
statutes listed in Sec. 402.1: (1) The Commissioner should notify the 
State Supervisor of the Bureau of Land Management in whose State the 
lands are located, (2) a report showing the status of the lands should 
be obtained from the Manager of the appropriate office of the Bureau of 
Land Management, and (3) a report should be obtained from the Geological 
Survey with respect to the mineral resources of the lands. A copy of the 
report of the Geological Survey should be furnished to the Manager of 
the appropriate land office of the Bureau of Land Management for his use 
in preparing the final certificate.



Sec. 402.6  Price.

    The price of land sold under this subpart shall be not less than 
that fixed by independent appraisal approved by the Commissioner.



Sec. 402.7  Notice of sale.

    The sale of lands at public auction under this part shall be 
administered by the Commissioner. Notice of such sales shall be given by 
publication in a newspaper of general circulation in the vicinity of the 
lands to be sold for either not less than 30 days or once a week for 
five consecutive weeks prior to the date fixed for any such sale. Under 
the Act of May 20, 1920 (41 Stat. 605; 43 U.S.C. 375) notice of sales of 
lands appraised at more than $300 shall also be given by posting upon 
the land. In the case of all sales under this subpart notice may be 
given by such other means as the Commissioner may deem appropriate. 
Where lands are to be sold at private sale, no public notice shall be 
required.



Sec. 402.8  Terms of sale.

    (a) Under the Acts of May 16, 1930 (46 Stat. 367; 43 U.S.C. 424 
through 424e) and March 31, 1950 (64 Stat. 39; 43 U.S.C. Sup., 375b 
through 375f) lands may be sold either for cash or upon deferred 
payments. A sale providing for deferred payments shall be upon terms to 
be established by the Commissioner, except that the Commissioner shall 
require the annual payment of interest at six percent per annum on the 
unpaid balance.
    (b) Under the Act of May 20, 1920 (41 Stat. 605; 43 U.S.C. 375) 
lands may be sold either for cash or upon deferred payments. In 
connection with a sale providing for deferred payments the Commissioner 
shall require that not less than one-fifth the purchase price in cash be 
paid at the time of sale and that the remainder be payable in not more 
than four annual payments with interest at six percent per annum on the 
unpaid balance.
    (c) All payments shall be made to the official of the Bureau of 
Reclamation specified in the contract of sale.



Sec. 402.9  Contracts.

    A contract in form approved by the Commissioner shall be signed by 
the purchaser at the time of sale and executed on behalf of the United 
States by the Commissioner. A copy of the contract shall be furnished to 
the appropriate land office of the Bureau of Land Management for 
entering in the tract books. The contract shall contain a description of 
the land to be sold, the price and terms of sale, a full statement by 
the purchaser respecting his qualifications, including citizenship, a 
description by the purchaser of his present holdings, and a statement by 
him of the irrigable acreage of those holdings. The contract shall also 
contain a statement by the purchaser with respect to his knowledge as to 
whether the land is mineral or non-mineral in

[[Page 609]]

character, as well as all appropriate reservations, mineral and 
otherwise, required by law to be made on entries and patents. 
Assignments of contracts may be made only with the consent of the 
Commissioner and to persons legally qualified to be purchasers.



Sec. 402.10  Patent.

    When a purchaser has complied fully with the provisions of his 
contract and with the applicable provisions of law, including the 
regulations in this subpart, the Commissioner shall issue to the 
purchaser a final receipt so stating. The receipt shall show any liens 
that, under the reclamation laws, must be indicated in the final 
certificate and patent and shall state the statutory authority for such 
liens. The receipt shall be submitted to the Manager of the appropriate 
land office of the Bureau of Land Management and the Manager shall 
prepare a final certificate for the issuance of patent to the purchaser. 
The Manager shall show in the final certificate the above-mentioned 
reclamation liens and any reservations that are required by law to be 
made on the patent.



Sec. 402.11  Termination or cancellation.

    Immediately upon the termination or cancellation of any contract for 
nonpayment or other appropriate reason the Commissioner shall notify the 
proper office of the Bureau of Land Management in order that the tract 
books located there may reflect the termination or cancellation of the 
contract.



Subpart B_Small Tracts; Public and Acquired Lands; Gila Project, Arizona

    Authority: Sec. 15, 53 Stat. 1198, sec. 7, 61 Stat. 630; 43 U.S.C. 
485i, 613e. Interpret or apply secs. 3-4, 61 Stat. 629; 43 U.S.C. 613b 
through 613c.



Sec. 402.21  Purpose of this subpart.

    The regulations in this subpart apply to the sale of small tracts of 
public and acquired lands on the Gila Project, Arizona, that are subject 
to the reclamation laws and that may be sold to actual settlers or 
farmers under the Act of July 30, 1947 (61 Stat. 628; 43 U. S. C. 613-
613e).

[19 FR 431, Jan. 26, 1954]



Sec. 402.22  Provisions of subpart A applicable.

    The regulations in subpart A of this part relative to the sale of 
public lands under the Act of March 31, 1950 (64 Stat. 39; 43 U. S. C., 
Sup. 375b through 375f) shall be applicable to all sales proposed to be 
made under this subpart, except that the provisions of Sec. 402.23(b) 
relative to deeds shall apply in lieu of the provisions of Sec. 402.10 
relative to patents; and excepting further that the residence 
requirements of Sec. 402.2(b) shall not apply.

[18 FR 316, Jan. 15, 1953, as amended at 34 FR 5066, Mar. 11, 1969]



Sec. 402.23  Special provisions.

    (a) After disposition of any lands under this subpart by contract of 
sale and during the time such contract shall remain in effect, said 
lands shall be (1) subject to the provisions of the laws of the State of 
Arizona relating to the organization, government, and regulation of 
irrigation, electrical power, and other similar districts, and (2) 
subject to legal assessment or taxation by any such district and by said 
State or political subdivisions thereof, and to liens for such 
assessments and taxes and to all proceedings for the enforcement 
thereof, in the same manner and to the same extent as privately-owned 
lands; Provided, however, That the United States shall not assume any 
obligation for amounts so assessed or taxed: And provided further, That 
any proceedings to enforce said assessments or taxes shall be subject to 
any title then remaining in the United States, to any prior lien 
reserved to the United States for unpaid installments under contracts of 
sale made under this subpart, and to any obligation for any other 
charges, accrued or unaccrued, for special improvements, construction, 
or operation and maintenance costs of the Gila Project. Any such lands 
situate within the Wellton-Mohawk Division of said project shall also be 
subject to the provisions of the Contract Between the United States and 
Wellton-Mohawk Irrigation and

[[Page 610]]

Drainage District for Construction of Works and for Delivery of Water, 
dated March 4, 1952, including but not limited to the provisions of 
subdivisions (b) and (c) of Article 22.
    (b) When a purchaser has complied fully with the provisions of his 
contract and with the applicable provisions of law, including the 
regulations in this subpart, the Commissioner shall issue a deed to the 
purchaser. The deed shall recite the reservations described in the 
contract of sale.

[19 FR 431, Jan. 26, 1954]



PART 404_RECLAMATION RURAL WATER SUPPLY PROGRAM--Table of Contents



                           Subpart A_Overview

Sec.
404.1 What is the purpose of this part?
404.2 What terms are used in this part?
404.3 What is the Reclamation Rural Water Supply Program?
404.4 What are the goals of the program?
404.5 Who is responsible for implementing this rule?
404.6 Who is eligible to participate in the program?
404.7 What types of projects are eligible for consideration under the 
          program?
404.8 Are there any exceptions that would allow a community with greater 
          than 50,000 inhabitants to be part of an eligible rural water 
          supply project?
404.9 What types of infrastructure and facilities may be included in an 
          eligible rural water supply project?
404.10 Are there certain types of infrastructure and facilities that may 
          not be included in a rural water supply project?
404.11 What type of assistance is available under the program?
404.12 Can Reclamation provide assistance with the construction of a 
          rural water supply project under this program?
404.13 What criteria will Reclamation use to prioritize requests for 
          assistance under the program?
404.14 How will Reclamation provide notice of opportunities for 
          assistance under the program?
404.15 How can I request assistance under the program?
404.16 What information must I include in my statement of interest?
404.17 How will Reclamation evaluate my statement of interest?
404.18 How can I request assistance to conduct a feasibility study?
404.19 What requirements must be met before I can request assistance to 
          conduct a feasibility study?
404.20 What information must I include in my full proposal to conduct an 
          appraisal or a feasibility study?
404.21 What is Reclamation's role in preparing the full proposal?
404.22 How will Reclamation evaluate my full proposal?
404.23 How will Reclamation determine whether you or your contractor is 
          qualified to conduct an appraisal investigation or a 
          feasibility study?
404.24 How will Reclamation determine whether it is cost-effective for 
          me or my contractor to conduct the appraisal investigation or 
          feasibility study?
404.25 How can I request Reclamation to review an appraisal 
          investigation or feasibility study that was not completed 
          under this program?
404.26 Must an appraisal investigation be completed before I can request 
          Reclamation to review a feasibility study that was not 
          completed under this program?
404.27 How will Reclamation evaluate my request to review an appraisal 
          investigation or feasibility study completed without the 
          support of Reclamation?
404.28 Is it possible to expedite the completion of an appraisal 
          investigation or feasibility study?
404.29 Can the level of effort needed to complete an appraisal 
          investigation or feasibility study be scaled to be 
          proportional to the size and cost of the proposed project?

                         Subpart B_Cost-Sharing

404.30 How much Federal funding can Reclamation provide for the 
          completion of an appraisal investigation?
404.31 What forms of non-Federal cost-share payment are acceptable?
404.32 Can Reclamation reduce the non-Federal cost-share required for an 
          appraisal investigation?
404.33 How much Federal funding can Reclamation provide for the 
          completion of a feasibility study?
404.34 Can Reclamation reduce the amount of non-Federal cost-share 
          required for a feasibility study?
404.35 Is there a different non-Federal cost-share requirement for 
          feasibility studies that involve a community greater than 
          50,000 inhabitants?
404.36 Will Reclamation reimburse me for the cost of an appraisal 
          investigation or a feasibility study that was not completed 
          under Sec. 404.11(a) or (b)?
404.37 How will Reclamation determine the appropriate non-Federal share 
          of construction costs?
404.38 Are there different requirements for determining the appropriate 
          non-Federal share of construction costs to be paid by Indian 
          tribes?

[[Page 611]]

404.39 What factors will Reclamation consider in evaluating my 
          capability to pay 25 percent or more of the construction 
          costs?
404.40 What is the non-Federal share of operation, maintenance, and 
          replacement costs?

                   Subpart C_Appraisal Investigations

404.41 How will an appraisal investigation be conducted under this 
          program?
404.42 How much time is provided to complete an appraisal investigation?
404.43 What process will Reclamation follow to determine if an appraisal 
          investigation is ready for review?
404.44 What criteria will Reclamation apply to determine whether it is 
          appropriate to recommend that a feasibility study be 
          conducted?
404.45 What will be included in the appraisal report prepared by 
          Reclamation?
404.46 Who will the appraisal report be provided to?

                      Subpart D_Feasibility Studies

404.47 How will a feasibility study be conducted under this program?
404.48 What process will Reclamation follow to determine if a 
          feasibility study is ready for review?
404.49 What criteria will Reclamation use to determine whether to 
          recommend that a proposed rural water supply project be 
          authorized for construction?
404.50 What information will be included in the feasibility report 
          prepared by Reclamation?
404.51 Are proposed projects under the Rural Water Supply Program 
          reviewed by the Administration?
404.52 Who will the feasibility report be provided to?

                         Subpart E_Miscellaneous

404.53 Does this rule provide authority for the transfer of pre-existing 
          facilities from Federal to private ownership, or from private 
          to Federal ownership?
404.54 Who will hold title to a rural water project that is constructed 
          following the completion of an appraisal investigation or 
          feasibility study under this program?
404.55 Who is responsible for the operation, maintenance, and 
          replacement costs?
404.56 If a financial assistance agreement is entered into for a rural 
          water supply project that benefits more than one Indian tribe, 
          is the approval of each Indian tribe required?
404.57 Does this rule have any effect on state water law?
404.58 Do rural water projects authorized before the enactment of the 
          Rural Water Supply Act of 2006 have to comply with the 
          requirements in this rule?
404.59 If the Secretary recommends a project for construction, is that a 
          promise of Federal funding?
404.60 Does this rule contain an information collection that requires 
          approval by the Office of Management and Budget (OMB)?

    Authority: Public Law 109-451 (43 U.S.C. 2401 et seq.)

    Source: 73 FR 67782, Nov. 17, 2008, unless otherwise noted.



                           Subpart A_Overview



Sec. 404.1  What is the purpose of this part?

    The purpose of this part is to explain how the Reclamation Rural 
Water Supply Program is implemented. This part describes:
    (a) The purpose and priorities of the program;
    (b) How to apply for assistance under the program;
    (c) How Reclamation will evaluate requests for assistance;
    (d) How Reclamation will evaluate an appraisal investigation; and
    (e) How Reclamation will evaluate a feasibility study.



Sec. 404.2  What terms are used in this part?

    The following terms are used in this part:
    Appraisal investigation means an analysis of domestic, municipal, 
and industrial water supply problems, needs, and opportunities in the 
planning area, primarily using existing data. An appraisal investigation 
includes a preliminary assessment of alternatives to address the 
identified water supply problems and needs. The purpose of an appraisal 
investigation is to determine if there is at least one viable 
alternative that warrants a more detailed investigation through a 
feasibility study.
    Appraisal report means the document, prepared by Reclamation, 
setting forth the findings and conclusions reached by Reclamation in its 
evaluation of a completed appraisal investigation. The purpose of the 
appraisal report is for Reclamation to provide a recommendation on 
whether a feasibility study should be initiated.

[[Page 612]]

    Assistance means the transfer of a thing of value to a non-Federal 
project sponsor to carry out a public purpose of support or stimulation 
authorized by law. For purposes of this rule, assistance consists of 
funds provided by Reclamation through an assistance agreement (grant or 
cooperative agreement) and technical assistance performed by 
Reclamation, for the purpose of conducting an appraisal investigation or 
a feasibility study.
    Commissioner means the Commissioner of the Bureau of Reclamation.
    Feasibility report means the document, prepared by Reclamation, 
setting forth the findings and conclusions of a completed feasibility 
study. The purpose of the feasibility report is to provide an 
Administration recommendation to Congress regarding whether the proposed 
rural water supply project should be authorized for construction.
    Feasibility study means a detailed investigation requiring the 
acquisition of primary data, and an analysis of a reasonable range of 
alternatives, including a preferred alternative, to meet identified 
water supply problems, needs, and opportunities in the planning area. A 
feasibility study also includes an analysis of the technical and 
economic feasibility of the proposed project, the impact of the proposed 
project on the environment in compliance with the National Environmental 
Policy Act and other applicable environmental laws, and the financial 
capability of the non-Federal project sponsor to pay the non-Federal 
costs associated with constructing, operating, and maintaining the rural 
water supply project. The completed feasibility study will form the 
basis for the recommendation to Congress in the feasibility report 
regarding whether the proposed rural water supply project should be 
authorized for construction.
    Incidental noncommercial livestock watering means the supply of 
water to pasture taps for the purpose of watering livestock, and other 
livestock watering uses that are incidental to the purpose of the 
project.
    Indian means a person who is a member of an Indian tribe.
    Indian tribe means any Indian tribe, band, nation, or other 
organized group, or community, including pueblos, rancherias, colonies 
and any Alaska Native Village, or regional or village corporation as 
defined in or established pursuant to the Alaska Native Claims 
Settlement Act, which is recognized as eligible for the special programs 
and services provided by the United States to Indians because of their 
status as Indians.
    Noncommercial irrigation of vegetation means the supply of water to 
irrigate lawns, trees, small gardens, and similar vegetation of less 
than 1 acre.
    Non-Federal project sponsor means a non-Federal project entity or 
entities meeting the eligibility criteria in Sec. 404.6. A non-Federal 
project sponsor is also referred to as project sponsor, project 
sponsors, I, me, my, you, or your in this part.
    Program means the Reclamation Rural Water Supply Program that is 
described in Sec. 404.3.
    Reclamation means the Bureau of Reclamation, U.S. Department of the 
Interior.
    Reclamation states means the states and areas referred to in 43 
U.S.C. 391, as amended.
    Regional or watershed perspective means an approach to rural water 
supply planning directed at meeting the needs of geographically 
dispersed localities across a region or a watershed that will take 
advantage of economies of scale and foster opportunities for 
partnerships. This approach also takes into account the 
interconnectedness of water and land resources, encourages the active 
participation of all interested groups, and uses the full spectrum of 
technical disciplines in activities and decision-making.
    Rural Water Supply Project, or project, means:
    (a) A project that is designed to serve a community or groups of 
communities, each of which has a current population of not more than 
50,000 inhabitants, which may include Indian tribes and tribal 
organizations, dispersed home sites, or rural areas with domestic, 
municipal, and industrial water, including incidental noncommercial 
livestock watering and noncommercial irrigation of vegetation.

[[Page 613]]

    (b) A rural water supply project may include the following, or any 
combination of the following:
    (1) The construction or installation of new rural water supply 
infrastructure and facilities;
    (2) The improvement or upgrade of existing rural water supply 
infrastructure and facilities;
    (3) The extension of existing rural water supply infrastructure and 
facilities to reach an increased service area; and
    (4) The inter-connection of existing rural water supply 
infrastructure and facilities currently serving individual communities, 
dispersed homesites, rural areas, or tribes.
    Secretary means the Secretary of the Interior, acting through the 
Commissioner of the Bureau of Reclamation.
    Tribal organization means:
    (a) The recognized governing body of an Indian tribe; and
    (b) Any legally established organization of Indians that is 
controlled, sanctioned, or chartered by the governing body, or 
democratically elected by the adult members of the Indian community to 
be served by the organization.



Sec. 404.3  What is the Reclamation Rural Water Supply Program?

    This program addresses domestic, municipal, and industrial water 
supply needs in rural areas of the Reclamation States. Reclamation's 
experience, technical expertise, and financial resources assist rural 
communities to identify their water supply problems and needs, and 
evaluate options for addressing those needs. Using a regional or 
watershed perspective, Reclamation assists in planning projects that 
maximize regional and national benefits. Through this program, 
Reclamation works in cooperation with non-Federal project sponsors in 
Reclamation States on a cost-share basis to:
    (a) Investigate and identify opportunities to ensure safe and 
adequate rural water supplies for domestic, municipal, and industrial 
use in rural areas and small communities, including Indian tribes;
    (b) Plan the design and construction of rural water supply projects 
through the conduct of appraisal investigations and feasibility studies; 
and
    (c) Oversee, as appropriate, the construction of rural water supply 
projects that the Secretary recommends to Congress, which are 
subsequently authorized and funded for construction by Congress.



Sec. 404.4  What are the goals of the program?

    The goals of the program are to:
    (a) Assess and address urgent and compelling rural water supply 
needs that are not currently met by other programs;
    (b) Promote and apply a regional or watershed perspective to water 
resources management in planning rural water supply projects;
    (c) Develop solutions to address rural water supply needs that are 
cost-effective, and that generate national net economic benefits as 
required under the ``Economic Principles and Guidelines for Water and 
Related Land Resources'' (Principles and Guidelines). The Principles and 
Guidelines, published in 1983 by the Water Resources Council pursuant to 
the Water Resources Planning Act of 1965 (Pub. L. 89-80) as amended, is 
incorporated by reference into this section with the approval of the 
Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 
51. The Principles and Guidelines are intended to ensure proper and 
consistent planning by Federal agencies in the formulation and 
evaluation of water and related land resources implementation studies. 
To enforce any edition other than that specified in this section, the 
material must be available to the public and approved by the Director of 
the Federal Register. All approved material is available for inspection 
at the National Archives and Records Administration (NARA). For 
information on the availability of this material at NARA, call 202-741-
6030 or go to http://www.archives.gov/federal--register/code--of--
federal--regulations/ibr--locations.html. Also, a copy of this 
publication may be obtained and inspected at: Bureau of Reclamation, 
Denver Federal Center, Building 67, Denver, CO 80225, Policy and Program 
Services, 303-445-2906 where copies are on file, or at the following 
website: http://intra.gp.usbr.gov/resource--services/

[[Page 614]]

planning--process/principles--guidelines.pdf.
    (d) Encourage partnerships among rural communities, Indian tribes or 
tribal organizations, states or political subdivisions of a state, water 
districts and associations, and other eligible entities, to address 
rural water supply issues; and
    (e) Complement other existing programs and authorities that address 
rural water supply issues, and encourage collaboration between programs 
where appropriate.



Sec. 404.5  Who is responsible for implementing this rule?

    Authority to implement and make determinations under this rule has 
been delegated from the Secretary to the Commissioner. The Commissioner 
is authorized to implement this program and may re-delegate that 
authority as needed. Questions regarding the program should be directed 
to your local Reclamation office.



Sec. 404.6  Who is eligible to participate in the program?

    Those eligible to participate in the program include:
    (a) A state or political subdivision of a state, including a 
department, agency, municipality, county, or other regional or local 
authority;
    (b) An Indian tribe or tribal organization; or
    (c) An entity created under state law that has water management or 
water delivery authority, including for example, an irrigation or water 
district, canal company, water users association, rural water 
association or district, a joint powers authority, or other qualifying 
entity; and
    (d) Any combination of the entities listed above, which collectively 
are referred to as the non-Federal project sponsor, as defined in Sec. 
404.2.



Sec. 404.7  What types of projects are eligible for consideration under the program?

    To be eligible for consideration under the program, a rural water 
supply project must:
    (a) Meet the definition of a rural water supply project in Sec. 
404.2; and
    (b) Be located in a Reclamation State, as defined in Sec. 404.2.



Sec. 404.8  Are there any exceptions that would allow a community 

with greater than 50,000 inhabitants to be part of an eligible rural water supply project?

    Yes. A town or community with a population in excess of 50,000 
inhabitants may participate in or be served by an eligible rural water 
supply project under this program if Reclamation determines that the 
town or community is a critical partner whose involvement substantially 
contributes to the financial viability of the proposed project. Such a 
community could be expected to bear a greater proportionate share of the 
planning, design, and construction costs than other project sponsors, 
consistent with their capability to pay and the benefits they derive 
from the project.



Sec. 404.9  What types of infrastructure and facilities may be included in an eligible rural water supply project?

    A rural water supply project may include, but is not limited to, the 
following types of infrastructure and facilities:
    (a) Pumps, pipes, wells, surface water intakes and other diversion, 
transmission, or distribution systems;
    (b) Storage tanks and small impoundments;
    (c) Water treatment facilities for potable water supplies, including 
desalination facilities;
    (d) Buildings necessary to house equipment and serve as a center for 
operations;
    (e) Power transmission and related facilities required for the rural 
water supply project;
    (f) Equipment and management tools for water conservation, 
groundwater recovery, and water reuse and recycling;
    (g) Associated features to mitigate adverse environmental 
consequences of a project; and
    (h) Appurtenances.

[[Page 615]]



Sec. 404.10  Are there certain types of infrastructure and facilities that may not be included in a rural water supply project?

    Yes. A rural water supply project may not include:
    (a) Any infrastructure or facilities that would deliver water for 
commercial irrigation; and
    (b) The construction of major impoundment structures.



Sec. 404.11  What type of assistance is available under the program?

    Under the Reclamation Rural Water Supply Program, you may:
    (a) Request Reclamation to conduct an appraisal investigation or 
feasibility study for a rural water supply project for you, with your 
cooperation;
    (b) Request funding through a grant or cooperative agreement to 
enable you to conduct an appraisal investigation or feasibility study 
for a rural water supply project yourself, or through a contractor; or
    (c) Request Reclamation to review and approve an appraisal 
investigation or feasibility study completed without assistance from 
Reclamation.



Sec. 404.12  Can Reclamation provide assistance with the construction of a rural water supply project under this program?

    Reclamation may provide assistance with the construction of a rural 
water supply project developed under this program if Congress 
specifically authorizes the project and appropriates funds for 
construction.



Sec. 404.13  What criteria will Reclamation use to prioritize requests for assistance under the program?

    All requests for assistance that meet the eligibility requirements 
in Sec. Sec. 404.6 and 404.7 will be evaluated by applying the 
following prioritization criteria:
    (a) Whether there is an urgent and compelling need for a rural water 
supply project that would:
    (1) Address present or future water supply needs; or
    (2) Promote public health and safety by addressing present and 
preventing future violations of drinking water standards;
    (b) The extent to which a rural water supply project promotes and 
applies a regional or watershed perspective to water resources 
management as defined in Sec. 404.2;
    (c) The financial need of the project sponsors for assistance with 
the planning, design, and construction of a rural water supply project, 
as demonstrated by readily available local and regional economic 
indicators;
    (d) The extent to which Reclamation is uniquely qualified to plan, 
design, and build the project;
    (e) Whether a rural water supply project helps meet applicable 
requirements established by law;
    (f) The extent to which a rural water supply project serves Indian 
tribes that have nonexistent or inadequate water systems;
    (g) The extent to which a rural water supply project is ineligible 
for comprehensive funding (sufficient to fully fund planning and 
construction of the entire project) through other assistance programs;
    (h) The extent to which a rural water supply project is identified 
as a priority by state, tribal or local governments;
    (i) Whether a rural water supply project incorporates an innovative 
approach that effectively addresses water supply problems and needs, 
either by applying new technology or by employing a creative 
administrative or cooperative solution; and
    (j) Other criteria that Reclamation deems appropriate.



Sec. 404.14  How will Reclamation provide notice of opportunities for assistance under the program?

    Notice of opportunities for assistance to conduct an appraisal 
investigation or a feasibility study under Sec. 404.11(a) or (b) will 
be posted as a program announcement on the required government-wide Web 
site for announcement of Federal assistance opportunities. Opportunities 
for assistance will also be advertised locally by Reclamation regional 
and area offices. You are encouraged to contact your local Reclamation 
office to find out about upcoming program announcements and to discuss 
your interest in the program.

[[Page 616]]



Sec. 404.15  How can I request assistance under the program?

    This table summarizes the requirements for requesting assistance 
under the program. The requirements are described in more detail in the 
sections that follow.

------------------------------------------------------------------------
       Type of assistance requested           How to request assistance
------------------------------------------------------------------------
1. Request Reclamation to conduct an        Submit a statement of
 appraisal investigation.                    interest as described in
                                             Sec.  404.16. Reclamation
                                             will then advise you
                                             whether you are eligible to
                                             submit a full proposal.
2. Request funding to conduct an appraisal  Submit a statement of
 investigation yourself or through a         interest as described in
 contractor.                                 Sec.  404.16. Reclamation
                                             will then advise you
                                             whether you are eligible to
                                             submit a full proposal.
3. Request Reclamation to conduct a         Submit a full proposal as
 feasibility study.                          described in Sec.  404.20.
4. Request funding to conduct a             Submit a full proposal as
 feasibility study yourself or through a     described in Sec.  404.20.
 contractor.
5. Request Reclamation to review and        Submit the investigation or
 approve an appraisal investigation or a     study and a cover letter to
 feasibility study completed without         your local Reclamation
 Reclamation assistance.                     office, as described in
                                             Sec.  404.25.
------------------------------------------------------------------------



Sec. 404.16  What information must I include in my statement of interest?

    A statement of interest is a preliminary scope of work that must 
include sufficient information to address all of the eligibility 
criteria described in Sec. Sec. 404.6 and 404.7 and the prioritization 
criteria in Sec. 404.13, as well as any information required by the 
program announcement. In general, this may include, but is not limited 
to:
    (a) Name, organization, and contact information, including the 
identification of any partners that may be involved in the appraisal 
investigation;
    (b) Location map and description of the areas to be served by the 
proposed rural water supply project, including:
    (1) Geographical scope;
    (2) Demographics; and
    (3) Existing rural water supply infrastructure, if any;
    (c) Type of assistance being requested through this program as 
described in Sec. 404.11;
    (d) A general description of the problems, needs, and opportunities 
that the appraisal investigation is being formulated to address, 
supported by data or documentation where appropriate. The information 
provided must also address each of the prioritization criteria in Sec. 
404.13;
    (e) A general description of project alternatives that may be 
considered in the investigation, including:
    (1) Water supply management alternatives (e.g., types of 
infrastructure or facilities to deliver new water supplies), if known;
    (2) Water demand management alternatives (e.g., water conservation 
and other approaches to reduce water consumption), if known; and
    (3) Potential sources of water supply.
    (f) A general description of any prior studies on the problems, 
needs, and water management alternatives at issue; and,
    (g) A general description of existing sources of water supply.



Sec. 404.17  How will Reclamation evaluate my statement of interest?

    (a) Reclamation will apply the eligibility requirements in 
Sec. Sec. 404.6 and 404.7 and the prioritization criteria in Sec. 
404.13, to determine whether the proposed rural water supply project is 
eligible for further consideration through a full proposal;
    (b) If the proposed project is not eligible for further 
consideration, Reclamation will notify you in writing of that outcome; 
and,
    (c) If the proposed project is eligible for further consideration, 
Reclamation will notify you in writing that you are eligible to develop 
a full proposal to conduct an appraisal investigation, as described in 
Sec. 404.20.



Sec. 404.18  How can I request assistance to conduct a feasibility study?

    To request assistance to conduct a feasibility study under Sec. 
404.11(a) or (b), consistent with Reclamation's recommendation in an 
appraisal report, you must submit a full proposal to conduct a 
feasibility study in response to the program announcement, pursuant to 
Sec. 404.20. You are not required to submit a statement of interest.

[[Page 617]]



Sec. 404.19  What requirements must be met before I can request assistance to conduct a feasibility study?

    All of the following requirements must be met before you can request 
assistance to conduct a feasibility study:
    (a) An appraisal investigation must be completed, with or without 
assistance from Reclamation;
    (b) Reclamation must have reviewed any appraisal investigation 
prepared without its assistance;
    (c) Reclamation must have prepared an appraisal report evaluating 
the appraisal investigation; and,
    (d) The appraisal report must include a recommendation by 
Reclamation, if appropriate, that a feasibility study should be 
conducted, as described in Sec. 404.45.



Sec. 404.20  What information must I include in my full proposal to conduct an appraisal or a feasibility study?

    A full proposal to conduct an appraisal investigation or a 
feasibility study is a detailed scope of work that must include 
sufficient information to address the eligibility criteria described in 
Sec. Sec. 404.6 and 404.7, and the prioritization criteria in Sec. 
404.13. In general this may include, but is not limited to:
    (a) The issues to be addressed in the appraisal investigation or 
feasibility study and a plan for addressing those issues. The 
information provided must also address each of the prioritization 
criteria in Sec. 404.13;
    (b) A description of who will conduct the appraisal investigation or 
feasibility study, which could include you, your contractor, or 
Reclamation;
    (c) If you propose that either you or your contractor will conduct 
the appraisal investigation or feasibility study, you must include the 
information necessary for Reclamation to determine whether you or your 
contractor are qualified to conduct the investigation or study, and 
whether having you or your contractor conduct it is a cost-effective 
alternative, in accordance with the criteria in Sec. Sec. 404.23 and 
404.24;
    (d) A schedule for conducting the work, identifying specific tasks 
and the duration of each task, and major milestones with dates for each 
milestone;
    (e) A complete budget for conducting the appraisal investigation or 
feasibility study, including an itemized tabular summary of known or 
expected costs and a narrative description of those costs;
    (f) A funding plan that details how the appraisal investigation or 
feasibility study will be paid for, taking into consideration applicable 
assistance and non-Federal cost-share requirements; and
    (g) Any other information requested by Reclamation in the program 
announcement.



Sec. 404.21  What is Reclamation's role in preparing the full proposal?

    (a) If you are requesting Reclamation to prepare an appraisal 
investigation or feasibility study on your behalf under Sec. 404.11(a), 
Reclamation will work with you on a collaborative basis to provide the 
information requested in Sec. 404.20(a), (b), (d), (e) and (f).
    (b) If you are requesting funding through a grant or cooperative 
agreement under Sec. 404.11(b), Reclamation will be available to 
provide you with guidance and assistance in preparing your full 
proposal, upon request.



Sec. 404.22  How will Reclamation evaluate my full proposal?

    (a) Reclamation will evaluate the full proposal to conduct an 
appraisal or a feasibility study in order to ensure that it meets the 
requirements in Sec. 404.20 and is, therefore, complete. Reclamation 
will notify you in writing of the outcome of this determination.
    (b) If it is complete, Reclamation will evaluate your proposal 
against all other proposals received, using a competitive review process 
based on an application of the prioritization criteria in Sec. 404.13.
    (c) Full proposals will be selected for award of assistance based 
on:
    (1) The evaluation process, as described in Sec. 404.22(b); and
    (2) The availability of appropriations; and
    (3) Other criteria that Reclamation deems appropriate.
    (d) Once the proposal evaluation and selection process is complete, 
you will be notified in writing of the outcome of your request for 
assistance.

[[Page 618]]



Sec. 404.23  How will Reclamation determine whether you or your 

contractor is qualified to conduct an appraisal investigation or a feasibility study?

    If you are requesting funding under Sec. 404.11(b) to conduct an 
appraisal investigation or a feasibility study yourself or though a 
contractor, Reclamation will evaluate whether you, your technical staff, 
or contractor are qualified to perform the appraisal investigation or 
feasibility study based on their demonstrated qualifications and 
experience in performing or managing similar activities. Areas of 
expertise needed may include, but are not limited to, water management 
planning, engineering, hydrology, biology, demography, finance, and 
economics.



Sec. 404.24  How will Reclamation determine whether it is

cost-effective for me or my contractor to conduct the appraisal investigation or feasibility study?

    Reclamation will take the following steps to determine whether it is 
cost-effective for you or your contractor to conduct the appraisal 
investigation or feasibility study:
    (a) Reclamation will review and evaluate the reasonableness of your 
full proposal, including the scope of work, the estimated costs, 
anticipated work schedule, and products to be delivered;
    (b) At its discretion, Reclamation may also choose to prepare an 
independent government cost estimate to analyze whether it would be more 
cost-effective for Reclamation to complete the appraisal investigation 
or feasibility study;
    (c) Reclamation will notify you in writing of its determination 
regarding the cost-effectiveness of your proposal and the basis for its 
decision.



Sec. 404.25  How can I request Reclamation to review an appraisal

investigation or feasibility study that was not completed under this program?

    (a) To request Reclamation to review an appraisal investigation or 
feasibility study that was not completed under this program as provided 
under Sec. 404.11(c), you must submit the appraisal investigation or 
feasibility study to your local Reclamation office with a cover letter 
requesting Reclamation to review it.
    (b) Your cover letter must address the eligibility criteria set 
forth in Sec. Sec. 404.6 and 404.7 and the prioritization criteria in 
Sec. 404.13.
    (c) You may make your submittal at any time and are not required to 
submit a statement of interest in response to the program announcement, 
as required for requests to conduct an appraisal investigation or 
feasibility study under Sec. 404.11(a) or (b).



Sec. 404.26  Must an appraisal investigation be completed before 

I can request Reclamation to review a feasibility study that was not completed under this 
          program?

    In general, Reclamation must review an appraisal investigation and 
prepare an appraisal report recommending that a feasibility study be 
conducted before Reclamation can review a feasibility study completed 
without Reclamation assistance under Sec. 404.11(c). However, 
Reclamation may review a feasibility study without first reviewing and 
approving an appraisal investigation, if Reclamation determines that:
    (a) No appraisal investigation was prepared for the project;
    (b) The feasibility study satisfies the appraisal criteria set forth 
in Sec. 404.44; and
    (c) Reclamation documents these findings in the feasibility report.



Sec. 404.27  How will Reclamation evaluate my request to review an 

appraisal investigation or feasibility study completed without the support of Reclamation?

    (a) Upon receipt of your submittal, Reclamation will apply the 
eligibility criteria in Sec. Sec. 404.6 and 404.7 and the 
prioritization criteria in Sec. 404.13, to determine whether the 
appraisal investigation or feasibility study is eligible to be reviewed 
under the program. Reclamation will notify you in writing of the outcome 
of this determination.
    (b) If the proposed appraisal investigation or feasibility study is 
eligible for review, Reclamation will evaluate the investigation or 
study in accordance with the process set forth in Sec. 404.43, for an 
appraisal investigation, or Sec. 404.48, for a feasibility study.

[[Page 619]]



Sec. 404.28  Is it possible to expedite the completion of an appraisal investigation or feasibility study?

    Yes. If Reclamation determines that a community or groups of 
communities to be served by a proposed rural water supply project has 
urgent and compelling water needs, Reclamation will, to the maximum 
extent practicable, expedite appraisal investigations and reports and 
feasibility studies and reports conducted under this program.



Sec. 404.29  Can the level of effort needed to complete an appraisal 

investigation or feasibility study be scaled to be proportional to the size and cost of 
          the proposed project?

    Yes. In general, the level of effort for an appraisal investigation 
or feasibility study should be scaled to take into consideration the 
total size, cost, and complexity of the proposed rural water supply 
project in order to reduce the total cost of the investigation or study. 
However, the effort to scale the appraisal investigation or feasibility 
study must not diminish the quality of the data, the analysis, or the 
overall completeness of the investigation or study.



                         Subpart B_Cost-Sharing



Sec. 404.30  How much Federal funding can Reclamation provide for the completion of an appraisal investigation?

    In general, Reclamation will be responsible for 100 percent of the 
cost of an appraisal investigation conducted under Sec. 404.11(a) or 
(b), up to $200,000. If the cost of the appraisal investigation exceeds 
$200,000, your cost-share will be 50 percent of the amount exceeding 
$200,000.



Sec. 404.31  What forms of non-Federal cost-share payment are acceptable?

    The non-Federal cost-share for an appraisal investigation or a 
feasibility study may be provided in the form of money or in-kind 
services that Reclamation determines are necessary and reasonable for 
the conduct and completion of the investigation or study. The 
determination of allowability, allocability, and reasonableness is 
governed by the Cost Principles of the Office of Management and Budget, 
codified at 2 CFR 220, 225, and 230, and in the Federal Acquisitions 
Regulations, Part 312.



Sec. 404.32  Can Reclamation reduce the non-Federal cost-share required for an appraisal investigation?

    Yes. Reclamation may reduce the non-Federal cost-share for appraisal 
investigations below 50 percent of the costs exceeding $200,000, if:
    (a) Reclamation determines that there is an overwhelming Federal 
interest in conducting the appraisal investigation, and you demonstrate 
financial hardship. Financial hardship will be determined in accordance 
with Reclamation's official policies, guidance and standards, which are 
available at your local Reclamation office; and
    (b) Reclamation consults with other Federal agencies that are 
partners in the project and determines that a reduction in the non-
Federal cost-share is appropriate.



Sec. 404.33  How much Federal funding can Reclamation provide for the completion of a feasibility study?

    In general, Reclamation will be responsible for 50 percent of the 
cost of a feasibility study conducted under Sec. 404.11(a) or (b). You 
will be responsible to pay for the remaining 50 percent of the cost of 
the study using non-Federal funding.



Sec. 404.34  Can Reclamation reduce the amount of non-Federal cost-share required for a feasibility study?

    Yes. Reclamation may reduce the non-Federal cost-share required for 
a feasibility study to an amount less than 50 percent of the study costs 
if:
    (a) Reclamation determines that there is an overwhelming Federal 
interest in conducting the feasibility study, and you demonstrate 
financial hardship. Financial hardship will be determined in accordance 
with Reclamation's standards, which are available at your local 
Reclamation office; and
    (b) Reclamation consults with other Federal agencies that are 
partners in the project and determines that a reduction in the non-
Federal cost-share is appropriate.

[[Page 620]]



Sec. 404.35  Is there a different non-Federal cost-share requirement 

for feasibility studies that involve a community greater than 50,000 inhabitants?

    Yes. If the feasibility study involves a rural water supply system 
that will serve a community with a population in excess of 50,000 
inhabitants, pursuant to the exception provided in Sec. 404.8, you may 
be required to pay more than 50 percent of the costs of the study. 
Determination of the appropriate amount of the non-Federal cost-share 
will be based on the same criteria used to evaluate your capability to 
pay the non-Federal share of construction costs, set forth in Sec. 
404.39.



Sec. 404.36  Will Reclamation reimburse me for the cost of an appraisal

investigation or a feasibility study that was not completed under Sec. 404.11(a) or 
          (b)?

    No. The cost-share provisions described in this rule only apply to 
appraisal investigations and feasibility studies that are completed 
under the program pursuant to Sec. 404.11(a) or (b). Reclamation will 
not reimburse you or provide program funding for any expenses related to 
an appraisal investigation or a feasibility study that is completed 
without assistance from Reclamation.



Sec. 404.37  How will Reclamation determine the appropriate non-Federal share of construction costs?

    Reclamation will determine the appropriate non-Federal share of 
construction costs in the process of developing the feasibility report. 
The non-Federal cost-share will be:
    (a) At least 25 percent of the total construction costs; and
    (b) An additional amount based on your capability to pay, as 
appropriate, to be determined by Reclamation based on the factors in 
Sec. 404.39.



Sec. 404.38  Are there different requirements for determining the appropriate non-Federal share of construction costs to be paid by Indian tribes?

    Yes. The appropriate non-Federal share of construction costs to be 
paid by Indian tribes will be based on:
    (a) Consideration of an Indian tribe's capability to pay at least 25 
percent of the construction costs, to be determined in accordance with 
the factors in Sec. 404.39; and
    (b) If Reclamation determines, based on the analysis in Sec. 
404.38(a), that an Indian tribe is not capable of paying at least 25 
percent of the construction costs, Reclamation may recommend in its 
feasibility report that the collection of all or part of the non-Federal 
construction costs apportioned to an Indian tribe be deferred, unless or 
until Reclamation determines that the Indian tribe should pay all or a 
portion of those costs.



Sec. 404.39  What factors will Reclamation consider in evaluating my capability to pay 25 percent or more of the construction costs?

    Reclamation will consider the following factors:
    (a) Economic factors for the project area, relative to the state 
average, including:
    (1) Per capita income;
    (2) Median household income; and
    (3) The poverty rate;
    (b) The ability of the project sponsor to raise tax revenues or 
assess fees such as user fees and ad valorum taxes or issue bonds;
    (c) The strength of the project sponsor financial statements in 
comparison to other similar entities over the previous 4 years, 
including a review of:
    (1) Current (includes cash and inventory) and non-current assets 
(property, plants etc.);
    (2) Net Assets (total assets minus total liabilities);
    (3) Changes to net assets;
    (4) Operating revenues (water and power sales);
    (5) Operating expenses (variable costs and depreciation, maintenance 
and repair);
    (6) Cash flow from operating activities (positive value from water 
sales minus payments to supplies and employees);
    (7) Current (current bonds payable and accounts payable) and non-
current liabilities (long term debt payable);
    (8) Outstanding debts and all other financial obligations;
    (9) Collateral/equity as appropriate;

[[Page 621]]

    (10) Cash flows from capital and related financing activities 
(negative value from principle paid on bonds and interest payments);
    (11) Net cash flow; and
    (12) Any non-operating revenues and expenses;
    (d) Funding commitments from non-Federal sources, other than the 
non-Federal project sponsor, including resources committed by state, 
county, or local governments;
    (e) The existing cost of water and the cost to develop new water 
supplies in the region; and
    (f) The impact of the proposed project on water rates;
    (g) The projected impact of the proposed project on the non-Federal 
project sponsor's ability to raise or generate revenues;
    (h) The non-Federal project sponsor's financial history including 
their past performance on repaying loans and other debts; and
    (i) Any other financial means of the non-Federal project sponsor 
that is not captured in this subsection.



Sec. 404.40  What is the non-Federal share of operation, maintenance, and replacement costs?

    You are required to pay 100 percent of the operation, maintenance, 
and replacement costs of any rural water supply project planned under 
this program.



                   Subpart C_Appraisal Investigations



Sec. 404.41  How will an appraisal investigation be conducted under this program?

    Appraisal investigations will be conducted in accordance with 
Reclamation-approved standards governing the approach, process and 
content of the appraisal investigation. You can obtain information about 
Reclamation's standards and requirements for conducting an appraisal 
investigation by contacting your local Reclamation office.



Sec. 404.42  How much time is provided to complete an appraisal investigation?

    An appraisal investigation must be scheduled for completion not 
later than 2 years after the date on which the appraisal investigation 
is initiated, unless otherwise agreed to in writing by Reclamation.



Sec. 404.43  What process will Reclamation follow to determine if an appraisal investigation is ready for review?

    (a) Reclamation will evaluate whether the appraisal investigation 
adequately addresses all of the items required in Reclamation's 
standards for conducting appraisal investigations, and is, therefore 
ready for review. Reclamation standards and requirements for the content 
of an appraisal investigation are available at your local Reclamation 
office. Reclamation will notify you in writing of the outcome of this 
determination within 90 business days from the date of Reclamation's 
receipt of the appraisal investigation;
    (b) If the appraisal investigation does not include the required 
information, you will be notified in writing of the reasons why, and you 
will have an opportunity to make changes and re-submit the corrected 
appraisal investigation to Reclamation for additional review. As 
appropriate, Reclamation will work with you to suggest approaches to 
correct the appraisal investigation;
    (c) Once Reclamation determines that the appraisal investigation 
includes all of the required information, Reclamation will review the 
investigation to determine, based on an application of the criteria set 
forth in Sec. 404.44, whether or not it is appropriate to proceed to a 
feasibility study. Reclamation will document its findings in an 
appraisal report, as described in Sec. 404.45;
    (d) Reclamation's review of an appraisal investigation will take no 
longer than 180 business days from its receipt of the appraisal 
investigation to its completion of the appraisal report, excluding time 
when Reclamation is waiting for additional information from the project 
sponsor.

[[Page 622]]



Sec. 404.44  What criteria will Reclamation apply to determine 

whether it is appropriate to recommend that a feasibility study be conducted?

    In reviewing an appraisal investigation, Reclamation will apply the 
following criteria to determine whether at least one of the alternatives 
identified is appropriate for further analysis through a feasibility 
study, or whether the investigation should be terminated without 
conducting a feasibility study, including:
    (a) Whether a reasonable range of alternatives (structural or non-
structural) have been formulated and evaluated;
    (b) Whether the recommendation for further study of one or more 
alternatives is clearly supported by the analysis in the appraisal 
investigation; and
    (c) For each alternative considered in the investigation, whether 
the alternative:
    (1) Identifies viable water supplies and water rights sufficient to 
supply the proposed service area, including all practicable water 
sources such as lower quality waters, non-potable waters, and water-
reuse-based water supplies;
    (2) Has a positive effect on public and health and safety;
    (3) Will meet water demand, including projected future needs;
    (4) Provides environmental benefits, including source water 
protection;
    (5) Applies a regional or watershed perspective and promotes 
benefits in the region in which the project is carried out;
    (6) Implements an integrated water resources management approach;
    (7) Enhances water management flexibility, including providing for 
local control of water supplies and, where applicable, encouraging 
participation in water banking and markets;
    (8) Promotes long-term protection of water supplies;
    (9) Includes preliminary cost estimates that are reasonable and 
supported;
    (10) Is cost-effective and generates national net economic benefits 
as required under the Principles and Guidelines (incorporated by 
reference at Sec. 404.4);
    (11) For each alternative proposed for further evaluation in a 
feasibility study, whether the project sponsor has the capability to pay 
100 percent of the costs associated with the operation, maintenance, and 
replacement of the facilities constructed or developed; and
    (12) Other factors that Reclamation deems appropriate.



Sec. 404.45  What will be included in the appraisal report prepared by Reclamation?

    The appraisal report prepared by Reclamation will include 
Reclamation's finding as to whether or not it is appropriate to proceed 
to a feasibility study, based on Reclamation's review of the appraisal 
investigation and application of the criteria set forth in Sec. 404.44, 
and the reasons supporting that finding.



Sec. 404.46  Who will the appraisal report be provided to?

    A copy of the appraisal report will be provided to you. Reclamation 
will also publish a notice of availability of the appraisal report in 
the Federal Register and will make a copy of the report available to the 
public upon request.



                      Subpart D_Feasibility Studies



Sec. 404.47  How will a feasibility study be conducted under this program?

    Feasibility studies will be conducted in accordance with 
Reclamation's standards governing the approach, process and content of 
the feasibility study, including the Principles and Guidelines 
(incorporated by reference at Sec. 404.4). You can obtain information 
about Reclamation's standards and requirements for conducting 
feasibility studies by contacting your local Reclamation office.



Sec. 404.48  What process will Reclamation follow to determine if a feasibility study is ready for review?

    (a) Reclamation will evaluate whether the feasibility study 
adequately addresses all of the items required in Reclamation's 
standards for conducting a feasibility study, and is, therefore, ready 
for review. Reclamation standards and requirements for the content

[[Page 623]]

of a feasibility study are available at your local Reclamation office. 
Reclamation will notify you in writing of the outcome of this 
determination within 90 business days from the date of Reclamation's 
receipt of the feasibility study;
    (b) If the feasibility study does not include the required 
information, you will be notified in writing of the reasons why, and you 
will have an opportunity to make changes and re-submit the corrected 
feasibility study to Reclamation for additional review. Where 
appropriate, Reclamation will work with you to suggest approaches to 
correct the feasibility study;
    (c) Once Reclamation determines that the feasibility study includes 
all of the required information, Reclamation will review the study to 
determine, based on application of the criteria set forth in Sec. 
404.49, whether or not it is appropriate to recommend to Congress that 
it authorize construction of the project;
    (d) Reclamation's review of the feasibility study will take no 
longer than 180 business days from the date that Reclamation determines 
that the study includes all of the required information and is ready for 
review; and
    (e) Reclamation will document its findings in a feasibility report, 
as more fully described in section Sec. 404.50.



Sec. 404.49  What criteria will Reclamation use to determine whether

to recommend that a proposed rural water supply project be authorized for construction?

    In reviewing a feasibility study, Reclamation will assure that the 
proposed project is consistent with the policies and programs of the 
President and will apply the following criteria to evaluate and 
determine whether it is appropriate to recommend authorization for 
construction:
    (a) The degree to which the project meets the prioritization 
criteria in Sec. 404.13;
    (b) The outcome of the environmental analysis;
    (c) Whether there is a Federal interest in the project, including;
    (1) A clearly defined Federal nexus to a proposed project;
    (2) The Federal cost of the project in relation to the amount of 
Federal resources likely to be available; and
    (d) Whether the recommended project alternative is clearly supported 
by the feasibility study, based on application of the following factors, 
including the extent to which the alternative:
    (1) Addresses near and long-term water demand;
    (2) Advances public health and safety and consideration of other 
benefits of the proposed rural water supply project;
    (3) Addresses environmental quality and source water protection 
issues;
    (4) Addresses opportunities to treat and use low-quality or non-
potable water, water-reuse based supplies, and brackish and saline 
waters, through innovative and economically viable treatment 
technologies;
    (5) Addresses opportunities for water conservation through 
structural or non-structural approaches and demonstration technologies 
to reduce water use and water system costs;
    (6) Addresses opportunities to take advantage of economic incentives 
and the use of market-based mechanisms;
    (7) Includes a reasonable and supported estimate of construction 
costs and operation, maintenance, and replacement costs;
    (8) Is consistent with the Principles and Guidelines (incorporated 
by reference at Sec. 404.4).
    (9) Includes a reasonable and supported operation, maintenance, and 
replacement plan to assist the project sponsor in establishing rates and 
fees and a schedule identifying how those costs should be allocated to 
each non-Federal project sponsor;
    (10) Demonstrates your financial capability to pay at least 25 
percent of the design and construction costs and 100 percent of the 
operation, maintenance, and replacement costs;
    (11) Is eligible for guaranteed loans;
    (12) Includes adequate administrative and financial controls to 
manage construction and operation, maintenance, and replacement of the 
project;
    (13) Is eligible for assistance under other Federal authorities to 
pay for discrete features or portions of the project;

[[Page 624]]

    (14) Is technically feasible and can be constructed within industry 
standards;
    (15) Involves partnerships with other state, local, or tribal 
governments or Federal entities; and
    (16) In the case of Indian tribes and tribal organizations, the 
extent to which the alternative addresses the goal of economic self-
sufficiency;
    (17) The degree to which the proposed project demonstrates that it 
has clear deliverables, will be accomplished within a reasonable 
schedule, within budget, and is well managed; and
    (18) Other factors and criteria that Reclamation deems appropriate.



Sec. 404.50  What information will be included in the feasibility report prepared by Reclamation.

    The feasibility report prepared by Reclamation will include:
    (a) Reclamation's finding as to whether the proposed rural water 
supply project is feasible and the reasons supporting that 
determination;
    (b) A recommendation to Congress regarding whether or not the 
proposed rural water supply project should be authorized for 
construction, and the reasons supporting the recommendation. This 
recommendation will be based on Reclamation's review of the feasibility 
study and its application of the criteria set forth in Sec. 404.49; and
    (c) If the rural water supply project is recommended for 
construction, the feasibility report will also include:
    (1) The appropriate Federal and non-Federal share of the capital 
construction costs for the project and for projects involving multiple 
project sponsors, the portion of those costs allocated to each project 
sponsor;
    (2) What amount of grants, loan guarantees, or combination of grants 
and loan guarantees should constitute the Federal share of the project;
    (3) The annual operation, maintenance, and replacement costs, and 
the portion of those costs allocated to each project sponsor 
participating in the rural water supply project; and
    (4) An assessment of the financial capability of each project 
sponsor participating in the rural water supply project to pay the 
portion of the construction and operation, maintenance, and replacement 
costs allocated to it.



Sec. 404.51  Are proposed projects under the Rural Water Supply Program reviewed by the Administration?

    Yes. The Administration will review all projects proposed for 
funding under the Reclamation's Rural Water Supply Program. This 
includes review under Executive Order 12322 to determine whether the 
project is consistent with the policies and programs of the President. 
This review will occur before the feasibility report is finalized.



Sec. 404.52  Who will the feasibility report be provided to?

    Upon its completion, Reclamation will:
    (a) Provide the feasibility report to you;
    (b) Submit the feasibility report to the Committee on Energy and 
Natural Resources of the Senate and the Committee on Natural Resources 
of the House of Representatives;
    (c) Make the report publicly available, along with associated study 
documents; and
    (d) Publish in the Federal Register a notice of the availability of 
the results.



                         Subpart E_Miscellaneous



Sec. 404.53  Does this rule provide authority for the transfer 

of pre-existing facilities from Federal to private ownership, or from private to Federal 
          ownership?

    No. This rule does not authorize the transfer of pre-existing 
facilities or pre-existing components of any water system from Federal 
to private ownership, or from private to Federal ownership.



Sec. 404.54  Who will hold title to a rural water project that is

constructed following the completion of an appraisal investigation or feasibility study under 
          this program?

    Title to any rural water project planned, designed and recommended 
for construction under this program will be held by the non-Federal 
project sponsor.

[[Page 625]]



Sec. 404.55  Who is responsible for the operation, maintenance, and replacement costs?

    You will be responsible for 100 percent of the operation, 
maintenance, and replacement costs for any rural water facility that is 
planned, designed, and recommended for construction under this program.



Sec. 404.56  If a financial assistance agreement is entered into for a 

rural water supply project that benefits more than one Indian tribe, is the approval of 
          each Indian tribe required?

    Yes. When a financial assistance agreement is entered into with an 
organization to perform services benefiting more than one Indian tribe, 
the approval of each such Indian tribe is a prerequisite to entering 
into the financial assistance agreement.



Sec. 404.57  Does this rule have any affect on state water law?

    No. Neither the Act nor this rule preempts or affects state water 
law or any interstate compact governing water. Reclamation will comply 
with state water laws in carrying out this rule.



Sec. 404.58  Do rural water projects authorized before the enactment of 

the Rural Water Supply Act of 2006 have to comply with the requirements in this rule?

    No. Neither the Act nor this rule imposes any additional 
requirements on rural water supply projects that were authorized for 
construction before the date of enactment of the Act.



Sec. 404.59  If the Secretary recommends a project for construction, is that a promise of Federal funding?

    No. Congress must first authorize the project for construction and 
Federal funding is subject to the availability of appropriations.



Sec. 404.60  Does this rule contain an information collection that requires approval by the Office of Management and Budget (OMB)?

    Yes. This rule does contain an information collection that is 
approved by OMB, under Control Number 1006-0029. The Paperwork Reduction 
Act provides that an agency may not conduct or sponsor, and a person is 
not required to respond to, a collection of information unless it 
displays a valid OMB control number.



PART 413_ASSESSMENT BY IRRIGATION DISTRICTS OF LANDS OWNED BY THE UNITED STATES, COLUMBIA BASIN PROJECT, WASHINGTON--Table of Contents



Sec.
413.1 Purpose.
413.2 Definitions.
413.3 Assessment of settlement lands.
413.4 Assessment of other project act lands and rights of way.
413.5 Reports on status of settlement lands.

    Authority: Sec. 8, 57 Stat. 20; 16 U.S.C. 835c-4.

    Source: 23 FR 10360, Dec. 25, 1958, unless otherwise noted.



Sec. 413.1  Purpose.

    The provisions of this part shall govern the levy and enforcement of 
assessments by or on behalf of irrigation districts against lands owned 
by the United States within the Columbia Basin Project, pursuant to the 
provisions of subsection 5 (b) and section 8 of the Columbia Basin 
Project Act (57 Stat. 14; 16 U. S. C. 835c-1 and 835c-4) and in keeping 
with the provisions of section 14, Chapter 275, Laws of Washington, 
1943. (Section 89.12.120, Revised Code of Washington).



Sec. 413.2  Definitions.

    As used in this part:
    (a) Project Manager means the Project Manager of the Columbia Basin 
Project, a Federal reclamation project.
    (b) District means any one of the irrigation districts organized 
under the laws of Washington which has contracted with the United States 
under the Columbia Basin Project Act to repay a portion of the 
construction cost of the project.
    (c) Settlement lands means those public lands of the United States 
within the project or those lands acquired by the United States under 
the authority of the Columbia Basin Project Act, title to which is 
vested in the United States and which are being held pending their 
conveyance in accordance

[[Page 626]]

with the project settlement and development program.
    (d) Other project act lands means those public lands within the 
project and those lands or interests acquired and being held by the 
United States under the Columbia Basin Project Act, which are being held 
other than for conveyance in accordance with the project settlement and 
development program.
    (e) Rights of way means lands or interests in lands acquired by the 
United States under the Federal Reclamation Laws (Act of June 17, 1902, 
32 Stat. 388, 43 U. S. C. 391, and acts amendatory thereof or 
supplementary thereto) for the construction and operation of project 
works, rights of way, including improvements thereon, reserved to the 
United States, under the Act of August 30, 1890 (26 Stat. 391; 43 U. S. 
C. 945) or section 90.40.050 of the Revised Code of Washington and being 
asserted for project purposes.



Sec. 413.3  Assessment of settlement lands.

    (a) Settlement lands, which the United States is not under contract 
to sell or exchange at the time a district makes its annual levy of 
assessments shall not be assessed, except as provided in paragraph (c) 
of this section. If the United States thereafter contracts to sell or 
exchange such lands before the end of the irrigation season following 
the date of the annual levy, the purchaser will be required to make 
appropriate payment to the district for the water service which will be 
available to the purchaser during that irrigation season or the 
remaining portion thereof.
    (b) From the date the United States contracts to sell or exchange 
settlement lands until title thereto passes to the purchaser under such 
contract, or until the rights of the purchaser are terminated or 
reacquired by the United States settlement lands shall be subject to 
assessment by a district on the same basis as other lands of like 
character within the operation of the district.
    (c) Settlement lands, which the United States is not under contract 
to sell or exchange at the time a district makes its levy may be 
assessed by a district to the extent of the construction charge 
obligation installment required to be levied for the following year on 
such lands on account of the district's construction cost obligation to 
the United States. No other levies shall be made by a district against 
settlement lands in this status.
    (d) While settlement lands which the United States has leased for 
use as irrigated lands and which the United States has not contracted to 
sell or exchange may not be assessed by a district except as provided in 
paragraph (c) of this section, lessees shall pay the district the same 
amounts annually that would be required to be paid for water service if 
the lands were subject to assessment therefor, in addition to any 
assessment levied under paragraph (c) of this section.
    (e) Assessments made by a district against settlement lands while 
the United States is under contract to sell or exchange such lands shall 
be subject to all interest and penalties for delinquency as provided by 
the laws of Washington, but interest and penalties shall cease to 
accumulate on the date such contract is terminated or the purchaser's 
interest therein reacquired by the United States.
    (f) No action shall be taken by or for a district to enforce any 
lien created as permitted under the regulations in this part by 
assessment foreclosure or other means that would purport to transfer any 
right in or title to any land or interests therein while title thereto 
is vested in the United States. Although the United States does not 
assume any obligation for the payment of such liens, it will in any 
conveyance of settlement lands covered thereby convey subject to those 
liens.



Sec. 413.4  Assessment of other project act lands and rights of way.

    (a) A district shall, as to other project act lands and rights of 
way the title to which passes to the United States on or after January 1 
of any year and before the district has levied its assessments for that 
year, immediately remove the lands from its assessment rolls and shall 
not thereafter take any proceedings to complete or enforce the 
assessments. Any such removal from the rolls shall be effective as of 
January 1 of the year in which

[[Page 627]]

title passes to the United States Action so to remove shall be taken 
promptly after the giving of written notice by the Project Manager to 
the district as to the lands involved, and the district shall provide 
the United States with a certificate stating that the lands have not 
been and will not be assessed so long as title thereto remains in the 
United States.
    (b) There is no authority in law for the assessment of rights of way 
owned by the United States. Accordingly, a district shall make no 
assessment thereof while title thereto remains in the United States.
    (c) Other project act lands while title thereto remains in the 
United States shall not be assessed for any district charge so long as 
they are in the ``other project act lands'' category.



Sec. 413.5  Reports on status of settlement lands.

    The Project Manager will furnish each district prior to its annual 
levy every year a list of all the settlement lands owned by the United 
States for which water is available and which are not under contract of 
sale or exchange and therefore are not to be assessed by the district, 
except for construction charge obligation installments under Sec. 
413.3(c) when such charges are required to be levied.



PART 414_OFFSTREAM STORAGE OF COLORADO RIVER WATER AND DEVELOPMENT AND RELEASE OF INTENTIONALLY CREATED UNUSED APPORTIONMENT IN THE LOWER DIVISION STATES--Table of Contents



                   Subpart A_Purposes and Definitions

Sec.
414.1 Purpose.
414.2 Definitions of terms used in this part.

          Subpart B--Storage and Interstate Release Agreements

414.3 Storage and Interstate Release Agreements.
414.4 Reporting Requirements and accounting under storage and interstate 
          release agreements.

          Subpart C_Water Quality and Environmental compliance

414.5 Water Quality.
414.6 Environmental Compliance and funding of Federal costs.

    Authority: 5 U.S.C. 553; 43 U.S.C. 391, 485 and 617; 373 U.S. 546; 
376 U.S. 340.

    Source: 64 FR 59006, Nov. 1, 1999, unless otherwise noted.



                   Subpart A_Purposes and Definitions



Sec. 414.1  Purpose.

    (a) What this part does. This part establishes a procedural 
framework for the Secretary of the Interior (Secretary) to follow in 
considering, participating in, and administering Storage and Interstate 
Release Agreements in the Lower Division States (Arizona, California, 
and Nevada) that would:
    (1) Permit State-authorized entities to store Colorado River water 
offstream;
    (2) Permit State-authorized entities to develop intentionally 
created unused apportionment (ICUA);
    (3) Permit State-authorized entities to make ICUA available to the 
Secretary for release for use in another Lower Division State. This 
release may only take place in accordance with the Secretary's 
obligations under Federal law and may occur in either the year of 
storage or in years subsequent to storage; and
    (4) Allow only voluntary interstate water transactions. These water 
transactions can help to satisfy regional water demands by increasing 
the efficiency, flexibility, and certainty in Colorado River management 
in accordance with the Secretary's authority under Article II (B) (6) of 
the Decree entered March 9, 1964 (376 U.S. 340) in the case of Arizona 
v. California, (373 U.S. 546) (1963), as supplemented and amended.
    (b) What this part does not do. This part does not:
    (1) Affect any Colorado River water entitlement holder's right to 
use its full water entitlement;
    (2) Address or preclude independent actions by the Secretary 
regarding Tribal storage and water transfer activities;

[[Page 628]]

    (3) Change or expand existing authorities under the body of law 
known as the ``Law of the River'';
    (4) Change the apportionments made for use within individual States;
    (5) Address intrastate storage or intrastate distribution of water;
    (6) Preclude a Storing State from storing some of its unused 
apportionment in another Lower Division State if consistent with 
applicable State law; or
    (7) Authorize any specific activities; the rule provides a framework 
only.



Sec. 414.2  Definitions of terms used in this part.

    Authorized entity means:
    (1) An entity in a Storing State which is expressly authorized 
pursuant to the laws of that State to enter into Storage and Interstate 
Release Agreements and develop ICUA (``storing entity''); or
    (2) An entity in a Consuming State which has authority under the 
laws of that State to enter into Storage and Interstate Release 
Agreements and acquire the right to use ICUA (``consuming entity'').
    Basic apportionment means the Colorado River water apportioned for 
use within each Lower Division State when sufficient water is available 
for release, as determined by the Secretary of the Interior, to satisfy 
7.5 million acre-feet (maf) of annual consumptive use in the Lower 
Division States. The United States Supreme Court, in Arizona v. 
California, confirmed that the annual basic apportionment for the Lower 
Division States is 2.8 maf of consumptive use in the State of Arizona, 
4.4 maf of consumptive use in the State of California, and 0.3 maf of 
consumptive use in the State of Nevada.
    BCPA means the Boulder Canyon Project Act, authorized by the Act of 
Congress of December 21, 1928 (45 Stat. 1057).
    Colorado River Basin means all of the drainage area of the Colorado 
River System and all other territory within the United States to which 
the waters of the Colorado River System shall be beneficially applied.
    Colorado River System means that portion of the Colorado River and 
its tributaries within the United States.
    Colorado River water means water in or withdrawn from the 
mainstream.
    Consuming entity means an authorized entity in a Consuming State.
    Consuming State means a Lower Division State where ICUA will be 
used.
    Consumptive use means diversions from the Colorado River less any 
return flow to the river that is available for consumptive use in the 
United States or in satisfaction of the Mexican treaty obligation.
    (1) Consumptive use from the mainstream within the Lower Division 
States includes water drawn from the mainstream by underground pumping.
    (2) The Mexican treaty obligation is set forth in the February 3, 
1944, Water Treaty between Mexico and the United States, including 
supplements and associated Minutes of the International Boundary and 
Water Commission.
    Decree means the decree entered March 9, 1964, by the Supreme Court 
in Arizona v. California, 373 U.S. 546 (1963), as supplemented or 
amended.
    Entitlement means an authorization to beneficially use Colorado 
River water pursuant to:
    (1) The Decree;
    (2) A water delivery contract with the United States through the 
Secretary; or
    (3) A reservation of water from the Secretary.
    Intentionally created unused apportionment or ICUA means unused 
apportionment that is developed:
    (1) Consistent with the laws of the Storing State;
    (2) Solely as a result of, and would not exist except for, 
implementing a Storage and Interstate Release Agreement.
    Lower Division States means the States of Arizona, California, and 
Nevada.
    Mainstream means the main channel of the Colorado River downstream 
from Lee Ferry within the United States, including the reservoirs behind 
dams on the main channel, and Senator Wash Reservoir off the main 
channel.
    Offstream storage means storage in a surface reservoir off of the 
mainstream or in a ground water aquifer. Offstream storage includes 
indirect recharge

[[Page 629]]

when Colorado River water is exchanged for ground water that otherwise 
would have been pumped and consumed.
    Secretary means the Secretary of the Interior or an authorized 
representative.
    Storage and Interstate Release Agreement means an agreement, 
consistent with this part, between the Secretary and authorized entities 
in two or more Lower Division States that addresses the details of:
    (1) Offstream storage of Colorado River water by a storing entity 
for future use within the Storing State;
    (2) Subsequent development of ICUA by the storing entity, consistent 
with the laws of the Storing State;
    (3) A request by the storing entity to the Secretary to release ICUA 
to the consuming entity;
    (4) Release of ICUA by the Secretary to the consuming entity; and
    (5) The inclusion of other entities that are determined by the 
Secretary and the storing entity and the consuming entity to be 
appropriate to the performance and enforcement of the agreement.
    Storing entity means an authorized entity in a Storing State.
    Storing State means a Lower Division State in which water is stored 
off the mainstream in accordance with a Storage and Interstate Release 
Agreement for future use in that State.
    Surplus apportionment means the Colorado River water apportioned for 
use within each Lower Division State when sufficient water is available 
for release, as determined by the Secretary, to satisfy in excess of 7.5 
maf of annual consumptive use in the Lower Division States.
    Unused apportionment means Colorado River water within a Lower 
Division State's basic or surplus apportionment, or both, which is not 
otherwise put to beneficial consumptive use during that year within that 
State.
    Upper Division States means the States of Colorado, New Mexico, 
Utah, and Wyoming.
    Water delivery contract means a contract between the Secretary and 
an entity for the delivery of Colorado River water in accordance with 
section 5 of the BCPA.



           Subpart B_Storage and Interstate Release Agreements



Sec. 414.3  Storage and Interstate Release Agreements.

    (a) Basic requirements for Storage and Interstate Release 
Agreements. Two or more authorized entities may enter into Storage and 
Interstate Release Agreements with the Secretary in accordance with 
paragraph (c) of this section. Each agreement must meet all of the 
requirements of this section.
    (1) The agreement must specify the quantity of Colorado River water 
to be stored, the Lower Division State in which it is to be stored, the 
entity(ies) that will store the water, and the facility(ies) in which it 
will be stored.
    (2) The agreement must specify whether the water to be stored will 
be within the unused basic apportionment or unused surplus apportionment 
of the Storing State. For water from the Storing State's apportionment 
to qualify as unused apportionment available for storage under this 
part, the water must first be offered to all entitlement holders within 
the Storing State for purposes other than interstate transactions under 
proposed Storage and Interstate Release Agreements.
    (3) The agreement must specify whether the water to be stored will 
be within the unused basic apportionment or unused surplus apportionment 
of the Consuming State. If the water to be stored will be unused 
apportionment of the Consuming State, the agreement must acknowledge 
that any unused apportionment of the Consuming State may be made 
available from the Consuming State by the Secretary to the Storing State 
only in accordance with Article II(B)(6) of the Decree. If unused 
apportionment from the Consuming State is to be stored under a Storage 
and Interstate Release Agreement, the Secretary will make the unused 
apportionment of the Consuming State available to the storing entity in 
accordance with the terms of a Storage and Interstate Release Agreement 
and will not make that water available to other entitlement holders.
    (4) The agreement must specify the maximum quantity of ICUA that 
will be developed and made available for release to the consuming 
entity.

[[Page 630]]

    (5) The agreement must specify that ICUA may not be requested by the 
consuming entity in a quantity that exceeds the quantity of water that 
had been stored under a Storage and Interstate Release Agreement in the 
Storing State.
    (6) The agreement must specify a procedure to verify and account for 
the quantity of water stored in the Storing State under a Storage and 
Interstate Release Agreement.
    (7) The agreement must specify that, by a date certain, the 
consuming entity will:
    (i) Notify the storing entity to develop a specific quantity of ICUA 
in the following calendar year;
    (ii) Ask the Secretary to release that ICUA; and
    (iii) Provide a copy of the notice or request to each Lower Division 
State.
    (8) The agreement must specify that when the storing entity receives 
a request to develop a specific quantity of ICUA:
    (i) It will ensure that the Storing State's consumptive use of 
Colorado River water will be decreased by a quantity sufficient to 
develop the requested quantity of ICUA; and
    (ii) Any actions that the storing entity takes will be consistent 
with its State's laws.
    (9) The agreement must include a description of:
    (i) The actions the authorized entity will take to develop ICUA;
    (ii) Potential actions to decrease the authorized entity's 
consumptive use of Colorado River water;
    (iii) The means by which the development of the ICUA will be 
enforceable by the storing entity; and
    (iv) The notice given to entitlement holders, including Indian 
tribes, of opportunities to participate in development of this ICUA.
    (10) The agreement must specify that the storing entity will certify 
to the Secretary that ICUA has been or will be developed that otherwise 
would not have existed. The certification must:
    (i) Identify the quantity, the means, and the entity by which ICUA 
has been or will be developed; and
    (ii) Ask the Secretary to make the ICUA available to the consuming 
entity under Article II(B)(6) of the Decree and the Storage and 
Interstate Release Agreement.
    (11) The agreement must specify a procedure for verifying 
development of the ICUA appropriate to the manner in which it is 
developed.
    (12) The agreement must specify that the Secretary will release ICUA 
developed by the storing entity:
    (i) In accordance with a request of the consuming entity;
    (ii) In accordance with the terms of the Storage and Interstate 
Release Agreement;
    (iii) Only for use by the consuming entity and not for use by other 
entitlement holders; and
    (iv) In accordance with the terms of the Storage and Interstate 
Release Agreement, the BCPA, Article II(B)(6) of the Decree and all 
other applicable laws and executive orders.
    (13) The agreement must specify that ICUA shall be released to the 
consuming entity only in the year and to the extent that ICUA is 
developed by the storing entity by reducing Colorado River water use 
within the Storing State.
    (14) The agreement must specify that the Secretary will release ICUA 
only after the Secretary has determined that all necessary actions have 
been taken under this part.
    (15) The agreement must specify that before releasing ICUA the 
Secretary must first determine that the storing entity:
    (i) Stored water in accordance with the Storage and Interstate 
Release Agreement in quantities sufficient to support the development of 
the ICUA requested by the consuming entity; and
    (ii) Certified to the satisfaction of the Secretary that the 
quantity of ICUA requested by the consuming entity has been developed in 
that year or will be developed in that year under Sec. 414.3(f).
    (16) The agreement must specify that the non-Federal parties to the 
Storage and Interstate Release Agreement will indemnify the United 
States, its employees, agents, subcontractors, successors, or assigns 
from loss or claim for damages and from liability to persons or 
property, direct or indirect, and loss or claim of any nature whatsoever 
arising by reason of the actions taken

[[Page 631]]

by the non-federal parties to the Storage and Interstate Release 
Agreement under this part.
    (17) The agreement must specify the extent to which facilities 
constructed or financed by the United States will be used to store, 
convey, or distribute water associated with a Storage and Interstate 
Release Agreement.
    (18) The agreement must include any other provisions that the 
parties deem appropriate.
    (b) How to address financial considerations. The Secretary will not 
execute an agreement that has adverse impacts on the financial interests 
of the United States. Financial details between and among the non-
Federal parties need not be included in the Storage and Interstate 
Release Agreement but instead can be the subject of separate agreements. 
The Secretary need not be a party to the separate agreements.
    (c) How the Secretary will execute storage and interstate release 
agreements. The Regional Director for the Bureau of Reclamation's Lower 
Colorado Region (Regional Director) may execute and administer a Storage 
and Interstate Release Agreement on behalf of the Secretary. The 
Secretary will notify the public of his/her intent to participate in 
negotiations to develop a Storage and Interstate Release Agreement and 
provide a means for public input. In considering whether to execute a 
Storage and Interstate Release Agreement, the Secretary may request, and 
the non-Federal parties must provide, any additional supporting data 
necessary to clearly set forth both the details of the proposed 
transaction and the eligibility of the parties to participate as State-
authorized entities in the proposed transaction. The Secretary will also 
consider: applicable law and executive orders; applicable contracts; 
potential effects on trust resources; potential effects on entitlement 
holders, including Indian tribes; potential impacts on the Upper 
Division States; potential effects on third parties; potential 
environmental impacts and potential effects on threatened and endangered 
species; comments from interested parties, particularly parties who may 
be affected by the proposed action; comments from the State agencies 
responsible for consulting with the Secretary on matters related to the 
Colorado River; and other relevant factors, including the direct or 
indirect consequences of the proposed Storage and Interstate Release 
Agreement on the financial interests of the United States. Based on the 
consideration of the factors in this section, the Secretary may execute 
or decide not to execute a Storage and Interstate Release Agreement.
    (d) Assigning interests to an authorized entity. Non-Federal parties 
to a Storage and Interstate Release Agreement may assign their interests 
in the Agreement to authorized entities. The assignment can be in whole 
or in part. The assignment can only be made if all parties to the 
agreement approve.
    (e) Requirement for contracts under the Boulder Canyon Project Act. 
Release or diversion of Colorado River water for storage under this part 
must be supported by a water delivery contract with the Secretary in 
accordance with Section 5 of the BCPA. The only exception to this 
requirement is storage of Article II(D) (of the Decree) water by Federal 
or tribal entitlement holders. The release or diversion of Colorado 
River water that has been developed or will be developed as ICUA under 
this part also must be supported by a Section 5 water delivery contract.
    (1) An authorized entity may satisfy the requirement of this section 
through a direct contract with the Secretary. An authorized entity also 
may satisfy the Section 5 requirement of the BCPA, for purposes of this 
part, through a valid subcontract with an entitlement holder that is 
authorized by the Secretary to subcontract for the delivery of all or a 
portion of its entitlement.
    (2) For storing entities that do not otherwise hold a contract or 
valid subcontract for the delivery of the water to be stored, the 
Storage and Interstate Release Agreement will serve as the vehicle for 
satisfying the Section 5 requirement for the release or diversion of 
that water.
    (3) For consuming entities that do not otherwise hold a contract or 
valid subcontract for the delivery of the water to be released by the 
Secretary as ICUA, the Storage and Interstate

[[Page 632]]

Release Agreement will serve as the vehicle for satisfying the Section 5 
requirement for the release or diversion of that water.
    (f) Anticipatory release of ICUA. The Secretary may release ICUA to 
a consuming entity before the actual development of ICUA by the storing 
entity if the storing entity certifies to the Secretary that ICUA will 
be developed during that same year that otherwise would not have 
existed.
    (1) These anticipatory releases will only be made in the same year 
that the ICUA is developed.
    (2) Before an anticipatory release, the Secretary must be satisfied 
that the storing entity will develop the necessary ICUA in the same year 
that the ICUA is to be released.
    (g) Treaty obligations. Prior to executing any specific Storage and 
Interstate Release Agreements, the United States will consult with 
Mexico through the International Boundary and Water Commission under the 
boundary water treaties and other applicable international agreements in 
force between the two countries.



Sec. 414.4  Reporting requirements and accounting under Storage and Interstate Release Agreements.

    (a) Annual report to the Secretary. Each storing entity will submit 
an annual report to the Secretary containing the material required by 
this section. The report will be due on a date to be agreed upon by the 
parties to the Storage and Interstate Release Agreement. The report must 
include:
    (1) The quantity of water diverted and stored during the prior year 
under all Storage and Interstate Release Agreements; and
    (2) The total quantity of stored water available to support the 
development of ICUA under each Storage and Interstate Release Agreement 
to which the storing entity is a party as of December 31 of the prior 
calendar year.
    (b) How the Secretary accounts for diverted and stored water. The 
Secretary will account for water diverted and stored under Storage and 
Interstate Release Agreements in the records maintained under Article V 
of the Decree.
    (1) The Secretary will account for the water that is diverted and 
stored by a storing entity as a consumptive use in the Storing State for 
the year in which it is stored.
    (2) The Secretary will account for the diversion and consumptive use 
of ICUA by a consuming entity as a consumptive use in the Consuming 
State of unused apportionment under Article II(B)(6) of the Decree in 
the year the water is released in the same manner as any other unused 
apportionment taken by that State.
    (3) The Secretary will maintain individual balances of the 
quantities of water stored under a Storage and Interstate Release 
Agreement and available to support the development of ICUA. The 
appropriate balances will be reduced when ICUA is developed by the 
storing entity and released by the Secretary for use by a consuming 
entity.



          Subpart C_Water Quality and Environmental Compliance



Sec. 414.5  Water quality.

    (a) Water Quality is not guaranteed. The Secretary does not warrant 
the quality of water released or delivered under Storage and Interstate 
Release Agreements, and the United States will not be liable for damages 
of any kind resulting from water quality problems. The United States is 
not under any obligation to construct or furnish water treatment 
facilities to maintain or improve water quality except as may otherwise 
be provided in relevant Federal law.
    (b) Required water quality standards. All entities, in diverting, 
using, and returning Colorado River water, must:
    (1) Comply with all applicable water pollution laws and regulations 
of the United States, the Storing State, and the Consuming State; and
    (2) Obtain all applicable permits or licenses from the appropriate 
Federal, State, or local authorities regarding water quality and water 
pollution matters.

[[Page 633]]



Sec. 414.6  Environmental compliance and funding of Federal costs.

    (a) Ensuring environmental compliance. The Secretary will complete 
environmental compliance documentation, compliance with the National 
Environmental Policy Act of 1969, as amended, and the Endangered Species 
Act of 1973, as amended; and will integrate the requirements of other 
statutes, laws, and executive orders as required for Federal actions to 
be taken under this part.
    (b) Responsibility for environmental compliance work. Authorized 
entities seeking to enter into a Storage and Interstate Release 
Agreement under this part may prepare the appropriate documentation and 
compliance document for a proposed Federal action, such as execution of 
a proposed Storage and Interstate Release Agreement. The compliance 
documents must meet the standards set forth in Reclamation's national 
environmental policy guidance before they can be adopted.
    (c) Responsibility for funding of Federal costs. All costs incurred 
by the United States in evaluating, processing, and/or executing a 
Storage and Interstate Release Agreement under this part must be funded 
in advance by the authorized entities that are party to that agreement.



PART 417_PROCEDURAL METHODS FOR IMPLEMENTING COLORADO RIVER WATER CONSERVATION MEASURES WITH LOWER BASIN CONTRACTORS AND OTHERS--Table of Contents



Sec.
417.1 Scope of part.
417.2 Consultation with contractors.
417.3 Notice of recommendations and determinations.
417.4 Changed conditions, emergency, or hardship modifications.
417.5 Duties of the Commissioner of Indian Affairs with respect to 
          Indian reservations.
417.6 General regulations.

    Authority: 45 Stat. 1057, 1060; 43 U.S.C. 617; and Supreme Court 
Decree in ``Arizona v. California,'' 376 U.S. 340.

    Source: 37 FR 18076, Sept. 7, 1972, unless otherwise noted.



Sec. 417.1  Scope of part.

    The procedures established in this part shall apply to every public 
or private organization (herein termed ``Contractor'') in Arizona, 
California, or Nevada which, pursuant to the Boulder Canyon Project Act 
or to provisions of other Reclamation Laws, has a valid contract for the 
delivery of Colorado River water, and to Federal establishments other 
than Indian Reservations enumerated in Article II(D) of the March 9, 
1964, Decree of the Supreme Court of the United States in the case of 
``Arizona v. California et al.'', 376 U.S. 340 (for purposes of this 
part each such Federal establishment is considered as a ``Contractor''), 
except that (a) neither this part nor the term ``Contractor'' as used 
herein shall apply to any person or entity which has a contract for the 
delivery or use of Colorado River water made pursuant to the Warren Act 
of February 21, 1911 (36 Stat. 925) or the Miscellaneous Purposes Act of 
February 25, 1920 (41 Stat. 451), (b) Contractors and permittees for 
small quantities of water, as determined by the Regional Director, 
Bureau of Reclamation, Boulder City, Nev. (herein termed ``Regional 
Director''), and Contractors for municipal and industrial water may be 
excluded from the application of these procedures at the discretion of 
the Regional Director, and (c) procedural methods for implementing 
Colorado River water conservation measures on Indian Reservations will 
be in accordance with Sec. 417.5 of this part.



Sec. 417.2  Consultation with contractors.

    The Regional Director or his representative will, prior to the 
beginning of each calendar year, arrange for and conduct such 
consultations with each Contractor as the Regional Director may deem 
appropriate as to the making by the Regional Director of annual 
recommendations relating to water conservation measures and operating 
practices in the diversion, delivery, distribution and use of Colorado 
River water, and to the making by the Regional Director of annual 
determinations of each Contractor's estimated water requirements for the 
ensuing calendar year to the end that deliveries of

[[Page 634]]

Colorado River water to each Contractor will not exceed those reasonably 
required for beneficial use under the respective Boulder Canyon Project 
Act contract or other authorization for use of Colorado River water.



Sec. 417.3  Notice of recommendations and determinations.

    Following consultation with each Contractor and after consideration 
of all relevant comments and suggestions advanced by the Contractors in 
such consultations, the Regional Director will formulate his 
recommendations and determinations relating to the matters specified in 
Sec. 417.2. The recommendations and determinations shall, with respect 
to each Contractor, be based upon but not necessarily limited to such 
factors as the area to be irrigated, climatic conditions, location, land 
classifications, the kinds of crops raised, cropping practices, the type 
of irrigation system in use, the condition of water carriage and 
distribution facilities, record of water orders, and rejections of 
ordered water, general operating practices, the operating efficiencies 
and methods of irrigation of the water users, amount and rate of return 
flows to the river, municipal water requirements and the pertinent 
provisions of the Contractor's Boulder Canyon Project Act water delivery 
contract. The Regional Director shall give each Contractor written 
notice by registered or certified mail, return receipt requested, of his 
recommendations and determinations. If the recommendations and 
determinations include a reduction in the amount of water to be 
delivered, as compared to the calendar year immediately preceding, the 
notice shall be delivered to the Contractor or timely sent by registered 
or certified mail, return receipt requested, so that it may reasonably 
be delivered at least 30 days prior to the first date water delivery 
would be affected thereby, and shall specify the basis for such 
reduction including any pertinent factual determinations. The 
recommendations and determinations of the Regional Director shall be 
final and conclusive unless, within 30 days of the date of receipt of 
the notice, the Contractor submits his written comments and objections 
to the Regional Director and requests further consultation. If, after 
such further consultation, timely taken, the Regional Director does not 
modify his recommendations and determinations and so advises the 
Contractor in writing, or if modifications are made but the Contractor 
still feels aggrieved thereby after notification in writing of such 
modified recommendations and determinations, the Contractor may, before 
30 days after receipt of said notice, appeal to the Secretary of the 
Interior. During the pendency of such appeal, and until disposition 
thereof by the Secretary, the recommendations and determinations 
formulated by the Regional Director shall be of no force or effect. In 
the event delivery of water is scheduled prior to the new 
recommendations and determinations becoming final, said delivery shall 
be made according to the Contractor's currently proposed schedule or to 
the schedules approved for the previous calendar year, whichever is 
less.



Sec. 417.4  Changed conditions, emergency, or hardship modifications.

    A Contractor may at any time apply in writing to the Regional 
Director for modification of recommendations or determinations deemed 
necessary because of changed conditions, emergency, or hardship. Upon 
receipt of such written application identifying the reason for such 
requested modification, the Regional Director shall arrange for 
consultation with the Contractor with the objective of making such 
modifications as he may deem appropriate under the then existing 
conditions. The Regional Director may initiate efforts for further 
consultation with any Contractor on his own motion with the objective of 
modifying previous recommendations and determinations, but in the event 
such modifications are made, the Contractor shall have the same 
opportunity to object and appeal as provided in Sec. 417.3 of this part 
for the initial recommendations and determinations. The Regional 
Director shall afford the fullest practicable opportunity for 
consultation with a Contractor when acting under this section. Each 
modification under this section shall be transmitted to the Contractor 
by letter.

[[Page 635]]



Sec. 417.5  Duties of the Commissioner of Indian Affairs with respect to Indian reservations.

    (a) The Commissioner of Indian Affairs (herein termed 
``Commissioner'') will engage in consultations with various tribes and 
other water users on the Indian Reservations listed in Article II (D) of 
said Supreme Court Decree, similar to those engaged in by the Regional 
Director with regard to Contractors as provided in Sec. 417.2 of this 
part. After consideration of all comments and suggestions advanced by 
said tribes and other water users on said Indian Reservations concerning 
water conservation measures and operating practices in the diversion, 
delivery, distribution and use of Colorado River water, the Commissioner 
shall, within the limits prescribed in said decree, make a determination 
as to the estimated amount of water to be diverted for use on each 
Indian Reservation covered by the above decree. Said determination shall 
be made prior to the beginning of each calendar year. That determination 
shall be based upon, but not necessarily limited to, such factors as: 
The area to be irrigated, climatic conditions, location, land 
classifications, the kinds of crops raised, cropping practices, the type 
of irrigation system in use, the condition of water carriage and 
distribution facilities, record of water orders, and rejections of 
ordered water, general operating practices, the operating efficiencies 
and methods of irrigation of the tribes and water users on each 
reservation, the amount and rate of return flows to the river, municipal 
water requirements, and other uses on the reservation. The Commissioner 
of Indian Affairs shall deliver to the Regional Director written notice 
of the amount of water to be diverted for use upon each Indian 
Reservation for each year 60 days prior to the beginning of each 
calendar year and the basis for said determination. The determination of 
the Commissioner shall be final and conclusive unless within 30 days of 
the date of receipt of such notice the Regional Director submits his 
written comments and objections to the Commissioner of Indian Affairs 
and requests further consultation. If after such further consultation, 
timely taken, the Commissioner does not modify his determination and so 
advises the Regional Director in writing or if modifications are made by 
the Commissioner but the Regional Director still does not agree 
therewith, the Regional Director may, within 30 days after receipt of 
the Commissioner's response, appeal to the Secretary of the Interior for 
a decision on the matter. During the pendency of such appeal and until 
disposition thereof by the Secretary, water deliveries will be made to 
the extent legally and physically available according to the 
Commissioner's determination or according to the Commissioner's 
determination for the preceding calendar year, whichever is less.
    (b) Modifications of said determinations due to changed conditions, 
emergency or hardship may be made by the Commissioner, subject, however, 
to the right of the Regional Director to appeal to the Secretary, as 
provided in the case of an initial determination by the Commissioner. 
During the pendency of such an appeal, water deliveries will be made on 
the basis of the initial determination.



Sec. 417.6  General regulations.

    In addition to the recommendations and determinations formulated 
according to the procedures set out above, the right is reserved to 
issue regulations of general applicability to the topics dealt with 
herein.



PART 418_OPERATING CRITERIA AND PROCEDURES FOR THE NEWLANDS RECLAMATION PROJECT, NEVADA--Table of Contents



                           General Provisions

Sec.
418.1 Definitions.
418.2 How Project water may be used.
418.3 Effect of these regulations on water rights.
418.4 Prohibited deliveries.
418.5 Responsibility for violations.
418.6 Fallon Paiute-Shoshone Indian Reservation.

                      Conditions of Water Delivery

418.7 Who may receive irrigation deliveries.
418.8 Types of eligible land.
418.9 Reporting changes in eligible land.

[[Page 636]]

418.10 Determining the amount of water duty to be paid.
418.11 Valid headgate deliveries.
418.12 Project efficiency.
418.13 Maximum allowable limits.

                          Monitoring Diversions

418.14 Recordkeeping requirements.
418.15 Operations monitoring.

                        Operations and Management

418.16 Using water for power generation.
418.17 Truckee and Carson River water use.
418.18 Diversions at Derby Dam.
418.19 Diversions from the Truckee River to the Truckee Division.
418.20 Diversions from the Truckee River to Lahontan Reservoir, January 
          through June.
418.21 Diversion of Truckee River water to Lahontan Reservoir, July 
          through December.
418.22 Future adjustments to Lahontan Reservoir storage targets.
418.23 Diversion of Rock Dam Ditch water.
418.24 Precautionary drawdown and spills from Lahontan Reservoir.
418.25 Water use for other than Newlands Project.
418.26 Charges for water use.
418.27 Distribution system operation.

                               Enforcement

418.28 Conditions of delivery.
418.29 Project management.
418.30 Provisions required in future contracts.

                    Water Management and Conservation

418.31 Conservation measures.
418.32 Cooperative programs.

                             Implementation

418.33 Purpose of the implementation strategy.
418.34 Valid headgate deliveries.
418.35 Efficiencies.
418.36 Incentives for additional long term conservation.
418.37 Disincentives for lower efficiency.
418.38 Maximum allowable diversion.

Appendix A to Part 418--Calculation of Efficiency Equation

    Authority: 43 U.S.C. 391, et seq.; 43 U.S.C. 373; 43 U.S.C. 614, et 
seq.; 104 Stat. 3289, Pub. L. 101-618.

    Source: 62 FR 66467, Dec. 18, 1997, unless otherwise noted.

                           General Provisions



Sec. 418.1  Definitions.

    Bureau means the Bureau of Reclamation.
    Decrees means the Alpine decree (United States v. Alpine Land and 
Reservoir Co., 503 F. Supp. 877 (D. Nev. 1980)) and the Orr Ditch decree 
(United States v. Orr Water Ditch Co., Equity No. A-3 (D. Nev.))
    District means the Truckee-Carson Irrigation District or any other 
approved Newlands Project operator.
    Eligible land means Project land which at the time of delivery has a 
valid water right and either:
    (1) Is classified as irrigable under Bureau land classification 
standards (Reclamation Instruction Series 510); or
    (2) Has a paid out Project water right.
    Full reservoir means 295,500 acre-feet in Lahontan Reservoir using 
Truckee River diversions. The Reservoir can fill above 295,500 acre-feet 
to 316,500 acre-feet with Carson River inflow and the use of flash 
boards. Intentional storage on the flash boards will occur only after 
the peak runoff.
    Project means the Newlands Irrigation Project in western Nevada.



Sec. 418.2  How Project water may be used.

    Project water may be delivered only to serve valid water rights used 
for:
    (a) Maintenance of wetlands and fish and wildlife including 
endangered and threatened species;
    (b) Recreation;
    (c) Irrigation of eligible land; and
    (d) Domestic and other uses of Project water as defined by the 
decrees.



Sec. 418.3  Effect of these regulations on water rights.

    This part governs water uses within existing rights. This part does 
not in any way change, amend, modify, abandon, diminish, or extend 
existing rights. Water rights transfers will be determined by the Nevada 
State Engineer under the provisions of the Alpine decree.



Sec. 418.4  Prohibited deliveries.

    The District must not deliver Project water or permit its use except 
as provided in this part. No Project water will be released in excess of 
the maximum allowable diversion or delivered to ineligible lands. 
Delivery of water to

[[Page 637]]

land in excess of established water duties is prohibited.



Sec. 418.5  Responsibility for violations.

    Violations of the terms and provisions of this part must be reported 
immediately to the Bureau. The District or individual water users will 
be responsible for any shortages to water users occasioned by waste or 
excess delivery or delivery of water to ineligible land as provided in 
this part.



Sec. 418.6  Fallon Paiute-Shoshone Indian Reservation.

    Nothing in this part affects:
    (a) The authority of the Fallon Paiute-Shoshone Tribe to use water 
on the Tribe's reservation which was delivered to the Reservation in 
accordance with this part; or
    (b) The Secretary's trust responsibility with respect to the Fallon 
Paiute-Shoshone Tribe.

                      Conditions of Water Delivery



Sec. 418.7  Who may receive irrigation deliveries.

    Project irrigation water deliveries may be made only to eligible 
land to be irrigated. The District must maintain records for each 
individual water right holder indicating the number of eligible acres 
irrigated and the amount of water ordered and delivered.



Sec. 418.8  Types of eligible land.

    (a) Eligible land actually irrigated. During each year, the 
District, in cooperation with the Bureau, must identify and report to 
the Bureau the location and number of acres of eligible land irrigated 
in the Project. Possible irrigation of ineligible land will also be 
identified. The Bureau will review data to ensure compliance with this 
part. The District, in cooperation with the Bureau, will be responsible 
for field checking potential violations and immediately stopping 
delivery of Project water to any ineligible land. The Bureau may also 
audit as appropriate.
    (b) Eligible land with transferred water rights. The District water 
rights maps dated August 1981 through January 1983 will be used as the 
basis for determining which lands have a valid water right. The original 
maps will be maintained by the District. The District must provide 
copies of the maps to the Bureau. The District will alter the maps and 
the copies to account for water right transfers as the transfers are 
approved by the Nevada State Engineer.
    (c) Other eligible land. The Bureau will also identify eligible land 
that was not irrigated during the prior irrigation season.



Sec. 418.9  Reporting changes in eligible land.

    (a) Eligible land anticipated to be irrigated. (1) Anticipated 
changes in irrigated eligible land from the prior year will be reported 
to the Bureau's Lahontan Area Office by the District by March 1 of each 
year. The District will adjust the acreage of the eligible land 
anticipated to be irrigated to correct for inaccuracies, water right 
transfers that have been finally approved by the Nevada State Engineer, 
and any other action that affects the number of eligible acres, acres 
anticipated to be irrigated, or water deliveries.
    (2) As the adjustments are made, the District will provide updated 
information to the Bureau for review and approval. The District must 
adjust anticipated water allocations to individual water users 
accordingly. The allocations will at all times be based on a maximum 
annual entitlement of 3.5 acre-feet (AF) per acre of bottom land, 4.5 AF 
per acre of bench land, and 1.5 AF per acre of pasture land that is 
anticipated to be irrigated and not on the number of water-righted 
acres.
    (3) The District will provide the individual water users with the 
approved data regarding the anticipated acreage to be irrigated and 
water allocations for each water user that year.
    (i) Any adjustments based on changes in lands anticipated to be 
irrigated during the irrigation season must be reported by the 
individual water user to the District.
    (ii) The District will, in turn, notify the Bureau of any changes in 
irrigated acreage which must be accounted for.
    (iii) Each landowner's anticipated acreage must be less than or 
equal to the landowner's eligible acreage.

[[Page 638]]

    (4) Should a landowner believe that the number of acres of eligible 
land he or she is entitled to irrigate is different from the number of 
acres as approved by the Bureau, the landowner must notify the District 
and present appropriate documentation regarding the subject acreage. The 
District must record the information and present the claim to the Bureau 
for further consideration.
    (i) If the Bureau determines there is sufficient support for the 
landowner's claim, then adjustments will be made to accommodate the 
changes requested by the landowner.
    (ii) If the Bureau disallows the landowner's claim, the Bureau must 
notify the District in writing. The District will, in turn, inform the 
landowner of the disposition of the claim and the reasons therefore, and 
will further instruct the landowner that he or she may seek judicial 
review of the Bureau's determination under the decrees. If the dispute 
affects the current year, then the Bureau and the District will seek to 
expedite any court proceeding.
    (b) Changes in domestic and other uses. By March 1 of each year, the 
District must report to the Bureau all anticipated domestic and other 
water uses. This notification must include a detailed explanation of the 
criteria used in allowing the use and sufficient documentation on the 
type and amount of use by each water user to demonstrate to the 
satisfaction of the Bureau that each water user is in compliance with 
the criteria. With adequate documentation, the District may notify the 
Bureau of any changes in domestic water requirements at any time during 
the year.



Sec. 418.10  Determining the amount of water duty to be delivered.

    (a) Eligible land may receive no more than the amount of water in 
acre-feet per year established as maximum farm headgate delivery 
allowances by the decrees. All water use is limited to that amount 
reasonably necessary for economical and beneficial use under the 
decrees.
    (b) The annual water duty as assigned by the decrees is a maximum of 
4.5 AF per acre for bench lands and a maximum of 3.5 AF per acre for 
bottom lands. The water duty for fields with a mixture of bench and 
bottom lands must be the water duty of the majority acreage. Bench and 
bottom land designations as finally approved by the United States 
District Court for the District of Nevada will be used in determining 
the maximum water duty for any parcel of eligible land. The annual water 
duty for pasture land established by contract is 1.5 AF per acre.



Sec. 418.11  Valid headgate deliveries.

    The valid water deliveries at the headgate are set by the product of 
eligible land actually irrigated multiplied by the appropriate water 
duty in accordance with Sec. Sec. 418.8 and 418.10. The District will 
regularly monitor all water deliveries and report in accordance with 
Sec. 418.9. No amount of water will be delivered in excess of the 
individual water user's headgate entitlement. In the event excess 
deliveries should occur, such amount will be automatically reflected in 
the efficiency deficit adjustment to the Lahontan storage. Water 
delivered in excess of entitlements must not be considered valid for 
purposes of computing project efficiency.



Sec. 418.12  Project efficiency.

    (a) The principal feature of this part is to obtain a reasonable 
level of efficiency in supplying water to the headgate by the District. 
The efficiency targets established by this part are the cornerstone of 
the enforcement and the incentive provisions and when implemented will 
aid other competing uses.
    (b) The efficiency is readily calculable at the year's end, readily 
applicable to water appropriate to that year, able to be compared to 
other irrigation systems even though there may be many dissimilarities, 
appropriate for long term averaging, adjustable to any headgate delivery 
level including droughts or allocations, automatically adjusts to 
changes during the year and accurately accounts for misappropriated 
water. Efficiency also can be achieved through any number of measures 
from operations to changes in the facilities and can be measured as an

[[Page 639]]

end product without regard to the approach. Thus it is flexible enough 
to allow local decision making and yet is fact based to minimize 
disputes.
    (c) Assuming the headgate deliveries are valid and enforceable, 
conveyance efficiency is the only remaining variable in determining the 
quantity of water needed to be supplied to the District. Conveyance 
efficiency is a measure of how much water is released into the 
irrigation system relative to actual headgate deliveries. Differences in 
efficiency, therefore, are directly convertible to acre-feet. The 
differences in efficiency, expressed as a quantity in acre-feet, may be 
added to or subtracted from the actual Lahontan Reservoir storage level 
before it is compared to the monthly storage objective. Thus, the 
diversions from the Truckee River, operation of other facilities (e.g., 
Stampede Reservoir) and decisions related to Lahontan Reservoir are made 
after the efficiency storage adjustments have been made. Operating 
decisions are made as if the adjusted storage reflected actual 
conditions.
    (1) Efficiency incentive credits. In any year that the District's 
actual efficiency exceeds the target efficiency for the actual headgate 
delivery, two-thirds of the resultant savings, in water, will be 
credited to the District as storage in Lahontan. This storage amount 
will remain in Lahontan Reservoir as water available to the District to 
use at its discretion consistent with Nevada and Federal law. Such uses 
may include wetlands (directly or incidentally), power production, 
recreation, a hedge against future shortages or whatever else the 
District determines. The storage is credited at the end of the 
irrigation season from which it was earned. This storage ``floats'' on 
top of the reservoir so that if it is unused it will be spilled first if 
the reservoir spills. The District may use all capacity of Lahontan 
Reservoir not needed for project purposes to store credits.
    (2) Efficiency disincentive debits. In any year that the District's 
actual efficiency falls short of the target appropriate to the actual 
headgate deliveries, then the resultant excess water that was used is 
considered borrowed from the future. Thus it becomes a storage debit 
adjustment to the actual Lahontan Reservoir storage level for 
determining all operational decisions. The debit may accumulate but may 
not exceed a maximum as defined in Sec. 418.13(b). The debit must be 
offset by an existing incentive credit or, if none is available, by a 
subsequent incentive at a full credit (not a 2/3 credit), or finally by 
a restriction of actual headgate deliveries by the District. This would 
only be done prospectively (a subsequent year) so the District and the 
water users can prepare accordingly. Since the debit does not 
immediately affect other competing uses or the District (except in a 
real drought), it allows for future planning and averaging over time.
    (3) Efficiency targets. To determine the efficiency target, the 
system delivery losses were divided into categories such as seepage, 
evaporation and operational losses. The ``reasonable'' level of savings 
for each category was then determined by starting with current operating 
experience and applying the added knowledge from several measures. Means 
of achieving the efficiency targets, including the specific conservation 
measures and amounts, are identified in the table Possible Water 
Conservation Measures for the Newlands Project. Applicable target 
efficiencies will be determined each year as described in Sec. 418.13 
(a)(4).
    (4) Available conservation measures. The water conservation measures 
referred to in paragraph (c)(3) of this section and others currently 
available to the District are listed in the following table. The table 
has been revised based upon the Bureau of Reclamation's Final Report to 
Congress of the Newlands Project Efficiency Study, 1994.

[[Page 640]]



      Possible Water Conservation Measures for the Newlands Project
------------------------------------------------------------------------
                              Expected savings
  Conservation measures\1\    in acre-feet (AF)           Notes
                                 per year\2\
------------------------------------------------------------------------
1. Water ordering            1,000               Require 48-hour advance
                                                  notice.
2. Adjust Lahontan Dam       ++\3\               Match releases to
 releases frequently                              demand with daily
                                                  adjustments.
3. Increase accuracy of      12,000              Account for deliveries
 delivery records and                             to nearest cfs and to
 measurement devices                              nearest minute.
4. Change operation of       ??\4\               Eliminate use of all or
 regulating reservoirs                            parts of regulating
                                                  reservoirs; drain at
                                                  end of season.
5. Shorten irrigation        4,000               Reduce by 2 weeks.
 season
6. Control delivery system   ++                  Eliminate spills,
                                                  better scheduling,
                                                  grouping deliveries.
7. System improvements       ??                  O&M activity: repair
                                                  leaky gates, reshape
                                                  canals, improve
                                                  measuring devices.
8. Dike off 2/3 S-Line       2,720               500 ft. dike; (5[foot]
 Reservoir                                        evaporation,
                                                  0.75[foot] seepage).
9. Dike off south half of    2,130               5,000 ft. dike; large
 Harmon Reservoir                                 savings considering
                                                  canal losses (5[foot]
                                                  evap., 1.8[foot]
                                                  seepage).
10. Dike off west half of    2,400               6,000 ft. dike.
 Sheckler Reservoir
11. Eliminate use of         4,000               Use for Lahontan spill
 Sheckler Reservoir                               capture only; restore
                                                  200 ft. of E-Canal; A-
                                                  Canal is OK.
12. Line 20 miles of         20,000              Reduces O&M.
 Truckee Canal\5\
13. Line large canals        26,100-31,000       Line large net losers
                                                  first.
14. Line regulatory          2.3 AF/acre
 reservoirs
15. Reuse drain water for    7,100               Assuming blended water
 irrigation                                       quality would be
                                                  adequate
16. Ditch rider training     ??
 each year
17. Canal automation         ??                  Reduced canal
                                                  fluctuations.
18. Community rotation       ??                  Grouping deliveries by
 system                                           area.
19. Reclamation Reform Act   ??                  District implementation
 water conservation plan:                         of water conservation
                                                  plan.
    a. Weed and
     phreatophyte control
    b. Fix gate leaks
    c. Water measurement
    d. Automation
    e. Communication
20. Pumps and wells for      400
 small diverters
21. Water pricing by amount  ++                  Incurs administrative
 used                                             costs to implement.
22. Incentive programs       ??                  For District personnel
                                                  and/or water users.
23. Drain canals             1,065               At the end of each
                                                  irrigation season.
24. Acquire parcels with     22,280              Acquire and retire
 inefficient delivery\6\                          water rights from
                                                  irrigated acreage with
                                                  particularly
                                                  inefficient delivery.
                                                  Lesser savings from
                                                  transferring water
                                                  rights to lands with
                                                  more efficient
                                                  delivery.
------------------------------------------------------------------------
\1\The first seven measures were considered in developing the water
  budget in Table 1 for the 1988 OCAP. Additional measures could be
  implemented by the District to help achieve efficiency requirements.
\2\Water savings have been updated in accordance with Bureau of
  Reclamation's Report to Congress on Newlands Project Efficiency, April
  1994.
\3\++ indicates a positive number for savings but not quantifiable at
  this time.
\4\?? indicates uncertainty as to savings.
\5\This measure was included in the 1988 OCAP and effects overall
  Project efficiency; it is recognized that savings from this measure
  are not accounted for in the OCAP.
\6\Identified in the 1994 BOR Efficiency Study: 31 Corporation, below
  Sagouspe Dam, and N Canal.

    (5) The measures in paragraph (c)(4) of this section are 
discretionary choices for the District. The range of measures available 
to the District provides a level of assurance that the target efficiency 
is reasonably achievable. The resultant efficiency targets were also 
compared to the range of efficiencies actually experienced by other 
irrigation systems that were considered comparable in order to provide a 
further check on ``reasonable.'' Most of the delivery losses are 
relatively constant regardless of the amount of deliveries. The 
efficiency will necessarily vary with the amount of headgate deliveries.
    (6) The target efficiency for any annual valid headgate delivery can 
be derived from the table in Appendix A to this part.



Sec. 418.13  Maximum allowable limits.

    (a) Maximum allowable diversions. (1) A provisional water budget in 
the Newlands Project Water Budget table must be recalculated for each 
irrigation season to reflect anticipated water-righted acres to be 
irrigated. At the start of the irrigation season, the maximum allowable 
diversion (MAD)

[[Page 641]]

for each year must be determined by revising the first 10 lines of the 
Newlands Project Water Budget table based on acres of eligible land 
anticipated to actually be irrigated in that year (Sec. 418.9(a)) and 
the water duties for those lands (Sec. 418.10 ). At the end of the 
irrigation season, the required target efficiency must be recalculated 
for the irrigation season based on the actual irrigated acres and 
percent use of headgate entitlements.
[GRAPHIC] [TIFF OMITTED] TR18DE97.004

    (2) The MAD will be calculated annually to ensure an adequate water 
supply for all water right holders whose water use complies with their 
decreed entitlement and this part. The MAD is the maximum amount of 
water permitted to be diverted for irrigation use on the Project in that 
year. It is calculated to ensure full entitlements can be provided, but 
is expected to significantly exceed Project requirements. The MAD will 
be established by the Bureau at least 2 weeks before the start of each 
irrigation season. All releases of

[[Page 642]]

water from Lahontan Reservoir and diversions from the Truckee Canal 
(including any diversions from the Truckee Canal to Rock Dam Ditch) must 
be charged to the MAD except as provided in Sec. Sec. 418.23 and 418.35 
of this part.
    (3) On the basis of the methodology adopted in this part (i.e., 
actual irrigated acres multiplied by appropriate water duties divided by 
established project efficiency) an example of the MAD calculated for the 
projected irrigated acreage as shown in the Newlands Project Water 
Budget table would be 308,319 acre-feet for the 1995 Example. The sample 
MAD corresponds to a system efficiency for full deliveries at 66.9 
percent for 1995 actual acres. Target efficiencies must be based on the 
percentage of maximum headgate entitlement delivered and not on the 
percent of water supply available.
    (4) The table Expected Project Distribution System Efficiency shows 
the target efficiencies which will be used over the range of irrigated 
acreage and percent use of entitlement expected in the future. At the 
beginning of the irrigation season, the target efficiencies from the 
Expected Project Distribution System Efficiency table used to calculate 
the MAD will be based on the expected irrigated acreage and expected 
percent use of entitlement. At the end of the irrigation season, the 
actual acreage irrigated and actual percent use of entitlement will be 
used to determine the required efficiency from the Expected Project 
Distribution System Efficiency. The target efficiencies are read 
directly from the table if the acreage and use of entitlement values are 
shown, otherwise the target efficiency must be extrapolated from the 
table or calculated using the Efficiency Equation. Appendix A of this 
part shows the calculations used to derive the Efficiency Equation and 
the efficiency targets.

[[Page 643]]

[GRAPHIC] [TIFF OMITTED] TR18DE97.005

    (5) Adjustments in the MAD must be made by the Bureau each year 
based on changes in irrigated eligible land from the prior year and 
subsequent decisions concerning transfers of Project water rights, using 
the methodology established in this section.

[[Page 644]]

    (6) If the MAD for a given year will not meet the water delivery 
requirements for the eligible land to be irrigated due to weather 
conditions, canal breaks, or some other unusual or unforeseen condition, 
the District must ask the Bureau for additional water.
    (i) The District's request must include a written statement 
containing a detailed explanation of the reasons for the request.
    (ii) The Bureau must promptly review the request and after 
consultation with the Federal Water Master and other interested parties, 
will determine if the request or any portion of it should be approved. 
The Bureau will make reasonable adjustments for unforeseen causes or 
events but will not make adjustments to accommodate waste or Project 
inefficiency or other uses of water not in accordance with this part or 
with State and Federal law.
    (iii) The Bureau will then notify the District of its determination. 
If the District does not agree with the Bureau's decision, it may seek 
judicial review. The Bureau and the District will seek to expedite the 
court proceeding in order to minimize any potential adverse effects.
    (b) Maximum allowable efficiency debits (MED). The debits in 
Lahontan Reservoir storage from the District's actual conveyance 
efficiency not achieving the target efficiency can accumulate over time. 
If these amounts of borrowed storage get too large they may not be 
offset later by increased efficiencies and may severely affect the 
District's water users by imposing an added ``drought'' on top of a real 
one. Therefore, the maximum efficiency debit cushion is set at 26,000 
acre-feet. However, unlike the MAD, it only applies to the subsequent 
year's operation. The MED is approximately 9 percent of the headgate 
entitlements.

                          Monitoring Diversions



Sec. 418.14  Recordkeeping requirements.

    (a) By the end of each month, the District must submit to the 
Bureau's Lahontan Area Office reports for the previous month which 
document monthly inflow and outflow in acre-feet from the Truckee and 
Carson divisions of the Project for that month. Reports must include any 
data the Bureau may reasonably require to monitor compliance with this 
part.
    (b) Accounting for farm headgate deliveries must be based on the 
amount of water actually delivered to the water user. Project operations 
must provide for the amount of water ordered and the distribution system 
losses.
    (c) The District must keep records of all domestic and other water 
uses showing the purpose and amount of water usage for each entity. The 
District must make the records available for review by the Bureau upon 
request. The Bureau may audit all records kept by the District.



Sec. 418.15  Operations monitoring.

    (a) The Bureau will work with the District to monitor Project 
operations and will perform field inspections of water distribution 
during the irrigation season.
    (1) Staff members of the Bureau's Lahontan Area Office and the 
District will meet as often as necessary during the irrigation season 
after each water distribution report has been prepared to examine the 
amounts of water used to that point in the season.
    (2) On the basis of the information obtained from field 
observations, water use records, and consultations with District staff, 
the Bureau will determine at monthly intervals whether the rate of 
diversion is consistent with this part for that year.
    (3) The District will be informed in writing of suggested 
adjustments that may be made in management of diversions and releases as 
necessary to achieve target efficiencies and stay within the MAD.
    (b) Project operations will be monitored in part by measuring flows 
at key locations. Specifically, Project diversions (used in the 
calculations under Sec. 418.18 below) will be determined by:
    (1) Adding flows measured at:
    (i) Truckee Canal near Wadsworth--U.S. Geological Survey (USGS) 
gauge number 10351300;
    (ii) Carson River below Lahontan Dam--USGS gauge number 10312150;

[[Page 645]]

    (iii) Rock Dam Ditch near the end of the concrete lining; and
    (2) Subtracting:
    (i) Flows measured at the Truckee Canal near Hazen--USGS gauge 
number 10351400;
    (ii) The Carson River at Tarzyn Road near Fallon (below Sagouspe 
Dam) for satisfying water rights outside of the Project boundaries as 
described in Sec. 418.25, USGS gauge number 10312275;
    (iii) Estimated losses in the Truckee Canal; and
    (iv) Spills, precautionary drawdown, and incentive water released at 
Lahontan Dam under Sec. Sec. 418.24 and 418.36.

                        Operations and Management



Sec. 418.16  Using water for power generation.

    All use of Project water for power generation must be incidental to 
releases charged against Project diversions, precautionary drawdown, 
incentive water (Sec. 418.35 ), or spills.



Sec. 418.17  Truckee and Carson River water use.

    Project water must be managed to make maximum use of Carson River 
water and to minimize diversions of Truckee River water through the 
Truckee Canal. This will make available as much Truckee River water as 
possible for use in the lower Truckee River and Pyramid Lake.



Sec. 418.18  Diversions at Derby Dam.

    (a) Diversions of Truckee River water at Derby Dam must be managed 
to maintain minimum terminal flow to Lahontan Reservoir or the Carson 
River except where this part specifically permits diversions.
    (b) Diversions to the Truckee Canal must be managed to achieve an 
average terminal flow of 20 cfs or less during times when diversions to 
Lahontan Reservoir are not allowed (the flows must be averaged over the 
total time diversions are not allowed in that calendar year; i.e., if 
flows are not allowed in July and August and then are allowed in 
September then not allowed in October and November, the average flow 
will be averaged over the four months of July, August, October, and 
November).
    (c) The Bureau will work cooperatively with the District on 
monitoring the flows at the USGS gage on the Truckee Canal near Hazen to 
determine if and when flows are in excess of those needed in accord with 
this part and bringing the flows back into compliance when excessive.
    (d) Increases in canal diversions which would reduce Truckee River 
flows below Derby Dam by more than 20 percent in a 24-hour period will 
not be allowed when Truckee River flow, as measured by the gauge below 
Derby Dam, is less than or equal to 100 cfs.
    (e) Diversions to the Truckee Canal will be coordinated with 
releases from Stampede Reservoir and other reservoirs, in cooperation 
with the Federal Water Master, to minimize fluctuations in the Truckee 
River below Derby Dam in order to meet annual flow regimes established 
by the United States Fish and Wildlife Service for listed species in the 
lower Truckee River.



Sec. 418.19  Diversions from the Truckee River to the Truckee Division.

    Sufficient water, if available, will be diverted from the Truckee 
River through the Truckee Canal to meet the direct irrigation, domestic 
and other entitlements of the Truckee Division.



Sec. 418.20  Diversions from the Truckee River to Lahontan Reservoir, January through June.

    (a) Truckee River diversions through the Truckee Canal will be made 
to meet Lahontan Reservoir end-of-month storage objectives for the 
months of January through June. The current month storage objective will 
be based, in part, on the monthly Natural Resources Conservation Service 
(NRCS) April through July runoff forecast for the Carson River near Fort 
Churchill. The forecast will be used to determine the target storage for 
Lahontan Reservoir and anticipated diversion requirements for the Carson 
Division. The Bureau, in consultation with the District, Federal Water 
Master, Fish and Wildlife Service, the Pyramid Lake

[[Page 646]]

Paiute Tribe, and other affected parties, will determine the exceedance 
levels and predicted Carson River inflows based on the reliability of 
the NRCS forecast and other available information such as river 
forecasts from other sources. The end-of-month storage objectives may be 
adjusted any time during the month as new forecasts or other information 
become available.
    (b) The January through June storage objective will be calculated 
using the following formula:

LSOCM=TSM/J-(C1* AJ)+L+(C2* CDT)

Where:

(1) LSOCM=current end-of-month storage objectives for Lahontan 
Reservoir.
(2) TSM/J=current end-of-month May/June Lahontan Reservoir target 
storage.
(3) C1* AJ=forecasted Carson River inflow for the period from the end of 
the current month through May or June, with AJ being the Bureau's April 
through July runoff forecast for the Carson River at Fort Churchill and 
C1 being an adjustment coefficient.
(4) L=an average Lahontan Reservoir seepage and evaporation loss from 
the end of the current month through May or June.
(5) C2* CDT=projected Carson Division demand from the end of the current 
month through May or June, with CDT being the total Carson Division 
diversion requirement (based on eligible acres anticipated to be 
irrigated times the appropriate duty times a 95 percent usage rate), and 
C2 being the estimate of the portion of the total diversion requirement 
to be delivered during this period.
(6) Values for TSM/J will vary with the Carson Division water demand as 
shown in Sec. 418.22 and the Adjustments to Lahontan Reservoir Storage 
Targets table. Values C1, L and C2 are defined in the following table 
along with an example of TSM/J for Carson River water demand of 271,000 
acre-feet.

                                Monthly Values for Lahontan Storage Computations
----------------------------------------------------------------------------------------------------------------
                                             January    February      March       April        May        June
----------------------------------------------------------------------------------------------------------------
TSM/J....................................     174.0       174.0       174.0       174.0       174.0        190.0
C1/MAY...................................       0.863       0.734       0.591       0.394
C1/JUNE..................................       1.190       1.061       0.918       0.721       0.327
L/MAY....................................      13.9        12.5         9.9         7.1
L/JUNE...................................      18.2        16.8        14.2        11.4         4.3
C2/MAY...................................       0.30        0.30        0.28        0.18
C2/JUNE..................................       0.47        0.47        0.45        0.35        0.17
----------------------------------------------------------------------------------------------------------------

    (c) The Lahontan Reservoir storage objective for each month is 
contained in the following table.

                  Lahontan Reservoir Storage Objectives
------------------------------------------------------------------------
                 Period                      Monthly storage objective
------------------------------------------------------------------------
January through April...................  Lowest of the May calculation,
                                           the June calculation, or full
                                           reservoir.
May.....................................  Lower of the June calculation
                                           or full reservoir.
June....................................  June storage target.
------------------------------------------------------------------------

    (d) Once the monthly Lahontan Reservoir storage objective has been 
determined, the monthly diversion to the Project from the Truckee River 
will be based upon water availability and Project demand as expressed in 
the following relationship:

TRD=TDD+ TCL+CDD+LRL+ LSOCM-ALRS-CRI

Where:

(1) TRD=current month Truckee River diversion in acre-feet to the 
Project.
(2) TDD=current month Truckee Division demand.
(3) TCL = current month Truckee Canal conveyance loss.
(4) CDD = current month Carson Division demand.
(5) LRL = current month Lahontan Reservoir seepage and evaporation 
losses.
(6) LSOCM = current month end-of-month storage objective for Lahontan 
Reservoir.
(7) ALRS = current month beginning-of-month storage in Lahontan 
Reservoir. (Includes accumulated Stampede credit described below and 
further adjusted for the net efficiency penalty or efficiency credit 
described in Sec. Sec. 418.12, 418.36, and 418.37).
(8) CRI = current month anticipated Carson River inflow to Lahontan 
Reservoir (as determined by Reclamation in consultation with other 
interested parties).

    (e) The following procedure is intended to ensure that monthly 
storage objectives are not exceeded. It may be implemented only if the 
following conditions are met:

[[Page 647]]

    (1) Diversions from the Truckee River are required to achieve the 
current month Lahontan Reservoir storage objective (LSOCM);
    (2) Truckee River runoff above Derby Dam is available for diversion 
to Lahontan Reservoir;
    (3) Sufficient Stampede Reservoir storage capacity is available.
    (f) The Bureau, in consultation with the Federal Water Master, the 
District, Fish and Wildlife Service, the Bureau of Indian Affairs, and 
the Pyramid Lake Paiute Tribe will determine whether the calculated 
current month Truckee River diversion to Lahontan Reservoir (TRD-TDD-
TCL) may be reduced during that month and the amount of reduction credit 
stored in Stampede Reservoir.
    (1) Reductions in diversions may begin in November and continue 
until the end of June.
    (2) Reductions in diversions to Lahontan Reservoir with credit 
storage in Stampede Reservoir may be implemented to the extent that:
    (i) The reduction is in lieu of a scheduled release from Stampede 
Reservoir for the purpose of supplementing flows to Pyramid Lake; and/or
    (ii) Water is captured in Stampede Reservoir that is scheduled to be 
passed through and diverted to the Truckee Canal.
    (3) The Fish and Wildlife Service must approve any proposal to 
reduce diversions to Lahontan Reservoir for Newlands Project credit 
purposes without a comparable reduction in release from Stampede 
Reservoir or any conversion of Stampede Reservoir project water to 
Newlands Project credit water.
    (4) The diversion to Lahontan Reservoir may be adjusted any time 
during the month as revised runoff forecasts become available. The 
accumulated credit will be added to current Lahontan Reservoir storage 
(ALRS) in calculating TRD. If the sum of accumulated credit and Lahontan 
Reservoir storage exceeds 295,000 acre-feet, credit will be reduced by 
the amount in excess of 295,000 acre-feet. Credit will also be reduced 
by the amount of precautionary drawdown or spills in that month. If the 
end-of-month storage in Lahontan Reservoir plus the accumulated credit 
in Stampede Reservoir at the end of June exceeds the end-of-month 
storage objective for Lahontan, the credit will be reduced by the amount 
exceeding the end-of-month storage objective.
    (5) Following consultation with the District, the Federal Water 
Master, and other interested parties as appropriate, the Bureau will 
release credit water as needed for Project purposes from July 1 through 
the end of the irrigation season in which the credit accrues with timing 
priority given to meeting current year Project irrigation demands.
    (6) Conveyance of credit water in the Truckee Canal must be in 
addition to regularly scheduled diversions for the Project and will be 
measured at the USGS gauge number 10351300 near Wadsworth.
    (7) Newlands credit water in Stampede Reservoir storage will be 
subject to spill and will not carry over to subsequent years. Newlands 
credit water in Stampede can be exchanged to other reservoirs and retain 
its priority. The credit must be reduced to the extent that Lahontan 
Reservoir storage plus accumulated credit at the end of the previous 
month exceeds the storage objectives for that month. If Newlands credit 
water is spilled, it may be diverted to Lahontan Reservoir subject to 
applicable storage targets.
    (i) The Bureau, in consultation with the District, the Federal Water 
Master, and other interested parties, may release Newlands Project 
credit water before July 1.
    (ii) If any Newlands credit water remains in Stampede Reservoir 
storage after the end of the current irrigation season in which it 
accumulated, it will convert to water for cui-ui recovery and will no 
longer be available for Newlands credit water.
    (iii) Newlands credit water stored in Stampede Reservoir will be 
available for use only on the Carson Division of the Newlands Project.
    (g) Subject to the provisions of Sec. 418.20 (b), LSOCM may be 
adjusted as frequently as necessary when new information indicates the 
need and diversions from the Truckee River to the Truckee Canal must be 
adjusted daily

[[Page 648]]

or otherwise as frequently as necessary to meet the monthly storage 
objective.



Sec. 418.21  Diversion of Truckee River water to Lahontan Reservoir, July through December.

    Truckee River diversions through the Truckee Canal to Lahontan 
Reservoir from July through December must be made only in accordance 
with the Adjustments to Lahontan Reservoir Storage Targets table and 
Sec. 418.22. Diversions shall be started to achieve the end-of-month 
storage targets listed in the table in Sec. 418.22 and will be 
discontinued when storage is forecast to meet or exceed the end-of-month 
storage targets at the end of the month. Diversions may be adjusted any 
time during the month as conditions warrant (i.e., new forecasts, 
information from other forecasts becoming available, or any other new 
information that may impact stream forecasts).



Sec. 418.22  Future adjustments to Lahontan Reservoir storage targets.

    (a) The Lahontan Reservoir storage targets must be adjusted to 
accommodate changes in water demand in the Carson Division. Using the 
information reported by the District by March 1 of each year on eligible 
land expected to be irrigated and end-of-year data on eligible land 
actually irrigated (Sec. 418.9(b)), the Bureau will determine if the 
Lahontan Reservoir storage targets need to be changed. If no change is 
needed, the storage targets currently in effect will remain in effect.
    (1) Only the actual water demand reported for full water years (100 
percent water supply) will be considered. Targets will not be changed 
based on water demand reported for less than full water years.
    (2) All changes in storage targets must start on October 1 of any 
year. If information provided by March 1 and other available information 
indicates that the Lahontan Reservoir storage targets must be changed, 
the new set of storage targets must be applied starting October 1 of the 
same year and remain in effect until changed according to this section.
    (b) All changes to storage targets will be made according to the 
table in this section. The table of storage targets has been developed 
to provide a consistent Project water supply over a range of demands.
    (1) A storage target adjustment must be made in increments of 
thousands of acre-feet for the change as indicated in the column listing 
Carson Division Demand and the complete set of monthly targets must be 
applied.
    (2) If the change in reported water demand is above or below the 
values in the table of storage targets, the adjustment to the storage 
targets can be calculated. The calculated adjustment is the number that 
would appear in the column Target Adjustment in the table. The 
calculated Target Adjustment is then added or subtracted to the base 
storage target for each month. Target Adjustments must be made in whole 
increments of 1,000 acre-feet and calculated values will be rounded to 
the nearest 1,000 acre-feet.
    (i) For demands greater than those set forth on the table, the 
formula for the Target Adjustment is: Target Adjustment = 0.00208 
(Demand in acre-feet--271,000 acre-feet). For example, if water demand 
increased to 292,635 acre-feet per year, the Target Adjustment 
calculation would be = 0.00208x(292,535-271,000). The result would be a 
Target Adjustment of 45 or 45,000 acre-feet. This would be added to the 
base monthly storage target values so, the January-May target would be 
219,000 acre-feet, June would be 235,000 acre-feet, and so on.
    (ii) For demands less than those set forth on the table, the formula 
for the Target Adjustment is: Target Adjustment = 0.00174 (Demand in 
acre-feet--271,000 acre-feet). For example, if water demand decreased to 
248,011 acre-feet per year, the Target Adjustment calculation would be = 
0.00174x(248,011-271,000). The result would be a Target Adjustment of -
40 or -40,000 acre-feet. This would be subtracted from the base monthly 
storage target values so, the January-May target would be 134,000 acre-
feet, June would be 150,000 acre-feet, and so on.

[[Page 649]]

[GRAPHIC] [TIFF OMITTED] TR18DE97.006


[[Page 650]]


[GRAPHIC] [TIFF OMITTED] TR18DE97.007



Sec. 418.23  Diversion of Rock Dam Ditch water.

    Project water may be diverted directly to Rock Dam Ditch from the 
Truckee Canal only when diversions cannot be made from the outlet works 
of Lahontan Reservoir. Such diversions will require the prior written 
approval of the Bureau and be used in calculating Project diversions.



Sec. 418.24  Precautionary drawdown and spills from Lahontan Reservoir.

    (a) Even though flood control is not a specifically authorized 
purpose of the Project, at the request of the District

[[Page 651]]

and in consultation with other interested parties and the approval of 
the Bureau, precautionary drawdown of Lahontan Reservoir may be made to 
limit potential flood damage along the Carson River. The Bureau will 
develop criteria for precautionary drawdown in consultation with the 
District and other interested parties.
    (1) The drawdown must be scheduled sufficiently in advance and at 
such a rate of flow in order to divert as much water as possible into 
the Project irrigation system for delivery to eligible land or storage 
in reregulating reservoirs for later use on eligible land.
    (2) During periods of precautionary drawdown, or when water is 
spilled from Lahontan Reservoir, Project diversions will be determined 
by comparison with other years' data and normalized by comparison of 
differences in climatological data. The Bureau will estimate the 
normalization in consultation with the District and other interested 
parties.
    (3) Spills from Lahontan Reservoir and precautionary drawdown of the 
reservoir to create space for storing flood waters from the Carson River 
Basin that are in excess of the normalized diversions will not be used 
in calculating Project diversions.
    (4) Water captured in Project facilities as a result of a 
precautionary drawdown or spill will not be counted as storage in 
Lahontan Reservoir for the purpose of calculating Truckee River 
Diversions. Such water will not be counted as diversions to the Project 
unless such water is beneficially applied as described in (a)(5) of this 
section.
    (5) Water from precautionary drawdowns or spills that is captured in 
Project facilities must be used to the maximum extent possible, and 
counted as deliveries to eligible lands in the year of the drawdown. If 
all the drawdown water captured in Project facilities cannot be used in 
the year of capture for delivery to eligible lands, then that water must 
be delivered to eligible lands in subsequent years to the maximum extent 
possible and counted against the water users' annual allocation.
    (b) If a precautionary drawdown in one month results in a failure to 
meet the Lahontan Reservoir storage objective for that month, the 
storage objective in subsequent months will be reduced by one-half of 
the difference between that month's storage objective and actual end-of-
month storage. The Bureau is not liable for any damage or water shortage 
resulting from a precautionary drawdown.



Sec. 418.25  Water use for other than Newlands Project purposes.

    The District will release sufficient water to meet the vested water 
rights below Sagouspe Dam as specified in the Alpine decree. These water 
rights are usually met by return flows. Releases for these water rights 
will in no case exceed the portion of 1,300 acre-feet per year not 
supplied by return flows. This water must be accounted for at the USGS 
gauge number 10312275 (the Carson River at Tarzyn Road near Fallon). 
Releases for this purpose will not be considered in determining Project 
diversions since the lands to which the water is being delivered are not 
part of the Project. (See Sec. 418.15(b)(2)(ii).) Any flow past this 
gage in excess of the amount specified in this part will be absorbed by 
the District as an efficiency loss.



Sec. 418.26  Charges for water use.

    The District must maintain a financing and accounting system which 
produces revenue sufficient to repay its operation and maintenance costs 
and to discharge any debt to the United States. The District should give 
consideration to adopting a system which provides reasonable financial 
incentives for the economical and efficient use of water.



Sec. 418.27  Distribution system operation.

    (a) The District must permit only its authorized employees or agents 
to open and close individual turnouts and operate the distribution 
system facilities. After obtaining Bureau approval, the District may 
appoint agents to operate individual headgates on a specific lateral if 
it can be shown that the water introduced to the lateral by a District 
employee is completely scheduled and can be fully accounted for with a 
reasonable allowance for seepage and evaporation losses.

[[Page 652]]

    (b) If agents need to adjust the scheduled delivery of water to the 
lateral to accommodate variable field conditions, weather, etc., they 
must immediately notify the District so proper adjustments can be made 
in the distribution system. Each agent must keep an accurate record of 
start and stop times for each delivery and the flow during delivery. 
This record will be given to the District for proper accounting of water 
delivered.
    (c) The program of using agents to operate individual headgates will 
be reviewed on a regular basis by the District and the Bureau. If it is 
found that problems such as higher than normal losses, water not 
accounted for, etc., have developed on an individual lateral, the 
program will be suspended and the system operated by District employees 
until the problems are resolved.

                               Enforcement



Sec. 418.28  Conditions of delivery.

    There are four basic elements for enforcement with all necessary 
quantities and review determined in accordance with the relevant 
sections of this part.
    (a) Valid headgate deliveries. If water is delivered to ineligible 
land or in excess of the appropriate water duty then:
    (1) The District will stop the illegal delivery immediately;
    (2) The District will notify the Bureau of the particulars including 
the known or estimated location and amounts;
    (3) The amount will not be included as a valid headgate delivery for 
purposes of computing the Project efficiency and resultant incentive 
credit or debit to Lahontan storage; and
    (4) If the amount applies to a prior year, then the amount will be 
treated directly as a debit to Lahontan storage in the same manner as an 
efficiency debit.
    (b) District efficiency. To the extent that the actual District 
efficiency determined for an irrigation season is greater or less than 
the established target efficiency, as determined for the corresponding 
actual valid headgate deliveries, then the difference in efficiency, 
expressed as a quantity in acre-feet, may be added to or subtracted from 
the actual Lahontan Reservoir storage level before it is compared to the 
monthly storage objective as follows:
    (1) Greater efficiency--Credited to the District as storage in 
Lahontan or subtracted from any accumulated debit, or two-thirds as 
storage in Lahontan for their discretionary use in accordance with state 
law.
    (2) Less efficient--Debited or added to Lahontan storage as an 
adjustment to the actual storage level.
    (c) Maximum Allowable Diversion (MAD). The MAD must be computed each 
year to determine the amount of water required to enable the delivery of 
full entitlements at established Project efficiencies. Project 
diversions must not exceed the MAD. Within the operating year, the 
Bureau will notify the District in writing of any expected imminent 
violations of the MAD. The District will take prompt action to avoid 
such violations. The Bureau will exercise reasonable latitude from month 
to month to accommodate the District's efforts to avoid exceeding the 
MAD.
    (d) Maximum Efficiency Debit (MED). If the MED exceeds 26,000 AF at 
the end of any given year, the District must prepare and submit to the 
Bureau for review and approval, a plan detailing the actions the 
District will take to either earn adequate incentive credits or to 
restrict deliveries to reduce the MED to less than 26,000 AF by the end 
of the next year. The plan must be submitted to the Bureau in writing 
before the date of March 1 immediately subsequent to the exceeding of 
the MED. If the District fails to submit an approvable plan, Project 
allocations will be reduced by an amount equal to the MED in excess of 
26,000 plus 13,000 (one-half the allowable MED). Nominally this will 
mean a forced reduction of approximately five percent of entitlements. 
The Bureau will notify the District in writing of the specific 
allocation and method of derivation in sufficient time for the District 
to implement the allocation. Liabilities arising from shortages 
occasioned by operation of this provision must be the responsibility of 
the District or individual water users.

[[Page 653]]



Sec. 418.29  Project management.

    In addition to the provisions of Sec. 418.28, if the District is 
found to be operating Project facilities or any part thereof in 
substantial violation of this part, then, upon the determination by the 
Bureau, the Bureau may take over from the District the care, operation, 
maintenance, and management of the diversion and outlet works (Derby Dam 
and Lahontan Dam/Reservoir) or any or all of the transferred works by 
giving written notice to the District of the determination and its 
effective date. Following written notification from the Bureau, the 
care, operation, and maintenance of the works may be retransferred to 
the District.



Sec. 418.30  Provisions required in future contracts.

    The Bureau must provide in new, amended, or replacement contracts 
for the operation and maintenance of Project works, for the reservation 
by the Secretary of rights and options to enforce this part.

                    Water Management and Conservation



Sec. 418.31  Conservation measures.

    (a) Specific conservation actions will be needed for the District 
and its members to achieve a reasonable efficiency of operation as 
required by this part. The District is best able to determine the 
particular conservation measures that meet the needs of its water users. 
This ensures that the measures reflect the priorities and collective 
judgment of the water users; and will be practical, understandable and 
supported. The District also has the discretion to make changes in the 
measures they adopt as conditions or results dictate.
    (b) The District will keep the Bureau informed of the measures they 
expect to utilize during each year. This will enable the Bureau to stay 
apprised of any helpful information that may, in turn, help the Bureau 
assist other irrigation districts. The Bureau will work cooperatively in 
support of the District's selection of measures and methods of 
implementation.



Sec. 418.32  Cooperative programs.

    (a) The Bureau and the District will work cooperatively to develop a 
water management and conservation program to promote efficient 
management of water in the Project. The program will emphasize 
developing methods, including computerization and automation, to improve 
the District's operations and procedures for greater water delivery 
conservation.
    (b) The Bureau will provide technical assistance to the District and 
cooperatively assist the District in their obligations and efforts to:
    (1) Document and evaluate existing water delivery and measurement 
practices:
    (2) Implement improvements to these practices; and
    (3) Evaluate and, where practical, implement physical changes to 
Project facilities.

                             Implementation



Sec. 418.33  Purpose of the implementation strategy.

    The intent of the implementation strategy for this part is to ensure 
that the District delivers water within entitlements at a reasonable 
level of efficiency as a long term average.
    (a) The incentives and disincentives provided in this part are 
designed to encourage local officials with responsibilities for Project 
operations to select and implement through their discretionary actions, 
operating strategies which achieve the principles of this part.
    (b) The specified efficiencies in the Expected Project Distribution 
System Efficiency table (Sec. 418.13 (a)(4)) were developed considering 
implementation of reasonable conservation measures, historic project 
operations, economics, and environmental effects.
    (c) The efficiency target will be used as a performance standard to 
establish at the end of each year on the basis of actual operations, 
whether the District is entitled to a performance bonus in the form of 
incentive water or a reduction in storage for the amount borrowed ahead.

[[Page 654]]



Sec. 418.34  Valid headgate deliveries.

    Project water may be delivered to headgates only as provided in 
Sec. Sec. 418.8 and 418.10. Water delivered to lands that are not 
entitled to be irrigated or not in accord with decreed water duties is 
difficult to quantify at best because it is not typically measured. 
Since it is not likely to be a part of the total actual headgate 
deliveries, yet is a part of the total deliveries to the Project, it 
will manifest itself directly as a lower efficiency. Thus, it will 
either reduce the District's incentive credit or increase the storage 
debit by the amount improperly diverted. All other users outside the 
Project are thereby held harmless but the District incurs the 
consequence. This approach should eliminate any potential disputes 
between the District and the Bureau regarding the quantity of water 
misappropriated.



Sec. 418.35  Efficiencies.

    The established target efficiencies under this part are shown in the 
Expected Project Distribution System Efficiency table (Sec. 418.13 
(a)(4)). The efficiency of the Project will vary with the amount of 
entitlement water actually delivered at the headgates. Since most of the 
distribution system losses such as evaporation and seepage do not change 
significantly with the amount of water delivered (i.e., these losses are 
principally a function of water surface area and the wetted perimeter of 
the canals), the Project efficiency requirement is higher as the percent 
of entitlement water actually delivered at the headgates increases. The 
actual efficiency is calculated each year after the close of the 
irrigation season based on actual measured amounts. The application of 
any adjustments to Lahontan Reservoir storage or Truckee River 
diversions resulting from the efficiency is always prospective.



Sec. 418.36  Incentives for additional long term conservation.

    (a) As an incentive for the District to increase the efficiency of 
the delivery system beyond the expected efficiency of 65.7 percent (66.9 
percent with full delivery) as shown in the Newlands Project Water 
Budget table, 1995 Example, the District will be allowed to store and 
use the Carson River portion of the saved water at its discretion, in 
accordance with Nevada State Law and this part.
    (1) If the District is able to exceed its expected efficiency, the 
District may store in Lahontan Reservoir two-thirds (2/3) of the 
additional water saved. (The remaining one-third (1/3) of the water 
saved will remain in the Truckee River through reduced diversions to 
Lahontan Reservoir). This water will be considered incentive water saved 
from the Carson River and will not be counted as storage in determining 
diversions from the Truckee River or computing the target storage levels 
for Lahontan Reservoir under this part.
    (2) For purposes of this part, incentive water is no longer 
considered Project water. The District may use the water for any purpose 
(e.g., wetlands, storage for recreation, power generation, shortage 
reduction) that is consistent with Nevada State Law and Federal Law. The 
water will be managed under the District's discretion and may be stored 
in Lahontan Reservoir until needed subject to the limitations in (a)(3) 
of this section.
    (3) The amount of incentive water stored in Lahontan Reservoir will 
be reduced under the following conditions:
    (i) There is a deficit created and remaining in Lahontan Reservoir 
from operations penalties in a prior year;
    (ii) The District releases the water from the reservoir for its 
designated use;
    (iii) During a spill of the reservoir, the amount of incentive water 
must be reduced by the amount of spill; and
    (iv) At the discretion of the District, incentive water may be used 
to offset the precautionary drawdown adjustment to the Lahontan storage 
objective.
    (v) At the end of each year, the amount of incentive water will be 
reduced by the incremental amount of evaporation which occurs as a 
result of the increased surface area of the reservoir due to the 
additional storage. The evaporation rate used will be either the net 
evaporation measured or the net historical average after precipitation 
is taken into account. The method of calculation will be agreed to

[[Page 655]]

by the District and the Bureau in advance of any storage credit.
    (b) An example of this concept is:

    Example: Incentive Operation--(1) At the end of the 1996 irrigation 
season, the Bureau and the District audit the District's water records 
for 1996. The District's water delivery records show that 194,703 acre-
feet of water were delivered to farm headgates. On the basis of their 
irrigated acreage that year (59,075) the farm headgate entitlement would 
have been 216,337 acre-feet. On the basis of 90 percent deliveries for 
59,075 acres (194,203 divided by 216,337 = 0.90) the established Project 
efficiency requirement was 65.1 percent. (2) On the basis of the 
established Project efficiency (66.1 percent), the Project diversion 
required to make the headgate deliveries would be expected to be 291,909 
acre-feet (194,703 divided by 0.651 = 291,909). An examination of 
Project records reveals that the District only diverted 286,328 acre-
feet which demonstrated actual Project efficiency was 68 percent and 
exceeded requirements of this part.
    (3) The 5,581 acre-feet of savings (291,909-286,328 = 5,581) 
constitutes the savings achieved through efficiency improvements and the 
District would then be credited two-thirds (3,721 acre-feet=5,581x2/3) 
of this water (deemed to be Carson River water savings) as incentive 
water.
    (4) This incentive water may be stored in Lahontan Reservoir or 
otherwise used by the District in its discretion consistent with State 
and Federal Law (e.g., power generation, recreation storage, wildlife, 
drought protection, etc.).



Sec. 418.37  Disincentives for lower efficiency.

    (a) If the District fails to meet the efficiencies established by 
this part, then, in effect, the District has borrowed from a subsequent 
year. The amount borrowed will be accounted for in the form of a deficit 
in Lahontan Reservoir storage. This deficit amount will be added to the 
actual Lahontan Reservoir storage quantity for the purpose of 
determining the Truckee River diversions to meet storage objectives as 
well as all other operating decisions.
    (b) The amount of the deficit will be cumulative from year to year 
but will not be allowed to exceed 26,000 acre-feet (the expected 
variance between the MAD and actual water use). This limit is expected 
to avoid increasing the severity of drought and yet still allow for 
variations in efficiency over time due to weather and other factors. 
This approach should allow the District to plan its operation to correct 
for any deficiencies.
    (c) The deficit can be reduced by crediting incentive water earned 
by the District or reducing the percentage of headgate entitlement 
delivered either through a natural drought or by the District and its 
water users administratively limiting deliveries while maintaining an 
efficiency greater than or equal to the target efficiency.
    (d) If there is a natural drought and the shortage to the headgates 
is equal to or greater than the deficit, then the deficit is reduced to 
zero. If the shortage to headgates is less than the deficit then the 
deficit is reduced by an amount equal to the headgate shortage. During a 
natural drought, if the percentage of maximum headgate entitlement 
delivered is 75 percent or more then the District will be subject to the 
target efficiencies and resultant deficits or credits.
    (e) If the District has a deficit in Lahontan Reservoir and earns 
incentive water, the incentive water must be used to eliminate the 
deficit before it can be used for any other purpose. The deficit must be 
credited on a 1 to 1 basis (i.e., actual efficiency savings rather than 
\1/3\-\2/3\ for incentive water).
    (f) An example of the penalty concept is:

    Example: Penalty--In 1996 the District delivers 90 percent of the 
maximum headgate entitlement or 194,703 acre-feet 216,337x.90) but 
actually diverts 308,000 acre-feet. The efficiency of the Project is 
63.2 percent (194,703 divided by 308,000). Since the established 
efficiency of 65.1 percent would have required a diversion of only 
299,083 acre-feet (194,703 divided by .651) the District has operated 
the system with 8,917 acre-feet of excess losses. Therefore, 8,917 acre-
feet was borrowed and must be added to the actual storage quantities of 
Lahontan Reservoir for calculating target storage levels and Truckee 
River diversions.



Sec. 418.38  Maximum allowable diversion.

    (a) The MAD established in this part is based on the premise that 
the Project should be operated to ensure that it is capable of 
delivering to the headgate of each water right holder the full water 
entitlement for irrigable eligible acres and includes distribution 
system losses. The MAD will be established (and is likely to vary) each 
year.

[[Page 656]]

The annual MAD will be calculated each year based on the actual acreage 
to be irrigated that year.
    (b) Historically, actual deliveries at farm headgates have been 
approximately 90 percent of entitlements. This practice is expected to 
continue but the percentage is expected to change. This variance between 
headgate deliveries and headgate entitlements will be calculated 
annually under this part and is allowed to be diverted if needed and 
thereby provides an assurance that full headgate deliveries can be made. 
The expected diversion and associated efficiency target for the examples 
shown in the Newlands Project Water Budget table would be: 285,243 AF 
and 65.1 percent in 1996 and beyond. These are well below the MAD 
limits; however, the District may divert up to the MAD if it is needed 
to meet valid headgate entitlements.

[[Page 657]]



     Sec. Appendix A to Part 418--Calculation of Efficiency Equation
[GRAPHIC] [TIFF OMITTED] TR18DE97.008


[[Page 658]]


[GRAPHIC] [TIFF OMITTED] TR18DE97.009


[[Page 659]]





PART 419_TRUCKEE RIVER OPERATING AGREEMENT--Table of Contents



Sec.
419.1 What is the purpose of this part?
419.2 What are the definitions used in this part?
419.3 What general principles govern implementation of the TROA?
419.4 What specific provisions govern operations of the reservoirs?

    Authority: Public Law 101-618 (104 Stat. 3289, 3294).

    Source: 73 FR 74038, Dec. 5, 2008, unless otherwise noted.



Sec. 419.1  What is the purpose of this part?

    (a) This part satisfies the requirement of Section 205(a)(5) of the 
Truckee-Carson-Pyramid Lake Water Rights Settlement Act (Settlement Act) 
that the negotiated agreement for operation of Truckee River Reservoirs 
be promulgated as a Federal regulation. The Truckee River Operating 
Agreement (TROA), published in September 2008 by the Bureau of 
Reclamation, is the agreement negotiated pursuant to Section 205(a) of 
the Settlement Act and is incorporated by reference into this section 
with the approval of the Director of the Federal Register under 5 U.S.C. 
522 (a) and 1 CFR part 51. All approved material is available for 
inspection at the National Archives and Records Administration (NARA). 
For information on the availability of this material at NARA, call 202-
741-6030 or go to http://www.archives.gov/federal--register/code--of--
federal--regulations/ibr--locations.html. Also, a copy of TROA may be 
obtained from or inspected at the Bureau of Reclamation, 705 N. Plaza 
St., Carson City, NV 89701, 775-884-8356, where copies are on file, or 
at the following Web site: http://www.usbr.gov/mp/troa/.
    (b) This part implements the Settlement Act by providing for 
operation of the Truckee River Reservoirs and other reservoirs in a 
manner that:
    (1) Implements California's allocation of Truckee River basin water 
and the Nevada and California allocations of Lake Tahoe basin water;
    (2) Enhances fish, wildlife, and recreational beneficial uses of 
water in the Truckee River basin;
    (3) Carries out the terms, conditions, and contingencies of the 
Preliminary Settlement Agreement;
    (4) Ensures that water is stored in, released from, and passed 
through Truckee River Reservoirs to satisfy the exercise of water rights 
in conformance with the Orr Ditch Decree and Truckee River General 
Electric Decree, except for rights voluntarily relinquished by any 
persons or transferred under State law;
    (5) Provides for the enhancement of spawning flows available in the 
Lower Truckee River for Pyramid Lake Fishes in a manner consistent with 
the Secretary of the Interior's responsibilities under the Endangered 
Species Act, as amended;
    (6) Satisfies all applicable dam safety and flood control 
requirements; and
    (7) Minimizes the Secretary of the Interior's costs associated with 
operation and maintenance of Stampede Reservoir.



Sec. 419.2  What are the definitions used in this part?

    Act means the Truckee-Carson-Pyramid Lake Water Rights Settlement 
Act of 1990, title II, Public Law 101-618 (104 Stat. 3289, 3294).
    Administrator means the individual appointed in accordance with 
Sections 2.A.2 through 2.A.3 of the Truckee River Operating Agreement 
(incorporated by reference at Sec. 419.1).
    Preliminary Settlement Agreement means that Agreement between the 
Pyramid Lake Paiute Tribe and Sierra Pacific Power Company of May 23, 
1989, as subsequently modified and ratified by the United States.
    TROA means the Truckee River Operating Agreement.
    Truckee River basin means the area which naturally drains into the 
Truckee River and its tributaries and into Pyramid Lake, including 
Pyramid Lake, but excluding the Lake Tahoe basin.
    Truckee River Reservoirs means Boca Reservoir, Prosser Creek 
Reservoir, Martis Creek Reservoir, Stampede Reservoir, and the storage 
provided by the dam at the outlet of Lake Tahoe.

[[Page 660]]



Sec. 419.3  What general principles govern implementation of the TROA?

    The following are general operational principles which provide a 
framework for the Administrator in implementing the TROA (incorporated 
by reference at Sec. 419.1). These general principles are intended to 
be consistent with the specific provisions of TROA, but if they conflict 
with those specific provisions, the specific TROA provisions control. 
Operations should meet all of the following criteria:
    (a) Be conducted, consistent with the TROA and applicable legal 
requirements, so that the available water supply in the Truckee River 
basin satisfies, to the maximum extent possible, multiple beneficial 
purposes, including municipal and industrial, irrigation, fish, 
wildlife, water quality, and recreation purposes.
    (b) Satisfy vested and perfected rights to use the water of the 
Truckee River and its tributaries, to the extent that water rights are 
scheduled to be exercised, and to the extent that water is lawfully 
available. This includes, but is not limited to, the exercise of water 
rights under the provisions of the Orr Ditch Decree, except as expressly 
provided in the Settlement Act and the TROA.
    (c) Maintain minimum releases and, to the extent practicable 
consistent with existing water rights and the TROA, maintain enhanced 
minimum releases, preferred stream flows, and reservoir recreation 
levels as described in Article Nine of the TROA.
    (d) Comply with applicable flood control requirements for Prosser 
Creek, Stampede, Boca, and Martis Creek Reservoirs.
    (e) Comply with all applicable dam safety requirements.
    (f) Use the integrated schedules developed by the Administrator 
through coordination with the scheduling parties.
    (g) Respond to declared Federal, State, or local water-related 
emergencies presenting a clear and immediate danger to public health, 
life, property, or essential public services involving an upset or other 
unexpected occurrence to facilities and resources addressed in the TROA.



Sec. 419.4  What specific provisions govern operations of the reservoirs?

    The specific provisions governing operations of the Truckee River 
Reservoirs and other reservoirs are contained in the TROA (incorporated 
by reference at Sec. 419.1). The following table shows the location of 
the provisions in the TROA.

------------------------------------------------------------------------
                                    Are in the following sections of the
    Provisions governing . . .                   TROA . . .
------------------------------------------------------------------------
Recitals, Definitions.............  Recitals 1 through 9. Definitions
                                     (1) through (106).
Satisfaction of provisions of law,  Sections 1.A through 1.F.
 general operational principles,
 protection of water rights,
 imported water, remaining water
 of the Truckee River, and
 emergencies.
Administration....................  Sections 2.A through 2.C.
Accounting, reporting,              Sections 3.A through 3.E.
 forecasting, and monitoring.
Incorporation of certain            Sections 4.A through 4.G.
 provisions of the preliminary
 settlement agreement.
Operation of Floriston Rate and     Sections 5.A through 5.E.
 Project Water.
Truckee River and Lake Tahoe Basin  Sections 6.A through 6.E.
 Allocation and Accounting.
Credit Water Establishment,         Sections 7.A through 7.H.
 Storage, and Conversion.
Priorities and Rules for            Sections 8.A through 8.V.
 Operations Following Impoundment
 or Accumulation of Water in
 Reservoirs.
Beneficial Uses of Water for        Sections 9.A through 9.F.
 Instream Flows and Recreation in
 California.
Design of Water Wells in the        Sections 10.A through 10.H.
 Truckee River Basin in California.
Scheduling........................  Sections 11.A through 11.H.
Effectiveness of the TROA.........  Sections 12.A and 12.B.
Relation of TROA to Settlement      Sections 13.A through 13.E.
 Act, Adjustments to Operations
 and Changes to Agreement.
Miscellaneous areas...............  Sections 14.A through 14.Q.
------------------------------------------------------------------------


[[Page 661]]



PART 420_OFF-ROAD VEHICLE USE--Table of Contents



Sec.
420.1 Objectives.
420.2 General closure.
420.3 Adjacent lands.
420.4 Enforcement.
420.5 Definitions.

                      Subpart A_Operating Criteria

420.11 Requirements--vehicles.
420.12 Requirements--operators.

             Subpart B_Designated Areas and Permitted Events

420.21 Procedure for designating areas for off-road vehicle use.
420.22 Criteria for off-road vehicle areas.
420.23 Public notice and information.
420.24 Permits for organized events.
420.25 Reclamation lands administered by other agencies.

    Authority: 32 Stat. 388 (43 U.S.C. 391 et seq.) and acts amendatory 
thereof and supplementary thereto; EO 11644 (37 FR 2877).

    Source: 39 FR 26893, July 24, 1974, unless otherwise noted.



Sec. 420.1  Objectives.

    The provisions of this part establish regulations for off-road 
vehicle use on reclamation lands to protect the land resources, to 
promote the safety of all users, to minimize conflicts among the various 
uses, and to ensure that any permitted use will not result in 
significant adverse environmental impact or cause irreversible damage to 
existing ecological balances.



Sec. 420.2  General closure.

    Reclamation lands are closed to off- road vehicle use, except for an 
area or trail specifically opened to use of off- road vehicles in 
accordance with Sec. 420.21.



Sec. 420.3  Adjacent lands.

    When administratively feasible, the regulation of off-road vehicle 
use on Reclamation lands will be compatible with such use as permitted 
by recreation-managing agencies on adjacent lands (both public and 
private).



Sec. 420.4  Enforcement.

    The provisions of this part will be enforced to the extent of Bureau 
authority, including entering into cooperative agreements with Federal, 
State, county, or local law enforcement officials.



Sec. 420.5  Definitions.

    As used in this part, the term:
    (a) Off-road vehicle means any motorized vehicle (including the 
standard automobile) designed for or capable of cross-country travel on 
or immediately over land, water, sand, snow, ice, marsh, swampland, or 
natural terrain. The term excludes: (1) Nonamphibious registered 
motorboats; (2) military, fire, emergency, or law enforcement vehicles 
when used for emergency purpose; (3) self-propelled lawnmowers, 
snowblowers, garden or lawn tractors, and golf carts while being used 
for their designed purpose; (4) agricultural, timbering, construction, 
exploratory, and development equipment and vehicles while being used 
exclusively as authorized by permit, lease, license, agreement, or 
contract with the Bureau; (5) any combat or combat support vehicle when 
used in times of national defense emergencies; and (6) ``official use'' 
vehicles.
    (b) Bureau means the Bureau of Reclamation.
    (c) Reclamation lands mean all lands under the custody and control 
of the Commissioner, Bureau of Reclamation.
    (d) Off-road vehicle area means a portion or all of a specifically 
designated parcel of Reclamation lands opened to off-road vehicle use in 
accordance with the procedure in section 420.21.
    (e) Off-road vehicle trail means a specifically delineated path or 
way varying in width which is designated to be used by and maintained 
for hikers, horsemen, snow travelers, bicyclists and for motorized 
vehicles.
    (f) Official use means use of a vehicle by an employee, agent, or 
designated representative of the Federal Government who, with special 
permission from the Bureau of Reclamation, uses a vehicle for an 
officially authorized purpose.
    (g) Organized Event means a structured, or consolidated, or 
scheduled meeting involving 15 or more vehicles for the purpose of 
recreational use of Reclamation lands involving the use of

[[Page 662]]

off-road vehicles. The term does not include family groups participating 
in informal recreational activities.

[39 FR 26893, July 24, 1974, as amended at 44 FR 34909, June 15, 1979]



                      Subpart A_Operating Criteria



Sec. 420.11  Requirements--vehicles.

    Each off-road vehicle that is operated on Reclamation lands shall 
meet the following requirements:
    (a) It shall conform to applicable State laws and vehicle 
registration requirements.
    (b) It shall be equipped with a proper muffler and spark arrestor in 
good working order and in constant operation. The spark arrestor must 
conform to Forest Service Spark Arrestor Standard 5100-1a, and there 
shall be no muffler cutout, bypass, or similar device.
    (c) It shall have adequate brakes and, for operation from dusk to 
dawn, working headlights and taillights.



Sec. 420.12  Requirements--operators.

    (a) In addition to the regulation of part 420, operators shall 
comply with any applicable State laws pertaining to off-road vehicles; 
if State laws are lacking or less stringent than the regulations 
established in this part, then the regulations in part 420 are minimum 
standards and are controlling.
    (b) Each operator of an off-road vehicle operated on Reclamation 
lands shall possess a valid motor vehicle operator's permit or license; 
or, if no permit or license is held, he/she shall be accompanied by or 
under the immediate supervision of a person holding a valid permit or 
license.
    (c) During the operation of snowmobiles, trail bikes, and any other 
off road vehicle the operator shall wear safety equipment, generally 
accepted or prescribed by applicable State law or local ordinance for 
use of the particular activity in which he/she is participating.
    (d) No person may operate an off-road vehicle:
    (1) In a reckless, careless or negligent manner;
    (2) In excess of established speed limits;
    (3) While under the influence of alcohol or drugs;
    (4) In a manner likely to cause irreparable damage or disturbance of 
the land, wildlife, vegetative resources, or archeological and historic 
values of resources; or
    (5) In a manner likely to become an unreasonable nuisance to other 
users of Reclamation or adjacent lands.



             Subpart B_Designated Areas and Permitted Events



Sec. 420.21  Procedure for designating areas for off-road vehicle use.

    The Regional Director shall, to the extent practicable, hold public 
hearings to obtain interested user groups, local populace, and affected 
Federal, State, and county agencies' opinions for opening or closing an 
area or trail in a manner that provides an opportunity for the public to 
express themselves and have their views taken into account. The Regional 
Director may act independently if he/she deems emergency action to open 
or close or restrict areas and trails is necessary to attain the 
objectives of the regulations of this part.
    (a) Regional Directors shall designate and publicize those areas and 
trails which are open to off-road vehicle use in accordance with Sec. 
420.23.
    (b) Before any area or trail is opened to off-road vehicle use, the 
Regional Director will establish specific regulations which are 
consistent with the criteria in these regulations.
    (c) The Regional Director will inspect designated areas and trails 
periodically to determine conditions resulting from off-road vehicle 
use. If he determines that the use of off-road vehicles will cause or is 
causing considerable adverse effects on the soil, vegetation, wildlife, 
wildlife habitat, or cultural or historic resources of particular areas 
or trails of the public lands, he shall immediately close such areas or 
trails to the type of off-road vehicle causing such effects. No area or 
trail shall be reopened until the Regional Director determines that 
adverse effects have been eliminated and that measures have been 
implemented to prevent future recurrence. The public

[[Page 663]]

shall be notified of restrictions or closure in accordance with Sec. 
420.23.

[39 FR 26893, July 24, 1974, as amended at 44 FR 34909, June 15, 1979]



Sec. 420.22  Criteria for off-road vehicle areas.

    (a) Areas and trails to be opened to off-road vehicle use shall be 
located:
    (1) To minimize the potential hazards to public health and safety, 
other than the normal risks involved in off-road vehicle use.
    (2) To minimize damage to soil watershed, vegetation, or other 
resources of the public lands.
    (3) To minimize harassment of wildlife or significant disruption of 
wildlife habitats.
    (4) To minimize conflicts between off-road vehicle use and other 
existing or proposed recreational uses of the same or neighboring public 
lands, and to ensure compatibility of uses with existing conditions in 
populated areas, taking into account noise and other factors.
    (5) In furtherance of the purposes and policy of the National 
Environmental Policy Act of 1969 (Pub. L. 91-190, 83 Stat. 852).
    (b) Areas and trails shall not be located in areas possessing unique 
natural, wildlife, historic, cultural, archeological, or recreational 
values unless the Commissioner determines that these unique values will 
not be adversely affected.



Sec. 420.23  Public notice and information.

    Areas and trails may be marked with appropriate signs to permit, 
control or prohibit off-road vehicle use on Reclamation lands. All 
notices concerning the regulation of off-road vehicles shall be posted 
in a manner that will reasonably bring them to the attention of the 
public. A copy of any notice shall be made available to the public in 
the regional office and field offices where appropriate. Such notice, 
and the reasons therefore, shall be published in the Federal Register 
together with such other forms of public notice or news release as may 
be appropriate and necessary to adequately describe the conditions of 
use and the time periods when the areas involved in an action under 
these regulations are to be (a) opened to off-road vehicle use, (b) 
restricted to certain types of off-road vehicle use and (c) closed to 
off-road vehicle use.



Sec. 420.24  Permits for organized events.

    Regional Directors may issue permits for the operation of off-road 
vehicles in organized races, rallies, meets, endurance contests, and 
other events on areas designed for each event. The application for such 
an event shall:
    (a) Be received by the Regional Director at least 60 days before the 
event;
    (b) Provide a plan for restoration and rehabilitation of trails and 
areas used, and demonstrate that the prospective permittee can be bonded 
for or deposit the amount that may be required to cover the cost;
    (c) Demonstrate that special precautions will be taken to:
    (1) Protect the health, safety, and welfare of the public; and
    (2) Minimize damage to the land and related resources.
    (d) Application fees (in amounts to be determined) as authorized by 
section 2 of the Land and Water Conservation Fund Act of 1965 (78 Stat. 
897), as amended, shall accompany all applications.



Sec. 420.25  Reclamation lands administered by other agencies.

    (a) Off-road vehicle use will be administered in accordance with 
Executive Order 11644, by those Federal and non-Federal agencies which 
have assumed responsibility for management of Reclamation lands for 
recreation purposes.
    Specifically:
    (1) Reclamation lands managed by the National Park Service, the 
Bureau of Sport Fisheries and Wildlife, the Bureau of Land Management, 
the Forest Service, and other Federal agencies will be administered in 
accordance with regulations of those agencies.
    (2) Reclamation lands managed by non-Federal entities will be 
administered in a manner consistent with both part 420 and applicable 
non-Federal laws and regulations.
    (b) Public lands withdrawn, but not yet utilized for Reclamation 
purposes, will be administered by the Forest

[[Page 664]]

Service or by the Bureau of Land Management in accordance with 
regulations of those agencies, but consistent with Reclamation 
requirements for retaining the land.



PART 422_LAW ENFORCEMENT AUTHORITY AT BUREAU OF RECLAMATION PROJECTS--Table of Contents



Sec.
422.1 Purpose of this part.
422.2 Definitions.
422.3 Reclamation law enforcement policy.

                            Responsibilities

422.4 Responsibilities of the Commissioner of Reclamation.
422.5 Responsibilities of the Law Enforcement Administrator.
422.6 Responsibilities of the Chief Law Enforcement Officer.

                          Program Requirements

422.7 Authorization to perform law enforcement duties.
422.8 Requirements for law enforcement functions and programs.
422.9 Reclamation law enforcement contracts and cooperative agreements.
422.10 Requirements for authorizing officers to exercise Reclamation law 
          enforcement authority.
422.11 Position sensitivity and investigations.
422.12 Required standards of conduct.
422.13 Reporting an injury or property damage or loss.

    Authority: 16 U.S.C. 460l-31; 43 U.S.C. 373b, 373c

    Source: 67 FR 38420, June 4, 2002, unless otherwise noted.



Sec. 422.1  Purpose of this part.

    (a) This part implements Public Law No. 107-69, 115 Stat. 593 
(November 12, 2001), an Act to Amend the Reclamation Recreation 
Management Act of 1992, by:
    (1) Establishing eligibility criteria, such as fitness and training 
requirements, for Federal, State, local, and tribal law enforcement 
personnel to protect Bureau of Reclamation (Reclamation) facilities and 
lands; and
    (2) Ensuring that Federal, State, local, and tribal law enforcement 
programs comply with applicable laws and regulations when they discharge 
the Secretary of the Interior's authority.
    (b) This part does not apply to, or limit or restrict in any way, 
the investigative jurisdiction or exercise of law enforcement authority 
of any Federal law enforcement agency, under Federal law, within a 
Reclamation project or on Reclamation lands. The provisions of this part 
apply to non-Department of the Interior Federal law enforcement agents 
only where Reclamation has entered into a cooperative agreement or 
contract with a Federal law enforcement agency, pursuant to Public Law 
107-69, for the services of specified individual Federal law enforcement 
agents.
    (c) Nothing in this part shall be construed or applied to affect any 
existing right of a State or local government, or an Indian tribe, or 
their law enforcement officers, to exercise concurrent civil and 
criminal jurisdiction within a Reclamation project or on Reclamation 
lands.



Sec. 422.2  Definitions.

    (a) Department means the United States Department of the Interior.
    (b) Reclamation means the Bureau of Reclamation of the United States 
Department of the Interior.
    (c) Law Enforcement Program means Reclamation's program to provide 
law enforcement and protective services at Reclamation project 
facilities and on Federal project lands. The activity is directed toward 
the preservation of public order, safety, and protection of resources 
and facilities, and their occupants.
    (d) Law Enforcement Administrator (LEA) means the person designated 
by the Commissioner of Reclamation to:
    (1) Direct the law enforcement program and units;
    (2) Develop the policy, procedures, and standards for the law 
enforcement program within Reclamation; and
    (3) Provide for inspection and oversight to control enforcement 
activity.
    (e) Chief Law Enforcement Officer (CLEO) means the highest level 
duly authorized law enforcement officer for a non-Department law 
enforcement agency.
    (f) Law Enforcement Officer means:
    (1) A duly authorized Federal law enforcement officer, as that term 
is defined in Public Law 107-69, from any

[[Page 665]]

non-Department Federal agency who is authorized to act as a law 
enforcement officer on Reclamation projects and lands; or
    (2) Law enforcement personnel of any State, local government, or 
tribal law enforcement agency.



Sec. 422.3  Reclamation law enforcement policy.

    The law enforcement policy of Reclamation is:
    (a) To maintain an accountable, professional law enforcement program 
on Reclamation project facilities, and to protect Federal project lands 
and their occupants. Reclamation will meet its law enforcement 
responsibilities by establishing and promoting a law enforcement program 
which maintains law and order, and protects persons and property within 
Reclamation property and on Reclamation lands;
    (b) To entrust law enforcement authority only to persons deemed to 
be qualified, competent law enforcement professionals;
    (c) To maintain a continuing review and evaluation of Reclamation's 
law enforcement programs and operations to ensure compliance with 
applicable Federal laws, regulations, and policies of the Department;
    (d) To ensure that approved standards are attained and maintained by 
each law enforcement unit undertaking a contract or cooperative 
agreement;
    (e) To increase the effectiveness of law enforcement through the 
efficient handling and exchange of criminal and intelligence information 
with other Federal, State, local, and tribal agencies, as appropriate;
    (f) To provide the public prompt access to information concerning 
its law enforcement program in accordance with the spirit and intent of 
the Freedom of Information Act, 5 U.S.C. 552; Department FOIA 
Regulations, 43 CFR 2; and 383 DM 15, Freedom of Information Act 
Handbook (see www.doi.gov);
    (g) To ensure that the use of force by agency personnel under 
contracts or cooperative agreements with Reclamation complies with the 
Constitution and the law of the United States; and
    (h) To negotiate contracts and cooperative agreements under this 
part to ensure that:
    (1) Reclamation retains flexibility to meet its law enforcement 
needs; and
    (2) Entities entering into contracts and cooperative agreements are 
appropriately reimbursed.

                            Responsibilities



Sec. 422.4  Responsibilities of the Commissioner of Reclamation.

    (a) The Secretary of the Interior has designated the Commissioner of 
Reclamation to implement law enforcement authority at Reclamation 
facilities. The Commissioner is responsible for:
    (1) Implementing the provisions of Public Law 107-69;
    (2) Ensuring consistency with applicable Departmental and 
Reclamation requirements for law enforcement officers;
    (3) Carrying out the specific responsibilities listed in paragraph 
(b) of this section; and
    (4) Developing any additional policies necessary for the successful 
accomplishment of Reclamation's law enforcement responsibilities.
    (b) The Commissioner's specific responsibilities include the 
following:
    (1) Designating Reclamation's Law Enforcement Administrator (LEA), 
with authority to discharge the responsibilities assigned by these 
regulations;
    (2) Overseeing the LEA's ability to ensure that all law enforcement 
officers under contract or cooperative agreement for law enforcement 
services to Reclamation are properly trained and receive necessary 
authorizations; and
    (3) Overseeing the LEA's development of policy, procedures, and 
standards for directing the law enforcement units, and the installation 
of management controls for proper implementation of the law enforcement 
program.



Sec. 422.5  Responsibilities of the Law Enforcement Administrator.

    (a) The Law Enforcement Administrator (LEA):
    (1) Reports directly to the Commissioner;
    (2) Oversees the law enforcement program; and
    (3) Is responsible for promulgating mission-oriented policy, 
procedures, and standards to ensure the effective

[[Page 666]]

implementation of Reclamation's law enforcement authority.
    (b) The chain of command for law enforcement will run from the 
Commissioner through the LEA to other positions designated as part of 
the Reclamation law enforcement managerial structure, which may include 
a Chief Law Enforcement Officer. The units will be staffed through 
cooperative agreements or contracts with law enforcement personnel from 
Department and non-Department Federal agencies or State, local, or 
tribal law enforcement organizations, with unit command being provided 
as part of the cooperative agreement or contract.
    (c) Within the chain of command specified in paragraph (b) of this 
section, the LEA provides policy direction, inspection, and oversight 
for the law enforcement functions of Reclamation.



Sec. 422.6  Responsibilities of the Chief Law Enforcement Officer.

    The Chief Law Enforcement Officer's (CLEO) responsibilities are to 
ensure that:
    (a) Law enforcement officers working at Reclamation facilities and 
on Federal project lands are duly authorized under Sec. 422.7;
    (b) Law enforcement officers authorized under a contract or 
cooperative agreement meet training and fitness requirements established 
in this part and abide by standards of conduct and performance 
established in this part and in the contract or cooperative agreement;
    (c) Law enforcement officers are under the immediate supervision of 
a commanding officer who is part of each law enforcement unit for which 
Reclamation enters into a contract or cooperative agreement; and
    (d) Required reports are made to the LEA, or to another person 
designated by Reclamation, for purposes of carrying out the law 
enforcement functions for which Reclamation has a contract or 
cooperative agreement.

                          Program Requirements



Sec. 422.7  Authorization to perform law enforcement duties.

    (a) The CLEO must issue written authorization to each officer who is 
authorized to perform Reclamation law enforcement duties.
    (b) Before issuing an authorization under paragraph (a) of this 
section, the CLEO must ensure that the officer meets:
    (1) All the requirements for officers authorized under the law 
enforcement contract or cooperative agreement with Reclamation; and
    (2) All requirements in Sec. Sec. 422.10, 422.11, and 422.12.
    (c) The CLEO must terminate an officer's authorization under 
paragraph (a) of this section and must notify the issuing Reclamation 
official when the officer:
    (1) Terminates employment as a full-time police officer for any 
reason;
    (2) Is transferred to another area of jurisdiction, where the 
continued performance of Reclamation duties would be impractical;
    (3) Is suspended for any offense that would impair his/her fitness 
to perform law enforcement duties; or
    (4) Is under indictment or has been charged with a crime.
    (d) The LEA can, upon showing just cause, revoke the authorization 
of an individual officer to perform law enforcement services under 
Reclamation's law enforcement authority after providing written notice 
to the CLEO.



Sec. 422.8  Requirements for law enforcement functions and programs.

    The requirements in this section apply to Reclamation and to each 
law enforcement unit exercising Reclamation's law enforcement authority.
    (a) The law enforcement program must provide for control, 
accountability, coordination, and clear lines of authority and 
communication. This organizational structure must apply both within the 
law enforcement units, and between the law enforcement units and the LEA 
or other personnel designated as responsible under the law enforcement 
contract or cooperative agreement.

[[Page 667]]

    (b) Only duly authorized law enforcement officers may discharge law 
enforcement duties.
    (c) Each law enforcement contract or cooperative agreement must 
specifically name those individuals within the contracting agency who 
are authorized to exercise Reclamation law enforcement authority 
consistent with applicable laws, regulations, and the requirements of 
this part. A CLEO can authorize only duly authorized officers who meet 
the standards in Sec. 422.7 to exercise law enforcement authority.
    (d) Any uniform worn by law enforcement officers must display 
distinctive identification to ensure that the officer is:
    (1) Distinguishable from non-law enforcement personnel; and
    (2) Easily recognized by the public as a law enforcement officer.
    (e) Officers investigating a violation of Federal law under a law 
enforcement contract or cooperative agreement with Reclamation will 
notify applicable Federal law enforcement authorities, as appropriate, 
pursuant to 43 U.S.C. 373b(d)(4).
    (f) The LEA must:
    (1) Establish an incident reporting system for incidents that occur 
on Reclamation lands; and
    (2) Include the reporting requirements for incidents as an element 
of each contract or cooperative agreement.



Sec. 422.9  Reclamation law enforcement contracts and cooperative agreements.

    (a) The LEA, or a person that the LEA designates, may enter into 
contracts or cooperative agreements with Federal, State, local, or 
tribal law enforcement agencies to aid in enforcing or carrying out 
Federal laws and regulations on Reclamation facilities or Reclamation-
managed property. Reclamation will rescind the contract or cooperative 
agreement if an elected governing body with jurisdiction over the local 
law enforcement agency adopts a resolution objecting to the use of that 
agency's personnel to enforce Federal laws.
    (b) Each contract and cooperative agreement authorizing the exercise 
of Reclamation law enforcement authority:
    (1) Must expire no later than 3 years from its effective date;
    (2) May be revoked earlier by either party with written notice;
    (3) May be revised or amended with the written consent of both 
parties;
    (4) Must expressly include the requirements for exercise of 
Reclamation law enforcement authority listed in Sec. 422.10;
    (5) Must expressly state that the officer has completed the Federal 
Bureau of Investigation criminal history review as required by Sec. 
422.11; and
    (6) Must expressly include the standards of conduct listed in 
section 422.12.



Sec. 422.10  Requirements for authorizing officers to exercise Reclamation law enforcement authority.

    (a) The CLEO must ensure that each officer receiving an 
authorization under Sec. 422.7(a):
    (1) Is at least 21 years old;
    (2) Is certified as a bona fide full-time peace officer under State 
Peace Officer Standards and Training (POST) requirements, or its 
functional equivalent or is certified as a Federal law enforcement 
officer;
    (3) Has passed his/her agency's firearms qualifications (which must 
be consistent with Federal policy) within the 6-month period immediately 
preceding the granting of the authority;
    (4) Re-qualifies to use firearms with all issued service weapons at 
least semi-annually;
    (5) Has neither been convicted of a felony offense, nor convicted of 
a misdemeanor offense for domestic violence, preventing him/her from 
possessing a firearm in compliance with section 658 of Public Law 104-
208 (the 1996 amendment of the Gun Control Act of 1968);
    (6) Is not the subject of a court order preventing him/her from 
possessing a firearm;
    (7) Has no physical impairments that will hinder performance as an 
active duty law enforcement officer; and
    (8) Attends and successfully completes a mandatory orientation 
session developed by Reclamation to become familiar with Federal laws 
and procedures and with all pertinent provisions

[[Page 668]]

of statutes, ordinances, regulations, and Departmental and Reclamation 
rules and policies.
    (b) Qualification standards for guards as provided in the 
Departmental Manual or other Department or Reclamation guidance may only 
be used for those persons hired exclusively to perform guard duties.



Sec. 422.11  Position sensitivity and investigations.

    Each law enforcement contract or cooperative agreement must include 
a provision requiring the CLEO to certify that each officer who 
exercises authority under the Act has completed an FBI criminal history 
check and is satisfactorily cleared.



Sec. 422.12  Required standards of conduct.

    All law enforcement officers authorized to exercise Reclamation 
authority must adhere to the following standards of conduct:
    (a) Be punctual in reporting for duty at the time and place 
designated by superior officers;
    (b) Be mindful at all times and under all circumstances of their 
responsibility to be courteous, considerate, patient and not use harsh, 
violent, profane, or insolent language;
    (c) Make required reports of appropriate incidents coming to their 
attention;
    (d) When in uniform and requested to do so, provide their name and 
identification/badge number orally or in writing;
    (e) Immediately report any personal injury or any loss, damage, or 
theft of Federal government property as required by Sec. 422.13;
    (f) Not be found guilty in any court of competent jurisdiction of an 
offense that has a tendency to bring discredit upon the Department or 
Reclamation;
    (g) Not engage in any conduct that is prejudicial to the reputation 
and good order of the Department or Reclamation; and
    (h) Obey all regulations or orders relating to the performance of 
the unit's duties under the Reclamation contract or cooperative 
agreement.



Sec. 422.13  Reporting an injury or property damage or loss.

    (a) An officer must immediately report orally and in writing to his/
her supervisor any:
    (1) Injury suffered while on duty; and
    (2) Any loss, damage, or theft of government property.
    (b) The written report must be in detail and must include names and 
addresses of all witnesses.
    (c) When an officer's injuries prevent him/her from preparing a 
report at the time of injury, the officer's immediate supervisor must 
prepare the report.
    (d) The supervisor must submit all reports made under this section 
to the Reclamation official designated to receive them, as soon as 
possible after the incident occurs.



PART 423_PUBLIC CONDUCT ON BUREAU OF RECLAMATION FACILITIES, LANDS, AND WATERBODIES--Table of Contents



            Subpart A_Purpose, Definitions, and Applicability

Sec.
423.1 Purpose.
423.2 Definitions of terms used in this part.
423.3 When does this part apply?

              Subpart B_Areas Open and Closed to Public Use

423.10 What areas are open to public use?
423.11 What areas are closed to public use?
423.12 How will Reclamation notify the public of additional closed 
          areas?
423.13 How will Reclamation establish periodic and regular closures?
423.14 How will Reclamation post and delineate closed areas at the site 
          of the closure?
423.15 How will Reclamation document closures or reopenings?
423.16 Who can be exempted from closures?
423.17 How will Reclamation reopen closed areas?
423.18 Use of closures.

                       Subpart C_Rules of Conduct

423.20 General rules.
423.21 Responsibilities.
423.22 Interference with agency functions and disorderly conduct.
423.23 Abandonment and impoundment of personal property.
423.24 Trespassing.
423.25 Vandalism, tampering, and theft.

[[Page 669]]

423.26 Public events and gatherings.
423.27 Advertising and public solicitation.
423.28 Memorials.
423.29 Natural and cultural resources.
423.30 Weapons, firearms, explosives, and fireworks.
423.31 Fires and flammable material.
423.32 Hunting, fishing, and trapping.
423.33 Camping.
423.34 Sanitation.
423.35 Animals.
423.36 Swimming.
423.37 Winter activities.
423.38 Operating vessels on Reclamation waters.
423.39 Standards for vessels.
423.40 Vehicles.
423.41 Aircraft.
423.42 Gambling.
423.43 Alcoholic beverages.
423.44 Controlled substances.

       Subpart D_Authorization of Otherwise Prohibited Activities

423.50 How can I obtain permission for prohibited or restricted uses and 
          activities?

                       Subpart E_Special Use Areas

423.60 How special use areas are designated.
423.61 Notifying the public of special use areas.
423.62 Reservations for public use limits.
423.63 Existing special use areas.

                   Subpart F_Violations and Sanctions

423.70 Violations.
423.71 Sanctions.

    Authority: Public Law 107-69 (November 12, 2001) (Law Enforcement 
Authority) (43 U.S.C. 373b and 373c); Public Law 102-575, Title XXVIII 
(October 30, 1992) (16 U.S.C. 460l-31 through 34); Public Law 89-72 
(July 9, 1965) (16 U.S.C. 460l-12); Public Law 106-206 (May 26, 2000) 
(16 U.S.C. 460l-6d); Public Law 59-209 (June 8, 1906) (16 U.S.C. 431-
433); Public Law 96-95 (October 31, 1979) (16 U.S.C. 470aa-mm).

    Source: 73 FR 75349, Dec. 11, 2008, unless otherwise noted.



            Subpart A_Purpose, Definitions, and Applicability



Sec. 423.1  Purpose.

    The purpose of this part is to maintain law and order and protect 
persons and property within Reclamation projects and on Reclamation 
facilities, lands, and waterbodies.



Sec. 423.2  Definitions of terms used in this part.

    Aircraft means a device that is used or intended to be used for 
human flight in the air, including powerless flight, unless a particular 
section indicates otherwise.
    Archaeological resource means any material remains of past human 
life or activities which are of archaeological interest, as determined 
under 43 CFR part 7, including, but not limited to, pottery, basketry, 
bottles, weapons, projectiles, tools, structures or portions of 
structures, pit houses, rock paintings, rock carvings, intaglios, 
graves, human remains, or any portion of any of the foregoing items. 
Archaeological resources are a component of cultural resources.
    Authorized official means the Commissioner of the Bureau of 
Reclamation and those Federal, State, local, and tribal officials, and 
agencies to which the Commissioner has delegated specific and limited 
authorities to enforce and implement this part 423.
    Camping means erecting a tent or shelter; preparing a sleeping bag 
or other bedding material for use; parking a motor vehicle, motor home, 
or trailer; or mooring a vessel for the intended or apparent purpose of 
overnight occupancy.
    Closed means a prohibition to all public access.
    Cultural resource means any man-made or associated prehistoric, 
historic, architectural, sacred, or traditional cultural property and 
associated objects and documents that are of interest to archaeology, 
anthropology, history, or other associated disciplines. Cultural 
resources include archaeological resources, historic properties, 
traditional cultural properties, sacred sites, and cultural landscapes 
that are associated with human activity or occupation.
    Explosive means any device or substance that can be ignited or 
detonated to produce a violent burst of gas and/or other materials, 
including, but not limited to, blasting caps and detonatable fireworks 
and pyrotechnics. This definition does not include fuel and ammunition 
when properly transported and used.

[[Page 670]]

    Firearm means a device that expels a projectile such as a bullet, 
dart, or pellet by combustion, air pressure, gas pressure, or other 
means.
    Fishing means taking or attempting to take, by any means, any fish, 
mollusk, or crustacean found in fresh or salt water.
    Geophysical discovery device means any mechanism, tool, or equipment 
including, but not limited to, metal detectors and radar devices, that 
can be used to detect or probe for objects beneath land or water 
surfaces.
    Historic property means any prehistoric or historic district, site, 
building, structure, or object included on, or eligible for inclusion 
on, the National Register of Historic Places, including artifacts, 
records, and material remains related to such a property or resource.
    Hunting means taking or attempting to take wildlife by any means, 
except by trapping or fishing.
    Museum property means personal property acquired according to some 
rational scheme and preserved, studied, or interpreted for public 
benefit, including, but not limited to, objects selected to represent 
archaeology, art, ethnography, history, documents, botany, paleontology, 
geology, and environmental samples.
    Natural resources means assets or values related to the natural 
world, including, but not limited to, plants, animals, water, air, 
soils, minerals, geologic features and formations, fossils and other 
paleontological resources, scenic values, etc. Natural resources are 
those elements of the environment not created by humans.
    Off-road vehicle means any motorized vehicle (including the standard 
automobile) designed for or capable of cross-country travel on or 
immediately over land, water, sand, snow, ice, marsh, swampland, or 
natural terrain. The term excludes all of the following:
    (1) Nonamphibious registered motorboats;
    (2) Military, fire, emergency, or law enforcement vehicles when used 
for emergency purpose;
    (3) Self-propelled lawnmowers, snowblowers, garden or lawn tractors, 
and golf carts while being used for their designed purpose;
    (4) Agricultural, timbering, construction, exploratory, and 
development equipment and vehicles while being used exclusively as 
authorized by permit, lease, license, agreement, or contract with 
Reclamation;
    (5) Any combat or combat support vehicle when used in times of 
national defense emergencies;
    (6) ``Official use'' vehicles; and
    (7) Wheelchairs and carts designed and used for transporting persons 
with disabilities.
    Operator means a person who operates, drives, controls, has charge 
of, or is in actual physical control of any mode of transportation or 
other equipment.
    Permit means any written document issued by an authorized official 
pursuant to subpart D of this part 423 authorizing a particular activity 
with specified time limits, locations, and/or other conditions.
    Person means an individual, entity, or organization.
    Pet means a domesticated animal other than livestock. (``Livestock'' 
is any hoofed animal used for agricultural, riding, pulling, or packing 
purposes.)
    Public use limit means any limitation on public uses or activities 
established by law or regulation.
    Real property means any legal interest in land and the water, oil, 
gas, and minerals in, on, and beneath the land surface, together with 
the improvements, structures, and fixtures located thereon.
    Reclamation means the Bureau of Reclamation, United States 
Department of the Interior.
    Reclamation facilities, lands, and waterbodies means Reclamation 
facilities, Reclamation lands, and Reclamation waterbodies.
    Reclamation facility means any facility constructed or acquired 
under Federal reclamation law that is situated on Reclamation lands and 
is used or occupied by Reclamation under a lease, easement, right-of-
way, license, contract, or other arrangement. The term includes, but is 
not limited to, any of the following that are under the jurisdiction of 
or administered by Reclamation: dams, powerplants, buildings,

[[Page 671]]

switchyards, transmission lines, recreation facilities, fish and 
wildlife facilities, pumping plants, and warehouses.
    Reclamation lands means any real property under the jurisdiction of 
or administered by Reclamation, and includes, but is not limited to, all 
acquired and withdrawn lands and lands in which Reclamation has a lease 
interest, easement, or right-of-way.
    Reclamation project means any water supply, water delivery, flood 
control, or hydropower project, together with any associated facilities 
for fish, wildlife, recreation, or water treatment constructed or 
administered by Reclamation under the Federal reclamation laws (the Act 
of June 17, 1902 (32 Stat. 388, chapter 1093; 43 U.S.C. 371 et seq.), 
and Acts supplementary thereto and amendatory thereof).
    Reclamation waterbody means any body of water situated on 
Reclamation lands or under Reclamation jurisdiction.
    Refuse means any human or pet waste, litter, trash, garbage, 
rubbish, debris, contaminant, pollutant, waste liquid, or other 
discarded materials.
    Sacred site means any specific, discrete, or narrowly delineated 
location on Federal land that is identified by an Indian tribe, or 
Indian individual determined to be an appropriately authoritative 
representative of an Indian religion, as sacred by virtue of its 
established religious significance to, or ceremonial use by, an Indian 
religion; provided that the tribe or appropriately authoritative 
representative of an Indian religion has informed the land managing 
agency of the existence of such a site.
    Special use area means an area at or within a Reclamation facility, 
or an area of Reclamation lands or waterbodies, in which special rules 
for public conduct apply that may differ from those established in 
subpart C of this part 423. A special use area must be established by an 
authorized official as provided in subpart E of this part 423.
    State and local laws means the laws, statutes, regulations, 
ordinances, codes, and court decisions of a State and of the counties, 
municipalities, or other governmental entities which are enabled by 
statute and vested with legislative authority.
    Traditional cultural property means a discretely defined property 
that is eligible for inclusion on the National Register of Historic 
Places because of its association with cultural practices or beliefs of 
a living community that:
    (1) Are rooted in that community's history; and
    (2) Are important in maintaining the continuing cultural identity of 
the community.
    Trapping means taking, or attempting to take, wildlife with a snare, 
trap, mesh, wire, or other implement, object, or mechanical device 
designed to entrap, ensnare, or kill animals, including fish.
    Vehicle means every device in, upon, or by which a person or 
property is or may be transported or drawn on land, whether moved by 
mechanical, animal, or human power, including, but not limited to, 
automobiles, trucks, motorcycles, mini-bikes, snowmobiles, dune buggies, 
all-terrain vehicles, trailers, campers, bicycles, and those used 
exclusively upon stationary rails or tracks; except wheelchairs used by 
persons with disabilities.
    Vessel means any craft that is used or capable of being used as a 
means of transportation on or under water or ice, including, but not 
limited to, powerboats, cruisers, houseboats, sailboats, airboats, 
hovercraft, rowboats, canoes, kayaks, ice yachts, or personal 
watercraft. Inner tubes, air mattresses, and other personal flotation 
devices are not considered vessels. A seaplane may be considered a 
vessel.
    Weapon means a firearm or any other instrument or substance 
designed, used, or which can be used to cause or threaten to cause pain, 
injury, or death.
    Wildlife means any non-domestic member of the animal kingdom and 
includes a part, product, egg, offspring, or dead body or part thereof, 
including, but not limited to, mammals, birds, reptiles, amphibians, 
fish, mollusks, crustaceans, arthropod, coelenterate, or other 
invertebrate, whether or not bred, hatched, or born in captivity.
    You means a person or entity on Reclamation facilities, lands, or 
waterbodies.

[[Page 672]]



Sec. 423.3  When does this part apply?

    (a) This part and all applicable Federal, State, and local laws 
apply to all persons on Reclamation facilities, lands, and waterbodies, 
with the following exceptions:
    (1) Certain exceptions apply to Federal, State, local, and contract 
employees, as further addressed in paragraph (b) of this section.
    (2) Certain exceptions apply to non-Federal entities, as further 
addressed in paragraph (c) of this section;
    (3) Certain exceptions apply on Reclamation facilities, lands, and 
waterbodies administered by other Federal agencies, as further addressed 
in paragraph (d) of this section; and
    (4) Certain exceptions apply on Reclamation facilities, lands, and 
waterbodies subject to treaties and Federal laws concerning tribes and 
Indians, as further addressed in paragraph (e) of this section.
    (b) This part does not apply to:
    (1) Federal, State, and local law enforcement, fire, and rescue 
personnel in the performance of their official duties on Reclamation 
facilities, lands, and waterbodies;
    (2) An employee or agent of the Federal, State, or local government, 
or other political subdivision, when the employee or agent is carrying 
out official duties; or
    (3) An employee or agent of an entity that has entered into a 
contract or agreement with Reclamation to administer, operate, maintain, 
patrol, or provide security for Reclamation facilities, lands, and 
waterbodies, when the employee or agent is working within the scope of 
the defined activities described in the contract or agreement.
    (c) If a non-Federal entity has assumed responsibility for 
operating, maintaining, or managing Reclamation facilities, lands, or 
waterbodies through a contract or other written agreement, public 
conduct in and on those Reclamation facilities, lands, and waterbodies 
will be regulated by this part 423 as well as any regulations 
established by the entity, the terms of the entity's contract with 
Reclamation, and applicable Federal, State, and local law.
    (d) Public conduct on Reclamation facilities, lands, and waterbodies 
administered by other Federal agencies under statute or other authority 
will be governed by the regulations of those agencies rather than this 
part 423. However, Reclamation retains the authority to take necessary 
actions to safeguard the security and safety of the public and such 
Reclamation facilities, lands, and waterbodies.
    (e) This part applies on all Reclamation facilities, lands, and 
waterbodies that are subject to Treaties with, and Federal laws 
concerning the rights of, federally recognized tribes, and individual 
Indians who are members thereof, to the extent that this part is 
consistent with those Treaties and Federal laws.
    (f) This part 423 and other Federal laws will govern over any 
conflicting regulations of a non-Federal entity.



              Subpart B_Areas Open and Closed to Public Use



Sec. 423.10  What areas are open to public use?

    All Reclamation facilities, lands, and waterbodies are open to 
lawful use by the public unless they are closed to public use under this 
subpart B of this part 423, or as provided by 43 CFR part 420, Off-Road 
Vehicle Use.



Sec. 423.11  What areas are closed to public use?

    The following Reclamation facilities, lands, and waterbodies, or 
portions thereof, are closed to public use:
    (a) Those that were closed to public use as of April 17, 2006, as 
evidenced by fencing, gates, barriers, locked doors, road closures, 
signage, posting of notices, or other reasonably obvious means, as 
provided in Sec. 423.14;
    (b) Those that are closed after April 17, 2006 under Sec. 423.12;
    (c) Those that are closed periodically and regularly under Sec. 
423.13; and
    (d) Those that are closed to off-road vehicle use pursuant to 43 CFR 
part 420.



Sec. 423.12  How will Reclamation notify the public of additional closed areas?

    (a) Non-emergency situations. In non-emergency situations, an 
authorized official must provide 30 days advance

[[Page 673]]

public notice before closing all or portions of Reclamation facilities, 
lands, or waterbodies. The notice must include publication in a 
newspaper of general circulation in the locale of the Reclamation 
facilities, lands, or waterbodies to be closed. Non-emergency situations 
covered by this section include:
    (1) Protection and security of Reclamation facilities and of 
Reclamation's employees and agents;
    (2) Protection of public health and safety, cultural resources, 
natural resources, scenic values, or scientific research activities;
    (3) Safe and efficient operation and maintenance of Reclamation 
projects;
    (4) Reduction or avoidance of conflicts among visitor use 
activities;
    (5) National security; or
    (6) Other reasons in the public interest.
    (b) Emergency situations. In emergency situations where delay would 
result in significant and immediate risks to public safety, security, or 
other public concerns, an authorized official may close all or portions 
of Reclamation facilities, lands, or waterbodies without advance public 
notice.



Sec. 423.13  How will Reclamation establish periodic and regular closures?

    Reclamation facilities, lands, or waterbodies that are closed 
periodically and regularly, regardless of the date of the initial 
closure, must be noticed as provided in Sec. 423.12(a) only once, and 
at any time the schedule of closure is changed.



Sec. 423.14  How will Reclamation post and delineate closed areas at the site of the closure?

    Before or at the time of closing all or portions of Reclamation 
facilities, lands, or waterbodies to public use, the responsible 
authorized official must indicate the closure by:
    (a) Locked doors, fencing, gates, or other barriers;
    (b) Posted signs and notices at conspicuous locations, such as at 
normal points of entry and at reasonable intervals along the boundary of 
the closed area; or
    (c) Other reasonably obvious means including, but not limited to, 
onsite personal contact with a uniformed official.



Sec. 423.15  How will Reclamation document closures or reopenings?

    (a) The authorized official must document the reason(s) for 
establishing any closure or reopening that occurs after April 17, 2006. 
The official must do this before the closure or reopening, except in the 
situations described in Sec. 423.12(b). In such situations, the 
authorized official must complete the documentation as soon as 
practicable.
    (b) Documentation of a closure must cite one or more of the 
conditions for closure described in Sec. 423.12 of this part.
    (c) Documentation of closures or reopenings will be available to the 
public upon request, except when the release of this documentation could 
result in a breach of national security or the security of Reclamation 
facilities.



Sec. 423.16  Who can be exempted from closures?

    (a) You may be exempted from a closure, subject to any terms and 
conditions established under paragraph (c) of this section, by written 
authorization from the authorized official who effected or who is 
responsible for the closure, if you are:
    (1) A person with a license or concession agreement that requires 
you to have access to the closed Reclamation facilities, lands, or 
waterbodies;
    (2) An owner or lessee of real property, resident, or business in 
the vicinity of closed Reclamation facilities, lands, or waterbodies who 
cannot reasonably gain access to your property, residence, or place of 
business without entering and crossing such closed Reclamation 
facilities, lands, or waterbodies; or
    (3) A holder of a permit granting you an exemption from the closure 
issued under subpart D of this part 423 by the authorized official who 
effected or who is responsible for the closure.
    (b) You may request exemption from a closure by writing to the 
authorized official who effected or who is responsible for the closure. 
You need not do so if you have such an exemption in effect on April 17, 
2006.

[[Page 674]]

    (c) An authorized official may establish terms and conditions on any 
exemption from a closure, or terminate such exemption, for any of the 
reasons listed in Sec. 423.12.



Sec. 423.17  How will Reclamation reopen closed areas?

    An authorized official may reopen to public use any Reclamation 
facilities, lands, and waterbodies, or portions thereof. The authorized 
official may do this at any time with advance or subsequent public 
notice, except as required by other statute or regulation, and must 
document the reopening as provided in Sec. 423.15.



Sec. 423.18  Use of closures.

    Closures are to be used only where all public access is to be 
prohibited. Special use areas are to be used to restrict specific 
activities as set forth in subpart E of this part 423.



                       Subpart C_Rules of Conduct



Sec. 423.20  General rules.

    (a) You must obey all applicable Federal, State, and local laws 
whenever you are at or on any Reclamation facilities, lands, or 
waterbodies.
    (b) You must comply with all provisions of this subpart C whenever 
you are at or on any Reclamation facilities, lands, or waterbodies, 
except as specifically provided by:
    (1) A permit issued by an authorized official under subpart D of 
this part 423;
    (2) A contract with Reclamation or agency managing Reclamation 
facilities, lands, and waterbodies;
    (3) The rules established by an authorized official in a special use 
area under subpart E of this part 423; or
    (4) A right-of-use issued under 43 CFR part 429.



Sec. 423.21  Responsibilities.

    (a) You are responsible for finding, being aware of, and obeying all 
applicable laws and regulations, as well as notices and postings of 
closed and special use areas established by an authorized official under 
subpart B and subpart E of this part 423.
    (b) You are responsible for the use of any device, vehicle, vessel, 
or aircraft you own, lease, or operate on Reclamation facilities, lands, 
or waterbodies. You may be issued a citation for a violation of 
regulations, including non-compliance with limitations, restrictions, 
closures, or special use areas applicable to the use of any device, 
vehicle, vessel, or aircraft as provided in this part as the owner, 
lessee, or operator.
    (c) You are responsible for the use and treatment of Reclamation 
facilities, lands, and waterbodies, and the cultural resources, 
wildlife, and other natural resources located thereon, by you and those 
for whom you are legally responsible. This presumption is sufficient to 
issue a citation to you for violation of provisions of these regulations 
by you or by those for whom you are legally responsible.
    (d) The regulations governing permits, other use authorizations, and 
fees on Reclamation lands that are found in subpart D of this part 423 
apply to your use of Reclamation facilities, lands, and waterbodies.
    (e) You must furnish identification information upon request by a 
law enforcement officer.



Sec. 423.22  Interference with agency functions and disorderly conduct.

    (a) You must not assault, threaten, disturb, resist, intimidate, 
impede, or interfere with any employee or agent of Federal, State, or 
local government engaged in an official duty.
    (b) You must comply with any lawful order of an authorized 
government employee or agent for the purpose of maintaining order and 
controlling public access and movement during law enforcement actions 
and emergency or safety-related operations.
    (c) You must not knowingly give a false report or other false 
information to an authorized government employee or agent.
    (d) You must not interfere with, impede, or disrupt the authorized 
use of Reclamation facilities, lands, or waterbodies or impair the 
safety of any person.
    (e) The following acts constitute disorderly conduct and are 
prohibited:
    (1) Fighting, or threatening or violent behavior;

[[Page 675]]

    (2) Language, utterance, gesture, display, or act that is obscene, 
physically threatening or menacing, or that is likely to inflict injury 
or incite an immediate breach of the peace;
    (3) Unreasonable noise, considering the nature and purpose of the 
person's conduct, location, time of day or night, and other factors that 
would govern the conduct of a reasonably prudent person under the 
circumstances;
    (4) Creating or maintaining a hazardous or physically offensive 
condition; or
    (5) Any other act or activity that may cause or create public alarm, 
nuisance, or bodily harm.



Sec. 423.23  Abandonment and impoundment of personal property.

    (a) You must not abandon personal property of any kind in or on 
Reclamation facilities, lands, or waterbodies.
    (b) You must not store or leave unattended personal property of any 
kind.
    (1) Unattended personal property is presumed to be abandoned:
    (i) After a period of 24 hours;
    (ii) At any time after a posted closure takes effect under subpart B 
of this part 423; or
    (iii) At any time for reasons of security, public safety, or 
resource protection.
    (2) If personal property is presumed abandoned, an authorized 
official may impound it, store it, and assess a reasonable impoundment 
fee.
    (3) The impoundment fee must be paid before the authorized official 
will return the impounded property to you.
    (c) An authorized official may impound or destroy unattended 
personal property at any time if it:
    (1) Interferes with safety, operation, or management of Reclamation 
facilities, lands, or waterbodies; or
    (2) Presents a threat to persons or Reclamation project resources.
    (d) An authorized official may dispose of abandoned personal 
property in accordance with the procedures contained in title 41 CFR and 
applicable Reclamation and Department of the Interior policy.



Sec. 423.24  Trespassing.

    You must not trespass on Reclamation facilities, lands, and 
waterbodies. Trespass includes any of the following acts:
    (a) Unauthorized possession or occupancy of Reclamation facilities, 
lands, or waterbodies;
    (b) Personal entry, presence, or occupancy on or in any portion or 
area of Reclamation facilities, lands, or waterbodies that have been 
closed to public use pursuant to subpart B of this part 423;
    (c) Unauthorized extraction or disturbance of natural or cultural 
resources located on Reclamation facilities, lands, or waterbodies;
    (d) Unauthorized conduct of commercial activities on Reclamation 
facilities, lands, or waterbodies;
    (e) Holding unauthorized public gatherings on Reclamation 
facilities, lands, or waterbodies; or
    (f) Unauthorized dumping or abandonment of personal property on 
Reclamation facilities, lands, or waterbodies.



Sec. 423.25  Vandalism, tampering, and theft.

    (a) You must not tamper or attempt to tamper with, move, manipulate, 
operate, adjust, or set in motion property not under your lawful control 
or possession including, but not limited to, vehicles, equipment, 
controls, recreational facilities, and devices.
    (b) You must not destroy, injure, deface, damage, or unlawfully 
remove property not under your lawful control or possession.
    (c) You must not drop, place, throw, or roll rocks or other items 
inside, into, down, or from, dams, spillways, dikes, or other structures 
and facilities.



Sec. 423.26  Public events and gatherings.

    You must not conduct public assemblies, meetings, gatherings, 
demonstrations, parades, and other events without a permit issued 
pursuant to subpart D of this part 423. Public gatherings that involve 
the possession or occupancy of Reclamation facilities, lands, and 
waterbodies are governed by 43 CFR part 429.

[[Page 676]]



Sec. 423.27  Advertising and public solicitation.

    You must not engage in advertising or solicitation on Reclamation 
facilities, lands, or waterbodies except as allowed under a valid 
contract with Reclamation, or as allowed by a permit issued pursuant to 
subpart D of this part 423.



Sec. 423.28  Memorials.

    You must not bury, deposit, or scatter human or animal remains, or 
place memorials, markers, vases, or plaques on Reclamation facilities, 
lands, or waterbodies. This section does not apply to the burial of 
parts of fish or wildlife taken in legal hunting, fishing, or trapping.



Sec. 423.29  Natural and cultural resources.

    (a) You must not destroy, injure, deface, remove, search for, 
disturb, or alter natural resources or cultural resources, including 
abandoned buildings or structures, on or in Reclamation facilities, 
lands, or waterbodies except in accordance with Sec. 423.29(g) and 
other applicable Federal, State, and local laws.
    (b) You must not introduce wildlife, fish, or plants, including 
their reproductive bodies, into Reclamation lands and waterbodies.
    (c) You must not drop, place, throw, or roll rocks or other items 
inside, into, at, or down, caves, caverns, valleys, canyons, 
mountainsides, thermal features, or other natural formations.
    (d) You may bring firewood to or gather dead wood on Reclamation 
lands for fires as allowed under Sec. 423.31. You must not damage or 
remove any live tree or part thereof except with proper authorization 
under 43 CFR part 429.
    (e) You must not walk on, climb, enter, ascend, descend, or traverse 
cultural resources on Reclamation lands, including monuments or statues, 
except as specifically allowed in special use areas designated by an 
authorized official under subpart E of this part 423.
    (f) You must not possess a metal detector or other geophysical 
discovery device, or use a metal detector or other geophysical discovery 
techniques to locate or recover subsurface objects or features on 
Reclamation lands, except:
    (1) When transporting, but not using, a metal detector or other 
geophysical discovery device in a vehicle on a public road as allowed 
under applicable Federal, State, and local law; or
    (2) As allowed by a permit issued pursuant to subpart D of this part 
423.
    (g) You may engage in renewable natural resource gathering 
activities such as picking berries and mushrooms, collecting antlers, 
and other similar activities as regulated by this part 423 and other 
applicable Federal, State, and local laws.



Sec. 423.30  Weapons, firearms, explosives, and fireworks.

    (a) You may possess firearms, ammunition, bows and arrows, 
crossbows, or other projectile firing devices on Reclamation lands and 
waterbodies, provided the firearm, ammunition, or other projectile 
firing device is stowed, transported, and/or carried in compliance with 
applicable Federal, State, and local law, with the following exceptions:
    (1) You must not have a weapon in your possession when at or in a 
Reclamation facility.
    (2) You must comply with any prohibitions or regulations applicable 
to weapons in a special use area established by an authorized official 
under subpart E of this part 423.
    (b) You must not discharge or shoot a weapon unless you are:
    (1) Using a firearm or other projectile firing device lawfully for 
hunting or fishing as allowed under Sec. 423.32, or at an authorized 
shooting or archery range; and
    (2) In compliance with applicable Federal, State, and local law.
    (c) You must not use or possess explosives, or fireworks or 
pyrotechnics of any type, except as allowed by a permit issued pursuant 
to subpart D of this part 423, or in special use areas so designated by 
an authorized official under subpart E of this part 423.



Sec. 423.31  Fires and flammable material.

    (a) You must not leave a fire unattended, and it must be completely 
extinguished before your departure.

[[Page 677]]

    (b) You must not improperly dispose of lighted smoking materials, 
including cigarettes, cigars, pipes, matches, or other burning material.
    (c) You must not burn materials that produce toxic fumes, including, 
but not limited to, tires, plastic, flotation materials, or treated wood 
products.
    (d) You must not transport gasoline and other fuels in containers 
not designed for that purpose.
    (e) You must comply with all applicable Federal, State, and local 
fire orders, restrictions, or permit requirements.



Sec. 423.32  Hunting, fishing, and trapping.

    (a) You may hunt, fish, and trap in accordance with applicable 
Federal, State, and local laws, and subject to the restrictions of Sec. 
423.30, in areas where both of the following conditions are met:
    (1) The area is not closed to public use under subpart B of this 
part 423; and
    (2) The area has not been otherwise designated by an authorized 
official in a special use area under subpart E of this part 423.
    (b) You must comply with any additional restrictions pertaining to 
hunting, fishing, and trapping established by an authorized official in 
a special use area under subpart E of this part 423.



Sec. 423.33  Camping.

    (a) You may camp on Reclamation lands, except that you must comply 
with any restrictions, conditions, limitations, or prohibitions on 
camping established by an authorized official in a special use area 
under subpart E of this part 423.
    (b) You must not camp on Reclamation lands at any single Reclamation 
project for more than 14 days during any period of 30 consecutive days, 
except as allowed by a permit issued under 43 CFR part 429;
    (c) You must not attempt to reserve a campsite for future use by 
placing equipment or other items on the campsite, or by personal 
appearance, without camping on and paying the required fees for that 
campsite daily;
    (d) You must not camp on or place any equipment at a campsite that 
is posted or otherwise marked as ``reserved'' or ``closed'' by an 
authorized official without a valid reservation for that campsite, 
except as allowed by a permit issued under subpart D of this part 423; 
and
    (e) You must not dig in or level any ground, or erect any structure 
other than a tent, in a designated campground.



Sec. 423.34  Sanitation.

    (a) You must not bring or improperly dispose of refuse on 
Reclamation facilities, lands, and waterbodies. Both the owner and the 
person bringing or disposing refuse may be issued a citation for 
violating this provision.
    (b) Campers, picnickers, and all other persons using Reclamation 
lands must keep their sites free of trash and litter during the period 
of occupancy and must remove all personal equipment and clean their 
sites before departure.
    (c) You must not place or construct a toilet or latrine such that 
its lowest point is lower than the high water mark of any Reclamation 
waterbody, or within 150 feet horizontally of the high water mark of any 
Reclamation waterbody.



Sec. 423.35  Animals.

    (a) You must not bring pets or other animals into public buildings, 
public transportation vehicles, or sanitary facilities. This provision 
does not apply to properly trained animals assisting persons with 
disabilities, such as seeing-eye dogs.
    (b) You must not abandon any animal on Reclamation facilities, 
lands, or waterbodies, or harass, endanger, or attempt to collect any 
animal except game you are attempting to take in the course of 
authorized hunting, fishing, or trapping.
    (c) Any unauthorized, unclaimed, or unattended animal on Reclamation 
lands may be:
    (1) Removed in accordance with Federal law, and applicable State and 
local laws; and
    (2) Confined at a location designated by an authorized official, who 
may assess a reasonable impoundment fee

[[Page 678]]

that must be paid before the impounded animal is released to its owner.
    (d) The following animals are prohibited and are subject to removal 
in accordance with Federal law, and applicable State and local laws:
    (1) Captive wild or exotic animals (including, but not limited to, 
cougars, lions, bears, bobcats, wolves, and snakes), except as allowed 
by a permit issued under subpart D of this part 423; and
    (2) Any pets or animals displaying vicious or aggressive behavior or 
posing a threat to public safety or deemed a public nuisance.



Sec. 423.36  Swimming.

    (a) You may swim, wade, snorkel, scuba dive, raft, or tube at your 
own risk in Reclamation waters, except:
    (1) Within 300 yards of dams, power plants, pumping plants, 
spillways, stilling basins, gates, intake structures, and outlet works;
    (2) Within 100 yards of buoys or barriers marking public access 
limits;
    (3) In canals, laterals, siphons, tunnels, and drainage works;
    (4) At public docks, launching sites, and designated mooring areas; 
or
    (5) As otherwise delineated by signs or other markers.
    (b) You must display an international diver down, or inland diving 
flag in accordance with State and U.S. Coast Guard guidelines when 
engaging in any underwater activities.
    (c) You must not dive, jump, or swing from dams, spillways, bridges, 
cables, towers, or other structures.



Sec. 423.37  Winter activities.

    (a) You must not tow persons on skis, sleds, or other sliding 
devices with a motor vehicle or snowmobile, except that you may tow 
sleds designed to be towed behind snowmobiles if joined to the towing 
snowmobile with a rigid hitching mechanism, and you may tow disabled 
snowmobiles by any appropriate means.
    (b) You must not ice skate, ice fish, or ice sail within 300 yards 
of dams, power plants, pumping plants, spillways, stilling basins, 
gates, intake structures, or outlet works.
    (c) You must comply with all other posted restrictions.



Sec. 423.38  Operating vessels on Reclamation waters.

    (a) You must comply with Federal, State, and local laws applicable 
to the operation of a vessel, other watercraft, or seaplane on 
Reclamation waters, and with any restrictions established by an 
authorized official.
    (b) You must not operate a vessel, other watercraft, or seaplane in 
an area closed to the public.
    (c) You must observe restrictions established by signs, buoys, and 
other regulatory markers.
    (d) You must not operate a vessel, or knowingly allow another person 
to operate a vessel, in a reckless or negligent manner, or in a manner 
that endangers or is likely to endanger a person, property, natural 
resource, or cultural resource.
    (e) You must not operate a vessel when impaired or intoxicated under 
the standards established by applicable State and local law.
    (f) You must not occupy a vessel overnight, except where otherwise 
designated under applicable Federal, State, or local law, or where 
otherwise designated by an authorized official in a special use area.
    (g) You must not use a vessel as a place of habitation or residence.
    (h) You must remove your vessels from Reclamation lands and waters 
when not in actual use for a period of more than 24 hours, unless they 
are securely moored or stored at special use areas so designated by an 
authorized official.
    (i) You must not attach or anchor a vessel to structures such as 
locks, dams, regulatory or navigational buoys, or other structures not 
designed for such purpose.
    (j) You must display an international diver down, or inland diving 
flag in accordance with State and U.S. Coast Guard guidelines when 
operating a vessel involved in any underwater activities.
    (k) You may engage in towing activities, including, but not limited 
to, waterskiing and tubing, only during daylight hours and subject to 
any applicable Federal, State, and local law.

[[Page 679]]



Sec. 423.39  Standards for vessels.

    (a) All vessels on Reclamation waters must:
    (1) Be constructed and maintained in compliance with the standards 
and requirements established by, or promulgated under, Title 46 United 
States Code, and any applicable State and local laws and regulations;
    (2) Have safety equipment, including personal flotation devices, on 
board in compliance with U.S. Coast Guard boating safety requirements 
and in compliance with applicable State and local boating safety laws 
and regulations; and
    (3) If motorized, have and utilize a proper and effective exhaust 
muffler as defined by applicable State and local laws. Actions or 
devices which render exhaust mufflers ineffective are prohibited.
    (b) Owners or operators of vessels not in compliance with this Sec. 
423.39 may be required to remove the vessel immediately from Reclamation 
waterbodies until items of non-compliance are corrected.



Sec. 423.40  Vehicles.

    (a) When operating a vehicle on Reclamation lands and Reclamation 
projects, you must comply with applicable Federal, State, and local 
laws, and with posted restrictions and regulations. Operating any 
vehicle through, around, or beyond a restrictive sign, recognizable 
barricade, fence, or traffic control barricade, is prohibited.
    (b) You must not park a vehicle in violation of posted restrictions 
and regulations, or in a manner that would obstruct or impede normal or 
emergency traffic movement or the parking of other vehicles, create a 
safety hazard, or endanger any person, property, or natural feature. 
Vehicles so parked are subject to removal and impoundment at the owner's 
expense.
    (c) You must not operate any vehicle, or allow another person to 
operate a vehicle in your control, in a careless, negligent or reckless 
manner that would endanger any person, property, natural resource, or 
cultural resource.
    (d) In addition to the regulations in this part, the regulations 
governing off-road-vehicle use in 43 CFR part 420 apply.



Sec. 423.41  Aircraft.

    (a) You must comply with any applicable Federal, State, and local 
laws, and with any additional requirements or restrictions established 
by an authorized official in a special use area under subpart E of this 
part 423, with respect to aircraft landings, takeoffs, and operation on 
or in the proximity of Reclamation facilities, lands, and waterbodies. 
Pilots are responsible for awareness of all applicable laws, 
regulations, requirements, and restrictions. This paragraph does not 
apply to pilots engaged in emergency rescue or in the official business 
of Federal, State, or local governments or law enforcement agencies, or 
who are forced to land due to circumstances beyond the pilot's control.
    (b) You must not operate any aircraft while on or above Reclamation 
facilities, lands, and waterbodies in a careless, negligent, or reckless 
manner so as to endanger any person, property, or natural feature.
    (c) This section does not provide authority to deviate from Federal 
or State regulations, or prescribed standards, including, but not 
limited to, regulations and standards concerning pilot certifications or 
ratings and airspace requirements.
    (d) Except in extreme emergencies threatening human life or serious 
property loss, you must not use non-standard boarding and loading 
procedures to deliver or retrieve people, material, or equipment by 
parachute, balloon, helicopter, or other aircraft.
    (e) You must comply with all applicable U.S. Coast Guard rules when 
operating a seaplane on Reclamation waterbodies.
    (f) You must securely moor any seaplane remaining on Reclamation 
waterbodies in excess of 24 hours at mooring facilities and locations 
designated by an authorized official. Seaplanes may be moored for 
periods of less than 24 hours on Reclamation waterbodies, except in 
special use areas otherwise designated by an authorized official, 
provided:
    (1) The mooring is safe, secure, and accomplished so as not to 
damage the rights of the Government or the safety of persons; and

[[Page 680]]

    (2) The operator remains in the vicinity of the seaplane and 
reasonably available to relocate the seaplane if necessary.
    (g) You must not operate model aircraft except as allowed in special 
use areas established by an authorized official under subpart E of this 
part 423.



Sec. 423.42  Gambling.

    Commercial gambling in any form, or the operation of gambling 
devices, is prohibited on Reclamation facilities, lands, and waterbodies 
unless authorized by applicable treaties or Federal, State, and local 
laws or regulations.



Sec. 423.43  Alcoholic beverages.

    You must not possess or consume alcoholic beverages in violation of 
Federal, State, or local law, or the rules of a special use area 
established by an authorized official under subpart E of this part 423.



Sec. 423.44  Controlled substances.

    You must not possess, consume, deliver, or be under the influence 
of, controlled substances included in schedules I, II, III, IV, or V of 
part B of the Controlled Substance Act (21 U.S.C. 812) on Reclamation 
facilities, lands, or waterbodies, unless the controlled substance was 
legally obtained through a valid prescription or order.



       Subpart D_Authorization of Otherwise Prohibited Activities



Sec. 423.50  How can I obtain permission for prohibited or restricted uses and activities?

    (a) Authorized officials may issue permits to authorize activities 
on Reclamation facilities, lands, or waterbodies otherwise prohibited or 
restricted by Sec. Sec. 423.16(a)(3), 423.26, 423.27, 423.29(f), 
423.30(c), 423.33(d), and 423.35(d)(1), and may terminate or revoke such 
permits for non-use, non-compliance with the terms of the permit, 
violation of any applicable law, or to protect the health, safety, or 
security of persons, Reclamation assets, or natural or cultural 
resources.
    (b) You may apply for permission to engage in activities otherwise 
prohibited or restricted by the sections listed in paragraph (a) of this 
section. You may apply to the authorized official responsible for the 
area in which your activity is to take place, and this authorized 
official may grant, deny, or establish conditions or limitations on this 
permission.
    (c) You must pay all required fees and properly display applicable 
permits, passes, or receipts.
    (d) You must not violate the terms and conditions of a permit issued 
by an authorized official. Any such violation is prohibited and may 
result in suspension or revocation of the permit, or other penalties as 
provided in subpart F of this part 423, or both.
    (e) You must, upon request by a law enforcement officer, security 
guard, or other government employee or agent acting within the scope of 
their official duties, display any permit authorizing your presence or 
activity on Reclamation facilities, lands, and waterbodies.



                       Subpart E_Special Use Areas



Sec. 423.60  How special use areas are designated.

    (a) After making a determination under paragraph (b) of this 
section, an authorized official may:
    (1) Establish special use areas within Reclamation facilities, 
lands, or waterbodies for application of reasonable schedules of 
visiting hours; public use limits; and other conditions, restrictions, 
allowances, or prohibitions on particular uses or activities that vary 
from the provisions of subpart C of this part 423, except Sec. 423.28; 
and
    (2) From time to time revise the boundaries of a previously 
designated special use area and revise or terminate previously imposed 
schedules of visiting hours; public use limits; and other conditions, 
restrictions, allowances, or prohibitions on a use or activity.
    (b) Before taking action under paragraph (a) of this section, an 
authorized official must make a determination that action is necessary 
for:
    (1) The protection of public health and safety;
    (2) The protection and preservation of cultural and natural 
resources;
    (3) The protection of environmental and scenic values, scientific 
research, the security of Reclamation facilities,

[[Page 681]]

the avoidance of conflict among visitor use activities; or
    (4) Other reasons in the public interest.
    (c) An authorized official establishing a special use area must 
document in writing the determination described in paragraph (b) of this 
section. Such documentation must occur before the action, except in 
emergencies or situations of immediate need as described in Sec. 
423.61(c), in which case the documentation is required within 30 days 
after the date of the action. Reclamation will make documents produced 
under this section available to the public upon request except where 
such disclosure could compromise national or facility security, or human 
safety.



Sec. 423.61  Notifying the public of special use areas.

    When establishing, revising, or terminating a special use area, 
Reclamation must notify the public as required by this section.
    (a) What notices must contain. The notice must specify: (1) The 
location of the special use area; and
    (2) The public use limits, conditions, restrictions, allowances, or 
prohibitions on uses and activities that are to be applied to the area 
or that are to be revised or terminated.
    (b) How notice must be made. Reclamation must notify the public at 
least 15 days before the action takes place by one or more of the 
following methods:
    (1) Signs posted at conspicuous locations, such as normal points of 
entry and reasonable intervals along the boundary of the special use 
area;
    (2) Maps available in the local Reclamation office and other places 
convenient to the public;
    (3) Publication in a newspaper of general circulation in the 
affected area; or
    (4) Other appropriate methods, such as the use of electronic media, 
brochures, and handouts.
    (c) When notice may be delayed.
    (1) Notice under this section may be delayed in an emergency or 
situation of immediate need where delaying designation, revision, or 
termination of a special use area would result in significant risk to:
    (i) National security;
    (ii) The safety or security of a Reclamation facility, Reclamation 
employees, or the public; or
    (iii) The natural or cultural environment.
    (2) If the exception in paragraph (c)(1) of this section applies, 
Reclamation must comply with paragraph (b) of this section within 30 
days after the effective date of the designation.
    (3) Failure to meet the notice deadlines in paragraphs (b) or (c)(2) 
of this section will not invalidate an action, so long as Reclamation 
meets the remaining notification requirements of this section.
    (d) When advance notice is not required. Advance notice as described 
in paragraph (b) of this section is not required if all the following 
conditions are met:
    (1) The action will not result in a significant change in the public 
use of the area;
    (2) The action will not adversely affect the area's natural, 
esthetic, scenic, or cultural values;
    (3) The action will not require a long-term or significant 
modification in the resource management objectives of the area; and
    (4) The action is not highly controversial.



Sec. 423.62  Reservations for public use limits.

    To implement a public use limit, an authorized official may 
establish a registration or reservation system.



Sec. 423.63  Existing special use areas.

    Areas where rules were in effect on April 17, 2006 that differ from 
the rules set forth in subpart C are considered existing special use 
areas, and such differing rules remain in effect to the extent allowed 
by subpart A, and to the extent they are consistent with Sec. 423.28. 
For those existing special use areas, compliance with Sec. Sec. 423.60 
through 423.62 is not required until the rules applicable in those 
special use areas are modified or terminated.

[[Page 682]]



                   Subpart F_Violations and Sanctions



Sec. 423.70  Violations.

    (a) When at, in, or on Reclamation facilities, lands, or 
waterbodies, you must obey and comply with:
    (1) Any closure orders established under subpart B of this part 423;
    (2) The regulations in subpart C of this part 423;
    (3) The conditions established by any permit issued under subpart D 
of this part 423; and
    (4) The regulations established by an authorized official in special 
use areas under subpart E of this part 423.
    (b) Violating any use or activity prohibition, restriction, 
condition, schedule of visiting hours, or public use limit established 
by or under this part 423 is prohibited.
    (c) Any continuous or ongoing violation of these regulations 
constitutes a separate violation for each calendar day in which it 
occurs.



Sec. 423.71  Sanctions.

    Under section (1)(a) of Public Law 107-69, you are subject to a fine 
under chapter 227, subchapter C of title 18 United States Code (18 
U.S.C. 3571), or can be imprisoned for not more than 6 months, or both, 
if you violate:
    (a) The provisions of this part 423; or
    (b) Any condition, limitation, closure, prohibition on uses or 
activities, or public use limits, imposed under this part 423.



PART 424_REGULATIONS PERTAINING TO STANDARDS FOR THE PREVENTION, CONTROL, AND ABATEMENT OF ENVIRONMENTAL POLLUTION OF CONCONULLY LAKE AND CONCONULLY RESERVOIR, 
OKANOGAN COUNTY, WASH.--Table of Contents





Sec. 424.1  Regulations.

    Pursuant to the provisions of Article 34 and 25 of repayment 
contract I1r-1534, dated September 20, 1948, between the United States 
and the Okanogan Irrigation District, it is ordered as follows:

    The Okanogan Irrigation District shall require that all recipients 
of cabinsite and recreation resort leases on Federal lands situated on 
Conconully Lake (formerly Salmon Lake) and Conconully Reservoir, 
Okanogan County, Wash., comply with applicable Federal, state and local 
laws, rules and regulations pertaining to water quality standards and 
effluent limitations for the discharge of pollutants into said 
reservoirs, including county regulations governing subsurface waste 
disposal systems.

(The Reclamation Act of June 17, 1902, as amended and supplemented, 
Articles 34, and 25 of the Repayment Contract I1r-1534 dated Sept. 20, 
1948, between the United States and the Okanagon Irrigation District)

[42 FR 60144, Nov. 25, 1977]



PART 426_ACREAGE LIMITATION RULES AND REGULATIONS--Table of Contents



Sec.
426.1 Purpose.
426.2 Definitions.
426.3 Conformance to the discretionary provisions.
426.4 Attribution of land.
426.5 Ownership entitlement.
426.6 Leasing and full-cost pricing.
426.7 Trusts.
426.8 Nonresident aliens and foreign entities.
426.9 Religious or charitable organizations.
426.10 Public entities.
426.11 Class 1 equivalency.
426.12 Excess land.
426.13 Excess land appraisals.
426.14 Involuntary acquisition of land.
426.15 Commingling.
426.16 Exemptions and exclusions.
426.17 Small reclamation projects.
426.18 Landholder information requirements.
426.19 District responsibilities.
426.20 Assessment of administrative costs.
426.21 Interest on underpayments.
426.22 Public participation.
426.23 Recovery of operation and maintenance (O&M) costs.
426.24 Reclamation decisions and appeals.
426.25 Reclamation audits.
426.26 Severability.

    Authority: 5 U.S.C. 301; 5 U.S.C. 553; 16 U.S.C. 590z-11; 31 U.S.C. 
9701; and 32 Stat. 388 and all acts amendatory thereof or supplementary 
thereto including, but not limited to, 43 U.S.C. 390aa to 390zz-1, 43 
U.S.C. 418, 43 U.S.C. 423 to 425b, 43 U.S.C. 431, 434, 440, 43 U.S.C. 
451 to 451k, 43 U.S.C. 462, 43 U.S.C. 485 to 485k, 43 U.S.C. 491 to 505, 
43 U.S.C. 511 to 513, and 43 U.S.C. 544.

    Source: 61 FR 66805, Dec. 18, 1996, unless otherwise noted.

[[Page 683]]



Sec. 426.1  Purpose.

    These rules and regulations implement certain provisions of Federal 
reclamation law that address the ownership and leasing of land on 
Federal Reclamation irrigation projects and the pricing of Federal 
Reclamation project irrigation water, and establish terms and conditions 
for the delivery of Federal Reclamation project irrigation water.



Sec. 426.2  Definitions.

    As used in these rules:
    Acreage limitation entitlements mean the ownership and nonfull-cost 
entitlements.
    Acreage limitation provisions mean the ownership limitations and 
pricing restrictions specified in Federal reclamation law, including but 
not limited to, Sections 203(b), 204, and 205 of the Reclamation Reform 
Act of 1982 (43 U.S.C. 390aa et seq.).
    Acreage limitation status means whether a landholder is a qualified 
recipient, limited recipient, or prior law recipient.
    Commissioner means the Commissioner of the Bureau of Reclamation, 
U.S. Department of the Interior.
    Compensation rate means a water rate applied, in certain situations, 
to water delivery to ineligible land that is not discovered until after 
the delivery has taken place. The compensation rate is equal to the 
established full-cost rate that would apply to the landholder if the 
landholder was to receive irrigation water on land that exceeded a 
nonfull-cost entitlement.
    Contract means any repayment or water service contract or agreement 
between the United States and a district providing for the payment to 
the United States of construction charges and normal operation, 
maintenance, and replacement costs under Federal reclamation law, even 
if the contract does not specifically identify the portion of the 
payment that is to be attributed to operation and maintenance and that 
portion that is to be attributed to construction. This definition 
includes contracts made in accordance with the Distribution System Loans 
Act, as amended (43 U.S.C. 421).
    Contract rate means the assessment, as set forth in a contract, that 
is to be paid by a district to the United States, and recomputed if 
necessary on a per acre or per acre foot basis.
    Dependent means any natural person within the meaning of the term 
dependent in the Internal Revenue Code of 1954 (26 U.S.C. 152) and any 
subsequent amendments.
    Direct when used in connection with the terms landholder, landowner, 
lessee, lessor, or owner, means that the party is the owner of record or 
holder of title, or the lessee of a land parcel, as appropriate. 
However, landholdings of joint tenants and tenants-in-common will not be 
considered direct under these regulations.
    Discretionary provisions refer to Sections 390cc through 390hh, 
except for 390cc(b), of the Reclamation Reform Act of 1982 (43 U.S.C. 
390aa et seq.).
    District means any individual or any legal entity established under 
State law that has entered into a contract or can potentially enter into 
a contract with the United States for irrigation water service through 
federally developed or improved water storage and/or distribution 
facilities.
    Eligible, except where otherwise provided, means permitted to 
receive an irrigation water supply from a Reclamation project under 
applicable Federal reclamation law.
    Entity, see definition of legal entity.
    Excess land means nonexempt land that is in excess of a landowner's 
maximum ownership entitlement under the applicable provisions of Federal 
reclamation law.
    Exempt, except where otherwise provided, means not subject to the 
acreage limitation provisions.
    Extended recordable contract means a recordable contract whose term 
was extended due to moratoriums established in 1976 and 1977 on the sale 
of excess land.
    Full cost or full-cost rate means an annual rate established by 
Reclamation that amortizes the expenditures for construction properly 
allocable to irrigation facilities in service, including all operation 
and maintenance deficits funded, less payments, over such periods as may 
be required under Federal reclamation law, or applicable contract 
provisions. Interest will accrue on both the construction expenditures 
and

[[Page 684]]

funded operation and maintenance deficits from October 12, 1982, on 
costs outstanding at that date, or from the date incurred in the case of 
costs arising subsequent to October 12, 1982. The full-cost rate 
includes actual operation, maintenance, and replacement costs required 
under Federal reclamation law.
    Full-cost charge means the full-cost rate less the actual operation, 
maintenance, and replacement costs required under Federal reclamation 
law.
    Indirect, when used in connection with the terms landholder, 
landowner, lessee, lessor or owner, means that such party is not the 
owner of record or holder of title, or the lessee of a land parcel, but 
that such party has a beneficial interest in the legal entity that is 
the owner of record or holder of title, or the lessee of a land parcel. 
Landholdings of joint tenants and tenants-in-common will be considered 
indirect under these regulations. A security interest held by lenders, 
who are not otherwise considered a landholder of the land in question, 
in a legal entity or in a land parcel will not be considered an indirect 
interest or a beneficial interest for purposes of these regulations.
    Individual means any natural person, including his or her spouse, 
and including other dependents; provided that, under prior law, the term 
individual does not include a natural person's spouse or dependents.
    Ineligible, except where otherwise provided, means not permitted to 
receive an irrigation water supply under applicable Federal reclamation 
law regardless of the rate paid for such water.
    Intermediate entity means an entity that is a part owner of another 
entity and in turn is owned by others, either another entity or 
individuals.
    Involuntary acquisition means land that is acquired through an 
involuntary foreclosure or similar involuntary process of law, 
conveyance in satisfaction of a debt (including, but not limited to, a 
mortgage, real estate contract or deed of trust), inheritance, or 
devise.
    Irrevocable election means the execution of the legal instrument 
that a landholder subject to prior law provisions submits to become 
subject to the discretionary provisions of Federal reclamation law.
    Irrevocable elector means a landholder who makes an irrevocable 
election to conform to the discretionary provisions of Federal 
reclamation law.
    Irrigable land means land so classified by Reclamation under a 
specific project plan for which irrigation water is, can be, or is 
planned to be provided, and for which facilities necessary for sustained 
irrigation are provided or are planned to be provided.
    Irrigation land means any land receiving water from a Reclamation 
project facility for irrigation purposes in a given water year, except 
for land that has been specifically exempted by statute or 
administrative action from the acreage limitation provisions of Federal 
reclamation law.
    Irrigation water means water made available for agricultural 
purposes from the operation of Reclamation project facilities pursuant 
to a contract with Reclamation.
    Landholder means a party that directly or indirectly owns or leases 
nonexempt land.
    Landholding means the total acreage of nonexempt land directly or 
indirectly owned or leased by a landholder.
    Lease means any arrangement between a landholder (the lessor) and 
another party (the lessee) under which the economic risk and the use or 
possession of the lessor's land is partially or wholly transferred to 
the lessee. If a management arrangement or consulting agreement is one 
in which the manager or consultant performs a service for the landholder 
for a fee, but does not assume the economic risk in the farming 
operation, and the landholder retains the right to the use and 
possession of the land, is responsible for payment of the operating 
expenses, and is entitled to receive the profits from the farming 
operation, then the agreement or arrangement will not be considered to 
be a lease.
    Legal entity or entity for the purpose of establishing application 
of the acreage limitation entitlements means, but is not limited to, 
corporations, partnerships, organizations, and any business or property 
ownership arrangements such as joint tenancies and tenancies-in-common. 
For purposes of the

[[Page 685]]

information requirements specified in Sec. 426.18 only, trusts will be 
considered to be legal entities.
    Limited recipient means any legal entity established under State or 
Federal law benefiting more than 25 natural persons. In order to become 
limited recipients, legal entities must be subject to the discretionary 
provisions through either district contract action or irrevocable 
election.
    Nondiscretionary provisions means sections 390cc(b) and 390ii 
through 390zz 1 of the RRA.
    Nonexempt land means either irrigation land or irrigable land that 
is subject to the acreage limitation provisions. Areas used for field 
roads, farm ditches and drains, tailwater ponds, temporary equipment 
storage, and other improvements subject to change at will by the 
landowner, are included in the nonexempt acreage. Areas occupied by and 
currently used for homesites, farmstead buildings, and corollary 
permanent structures such as feedlots, equipment storage yards, 
permanent roads, permanent ponds, and similar facilities, together with 
roads open for unrestricted use by the public are excluded from 
nonexempt acreage.
    Nonfull-cost entitlement means the maximum acreage a landholder may 
irrigate with irrigation water at a nonfull-cost rate.
    Nonfull-cost ratemeans any water rate other than the full-cost rate. 
Nonfull-cost rates are paid for irrigation water made available to land 
in a landholder's nonfull-cost entitlement.
    Nonproject water means water from sources other than Reclamation 
project facilities.
    Nonresident alien means any natural person who is neither a citizen 
nor a resident alien of the United States.
    Operation and maintenance costs or O&M costs mean all direct charges 
and overhead costs incurred by the United States after the date that 
Reclamation has declared a project, or a part thereof, substantially 
complete to operate, maintain, provide replacements of, administer, 
manage, and oversee project facilities and lands.
    Ownership entitlement means the maximum acreage a landholder may 
directly or indirectly own and irrigate with irrigation water.
    Part owner means an individual or legal entity that has a beneficial 
interest in a legal entity, but does not own 100 percent of that legal 
entity. A lender, who is not otherwise considered a landholder of the 
land in question, with a security interest in a legal entity or land 
owned by a legal entity shall not be considered a part owner under these 
regulations.
    Prior law means the Reclamation Act of 1902, and acts amendatory and 
supplementary thereto (43 U.S.C. 371 et seq.) that were in effect prior 
to the enactment of the RRA, and as amended by the RRA.
    Prior law recipient means an individual or legal entity that has not 
become subject to the discretionary provisions.
    Project means any irrigation project authorized by Federal 
reclamation law, or constructed by the United States pursuant to such 
law, or in connection with a repayment or water service contract 
executed by the United States pursuant to such law, or any project 
constructed by the United States through Reclamation for the reclamation 
of lands. The term project includes any incidental features of an 
irrigation project.
    Public entity means States, political subdivisions or agencies 
thereof, and agencies of the Federal Government.
    Qualified recipient means an individual who is a citizen or a 
resident alien of the United States or any legal entity established 
under State or Federal law that benefits 25 natural persons or less. A 
married couple may become a qualified recipient if either spouse is a 
United States citizen or resident alien. In order to become qualified 
recipients, individuals and legal entities must be subject to the 
discretionary provisions through either district contract action or 
irrevocable election.
    Reclamation means the Bureau of Reclamation, U.S. Department of the 
Interior.
    Reclamation fund means a special fund established by the Congress 
under the Reclamation Act of 1902, as amended, for the receipts from the 
sale of public lands and timber, proceeds from the Mineral Leasing Act, 
and certain other revenues.

[[Page 686]]

    Recordable contract means a written contract between Reclamation and 
a landowner capable of being recorded under State law, providing for the 
disposition of land held by that landowner in excess of the ownership 
limitations of Federal reclamation law.
    Resident alien means any natural person within the meaning of the 
term as defined in the Internal Revenue Act of 1954 (26 U.S.C. 7701) as 
it may be amended.
    RRA means the Reclamation Reform Act of 1982, Public Law 97-09293, 
Title II, 96 Stat. 1263, (43 U.S.C. 390aa et seq.) as amended.
    Secretary means Secretary of the U.S. Department of the Interior.
    Standard certification or reporting forms mean forms on which 
landholders provide complete information about the directly and 
indirectly owned and leased nonexempt lands in their landholdings.
    Water year means a 365-day period (or 366 days during leap years) 
whose start date is specified within a contract between Reclamation and 
the district or through some other agreement between Reclamation and the 
district.
    Westwide means the 17 Western States where Reclamation projects are 
located, namely: Arizona, California, Colorado, Idaho, Kansas, Montana, 
Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, South 
Dakota, Texas, Utah, Washington, and Wyoming.



Sec. 426.3  Conformance to the discretionary provisions.

    (a) Districts that are subject to the discretionary provisions. 
Unless an exemption in Sec. 426.16 applies, a district is subject to 
the discretionary provisions if:
    (1) The district executes a new or renewed contract with Reclamation 
after October 12, 1982. The discretionary provisions apply as of the 
execution date of the new or renewed contract;
    (2) The district amends its contract to conform to the discretionary 
provisions:
    (i) A district may ask Reclamation to amend its contract to conform 
to the discretionary provisions;
    (ii) The district's request to Reclamation must be accompanied by a 
duly adopted resolution dated and signed by the governing board of the 
district obligating the district to take, in a timely manner, actions 
required by applicable State law to amend its contract; and
    (iii) If the requirements of paragraphs (a)(2)(i) and (ii) of this 
section are met, then Reclamation will amend the contract, and the 
district becomes subject to the discretionary provisions from the date 
the district's request was submitted to Reclamation;
    (iv) If the district only wants to amend its contracts to become 
subject to the discretionary provisions, the amendments need only be to 
the extent required to conform to the discretionary provisions; or
    (3) The district amends its contract after October 12, 1982, to 
provide the district with additional or supplemental benefits. The 
amendment must also include the district's conformance to the 
discretionary provisions:
    (i) The discretionary provisions apply as of the date that 
Reclamation executes the contract amendment;
    (ii) For purposes of application of the acreage limitation 
provisions Reclamation considers a contract amendment as providing 
additional or supplemental benefits if that amendment:
    (A) Requires the United States to expend significant funds;
    (B) Requires the United States to commit significant additional 
water supplies; or
    (C) Substantially modifies contract payments due the United States; 
and
    (iii) For purposes of application of the acreage limitation 
provisions Reclamation does not consider the following contract actions 
as providing additional or supplemental benefits:
    (A) The construction of facilities for conveyance of irrigation 
water for which districts contracted on or before October 12, 1982;
    (B) Minor drainage and construction work contracted under a prior 
repayment or water service contract;
    (C) Operation and maintenance (O&M) amendments;
    (D) The deferral of payments provided the deferral is for a period 
of 12 months or less;
    (E) A temporary supply of irrigation water as set forth in Sec. 
426.16(d);

[[Page 687]]

    (F) The transfer of water on an annual basis from one district to 
another, provided that:
    (1) Both districts have contracts with the United States;
    (2) The rate paid by the district receiving the transferred water:
    (i) Is the higher of the applicable water rate for either district;
    (ii) Does not result in any increased operating losses to the United 
States above those that would have existed in the absence of the 
transfer; and
    (iii) Does not result in any decrease in capital repayment to the 
United States below what would have existed in the absence of the 
transfer; and
    (3) The recipients of the transferred water pay a rate for the water 
that is at least equal to the actual O&M costs or the full-cost rate in 
those cases where, for whatever reason, the recipients would have been 
subject to such costs had the water not been considered transferred 
water;
    (G) Contract actions pursuant to the Reclamation Safety of Dams Act 
of 1978, as amended (43 U.S.C. 506); or
    (H) Other contract actions that Reclamation determines do not 
provide additional or supplemental benefits.
    (b) Districts that are subject to prior law. Any district which had 
a contract in force on October 12, 1982, that required landholders to 
comply with the ownership limitations of Federal reclamation law remains 
subject to prior law unless and until the district:
    (1) Enters into a new or renewed contract requiring it to conform to 
the discretionary provisions, as provided in paragraph (a)(1) of this 
section;
    (2) Makes a contract action requiring conformance to the 
discretionary provisions, as provided in paragraphs (a)(2) or (3) of 
this section; or
    (3) Becomes exempt, as provided in Sec. 426.16.
    (c) Standard RRA contract article. (1) New or renewed contracts 
executed after October 12, 1982, or contracts that are amended to 
conform to the discretionary provisions before or on the effective date 
of these rules must include the following clause:

    The parties agree that the delivery of irrigation water or use of 
Federal facilities pursuant to this contract is subject to reclamation 
law, as amended and supplemented, including but not limited to the 
Reclamation Reform Act of 1982 (43 U.S.C. 390aa et seq..

    (2) New or renewed contracts executed after the effective date of 
these rules, or contracts that are amended to conform to the 
discretionary provisions after the effective date of these rules must 
include the following clause:

    The parties agree that the delivery of irrigation water or use of 
Federal facilities pursuant to this contract is subject to Federal 
reclamation law, including but not limited to the Reclamation Reform Act 
of 1982 (43 U.S.C. 390aa et seq.), as amended and supplemented, and the 
rules and regulations promulgated by the Secretary of the Interior under 
Federal reclamation law.

    (d) The effect of a master contractor's and subcontractor's actions 
to conform to the discretionary provisions. If a district provides 
irrigation water to other districts through subcontracts and the master 
contracting district is subject to:
    (1) The discretionary provisions, then all subcontracting districts 
who are entitled to receive irrigation water must also conform to the 
discretionary provisions; or
    (2) Prior law, then the subcontracting district can amend its 
subcontract to conform to the discretionary provisions without 
subjecting the master contractor or any other subcontractor of the 
master contractor to the discretionary provisions. If a subcontract that 
does not include the United States as a party is amended to conform to 
the discretionary provisions, or the subcontract is a new or renewed 
contract executed after October 12, 1982, then the amended, new, or 
renewed subcontract must include the United States as a party.
    (e) The effect on a landholder's status when a district becomes 
subject to the discretionary provisions. If a district conforms to the 
discretionary provisions and the landholder is:
    (1) Other than a nonresident alien or a legal entity that is not 
established under State or Federal law, and is:
    (i) A direct landholder in that district, then the landholder 
becomes subject to the discretionary provisions and the associated 
acreage limitation status will apply in any district in which the 
landholder holds land; or

[[Page 688]]

    (ii) Only an indirect landholder in that and all other discretionary 
provisions districts, then the landholder's acreage limitation status is 
not affected. Such a landholder can receive irrigation water as a prior 
law recipient on indirectly held lands in districts that conform to the 
discretionary provisions.
    (2) A nonresident alien, or legal entity not established under State 
or Federal law, and the landholder is:
    (i) A direct landholder, then since such a landholder cannot become 
subject to, and has no eligibility under the discretionary provisions:
    (A) All direct landholdings in districts that conform to the 
discretionary provisions become ineligible; and
    (B) Directly held land that becomes ineligible as a result of the 
district's action to conform to the discretionary provisions may be 
placed under recordable contract as subject to the conditions specified 
in Sec. 426.12; or
    (ii) An indirect landholder, then such a landholder may receive 
irrigation water on land indirectly held in districts conforming to the 
discretionary provisions, with the entitlements for such landholder 
determined as specified in Sec. 426.8.
    (f) Landholder actions to conform to the discretionary provisions. 
(1) In the absence of a district's action to conform to the 
discretionary provisions, United States citizens, resident aliens, or 
legal entities established under State or Federal law, can elect to 
conform to the discretionary provisions by executing an irrevocable 
election. Upon execution of an irrevocable election:
    (i) The elector's entire landholding in all districts shall be 
subject to the discretionary provisions;
    (ii) The election shall be binding on the elector and his or her 
landholding, but will not be binding on subsequent landholders of that 
land;
    (iii) An irrevocable election by a legal entity is binding only upon 
that entity and not on the part owners of that entity;
    (iv) An irrevocable election by a part owner of a legal entity binds 
only the part owner making the election and not the entity or other part 
owners of the entity; and
    (v) An irrevocable election by a lessor does not affect the status 
of a lessee, and vice versa. However, the eligibility and entitlement of 
neither a lessor nor a lessee may be enhanced through leasing.
    (2) A landholder makes an irrevocable election by completing a 
Reclamation issued irrevocable election form:
    (i) The elector's original irrevocable election form must be filed 
by the district with Reclamation and must be accompanied by a completed 
certification form, as specified in Sec. 426.18;
    (ii) The elector must file copies of the irrevocable election and 
certification forms concurrently with each district where the elector 
holds nonexempt land;
    (iii) Reclamation will prepare a letter advising the recipient of 
the approval or disapproval of the election. Reclamation will base 
approval upon whether the election form and the accompanying 
certification form(s) indicate the elector's satisfaction of the various 
requirements of Federal reclamation law and these regulations;
    (iv) If the election is approved, the letter of approval, with a 
copy of the irrevocable election form and the original certification 
form(s), will be sent by Reclamation to each district where the elector 
holds land;
    (v) The district(s) shall retain the forms; and
    (vi) If the irrevocable election is disapproved, the landholder and 
the district will be advised by letter along with the reasons for 
disapproval.
    (3) A landholder that only holds land indirectly in a district that 
has conformed to the discretionary provisions, other than a nonresident 
alien or a legal entity not established under State or Federal law, may 
make an irrevocable election also by simply submitting certification 
forms to all districts where the landholder holds land subject to the 
acreage limitation provisions. An election made in this manner is 
binding in all districts in which such elector holds land.
    (g) District reliance on irrevocable election form information. The 
district is entitled to rely on the information contained in the 
irrevocable election form. The district does not need to make an

[[Page 689]]

independent investigation of the information.
    (h) Time limits for amendments or elections to conform to the 
discretionary provisions. Reclamation will allow at anytime a landholder 
to elect or a district to amend its contract to conform to the 
discretionary provisions. An irrevocable election that was made after 
April 12, 1987, but on or before May 13, 1987, shall be considered 
effective as of April 12, 1987.



Sec. 426.4  Attribution of land.

    (a) Prohibition on increasing acreage limitation entitlements. 
Except as specifically provided in these rules, a landholder cannot 
increase acreage limitation entitlements or eligibility by acquiring or 
holding a beneficial interest in a legal entity. Similarly, the acreage 
limitation status of an individual or legal entity that holds or has 
acquired a beneficial interest in another legal entity will not be 
permitted to enlarge the latter legal entity's acreage limitation 
entitlements or eligibility.
    (b) Attribution of owned land. For purposes of determining acreage 
to be counted against acreage limitation entitlements, acreage will be 
attributed to all:
    (1) Direct landowners in proportion to the direct beneficial 
interest the landowners own in the land; and
    (2) Indirect landowners in proportion to the indirect beneficial 
interest they own in the land.
    (c) Attribution of leased land. Leased land will be attributed to 
the direct and indirect landowners as well as to the direct and indirect 
lessees in the same manner as described in paragraphs (b) and (d) of 
this section.
    (d) Attribution of land held through intermediate entities. If land 
is held by a direct landholder and a series of indirect landholders, 
Reclamation will attribute that land to the acreage limitation 
entitlements of the direct landholder and each indirect landholder in 
proportion to each landholder's beneficial interest in the entity that 
directly holds the land.
    (e) Leasebacks. Any land a landholder directly or indirectly owns 
and that is directly or indirectly leased back will only count once 
against that particular landholder's nonfull-cost entitlement.
    (f) Effect on an entity of attribution to part owners. For purposes 
of determining eligibility, the entire landholding will be attributed to 
all the direct and indirect landholders. If the interests in a legal 
entity are:
    (1) Undivided, then all of the indirect part owners must be eligible 
in order for the entity to be eligible; or
    (2) Divided, in such a manner that specific parcels are attributable 
to each indirect landholder, then the entity may qualify for eligibility 
on those portions of the landholding not attributable to any part owner 
who is ineligible.



Sec. 426.5  Ownership entitlement.

    (a) General. Except as provided in Sec. Sec. 426.12 and 426.14, all 
nonexempt land directly or indirectly owned by a landholder counts 
against that landholder's ownership entitlement. In addition, land owned 
or controlled by a public entity that is leased to another party counts 
against the lessee's ownership entitlement, as specified in Sec. 
426.10.
    (b) Qualified recipient ownership entitlement. A qualified recipient 
is entitled to receive irrigation water on a maximum of 960 acres of 
owned nonexempt land, or the Class 1 equivalent thereof. This 
entitlement applies on a westwide basis.
    (c) Limited recipient ownership entitlement. A limited recipient is 
entitled to receive irrigation water on a maximum of 640 acres of owned 
nonexempt land, or the Class 1 equivalent thereof. This entitlement 
applies on a westwide basis.
    (d) Prior law recipient ownership entitlement. (1) Ownership 
entitlements for prior law recipients are determined by whether the 
recipient is one individual or a married couple, and for entities by the 
type of entity, as follows:
    (i) An individual subject to prior law is entitled to receive 
irrigation water on a maximum of 160 acres of owned nonexempt land;
    (ii) Married couples who hold equal interests are entitled to 
receive irrigation water on a maximum of 320 acres of jointly owned 
nonexempt land;
    (iii) Surviving spouses until remarriage are entitled to receive 
irrigation

[[Page 690]]

water on that land owned jointly in marriage up to a maximum of 320 
acres of owned nonexempt land. If any of that land should be sold, the 
applicable ownership entitlement would be reduced accordingly, but not 
to less than 160 acres of owned nonexempt land;
    (iv) Children are each entitled to receive irrigation water on a 
maximum of 160 acres of owned nonexempt land, regardless of whether they 
are independent or dependent;
    (v) Joint tenancies and tenancies-in-common subject to prior law are 
entitled to receive irrigation water on a maximum of 160 acres of owned 
nonexempt land per tenant, provided each tenant holds an equal interest 
in the tenancy;
    (vi) Partnerships subject to prior law are entitled to receive 
irrigation water on a maximum of 160 acres of owned nonexempt land per 
partner if the partners have separable and equal interests in the 
partnership and the right to alienate that interest. Partnerships where 
each partner does not have a separable interest and the right to 
alienate that interest are entitled to receive irrigation water on a 
maximum of 160 acres of nonexempt land owned by the partnership; and
    (vii) All corporations subject to prior law are entitled to receive 
irrigation water on a maximum of 160 acres of owned nonexempt land.
    (2) Prior law recipient ownership entitlements specified in this 
section apply on a westwide basis unless the land was acquired by the 
current owner on or before December 6, 1979. For land acquired by the 
current owner on or before that date, prior law ownership entitlements 
apply on a district-by-district basis.
    (3) For those entities where an equal interest held by the part 
owners would result in a 160-acre per part owner entitlement for the 
entity, if the part owners interests are not equal then the entitlement 
of the entity will be determined by the relative interest held in the 
entity by each part owner.



Sec. 426.6  Leasing and full-cost pricing.

    (a) Conditions that a lease must meet. Districts can make irrigation 
water available to leased land only if the lease meets the following 
requirements. Land that is leased under a lease instrument that does not 
meet the following requirements will be ineligible to receive irrigation 
water until the lease agreement is terminated or modified to satisfy 
these requirements.
    (1) The lease is in writing;
    (2) The lease includes the effective date and term of the lease, the 
length of which must be:
    (i) 10 years or less, including any exercisable options; however, 
for perennial crops with an average life longer than 10 years, the term 
may be equal to the average life of the crop as determined by 
Reclamation, and
    (ii) In no case may the term of a lease exceed 25 years, including 
any exercisable options;
    (3) The lease includes a legal description, that is at least as 
detailed as what is required on the standard certification and reporting 
forms, of the land subject to the lease;
    (4) Signatures of all parties to the lease are included;
    (5) The lease includes the date(s) or conditions when lease payments 
are due and the amounts or the method of computing the payments due;
    (6) The lease is available for Reclamation's inspection and 
Reclamation reviews and approves all leases for terms longer than 10 
years; and
    (7) If either the lessor or the lessee is subject to the 
discretionary provisions, the lease provides for agreed upon payments 
that reflect the reasonable value of the irrigation water to the 
productivity of the land; except
    (8) Leases in effect as of the effective date of these regulations 
do not need to meet the criteria specified under paragraphs (a) (3) and 
(4) of this section, unless and until such leases are renewed.
    (b) Nonfull-cost entitlements. (1) The nonfull-cost entitlement for 
qualified recipients is 960 acres, or the Class 1 equivalent thereof.
    (2) The nonfull-cost entitlement for limited recipients that 
received irrigation water on or before October 1, 1981, is 320 acres or 
the Class 1 equivalent thereof. The nonfull-cost entitlement for limited 
recipients that did not receive irrigation water on or prior to October 
1, 1981, is zero.

[[Page 691]]

    (3) The nonfull-cost entitlement for prior law recipients is equal 
to the recipient's maximum ownership entitlement as set forth in Sec. 
426.5(d). However, for the purpose of computing the acreage subject to 
full cost, all owned and leased irrigation land westwide must be 
included in the computation.
    (c) Application of the nonfull-cost and full-cost rates. (1) A 
landholder may irrigate at the nonfull-cost rate directly and indirectly 
held acreage equal to his or her nonfull-cost entitlement.
    (2) If a landholding exceeds the landholder's nonfull-cost 
entitlement, the landholder must pay the appropriate full-cost rate for 
irrigation water delivered to acreage that equals the amount of leased 
land that exceeds that entitlement.
    (3) In the case of limited recipients, a landholder does not have to 
lease land to exceed a nonfull-cost entitlement, since the nonfull-cost 
entitlement is less than the ownership entitlement. Therefore, limited 
recipients must pay the appropriate full-cost rate for irrigation water 
delivered to any acreage that exceeds their nonfull-cost entitlement.
    (d) Types of lands that count against the nonfull-cost entitlement. 
(1) All directly and indirectly owned irrigation land and irrigation 
land directly or indirectly leased for any period of time during 1-water 
year counts towards a landholder's nonfull-cost entitlement, except:
    (i) Involuntarily acquired land, as provided in Sec. Sec. 426.12 
and 426.14; and
    (ii) Land that is leased for incidental grazing or similar purposes 
during periods when the land is not receiving irrigation water.
    (2) Reclamation's process for determining if a nonfull-cost 
entitlement has been exceeded is as follows:
    (i) All land counted toward a landholder's nonfull-cost entitlement 
will be counted on a cumulative basis during any 1-water year;
    (ii) Once a landholder's nonfull-cost entitlement is met in a given 
water year, any additional eligible land may be irrigated only at the 
full-cost rate; and
    (iii) Irrigation land will be counted towards nonfull-cost 
entitlements on a westwide basis, even for prior law recipients, 
regardless of the date of acquisition.
    (e) Selection of nonfull-cost land. (1) A landholder that has 
exceeded his or her nonfull-cost entitlement may select in each water 
year, from his or her directly held irrigation land, the land that can 
be irrigated at a nonfull-cost rate and the land that can be irrigated 
only at the full-cost rate. Selections for full-cost or nonfull-cost 
land may include:
    (i) Leased land;
    (ii) Nonexcess owned land;
    (iii) Land under recordable contract, unless that land is already 
subject to application of the full-cost rate under an extended 
recordable contract; or
    (iv) A combination of all three.
    (2) Once a landholder has received irrigation water on a given land 
parcel during a water year, the selection of that parcel as full cost or 
nonfull-cost is binding until the landholder has completed receiving 
irrigation water westwide for that water year.
    (f) Applicability of a full-cost selection to an owner or lessee. If 
a landowner or lessee should select land as subject to full-cost 
pricing, then that land can receive irrigation water only at the full-
cost rate, regardless of eligibility of the other party to receive the 
irrigation water at the nonfull-cost rate.
    (g) Subleased land. Land that is subleased (the lessee transfers 
possession of the land to a sublessee) will be attributed to the 
landholding of the sublessee and not to the lessee.
    (h) Calculating full-cost charges. Reclamation will calculate a 
district's full-cost charge using accepted accounting procedures and 
under the following conditions.
    (1) The full-cost charge does not recover interest retroactively 
before October 12, 1982. But, interest on the unpaid balance does accrue 
from October 12, 1982, where the unpaid balance equals the irrigation 
allocated construction costs for facilities in service plus cumulative 
federally funded O&M deficits, less payments.
    (2) The full-cost charge will be determined:
    (i) As of October 12, 1982, for contracts entered into before that 
date regardless of amendments to conform to the discretionary 
provisions; and

[[Page 692]]

    (ii) At the time of contract execution for new and renewed contracts 
entered into on or after October 12, 1982.
    (3) For repayment contracts, the full-cost charge will fix equal 
annual payments over the amortization period. For water service 
contracts, the full-cost charge will fix equal payments per acre-foot of 
projected water deliveries over the amortization period.
    (4) If there are additional construction expenditures, or if the 
cost allocated to irrigation changes, then a new full-cost charge will 
be determined.
    (5) Reclamation will notify the respective districts of changes in 
the full-cost charge at the time the district is notified of other 
payments due the United States.
    (6) In determining full-cost charges, the following factors will be 
considered:
    (i) Amortization period. The amortization period for calculating the 
full-cost charge is the remaining balance of:
    (A) For contracts entered into before October 12, 1982, the contract 
repayment period as of October 12, 1982;
    (B) For contracts entered into on or after October 12, 1982, the 
contract repayment period;
    (C) For water service contracts, the period from October 12, 1982, 
or the execution date of the contract, whichever is later, to the 
anticipated date of project repayment; and
    (D) In cases where water services rates are designed to completely 
repay applicable Federal expenditures in a specific time period, that 
time period may be used as the amortization period for full-cost 
calculations related to these expenditures; but, in no case will the 
amortization period exceed the project payback period authorized by the 
Congress;
    (ii) Construction costs. For determining full cost, construction 
costs properly allocable to irrigation are those Federal project costs 
for facilities in service that have been assigned to irrigation within 
the overall allocation of total project construction costs. Total 
project construction costs include all direct expenditures necessary to 
install or implement a project, such as:
    (A) Planning;
    (B) Design;
    (C) Land;
    (D) Rights-of-way;
    (E) Water-rights acquisitions;
    (F) Construction expenditures;
    (G) Interest during construction; and
    (H) When appropriate, transfer costs associated with services 
provided from other projects;
    (iii) Facilities in service. Facilities in service are those 
facilities that are in operation and providing irrigation services;
    (iv) Operation and maintenance (O&M) deficits funded. O&M deficits 
funded are the annual O&M costs including project-use pumping power 
allocated to irrigation that have been federally funded and that have 
not been paid by the district;
    (v) Payments received. In calculating the payments that have been 
received, all receipts and credits applied to repay or reduce allocated 
irrigation construction costs in accordance with Federal reclamation 
law, policy, and applicable contract provisions will be considered. 
These may include:
    (A) Direct repayment contract revenues;
    (B) Net water service contract income;
    (C) Contributions;
    (D) Ad valorem taxes; and
    (E) Other miscellaneous revenues and credits excluding power and 
municipal and industrial (M&I) revenues;
    (vi) Interest rates. Interest rates to be used in calculating full-
cost charges will be determined by the Secretary of the Treasury as 
follows:
    (A) For irrigation water delivered to qualified recipients, limited 
recipients receiving water on or before October 1, 1981, and extended 
recordable contract land owned by prior law recipients, the interest 
rate for expenditures made on or before October 12, 1982, will be the 
greater of 7.5 percent per annum or the weighted average yield of all 
interest-bearing marketable issues sold by the Treasury during the 
fiscal year when the expenditures were made by the United States. The 
interest rate for expenditures made after October 12, 1982, will be the 
arithmetic average of:
    (1) The computed average interest rate payable by the Treasury upon 
its outstanding marketable public obligations that are neither due nor 
callable

[[Page 693]]

for redemption for 15 years from the date of issuance at the beginning 
of the fiscal year when the expenditures are made; and
    (2) The weighted average yield on all interest-bearing marketable 
issues sold by the Treasury during the fiscal year preceding the fiscal 
year the expenditures are made;
    (B) For irrigation water delivered to limited recipients not 
receiving irrigation water on or before October 1, 1981, and prior law 
recipients, except for land owned subject to extended recordable 
contract, the interest rate will be determined as of the fiscal year 
preceding the fiscal year the expenditures are made, except that the 
interest rate for expenditures made before October 12, 1982, will be 
determined as of October 12, 1982. The interest rate will be based on 
the arithmetic average of:
    (1) The computed average interest rate payable by the Treasury upon 
its outstanding marketable public obligations that are neither due nor 
callable for redemption for 15 years from the date of issuance; and
    (2) The weighted average yield on all interest-bearing marketable 
issues sold by the Treasury.
    (C) Landholders who were prior law recipients and become subject to 
the discretionary provisions after April 12, 1987, are eligible for the 
full-cost interest rate specified in paragraph (h)(6)(vi)(A) of this 
section, unless they are limited recipients that did not receive 
irrigation water on or before October 1, 1981, in that case they remain 
subject to the full-cost interest rate specified in paragraph 
(h)(6)(vi)(B) of this section.
    (i) Direct and proportional charges for full-cost water. In 
situations where water delivery charges are contractually or customarily 
levied on a per-acre basis, full-cost assessments will be made on a per-
acre basis. In situations where water delivery charges are contractually 
or customarily levied on a per acre-foot basis, one of the following 
methods must be used to make full-cost assessments:
    (1) Assessments will be based on the actual amounts of water used in 
situations where measuring devices are in use, to the satisfaction of 
Reclamation, to reasonably determine the amounts of irrigation water 
being delivered to full-cost and nonfull-cost land; or
    (2) In situations where, as determined by Reclamation, measuring 
devices are not a reliable method for determining the amounts of water 
being delivered to full-cost and nonfull-cost land, then water charges 
must be based on the assumption that equal amounts of water per acre are 
being delivered to both types of land during periods when both types of 
land are actually being irrigated.
    (j) Disposition of revenues obtained through full-cost water 
pricing--(1) Legal deliveries. If irrigation water has been delivered in 
compliance with Federal reclamation law and these regulations, then:
    (i) That portion of the full-cost rate that would have been 
collected if the land had not been subject to full cost will be credited 
to the annual payments due under the district's contractual obligation;
    (ii) Any O&M revenues collected over and above those required under 
the district's contract will be credited to the project O&M account; and
    (iii) The remaining full-cost revenues will be credited to the 
Reclamation fund unless otherwise provided by law, with any capital 
component of the full-cost rate credited to project repayment, if 
applicable.
    (2) Illegal deliveries. Revenues resulting from the assessment of 
compensation charges for illegal deliveries of irrigation water will be 
deposited into the Reclamation fund in their entirety, and will not be 
credited toward any contractual obligation, or O&M or repayment account 
of the district or project. For purposes of these regulations only, this 
does not include revenues from any charges that may be assessed by the 
district to cover district operation, maintenance, and administrative 
expenses.



Sec. 426.7  Trusts.

    (a) Definitions for purposes of this section:
    Grantor revocable trust means a trust that holds irrigable land or 
irrigation land that may be revoked at the discretion of the grantor(s), 
or terminated by the terms of the trust, and revocation or termination 
results in title to the

[[Page 694]]

land held in trust reverting either directly or indirectly to the 
grantor(s).
    Irrevocable trust means a trust that holds irrigable land or 
irrigation land and does not allow any individual, including the grantor 
or beneficiaries, the discretion to decide when or under what conditions 
the trust terminates, and that upon termination the title to the land 
held in trust transfers either directly or indirectly to a person(s) or 
entity(ies) other than the grantor(s).
    Otherwise revocable trust means a trust that holds irrigable land or 
irrigation land and that may be revoked at the discretion of the 
grantor(s) or other parties, or terminated by the terms of the trust, 
and revocation or termination results in the title to the land held in 
trust transferring either directly or indirectly to a person(s) or 
entity(ies) other than the grantor(s).
    (b) Attribution of land held by a trust. The acreage limitation 
entitlements of a trust are only limited by the acreage limitation 
entitlements of the trustees, grantors, or beneficiaries to whom land 
held by the trust must be attributed as provided for in Sec. 426.4. The 
entitlements of the parties to whom trusted land is attributed are 
determined according to Sec. Sec. 426.5, 426.6, and 426.8, and other 
applicable provisions of Federal reclamation law and these regulations. 
Reclamation attributes nonexempt land held by a trust to the following 
parties:
    (1) For land held in an irrevocable trust, the land is attributed to 
the beneficiaries in proportion to their beneficial interest in the 
trust. However, this attribution is only made if the criteria listed in 
paragraphs (b)(1) (i) and (ii) of this section are met. If the trust 
fails to meet any portion of these criteria, Reclamation attributes the 
land held in the trust to the trustee.
    (i) The trust is in written form and approved by Reclamation; and
    (ii) The beneficiaries of the trust and the beneficiaries' 
respective interests are identified within the trust document.
    (2) For land held in a grantor revocable trust, the land is 
attributed to the grantor according to the grantor's acreage limitation 
status and the land's eligibility immediately prior to its transfer to 
the trust. However, this attribution is only made if the criteria listed 
in paragraphs (b)(2) (i), (ii), (iii), and (iv) of this section are met. 
If the trust fails to meet any portion of these criteria, the land held 
in trust will be ineligible to receive irrigation water until all of the 
criteria are met. The only exception is if the trust's and grantor's 
standard certification or reporting forms indicate that the land held by 
the trust has been attributed to the trust's grantor(s).
    (i) The trust meets the criteria specified in paragraph (b)(1) of 
this section;
    (ii) The grantor(s) of all land held by the trust is (are) 
identified within the trust document;
    (iii) The conditions under which the trust may be revoked or 
terminated are identified within the trust document; and
    (iv) The recipient(s) of the trust land upon revocation or 
termination is (are) identified within the trust document.
    (3) For land held in an otherwise revocable trust, the land is 
attributed to the beneficiaries in proportion to their beneficial 
interests in the trust. However, this attribution is only made if the 
trust meets the criteria specified in paragraph (b)(1) of this section 
and the trust meets the additional criteria specified in paragraph 
(b)(2) of this section.
    (i) If Reclamation cannot determine who will hold the land in trust 
upon termination or revocation of the trust, or who is the grantor(s) of 
the land held in trust, then irrigation water will not be made available 
to the land held in trust until the trust satisfies the additional 
criteria listed in paragraph (b)(2) of this section.
    (ii) If the trust fails to meet the criteria listed in paragraph 
(b)(1) of this section, but does meet the additional criteria listed in 
paragraphs (b)(2) (ii) through (iv) of this section, then the land is 
attributed to the trustee.
    (c) Class beneficiaries. For purposes of identifying beneficiaries, 
a class of beneficiaries specified within the trust document will be 
acceptable, as long as the trust document is specific as to the 
beneficial interest to which each member of the class will be entitled 
and the members of the class are identifiable.
    (1) Attribution during any given water year will be provided only to

[[Page 695]]

class beneficiaries that are natural persons and established legal 
entities. For purposes of administering the acreage limitation 
provisions, attribution to unborn or deceased persons, or entities not 
yet established, will not be allowed.
    (2) If a trust includes a class of beneficiaries to which land 
subject to the acreage limitation provisions will be attributed, the 
trustee and each of the beneficiaries will be required to submit 
standard certification or reporting forms annually. The submittal of 
verification forms, as provided in Sec. 426.18(l), will not be 
applicable to such trusts.
    (d) Application of full-cost rate to land held by grantor revocable 
trusts. If a grantor revocable trust that meets the criteria specified 
in paragraph (b)(2) of this section is revised by the grantor in a 
manner that precludes attribution of the land held in trust to the 
grantor:
    (1) Before April 20, 1988, Reclamation will not assess full-cost 
rates for the land held by the revised trust for the period before it 
was revised; or
    (2) On or after April 20, 1988, Reclamation will charge the full-
cost rate for irrigation water delivered to any land held by the trust 
that exceeds the grantor's nonfull-cost entitlement, commencing December 
23, 1987, until the trust agreement is revised to make it an irrevocable 
trust or an otherwise revocable trust.



Sec. 426.8  Nonresident aliens and foreign entities.

    (a) Definitions for purposes of this section:
    Domestic entity means a legal entity established under State or 
Federal law.
    Foreign entity means a legal entity not established under State or 
Federal law.
    (b) Restriction on receiving irrigation water. Notwithstanding any 
other provision of Federal reclamation law or these regulations, a 
nonresident alien or foreign entity that directly holds land in a 
district that is subject to the discretionary provisions is not eligible 
to receive irrigation water on such land. Nonresident aliens and foreign 
entities may hold land indirectly in discretionary districts and both 
directly and indirectly in prior law districts and receive irrigation 
water on such land, subject to their acreage limitation entitlements.
    (c) Entitlements for nonresident aliens and foreign entities. Except 
as provided in paragraph (d) of this section, all nonresident aliens and 
foreign entities will be considered prior law recipients, and shall have 
entitlements and eligibility only as prior law recipients as specified 
in Sec. Sec. 426.5(d) and 426.6(b)(3).
    (d) Exception to prior law entitlement application. (1) If a 
nonresident alien is a citizen of or a foreign entity is established in 
a country that has one of the following treaties with the United States 
or is a member of the listed organization, then that nonresident alien 
or foreign entity will not be restricted to prior law entitlements, 
provided the eligible landholding subject to the acreage limitation 
provisions is held indirectly:
    (i) Friendship, Commerce and Navigation Treaty;
    (ii) Bilateral Investment Treaty;
    (iii) North American Free Trade Agreement;
    (iv) Canada-United States Free Trade Agreement; or
    (v) Organization for Economic Cooperation and Development.
    (2) Nonresident aliens and foreign entities that meet the criteria 
listed in paragraph (d)(1) of this section will be required to provide 
proof of citizenship or documentation certifying the country in which 
the entity in question was established. Districts will retain such 
documentation in the landholder's file.
    (3) If a nonresident alien or foreign entity meets the criteria 
listed in paragraph (d)(1) of this section, and only holds eligible land 
subject to the acreage limitation provisions indirectly, then the 
nonresident alien may be treated as a United States citizen or the 
foreign entity may be treated as a domestic entity for purposes of 
application of the acreage limitation provisions for the land held 
indirectly.
    (i) The nonresident alien or foreign entity may submit an 
irrevocable election to conform to the discretionary provisions as 
provided for in Sec. 426.3(f). Conformance to the discretionary 
provisions through the submittal of a certification form will not be 
allowed as specified in Sec. 426.3(f)(3).

[[Page 696]]

    (ii) Upon Reclamation's approval of the irrevocable election, a 
nonresident alien will be treated as having the ownership entitlement of 
a qualified recipient as described in Sec. 426.5(b), for any land held 
indirectly. A foreign entity will be treated as a qualified recipient or 
a limited recipient as determined by the number of natural persons who 
are beneficiaries of the entity as specified by the definitions found in 
Sec. 426.2, and the subsequent entitlement as provided in Sec. 
426.5(b) or (c), for any land held indirectly. The applicable nonfull-
cost entitlements will be determined as described in Sec. 426.6(b).
    (iii) Reclamation will not approve irrevocable elections submitted 
by a nonresident alien or a foreign entity that holds any land directly 
in any prior law district.
    (iv) Reclamation will not approve irrevocable elections submitted by 
a nonresident alien that is not a citizen of or foreign entity that has 
not been established in a country that has a treaty or international 
membership as specified in paragraph (d)(1) of this section.



Sec. 426.9  Religious or charitable organizations.

    (a) Definitions for purposes of this section:
    Central organization means the organization to which all 
subdivisions, such as parishes, congregations, chapters, etc., 
ultimately report.
    Religious or charitable organization means an organization or each 
congregation, chapter, parish, school, ward, or similar subdivision of a 
religious or charitable organization that is exempt from paying Federal 
taxes under Sec. 501 of the Internal Revenue Code of 1954, as amended.
    (b) Acreage limitation status of religious or charitable 
organizations that are subject to the discretionary provisions. (1) 
Religious or charitable organizations or their subdivisions that are 
subject to the discretionary provisions have qualified recipient status, 
if:
    (i) The organization's or subdivision's agricultural produce and 
proceeds from the sales of such produce are used only for charitable 
purposes;
    (ii) The organization or subdivision, itself, operates the land; and
    (iii) No part of the net earnings of the organization or subdivision 
accrues to the benefit of any private shareholder or individual.
    (2) If Reclamation determines that a religious or charitable 
organization or any of its subdivisions does not meet the criteria 
listed in paragraph (b)(1) of this section, then:
    (i) If the central organization has not met the criteria, 
Reclamation will treat the entire organization, including all 
subdivisions, as a single entity; or
    (ii) If a subdivision has not met the criteria, only that 
subdivision and any subdivisions of it will be treated as a single 
entity and not the central organization or other subdivisions of the 
central organization; and
    (iii) In order to ascertain the acreage limitation status, 
Reclamation determines the total number of members in both the 
organization that has not met the criteria and in any subdivisions that 
are under that organization. If Reclamation determines that total number 
equals:
    (A) More than 25 members, then Reclamation treats that organization 
and every subdivision under that organization as a single legal entity 
with a limited recipient status; or
    (B) 25 members or less, then Reclamation treats that organization 
and every subdivision under that organization as a single legal entity 
with a qualified recipient status.
    (c) Acreage limitation status of prior law religious or charitable 
organizations or subdivisions. (1) Religious or charitable organizations 
and each of their subdivisions are treated as separate prior law 
corporations, if neither the district nor that religious or charitable 
organization or its subdivisions elect to conform to the discretionary 
provisions.
    (2) Reclamation will treat the entire organization, including all 
subdivisions, as a single prior law corporation, if the central 
organization or any subdivisions do not meet the criteria specified in 
paragraph (b)(1) of this section.
    (d) Affiliated farm management between a religious or charitable 
organization and a more central organization of the same

[[Page 697]]

affiliation. Reclamation permits a subdivision of a religious or 
charitable organization to retain its status as an individual entity 
while cooperating with a more central organization of the same 
affiliation in farm operation and management. Reclamation permits 
affiliated farm management regardless of whether the subdivision is the 
owner of the land being operated.



Sec. 426.10  Public entities.

    (a) Application of the acreage limitation provisions to public 
entities. Reclamation does not subject public entities to the acreage 
limitation provisions of Federal reclamation law with respect to land 
that Reclamation determines public entities farm primarily for 
nonrevenue producing functions. However, public entities are required to 
meet certification and reporting requirements as specified in Sec. 
426.18.
    (b) Sale of public land. Reclamation does not require public 
entities to seek price approval before they sell nonexempt lands. Once 
sold, Reclamation can make irrigation water available to such land if 
the purchaser meets RRA eligibility requirements.
    (c) Leasing of public land. Public entities can lease irrigation 
land that they own or control to eligible landholders. Land leased from 
a public entity counts towards the lessee's ownership and nonfull-cost 
entitlement.



Sec. 426.11  Class 1 equivalency.

    (a) General application. Class 1 equivalency determinations will 
establish, on a district-wide basis, the acreage of land with lower 
productive potential (Classes 2, 3, and 4) that would be equivalent in 
productive potential to the most suitable land (Class 1) in the local 
agricultural economic setting.
    (1) Reclamation establishes equivalency factors by comparing the 
weighted average farm size required to produce a given level of income 
on each of the lower classes of land with the farm size required to 
produce that income level on Class 1 land.
    (2) For equivalency purposes, Reclamation will classify all 
irrigable land as Class 1, 2, or 3; no other classifications are 
permissible for irrigable land. Class 4 and special-use land classes 
will be allocated to one of these three classes on a case-by-case basis.
    (3) Once the Class 1 equivalency determinations have been made, 
individual landowners with land classified as 2 or 3 for equivalency 
purposes will have the right to adjust their actual landholding acreage 
to its Class 1 equivalent acreage.
    (4) In a district subject to prior law, Class 1 equivalency can be 
applied only to landholders who are subject to the discretionary 
provisions.
    (5) Requests for equivalency determinations will be scheduled by 
region, with the regional director of each Reclamation region having 
responsibility for such scheduling. Generally, requests will be honored 
on a first-come-first-served basis. However, if requests exceed the 
region's ability to fulfill them expeditiously, priority will be given 
on the basis of greatest immediate need.
    (b) Who may request a Class 1 equivalency determination? Only 
districts may request Class 1 equivalency determinations. Upon the 
request of any district subject to the acreage limitation provisions, 
Reclamation will make a Class 1 equivalency determination for that 
district. Equivalency determinations can be made only on a district-wide 
basis.
    (c) Definition of Class 1 land. Class 1 land is defined and will be 
classified as that irrigable land within a particular agricultural 
economic setting that:
    (i) Most completely meets the various parameters and specifications 
established by Reclamation for irrigable land classes;
    (ii) Has the relatively highest level of suitability for continuous, 
successful irrigation farming; and
    (iii) Is estimated to have the highest relative productive potential 
measured in terms of net income per acre (reflecting both productivity 
and costs of production). The equivalency analysis will establish the 
acreage of each of the lower classes of land which is equal in 
productive potential (measured in terms of net farm income) to 1 acre of 
Class 1 land.
    (2) All land that Reclamation has not classified, or for which 
Reclamation has not yet performed the necessary economic studies, will 
be considered

[[Page 698]]

Class 1 land for the purposes of determining entitlements under these 
rules until such time as the necessary classifications or studies have 
been completed.
    (d) Determination of land classes. The extent and location of Class 
1 land and land in lower land classes in a district have been, or will 
be, determined by Reclamation.
    (1) Reclamation will take into account the influence of economic and 
physical factors upon the productive potential of the land lying within 
the district. These factors will include, but are not limited to the 
following and their effect on agricultural practices:
    (i) The physical and chemical characteristics of the soil;
    (ii) Topography;
    (iii) Drainage status;
    (iv) Costs of production;
    (v) Land development costs;
    (vi) Water quality and adequacy;
    (vii) Elevation;
    (viii) Crop adaptability; and
    (ix) Length of growing season.
    (2) Acceptable levels of detail for land classification studies to 
be utilized in making Class 1 equivalency determinations for a given 
district will be evaluated on the basis of the physical and agricultural 
economic characteristics of the area. For districts where the sole 
purpose of the land classification study is for a Class 1 equivalency 
determination, the level of detail of the land classification to be made 
will never be greater than that required to make a Class 1 equivalency 
determination.
    (3) Reclamation will pay for at least a portion of the costs 
associated with the land classification study. The amount to be paid by 
Reclamation will be determined as follows:
    (i) Reclamation has provided basic land classification data as part 
of the project development process since 1924. Accordingly, if 
Reclamation determines that acceptable land classification data are not 
available for making requested Class 1 equivalency determinations and if 
the project was authorized for construction since 1924, such data will 
be made available at Reclamation's expense; or
    (ii) For each district located in projects authorized for 
construction prior to 1924, Reclamation will pay 50 percent of the costs 
and the district must pay 50 percent of the costs of new land 
classification studies required to make accurate Class 1 equivalency 
determinations.
    (4) When basic land classification data are available for a 
district, but the district does not agree with the accuracy or asserts 
that the data have become outdated, the district may request, and 
Reclamation may perform, a reclassification under the authority 
contained in the Reclamation Project Act of 1939 (43 U.S.C. 485), with 
the following conditions:
    (i) The requesting district will pay 50 percent of the costs of 
performing such reclassifications and 100 percent of the costs of all 
other studies involved in the equivalency process; and
    (ii) The results of such reclassifications will be binding upon the 
requesting district and Reclamation.
    (e) Additional studies required for Class 1 equivalency 
determinations. Economic studies related to Class 1 equivalency 
determinations will measure net farm income by land classes within the 
district.
    (1) Net farm income will be determined by considering the disposable 
income accruing to the farm operator's labor, management, and equity 
from the sale of farm crops and livestock produced on irrigated land, 
after all fixed and variable costs of production, including costs of 
irrigation service, are accounted for.
    (2) Net farm income will be the measure of productivity to establish 
equivalency factors reflecting the acreage of each of the lower classes 
of land which is equal in productive potential to 1 acre of Class 1 
land.
    (3) The cost of performing new or additional economic studies and 
computations inherent in the equivalency process will be the 
responsibility of the requesting district.
    (f) Use of Class 1 equivalency with the acreage limitation 
provisions. Class 1 land and land in lower classes will be identified on 
a district basis by Reclamation using a standard approach in which the 
land classification for the entire district is considered. Equivalency 
factors will then be computed for the district and applied to specific

[[Page 699]]

tracts within individual landholdings. If adequate land classification 
data are not available, they will be developed as specified in paragraph 
(d) of this section using standard procedures established by 
Reclamation.
    (1) For purposes of ownership entitlement, Class 1 equivalency will 
not be applied until a final determination has been made by Reclamation 
concerning the district's request for equivalency.
    (i) Reclamation will protect excess landowners' property interests 
by ensuring that equivalency determinations are completed in advance of 
maturity dates on recordable contracts, provided the district requests 
an equivalency determination at least 6 months prior to the maturity of 
the recordable contract, the district fulfills its obligations under 
this section, and the district notifies Reclamation 6 months in advance 
of the maturity dates for the need for an expedited review.
    (ii) Once the determination has been made, owners of land subject to 
recordable contracts may withdraw land from such recordable contracts in 
order to reach their ownership entitlement in Class 1 equivalent 
acreage.
    (iii) The requirement that land under recordable contract be sold at 
a price approved by Reclamation does not apply to land which is 
withdrawn from a recordable contract and included as part of a 
landowner's nonexcess landholding as a result of an equivalency 
determination.
    (iv) In cases of equivalency determination disputes, Reclamation 
will not undertake the sale of the reasonable increment of the excess 
land under a matured recordable contract which could be affected by a 
reclassification, provided the dispute is determined by Reclamation not 
to be an attempt to thwart the sale of excess land.
    (2) For purposes of nonfull-cost entitlement, Class 1 equivalency 
will not be applied until a final determination has been made by 
Reclamation on a district's request for equivalency.
    (i) During the time when such determinations are pending, the full-
cost rate will be assessed based on a landholder's nonfull-cost 
entitlement as determined in the absence of Class 1 equivalency.
    (ii) Following Reclamation's final determination, Reclamation will 
reimburse the district for any full-cost charges that would not have 
been assessed had Class 1 equivalency been in place from the date of the 
district's request. Districts will return such reimbursements to the 
appropriate landholders.
    (3) A landholder with holdings in more than one district is entitled 
to equivalency only in those districts which have requested equivalency 
(or are already subject to equivalency). That part of the landholding in 
a district or districts not requesting equivalency will be counted as 
Class 1 land for purposes of overall entitlement.
    (g) Prior equivalency determinations. In districts where equivalency 
was a provision of project authorization, those equivalency factor 
determinations will be honored as originally calculated unless the 
district requests a reclassification.



Sec. 426.12  Excess land.

    (a) The process of designating excess and nonexcess land. If a 
landowner owns more land than the landowner's ownership entitlement, all 
of the landowner's nonexempt land must be designated as excess and 
nonexcess as follows:
    (1) The landowner designates which land is excess and which is 
nonexcess in accordance with the instructions on the appropriate 
certification or reporting forms; or
    (2) If a landowner fails to designate his or her land as excess or 
nonexcess on the appropriate certification or reporting forms:
    (i) And all of the landowner's nonexempt land is in only one 
district:
    (A) If the district's contract with Reclamation includes designation 
procedures, then the land is designated according to those procedures; 
or
    (B) If the district's contract with Reclamation does not include 
designation procedures, then:
    (1) Reclamation will notify the landowner and the district that the 
landowner must designate the land as excess and nonexcess on the 
appropriate certification or reporting forms within 30-calendar days of 
the notification;
    (2) If the landowner fails to make the designation within 30-
calendar days of

[[Page 700]]

notification, the district will make the designation within 30-calendar 
days thereafter; or
    (3) If the district does not make the designation within its 30-
calendar days, Reclamation will make the designation; or
    (ii) If the landowner owns nonexempt land in more than one district, 
then Reclamation will notify the landowner and the districts that the 
landowner has 60-calendar days from the date of notification to make the 
designation. If the landowner does not make the designation in the 60-
calendar days, Reclamation will make the designation.
    (b) Changing excess and nonexcess land designations. (1) Landowners 
must file with the district(s) in which the land is located and with 
Reclamation the designation of excess and nonexcess land. The 
designation of land as excess is binding on the land. However, the 
landowner may change the designation under the following circumstances 
without Reclamation's approval if:
    (i) The excess land becomes eligible to receive irrigation water 
because the landowner becomes subject to the discretionary provisions as 
provided in Sec. 426.3;
    (ii) A recordable contract is amended to remove excess land when the 
landowner's entitlement increases because the landowner becomes subject 
to the discretionary provisions as provided in paragraph (j)(5) of this 
section; or
    (iii) The excess land becomes eligible to receive irrigation water 
as a result of Class 1 equivalency determinations, as provided in Sec. 
426.11.
    (2) No other redesignation of excess land is allowable without the 
approval of Reclamation in accordance with established Reclamation 
procedures. Reclamation will not approve a redesignation request if:
    (i) The purpose of the redesignation is for achieving, through 
repeated redesignation, an effective farm size in excess of that 
permitted by Federal reclamation law; or
    (ii) The landowner sells some or all of his or her land that is 
currently classified as nonexcess.
    (3) When a redesignation involves an exchange of nonexcess land for 
excess land, a landowner must make an equal exchange of acreage (or 
Class 1 equivalent acreage) through the redesignation.
    (c) Land that becomes excess when a district first contracts with 
Reclamation. (1) If a landowner owned irrigable land on the execution 
date of the district's first water service or repayment contract, and 
the execution date was on or before October 12, 1982, the landowner's 
excess land is ineligible until the landowner:
    (i) Becomes subject to the discretionary provisions and the 
landowner designates the excess land, up to his or her ownership 
entitlement, as nonexcess as provided for in paragraph (b)(1)(i) of this 
section;
    (ii) Places such excess land under a recordable contract, provided 
the period for executing recordable contracts under the district's 
contract has not expired;
    (iii) Sells or transfers such excess land to an eligible buyer at a 
price and on terms approved by Reclamation; or
    (iv) Redesignates the land as nonexcess with Reclamation's approval 
as provided for in paragraph (b)(2) of this section.
    (2) If the landowner owned irrigable land on the execution date of 
the district's first water service or repayment contract and the 
execution date is after October 12, 1982, the landowner's excess land is 
ineligible until the landowner:
    (i) Places such excess land under a recordable contract, provided 
the period for executing recordable contracts under the district's 
contract has not expired;
    (ii) Sells or transfers such excess land to an eligible buyer at a 
price and on terms approved by Reclamation; or
    (iii) Redesignates the land as nonexcess with Reclamation's approval 
as provided for in paragraph (b)(2) of this section.
    (d) Land acquired into excess after the district has already 
contracted with Reclamation. (1) If a landowner acquires land after the 
date the district first entered into a repayment or water service 
contract that was nonexcess to the previous owner and is excess to the 
acquiring landowner, the first repayment or water service contract was 
executed on or before October 12, 1982, and:

[[Page 701]]

    (i) Irrigation water was physically available when the landowner 
acquires such land, then the land is ineligible to receive such water 
until:
    (A) The landowner becomes subject to the discretionary provisions 
and the landowner designates the excess land, up to his or her ownership 
entitlement, as nonexcess as provided for in paragraph (b)(1)(i) of this 
section;
    (B) The landowner sells or transfers such land to an eligible buyer 
at a price and on terms approved by Reclamation;
    (C) The sale from the previous landowner is canceled; or
    (D) The landowner redesignates the land as nonexcess with 
Reclamation's approval as provided for in paragraph (b)(2) of this 
section; or
    (ii) Irrigation water was not physically available when the 
landowner acquired the land, then the land is ineligible to receive 
water until:
    (A) The landowner becomes subject to the discretionary provisions 
and the landowner designates the excess land, up to his or her ownership 
entitlement, as nonexcess as provided for in paragraph (b)(1)(i) of this 
section;
    (B) The landowner sells or transfers the land to an eligible buyer 
at a price and on terms approved by Reclamation;
    (C) The sale from the previous landowner is canceled;
    (D) The landowner places the land under recordable contract when 
water becomes available; or
    (E) The landowner redesignates the land as nonexcess with 
Reclamation's approval as provided for in paragraph (b)(2) of this 
section.
    (2) If a landowner acquires land after the date the district first 
entered into a repayment or water service contract that was nonexcess to 
the previous owner and is excess to the acquiring landowner, the first 
repayment or water service contract was executed after October 12, 1982, 
and:
    (i) Irrigation water was physically available when the landowner 
acquired such land, then the land is ineligible until:
    (A) The landowner sells or transfers the land to an eligible buyer 
at a price and on terms approved by Reclamation;
    (B) The sale from the previous landowner is canceled; or
    (C) The landowner redesignates the land as nonexcess with 
Reclamation's approval as provided for in paragraph (b)(2) of this 
section; or
    (ii) Irrigation water was not physically available when the 
landowner acquired such land, then the land is ineligible to receive 
water until:
    (A) The landowner sells or transfers the land to an eligible buyer 
at a price and on terms approved by Reclamation;
    (B) The sale from the previous landowner is canceled;
    (C) The landowner redesignates the land as nonexcess with 
Reclamation's approval as provided for in paragraph (b)(2) of this 
section; or
    (D) The landowner places the land under recordable contract when 
water becomes available.
    (e) If the status of land is changed by law or regulations. (1) If 
the district had a contract with Reclamation on or before October 12, 
1982, and eligible land became excess because the landowner's 
entitlement changed from being based on a district-by-district basis to 
a westwide basis, then such formerly eligible land is ineligible until:
    (i) The landowner places such land under recordable contract. The 
recordable contract does not need to include the sales price approval 
clause and application of the deed covenant provision will not be 
required; or
    (ii) The landowner sells or transfers such land to an eligible 
buyer. The sales price does not need Reclamation's approval.
    (2) If the district had a contract with Reclamation on or before 
October 12, 1982, and the landowner was a nonresident alien or a legal 
entity not established under State or Federal law, who directly held 
eligible land and such land is no longer eligible to receive water, then 
such formerly eligible land is ineligible until:
    (i) The landowner places such land under recordable contract. The 
recordable contract does not need to include the sales price approval 
clause and application of the deed covenant provision will not be 
required; or
    (ii) The landowner sells or transfers such land to an eligible 
buyer. The

[[Page 702]]

sales price does not need Reclamation's approval.
    (3) If the district first entered a contract with Reclamation after 
October 12, 1982, and land would have been eligible before October 12, 
1982, but is now ineligible because the landowner is a direct landholder 
and either a nonresident alien or a legal entity not established under 
State or Federal law, then such land that would have been eligible 
remains ineligible until:
    (i) If the landowner acquired such land before the date of the 
district's contract:
    (A) The landowner places such land under a recordable contract 
requiring Reclamation sales price approval; or
    (B) Sells or transfers the land to an eligible buyer subject to 
Reclamation sales price approval; or
    (ii) If the landowner acquired such land after the date of the 
district's contract, the landowner sells or transfers such land to an 
eligible buyer subject to Reclamation sales price approval.
    (4) Eligible nonexcess land that is indirectly owned on or before 
December 18, 1996 by a nonresident alien or a legal entity not 
established under State or Federal law, and that becomes ineligible 
because of Sec. 426.8 is ineligible until:
    (i) The landowner places such land under recordable contract. The 
recordable contract does not need to include the sales price approval 
clause and application of the deed covenant provision will not be 
required; or
    (ii) The landowner sells or transfers such land to an eligible 
buyer. The sales price does not need Reclamation's approval.
    (f) Excess land that is acquired without price approval. If a 
landowner acquires land that is subject to Reclamation price approval, 
without obtaining such approval, the land is ineligible to receive water 
until:
    (1) The sales price is reformed to conform to the price approved by 
Reclamation and is eligible to receive irrigation water in the 
landowner's ownership entitlement; or
    (2) Such landowner sells or transfers the land to an eligible buyer 
at a price approved by Reclamation.
    (g) Excess land that is disposed of and subsequently reacquired. 
Districts may not make available irrigation water to excess land 
disposed of by a landholder at a price approved by Reclamation, whether 
or not under a recordable contract, if the landholder subsequently 
becomes a direct or indirect landholder of that land through either a 
voluntary or involuntary action, unless:
    (1) The landholder became or contracted to become a direct or 
indirect landholder of that land prior to December 18, 1996, and the 
land in question is otherwise eligible to receive irrigation water;
    (2) Such land becomes exempt from the acreage limitations of Federal 
reclamation law;
    (3) The landholder pays the full-cost rate for any irrigation water 
delivered to the landholder's formerly excess land that is otherwise 
eligible to receive irrigation water. If a landholder is a part owner of 
a legal entity that becomes the direct or indirect landholder of the 
land in question, then the full-cost rate will be applicable to the 
proportional share of irrigation water delivered to the land that 
reflects the part owner's interest in that legal entity; or
    (4) The deed covenant associated with the sale has expired as 
provided for in paragraph (i) of this section.
    (h) Application of the compensation rate for irrigating ineligible 
excess land with irrigation water. Reclamation will charge the following 
for irrigation water delivered to ineligible excess land in violation of 
Federal reclamation law and these regulations:
    (1) The appropriate compensation rate for irrigation water 
delivered; and
    (2) any other applicable fees as specified in Sec. 426.20.
    (i) Deed covenants. (1) All land that is acquired from excess status 
after October 12, 1982, must have the following covenant (that runs with 
the land) placed in the deed transferring the land to the acquiring 
party in order for the land to be eligible to receive irrigation water 
except as otherwise specified in these regulations. The covenant must be 
in the deed regardless of whether or not the land was under recordable 
contract.

    This covenant is to satisfy the requirements in 209(f)(2) of Pub. L. 
97-293 (43 U.S.C 390, et seq.). This covenant expires on (date)

[[Page 703]]

. Until the expiration date specified herein, sale price approval is 
required on this land. Sale by the landowner and his or her assigns of 
these lands for any value that exceeds the sum of the value of newly 
added improvements plus the value of the land as increased by the market 
appreciation unrelated to the delivery of irrigation water will result 
in the ineligibility of this land to receive Federal project water, 
provided however:
    (i) The terms of this covenant requiring price approval shall not 
apply to this land if it is acquired into excess status pursuant to a 
bona fide involuntary foreclosure or similar involuntary process of law, 
conveyance in satisfaction of a debt (including, but not limited to, a 
mortgage, real estate contract, or deed of trust), inheritance, or 
devise (hereinafter Involuntary Conveyance). Thereafter, this land may 
be sold to a landholder at its fair market value without regard to any 
other provision of the Reclamation Reform Act of 1982 enacted on October 
12, 1982, (43 U.S.C. 390aa et seq.), or to Section 46 of the Act 
entitled ``an Act to adjust water rights charges, to grant certain 
relief on the Federal irrigation projects, and for other purposes,'' 
enacted May 25, 1926 (43 U.S.C. 423e);
    (ii) If the status of this land changes from nonexcess into excess 
after a mortgage or deed of trust in favor of a lender is recorded and 
the land is subsequently acquired by a bona fide Involuntary Conveyance 
by reason of a default under that loan, this land may thereupon or 
thereafter be sold to a landholder at its fair market value;
    (iii) The terms of this covenant requiring price approval shall not 
apply to the sales price obtained at the time of the Involuntary 
Conveyances described in subparagraphs (i) and (ii), nor to any 
subsequent voluntary sales by a landholder of this land after the 
Involuntary Conveyances or any subsequent Involuntary Conveyance;
    (iv) Upon the completion of an Involuntary Conveyance, Reclamation 
shall reconvey or otherwise terminate this covenant of record;
    (v) However, the deed covenant shall not be reconveyed or otherwise 
terminated if the involuntarily acquiring landowner is the landowner who 
sold this land from excess status, unless that landowner is a financial 
institution as defined in Sec. 426.14(a) of the Acreage Limitation 
Rules and Regulations (43 CFR Part 426); and
    (vi) The party whose excess ownership originally required the 
placement of this covenant may not receive Federal reclamation project 
irrigation water on the land subject to this covenant as a direct or 
indirect landowner or lessee, unless an exception provided for in Sec. 
426.12(g) is met.

    Note 1 Clauses (v) and (vi) of this covenant shall only be required 
on those covenants placed in deeds transferring land after January 1, 
1998.
    Note 2 The date that the covenant expires shall be 10 years from the 
date the land was first transferred from excess to nonexcess status.

    (2) A landholder may purchase or otherwise voluntarily acquire into 
nonexcess status, land subject to a deed covenant, at a price approved 
by Reclamation if the land is within the landholder's ownership 
entitlement.
    (3) Upon expiration of the terms of the deed covenant, a landowner 
may resell such land at fair market value. A landowner may not sell more 
of such land in his or her lifetime than an amount equal to his or her 
ownership entitlement. Once the landowner reaches this limit, any 
additional excess land or land subject to a deed covenant the landowner 
acquires is ineligible to receive irrigation water, until such land is 
sold to an eligible buyer at a price approved by Reclamation.
    (4) If a landholder acquires land burdened by such a deed covenant 
through involuntary foreclosure or similar involuntary process of law, 
conveyance in satisfaction of a debt, including, but not limited to, a 
mortgage, real estate contract, or deed of trust, inheritance, or 
devise, and is not the party whose excess ownership originally required 
placement of the deed covenant, then Reclamation must terminate the deed 
covenant upon the landholder's request. The provisions in paragraph 
(i)(1)(v) of this section and Sec. 426.14(e) address termination of 
deed covenants for landholders whose excess ownership originally 
required placement of the deed covenant.
    (j) Recordable contracts--(1) Qualifications for recordable 
contracts. A landowner can make excess land eligible to receive 
irrigation water by entering into a recordable contract with the United 
States if the landowner qualifies under applicable provisions of:
    (i) The district's contract with Reclamation;
    (ii) Federal reclamation law; and
    (iii) These regulations.
    (2) Clauses to be included in recordable contracts. A recordable 
contract must include:
    (i) A clause whereby the landowner agrees to dispose of the excess 
land to an eligible buyer, excluding mineral rights and easements, under 
terms and

[[Page 704]]

conditions of the sale, in accordance with Sec. 426.13; and within the 
period allowed for the disposition of excess land, that must be within 5 
years from the date that the recordable contract is executed by 
Reclamation (except for the Central Arizona Project wherein the time 
period is 10 years from the date water becomes available to the land); 
and
    (ii) A clause granting power of attorney to Reclamation to sell the 
land held under the recordable contract, if the landholder has not 
already sold the land by the recordable contract's maturation.
    (3) Date Reclamation can make irrigation water available. 
Reclamation can make available irrigation water to land that the 
landowner plans to place under a recordable contract on the day that 
Reclamation receives the landowner's written request to execute a 
recordable contract. The landowner has 20-working days in which to 
execute the recordable contract from the date Reclamation sends the 
recordable contract to the landowner. Reclamation, in its discretion, 
may extend this period upon the landowner's request.
    (4) Water rate. The rate for irrigation water delivered to land 
placed under recordable contract will be determined as follows:
    (i) If both the landowner and any lessee are prior law recipients, 
land placed under a recordable contract can receive irrigation water at 
a contract rate that does not cover full operation and maintenance (O&M) 
costs;
    (ii) If either landowner or any lessee is subject to the 
discretionary provisions, the water rate applicable to the recordable 
contract must cover, at a minimum, all O&M costs; or
    (iii) If a landholder leases land subject to a recordable contract 
and is in excess of his or her nonfull-cost entitlement, the lessee may 
select such land as the land on which the full-cost rate will be charged 
for the delivery of irrigation water, unless the land is already subject 
to the full-cost rate because of an extended recordable contract.
    (5) Amending a recordable contract to include less acreage. (i) 
Reclamation permits a landowner to amend a recordable contract to 
transfer land out of a recordable contract to nonexcess status, if:
    (A) The landowner has an increased ownership entitlement because of 
becoming subject to the discretionary provisions; or
    (B) Land becomes eligible by implementation of Class 1 equivalency, 
if the landowner amends the recordable contract prior to performance of 
appraisal.
    (ii) Landholders must receive Reclamation's approval to amend 
recordable contracts.
    (A) The disposition period for any land remaining under a recordable 
contract will not change because of an amendment to remove some land.
    (B) For land removed from a recordable contract based on paragraph 
(j)(5)(i) of this section, any requirement for application of a deed 
covenant will no longer be applicable.
    (6) Sale of land by Reclamation. If the landowner does not dispose 
of the excess land held under recordable contract within the period 
specified in the recordable contract, Reclamation will sell that land. 
Reclamation will not sell the land if the landowner complies with all 
requirements for sale of excess land under these rules within the period 
specified, regardless if Reclamation gives final approval of the sale 
within that period or after.
    (7) Delivery of water when a recordable contract has matured. 
Reclamation can make available irrigation water at the current 
applicable rate, pursuant to paragraph (j)(4) of this section, to excess 
land held under a matured recordable contract until Reclamation sells 
the land.
    (8) Procedures Reclamation follows in selling excess land. If 
Reclamation must sell excess land, the following procedures will be 
used:
    (i) If Reclamation determines it to be necessary, a qualified 
surveyor will make a land survey. The United States will pay for the 
survey initially, but such costs will be added to the approved sales 
price for the land. The United States will be reimbursed for these costs 
from the sale of the land;
    (ii) Reclamation will appraise the value of the excess land, in the 
manner prescribed by Sec. 426.13, to determine the appropriate sales 
price. The United

[[Page 705]]

States will pay for the appraisal initially, but such costs will be 
added to the approved sales price for the land. The United States will 
be reimbursed for these costs from the sale of the land; and
    (iii) Reclamation will advertise the sale of the property in farm 
journals and in newspapers within the county in which the land lies, and 
by other public notices as deemed advisable. The United States will pay 
for the advertisements and notices initially, but such costs will be 
added to the approved sales price for the land. The United States will 
be reimbursed for these costs from the sale of the land. The notices 
must state:
    (A) The minimum acceptable sales price for the property (which 
equals the appraised value plus the cost of the appraisal, survey, and 
advertising);
    (B) That Reclamation will sell the land by auction for cash, or on 
terms acceptable to the landowner, to the highest eligible bidder whose 
bid equals or exceeds the minimum acceptable sales price; and
    (C) The date of the sale (which must not exceed 90 calendar days 
from the date of the advertisement and notices);
    (iv) The proceeds from the sale of the land will be paid:
    (A) First, to the landowner in the amount of the appraised value;
    (B) Second, to the United States for costs of the survey, appraisal, 
advertising, etc.; and
    (C) Third, any remaining proceeds will be credited to the 
Reclamation fund or other funds as prescribed by law; and
    (v) Reclamation will close the sale of the excess land when parties 
complete all sales arrangements. Reclamation will execute a deed 
conveying the land to the purchaser. Reclamation will not require the 
purchaser to include a covenant in the deed, as specified in paragraph 
(i) of this section, that restricts any further resale of the land.



Sec. 426.13  Excess land appraisals.

    (a) When does Reclamation appraise the value of a landowner's land? 
Reclamation appraises excess land or land burdened by a deed covenant 
upon a landowner's request or when required by Reclamation. If a 
landowner does not request an appraisal within 6 months of the maturity 
date of a recordable contract, Reclamation, in its discretion, can 
initiate the appraisal.
    (b) Procedures Reclamation uses to determine the sale price of 
excess land or land burdened by a deed covenant. Reclamation complies 
with the following procedures to determine the sale price of excess land 
and land burdened by a deed covenant, except if a landholder owns land 
subject to a recordable contract that was in force on October 12, 1982, 
or other pertinent contract that was in force on that date, and these 
regulations would be inconsistent with provisions in such a contract:
    (1) Appraisals of land. Reclamation will base all appraisals of land 
on the fair market value of the land at the time of appraisal without 
reference to the construction of the irrigation works. Reclamation must 
use standard appraisal procedures including: the income, comparable 
sales, and cost methods, as applicable. Reclamation will consider 
nonproject water supply factors as provided in paragraph (c)(1) of this 
section as appropriate; and
    (2) Appraisal of improvements to land. Reclamation will assess the 
contributory fair market value of improvements to land, as of the date 
of appraisal, using standard appraisal procedures.
    (c) Appraisals of nonproject water supplies. (1) The appraiser will 
consider nonproject water supply factors, where appropriate, including:
    (i) Ground water pumping lift;
    (ii) Surface water supply;
    (iii) Water quality; and
    (iv) Trends associated with paragraphs (c)(1) (i) through (iii) of 
this section, where appropriate.
    (2) Reclamation will develop the nonproject water supply and trend 
information with the assistance of:
    (i) The district in which the land is located, if the district 
desires to participate;
    (ii) Landowners of excess land or land burdened by a deed covenant 
and prospective buyers who submit information either to the district or 
Reclamation; and
    (iii) Public meetings and forums, at the discretion of Reclamation.
    (3) Data submitted may include:

[[Page 706]]

    (i) Historic geologic data;
    (ii) Changing crops and cropping patterns; and
    (iii) Other factors associated with the nonproject water supply.
    (4) If Reclamation and the district cannot reach agreement on the 
nonproject water supply information within 60-calendar days, Reclamation 
will review and update the trend information as it deems necessary and 
make all final determinations considering the data provided by 
Reclamation and the district. Reclamation will provide these data to the 
appraisers who must consider the data in the appraisal process, and 
clearly explain how they used the data in the valuation of the land.
    (d) The date of the appraisal. The date of the appraisal will be the 
date of last inspection by the appraiser(s) unless there is a prior 
signed instrument, such as an option, contract for sale, agreement for 
sale, etc., affecting the property. In those cases, the date of 
appraisal will be the date of such instrument.
    (e) Cost of appraisal. If the appraisal is:
    (1) The land's first appraisal, the United States will initially pay 
the costs of appraising the value of the land, but such costs will be 
added to the approved sale price for the land. The United States will 
reimburse itself for these costs from the sale of the land;
    (2) Not the land's first appraisal, the landowner requesting the 
appraisal must pay any costs associated with the reappraisal, unless the 
value set by the reappraisal differs by more than 10 percent, in which 
case the United States will pay for the reappraisal; or
    (3) Associated with a sales price reformation as specified in Sec. 
426.12(f)(1), the landowner requesting the appraisal must pay any costs 
associated with the appraisal.
    (f) Appraiser selection. Reclamation will select a qualified 
appraiser to appraise the excess land or land burdened by a deed 
covenant, except as specified within paragraph (g) of this section.
    (g) Appraisal dispute resolution. The landowner who requested the 
appraisal may request that the United States conduct a second appraisal 
of the excess land or land burdened by a deed covenant if the landowner 
disagrees with the first appraisal. The second appraisal will be 
prepared by a panel of three qualified appraisers, one designated by the 
United States, one designated by the district, and the third designated 
jointly by the first two. The appraisal made by the panel will fix the 
maximum value of the excess land and will be binding on both parties 
after review and approval as provided in paragraph (h) of this section.
    (h) Review of appraisals of excess land or land burdened by a deed 
covenant. Reclamation will review all appraisals of excess land or land 
burdened by a deed covenant for:
    (1) Technical accuracy and compliance with these rules and 
regulations;
    (2) Applicable portions of the ``Uniform Appraisal Standards for 
Federal Land Acquisition-Interagency Land Acquisition Conference 1973,'' 
as revised in 1992;
    (3) Reclamation policy; and
    (4) Any detailed instructions provided by Reclamation setting 
conditions applicable to an individual appraisal.



Sec. 426.14  Involuntary acquisition of land.

    (a) Definitions for purposes of this section. Financial institution 
means a commercial bank or trust company, a private bank, an agency or 
branch of a foreign bank in the United States, a thrift institution, an 
insurance company, a loan or finance company, or the Farm Credit System.
    Involuntarily acquired land means land that is acquired through an 
involuntary foreclosure or similar involuntary process of law, 
conveyance in satisfaction of a debt (including, but not limited to, a 
mortgage, real estate contract or deed of trust), inheritance, or 
devise.
    (b) Ineligible excess land that is involuntarily acquired. 
Reclamation cannot make available irrigation water to land that was 
ineligible excess land before the new landowner involuntarily acquired 
it, unless:
    (1) The land becomes nonexcess in the new landowner's ownership; and
    (2) The deed to the land contains the 10-year covenant requiring 
Reclamation sale price approval, and that deed

[[Page 707]]

commences when the land becomes eligible to receive irrigation water.
    (3) If either of these conditions is not met, the land remains 
ineligible excess until sold to an eligible buyer at an approved price, 
and the seller places the 10-year covenant requiring Reclamation price 
approval, as specified in Sec. 426.12(i), in the deed transferring 
title to the land to the buyer.
    (c) Land that was held under a recordable contract and is acquired 
involuntarily. Reclamation can make available irrigation water to land 
held under a recordable contract that is involuntarily acquired under 
the terms of the recordable contract to the extent the land continues to 
be excess in his or her landholding, if the landowner:
    (1) Assumes the recordable contract; and
    (2) Executes an assumption agreement provided by Reclamation.
    (3) This land will remain eligible to receive irrigation water for 
the longer of 5 years from the date that the land was involuntarily 
acquired, or for the remainder of the recordable contract period. The 
sale of this land shall be under terms and conditions set forth in the 
recordable contract and must be satisfactory to and at a price approved 
by Reclamation.
    (d) Mortgaged land. Reclamation treats mortgaged land that changed 
from nonexcess status to excess status after the mortgage was recorded, 
and which is subsequently acquired by a lender through an involuntary 
foreclosure or similar process of law, or by a bona fide conveyance in 
satisfaction of a mortgage, in the following manner:
    (1) If the new landowner designates the land as excess in his or her 
holding, then:
    (i) The land is eligible to receive irrigation water for a period of 
5 years or until transferred to an eligible landowner, whichever occurs 
first;
    (ii) During the 5-year period Reclamation will charge a rate for 
irrigation water equal to the rate paid by the former owner, unless the 
land becomes subject to full-cost pricing through leasing; and
    (iii) The land is eligible for sale at its fair market value without 
a deed covenant restricting its future sales price; or
    (2) If the new landowner is eligible to designate the land as 
nonexcess and he or she designates the land as nonexcess, the land will 
be treated in the same manner as any other nonexcess land and will be 
eligible for sale at its fair market value without a deed covenant 
restricting its future sales price.
    (e) Nonexcess land that becomes excess when acquired involuntarily. 
(1) Reclamation can make irrigation water available for a period of 5 
years to a landowner who involuntarily acquires land that becomes excess 
in the involuntarily acquiring landowner's holding provided the land was 
nonexcess to the previous owner and:
    (i) The acquiring landowner never previously held such land as 
ineligible excess land or under a recordable contract;
    (ii) The acquiring landholder is a financial institution; or
    (iii) The acquiring landowner previously held the land as ineligible 
excess or under a recordable contract and Sec. 426.12(g)(1), (3), or 
(4) applies.
    (2) The following will be applicable in situations that meet the 
criteria specified under paragraph (e)(1) of this section:
    (i) Reclamation will charge a rate for irrigation water delivered to 
such land equal to the rate paid by the former owner, except Reclamation 
will charge the full-cost rate if:
    (A) The land becomes subject to full-cost pricing through leasing; 
or
    (B) If the involuntarily acquired land is eligible to receive 
irrigation water only because Sec. 426.12(g)(3) applies and the deed 
covenant has not expired;
    (ii) The new landowner may not place such land under a recordable 
contract;
    (iii) The new landowner may request that Reclamation remove a deed 
covenant as provided in Sec. 426.12(i)(4), and may sell such land at 
any time without price approval and without the deed covenant. However, 
the deed covenant will not be removed and the terms of the deed covenant 
will be fully applied if the new landowner is the landowner who sold the 
land in question from excess status, except for:
    (A) Financial institutions; or

[[Page 708]]

    (B) Landowners for which Sec. 426.12(g) (1) or (2) apply; and
    (iv) Such land will become ineligible to receive irrigation water 5 
years after it was acquired and will remain ineligible until sold to an 
eligible buyer or redesignated as provided for in paragraph (f) of this 
section.
    (f) Redesignation of excess land to nonexcess. Landholders who 
designate involuntarily acquired land as excess as provided for in 
paragraphs (d)(1) and (e)(1) of this section and want to redesignate the 
land as nonexcess, must utilize the redesignation process specified 
under Sec. 426.12(b)(2).
    (1) However, such redesignations will not be approved if the water 
rate specified in paragraphs (d)(1)(ii) or (e)(2)(i) of this section is 
less than what would have been charged for water deliveries to the land 
in question if the landholder that involuntarily acquired the land had 
originally designated the land as nonexcess.
    (2) Such landholders may utilize the redesignation process, if they 
remit to Reclamation the difference between the rate paid and the rate 
that would have been paid, if the land had been designated as nonexcess 
when involuntarily acquired, for all irrigation water delivered to the 
land in question while the land was designated as excess.
    (g) Effect of involuntarily acquiring land subject to the 
discretionary provisions. A landowner does not automatically become 
subject to the discretionary provisions if the landowner acquires 
irrigation land involuntarily which was formerly subject to the 
discretionary provisions. However, a landholder that is subject to the 
prior law provisions will become subject to the discretionary provisions 
upon involuntarily acquiring land if:
    (1) The land is located in a district that is subject to the 
discretionary provisions;
    (2) The landholder in question will be the direct landowner of the 
land; and
    (3) The landholder in question declares the land as nonexcess.
    (h) Land acquired by inheritance or devise. If a landowner receives 
irrigation land through inheritance or devise, the 5-year eligibility 
period for receiving irrigation water on the newly acquired land per 
paragraphs (c)(3) and (e) of this section begins on the date of the 
previous landowner's death.



Sec. 426.15  Commingling.

    (a) Definition for purposes of this section:
    Commingled water means irrigation water and nonproject water that 
use the same facilities.
    (b) Application of Federal reclamation law and these regulations to 
prior commingling provisions in contracts. If a district entered into a 
contract with Reclamation prior to October 1, 1981, and that contract 
has provisions addressing commingled water situations, those provisions 
stay in effect for the term of that contract and any renewals of it.
    (c) Establishment of new commingling provision in contracts. New, 
amended, or renewed contracts may provide that irrigation water can be 
commingled with nonproject water as follows:
    (1) If the facilities used for the commingling of irrigation water 
and nonproject water are constructed without funds made available 
pursuant to Federal reclamation law, the provisions of Federal 
reclamation law and these regulations will apply only to the landholders 
who receive irrigation water, provided:
    (i) That the water requirements for eligible lands can be 
established; and
    (ii) The quantity of irrigation water to be used is less than or 
equal to the quantity necessary to irrigate eligible lands.
    (2) If the facilities used for commingling irrigation water and 
nonproject water are funded with monies made available pursuant to 
Federal reclamation law, landholders who receive nonproject water will 
be subject to Federal reclamation law and these regulations unless:
    (i) The district collects and pays to the United States an 
incremental fee which reasonably reflects an appropriate share of the 
cost to the Federal Government, including interest, of storing or 
delivering the nonproject water; and
    (ii) The fee will be established by Reclamation and will be in 
addition to the district's obligation to pay for capital, operation, 
maintenance, and replacement costs associated with the facilities 
required to provide the service.

[[Page 709]]

    (3) If paragraphs (c)(2) (i) and (ii) of this section are met, the 
provisions of Federal reclamation law and these regulations will be 
applicable to only those landholders who receive irrigation water. 
Accordingly, the provisions of Federal reclamation law and these 
regulations will not be applicable to landholders who receive nonproject 
water delivered through facilities funded with monies made available 
pursuant to Federal reclamation law if those paragraphs are met.
    (d) When Federal reclamation law and these regulations do not apply. 
Federal reclamation law and these regulations do not apply to 
landholders receiving irrigation water from federally financed 
facilities if the irrigation water is acquired by an exchange and that 
exchange results in no material benefit to the recipient of the 
irrigation water.



Sec. 426.16  Exemptions and exclusions.

    (a) Army Corps of Engineers (Corps) projects. (1) If Reclamation 
determines that land receives its agricultural water from a Corps 
project, Reclamation will exempt that land from specific provisions of 
Federal reclamation law, including the RRA, unless:
    (i) Federal law explicitly designates, integrates, or incorporates 
that land into a Federal Reclamation project; or
    (ii) Reclamation provides project works for the control or 
conveyance of the agricultural water supply from the Corps project to 
that land.
    (2) Upon such determination, Reclamation will:
    (i) Notify the district of its exemption status;
    (ii) Require the district's agricultural water users to continue, 
under contracts made with Reclamation, to repay their share of 
construction, operation and maintenance, and contract administration 
costs of the Corps project allocated to conservation or irrigation 
storage; and
    (iii) At the request of the district delete provisions of the 
district's repayment or water service contract that imposes acreage 
limitation for those lands served by Corps projects.
    (b) Repayment of construction obligations. The acreage limitation 
provisions do not apply to land in a district after the district has 
repaid, in accordance with the district's contract with Reclamation, all 
obligated construction costs for project facilities.
    (1) Payments by periodic installments over the contract repayment 
term, as well as lump-sum and accelerated payments, if allowed by the 
district's contract with Reclamation, will qualify the district to 
become exempt.
    (2) If a district has a contract with the United States providing 
for individual landowner repayment of construction charges allocated to 
land, and the landowner has repaid all obligated construction costs 
allocated for that landowner's land, that landowner will become exempt 
from the acreage limitation provisions.
    (3) Upon payout Reclamation will:
    (i) Notify the district, and individual landowner in cases of 
individual landowner payout, of the exemption from the acreage 
limitation provisions;
    (ii) Notify the district or individual landowner that the exemption 
does not relieve the district or individual landowner of the obligation 
to continue to pay, on an annual basis, O&M costs applicable to the 
district or landowner;
    (iii) Upon request by the owner of land for which repayment has 
occurred, provide a certificate from Reclamation acknowledging that the 
land is free of the acreage limitation provisions of Federal reclamation 
law;
    (iv) Except as provided for in Sec. 426.19(e), no longer apply the 
certification and reporting requirements to the district, if the entire 
district is exempt, or to exempt landowners as specified in paragraph 
(b)(2) of this section; and
    (v) Consider on a case-by-case basis continuation of the exemption 
if additional construction funds for the project are requested.
    (c) Rehabilitation and Betterment loans. If Reclamation makes a 
Rehabilitation and Betterment loan (pursuant to the Rehabilitation and 
Betterment Act of October 7, 1949, as amended, 43 U.S.C. 504) to a 
project that was authorized under Federal reclamation law prior to the 
submittal of the loan request, by or for the district, Reclamation:
    (1) Considers the loan as a loan for maintenance, including 
replacements that cannot be financed currently;

[[Page 710]]

    (2) Does not consider the loan in determining whether the district 
has discharged its obligation to repay the construction cost of project 
facilities used to make irrigation water available for delivery to land 
in the district; and
    (3) Will not allow such a loan to serve as the basis for reinstating 
acreage limitation provisions in a district that has completed payment 
of its construction obligation, nor serve as the basis for increasing 
the construction obligation of the district and thereby extending the 
period during which acreage limitation provisions will apply.
    (d) Temporary supplies of water. If Reclamation announces 
availability of temporary supplies of water resulting from an unusually 
large water supply, not otherwise storable for project purposes, or from 
infrequent and otherwise unmanaged floodflows of short duration a 
district may request that Reclamation make such supplies available to 
excess land. However, such water deliveries must not have an adverse 
effect on other authorized project purposes. Upon approval of the 
district's request, Reclamation will notify the requesting district of 
the availability of the temporary supply of water under the following 
conditions:
    (1) The contract for the temporary supply of water will be for 1 
year or less in accordance with prior policies and practices;
    (2) The acreage limitation provisions will not be applicable to the 
temporary supply of water;
    (3) An applicable price for the water, if any, will be established; 
and
    (4) Such other conditions as Reclamation may include.
    (e) Isolated tracts. If a landowner requests that Reclamation 
determine that portions of his or her owned land are isolated tracts 
that can be farmed economically only if included in a farming operation 
that already exceeds the landowners ownership entitlement, and 
Reclamation makes such a determination, then Reclamation:
    (1) Will exempt such land from the ownership limitations of Federal 
reclamation law; and
    (2) Will assess the full-cost rate for any irrigation water 
delivered to the isolated tract that exceeds the landowner's nonfull-
cost entitlement.
    (f) Indian trust or restricted lands. (1) Indian trust or restricted 
lands are excluded from application of the acreage limitation 
provisions.
    (2) Indian tribes and tribal entities operating on Indian trust or 
restricted lands are excluded from application of the water conservation 
provisions.



Sec. 426.17  Small reclamation projects.

    (a) Effect of the RRA on loan contracts made under the Small 
Reclamation Projects Act. (1) If a district entered into a loan contract 
under the Small Reclamation Projects Act of 1956 (43 U.S.C. 422) (SRPA) 
on or after October 12, 1982, the contract is subject to the provisions 
of the SRPA, as amended by Section 223 of the RRA and as amended by 
Title III of Pub. L. 99-546.
    (2) If a district entered into an SRPA loan contract prior to 
October 12, 1982, and the district:
    (i) Did not amend the loan contract to conform to the SRPA, as 
amended by Section 223 of the RRA, prior to October 27, 1986, then the 
acreage provisions of the contract continue in effect, unless the 
contract is amended to conform to the SRPA as amended by section 307 of 
Pub. L. 99-546.
    (ii) Amended the loan contract to conform to the SRPA, as amended by 
Section 223 of the RRA, prior to October 27, 1986, the contract is 
subject to the increased acreage provisions provided in Section 223 of 
the RRA. Reclamation cannot alter, modify or amend any other provision 
of the SRPA loan contract without the consent of the non-Federal party.
    (b) Other sections of these regulations that apply to SRPA loans. No 
other sections of these regulations apply to SRPA loans, except as 
specified in Sec. 426.3(a)(3)(ii) and paragraph (d) of this section.
    (c) Effect of SRPA loans in determining whether a district has 
repaid its construction obligations on a water service or repayment 
contract. If a district has a water service or repayment contract in 
addition to an SRPA contract, Reclamation does not consider the SRPA 
loan:
    (1) In determining whether the district has discharged its 
construction cost obligation for the project facilities;

[[Page 711]]

    (2) As a basis for reinstating acreage limitation provisions in a 
district that has completed payment of its construction cost 
obligation(s); or
    (3) As a basis for increasing the construction obligation of the 
district and extending the period during which acreage limitation 
provisions will apply to that district.
    (d) Districts that have an SRPA loan contract and a contract as 
defined in Sec. 426.2. If a district has an SRPA loan contract and a 
contract as defined in Sec. 426.2, the SRPA contract does not supersede 
the RRA requirements applicable to such contracts.



Sec. 426.18  Landholder information requirements.

    (a) Definition for purposes of this section:
    Irrigation season means the period of time between the district's 
first and last water delivery in any water year.
    (b) Who must provide information to Reclamation? All landholders and 
other parties involved in the ownership or operation of nonexempt land 
must provide Reclamation, as required by these regulations or upon 
request, any records or information, in a form suitable to Reclamation, 
deemed reasonably necessary to implement the RRA or other provisions of 
Federal reclamation law.
    (c) Required form submissions. (1) Landholders who are subject to 
the discretionary provisions must annually submit standard certification 
forms, except as provided in paragraph (l) of this section.
    (2) Landholders who make an irrevocable election must submit the 
standard certification forms with their irrevocable election in the year 
that they make the election.
    (3) Landholders who are subject to prior law must annually submit 
standard reporting forms, except as provided in paragraph (l) of this 
section.
    (4) Landholders who qualify under an exemption as specified in 
paragraph (g) of this section need not submit any forms.
    (d) Required information. Landholders must declare on the 
appropriate certification or reporting forms all nonexempt land that 
they hold directly or indirectly westwide and other information 
pertinent to their compliance with Federal reclamation law.
    (e) District receipt of forms and information. Landholders must 
submit the appropriate, completed form(s) to each district in which they 
directly or indirectly hold irrigation land.
    (f) Certification or reporting forms for wholly owned subsidiaries. 
The ultimate parent legal entity of a wholly owned subsidiary or of a 
series of wholly owned subsidiaries must file the required certification 
or reporting forms. The ultimate parent legal entity must disclose all 
direct and indirect landholdings of its subsidiaries as required on such 
forms.
    (g) Exemptions from submitting certification and reporting forms. 
(1) A landholder is exempt from submitting the certification and 
reporting forms only if:
    (i) The landholder's district has Category 1 status, as specified in 
paragraph (h) of this section, and the landholder is a:
    (A) Qualified recipient who holds a total of 240 acres westwide or 
less; or
    (B) Limited recipient or a prior law recipient who holds a total of 
40 acres westwide or less.
    (ii) The landholder's district has Category 2 status, as specified 
in paragraph (h) of this section, and the landholder is a:
    (A) Qualified recipient who holds a total of 80 acres westwide or 
less; or
    (B) Limited recipient or a prior law recipient who holds a total of 
40 acres westwide or less.
    (2) A wholly owned subsidiary is exempted from submitting 
certification or reporting forms, if its ultimate parent legal entity 
has properly filed such forms disclosing the landholdings of each of its 
subsidiaries.
    (3) In determining whether certification or reporting is required 
for purposes of this section:
    (i) Class 1 equivalency factors as determined in Sec. 426.11 shall 
not be used; and
    (ii) Indirect landholders need not count involuntarily acquired 
acreage designated as excess by the direct landowner.
    (h) District categorization. (1) For purposes of this section each 
district has Category 2 status, unless the following

[[Page 712]]

criteria have been met. If the district has met both criteria, it will 
be granted Category 1 status.
    (i) The district has conformed by contract to the discretionary 
provisions; and
    (ii) The district is current in its financial obligations to 
Reclamation.
    (2) Reclamation considers a district current in its financial 
obligation if as of September 30, the district is current in its:
    (i) Financial obligations specified in its contract(s) with 
Reclamation; and
    (ii) Payment obligations established by the RRA, and these rules.
    (i) Application of Category 1 status. Once a district achieves 
Category 1 status, it will only be withdrawn if the Regional Director 
determines the district is not current in its financial obligations as 
specified in paragraph (h)(2) of this section. The withdrawal of 
Category 1 status will be effective at the end of the current water year 
and can be restored only as provided under paragraph (h) of this 
section. With the withdrawal of Category 1 status, the district will 
have a Category 2 status.
    (j) Submissions by landholders holding land in both a Category 1 
district and a Category 2 district. If a qualified recipient holds land 
in a Category 1 district, then the 240-acre forms threshold will be 
applicable in determining if the landholder must submit a certification 
form to that Category 1 district. If the same qualified recipient also 
holds land in a Category 2 district, then the 80-acre forms threshold 
will be applicable in determining if the landholder must submit a 
certification form to the Category 2 district.
    (k) Notification requirements for landholders whose ownership or 
leasing arrangements change after submitting forms. If a landholder's 
ownership or leasing arrangements change in any way:
    (1) During the irrigation season, the landholder must:
    (i) Notify the district office, either verbally or in writing within 
30-calendar days of the change; and
    (ii) Submit new forms to all districts in which the landholder holds 
nonexempt land, within 60-calendar days of the change.
    (2) Outside of the irrigation season, then the landholder must 
submit new standard certification or reporting forms to all districts in 
which nonexempt land is held prior to any irrigation water deliveries 
following such changes.
    (l) Notification requirements for landholders whose ownership or 
leasing arrangements have not changed. If a landholder's ownership or 
leasing arrangements have not changed since last submitting a standard 
certification or reporting form, the landholder can satisfy the annual 
certification or reporting requirements by submitting a verification 
form instead of a standard form. On that form the landholder must verify 
that the information contained on the last submitted standard 
certification or reporting form remains accurate and complete.
    (m) Actions taken if required submission(s) is not made. (1) If a 
landholder does not submit required certification or reporting form(s), 
then:
    (i) The district must not deliver, and the landholder is not 
eligible to receive and must not accept delivery of, irrigation water in 
any water year prior to submission of the required certification or 
reporting form(s) for that water year; and
    (ii) Eligibility will be regained only after all required 
certification or reporting forms are submitted by the landholder to the 
district.
    (2) If one or more part owners of a legal entity do not submit 
certification or reporting forms as required:
    (i) The entire entity will be ineligible to receive irrigation water 
until such forms are submitted; or
    (ii) If the documents forming the entity provide for the part 
owners' interest to be separable and alienable, then only that portion 
of the land attributable to the noncomplying part owners will be 
ineligible to receive irrigation water.
    (n) Actions taken by Reclamation if a landholder makes false 
statements on the appropriate certification or reporting forms. If a 
landholder makes a false statement on the appropriate certification or 
reporting form(s) Reclamation can prosecute the landholder pursuant to 
the following statement which

[[Page 713]]

is included in all certification and reporting forms:

    Under the provisions of 18 U.S.C. 1001, it is a crime punishable by 
5 years imprisonment or a fine of up to $10,000, or both, for any person 
knowingly and willfully to submit or cause to be submitted to any agency 
of the United States any false or fraudulent statement(s) as to any 
matter within the agency's jurisdiction. False statements by the 
landowner or lessee will also result in loss of eligibility. Eligibility 
can only be regained upon the approval of the Commissioner.

    (o) Information requirements and Office of Management and Budget 
approval. The information collection requirements contained in this 
section have been approved by the Office of Management and Budget under 
44 U.S.C. 3501 et seq. and assigned control numbers 1006-0005 and 1006-
0006. The information is being collected to comply with Sections 206, 
224(c), and 228 of the RRA. These sections require that, as a condition 
to the receipt of irrigation water, each landholder in a district which 
is subject to the acreage limitation provisions of Federal reclamation 
law, as amended and supplemented by the RRA, will furnish to his or her 
district annually a certificate/report which indicates that he or she is 
in compliance with the provisions of Federal reclamation law. Completion 
of these forms is required to obtain the benefit of irrigation water. 
The information collected on each landholding will be summarized by the 
district and submitted to Reclamation in a form prescribed by 
Reclamation.
    (p) Protection of forms pursuant to the Privacy Act of 1974. The 
Privacy Act of 1974 (5 U.S.C. 552) protects the information submitted in 
accordance with certification and reporting requirements. As a condition 
to execution of a contract, Reclamation requires the inclusion of a 
standard contract article which provides for district compliance with 
the Privacy Act of 1974 and 43 CFR part 2, subpart D, in maintaining the 
landholder certification and reporting forms.



Sec. 426.19  District responsibilities.

    A district that delivers irrigation water to nonexempt land under a 
contract with the United States must:
    (a) Provide information to landholders concerning the requirements 
of Federal reclamation law and these regulations;
    (b) Provide Reclamation, as required by these regulations or upon 
request, and in a form suitable to Reclamation, records and information 
as Reclamation may deem reasonably necessary to implement the RRA and 
other provisions of Federal reclamation law;
    (c) Be responsible for payments to Reclamation of all appropriate 
charges specified in these regulations. Districts must collect the 
appropriate charges from each landholder based on the landholder's 
acreage limitation status, landholdings, and entitlements, and must not 
average the costs over the entire district, unless the charges prove 
uncollectible from the responsible landholders;
    (d) Distribute, collect, and review landholder certification and 
reporting forms;
    (e) File and retain landholder certification and reporting forms. 
Districts must retain superseded landholder certification and reporting 
forms for 6 years; thereafter, districts may destroy such superseded 
forms, except:
    (1) Districts must keep on file the last fully completed standard 
certification or reporting form, in addition to the current verification 
form; or
    (2) If Reclamation specifically requests a district to retain 
superseded forms beyond 6 years.
    (f) Comply with the requirements of the Privacy Act of 1974, with 
respect to landholder certification and reporting forms;
    (g) Annually summarize information provided on landholder 
certification and reporting forms on separate summary forms provided by 
Reclamation and submit these forms to Reclamation on or before the date 
established by the appropriate regional director;
    (h) Withhold deliveries of irrigation water to any landholder not 
eligible to receive irrigation water under the certification or 
reporting requirements or any other provision of Federal reclamation law 
and these regulations; and
    (i) Return to Reclamation, for deposit as a general credit to the 
Reclamation fund, all revenues received

[[Page 714]]

from the delivery of water to ineligible land. For purposes of these 
regulations only, this does not include revenues from any charges that 
may be assessed by the district to cover district operation, 
maintenance, and administrative expenses.



Sec. 426.20  Assessment of administrative costs.

    (a) Assessment of administrative costs for delivery of water to 
ineligible land. Reclamation will assess a district administrative costs 
as described in paragraph (e) of this section if the district delivers 
irrigation water to land that was ineligible because the landholders did 
not submit certification or reporting forms prior to the receipt of 
irrigation water in accordance with Sec. 426.18; or to ineligible 
excess land as provided in Sec. 426.12.
    (1) Reclamation will apply the assessment on a yearly basis in each 
district for each landholder that received irrigation water in violation 
of Sec. 426.18, or for each landholder that received irrigation water 
on ineligible land as specified above.
    (2) In applying the assessment to legal entities, compliance by an 
entity will be treated independently from compliance by its part owners 
or beneficiaries.
    (3) The assessment in paragraph (a) of this section will be applied 
independently of the assessment specified in paragraph (b) of this 
section.
    (b) Assessment of administrative costs when form corrections are not 
made. Reclamation will assess a district for the administrative costs 
described in paragraph (e) of this section, unless the district provides 
Reclamation with requested reporting or certification form corrections 
within 60-calendar days of the date of Reclamation's written request. If 
Reclamation receives the required corrections within this 60-calendar 
day time period, Reclamation will consider the requirements of Sec. 
426.18 satisfied.
    (1) Reclamation will apply the assessment on a yearly basis in each 
district for each landholder that received irrigation water and for whom 
the district does not provide corrected forms within the applicable 60-
calendar day time period.
    (2) In applying the assessment to legal entities, compliance by an 
entity will be treated independently from compliance by its part owners 
or beneficiaries.
    (3) The assessment in paragraph (b) of this section will be applied 
independently of the assessment specified in paragraph (a) of this 
section.
    (c) Party responsible for paying assessments. Districts are 
responsible for payment of Reclamation assessments described under 
paragraphs (a) and (b) of this section.
    (d) Disposition of assessments. Reclamation will deposit to the 
general fund of the United States Treasury, as miscellaneous receipts, 
administrative costs assessed and collected under paragraphs (a) and (b) 
of this section.
    (e) Amount of the assessment. The administrative costs assessment 
required under paragraphs (a) and (b) of this section is set at $260. 
Reclamation will review the associated costs at least once every 5 
years, and will adjust the assessment amount, if needed, to reflect new 
cost data. Notice of the revised assessment for administrative costs 
will be published in the Federal Register in December of the year the 
data are reviewed.



Sec. 426.21  Interest on underpayments.

    (a) Definition of underpayment. For the purposes of this section 
underpayment means the difference between what a landholder owed for the 
delivery of irrigation water under Federal reclamation law and what that 
landholder paid.
    (b) Collection of interest on underpayments. If a landholder has 
incurred an underpayment, Reclamation will collect from the appropriate 
district such underpayment with interest. Interest accrues from the 
original payment due date until the district pays the amount due. The 
original payment due date is the date the district should have paid the 
United States for water delivered to the landholder.
    (c) Underpayment interest rate. The Secretary of the Treasury 
determines the interest rate charged the district based on the weighted 
average yield of all interest-bearing marketable issues sold by the 
Department of the Treasury during the period of underpayment.

[[Page 715]]



Sec. 426.22  Public participation.

    (a) Notification of contract actions. Except for proposed contracts 
having a duration of 1 year or less for the sale of surplus water or 
interim irrigation water, Reclamation will:
    (1) Provide notice of proposed irrigation or amendatory irrigation 
contract actions 60-calendar days prior to contract execution by 
publishing announcements in general circulation newspapers in the 
affected area;
    (2) Issue announcements in the form of news releases, legal notices, 
official letters, memoranda, or other forms of written material; and
    (3) Directly notify individuals and entities who made a timely 
written request for such notice to the appropriate Reclamation regional 
or local office.
    (b) Notification of modification of a proposed contract. In the 
event that modifications are made to a proposed contract the regional 
director must:
    (1) Provide copies of revised proposed contracts to all parties who 
requested copies of the proposed contract in response to the initial 
notice; and
    (2) Determine whether or not to republish the notice or to extend 
the comment period. The regional director must consider, among other 
factors:
    (i) The significance of the impact(s) of the modification to 
possible affected parties; and
    (ii) The interest expressed by the public over the course of 
contract negotiations.
    (c) Information that Reclamation will include in published 
announcements. Each published announcement will include, as appropriate:
    (1) A brief description of the proposed contract terms and 
conditions being negotiated;
    (2) Date, time, and place of meetings, workshops, or hearings;
    (3) The address and telephone number to which inquiries and comments 
may be addressed to Reclamation; and
    (4) The period of time during which Reclamation will accept 
comments.
    (d) Public availability of proposed contracts. Anyone can get copies 
of a proposed contract from the appropriate regional director or his or 
her designated public contact when the proposed contracts become 
available for review and comment, as specified in the published 
announcement.
    (e) Opportunities for public participation. (1) Reclamation can 
provide, as appropriate: meetings, workshops, or hearings to provide 
local information. Advance notice of meetings, workshops, or hearings 
will be provided to those parties who make timely written request for 
such notice. Request for notice of meetings, workshops, or hearings 
should be sent to the appropriate Reclamation regional or local office.
    (2) Reclamation or the district can invite the public to observe any 
contract proceedings.
    (3) All public participation procedures will be coordinated with 
those involved with National Environmental Policy Act compliance, if 
Reclamation determines that the contract action may or will have 
``significant'' environmental effects.
    (f) Individuals authorized to negotiate the terms of contract 
proposals. Only persons authorized to act on behalf of the district may 
negotiate the terms and conditions of a specific contract proposal.
    (g) Agency use of comments submitted during the period provided for 
comment or made at hearings. (1) Reclamation will review and summarize 
for use by the contract approving authority, testimony presented at any 
public hearing or any written comments submitted to the appropriate 
Reclamation officials at locations and within the comment period, as 
specified in the advance published announcement.
    (2) Reclamation will make available to the public all written 
correspondence regarding proposed contracts under the terms and 
procedures of the Freedom of Information Act (5 U.S.C. 552), as amended.



Sec. 426.23  Recovery of operation and maintenance (O&M) costs.

    (a) General. All new, amended, and renewed contracts shall provide 
for payment of O&M costs as specified in this section.
    (b) Amount of O&M costs a district must pay if it executes a new or 
renewed contract. If a district executes a new or renewed contract after 
October 12, 1982, then that district must pay all of the

[[Page 716]]

O&M costs that Reclamation allocates to irrigation.
    (c) Amount of O&M costs a district must pay if it amends its 
contract to conform to the discretionary provisions. If a district has a 
contract executed prior to October 12, 1982, and the district amends the 
contract after October 12, 1982, as provided for in Sec. 426.3(a)(2) to 
conform to the discretionary provisions, then the following applies:
    (1) The district must pay all of the O&M costs that Reclamation 
allocates to irrigation;
    (2) If in the year the amendment is executed, the district's 
contract rate was more than the O&M costs allocated to the district in 
that year then that positive difference at the time of the contract 
amendment must continue to be factored into the contract rate and 
annually paid to the United States. This would be in addition to any 
adjusted O&M cost that results from paragraph (c)(1) of this section. 
The positive difference would be factored into the contract rate for the 
remainder of the term of the contract; and
    (3) The district will not be required to pay an increased amount 
toward the construction costs of a project as a condition of the 
district's agreeing to a contract amendment pursuant to paragraph (c) of 
this section.
    (d) Amount of O&M cost a district must pay if it amends its contract 
to provide supplemental or additional benefits. If a district amends its 
contract after October 12, 1982, to provide supplemental or additional 
benefits, as provided for in Sec. 426.3(a)(3), then the following must 
be complied with:
    (1) The district must pay all of the O&M costs that Reclamation 
allocates to irrigation;
    (2) If in the year the amendment is executed, the district's 
contract rate was more than the O&M costs allocated to the district in 
that year then that positive difference at the time of the contract 
amendment must continue to be factored into the contract rate and 
annually paid to the United States. This would be in addition to any 
adjusted O&M cost that results from paragraph (d)(1) of this section. 
The positive difference would be factored into the contract rate for the 
remainder of the term of the contract; and
    (3) The district must pay any increases in the amount paid annually 
toward the construction costs of a project that the United States 
requires the district to pay as a condition of agreeing to provide the 
district with supplemental and additional benefits.
    (e) Amount of O&M a district pays under a prior contract. For a 
district whose prior contract was executed prior to October 12, 1982, 
the district must pay all of the O&M costs allocated by Reclamation to 
irrigation unless the contract specifically provides contrary terms.
    (f) Amount of O&M that Reclamation charges an irrevocable elector. 
(1) Regardless of any terms to the contrary within a prior contract with 
a district, a landholder who makes an irrevocable election, as provided 
for in Sec. 426.3(f) must pay, annually, his or her proportionate share 
of all O&M costs allocated by Reclamation to irrigation. The irrevocable 
elector's proportionate share is based upon the ratio of:
    (i) The amount of land in the district held by the irrevocable 
elector that received irrigation water to the total amount of land in 
the district that received irrigation water; or
    (ii) The amount of irrigation water in the district received by the 
irrevocable elector to the total amount of irrigation water that the 
district delivered.
    (2) The district(s) where the irrevocable elector's landholding is 
located must collect from the irrevocable elector an amount equal to the 
irrevocable elector's proportionate share of all O&M costs allocated by 
Reclamation to irrigation and the following apply:
    (i) If in the year the election is executed, the district's contract 
rate was more than the O&M costs allocated to the district in that year, 
then that positive difference at the time of the contract amendment must 
continue to be factored into the contract rate. This would be in 
addition to any adjusted O&M cost that results from paragraph (f)(1) of 
this section. The positive difference would be factored into the 
contract rate for the remainder of the term of the contract; and
    (ii) Such collections must be forwarded annually to the United 
States.
    (g) Amount of O&M that Reclamation charges if a landholder is 
subject to full-

[[Page 717]]

cost pricing. In a district subject to prior law, if a landholder is 
subject to full-cost pricing the district must ensure that all O&M costs 
are included in any full-cost assessment, regardless of whether the 
landholder is subject to the discretionary provisions. The revenues from 
such full-cost assessments must be collected and submitted to the United 
States.



Sec. 426.24  Reclamation decisions and appeals.

    (a) Reclamation decisions--(1) Decisionmaker for Reclamation's final 
determinations. The appropriate regional director makes any final 
determination that these regulations require or authorize. If 
Reclamation's final determination is likely to involve districts, or 
landholders with landholdings located in more than one region, the 
Commissioner designates one regional director to make that final 
determination.
    (2) Notice to affected parties. The appropriate regional director 
will transmit any final determination to any district and landholder, as 
appropriate, whose rights and interests are directly affected.
    (3) Effective date for regional director's final determinations. A 
regional director's decisions will take effect the day after the 
expiration of the period during which a person adversely affected may 
file a notice of appeal unless a petition for stay is filed together 
with a timely notice of appeal.
    (b) Appeal of final determinations--(1) Appeal Submittal. Any 
district or landholder whose rights and interests are directly affected 
by a regional director's final determination can submit a written notice 
of appeal. Such notice of appeal must be submitted to the Commissioner 
of Reclamation within 30-calendar days from the date of the regional 
director's final determination.
    (2) Submittal of supporting information. The affected party will 
have 60-calendar days from the date that the regional director issues a 
final determination to submit a supporting brief or memorandum to the 
Commissioner. The Commissioner may extend the time for submitting a 
supporting brief or memorandum, if:
    (i) The affected party submits a request to the Commissioner in a 
timely manner;
    (ii) The request includes the reason why additional time is needed; 
and
    (iii) The Commissioner determines the appellant has shown good cause 
for such an extension and the extension would not prejudice Reclamation.
    (3) Requests for stay of the final determination pending appeal. (i) 
The Commissioner will determine whether to stay a regional director's 
final determination within 30 days after receiving a properly filed 
petition for stay if the requesting party:
    (A) Submits a request for stay in writing to the Commissioner, with, 
or in advance of, the notice of appeal, and states the grounds upon 
which the party requests the stay; and
    (B) Demonstrates that the harm that a district or landholder would 
suffer if the Commissioner does not grant the stay outweighs the 
interest of the United States in having the final determination take 
effect pending appeal.
    (ii) A decision, or that portion of the decision, for which a stay 
is not granted will become effective immediately after the Commissioner 
denies or partially denies the petition for stay, or fails to act within 
30 days after receiving the request.
    (iii) A Commissioner's decision on a petition for a stay or any 
other Commissioner decision is appealable.
    (c) Appeal of Commissioner's decision--(1) Appeal to the Office of 
Hearing and Appeals. A party can appeal the Commissioner's decision to 
the Secretary by writing to the Director, Office of Hearings and Appeals 
(OHA), U.S. Department of the Interior. For an appeal to be timely, OHA 
must receive the appeal within 30-calendar days from the date of mailing 
of the Commissioner's decision.
    (2) Rules that govern appeals to OHA. 43 CFR part 4, subpart G, and 
other provisions of 43 CFR Part 4, where applicable, govern the OHA 
appeal process, except for the accrual of underpayment interest as 
specified in paragraph (e) of this section.
    (d) Effective date of an appeal decision. Reclamation will apply 
decisions made by the Commissioner or by OHA under paragraphs (b) and 
(c) of this section as

[[Page 718]]

of the date of the violation or other problem that was addressed in the 
regional director's final determination. If, during the appeal process, 
irrigation water has been delivered to land subsequently found to be 
ineligible, for other than RRA forms submittal violations, the 
compensation rate may be applied to such deliveries retroactively.
    (e) Accrual of interest on underpayments during appeal. Interest on 
any underpayments, as provided in Sec. 426.21, continues to accrue 
during an appeal of a regional director's final determination, an appeal 
of the Commissioner's decision, or judicial review of final agency 
action. Underpayment interest accrual will continue even during a stay 
under paragraphs (b)(4) or (c)(3) of this section.
    (f) Status of appeals made prior to the effective date of these 
regulations. (1) Appeals to the Commissioner of a regional director's 
final determination which were decided by the Commissioner or his or her 
delegate prior to the effective date of these regulations are hereby 
validated.
    (2) Appeals to the Commissioner of final determinations made by a 
regional director and appeals to OHA, which are pending on appeal as of 
the effective date of these regulations will be processed and decided in 
accordance with the regulations in effect immediately prior to the 
effective date of these regulations.
    (g) Addresses. All requests for stays, appeals, or other 
communications to the United States under this section must be addressed 
as follows:
    (1) Commissioner, Bureau of Reclamation, Office of Policy, 
Attention: D-5200, P.O. Box 25007, Denver, Colorado 80225.
    (2) Director, Office of Hearings and Appeals, Department of the 
Interior, 801 North Quincy Street, Arlington, Virginia 22203.

[61 FR 66805, Dec. 18, 1996, as amended at 67 FR 13702, Mar. 25, 2002]



Sec. 426.25  Reclamation audits.

    Reclamation will conduct reviews of a district's administration and 
enforcement of and landholder compliance with Federal reclamation law 
and these regulations. These reviews may include, but are not limited 
to:
    (a) Water district reviews;
    (b) In-depth reviews; and
    (c) Audits.



Sec. 426.26  Severability.

    If any provision of these regulations or the application of these 
rules to any person or circumstance is held invalid, then the sections 
of these rules or their applications which are not held invalid will not 
be affected.



PART 427_WATER CONSERVATION RULES AND REGULATIONS--Table of Contents



    Authority: 5 U.S.C. 301; 5 U.S.C. 553; 16 U.S.C. 590y et seq.; 31 
U.S.C. 9701; and 32 Stat. 388 and all acts amendatory thereof or 
supplementary thereto including, but not limited to, 43 U.S.C. 390b, 43 
U.S.C. 390jj, 43 U.S.C. 422a et seq., and 43 U.S.C. 523.

    Source: 61 FR 66825, Dec. 18, 1996, unless otherwise noted.



Sec. 427.1  Water conservation.

    (a) In general. The Secretary shall encourage the full consideration 
and incorporation of prudent and responsible water conservation measures 
in all districts and for the operations by non-Federal recipients of 
irrigation and municipal and industrial (M&I) water from Federal 
Reclamation projects.
    (b) Development of a plan. Districts that have entered into 
repayment contracts or water service contracts according to Federal 
reclamation law or the Water Supply Act of 1958, as amended (43 U.S.C. 
390b), shall develop and submit to the Bureau of Reclamation a water 
conservation plan which contains definite objectives which are 
economically feasible and a time schedule for meeting those objectives. 
In the event the contractor also has provisions for the supply of M&I 
water under the authority of the Water Supply Act of 1958 or has invoked 
a provision of that act, the water conservation plan shall address both 
the irrigation and M&I water supply activities.
    (c) Federal assistance. The Bureau of Reclamation will cooperate 
with the district, to the extent possible, in studies to identify 
opportunities to augment, utilize, or conserve the available water 
supply.

[[Page 719]]



PART 428_INFORMATION REQUIREMENTS FOR CERTAIN FARM OPERATIONS IN EXCESS OF 960 ACRES AND THE ELIGIBILITY OF CERTAIN FORMERLY EXCESS LAND--Table of Contents



Sec.
428.1 Purpose of this part.
428.2 Applicability of this part.
428.3 Definitions used in this part.
428.4 Who must submit forms under this part.
428.5 Required information.
428.6 Where to submit required forms and information.
428.7 What happens if a farm operator does not submit required forms.
428.8 What can happen if a farm operator makes false statements on the 
          required forms.
428.9 Farm operators who are former owners of excess land.
428.10 Districts' responsibilities concerning certain formerly excess 
          land.
428.11 Effective date.

    Authority: 5 U.S.C. 301; 5 U.S.C. 553; 16 U.S.C. 590z-11; 31 U.S.C. 
9701; 32 Stat. 388, as amended.

    Source: 65 FR 4324, Jan. 26, 2000, unless otherwise noted.



Sec. 428.1  Purpose of this part.

    This part addresses Reclamation Reform Act of 1982 (RRA) forms 
requirements for certain farm operators and the eligibility of formerly 
excess land that is operated by a farm operator who was the landowner of 
that land when it was excess.



Sec. 428.2  Applicability of this part.

    (a) This part applies to farm operators who provide services to:
    (1) More than 960 acres held (directly or indirectly owned or 
leased) by one trust or legal entity; or
    (2) The holdings of any combination of trusts and legal entities 
that exceed 960 acres.
    (b) This part also applies to farm operators who provide services to 
formerly excess land held in trusts or by legal entities if the farm 
operator previously owned that land when the land was ineligible excess 
or under recordable contract.
    (c) This part supplements the regulations in part 426 of this 
chapter.



Sec. 428.3  Definitions used in this part.

    Custom service provider means an individual or legal entity that 
provides one specialized, farm-related service that a farm owner, 
lessee, sublessee, or farm operator employs for agreed-upon payments. 
This includes, for example, crop dusters, custom harvesters, grain 
haulers, and any other such services.
    Farm operator means an individual or legal entity other than the 
owner, lessee, or sublessee that performs any portion of the farming 
operation. This includes farm managers, but does not include spouses, 
minor children, employees for whom the employer pays social security 
taxes, or custom service providers.
    We or us means the Bureau of Reclamation.
    You means a farm operator.



Sec. 428.4  Who must submit forms under this part.

    (a) You must submit RRA forms to districts annually as specified in 
Sec. 428.6 if:
    (1) You provide services to more than 960 nonexempt acres westwide, 
held by a single trust or legal entity or any combination of trusts and 
legal entities; or
    (2) You are the ultimate parent legal entity of a wholly owned 
subsidiary or of a series of wholly owned subsidiaries that provide 
services in total to more than 960 nonexempt acres westwide, held by a 
single trust or legal entity or any combination of trusts and legal 
entities.
    (b) Anyone who is the indirect owner of a legal entity that is a 
farm operator meeting the criteria of paragraph (a) of this section must 
submit forms to us annually, if any of the land to which services are 
being provided by that legal entity is land that the part owner formerly 
owned as excess land and sold or transferred at an approved price.
    (c) If you must submit RRA forms due to the requirements of this 
section, then you may not use a verification form for your annual 
submittal as provided for in Sec. 426.18(l) of this chapter to meet the 
requirements of this section.
    (d) If you must submit RRA forms solely due to the requirements of 
this section, then once you have met the requirement found in paragraph 
(a) of

[[Page 720]]

this section you need not submit another RRA form during the current 
water year, even if you experience a change to your farm operating 
arrangements. Specifically, the requirements of Sec. 426.18(k)(1) of 
this chapter are not applicable.



Sec. 428.5  Required information.

    (a) We will determine which forms you must use to submit the 
information required by this section.
    (b) You must declare all nonexempt land to which you provide 
services westwide.
    (c) You must give us other information about your compliance with 
Federal reclamation law, including but not limited to:
    (1) Identifier information, such as your name, address, telephone 
number;
    (2) If you are a legal entity, information concerning your 
organizational structure and part owners;
    (3) Information about the land to which you provide services, such 
as a legal description, and the number of acres;
    (4) Information about whether you formerly owned, as ineligible 
excess land or under recordable contract, the land to which you are 
providing services;
    (5) Information about the services you provide, such as what they 
are, who decides when they are needed, and how much control you have 
over the daily operation of the land;
    (6) If you provide different services to different land parcels, a 
list of services that you provide to each parcel;
    (7) Whether you can use your agreement with a landholder as 
collateral in any loan;
    (8) Whether you can sue or be sued in the name of the landholding; 
and
    (9) Whether you are authorized to apply for any Federal assistance 
from the United States Department of Agriculture in the name of the 
landholding.



Sec. 428.6  Where to submit required forms and information.

    You must submit the appropriate completed RRA form(s) to each 
district westwide that is subject to the acreage limitation provisions 
and in which you provide services.



Sec. 428.7  What happens if a farm operator does not submit required forms.

    (a) If you do not submit required RRA form(s) in any water year, 
then:
    (1) The district must not deliver irrigation water before you submit 
the required RRA form(s); and
    (2) You, the trustee, or the landholder(s) who holds the land 
(including to whom the land held in trust is attributed) must not accept 
delivery of irrigation water before you submit the required RRA form(s).
    (b) After you submit all required RRA forms to the district, we will 
restore eligibility.
    (c) If a district delivers irrigation water to land that is 
ineligible because you did not submit RRA forms as required by this 
part, we will assess administrative costs against the district as 
specified in Sec. 426.20(e) of this chapter. We will determine these 
costs in the same manner used to determine costs for landholders under 
Sec. Sec. 426.20(a)(1) through (3) of this chapter.



Sec. 428.8  What can happen if a farm operator makes false statements on the required forms.

    If you make a false statement on the required RRA form(s), 
Reclamation can prosecute you under the following statement:

    Under the provisions of 18 U.S.C. 1001, it is a crime punishable by 
5 years imprisonment or a fine of up to $10,000, or both, for any person 
knowingly and willfully to submit or cause to be submitted to any agency 
of the United States any false or fraudulent statement(s) as to any 
matter within the agency's jurisdiction. False statements by the farm 
operator will also result in loss of eligibility. Eligibility can only 
be regained upon the approval of the Commissioner.



Sec. 428.9  Farm operators who are former owners of excess land.

    (a) Land held in trust or by a legal entity may not receive 
irrigation water if:
    (1) You owned the land when the land was excess, whether or not 
under recordable contract;
    (2) You sold or transferred the land at a price approved by 
Reclamation; and
    (3) You are the direct or indirect farm operator of that land.

[[Page 721]]

    (b) This section does not apply if:
    (1) The formerly excess land becomes exempt from the acreage 
limitations of Federal reclamation law; or
    (2) The full-cost rate is paid for any irrigation water delivered to 
your formerly excess land that is otherwise eligible to receive 
irrigation water. If you are a part owner of a legal entity that is the 
direct or indirect farm operator of the land in question, then the full-
cost rate will apply to the proportional share of the land that reflects 
your interest in that legal entity.



Sec. 428.10  Districts' responsibilities concerning certain formerly excess land.

    Districts must not make irrigation water available to formerly 
excess land that meets the criteria under Sec. 428.9(a), unless an 
exception provided in Sec. 428.9(b) applies.



Sec. 428.11  Effective date.

    (a) All provisions of this part apply on January 1, 2001, except:
    (1) For those districts whose 2001 water year commences prior to 
January 1, 2001, the applicability date of Sec. Sec. 428.1 through 
428.8 is October 1, 2000.
    (b) On January 1, 2001, this part applies to all farm operating 
arrangements between farm operators and trusts or legal entities that:
    (1) Are then in effect; or
    (2) Are initiated on, or after, January 1, 2001.



PART 429_USE OF BUREAU OF RECLAMATION LAND, FACILITIES, AND WATERBODIES--Table of Contents



            Subpart A_Purpose, Definitions, and Applicability

Sec.
429.1 What is the purpose of this part?
429.2 What definitions are used in this part?
429.3 What types of uses are subject to the requirements and processes 
          established under this part?
429.4 What types of uses are not subject to the requirements and 
          processes established under this part?
429.5 Who is authorized to issue use authorizations under this part?
429.6 When must water user organizations also approve use 
          authorizations?

         Subpart B_Proposed Uses Involving Reclamation Easements

429.7 Can I use land where Reclamation holds an easement?
429.8 Is there a fee for uses involving a Reclamation easement?

Subpart C_Requesting Authorization to Use Reclamation Land, Facilities, 
                             and Waterbodies

429.9 What should I do before filing an application?
429.10 What application form should I use?
429.11 Where can I get the application forms?
429.12 Where do I file my application?
429.13 How long will the application review process take?
429.14 What criteria will Reclamation consider when reviewing 
          applications?
429.15 Is Reclamation required to issue a use authorization?

           Subpart D_Application Fees and Administrative Costs

429.16 How much is the application fee and when should it be paid?
429.17 When will Reclamation collect administrative costs?
429.18 When do I have to pay the administrative costs?
429.19 What happens if the initial estimate for administrative costs is 
          insufficient?
429.20 Can I get a detailed explanation of the administrative costs?
429.21 If I overpay Reclamation's administrative costs, can I get a 
          refund?
429.22 Can Reclamation charge me additional administrative costs after I 
          receive a use authorization?

                           Subpart E_Use Fees

429.23 How does Reclamation determine use fees?
429.24 When should I pay my use fee?
429.25 How long do I have to submit my payment for the use fee and 
          accept the offered use authorization?

  Subpart F_Reductions or Waivers of Application Fees, Administrative 
                           Costs, and Use Fees

429.26 When may Reclamation reduce or waive costs or fees?

          Subpart G_Terms and Conditions of Use Authorizations

429.27 What general information appears in use authorizations?
429.28 What terms and conditions apply to all use authorizations?

[[Page 722]]

429.29 What other terms and conditions may be included in my use 
          authorization?
429.30 May use authorizations be transferred or assigned to others?

    Subpart H_Prohibited and Unauthorized Uses of Reclamation Land, 
                       Facilities, and Waterbodies

429.31 What uses are prohibited on Reclamation land, facilities, and 
          waterbodies?
429.32 How will Reclamation address currently authorized existing 
          private exclusive recreational or residential uses?
429.33 What are the consequences for using Reclamation land, facilities, 
          and waterbodies without authorization?

                     Subpart I_Decisions and Appeals

429.34 Who is the decisionmaker for Reclamation's final determinations?
429.35 May I appeal Reclamation's final determination?
429.36 May I appeal the Commissioner's decision?
429.37 Does interest accrue on monies owed to the United States during 
          my appeal process?

    Authority: 43 U.S.C. 373; 43 U.S.C. 373b; 43 U.S.C. 387; 43 CFR part 
21; Public Law 108-447, Title VIII; 31 U.S.C. 9701, as amended.

    Source: 73 FR 74335, Dec. 5, 2008, unless otherwise noted.



            Subpart A_Purpose, Definitions, and Applicability



Sec. 429.1  What is the purpose of this part?

    The purpose of this part is to notify the public that any possession 
or occupancy of any portion of, and the extraction or disturbance of any 
natural resources from Reclamation land, facilities, or waterbodies are 
prohibited without written authorization from Reclamation, unless 
excepted as listed in Sec. 429.4. This part describes:
    (a) How to apply to Reclamation for a use authorization to allow 
your activity on Reclamation land, facilities, and waterbodies;
    (b) How Reclamation reviews and processes your application, 
including the criteria for approval or denial of your application;
    (c) The requirement for collection of application and use fees and 
the recovery of administrative costs;
    (d) How Reclamation determines and collects costs and fees;
    (e) Prohibited uses on Reclamation land, facilities, and 
waterbodies;
    (f) How Reclamation will address existing authorized uses which are 
otherwise prohibited, including the criteria for approval or denial of 
requests to renew these use authorizations;
    (g) The process and penalties associated with resolution of 
unauthorized uses; and
    (h) How to appeal an action or determination made under this part.



Sec. 429.2  What definitions are used in this part?

    The following definitions are used in this part:
    Administrative costs means all costs incurred by Reclamation in 
processing your application and all costs associated with evaluating, 
issuing, monitoring, and terminating your use authorization on 
Reclamation land, facilities, and waterbodies. Administrative costs are 
distinct and separate from application and use fees and typically 
include, but are not limited to:
    (1) Determining the use fee;
    (2) Evaluating and documenting environmental and cultural resources 
compliance;
    (3) Performing engineering review;
    (4) Preparation of the use authorization; and
    (5) Personnel and indirect costs directly associated with these 
actions.
    Applicant means you as any person or entity (such as a private 
citizen, business, non-governmental organization, public entity, Indian 
tribe, or foreign government) who submits an application requesting use 
of Reclamation land, facilities, and waterbodies.
    Application means either Form 7-2540 or SF 299. The choice of 
application form is dependent on the type of use requested.
    Application fee means a $100 nonrefundable charge, which you must 
submit with your application to cover the costs of our initial review of 
your request. Application fees are distinct and separate from 
administrative costs and use fees.
    Commissioner means the senior executive of the Bureau of 
Reclamation, Department of the Interior.

[[Page 723]]

    Consent document means a written agreement or notification listing 
conditions which will prevent unreasonable interference with our 
easement on non-Reclamation land.
    Cultural resource means any prehistoric, historic, architectural, 
sacred, or traditional cultural property and associated objects and 
documents that are of interest to archaeology, anthropology, history, or 
other associated disciplines. Cultural resources include archaeological 
resources, historic properties, traditional cultural properties, sacred 
sites, and cultural landscapes that are associated with human activity 
or occupation.
    Easement refers to an interest in land that consists of the right to 
use or control the land for a specific purpose, but does not constitute 
full ownership of the land.
    Environmental compliance means complying with the requirements of 
the National Environmental Policy Act; the Endangered Species Act; the 
Clean Water Act; the Clean Air Act; the Comprehensive Environmental 
Response, Compensation, and Liability Act; applicable regulations 
associated with these statutes; and other related laws and regulations.
    Form 7-2540 means the Bureau of Reclamation Right-of-Use Application 
form required for all proposed uses of Reclamation land, facilities, and 
waterbodies, except those associated with construction and/or placement 
of transportation, communication, and utility systems and facilities.
    Grantee means you as the recipient or holder of a use authorization 
regardless of the contractual format.
    Interior means the United States Department of the Interior.
    Managing partner means a Federal or non-Federal public entity that 
manages land, facilities, or waterbodies through a management agreement 
with Reclamation entered into pursuant to the Federal Water Project 
Recreation Act, as amended.
    Part 21 of this title means title 43 of the Code of Federal 
Regulations part 21, which is titled Occupancy of Cabin Sites on Public 
Conservation and Recreation Areas.
    Part 423 of this chapter means title 43 of the Code of Federal 
Regulations part 423, which is titled Public Conduct on Bureau of 
Reclamation Facilities, Lands, and Waterbodies.
    Possession or occupancy and possess or occupy mean to control, use, 
or reside on Reclamation land, facilities, or waterbodies.
    Private exclusive recreational or residential use means any use that 
involves structures or other improvements used for recreational or 
residential purposes to the exclusion of public uses that are not 
associated with the official management of a Reclamation project. This 
includes, but is not limited to the following:
    (1) Cabin sites and associated improvements (including those 
currently defined in part 21 of this title); mobile homes, residences, 
outbuildings, and related structures; and associated landscaping, 
patios, decks, and porches;
    (2) Boat houses, docks, moorings, piers, and launch ramps;
    (3) Floating structures or buildings, including moored vessels used 
as residences or unauthorized business sites;
    (4) Sites for such activities as hunting, fishing, camping, and 
picnicking (other than transitory uses allowed under part 423 of this 
chapter) that attempt to exclude general public access; and
    (5) Access routes to private land, facilities, or structures when 
other reasonable alternative means of access is available or can be 
obtained.
    Public entity means States, political subdivisions or agencies 
thereof; public and quasi-governmental authorities and agencies; and 
agencies of the Federal Government.
    Public needs mean the recreational requirements of the general 
public at areas where existing authorized private exclusive recreational 
or residential uses are present.
    Reclamation means the Bureau of Reclamation, United States 
Department of the Interior.
    Reclamation facility means any facility under our jurisdiction. The 
term includes, but is not limited to, buildings, canals, dams, ditches, 
drains, fish and wildlife facilities, laterals, powerplants, pumping 
plants, recreation facilities, roads, switchyards, transmission and 
telecommunication lines, and warehouses.

[[Page 724]]

    Reclamation land means any land under the jurisdiction of, or 
administered by, Reclamation and may include, but is not limited to, the 
following:
    (1) All land acquired by Reclamation through purchase, condemnation, 
exchange, or donation for Reclamation project and water related 
purposes;
    (2) All land withdrawn by Reclamation from the public domain for 
Reclamation purposes; and
    (3) All interests in land acquired by Reclamation, including 
easements and rights exercised by the United States under the 1890 Canal 
Act (43 U.S.C. 945).
    Reclamation law means the Reclamation Act of June 17, 1902 (32 Stat. 
388, 43 U.S.C. 371 et seq.), and all Acts which supplement or amend the 
1902 Act.
    Reclamation project means any land, facilities, or waterbodies used 
for water supply, water delivery, flood control, hydropower, or other 
authorized purposes including fish, wildlife, and recreation 
administered by Reclamation under Federal laws.
    Reclamation waterbodies means any body of water situated on 
Reclamation land and under Reclamation jurisdiction. Examples of 
Reclamation waterbodies include, but are not limited to, reservoirs, 
lakes, and impoundments.
    Regional Director means any one of the representatives of the 
Commissioner, or their delegates, who are responsible for managing their 
respective region's land, facilities, and waterbodies and for the 
decisions made under this part.
    Standard Form (SF) 299 means the form titled Application for 
Transportation and Utility Systems and Facilities on Federal Lands used 
when requesting permission for construction and/or placement of 
transportation, communication, or utility systems and facilities.
    Unauthorized use means use of Reclamation land, facilities, and 
waterbodies without proper authorization.
    Use authorization means a document that defines the terms and 
conditions under which we will allow you to use Reclamation land, 
facilities, and waterbodies. Use authorizations can take the form of 
easements, leases, licenses, permits, and consent documents. This 
document is also referred to as a ``right-of-use'' in part 423 of this 
chapter.
    Use fee means the amount due to Reclamation for the use of Federal 
land, facilities, or waterbodies under our jurisdiction or control. Use 
fees are distinct and separate from application fees and administrative 
costs.
    Valuation means the method used to establish the fee for a use 
authorization by appraisal, waiver valuation, or other sound or 
generally accepted business practice.
    Water user organization means any legal entity established under 
State law that has entered into a contract with the United States 
pursuant to the Federal reclamation laws.
    We, us, or our mean Reclamation.
    You, your, I, me, or my, mean an applicant, grantee, or unauthorized 
user.



Sec. 429.3  What types of uses are subject to the requirements and processes established under this part?

    Possession or occupancy of, or extraction or removal of natural 
resources from, Reclamation land, facilities, or waterbodies require a 
use authorization in accordance with this part. Typical uses of or 
activities on Reclamation land, facilities, or waterbodies regulated by 
this part include, but are not limited to the following:
    (a) Commercial filming and photography;
    (b) Commercial guiding and outfitting;
    (c) Commercial or organized sporting events;
    (d) Grazing, farming, and other agricultural uses;
    (e) Infrastructure, such as transportation, telecommunications, 
utilities, and pipelines;
    (f) Organized recreational activities, public gatherings, and other 
special events that involve the possession or occupancy of Reclamation 
lands;
    (g) Removal of, or exploration for, sand, gravel, and other mineral 
resources;
    (h) Timber harvesting, or removal of commercial forest products or 
other vegetative resources; and

[[Page 725]]

    (i) Any other uses deemed appropriate by Reclamation, subject to the 
exclusions listed in Sec. 429.4.



Sec. 429.4  What types of uses are not subject to the requirements and processes established under this part?

    (a) Individual, non-commercial use of Reclamation land, facilities, 
or waterbodies for occasional activities such as hiking, camping for 
periods of 14 days or less during any period of 30 consecutive days, 
sightseeing, picnicking, hunting, swimming, boating, and fishing, 
consistent with applicable laws, regulations and policies. Public 
conduct associated with these activities is governed by part 423 of this 
chapter;
    (b) Buildings and structures used by concessionaires or managing 
partners to facilitate their operations or that are made available by 
them for the general, non-exclusive use of the public. Examples include, 
but are not limited to the following:
    (1) Boat docks available for short-term use by the public;
    (2) Marina slips available for rent by the public;
    (3) Publicly available boat ramps;
    (4) Houseboats available for short-term rent by the public;
    (5) Stores and restaurants;
    (6) Employee housing; and
    (7) Rental cabins, hotels, campgrounds, and other short-term lodging 
facilities.
    (c) While not subject to other requirements and processes 
established under this part, the following types of uses must be in 
compliance with the requirements in subpart H of this part:
    (1) Recreational activities at sites managed by non-Federal managing 
partners under Public Law 89-72, titled Federal Water Project Recreation 
Act, July 9, 1965;
    (2) Activities managed by other Federal agencies or Interior bureaus 
by agreement or under other authority;
    (3) Activities at sites directly managed by Reclamation where fees 
or fee schedules are established for general public recreation use;
    (4) Uses authorized under concession contracts on Reclamation land, 
facilities, and waterbodies;
    (5) Reclamation contracts for water supply or water operations;
    (6) Authorized operation and maintenance activities on Reclamation 
land, facilities, and waterbodies undertaken by water user 
organizations, or their contractors, or by Reclamation contractors;
    (7) Agreements and real property interests granted for the 
replacement or relocation of facilities, such as highways, railroads, 
telecommunication, or transmission lines or infrastructure governed by 
Section 14 of the Reclamation Project Act of August 4, 1939 (43 U.S.C. 
389). Payments to equalize land values may still be required and 
administrative costs may still be recovered; and
    (8) Activities specifically authorized under other Federal statutes 
or regulations.



Sec. 429.5  Who is authorized to issue use authorizations under this part?

    Unless otherwise provided by law or regulation, only Reclamation or 
another Federal agency acting for Reclamation under delegated authority 
is authorized to issue use authorizations that convey an interest in 
Reclamation land, facilities, or waterbodies. Recreation managing 
partners under the Federal Water Projects Recreation Act, 16 U.S.C. 4601 
et seq., and water user organizations who have assumed responsibility 
for operation and maintenance of Reclamation land, facilities, or 
waterbodies, and provide a copy of the use authorization to the local 
Reclamation office, pursuant to a contract with Reclamation may issue 
limited use authorizations to third parties for activities on 
Reclamation land, facilities, or waterbodies when all of the following 
apply:
    (a) The recreation managing partner or water user organization is 
authorized to do so under its contract with Reclamation;
    (b) Such limited use authorizations do not convey ownership or other 
interest in the Federal real property;
    (c) The uses authorized are not permanent or for an indefinite 
period;
    (d) The limited use authorization does not provide for an automatic 
right of renewal;

[[Page 726]]

    (e) The limited use authorization is fully revocable at the 
discretion of Reclamation; and
    (f) All revenues collected for the use of Reclamation land, 
facilities, and waterbodies are handled in compliance with all 
statutory, regulatory, and policy requirements.



Sec. 429.6  When must water user organizations also approve use authorizations?

    (a) Use authorizations for easements and rights-of-way for periods 
in excess of 25 years are also subject to approval from water user 
organizations under contract obligation for repayment of the project or 
division. This requirement does not apply to any other type of use 
authorizations.
    (b) At a minimum, the appropriate water user organizations will be 
notified of all use authorizations prior to their issuance to avoid 
potential conflicts between the requested use authorization and the 
water user organizations' need to operate and maintain the facilities 
for which they have contractual responsibility.
    (c) At the discretion of the responsible Regional Director, 
concurrence of the appropriate water user organizations not addressed in 
paragraph (a) of this section may be requested.



         Subpart B_Proposed Uses Involving Reclamation Easements



Sec. 429.7  Can I use land where Reclamation holds an easement?

    (a) To prevent conflicts where Reclamation holds an easement on land 
owned by others, you should submit an application for the proposed use. 
If after review of the application, Reclamation determines that your 
requested use would not unreasonably interfere with Reclamation's 
easement, a consent document may be issued to you. The consent document 
will contain the conditions with which you must comply to ensure that 
your use will not unreasonably interfere with Reclamation's use of its 
easement.
    (b) In accordance with subpart C of this part, you should submit 
either SF 299 or Form 7-2540 to the local Reclamation office to request 
a consent document.
    (c) If you are not the underlying landowner, you must also secure 
the permission of the landowner for your requested use of the area 
covered by Reclamation's easement.



Sec. 429.8  Is there a fee for uses involving a Reclamation easement?

    Reclamation will not charge a use fee for a consent document. 
However, depending upon the complexity of your requested use and issues 
associated with it, Reclamation may charge an application fee and 
administrative costs, unless waived in accordance with subpart F of this 
part.



Subpart C_Requesting Authorization to Use Reclamation Land, Facilities, 
                             and Waterbodies



Sec. 429.9  What should I do before filing an application?

    Before filing an application, it is important that you contact the 
local Reclamation office to discuss your proposed use. This discussion 
can help expedite your application process.



Sec. 429.10  What application form should I use?

    You must use one of the following application forms depending on the 
nature of your requested use:
    (a) Use SF 299 to request a use authorization for the placement, 
construction, and use of energy, transportation, water, or 
telecommunication systems and facilities on or across all Federal 
property including Reclamation land, facilities, or waterbodies.
    Examples of such uses are:
    (1) Canals;
    (2) Communication towers;
    (3) Fiber-optics cable;
    (4) Pipelines;
    (5) Roads;
    (6) Telephone lines; and
    (7) Utilities and utility corridors.
    (b) Use Form 7-2540 to request any other type of use authorization. 
Examples of such uses are:
    (1) Commercial filming and photography;
    (2) Commercial guiding and outfitting;
    (3) Commercial or organized sporting events;

[[Page 727]]

    (4) Grazing, farming, and other agricultural uses;
    (5) Organized recreational activities, public gatherings, and other 
special events;
    (6) Removal of, or exploration for, sand, gravel, and other mineral 
materials;
    (7) Timber harvesting, or removal of commercial forest products or 
other vegetative resources; and
    (8) Any other uses deemed appropriate by Reclamation.
    (c) Application forms may not be required where Reclamation solicits 
competitive bids.



Sec. 429.11  Where can I get the application forms?

    Both forms can be obtained from any Reclamation office or from our 
official internet Web site at http://www.usbr.gov. These forms contain 
specific instructions for application submission and describe 
information that you must furnish. However, when you submit either form 
to your local Reclamation office for review, the form must contain your 
original signature as the applicant.



Sec. 429.12  Where do I file my application?

    File your completed and signed application, including the $100 
nonrefundable application fee, with the Reclamation office having 
jurisdiction over the land, facility, or waterbody associated with your 
request. Reclamation office locations may be found on http://
www.usbr.gov, the official Reclamation Internet Web site.



Sec. 429.13  How long will the application review process take?

    (a) Reclamation will acknowledge in writing your completed and 
signed application and application fee within 30 calendar days of 
receipt. Reclamation may request additional information needed to 
process your application, such as legal land descriptions and detailed 
construction specifications.
    (b) The processing time depends upon the complexity of your 
requested use, issues associated with it, and the need for additional 
information from you.
    (c) Should your requested use be denied at any time during the 
review process, Reclamation will notify you in writing of the basis for 
the denial.



Sec. 429.14  What criteria will Reclamation consider when reviewing applications?

    Reclamation will consider the following criteria when reviewing 
applications:
    (a) Compatibility with authorized project purposes, project 
operations, safety, and security;
    (b) Environmental compliance;
    (c) Compatibility with public interests;
    (d) Conflicts with Federal policies and initiatives;
    (e) Public health and safety;
    (f) Availability of other reasonable alternatives; and
    (g) Best interests of the United States.



Sec. 429.15  Is Reclamation required to issue a use authorization?

    No. The issuance of a use authorization is at Reclamation's 
discretion. At a minimum, the criteria listed at Sec. 429.14 must be 
considered prior to issuance of any use authorizations. Not all requests 
will be authorized. If issued, Reclamation will provide only the least 
estate, right, or possessory interest needed to accommodate the approved 
use.



           Subpart D_Application Fees and Administrative Costs



Sec. 429.16  How much is the application fee and when should it be paid?

    You must remit a nonrefundable application fee of $100 to cover 
costs associated with our initial review of your application, unless the 
payment is waived pursuant to subpart F of this part. This initial 
review will determine if your requested use is appropriate for 
consideration and not likely to interfere with Reclamation project 
purposes or operations.



Sec. 429.17  When will Reclamation collect administrative costs?

    Reclamation will collect, in advance, its administrative costs for 
processing your application, except as provided under subpart F of this 
part.

[[Page 728]]



Sec. 429.18  When do I have to pay the administrative costs?

    (a) Following the initial review, you will be notified in writing 
whether your application appears to be appropriate for further 
processing. At that time, Reclamation will give you an initial estimate 
of administrative costs required to continue processing your 
application.
    (b) You must pay these initial, estimated administrative costs 
before Reclamation can continue to process your application, unless you 
are granted a waiver of administrative costs under subpart F of this 
part. If payment is not received within 90 days after the estimate is 
provided to you, Reclamation may close your file. If this occurs and you 
later wish to proceed, you must submit both a new application and 
another $100 nonrefundable application fee.



Sec. 429.19  What happens if the initial estimate for administrative costs is insufficient?

    If the initial estimate to cover Reclamation's administrative costs 
is found to be insufficient, Reclamation will notify you in writing of 
the additional amount needed. You must pay the amount requested before 
Reclamation will continue processing your application.



Sec. 429.20  Can I get a detailed explanation of the administrative costs?

    Yes, you are entitled to receive an explanation of all 
administrative costs relevant to your specific application. You must 
request this information in writing from the Reclamation office where 
you submitted your application.



Sec. 429.21  If I overpay Reclamation's administrative costs, can I get a refund?

    If, in reviewing your application, Reclamation uses all the monies 
you have paid, you will not receive a refund regardless of whether you 
receive a use authorization. If the money collected from you exceeds 
administrative costs, a refund of the excess amount will be made to you 
consistent with Reclamation's financial policies.



Sec. 429.22  Can Reclamation charge me additional administrative costs after I receive a use authorization?

    (a) After you receive your use authorization, Reclamation may charge 
you for additional administrative costs incurred for activities such as:
    (1) Monitoring your authorized use over time to ensure compliance 
with the terms and conditions of your use authorization; and
    (2) Periodic analysis of your long-term use to adjust your use fee 
to reflect current conditions.
    (b) If your additional payment is not received by Reclamation within 
90 days after notification to you in writing of the additional 
administrative costs, Reclamation may take action to terminate your use 
authorization.



                           Subpart E_Use Fees



Sec. 429.23  How does Reclamation determine use fees?

    The use fee is based on a valuation or by competitive bidding. Use 
fees may be adjusted as deemed appropriate by Reclamation to reflect 
current conditions, as provided in the use authorization.



Sec. 429.24  When should I pay my use fee?

    (a) If Reclamation offers you a use authorization, you must pay the 
use fee in advance, unless you are granted a waiver under subpart F of 
this part.
    (b) Your use authorization will clearly state the use fee. Should 
periodic payments apply, your use authorization will also describe when 
you should pay those periodic use fees.



Sec. 429.25  How long do I have to submit my payment for the use fee and accept the offered use authorization?

    You have 90 days to accept and return the use authorization and 
required fees, otherwise Reclamation may consider the offer to be 
rejected by you and your file may be closed. If this occurs and you 
later wish to proceed, you must submit a new application and another 
$100 nonrefundable application fee. You may not commence your use of 
Reclamation's land, facilities, or waterbodies until Reclamation has 
issued a use authorization to you. A use authorization will

[[Page 729]]

only be issued upon receipt by Reclamation of all required costs and 
fees, and the use authorization signed by you.



  Subpart F_Reductions or Waivers of Application Fees, Administrative 
                           Costs, and Use Fees



Sec. 429.26  When may Reclamation reduce or waive costs or fees?

    (a) As determined appropriate and approved and documented by the 
applicable Regional Director, the application fees may be waived, and 
charges for administrative costs or use fees may be waived or reduced as 
indicated by a [check] in the following table:

----------------------------------------------------------------------------------------------------------------
   Situations where costs and fees may be reduced or                          Administrative
                         waived                           Application fee         costs             Use fee
----------------------------------------------------------------------------------------------------------------
(1) The use is a courtesy to a foreign government or if           [check]            [check]            [check]
 comparable fees are set on a reciprocal basis with a
 foreign government....................................
(2) The use is so minor or short term that the cost of            [check]            [check]            [check]
 collecting fees is equal to or greater than the value
 of the use............................................
(3) The use will benefit the general public with no               [check]            [check]            [check]
 specific entity or group of beneficiaries readily
 identifiable..........................................
(4) Applicant is a public entity or Indian tribe.......           [check]            [check]            [check]
(5) Applicant is a non-profit or educational entity and           [check]            [check]            [check]
 the use provides a general public benefit.............
(6) Applicant is a rural electric association or                  [check]            [check]            [check]
 municipal utility or cooperative......................
(7) The use directly supports United States' programs             [check]            [check]            [check]
 or projects...........................................
(8) The use secures a reciprocal land use of equal or             [check]            [check]            [check]
 greater value to the United States....................
(9) Applicant for a consent document is the underlying            [check]            [check]              (\1\)
 owner of the property subject to Reclamation's
 easement..............................................
(10) The use is issued under competitive bidding.......           [check]            [check]              (\2\)
----------------------------------------------------------------------------------------------------------------
\1\ Not applicable.
\2\ Set by Bid.

    (b) When a statute, executive order, or court order authorizes the 
use and requires specific treatment of administrative cost recovery and 
collection of use fees associated with that use, that requirement will 
be followed by Reclamation.



          Subpart G_Terms and Conditions of Use Authorizations



Sec. 429.27  What general information appears in use authorizations?

    Each use authorization will contain:
    (a) An adequate description of the land, facilities, or waterbodies 
where the use will occur;
    (b) A description of the specific use being authorized together with 
applicable restrictions or conditions that must be adhered to;
    (c) The conditions under which the use authorization may be renewed, 
terminated, amended, assigned or transferred, and/or have the use fee 
adjusted; and
    (d) Primary points of contact and other terms and conditions.



Sec. 429.28  What terms and conditions apply to all use authorizations?

    (a) By accepting a use authorization under this part, you agree to 
comply with and be bound by the following terms and conditions during 
all construction, operation, maintenance, use, and termination 
activities:
    (1) The grantee agrees to indemnify the United States for, and hold 
the United States and all of its representatives harmless from, all 
damages resulting from suits, actions, or claims of any character 
brought on account of any injury to any person or property arising out 
of any act, omission, neglect, or misconduct in the manner or

[[Page 730]]

method of performing any construction, care, operation, maintenance, 
supervision, examination, inspection, or other activities of the 
grantee.
    (2) The United States, acting through Reclamation, Department of the 
Interior, reserves rights to construct, operate, and maintain public 
works now or hereafter authorized by the Congress without liability for 
termination of the use authorization or other damage to the grantee's 
activities or facilities.
    (3) Reclamation may, at any time and at no cost or liability to the 
United States, terminate any use authorization in the event of a natural 
disaster, a national emergency, a need arising from security 
requirements, or an immediate and overriding threat to public health and 
safety.
    (4) Reclamation may, at any time and at no cost or liability to the 
United States, terminate any use authorization for activities other than 
existing authorized private exclusive recreational or residential use as 
defined under Sec. 429.2 if Reclamation determines that any of the 
following apply:
    (i) The use has become incompatible with authorized project 
purposes, project operations, safety, and security;
    (ii) A higher public use is identified through a public process 
described at Sec. 429.32(a)(1); or
    (iii) Termination is necessary for operational needs of the project.
    (5) Reclamation may, at any time and at no cost or liability to the 
United States, terminate any use authorization if Reclamation determines 
that the grantee has failed to use the use authorization for its 
intended purpose. Further, failure to construct within the timeframe 
specified in the terms of the use authorization may constitute a 
presumption of abandonment of the requested use and cause termination of 
the use authorization.
    (6) Reclamation may, at any time and at no cost or liability to the 
United States, terminate any use authorization if the grantee fails to 
comply with all applicable Federal, State, and local laws, regulations, 
ordinances, or terms and conditions of any use authorization, or to 
obtain any required permits or authorizations.
    (b) The Regional Director may, upon advice of the Solicitor, modify 
these terms and conditions with respect to the contents of the use 
authorization to meet local and special conditions.



Sec. 429.29  What other terms and conditions may be included in my use authorization?

    Reclamation may include additional terms, conditions, or 
requirements that address environmental law compliance, the protection 
of cultural and natural resources, other interests of the United States, 
and local laws and regulations.



Sec. 429.30  May use authorizations be transferred or assigned to others?

    Your use authorization may not be transferred or assigned to others 
without prior written approval of Reclamation, unless specifically 
provided for in your use authorization or as provided under subpart H of 
this part for existing private exclusive recreational and residential 
uses. Should you wish to transfer or assign your use authorization to 
another individual or entity, you must contact the Reclamation office 
that issued your use authorization prior to taking such action.



    Subpart H_Prohibited and Unauthorized Uses of Reclamation Land, 
                       Facilities, and Waterbodies



Sec. 429.31  What uses are prohibited on Reclamation land, facilities, and waterbodies?

    (a) Reclamation prohibits any use that would not comply with part 
423 of this chapter.
    (b) Reclamation prohibits any use that would result in new private 
exclusive recreational or residential use of Reclamation land, 
facilities, or waterbodies as of the effective date of this part. 
Improvements that are within the terms and conditions of an existing 
authorization will not be considered new private exclusive recreational 
or residential use.

[[Page 731]]



Sec. 429.32  How will Reclamation address currently authorized existing private exclusive recreational or residential uses?

    The administration and potential renewal of use authorizations, 
existing as of January 1, 2008, for private exclusive recreational or 
residential uses of Reclamation land, facilities, and waterbodies, as 
defined in this part, will be administered in accordance with the 
following requirements.
    (a) Existing private exclusive recreational or residential uses must 
be compatible with public needs and with authorized project purposes, 
project operations, safety, and security. A review of whether existing 
private exclusive recreational or residential uses is compatible with 
public needs and authorized project purposes, project operations, 
safety, and security will be made at least once every 20 years, except 
where part 21 requires a more frequent review.
    (1) Reclamation will only make final determinations regarding the 
compatibility of existing private exclusive recreational or residential 
uses with public needs or project purposes through a public process 
involving one or more public meetings. Examples of such public processes 
include resource management plan development, recreation demand analysis 
studies, and project feasibility studies.
    (2) Reclamation will notify in writing all potentially affected 
holders of existing authorizations for private exclusive recreational or 
residential use regarding the opportunities for public participation 
when any action is proposed that could lead to an incompatibility 
determination.
    (3) Determinations that existing private exclusive recreational or 
residential uses are not compatible with public needs will be published 
in the Federal Register.
    (4) If a determination of incompatibility with public needs is made, 
affected use authorizations may be extended up to 5 years from the date 
of publication in the Federal Register, if the Regional Director 
determines that such extension is necessary to the fair and efficient 
administration of this part.
    (b) Reclamation will conduct a compliance review of all existing 
private exclusive recreational or residential uses at least once every 5 
years to determine if the following criteria are being met:
    (1) Environmental requirements;
    (2) Public health and safety requirements; and
    (3) Current in financial obligations to Reclamation.
    (c) Reclamation will provide the holder of the use authorization 
with a written report of the results of the compliance review by 
certified mail, return receipt requested. The report will state whether 
the existing use meets the required criteria listed in paragraph (b) of 
this section and will list any deficiencies that can be corrected. A 
minimum of 90 days will be provided to make corrections identified in 
the report. Failure to correct the deficiencies within the time provided 
in the report will result in termination of the use authorization.
    (d) In addition to the compliance reviews described above, 
Reclamation will initiate a review of the existing private exclusive 
recreational or residential uses for compliance with the required 
criteria listed in paragraph (b) of this section at least 6 months prior 
to the expiration date of the existing use authorization. Reclamation 
will provide the holder of the use authorization with a written report 
of the results of the compliance review results by certified mail, 
return receipt requested. The report will state whether the existing use 
meets the required criteria under this section as applicable and will 
list any deficiencies that must be corrected prior to a renewal of the 
use authorization. A minimum of 90 days will be provided prior to the 
expiration of the permit to make corrections identified in the report. 
In addition, this report will serve as a reminder that it is time to 
seek renewal of the use authorization and provide information on the 
process that needs to be followed.
    (e) Reclamation must be notified in advance by certified mail, 
return receipt requested, of any transfers of use authorizations for 
existing private exclusive recreational or residential uses.

[[Page 732]]

    (f) Any renewal of use authorizations for existing private exclusive 
recreational or residential uses of Reclamation land, facilities, and 
waterbodies will not exceed 20-year terms. Any such renewals will be 
subject to the periodic reviews described in paragraphs (a) and (b) of 
this section and these reviews could potentially result in the 
termination of the use agreement prior to the end of the term of years.
    (g) Upon non-renewal or termination of a use authorization for an 
existing private exclusive recreational or residential use of 
Reclamation land, facilities, and waterbodies, the grantee will remove 
any improvements from the site within 90 days from the date of 
termination or non-renewal of the use authorization. The grantee will 
return the property as near as possible to its original undisturbed 
condition. Any property not removed within 90 days may be removed by 
Reclamation at the expense of the prior grantee.
    (h) Renewal decisions of use authorizations for existing private 
exclusive recreational or residential uses located on Reclamation land, 
facilities, and waterbodies will be made by the Regional Director. If 
the Regional Director determines that deficiencies identified under 
paragraph (d) of this section cannot be corrected prior to the 
expiration date of the use authorization, the use authorization may be 
extended for a period not to exceed 6 months.
    (i) Requests for the renewal, extension, or reissuance of use 
authorizations for private exclusive recreational or residential uses 
that expired and were not renewed prior to the effective date of this 
part and were not renewed or are subsequently not renewed or terminated 
under the procedures of this section will be considered requests for 
uses prohibited under Sec. 429.31 and will not be approved. Conversely, 
requests for the renewal, extension, or reissuance of use authorizations 
for private exclusive recreational or residential uses that were in 
existence on the effective date of these regulations and that are in 
compliance with all requirements of the applicable use authorization at 
the time a request is made will not be considered requests for uses 
prohibited under Sec. 429.31. Requests for renewal, extension, or 
reissuance of use authorizations for private exclusive recreational or 
residential uses must be made by submitting Form 7-2540 as stated under 
Sec. 429.10(b) and in compliance with subpart D of this part.
    (j) Unauthorized existing private exclusive recreational or 
residential uses will be administered under Sec. Sec. 429.31 and 429.33 
and part 423 of this chapter.



Sec. 429.33  What are the consequences for using Reclamation land, facilities, and waterbodies without authorization?

    (a) Reclamation may seek to collect the following:
    (1) All administrative costs incurred by Reclamation in resolving 
the unauthorized use;
    (2) All costs of removing structures, materials, improvements, or 
any other real or personal property;
    (3) All costs of rehabilitation of the land, facilities, or 
waterbodies as required by Reclamation.
    (4) The use fee that would have applied had your use been authorized 
from the date your unauthorized use began;
    (5) Interest accrued on the use fee from the date your unauthorized 
use began as specified in paragraph (a)(4) of this section; and
    (6) The interest charge rate shall be the greater of either the rate 
prescribed quarterly in the Federal Register by the Department of the 
Treasury for application to overdue payments or the interest rate of 0.5 
percent per month. The interest charge rate will be determined as of the 
due date and remain fixed for the duration of the delinquent period.
    (b) As an unauthorized user, you will receive a written notice in 
which Reclamation will outline the steps you need to perform to cease 
your unauthorized use.
    (c) If appropriate, you will receive a final determination letter 
detailing the applicable costs and fees, as set forth under paragraph 
(a) of this section, which must be paid to Reclamation for your 
unauthorized use. Payment must be made within 30 days of receipt of this 
letter unless Reclamation extends this deadline in writing. Failure to

[[Page 733]]

make timely payment may result in administrative or legal action being 
taken against you.
    (d) Reclamation may determine that issuing a use authorization to 
you for an existing unauthorized use is not appropriate; and may deny 
future use applications by you because of this behavior. As noted at 
Sec. 429.15, use authorizations are always issued at Reclamation's 
discretion.
    (e) If, however, your unauthorized use is deemed by Reclamation to 
be an unintentional mistake, consideration may be given to issuing a use 
authorization provided that you qualify and meet the criteria at Sec. 
429.14; and, in addition to the normal costs, you agree to pay the 
following:
    (1) The use fee that would have been owed from the date your 
unauthorized use began; and
    (2) Interest accrued on the use fee from the date your unauthorized 
use began as specified in paragraph (f)(1) of this section.
    (f) Under no circumstances will your unauthorized use or payment of 
monies to the United States in association with an unauthorized use 
either:
    (1) Create any legal interest or color of title against the United 
States; or
    (2) Establish any right or preference to continue the unauthorized 
use.
    (g) Under part 423 of this chapter, unauthorized use of Reclamation 
land, facilities, or waterbodies is a trespass against the United 
States. You may be subject to legal action including criminal 
prosecution as specified under Sec. 423.71.



                     Subpart I_Decisions and Appeals



Sec. 429.34  Who is the decisionmaker for Reclamation's final determinations?

    (a) The appropriate Regional Director, or the Regional Director's 
designee, makes any final determination associated with an action taken 
under this rule and will send that final determination in writing to you 
by mail.
    (b) The Regional Director's final determination will take effect 
upon the date of the final determination letter.



Sec. 429.35  May I appeal Reclamation's final determination?

    (a) Yes, if you are directly affected by a final determination, you 
may appeal by writing to the Commissioner within 30 calendar days after 
the postmark date of the Regional Director's determination letter.
    (b) You have an additional 30 calendar days after the postmark of 
your written appeal to the Commissioner within which to submit any 
additional supporting information.
    (c) The Regional Director's final determination will remain in 
effect until the Commissioner has reviewed your appeal and provided you 
with that decision, unless you specifically request a stay and a stay is 
granted by the Commissioner.



Sec. 429.36  May I appeal the Commissioner's decision?

    (a) Yes, you may appeal the Commissioner's decision by writing to 
the Director, Office of Hearing and Appeals (OHA), U.S. Department of 
the Interior, 801 North Quincy Street, Arlington, Virginia 22203.
    (b) For an appeal to be timely, OHA must receive your appeal within 
30 calendar days from the date of mailing of the Commissioner's 
decision. Rules that govern appeals to OHA are found at part 4, subparts 
B and G, of this title.
    (c) Notwithstanding the provisions of Sec. 4.21(a) of this title, 
the Commissioner's decision will take effect upon issuance and remain in 
effect unless you specifically request a stay and a stay is granted 
under Sec. 4.21(b) of this title.



Sec. 429.37  Does interest accrue on monies owed to the United States during my appeal process?

    Except for any period in the appeal process during which a stay is 
then in effect, interest on any nonpayment or underpayment, as provided 
in Sec. 429.33(a), continues to accrue during an appeal of a Regional 
Director's final determination, an appeal of the Commissioner's decision 
to OHA, or during judicial review of final agency action.

[[Page 734]]



PART 430_RULES FOR MANAGEMENT OF LAKE BERRYESSA--Table of Contents



    Authority: Title VII, Pub. L. 93-493, 88 Stat. 1494.



Sec. 430.1  Concessioners' appeal procedures.

    The procedures detailed in title 43 CFR part 4, subpart G, are made 
applicable to the concessioners at Lake Berryessa, Napa County, 
California, as the procedure to follow in appealing decisions of the 
contracting officer of the Bureau of Reclamation, Department of the 
Interior, or his authorized representatives on disputed questions 
concerning termination for default or unsatisfactory performance under 
the concession contracts.

[40 FR 27658, July 1, 1975]



PART 431_GENERAL REGULATIONS FOR POWER GENERATION, OPERATION, MAINTENANCE,

AND REPLACEMENT AT THE BOULDER CANYON PROJECT, ARIZONA/NEVADA--Table of Contents



Sec.
431.1 Purpose.
431.2 Scope.
431.3 Definitions.
431.4 Power generation responsibilities.
431.5 Cost data and fund requirements.
431.6 Power generation estimates.
431.7 Administration and management of the Colorado River Dam Fund.
431.8 Disputes.
431.9 Future regulations.

    Authority: Reclamation Act of 1902 (32 Stat. 388), Boulder Canyon 
Project Act of 1928 (43 U.S.C. 617 et seq.), Boulder Canyon Project 
Adjustment Act of 1940 (43 U.S.C. 618 et seq.), Colorado River Storage 
Project Act of 1956 (43 U.S.C. 620 et seq.), Colorado River Basin 
Project Act of 1968 (43 U.S.C. 1501 et seq.), and Hoover Power Plant Act 
of 1984 (98 Stat. 1333).

    Source: 51 FR 23962, July 1, 1986, unless otherwise noted.



Sec. 431.1  Purpose.

    (a) The Secretary of the Interior (Secretary), acting through the 
Commissioner of Reclamation (Commissioner), is authorized and directed 
to operate, maintain, and replace the facilities at the Hoover 
Powerplant, and also to promulgate regulations as the Secretary finds 
necessary and appropriate in accordance with the authorities in the 
Reclamation Act of 1902, and all acts amendatory thereof and 
supplementary thereto.
    (b) In accordance with the Boulder Canyon Project Act of 1928, as 
amended and supplemented (Project Act), the Boulder Canyon Project 
Adjustment Act of 1940, as amended and supplemented (Adjustment Act), 
and the Hoover Power Plant Act of 1984 (Hoover Power Plant Act), the 
Bureau of Reclamation (Reclamation) promulgates these ``General 
Regulations for Power Generation, Operation, Maintenance, and 
Replacement at the Boulder Canyon Project, Arizona/Nevada'' (General 
Regulations) which include procedures to be used in providing 
Contractors and the Western Area Power Administration (Western) with 
cost data and power generation estimates, a statement of the 
requirements for administration and management of the Colorado River Dam 
Fund (Fund), and methods for resolving disputes.



Sec. 431.2  Scope.

    These General Regulations shall be effective on June 1, 1987, and 
shall apply to power generation, operation, maintenance, and replacement 
activities at the Boulder Canyon Project after May 31, 1987. ``General 
Regulations for the Charges for the Sale of Power from the Boulder 
Canyon Project'' are the subject of a separate rule, under 10 CFR part 
904, by the Secretary of Energy, acting by and through the Administrator 
of Western. The ``General Regulations for Generation and Sale of Power 
in Accordance with the Boulder Canyon Project Adjustment Act,'' dated 
May 20, 1941, and the ``General Regulations for Lease of Power,'' dated 
April 25, 1930, terminate May 31, 1987.



Sec. 431.3  Definitions.

    As used in this part:
    Additions and betterments shall mean such work, materials, 
equipment, or facilities which enhance or improve the Project and do 
more than restore the Project to a former good operating condition.

[[Page 735]]

    Colorado River Dam Fund or Fund shall mean that special fund 
established by section 2 of the Project Act and which is to be used only 
for the purposes specified in the Project Act, the Adjustment Act, the 
Colorado River Basin Project Act, and the Hoover Power Plant Act.
    Contractor shall mean any entity which has a fully executed contract 
with Western for electric service pursuant to the Hoover Power Plant 
Act.
    Project or Boulder Canyon Project shall mean all works authorized by 
the Project Act, the Hoover Power Plant Act, and any future additions 
authorized by Congress, to be constructed and owned by the United 
States, but exclusive of the main canal and appurtenances authorized by 
the Project Act, now known as the All-American Canal.
    Replacements shall mean such work, materials, equipment, or 
facilities as determined by the United States to be necessary to keep 
the Project in good operating condition, but shall not include (except 
where used in conjunction with the word ``emergency'' or the phrase 
``however necessitated'') work, materials, equipment, or facilities made 
necessary by any act of God, or of the public enemy, or by any major 
catastrophe.
    Uprating Program shall mean the program authorized by section 101(a) 
of the Hoover Power Plant Act for increasing the capacity of existing 
generating equipment and appurtenances at Hoover Powerplant, as 
generally described in the report of Reclamation, entitled ``Hoover 
Powerplant Uprating, Special Report,'' issued in May 1980, supplemented 
in January 1985, and further supplemented in September 1985.



Sec. 431.4  Power generation responsibilities.

    (a) Power generation, and the associated operation, maintenance, and 
making of replacements, however necessitated, of facilities and 
equipment at the Hoover Powerplant, are the responsibilities of 
Reclamation.
    (b) Subject to the statutory requirement that Hoover Dam and Lake 
Mead shall be used: First, for river regulation, improvement of 
navigation and flood control; second, for irrigation and domestic uses 
and satisfaction of present perfected rights mentioned in section 6 of 
the Project Act; and third, for power, Reclamation shall release water, 
make available generating capacity, and generate energy, in such 
quantities, and at such times, as are necessary for the delivery of the 
capacity and energy to which Contractors are entitled.
    (c) Reclamation reserves the right to reschedule, temporarily 
discontinue, reduce, or increase the delivery of water for the 
generation of electrical energy at any time for the purpose of 
maintenance, repairs, and/or replacements, and for investigations and 
inspections necessary thereto, or to allow for changing reservoir and 
river conditions, or for changes in kilowatthours generation per acre-
foot, or by reason of compliance with the statutory requirement as 
referred to in paragraph (b) of this section; Provided, however, That 
Reclamation shall, except in case of emergency, give Western reasonable 
notice in advance of any change in delivery of water, and that 
Reclamation shall make such inspections and perform such maintenance and 
repair work at such times and in such manner as to cause the least 
inconvenience possible to Contractors and that Reclamation shall 
prosecute such work with diligence and, without unnecessary delay, 
resume delivery of water as scheduled.
    (d) Should a Contractor have concerns regarding power generation and 
related matters and request a meeting in writing, including a 
description of areas of concern, Reclamation shall convene such meeting 
within 10 days of receipt of such request and shall notify all 
Contractors and Western of the date and location of the meeting, and the 
areas of concern to be discussed.

[51 FR 23962, July 1, 1986; 51 FR 24531, July 7, 1986]



Sec. 431.5  Cost data and fund requirements.

    Reclamation shall submit annually on or before April 15 to Western 
and Contractors, cost data, including one year of actual costs for the 
last completed fiscal year and estimated costs

[[Page 736]]

for the next 5 fiscal years, for operation, maintenance, replacements, 
additions and betterments, non-Federal funds advanced for the uprating 
program by non-Federal purchasers, and interest on and amortization of 
the Federal investment. Such cost data shall identify major items. Upon 
5 days prior written notice to Reclamation, any Contractor shall have 
the right, subject to applicable Federal laws and regulations, to review 
records used to prepare such cost data at Reclamation offices during 
regular business hours. Contractors shall have an opportunity to present 
written views within 30 days of the transmittal of the cost data. 
Reclamation responses to written views shall be provided within 60 days 
of transmittal of the cost data or 30 days after a meeting with 
Contractors convened pursuant to Sec. 431.4(d), whichever is later.



Sec. 431.6  Power generation estimates.

    Reclamation shall submit annually on or before April 15 to Western 
and Contractors, an estimated annual operation schedule for the Hoover 
Powerplant showing estimated power generation and estimated maintenance 
outages for review, and shall provide an opportunity to present written 
views within 30 days of the transmittal of the schedule. Reclamation 
responses to written views shall be provided within 60 days of the 
transmittal of the schedule or 30 days after a meeting with Contractors 
convened pursuant to Sec. 431.4(d), whichever is later. The estimated 
annual operation schedule of Hoover Powerplant shall be subject to 
necessary modifications, in accordance with Sec. 431.4(c). Upon 5 days 
prior written notice to Reclamation, any Contractor shall have the 
right, subject to applicable Federal laws and regulations, to review 
records used to prepare such power generation estimates at Reclamation 
offices during regular business hours.



Sec. 431.7  Administration and management of the Colorado River Dam Fund.

    Reclamation is responsible for the repayment of the Project and the 
administration of the Colorado River Dam Fund and the Lower Colorado 
River Basin Development Fund.
    (a) All receipts to the Project shall be deposited in the Fund along 
with electric service revenues deposited by Western and shall be 
available without further appropriation for:
    (1) Defraying the costs of operation (including purchase of 
supplemental energy to meet temporary deficiencies in firm energy which 
the Secretary of Energy is obligated by contract to supply), 
maintenance, and replacements of all Project facilities, including 
emergency replacements necessary to insure continuous operations;
    (2) Payment of annual interest on the unpaid investments in 
accordance with appropriate statutory authorities;
    (3) Repayment of capital investments including amounts readvanced 
from the Treasury;
    (4) Payments to the States of Arizona and Nevada as provided in 
section 2(c) of the Adjustment Act and section 403(c)(2) of the Colorado 
River Basin Project Act;
    (5) Transfers to the Lower Colorado River Basin Development Fund and 
subsequent transfers to the Upper Colorado River Basin Fund, as provided 
in section 403(c)(2) of the Colorado River Basin Project Act and section 
102(c) of the Hoover Power Plant Act, as reimbursement for the monies 
expended heretofore from the Upper Colorado River Basin Fund to meet 
deficiencies in generation at Hoover Dam during the filling period of 
storage units of the Colorado River Storage Project in accordance with 
the provisions of sections 403(g) and 502 of the Colorado River Basin 
Project Act, such transfers, totalling $27,591,621.25, to be effected by 
17 annual payments of $1,532,868.00 beginning in 1988 and a final 
payment of $1,532,865.25 in 2005; and
    (6) Any other purposes authorized by existing and future Federal 
law.
    (b) Appropriations for the visitor facilities program and any other 
purposes authorized by existing and future Federal law advanced or 
readvanced to the Fund shall be disbursed from the Fund for those 
purposes.
    (c) All funds advanced by non-Federal Contractors for the Uprating 
Program shall be deposited in the Fund, shall be

[[Page 737]]

available without further appropriation, and shall be disbursed from the 
Fund to accomplish the Uprating Program.
    (d) The Fund shall be administered and managed in accordance with 
applicable Federal laws and regulations, by the Secretary acting through 
the Commissioner.

[51 FR 23962, July 1, 1986; 51 FR 24531, July 7, 1986]



Sec. 431.8  Disputes.

    (a) All actions by Reclamation or the Secretary shall be binding 
unless and until reversed or modified in accordance with the provisions 
herein.
    (b) Any disputes or disagreements as to interpretation or 
performance of the provisions of these General Regulations under the 
responsibility of the Secretary shall first be presented to and decided 
by the Commissioner. The Commissioner shall be deemed to have denied the 
Contractor's contention or claim if it is not acted upon within 60 days 
of its having been presented. The decision of the Commissioner shall be 
subject to appeal to the Secretary by a notice of appeal accompanied by 
a statement of reasons filed with the Secretary within 30 days after 
such decision. The Secretary shall be deemed to have denied the appeal 
if it is not acted upon within 60 days of its having been presented.
    (c) The decision of the Secretary shall be final unless, within 30 
days from the date of such decision, a written request for arbitration 
is received by the Secretary. The Secretary shall have 90 days from the 
date of receipt of a request for arbitration either to concur in or deny 
in writing the request for such arbitration. Failure by the Secretary to 
take any action within the 90 day period shall be deemed a denial of the 
request for arbitration. In the event of a denial of a request for 
arbitration, the decision of the Secretary shall become final. Upon a 
decision becoming final, the disputing Contractor's remedy lies with the 
appropriate Federal court. Any claim that a final decision of the 
Secretary violates any right accorded the Contractor under the Project 
Act, the Adjustment Act, or title I of the Hoover Power Plant Act is 
barred unless suit asserting such claim is filed in a Federal court of 
competent jurisdiction within one year after final refusal by the 
Secretary to correct the action complained of, in accordance with 
section 105(h) of the Hoover Power Plant Act.
    (d) When a timely request for arbitration is received by the 
Secretary and the Secretary concurs in the request, the disputing 
Contractor and the Secretary shall, within 30 days of receipt of such 
notice of concurrence, each name one arbitrator to the panel of 
arbitrators which will decide the dispute. All arbitrators shall be 
skilled and experienced in the field pertaining to the dispute. In the 
event there is more than one disputing Contractor in addition to the 
Secretary, the disputing Contractors shall collectively name one 
arbitrator to the panel of arbitrators. In the event of their failure 
collectively to name such arbitrator within 15 days after their first 
meeting, that arbitrator shall be named as provided in the Commercial 
Arbitration Rules of the American Arbitration Association. The two 
arbitrators thus selected shall name a third arbitrator within 30 days 
of their first meeting. In the event of their failure to so name such 
third arbitrator, that arbitrator shall be named as provided in the 
Commercial Arbitration Rules of the American Arbitration Association. 
The third arbitrator shall act as chairperson of the panel. The 
arbitration shall be governed by the Commercial Arbitration Rules of the 
American Arbitration Association. The arbitration shall be limited to 
the issue submitted. The panel of arbitrators shall render a final 
decision in this dispute within 60 days after the date of the naming of 
the third arbitrator. A decision of any two of the three arbitrators 
named to the panel shall be final and binding on all parties involved in 
the dispute.



Sec. 431.9  Future regulations.

    (a) Reclamation may from time to time promulgate additional or 
amendatory regulations deemed necessary for the administration of the 
Project, in accordance with applicable law; Provided, That no right 
under any contract made under the Hoover Power Plant Act shall be 
impaired or obligation thereunder be extended thereby.

[[Page 738]]

    (b) Any modification, extension, or waiver of any provision of these 
General Regulations granted for the benefit of any one or more 
Contractors shall not be denied to any other Contractor.

                        PARTS 432	999 [RESERVED]

[[Page 739]]



                              FINDING AIDS




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

  A list of CFR titles, subtitles, chapters, subchapters and parts and 
an alphabetical list of agencies publishing in the CFR are included in 
the CFR Index and Finding Aids volume to the Code of Federal Regulations 
which is published separately and revised annually.

  Table of CFR Titles and Chapters
  Alphabetical List of Agencies Appearing in the CFR
  List of CFR Sections Affected

[[Page 741]]



                    Table of CFR Titles and Chapters




                     (Revised as of October 1, 2010)

                      Title 1--General Provisions

         I  Administrative Committee of the Federal Register 
                (Parts 1--49)
        II  Office of the Federal Register (Parts 50--299)
        IV  Miscellaneous Agencies (Parts 400--500)

                    Title 2--Grants and Agreements

            Subtitle A--Office of Management and Budget Guidance 
                for Grants and Agreements
         I  Office of Management and Budget Governmentwide 
                Guidance for Grants and Agreements (Parts 100--
                199)
        II  Office of Management and Budget Circulars and Guidance 
                (200--299)
            Subtitle B--Federal Agency Regulations for Grants and 
                Agreements
       III  Department of Health and Human Services (Parts 300-- 
                399)
        IV  Department of Agriculture (Parts 400--499)
        VI  Department of State (Parts 600--699)
      VIII  Department of Veterans Affairs (Parts 800--899)
        IX  Department of Energy (Parts 900--999)
        XI  Department of Defense (Parts 1100--1199)
       XII  Department of Transportation (Parts 1200--1299)
      XIII  Department of Commerce (Parts 1300--1399)
       XIV  Department of the Interior (Parts 1400--1499)
        XV  Environmental Protection Agency (Parts 1500--1599)
     XVIII  National Aeronautics and Space Administration (Parts 
                1880--1899)
        XX  United States Nuclear Regulatory Commission (Parts 
                2000--2099)
      XXII  Corporation for National and Community Service (Parts 
                2200--2299)
     XXIII  Social Security Administration (Parts 2300--2399)
      XXIV  Housing and Urban Development (Parts 2400--2499)
       XXV  National Science Foundation (Parts 2500--2599)
      XXVI  National Archives and Records Administration (Parts 
                2600--2699)
     XXVII  Small Business Administration (Parts 2700--2799)
    XXVIII  Department of Justice (Parts 2800--2899)
       XXX  Department of Homeland Security (Parts 3000--3099)
      XXXI  Institute of Museum and Library Services (Parts 3100--
                3199)

[[Page 742]]

     XXXII  National Endowment for the Arts (Parts 3200--3299)
    XXXIII  National Endowment for the Humanities (Parts 3300--
                3399)
      XXXV  Export-Import Bank of the United States (Parts 3500--
                3599)
    XXXVII  Peace Corps (Parts 3700--3799)
     LVIII  Election Assistance Commission (Parts 5800--5899)

                        Title 3--The President

         I  Executive Office of the President (Parts 100--199)

                           Title 4--Accounts

         I  Government Accountability Office (Parts 1--99)
        II  Recovery Accountability and Transparency Board (Parts 
                200--299)

                   Title 5--Administrative Personnel

         I  Office of Personnel Management (Parts 1--1199)
        II  Merit Systems Protection Board (Parts 1200--1299)
       III  Office of Management and Budget (Parts 1300--1399)
         V  The International Organizations Employees Loyalty 
                Board (Parts 1500--1599)
        VI  Federal Retirement Thrift Investment Board (Parts 
                1600--1699)
      VIII  Office of Special Counsel (Parts 1800--1899)
        IX  Appalachian Regional Commission (Parts 1900--1999)
        XI  Armed Forces Retirement Home (Parts 2100--2199)
       XIV  Federal Labor Relations Authority, General Counsel of 
                the Federal Labor Relations Authority and Federal 
                Service Impasses Panel (Parts 2400--2499)
        XV  Office of Administration, Executive Office of the 
                President (Parts 2500--2599)
       XVI  Office of Government Ethics (Parts 2600--2699)
       XXI  Department of the Treasury (Parts 3100--3199)
      XXII  Federal Deposit Insurance Corporation (Parts 3200--
                3299)
     XXIII  Department of Energy (Parts 3300--3399)
      XXIV  Federal Energy Regulatory Commission (Parts 3400--
                3499)
       XXV  Department of the Interior (Parts 3500--3599)
      XXVI  Department of Defense (Parts 3600-- 3699)
    XXVIII  Department of Justice (Parts 3800--3899)
      XXIX  Federal Communications Commission (Parts 3900--3999)
       XXX  Farm Credit System Insurance Corporation (Parts 4000--
                4099)
      XXXI  Farm Credit Administration (Parts 4100--4199)
    XXXIII  Overseas Private Investment Corporation (Parts 4300--
                4399)
     XXXIV  Securities and Exchange Commission (Parts 4400--4499)
      XXXV  Office of Personnel Management (Parts 4500--4599)

[[Page 743]]

        XL  Interstate Commerce Commission (Parts 5000--5099)
       XLI  Commodity Futures Trading Commission (Parts 5100--
                5199)
      XLII  Department of Labor (Parts 5200--5299)
     XLIII  National Science Foundation (Parts 5300--5399)
       XLV  Department of Health and Human Services (Parts 5500--
                5599)
      XLVI  Postal Rate Commission (Parts 5600--5699)
     XLVII  Federal Trade Commission (Parts 5700--5799)
    XLVIII  Nuclear Regulatory Commission (Parts 5800--5899)
         L  Department of Transportation (Parts 6000--6099)
       LII  Export-Import Bank of the United States (Parts 6200--
                6299)
      LIII  Department of Education (Parts 6300--6399)
       LIV  Environmental Protection Agency (Parts 6400--6499)
        LV  National Endowment for the Arts (Parts 6500--6599)
       LVI  National Endowment for the Humanities (Parts 6600--
                6699)
      LVII  General Services Administration (Parts 6700--6799)
     LVIII  Board of Governors of the Federal Reserve System 
                (Parts 6800--6899)
       LIX  National Aeronautics and Space Administration (Parts 
                6900--6999)
        LX  United States Postal Service (Parts 7000--7099)
       LXI  National Labor Relations Board (Parts 7100--7199)
      LXII  Equal Employment Opportunity Commission (Parts 7200--
                7299)
     LXIII  Inter-American Foundation (Parts 7300--7399)
      LXIV  Merit Systems Protection Board (Parts 7400--7499)
       LXV  Department of Housing and Urban Development (Parts 
                7500--7599)
      LXVI  National Archives and Records Administration (Parts 
                7600--7699)
     LXVII  Institute of Museum and Library Services (Parts 7700--
                7799)
    LXVIII  Commission on Civil Rights (Parts 7800--7899)
      LXIX  Tennessee Valley Authority (Parts 7900--7999)
      LXXI  Consumer Product Safety Commission (Parts 8100--8199)
     LXXII  Special Inspector General for Iraq Reconstruction 
                (Parts 8200--8299)
    LXXIII  Department of Agriculture (Parts 8300--8399)
     LXXIV  Federal Mine Safety and Health Review Commission 
                (Parts 8400--8499)
     LXXVI  Federal Retirement Thrift Investment Board (Parts 
                8600--8699)
    LXXVII  Office of Management and Budget (Parts 8700--8799)
      LXXX  Federal Housing Finance Agency (Parts 8700--8799)
    LXXXII  Special Inspector General for Iraq Reconstruction 
                (Parts 9200--9299)
     XCVII  Department of Homeland Security Human Resources 
                Management System (Department of Homeland 
                Security--Office of Personnel Management) (Parts 
                9700--9799)
      XCIX  Department of Defense Human Resources Management and 
                Labor Relations Systems (Department of Defense--
                Office of Personnel Management) (Parts 9900--9999)

[[Page 744]]

                      Title 6--Domestic Security

         I  Department of Homeland Security, Office of the 
                Secretary (Parts 0--99)

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts 0--26)
            Subtitle B--Regulations of the Department of 
                Agriculture
         I  Agricultural Marketing Service (Standards, 
                Inspections, Marketing Practices), Department of 
                Agriculture (Parts 27--209)
        II  Food and Nutrition Service, Department of Agriculture 
                (Parts 210--299)
       III  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 300--399)
        IV  Federal Crop Insurance Corporation, Department of 
                Agriculture (Parts 400--499)
         V  Agricultural Research Service, Department of 
                Agriculture (Parts 500--599)
        VI  Natural Resources Conservation Service, Department of 
                Agriculture (Parts 600--699)
       VII  Farm Service Agency, Department of Agriculture (Parts 
                700--799)
      VIII  Grain Inspection, Packers and Stockyards 
                Administration (Federal Grain Inspection Service), 
                Department of Agriculture (Parts 800--899)
        IX  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Fruits, Vegetables, Nuts), Department 
                of Agriculture (Parts 900--999)
         X  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Milk), Department of Agriculture 
                (Parts 1000--1199)
        XI  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Miscellaneous Commodities), Department 
                of Agriculture (Parts 1200--1299)
       XIV  Commodity Credit Corporation, Department of 
                Agriculture (Parts 1400--1499)
        XV  Foreign Agricultural Service, Department of 
                Agriculture (Parts 1500--1599)
       XVI  Rural Telephone Bank, Department of Agriculture (Parts 
                1600--1699)
      XVII  Rural Utilities Service, Department of Agriculture 
                (Parts 1700--1799)
     XVIII  Rural Housing Service, Rural Business-Cooperative 
                Service, Rural Utilities Service, and Farm Service 
                Agency, Department of Agriculture (Parts 1800--
                2099)
        XX  Local Television Loan Guarantee Board (Parts 2200--
                2299)
      XXVI  Office of Inspector General, Department of Agriculture 
                (Parts 2600--2699)
     XXVII  Office of Information Resources Management, Department 
                of Agriculture (Parts 2700--2799)

[[Page 745]]

    XXVIII  Office of Operations, Department of Agriculture (Parts 
                2800--2899)
      XXIX  Office of Energy Policy and New Uses, Department of 
                Agriculture (Parts 2900--2999)
       XXX  Office of the Chief Financial Officer, Department of 
                Agriculture (Parts 3000--3099)
      XXXI  Office of Environmental Quality, Department of 
                Agriculture (Parts 3100--3199)
     XXXII  Office of Procurement and Property Management, 
                Department of Agriculture (Parts 3200--3299)
    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts 3300--3399)
     XXXIV  National Institute of Food and Agriculture (Parts 
                3400--3499)
      XXXV  Rural Housing Service, Department of Agriculture 
                (Parts 3500--3599)
     XXXVI  National Agricultural Statistics Service, Department 
                of Agriculture (Parts 3600--3699)
    XXXVII  Economic Research Service, Department of Agriculture 
                (Parts 3700--3799)
   XXXVIII  World Agricultural Outlook Board, Department of 
                Agriculture (Parts 3800--3899)
       XLI  [Reserved]
      XLII  Rural Business-Cooperative Service and Rural Utilities 
                Service, Department of Agriculture (Parts 4200--
                4299)
         L  Rural Business-Cooperative Service, Rurual Housing 
                Service, and Rural Utilities Service, Department 
                of Agriculture (Parts 5000--5099)

                    Title 8--Aliens and Nationality

         I  Department of Homeland Security (Immigration and 
                Naturalization) (Parts 1--499)
         V  Executive Office for Immigration Review, Department of 
                Justice (Parts 1000--1399)

                 Title 9--Animals and Animal Products

         I  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 1--199)
        II  Grain Inspection, Packers and Stockyards 
                Administration (Packers and Stockyards Programs), 
                Department of Agriculture (Parts 200--299)
       III  Food Safety and Inspection Service, Department of 
                Agriculture (Parts 300--599)

                           Title 10--Energy

         I  Nuclear Regulatory Commission (Parts 0--199)
        II  Department of Energy (Parts 200--699)
       III  Department of Energy (Parts 700--999)

[[Page 746]]

         X  Department of Energy (General Provisions) (Parts 
                1000--1099)
      XIII  Nuclear Waste Technical Review Board (Parts 1303--
                1399)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)
     XVIII  Northeast Interstate Low-Level Radioactive Waste 
                Commission (Parts 1800--1899)

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)
        II  Election Assistance Commission (Parts 9400--9499)

                      Title 12--Banks and Banking

         I  Comptroller of the Currency, Department of the 
                Treasury (Parts 1--199)
        II  Federal Reserve System (Parts 200--299)
       III  Federal Deposit Insurance Corporation (Parts 300--399)
        IV  Export-Import Bank of the United States (Parts 400--
                499)
         V  Office of Thrift Supervision, Department of the 
                Treasury (Parts 500--599)
        VI  Farm Credit Administration (Parts 600--699)
       VII  National Credit Union Administration (Parts 700--799)
      VIII  Federal Financing Bank (Parts 800--899)
        IX  Federal Housing Finance Board (Parts 900--999)
        XI  Federal Financial Institutions Examination Council 
                (Parts 1100--1199)
       XII  Federal Housing Finance Agency (Parts 1200--1299)
       XIV  Farm Credit System Insurance Corporation (Parts 1400--
                1499)
        XV  Department of the Treasury (Parts 1500--1599)
      XVII  Office of Federal Housing Enterprise Oversight, 
                Department of Housing and Urban Development (Parts 
                1700--1799)
     XVIII  Community Development Financial Institutions Fund, 
                Department of the Treasury (Parts 1800--1899)

               Title 13--Business Credit and Assistance

         I  Small Business Administration (Parts 1--199)
       III  Economic Development Administration, Department of 
                Commerce (Parts 300--399)
        IV  Emergency Steel Guarantee Loan Board (Parts 400--499)
         V  Emergency Oil and Gas Guaranteed Loan Board (Parts 
                500--599)

                    Title 14--Aeronautics and Space

         I  Federal Aviation Administration, Department of 
                Transportation (Parts 1--199)
        II  Office of the Secretary, Department of Transportation 
                (Aviation Proceedings) (Parts 200--399)

[[Page 747]]

       III  Commercial Space Transportation, Federal Aviation 
                Administration, Department of Transportation 
                (Parts 400--499)
         V  National Aeronautics and Space Administration (Parts 
                1200--1299)
        VI  Air Transportation System Stabilization (Parts 1300--
                1399)

                 Title 15--Commerce and Foreign Trade

            Subtitle A--Office of the Secretary of Commerce (Parts 
                0--29)
            Subtitle B--Regulations Relating to Commerce and 
                Foreign Trade
         I  Bureau of the Census, Department of Commerce (Parts 
                30--199)
        II  National Institute of Standards and Technology, 
                Department of Commerce (Parts 200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Foreign-Trade Zones Board, Department of Commerce 
                (Parts 400--499)
       VII  Bureau of Industry and Security, Department of 
                Commerce (Parts 700--799)
      VIII  Bureau of Economic Analysis, Department of Commerce 
                (Parts 800--899)
        IX  National Oceanic and Atmospheric Administration, 
                Department of Commerce (Parts 900--999)
        XI  Technology Administration, Department of Commerce 
                (Parts 1100--1199)
      XIII  East-West Foreign Trade Board (Parts 1300--1399)
       XIV  Minority Business Development Agency (Parts 1400--
                1499)
            Subtitle C--Regulations Relating to Foreign Trade 
                Agreements
        XX  Office of the United States Trade Representative 
                (Parts 2000--2099)
            Subtitle D--Regulations Relating to Telecommunications 
                and Information
     XXIII  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                2300--2399)

                    Title 16--Commercial Practices

         I  Federal Trade Commission (Parts 0--999)
        II  Consumer Product Safety Commission (Parts 1000--1799)

             Title 17--Commodity and Securities Exchanges

         I  Commodity Futures Trading Commission (Parts 1--199)
        II  Securities and Exchange Commission (Parts 200--399)
        IV  Department of the Treasury (Parts 400--499)

[[Page 748]]

          Title 18--Conservation of Power and Water Resources

         I  Federal Energy Regulatory Commission, Department of 
                Energy (Parts 1--399)
       III  Delaware River Basin Commission (Parts 400--499)
        VI  Water Resources Council (Parts 700--799)
      VIII  Susquehanna River Basin Commission (Parts 800--899)
      XIII  Tennessee Valley Authority (Parts 1300--1399)

                       Title 19--Customs Duties

         I  U.S. Customs and Border Protection, Department of 
                Homeland Security; Department of the Treasury 
                (Parts 0--199)
        II  United States International Trade Commission (Parts 
                200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  U.S. Immigration and Customs Enforcement, Department 
                of Homeland Security (Parts 400--599)

                     Title 20--Employees' Benefits

         I  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 1--199)
        II  Railroad Retirement Board (Parts 200--399)
       III  Social Security Administration (Parts 400--499)
        IV  Employees Compensation Appeals Board, Department of 
                Labor (Parts 500--599)
         V  Employment and Training Administration, Department of 
                Labor (Parts 600--699)
        VI  Employment Standards Administration, Department of 
                Labor (Parts 700--799)
       VII  Benefits Review Board, Department of Labor (Parts 
                800--899)
      VIII  Joint Board for the Enrollment of Actuaries (Parts 
                900--999)
        IX  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, Department of 
                Labor (Parts 1000--1099)

                       Title 21--Food and Drugs

         I  Food and Drug Administration, Department of Health and 
                Human Services (Parts 1--1299)
        II  Drug Enforcement Administration, Department of Justice 
                (Parts 1300--1399)
       III  Office of National Drug Control Policy (Parts 1400--
                1499)

                      Title 22--Foreign Relations

         I  Department of State (Parts 1--199)
        II  Agency for International Development (Parts 200--299)
       III  Peace Corps (Parts 300--399)

[[Page 749]]

        IV  International Joint Commission, United States and 
                Canada (Parts 400--499)
         V  Broadcasting Board of Governors (Parts 500--599)
       VII  Overseas Private Investment Corporation (Parts 700--
                799)
        IX  Foreign Service Grievance Board (Parts 900--999)
         X  Inter-American Foundation (Parts 1000--1099)
        XI  International Boundary and Water Commission, United 
                States and Mexico, United States Section (Parts 
                1100--1199)
       XII  United States International Development Cooperation 
                Agency (Parts 1200--1299)
      XIII  Millenium Challenge Corporation (Parts 1300--1399)
       XIV  Foreign Service Labor Relations Board; Federal Labor 
                Relations Authority; General Counsel of the 
                Federal Labor Relations Authority; and the Foreign 
                Service Impasse Disputes Panel (Parts 1400--1499)
        XV  African Development Foundation (Parts 1500--1599)
       XVI  Japan-United States Friendship Commission (Parts 
                1600--1699)
      XVII  United States Institute of Peace (Parts 1700--1799)

                          Title 23--Highways

         I  Federal Highway Administration, Department of 
                Transportation (Parts 1--999)
        II  National Highway Traffic Safety Administration and 
                Federal Highway Administration, Department of 
                Transportation (Parts 1200--1299)
       III  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 1300--1399)

                Title 24--Housing and Urban Development

            Subtitle A--Office of the Secretary, Department of 
                Housing and Urban Development (Parts 0--99)
            Subtitle B--Regulations Relating to Housing and Urban 
                Development
         I  Office of Assistant Secretary for Equal Opportunity, 
                Department of Housing and Urban Development (Parts 
                100--199)
        II  Office of Assistant Secretary for Housing-Federal 
                HousingCommissioner, Department of Housing and 
                Urban Development (Parts 200--299)
       III  Government National Mortgage Association, Department 
                of Housing and Urban Development (Parts 300--399)
        IV  Office of Housing and Office of Multifamily Housing 
                Assistance Restructuring, Department of Housing 
                and Urban Development (Parts 400--499)
         V  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 500--599)

[[Page 750]]

        VI  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 600--699) [Reserved]
       VII  Office of the Secretary, Department of Housing and 
                Urban Development (Housing Assistance Programs and 
                Public and Indian Housing Programs) (Parts 700--
                799)
      VIII  Office of the Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Section 8 Housing Assistance 
                Programs, Section 202 Direct Loan Program, Section 
                202 Supportive Housing for the Elderly Program and 
                Section 811 Supportive Housing for Persons With 
                Disabilities Program) (Parts 800--899)
        IX  Office of Assistant Secretary for Public and Indian 
                Housing, Department of Housing and Urban 
                Development (Parts 900--1699)
         X  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Interstate Land Sales 
                Registration Program) (Parts 1700--1799)
       XII  Office of Inspector General, Department of Housing and 
                Urban Development (Parts 2000--2099)
        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)
      XXIV  Board of Directors of the HOPE for Homeowners Program 
                (Parts 4000--4099)
       XXV  Neighborhood Reinvestment Corporation (Parts 4100--
                4199)

                           Title 25--Indians

         I  Bureau of Indian Affairs, Department of the Interior 
                (Parts 1--299)
        II  Indian Arts and Crafts Board, Department of the 
                Interior (Parts 300--399)
       III  National Indian Gaming Commission, Department of the 
                Interior (Parts 500--599)
        IV  Office of Navajo and Hopi Indian Relocation (Parts 
                700--799)
         V  Bureau of Indian Affairs, Department of the Interior, 
                and Indian Health Service, Department of Health 
                and Human Services (Part 900)
        VI  Office of the Assistant Secretary-Indian Affairs, 
                Department of the Interior (Parts 1000--1199)
       VII  Office of the Special Trustee for American Indians, 
                Department of the Interior (Parts 1200--1299)

                      Title 26--Internal Revenue

         I  Internal Revenue Service, Department of the Treasury 
                (Parts 1--899)

[[Page 751]]

           Title 27--Alcohol, Tobacco Products and Firearms

         I  Alcohol and Tobacco Tax and Trade Bureau, Department 
                of the Treasury (Parts 1--399)
        II  Bureau of Alcohol, Tobacco, Firearms, and Explosives, 
                Department of Justice (Parts 400--699)

                   Title 28--Judicial Administration

         I  Department of Justice (Parts 0--299)
       III  Federal Prison Industries, Inc., Department of Justice 
                (Parts 300--399)
         V  Bureau of Prisons, Department of Justice (Parts 500--
                599)
        VI  Offices of Independent Counsel, Department of Justice 
                (Parts 600--699)
       VII  Office of Independent Counsel (Parts 700--799)
      VIII  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 800--899)
        IX  National Crime Prevention and Privacy Compact Council 
                (Parts 900--999)
        XI  Department of Justice and Department of State (Parts 
                1100--1199)

                            Title 29--Labor

            Subtitle A--Office of the Secretary of Labor (Parts 
                0--99)
            Subtitle B--Regulations Relating to Labor
         I  National Labor Relations Board (Parts 100--199)
        II  Office of Labor-Management Standards, Department of 
                Labor (Parts 200--299)
       III  National Railroad Adjustment Board (Parts 300--399)
        IV  Office of Labor-Management Standards, Department of 
                Labor (Parts 400--499)
         V  Wage and Hour Division, Department of Labor (Parts 
                500--899)
        IX  Construction Industry Collective Bargaining Commission 
                (Parts 900--999)
         X  National Mediation Board (Parts 1200--1299)
       XII  Federal Mediation and Conciliation Service (Parts 
                1400--1499)
       XIV  Equal Employment Opportunity Commission (Parts 1600--
                1699)
      XVII  Occupational Safety and Health Administration, 
                Department of Labor (Parts 1900--1999)
        XX  Occupational Safety and Health Review Commission 
                (Parts 2200--2499)
       XXV  Employee Benefits Security Administration, Department 
                of Labor (Parts 2500--2599)
     XXVII  Federal Mine Safety and Health Review Commission 
                (Parts 2700--2799)
        XL  Pension Benefit Guaranty Corporation (Parts 4000--
                4999)

[[Page 752]]

                      Title 30--Mineral Resources

         I  Mine Safety and Health Administration, Department of 
                Labor (Parts 1--199)
        II  Minerals Management Service, Department of the 
                Interior (Parts 200--299)
       III  Board of Surface Mining and Reclamation Appeals, 
                Department of the Interior (Parts 300--399)
        IV  Geological Survey, Department of the Interior (Parts 
                400--499)
       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700--999)

                 Title 31--Money and Finance: Treasury

            Subtitle A--Office of the Secretary of the Treasury 
                (Parts 0--50)
            Subtitle B--Regulations Relating to Money and Finance
         I  Monetary Offices, Department of the Treasury (Parts 
                51--199)
        II  Fiscal Service, Department of the Treasury (Parts 
                200--399)
        IV  Secret Service, Department of the Treasury (Parts 
                400--499)
         V  Office of Foreign Assets Control, Department of the 
                Treasury (Parts 500--599)
        VI  Bureau of Engraving and Printing, Department of the 
                Treasury (Parts 600--699)
       VII  Federal Law Enforcement Training Center, Department of 
                the Treasury (Parts 700--799)
      VIII  Office of International Investment, Department of the 
                Treasury (Parts 800--899)
        IX  Federal Claims Collection Standards (Department of the 
                Treasury--Department of Justice) (Parts 900--999)

                      Title 32--National Defense

            Subtitle A--Department of Defense
         I  Office of the Secretary of Defense (Parts 1--399)
         V  Department of the Army (Parts 400--699)
        VI  Department of the Navy (Parts 700--799)
       VII  Department of the Air Force (Parts 800--1099)
            Subtitle B--Other Regulations Relating to National 
                Defense
       XII  Defense Logistics Agency (Parts 1200--1299)
       XVI  Selective Service System (Parts 1600--1699)
      XVII  Office of the Director of National Intelligence (Parts 
                1700--1799)
     XVIII  National Counterintelligence Center (Parts 1800--1899)
       XIX  Central Intelligence Agency (Parts 1900--1999)
        XX  Information Security Oversight Office, National 
                Archives and Records Administration (Parts 2000--
                2099)
       XXI  National Security Council (Parts 2100--2199)
      XXIV  Office of Science and Technology Policy (Parts 2400--
                2499)
     XXVII  Office for Micronesian Status Negotiations (Parts 
                2700--2799)

[[Page 753]]

    XXVIII  Office of the Vice President of the United States 
                (Parts 2800--2899)

               Title 33--Navigation and Navigable Waters

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Corps of Engineers, Department of the Army (Parts 
                200--399)
        IV  Saint Lawrence Seaway Development Corporation, 
                Department of Transportation (Parts 400--499)

                          Title 34--Education

            Subtitle A--Office of the Secretary, Department of 
                Education (Parts 1--99)
            Subtitle B--Regulations of the Offices of the 
                Department of Education
         I  Office for Civil Rights, Department of Education 
                (Parts 100--199)
        II  Office of Elementary and Secondary Education, 
                Department of Education (Parts 200--299)
       III  Office of Special Education and Rehabilitative 
                Services, Department of Education (Parts 300--399)
        IV  Office of Vocational and Adult Education, Department 
                of Education (Parts 400--499)
         V  Office of Bilingual Education and Minority Languages 
                Affairs, Department of Education (Parts 500--599)
        VI  Office of Postsecondary Education, Department of 
                Education (Parts 600--699)
       VII  Office of Educational Research and Improvmeent, 
                Department of Education [Reserved]
        XI  National Institute for Literacy (Parts 1100--1199)
            Subtitle C--Regulations Relating to Education
       XII  National Council on Disability (Parts 1200--1299)

                          Title 35 [Reserved]

             Title 36--Parks, Forests, and Public Property

         I  National Park Service, Department of the Interior 
                (Parts 1--199)
        II  Forest Service, Department of Agriculture (Parts 200--
                299)
       III  Corps of Engineers, Department of the Army (Parts 
                300--399)
        IV  American Battle Monuments Commission (Parts 400--499)
         V  Smithsonian Institution (Parts 500--599)
        VI  [Reserved]
       VII  Library of Congress (Parts 700--799)
      VIII  Advisory Council on Historic Preservation (Parts 800--
                899)
        IX  Pennsylvania Avenue Development Corporation (Parts 
                900--999)
         X  Presidio Trust (Parts 1000--1099)

[[Page 754]]

        XI  Architectural and Transportation Barriers Compliance 
                Board (Parts 1100--1199)
       XII  National Archives and Records Administration (Parts 
                1200--1299)
        XV  Oklahoma City National Memorial Trust (Parts 1500--
                1599)
       XVI  Morris K. Udall Scholarship and Excellence in National 
                Environmental Policy Foundation (Parts 1600--1699)

             Title 37--Patents, Trademarks, and Copyrights

         I  United States Patent and Trademark Office, Department 
                of Commerce (Parts 1--199)
        II  Copyright Office, Library of Congress (Parts 200--299)
       III  Copyright Royalty Board, Library of Congress (Parts 
                301--399)
        IV  Assistant Secretary for Technology Policy, Department 
                of Commerce (Parts 400--499)
         V  Under Secretary for Technology, Department of Commerce 
                (Parts 500--599)

           Title 38--Pensions, Bonuses, and Veterans' Relief

         I  Department of Veterans Affairs (Parts 0--99)
        II  Armed Forces Retirement Home

                       Title 39--Postal Service

         I  United States Postal Service (Parts 1--999)
       III  Postal Regulatory Commission (Parts 3000--3099)

                  Title 40--Protection of Environment

         I  Environmental Protection Agency (Parts 1--1099)
        IV  Environmental Protection Agency and Department of 
                Justice (Parts 1400--1499)
         V  Council on Environmental Quality (Parts 1500--1599)
        VI  Chemical Safety and Hazard Investigation Board (Parts 
                1600--1699)
       VII  Environmental Protection Agency and Department of 
                Defense; Uniform National Discharge Standards for 
                Vessels of the Armed Forces (Parts 1700--1799)

          Title 41--Public Contracts and Property Management

            Subtitle B--Other Provisions Relating to Public 
                Contracts
        50  Public Contracts, Department of Labor (Parts 50-1--50-
                999)
        51  Committee for Purchase From People Who Are Blind or 
                Severely Disabled (Parts 51-1--51-99)
        60  Office of Federal Contract Compliance Programs, Equal 
                Employment Opportunity, Department of Labor (Parts 
                60-1--60-999)

[[Page 755]]

        61  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, Department of 
                Labor (Parts 61-1--61-999)
 Chapters 
   62--100  [Reserved]
            Subtitle C--Federal Property Management Regulations 
                System
       101  Federal Property Management Regulations (Parts 101-1--
                101-99)
       102  Federal Management Regulation (Parts 102-1--102-299)
 Chapters 
  103--104  [Reserved]
       105  General Services Administration (Parts 105-1--105-999)
       109  Department of Energy Property Management Regulations 
                (Parts 109-1--109-99)
       114  Department of the Interior (Parts 114-1--114-99)
       115  Environmental Protection Agency (Parts 115-1--115-99)
       128  Department of Justice (Parts 128-1--128-99)
 Chapters 
  129--200  [Reserved]
            Subtitle D--Other Provisions Relating to Property 
                Management [Reserved]
            Subtitle E--Federal Information Resources Management 
                Regulations System [Reserved]
            Subtitle F--Federal Travel Regulation System
       300  General (Parts 300-1--300-99)
       301  Temporary Duty (TDY) Travel Allowances (Parts 301-1--
                301-99)
       302  Relocation Allowances (Parts 302-1--302-99)
       303  Payment of Expenses Connected with the Death of 
                Certain Employees (Part 303-1--303-99)
       304  Payment of Travel Expenses from a Non-Federal Source 
                (Parts 304-1--304-99)

                        Title 42--Public Health

         I  Public Health Service, Department of Health and Human 
                Services (Parts 1--199)
        IV  Centers for Medicare & Medicaid Services, Department 
                of Health and Human Services (Parts 400--499)
         V  Office of Inspector General-Health Care, Department of 
                Health and Human Services (Parts 1000--1999)

                   Title 43--Public Lands: Interior

            Subtitle A--Office of the Secretary of the Interior 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Lands
         I  Bureau of Reclamation, Department of the Interior 
                (Parts 200--499)
        II  Bureau of Land Management, Department of the Interior 
                (Parts 1000--9999)

[[Page 756]]

       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10010)

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency, Department of 
                Homeland Security (Parts 0--399)
        IV  Department of Commerce and Department of 
                Transportation (Parts 400--499)

                       Title 45--Public Welfare

            Subtitle A--Department of Health and Human Services 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Welfare
        II  Office of Family Assistance (Assistance Programs), 
                Administration for Children and Families, 
                Department of Health and Human Services (Parts 
                200--299)
       III  Office of Child Support Enforcement (Child Support 
                Enforcement Program), Administration for Children 
                and Families, Department of Health and Human 
                Services (Parts 300--399)
        IV  Office of Refugee Resettlement, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 400--499)
         V  Foreign Claims Settlement Commission of the United 
                States, Department of Justice (Parts 500--599)
        VI  National Science Foundation (Parts 600--699)
       VII  Commission on Civil Rights (Parts 700--799)
      VIII  Office of Personnel Management (Parts 800--899) 
                [Reserved]
         X  Office of Community Services, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 1000--1099)
        XI  National Foundation on the Arts and the Humanities 
                (Parts 1100--1199)
       XII  Corporation for National and Community Service (Parts 
                1200--1299)
      XIII  Office of Human Development Services, Department of 
                Health and Human Services (Parts 1300--1399)
       XVI  Legal Services Corporation (Parts 1600--1699)
      XVII  National Commission on Libraries and Information 
                Science (Parts 1700--1799)
     XVIII  Harry S. Truman Scholarship Foundation (Parts 1800--
                1899)
       XXI  Commission on Fine Arts (Parts 2100--2199)
     XXIII  Arctic Research Commission (Part 2301)
      XXIV  James Madison Memorial Fellowship Foundation (Parts 
                2400--2499)
       XXV  Corporation for National and Community Service (Parts 
                2500--2599)

[[Page 757]]

                          Title 46--Shipping

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Maritime Administration, Department of Transportation 
                (Parts 200--399)
       III  Coast Guard (Great Lakes Pilotage), Department of 
                Homeland Security (Parts 400--499)
        IV  Federal Maritime Commission (Parts 500--599)

                      Title 47--Telecommunication

         I  Federal Communications Commission (Parts 0--199)
        II  Office of Science and Technology Policy and National 
                Security Council (Parts 200--299)
       III  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                300--399)
        IV  National Telecommunications and Information 
                Administration, Department of Commerce, and 
                National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 400--499)

           Title 48--Federal Acquisition Regulations System

         1  Federal Acquisition Regulation (Parts 1--99)
         2  Defense Acquisition Regulations System, Department of 
                Defense (Parts 200--299)
         3  Health and Human Services (Parts 300--399)
         4  Department of Agriculture (Parts 400--499)
         5  General Services Administration (Parts 500--599)
         6  Department of State (Parts 600--699)
         7  Agency for International Development (Parts 700--799)
         8  Department of Veterans Affairs (Parts 800--899)
         9  Department of Energy (Parts 900--999)
        10  Department of the Treasury (Parts 1000--1099)
        12  Department of Transportation (Parts 1200--1299)
        13  Department of Commerce (Parts 1300--1399)
        14  Department of the Interior (Parts 1400--1499)
        15  Environmental Protection Agency (Parts 1500--1599)
        16  Office of Personnel Management, Federal Employees 
                Health Benefits Acquisition Regulation (Parts 
                1600--1699)
        17  Office of Personnel Management (Parts 1700--1799)
        18  National Aeronautics and Space Administration (Parts 
                1800--1899)
        19  Broadcasting Board of Governors (Parts 1900--1999)
        20  Nuclear Regulatory Commission (Parts 2000--2099)
        21  Office of Personnel Management, Federal Employees 
                Group Life Insurance Federal Acquisition 
                Regulation (Parts 2100--2199)
        23  Social Security Administration (Parts 2300--2399)
        24  Department of Housing and Urban Development (Parts 
                2400--2499)

[[Page 758]]

        25  National Science Foundation (Parts 2500--2599)
        28  Department of Justice (Parts 2800--2899)
        29  Department of Labor (Parts 2900--2999)
        30  Department of Homeland Security, Homeland Security 
                Acquisition Regulation (HSAR) (Parts 3000--3099)
        34  Department of Education Acquisition Regulation (Parts 
                3400--3499)
        51  Department of the Army Acquisition Regulations (Parts 
                5100--5199)
        52  Department of the Navy Acquisition Regulations (Parts 
                5200--5299)
        53  Department of the Air Force Federal Acquisition 
                Regulation Supplement [Reserved]
        54  Defense Logistics Agency, Department of Defense (Parts 
                5400--5499)
        57  African Development Foundation (Parts 5700--5799)
        61  Civilian Board of Contract Appeals, General Services 
                Administration (Parts 6100--6199)
        63  Department of Transportation Board of Contract Appeals 
                (Parts 6300--6399)
        99  Cost Accounting Standards Board, Office of Federal 
                Procurement Policy, Office of Management and 
                Budget (Parts 9900--9999)

                       Title 49--Transportation

            Subtitle A--Office of the Secretary of Transportation 
                (Parts 1--99)
            Subtitle B--Other Regulations Relating to 
                Transportation
         I  Pipeline and Hazardous Materials Safety 
                Administration, Department of Transportation 
                (Parts 100--199)
        II  Federal Railroad Administration, Department of 
                Transportation (Parts 200--299)
       III  Federal Motor Carrier Safety Administration, 
                Department of Transportation (Parts 300--399)
        IV  Coast Guard, Department of Homeland Security (Parts 
                400--499)
         V  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 500--599)
        VI  Federal Transit Administration, Department of 
                Transportation (Parts 600--699)
       VII  National Railroad Passenger Corporation (AMTRAK) 
                (Parts 700--799)
      VIII  National Transportation Safety Board (Parts 800--999)
         X  Surface Transportation Board, Department of 
                Transportation (Parts 1000--1399)
        XI  Research and Innovative Technology Administration, 
                Department of Transportation [Reserved]
       XII  Transportation Security Administration, Department of 
                Homeland Security (Parts 1500--1699)

[[Page 759]]

                   Title 50--Wildlife and Fisheries

         I  United States Fish and Wildlife Service, Department of 
                the Interior (Parts 1--199)
        II  National Marine Fisheries Service, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 200--299)
       III  International Fishing and Related Activities (Parts 
                300--399)
        IV  Joint Regulations (United States Fish and Wildlife 
                Service, Department of the Interior and National 
                Marine Fisheries Service, National Oceanic and 
                Atmospheric Administration, Department of 
                Commerce); Endangered Species Committee 
                Regulations (Parts 400--499)
         V  Marine Mammal Commission (Parts 500--599)
        VI  Fishery Conservation and Management, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 600--699)

                      CFR Index and Finding Aids

            Subject/Agency Index
            List of Agency Prepared Indexes
            Parallel Tables of Statutory Authorities and Rules
            List of CFR Titles, Chapters, Subchapters, and Parts
            Alphabetical List of Agencies Appearing in the CFR

[[Page 761]]





           Alphabetical List of Agencies Appearing in the CFR




                     (Revised as of October 1, 2010)

                                                  CFR Title, Subtitle or 
                     Agency                               Chapter

Administrative Committee of the Federal Register  1, I
Advanced Research Projects Agency                 32, I
Advisory Council on Historic Preservation         36, VIII
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development              22, II
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, IX, X, XI
Agricultural Research Service                     7, V
Agriculture Department                            2, IV; 5, LXXIII
  Agricultural Marketing Service                  7, I, IX, X, XI
  Agricultural Research Service                   7, V
  Animal and Plant Health Inspection Service      7, III; 9, I
  Chief Financial Officer, Office of              7, XXX
  Commodity Credit Corporation                    7, XIV
  Economic Research Service                       7, XXXVII
  Energy Policy and New Uses, Office of           2, IX; 7, XXIX
  Environmental Quality, Office of                7, XXXI
  Farm Service Agency                             7, VII, XVIII
  Federal Acquisition Regulation                  48, 4
  Federal Crop Insurance Corporation              7, IV
  Food and Nutrition Service                      7, II
  Food Safety and Inspection Service              9, III
  Foreign Agricultural Service                    7, XV
  Forest Service                                  36, II
  Grain Inspection, Packers and Stockyards        7, VIII; 9, II
       Administration
  Information Resources Management, Office of     7, XXVII
  Inspector General, Office of                    7, XXVI
  National Agricultural Library                   7, XLI
  National Agricultural Statistics Service        7, XXXVI
  National Institute of Food and Agriculture.     7, XXXIV
  Natural Resources Conservation Service          7, VI
  Operations, Office of                           7, XXVIII
  Procurement and Property Management, Office of  7, XXXII
  Rural Business-Cooperative Service              7, XVIII, XLII, L
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV, L
  Rural Telephone Bank                            7, XVI
  Rural Utilities Service                         7, XVII, XVIII, XLII, L
  Secretary of Agriculture, Office of             7, Subtitle A
  Transportation, Office of                       7, XXXIII
  World Agricultural Outlook Board                7, XXXVIII
Air Force Department                              32, VII
  Federal Acquisition Regulation Supplement       48, 53
Air Transportation Stabilization Board            14, VI
Alcohol and Tobacco Tax and Trade Bureau          27, I
Alcohol, Tobacco, Firearms, and Explosives,       27, II
     Bureau of
AMTRAK                                            49, VII
American Battle Monuments Commission              36, IV
American Indians, Office of the Special Trustee   25, VII
Animal and Plant Health Inspection Service        7, III; 9, I
Appalachian Regional Commission                   5, IX
Architectural and Transportation Barriers         36, XI
   Compliance Board
[[Page 762]]

Arctic Research Commission                        45, XXIII
Armed Forces Retirement Home                      5, XI
Army Department                                   32, V
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 51
Benefits Review Board                             20, VII
Bilingual Education and Minority Languages        34, V
     Affairs, Office of
Blind or Severely Disabled, Committee for         41, 51
     Purchase From People Who Are
Broadcasting Board of Governors                   22, V
  Federal Acquisition Regulation                  48, 19
Census Bureau                                     15, I
Centers for Medicare & Medicaid Services          42, IV
Central Intelligence Agency                       32, XIX
Chief Financial Officer, Office of                7, XXX
Child Support Enforcement, Office of              45, III
Children and Families, Administration for         45, II, III, IV, X
Civil Rights, Commission on                       5, LXVIII; 45, VII
Civil Rights, Office for                          34, I
Coast Guard                                       33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage)                46, III
Commerce Department                               44, IV
  Census Bureau                                   15, I
  Economic Affairs, Under Secretary               37, V
  Economic Analysis, Bureau of                    15, VIII
  Economic Development Administration             13, III
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 13
  Fishery Conservation and Management             50, VI
  Foreign-Trade Zones Board                       15, IV
  Industry and Security, Bureau of                15, VII
  International Trade Administration              15, III; 19, III
  National Institute of Standards and Technology  15, II
  National Marine Fisheries Service               50, II, IV, VI
  National Oceanic and Atmospheric                15, IX; 50, II, III, IV, 
       Administration                             VI
  National Telecommunications and Information     15, XXIII; 47, III, IV
       Administration
  National Weather Service                        15, IX
  Patent and Trademark Office, United States      37, I
  Productivity, Technology and Innovation,        37, IV
       Assistant Secretary for
  Secretary of Commerce, Office of                15, Subtitle A
  Technology, Under Secretary for                 37, V
  Technology Administration                       15, XI
  Technology Policy, Assistant Secretary for      37, IV
Commercial Space Transportation                   14, III
Commodity Credit Corporation                      7, XIV
Commodity Futures Trading Commission              5, XLI; 17, I
Community Planning and Development, Office of     24, V, VI
     Assistant Secretary for
Community Services, Office of                     45, X
Comptroller of the Currency                       12, I
Construction Industry Collective Bargaining       29, IX
     Commission
Consumer Product Safety Commission                5, LXXI; 16, II
Copyright Office                                  37, II
Copyright Royalty Board                           37, III
Corporation for National and Community Service    2, XXII; 45, XII, XXV
Cost Accounting Standards Board                   48, 99
Council on Environmental Quality                  40, V
Court Services and Offender Supervision Agency    28, VIII
     for the District of Columbia
Customs and Border Protection Bureau              19, I
Defense Contract Audit Agency                     32, I
Defense Department                                5, XXVI; 32, Subtitle A; 
                                                  40, VII
  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII

[[Page 763]]

  Army Department                                 32, V; 33, II; 36, III, 
                                                  48, 51
  Defense Acquisition Regulations System          48, 2
  Defense Intelligence Agency                     32, I
  Defense Logistics Agency                        32, I, XII; 48, 54
  Engineers, Corps of                             33, II; 36, III
  Human Resources Management and Labor Relations  5, XCIX
       Systems
  National Imagery and Mapping Agency             32, I
  Navy Department                                 32, VI; 48, 52
  Secretary of Defense, Office of                 2, XI; 32, I
Defense Contract Audit Agency                     32, I
Defense Intelligence Agency                       32, I
Defense Logistics Agency                          32, XII; 48, 54
Defense Nuclear Facilities Safety Board           10, XVII
Delaware River Basin Commission                   18, III
District of Columbia, Court Services and          28, VIII
     Offender Supervision Agency for the
Drug Enforcement Administration                   21, II
East-West Foreign Trade Board                     15, XIII
Economic Affairs, Under Secretary                 37, V
Economic Analysis, Bureau of                      15, VIII
Economic Development Administration               13, III
Economic Research Service                         7, XXXVII
Education, Department of                          5, LIII
  Bilingual Education and Minority Languages      34, V
       Affairs, Office of
  Civil Rights, Office for                        34, I
  Educational Research and Improvement, Office    34, VII
       of
  Elementary and Secondary Education, Office of   34, II
  Federal Acquisition Regulation                  48, 34
  Postsecondary Education, Office of              34, VI
  Secretary of Education, Office of               34, Subtitle A
  Special Education and Rehabilitative Services,  34, III
       Office of
  Vocational and Adult Education, Office of       34, IV
Educational Research and Improvement, Office of   34, VII
Election Assistance Commission                    2, LVIII; 11, II
Elementary and Secondary Education, Office of     34, II
Emergency Oil and Gas Guaranteed Loan Board       13, V
Emergency Steel Guarantee Loan Board              13, IV
Employee Benefits Security Administration         29, XXV
Employees' Compensation Appeals Board             20, IV
Employees Loyalty Board                           5, V
Employment and Training Administration            20, V
Employment Standards Administration               20, VI
Endangered Species Committee                      50, IV
Energy, Department of                             5, XXIII; 10, II, III, X
  Federal Acquisition Regulation                  48, 9
  Federal Energy Regulatory Commission            5, XXIV; 18, I
  Property Management Regulations                 41, 109
Energy, Office of                                 7, XXIX
Engineers, Corps of                               33, II; 36, III
Engraving and Printing, Bureau of                 31, VI
Environmental Protection Agency                   2, XV; 5, LIV; 40, I, IV, 
                                                  VII
  Federal Acquisition Regulation                  48, 15
  Property Management Regulations                 41, 115
Environmental Quality, Office of                  7, XXXI
Equal Employment Opportunity Commission           5, LXII; 29, XIV
Equal Opportunity, Office of Assistant Secretary  24, I
     for
Executive Office of the President                 3, I
  Administration, Office of                       5, XV
  Environmental Quality, Council on               40, V
  Management and Budget, Office of                5, III, LXXVII; 14, VI; 
                                                  48, 99
  National Drug Control Policy, Office of         21, III
  National Security Council                       32, XXI; 47, 2

[[Page 764]]

  Presidential Documents                          3
  Science and Technology Policy, Office of        32, XXIV; 47, II
  Trade Representative, Office of the United      15, XX
       States
Export-Import Bank of the United States           2, XXXV; 5, LII; 12, IV
Family Assistance, Office of                      45, II
Farm Credit Administration                        5, XXXI; 12, VI
Farm Credit System Insurance Corporation          5, XXX; 12, XIV
Farm Service Agency                               7, VII, XVIII
Federal Acquisition Regulation                    48, 1
Federal Aviation Administration                   14, I
  Commercial Space Transportation                 14, III
Federal Claims Collection Standards               31, IX
Federal Communications Commission                 5, XXIX; 47, I
Federal Contract Compliance Programs, Office of   41, 60
Federal Crop Insurance Corporation                7, IV
Federal Deposit Insurance Corporation             5, XXII; 12, III
Federal Election Commission                       11, I
Federal Emergency Management Agency               44, I
Federal Employees Group Life Insurance Federal    48, 21
     Acquisition Regulation
Federal Employees Health Benefits Acquisition     48, 16
     Regulation
Federal Energy Regulatory Commission              5, XXIV; 18, I
Federal Financial Institutions Examination        12, XI
     Council
Federal Financing Bank                            12, VIII
Federal Highway Administration                    23, I, II
Federal Home Loan Mortgage Corporation            1, IV
Federal Housing Enterprise Oversight Office       12, XVII
Federal Housing Finance Agency                    5, LXXX; 12, XII
Federal Housing Finance Board                     12, IX
Federal Labor Relations Authority, and General    5, XIV; 22, XIV
     Counsel of the Federal Labor Relations 
     Authority
Federal Law Enforcement Training Center           31, VII
Federal Management Regulation                     41, 102
Federal Maritime Commission                       46, IV
Federal Mediation and Conciliation Service        29, XII
Federal Mine Safety and Health Review Commission  5, LXXIV; 29, XXVII
Federal Motor Carrier Safety Administration       49, III
Federal Prison Industries, Inc.                   28, III
Federal Procurement Policy Office                 48, 99
Federal Property Management Regulations           41, 101
Federal Railroad Administration                   49, II
Federal Register, Administrative Committee of     1, I
Federal Register, Office of                       1, II
Federal Reserve System                            12, II
  Board of Governors                              5, LVIII
Federal Retirement Thrift Investment Board        5, VI, LXXVI
Federal Service Impasses Panel                    5, XIV
Federal Trade Commission                          5, XLVII; 16, I
Federal Transit Administration                    49, VI
Federal Travel Regulation System                  41, Subtitle F
Fine Arts, Commission on                          45, XXI
Fiscal Service                                    31, II
Fish and Wildlife Service, United States          50, I, IV
Fishery Conservation and Management               50, VI
Food and Drug Administration                      21, I
Food and Nutrition Service                        7, II
Food Safety and Inspection Service                9, III
Foreign Agricultural Service                      7, XV
Foreign Assets Control, Office of                 31, V
Foreign Claims Settlement Commission of the       45, V
     United States
Foreign Service Grievance Board                   22, IX
Foreign Service Impasse Disputes Panel            22, XIV
Foreign Service Labor Relations Board             22, XIV
Foreign-Trade Zones Board                         15, IV
Forest Service                                    36, II
General Services Administration                   5, LVII; 41, 105
  Contract Appeals, Board of                      48, 61

[[Page 765]]

  Federal Acquisition Regulation                  48, 5
  Federal Management Regulation                   41, 102
  Federal Property Management Regulations         41, 101
  Federal Travel Regulation System                41, Subtitle F
  General                                         41, 300
  Payment From a Non-Federal Source for Travel    41, 304
       Expenses
  Payment of Expenses Connected With the Death    41, 303
       of Certain Employees
  Relocation Allowances                           41, 302
  Temporary Duty (TDY) Travel Allowances          41, 301
Geological Survey                                 30, IV
Government Accountability Office                  4, I
Government Ethics, Office of                      5, XVI
Government National Mortgage Association          24, III
Grain Inspection, Packers and Stockyards          7, VIII; 9, II
     Administration
Harry S. Truman Scholarship Foundation            45, XVIII
Health and Human Services, Department of          2, III; 5, XLV; 45, 
                                                  Subtitle A,
  Centers for Medicare & Medicaid Services        42, IV
  Child Support Enforcement, Office of            45, III
  Children and Families, Administration for       45, II, III, IV, X
  Community Services, Office of                   45, X
  Family Assistance, Office of                    45, II
  Federal Acquisition Regulation                  48, 3
  Food and Drug Administration                    21, I
  Human Development Services, Office of           45, XIII
  Indian Health Service                           25, V
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
Homeland Security, Department of                  2, XXX; 6, I
  Coast Guard                                     33, I; 46, I; 49, IV
  Coast Guard (Great Lakes Pilotage)              46, III
  Customs and Border Protection Bureau            19, I
  Federal Emergency Management Agency             44, I
  Human Resources Management and Labor Relations  5, XCVII
       Systems
  Immigration and Customs Enforcement Bureau      19, IV
  Immigration and Naturalization                  8, I
  Transportation Security Administration          49, XII
HOPE for Homeowners Program, Board of Directors   24, XXIV
     of
Housing and Urban Development, Department of      2, XXIV; 5, LXV; 24, 
                                                  Subtitle B
  Community Planning and Development, Office of   24, V, VI
       Assistant Secretary for
  Equal Opportunity, Office of Assistant          24, I
       Secretary for
  Federal Acquisition Regulation                  48, 24
  Federal Housing Enterprise Oversight, Office    12, XVII
       of
  Government National Mortgage Association        24, III
  Housing--Federal Housing Commissioner, Office   24, II, VIII, X, XX
       of Assistant Secretary for
  Housing, Office of, and Multifamily Housing     24, IV
       Assistance Restructuring, Office of
  Inspector General, Office of                    24, XII
  Public and Indian Housing, Office of Assistant  24, IX
       Secretary for
  Secretary, Office of                            24, Subtitle A, VII
Housing--Federal Housing Commissioner, Office of  24, II, VIII, X, XX
     Assistant Secretary for
Housing, Office of, and Multifamily Housing       24, IV
     Assistance Restructuring, Office of
Human Development Services, Office of             45, XIII
Immigration and Customs Enforcement Bureau        19, IV
Immigration and Naturalization                    8, I
Immigration Review, Executive Office for          8, V
Independent Counsel, Office of                    28, VII
Indian Affairs, Bureau of                         25, I, V
Indian Affairs, Office of the Assistant           25, VI
   Secretary
[[Page 766]]

Indian Arts and Crafts Board                      25, II
Indian Health Service                             25, V
Industry and Security, Bureau of                  15, VII
Information Resources Management, Office of       7, XXVII
Information Security Oversight Office, National   32, XX
     Archives and Records Administration
Inspector General
  Agriculture Department                          7, XXVI
  Health and Human Services Department            42, V
  Housing and Urban Development Department        24, XII
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Interior Department
  American Indians, Office of the Special         25, VII
       Trustee
  Endangered Species Committee                    50, IV
  Federal Acquisition Regulation                  48, 14
  Federal Property Management Regulations System  41, 114
  Fish and Wildlife Service, United States        50, I, IV
  Geological Survey                               30, IV
  Indian Affairs, Bureau of                       25, I, V
  Indian Affairs, Office of the Assistant         25, VI
       Secretary
  Indian Arts and Crafts Board                    25, II
  Land Management, Bureau of                      43, II
  Minerals Management Service                     30, II
  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Reclamation, Bureau of                          43, I
  Secretary of the Interior, Office of            2, XIV; 43, Subtitle A
  Surface Mining and Reclamation Appeals, Board   30, III
       of
  Surface Mining Reclamation and Enforcement,     30, VII
       Office of
Internal Revenue Service                          26, I
International Boundary and Water Commission,      22, XI
     United States and Mexico, United States 
     Section
International Development, United States Agency   22, II
     for
  Federal Acquisition Regulation                  48, 7
International Development Cooperation Agency,     22, XII
     United States
International Fishing and Related Activities      50, III
International Joint Commission, United States     22, IV
     and Canada
International Organizations Employees Loyalty     5, V
     Board
International Trade Administration                15, III; 19, III
International Trade Commission, United States     19, II
Interstate Commerce Commission                    5, XL
Investment Security, Office of                    31, VIII
James Madison Memorial Fellowship Foundation      45, XXIV
Japan-United States Friendship Commission         22, XVI
Joint Board for the Enrollment of Actuaries       20, VIII
Justice Department                                2, XXVII; 5, XXVIII; 28, 
                                                  I, XI; 40, IV
  Alcohol, Tobacco, Firearms, and Explosives,     27, II
       Bureau of
  Drug Enforcement Administration                 21, II
  Federal Acquisition Regulation                  48, 28
  Federal Claims Collection Standards             31, IX
  Federal Prison Industries, Inc.                 28, III
  Foreign Claims Settlement Commission of the     45, V
       United States
  Immigration Review, Executive Office for        8, V
  Offices of Independent Counsel                  28, VI
  Prisons, Bureau of                              28, V
  Property Management Regulations                 41, 128
Labor Department                                  5, XLII
  Benefits Review Board                           20, VII
  Employee Benefits Security Administration       29, XXV
  Employees' Compensation Appeals Board           20, IV
  Employment and Training Administration          20, V
  Employment Standards Administration             20, VI
  Federal Acquisition Regulation                  48, 29

[[Page 767]]

  Federal Contract Compliance Programs, Office    41, 60
       of
  Federal Procurement Regulations System          41, 50
  Labor-Management Standards, Office of           29, II, IV
  Mine Safety and Health Administration           30, I
  Occupational Safety and Health Administration   29, XVII
  Public Contracts                                41, 50
  Secretary of Labor, Office of                   29, Subtitle A
  Veterans' Employment and Training Service,      41, 61; 20, IX
       Office of the Assistant Secretary for
  Wage and Hour Division                          29, V
  Workers' Compensation Programs, Office of       20, I
Labor-Management Standards, Office of             29, II, IV
Land Management, Bureau of                        43, II
Legal Services Corporation                        45, XVI
Library of Congress                               36, VII
  Copyright Office                                37, II
  Copyright Royalty Board                         37, III
Local Television Loan Guarantee Board             7, XX
Management and Budget, Office of                  5, III, LXXVII; 14, VI; 
                                                  48, 99
Marine Mammal Commission                          50, V
Maritime Administration                           46, II
Merit Systems Protection Board                    5, II, LXIV
Micronesian Status Negotiations, Office for       32, XXVII
Millenium Challenge Corporation                   22, XIII
Mine Safety and Health Administration             30, I
Minerals Management Service                       30, II
Minority Business Development Agency              15, XIV
Miscellaneous Agencies                            1, IV
Monetary Offices                                  31, I
Morris K. Udall Scholarship and Excellence in     36, XVI
     National Environmental Policy Foundation
Museum and Library Services, Institute of         2, XXXI
National Aeronautics and Space Administration     2, XVIII; 5, LIX; 14, V
  Federal Acquisition Regulation                  48, 18
National Agricultural Library                     7, XLI
National Agricultural Statistics Service          7, XXXVI
National and Community Service, Corporation for   45, XII, XXV
National Archives and Records Administration      2, XXVI; 5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
National Capital Planning Commission              1, IV
National Commission for Employment Policy         1, IV
National Commission on Libraries and Information  45, XVII
     Science
National Council on Disability                    34, XII
National Counterintelligence Center               32, XVIII
National Credit Union Administration              12, VII
National Crime Prevention and Privacy Compact     28, IX
     Council
National Drug Control Policy, Office of           21, III
National Endowment for the Arts                   2, XXXII
National Endowment for the Humanities             2, XXXIII
National Foundation on the Arts and the           45, XI
     Humanities
National Highway Traffic Safety Administration    23, II, III; 47, VI; 49, V
National Imagery and Mapping Agency               32, I
National Indian Gaming Commission                 25, III
National Institute for Literacy                   34, XI
National Institute of Food and Agriculture.       7, XXXIV
National Institute of Standards and Technology    15, II
National Intelligence, Office of Director of      32, XVII
National Labor Relations Board                    5, LXI; 29, I
National Marine Fisheries Service                 50, II, IV, VI
National Mediation Board                          29, X
National Oceanic and Atmospheric Administration   15, IX; 50, II, III, IV, 
                                                  VI
National Park Service                             36, I
National Railroad Adjustment Board                29, III
National Railroad Passenger Corporation (AMTRAK)  49, VII
National Science Foundation                       2, XXV; 5, XLIII; 45, VI

[[Page 768]]

  Federal Acquisition Regulation                  48, 25
National Security Council                         32, XXI
National Security Council and Office of Science   47, II
     and Technology Policy
National Telecommunications and Information       15, XXIII; 47, III, IV
     Administration
National Transportation Safety Board              49, VIII
Natural Resources Conservation Service            7, VI
Navajo and Hopi Indian Relocation, Office of      25, IV
Navy Department                                   32, VI
  Federal Acquisition Regulation                  48, 52
Neighborhood Reinvestment Corporation             24, XXV
Northeast Interstate Low-Level Radioactive Waste  10, XVIII
     Commission
Nuclear Regulatory Commission                     2, XX; 5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Offices of Independent Counsel                    28, VI
Oklahoma City National Memorial Trust             36, XV
Operations Office                                 7, XXVIII
Overseas Private Investment Corporation           5, XXXIII; 22, VII
Patent and Trademark Office, United States        37, I
Payment From a Non-Federal Source for Travel      41, 304
     Expenses
Payment of Expenses Connected With the Death of   41, 303
     Certain Employees
Peace Corps                                       22, III
Pennsylvania Avenue Development Corporation       36, IX
Pension Benefit Guaranty Corporation              29, XL
Personnel Management, Office of                   5, I, XXXV; 45, VIII
  Human Resources Management and Labor Relations  5, XCIX
       Systems, Department of Defense
  Human Resources Management and Labor Relations  5, XCVII
       Systems, Department of Homeland Security
  Federal Acquisition Regulation                  48, 17
  Federal Employees Group Life Insurance Federal  48, 21
       Acquisition Regulation
  Federal Employees Health Benefits Acquisition   48, 16
       Regulation
Pipeline and Hazardous Materials Safety           49, I
     Administration
Postal Regulatory Commission                      5, XLVI; 39, III
Postal Service, United States                     5, LX; 39, I
Postsecondary Education, Office of                34, VI
President's Commission on White House             1, IV
     Fellowships
Presidential Documents                            3
Presidio Trust                                    36, X
Prisons, Bureau of                                28, V
Procurement and Property Management, Office of    7, XXXII
Productivity, Technology and Innovation,          37, IV
     Assistant Secretary
Public Contracts, Department of Labor             41, 50
Public and Indian Housing, Office of Assistant    24, IX
     Secretary for
Public Health Service                             42, I
Railroad Retirement Board                         20, II
Reclamation, Bureau of                            43, I
Recovery Accountability and Transparency Board    4, II
Refugee Resettlement, Office of                   45, IV
Relocation Allowances                             41, 302
Research and Innovative Technology                49, XI
     Administration
Rural Business-Cooperative Service                7, XVIII, XLII, L
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV, L
Rural Telephone Bank                              7, XVI
Rural Utilities Service                           7, XVII, XVIII, XLII, L
Saint Lawrence Seaway Development Corporation     33, IV
Science and Technology Policy, Office of          32, XXIV
Science and Technology Policy, Office of, and     47, II
   National Security Council
[[Page 769]]

Secret Service                                    31, IV
Securities and Exchange Commission                5, XXXIV; 17, II
Selective Service System                          32, XVI
Small Business Administration                     2, XXVII; 13, I
Smithsonian Institution                           36, V
Social Security Administration                    2, XXIII; 20, III; 48, 23
Soldiers' and Airmen's Home, United States        5, XI
Special Counsel, Office of                        5, VIII
Special Education and Rehabilitative Services,    34, III
     Office of
Special Inspector General for Iraq                5, LXXXVII
     Reconstruction
State Department                                  2, VI; 22, I; 28, XI
  Federal Acquisition Regulation                  48, 6
Surface Mining and Reclamation Appeals, Board of  30, III
Surface Mining Reclamation and Enforcement,       30, VII
     Office of
Surface Transportation Board                      49, X
Susquehanna River Basin Commission                18, VIII
Technology Administration                         15, XI
Technology Policy, Assistant Secretary for        37, IV
Technology, Under Secretary for                   37, V
Tennessee Valley Authority                        5, LXIX; 18, XIII
Thrift Supervision Office, Department of the      12, V
     Treasury
Trade Representative, United States, Office of    15, XX
Transportation, Department of                     2, XII; 5, L
  Commercial Space Transportation                 14, III
  Contract Appeals, Board of                      48, 63
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 12
  Federal Aviation Administration                 14, I
  Federal Highway Administration                  23, I, II
  Federal Motor Carrier Safety Administration     49, III
  Federal Railroad Administration                 49, II
  Federal Transit Administration                  49, VI
  Maritime Administration                         46, II
  National Highway Traffic Safety Administration  23, II, III; 47, IV; 49, V
  Pipeline and Hazardous Materials Safety         49, I
       Administration
  Saint Lawrence Seaway Development Corporation   33, IV
  Secretary of Transportation, Office of          14, II; 49, Subtitle A
  Surface Transportation Board                    49, X
  Transportation Statistics Bureau                49, XI
Transportation, Office of                         7, XXXIII
Transportation Security Administration            49, XII
Transportation Statistics Bureau                  49, XI
Travel Allowances, Temporary Duty (TDY)           41, 301
Treasury Department                               5, XXI; 12, XV; 17, IV; 
                                                  31, IX
  Alcohol and Tobacco Tax and Trade Bureau        27, I
  Community Development Financial Institutions    12, XVIII
       Fund
  Comptroller of the Currency                     12, I
  Customs and Border Protection Bureau            19, I
  Engraving and Printing, Bureau of               31, VI
  Federal Acquisition Regulation                  48, 10
  Federal Claims Collection Standards             31, IX
  Federal Law Enforcement Training Center         31, VII
  Fiscal Service                                  31, II
  Foreign Assets Control, Office of               31, V
  Internal Revenue Service                        26, I
  Investment Security, Office of                  31, VIII
  Monetary Offices                                31, I
  Secret Service                                  31, IV
  Secretary of the Treasury, Office of            31, Subtitle A
  Thrift Supervision, Office of                   12, V
Truman, Harry S. Scholarship Foundation           45, XVIII
United States and Canada, International Joint     22, IV
     Commission
United States and Mexico, International Boundary  22, XI
     and Water Commission, United States Section
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs Department                       2, VIII; 38, I

[[Page 770]]

  Federal Acquisition Regulation                  48, 8
Veterans' Employment and Training Service,        41, 61; 20, IX
     Office of the Assistant Secretary for
Vice President of the United States, Office of    32, XXVIII
Vocational and Adult Education, Office of         34, IV
Wage and Hour Division                            29, V
Water Resources Council                           18, VI
Workers' Compensation Programs, Office of         20, I
World Agricultural Outlook Board                  7, XXXVIII

[[Page 771]]



List of CFR Sections Affected



All changes in this volume of the Code of Federal Regulations that were 
made by documents published in the Federal Register since January 1, 
2001, are enumerated in the following list. Entries indicate the nature 
of the changes effected. Page numbers refer to Federal Register pages. 
The user should consult the entries for chapters and parts as well as 
sections for revisions.
For the period before January 1, 2001, see the ``List of CFR Sections 
Affected, 1949-1963, 1964-1972, 1973-1985, and 1986-2000,'' published in 
11 separate volumes.

                                  2001

43 CFR
                                                                   66 FR
                                                                    Page
4.200--4.323 Undesignated center heading and sections revised......67656
4.200--4.357 (Subpart D) Authority citation revised................32888
    Cross reference corrected......................................33740
4.201 Revised; interim.............................................32888
    Corrected......................................................33740
4.202 Revised; interim.............................................32888
    Corrected......................................................33740
4.210 Revised; interim.............................................32889
4.234 Amended; interim.............................................32889
4.241 Revised; interim.............................................32889
4.243 Added; interim...............................................32889
4.250 (b) through (g) redesignated as (c) through (h); (a) 
        revised; (b) added; interim................................32889
4.251 Revised; interim.............................................32889
    (a), (b)(4) and (d) corrected..................................33740
4.270 Revised; interim.............................................32890
    Corrected......................................................33740
4.271 Removed; new 4.271 redesignated from 4.272; interim..........32890
4.272 Redesignated as 4.271; new 4.272 redesignated from 4.273; 
        interim....................................................32890
4.273 Redesignated as 4.272; new 4.273 redesignated from 4.274; 
        revised; interim...........................................32890
    (b) corrected..................................................33740
4.274 Redesignated as 4.273; interim...............................32890
4.320 Introductory text removed; (a), (b) and (c) redesignated as 
        (b), (c) and (d); new (a) added; interim...................32890
    (a) corrected..................................................33741

                                  2002

43 CFR
                                                                   67 FR
                                                                    Page
Subtitle A
2 Authority citation revised.......................................64530
2.1--2.3 (Subpart A) Revised; redesignated as Supbarts A through E
                                                                   64530
2.2 Amended.........................................................4368
2.11--2.22 (Subpart B) Revised; Redesignated as Subparts A through 
        E..........................................................64530
2.14 (a)(2)(i) amended..............................................4368
2.34 (Subpart E) Redesignated from Suparts A and B in part.........64530
2.41 (Subpart C) Redesignated as Subpart F; new Subpart C (2.7--
        2.27) redesignated from Subparts A and B...................64530
2.45--2.79 (Subpart D) Redesignated as Subpart G; new Subpart D 
        (2.28--2.33) redesignated from Subparts A and B............64530
    (Subpart G) Redesignated from Subpart D........................64530
2.80--2.90 (Subpart E) Redesignated as Subpart H; new Subpart E 
        (2.34) redesignated from Subparts A and B..................64530
2 Appendix B amended................................................4368
4.100--4.128 (Subpart C) Nomenclature change........................4368
4.200--4.357 (Subpart D) Nomenclature change........................4368

[[Page 772]]

4.400--4.478 (Subpart E) Nomenclature change........................4368
4.909 (b)(1) amended................................................4368
4.1100--4.1385 (Subpart L) Nomenclature change......................4368
4.1100 (e) revised.................................................61509
4.1101 (a) introductory text revised; (a)(8) and (9) redesignated 
        as (a)(12) and (13); new (a)(8) through (11) added.........61510
4.1109 (a)(2) revised..............................................61510
4.1190 (a) revised.................................................61510
4.1192 (a) revised.................................................61510
4.1193 Redesignated as 4.1194; new 4.1193 added....................61510
4.1194 Redesignated as 4.1195; new 4.1194 redesignated from 4.1193
                                                                   61510
4.1195 Redesignated as 4.1196; new 4.1195 redesignated from 
        4.1194; (a) revised........................................61510
4.1196 Redesignated as 4.1197; new 4.1196 redesignated from 4.1195
                                                                   61510
4.1197 Redesignated from 4.1196....................................61510
4.1200 (a), (b)(2), (3) and (4) revised............................61510
4.1204 Introductory text revised...................................61510
4.1266 Heading and (b)(2) revised..................................61510
4.1270 (f) revised.................................................61511
4.1276 (a) revised.................................................61511
4.1350 Revised.....................................................61511
4.1351 Revised.....................................................61511
4.1352 Revised.....................................................61511
4.1355 Revised.....................................................61511
4.1360 (c) amended; (d) revised; (e) added.........................61511
4.1370--4.1377 Undesignated center heading revised.................61511
4.1370 Revised.....................................................61511
4.1371 (a) revised.................................................61511
4.1372 (a)(1) and (2) revised......................................61511
4.1374 (a) revised.................................................61512
4.1376 Heading and (a) revised.....................................61512
4.1380--4.1387 Undesignated center heading revised.................61512
4.1380 Revised.....................................................61512
4.1381 (a) revised.................................................61512
4.1390 Revised.....................................................61512
4.1391 (a) and (b) revised.........................................61512
4.1394 Revised.....................................................61512
4.1604 Amended......................................................4368
7.37 Amended........................................................4368
10.12 Amended.......................................................4368
13.6 Amended........................................................4368
35.2 (g) amended....................................................4369
    Corrected......................................................12885
Chapter I
422 Added..........................................................38420
423 Added; eff. to 4-17-03.........................................19093
426.24 (g)(1) and (2) revised......................................13702

                                  2003

43 CFR
                                                                   68 FR
                                                                    Page
Subtitle A
4.400--4.478 (Subpart E) Authority citation revised................68770
4.401 (c)(2) revised...............................................33803
4.410 (b) redesignated as (e); (a)(4) revised; (b), (c) and (d) 
        added......................................................33803
4.416 Added........................................................33803
4.421 (c) revised; (h) added.......................................68770
4.422 (c)(2) revised...............................................33803
4.450-5 Introductory text revised..................................33803
4.470 Revised......................................................68770
4.471 Redesignated as 4.473; new 4.471 added.......................68770
4.472 Redesignated as 4.474; new 4.472 added.......................68770
4.473 Redesignated as 4.475; new 4.473 redesignated from 4.471.....68770
4.474 Redesignated as 4.476; new 4.474 redesignated from 4.472.....68770
    (c) and (d) added..............................................68771
4.475 Redesignated as 4.477; new 4.475 redesignated from 4.473.....68770
4.476 Redesignated as 4.478; new 4.476 redesignated from 4.474.....68770
4.477 Redesignated as 4.479; new 4.477 redesignated from 4.475.....68770
4.478 Redesignated as 4.480; new 4.478 redesignated from 4.476.....68770
    Revised........................................................68771
4.479 Redesignated from 4.477......................................68770
    Revised........................................................68771
4.480 Redesignated from 4.478......................................68770
4.1307 (b) and (c) revised.........................................66728
10 Technical correction............................................39854
10.12 Added........................................................16360

[[Page 773]]

12 Authority citation revised......................................66628
12.100--12.635 (Subpart D) Removed.................................66628
17.2 (a) amended...................................................51376
17.3 (b)(1) introductory text, (c)(1) and (d) amended; (d) heading 
        revised....................................................51376
17.4 (a)(1), (2), (b)(1) introductory text and (d)(1) amended; (b) 
        heading and (d)(2) revised.................................51376
17.5 (b) and (d) amended...........................................51376
17.8 (e) amended...................................................51376
17.9 (g) amended...................................................51376
17.11 (a) amended..................................................51376
17.12 (f) revised; (h) and (i) amended.............................51376
17.1--17.12 (Subpart A) Appendix B amended.........................51376
17.201 Amended.....................................................51377
17.202 (i), (m) and (n) amended; (q) added.........................51377
17.203 (a), (b)(1)(v), (3), (4)(ii), (5)(i), (6) and (c) amended; 
        (c) heading revised........................................51377
17.204 (a), (c)(4), (i) and (ii) amended...........................51377
17.205 (a)(3)(i) and (ii) amended..................................51377
17.207 (a) amended.................................................51377
17.210 (a)(2), (4) and (b)(8) amended..............................51377
17.211 (a), (c) introductory text and (1) amended..................51377
17.216 Heading revised.............................................51377
17.217 (a) heading revised; (a), (b) and (e)(3) amended............51377
17.220 Amended.....................................................51377
17.232 Amended.....................................................51377
17.250 Introductory text amended...................................51377
17.252 Amended.....................................................51377
17.260 Heading and (a) introductory text revised; (b)(1) 
        introductory text (iv), concluding text, (2) introductory 
        text and (iii) amended.....................................51377
17.270 Heading and introductory text revised; (a)(1), (2) and (5) 
        amended....................................................51377
17.300 Amended.....................................................51378
17.301 Amended.....................................................51378
17.302 Heading revised; (a) amended................................51378
17.303 (j) through (m) redesignated as (k) through (n); new (j) 
        added......................................................51378
17.313 Amended.....................................................51378
17.314 Amended.....................................................51378
17.320 Amended.....................................................51378
17.321 (b) amended.................................................51378
17.333 (a)(2) amended..............................................51378
17.335 (c)(2) amended..............................................51378
17.338 (b)(2) amended..............................................51378
42 Added....................................................66544, 66628
42.215 (h) through (k) added.......................................66629
42.440 Added.......................................................66629
42.935 (b) added...................................................66630
42.970 (a)(12) through (15) added..................................66630
42.1010 (b) added..................................................66630
43 Added....................................................66557, 66630
43.301 Added.......................................................66630
43.510 (c) amended.................................................66630
43.605 (a)(2) amended..............................................66630
Chapter I
423 Regulation at 67 FR 19092 eff. date extended to 4-17-05........16214

                                  2004

43 CFR
                                                                   69 FR
                                                                    Page
Title 43 Nomenclature change.......................................18803
Subtitle A
2.17 (c) table revised.............................................58324
2.18 (g) revised...................................................58324
2.22 (b)(2) introductory text revised..............................58324
2.23 (d) and (e)(3) revised........................................58325
2.25 Introductory text revised.....................................58325
2 Appendix A revised...............................................58325
44 Added...........................................................70559

                                  2005

43 CFR
                                                                   70 FR
                                                                    Page
Subtitle A
4 Authority citation revised.......................................11812
4.27 (c) revised...................................................11812
4.200--4.357 (Subpart D) Authority citation revised................11812
4.200 Undesignated center heading and section revised..............11812
4.201 Revised......................................................11812
4.202 Revised......................................................11812
4.203 Revised......................................................11812
4.204 Revised......................................................11812
4.205 Revised......................................................11812
4.206 Revised......................................................11812
4.207 Revised......................................................11812
4.208 Revised......................................................11812
4.210 Revised......................................................11815

[[Page 774]]

4.211 Revised......................................................11815
4.212 Undesignated center heading added; section revised...........11815
4.213 Added........................................................11815
4.214 Added........................................................11815
4.215 Added........................................................11815
4.216 Two undesignated center headings and section added...........11816
4.217 Added........................................................11817
4.220 Revised......................................................11817
4.221 Revised......................................................11817
4.222 Revised......................................................11817
4.223 Revised......................................................11817
4.224 Revised......................................................11817
4.225 Revised......................................................11817
4.230 Undesignated center heading and section revised..............11818
4.231 Revised......................................................11818
4.232 Revised......................................................11818
4.233 Revised......................................................11818
4.234 Revised......................................................11818
4.235 Revised......................................................11818
4.236 Revised......................................................11818
4.240 Undesignated center heading and section revised..............11820
4.241 Revised......................................................11820
4.242 Revised......................................................11820
4.243 Undesignated center heading and section removed..............11821
4.250 Revised......................................................11821
4.251 Revised......................................................11821
4.252 Revised......................................................11821
4.260 Revised......................................................11822
4.261 Revised......................................................11822
4.262 Revised......................................................11822
4.270 Revised......................................................11822
4.271 Revised......................................................11822
4.272 Revised......................................................11822
4.273 Revised......................................................11822
4.281 Revised......................................................11823
4.282 Revised......................................................11823
4.300 Revised......................................................11823
4.301 Revised......................................................11823
4.302 Revised......................................................11823
4.303 Revised......................................................11823
4.304 Revised......................................................11823
4.305 Revised......................................................11823
4.306 Revised......................................................11823
4.307 Revised......................................................11823
4.308 Revised......................................................11823
4.310 Revised......................................................11825
4.311 Revised......................................................11825
4.312 Revised......................................................11825
4.313 Revised......................................................11825
4.314 Revised......................................................11825
4.315 Revised......................................................11825
4.316 Revised......................................................11825
4.317 Revised......................................................11825
4.318 Revised......................................................11825
4.320 Revised......................................................11825
4.321 Revised......................................................11825
4.322 Revised......................................................11825
4.323 Revised......................................................11825
10.2 (b)(2) amended; (c)(3) revised................................57179
10.12 (a) revised..................................................57179
10.14--10.17 (Subpart D) Nomenclature change.......................57179
39 Added...........................................................44513
45 Added; interim..................................................69829
Chapter I
423 Regulation at 67 FR 19093 eff. date extended to 4-17-06........15778

                                  2006

43 CFR
                                                                   71 FR
                                                                    Page
Subtitle A
4.601--4.628 (Subpart F) Revised....................................6366
5.1 (b)(1) revised.................................................19129
10.2 (c)(3) correctly amended......................................16501
10.3--10.7 (Subpart B) amended.....................................16501
10.8--10.13 (Subpart C) amended....................................16501
Chapter I
423 Revised........................................................19794
429 Authority citation revised.....................................19802
429.1 Revised......................................................19802
429.2 (c) and (d) revised; (m) and (n) added.......................19802
429.3 (c) amended..................................................19802
429.6 Introductory text amended....................................19802
429.11 Removed.....................................................19802
429.12 Added.......................................................19802
429.13 Added.......................................................19802

                                  2007

43 CFR
                                                                   72 FR
                                                                    Page
Subtitle A
10.13 Added........................................................13189
12.75 Removed; interim.............................................33386
12.913 Removed; interim............................................33386
42 Removed; interim................................................33386
43.510 (c) amended; interim........................................33386
43.630 Amended; interim............................................33386
43.670 Amended; interim............................................33386

[[Page 775]]

Chapter I
421 Removed........................................................31756
423.3 (a)(3) and (4) revised; (a)(5) removed.......................31756

                                  2008

43 CFR
                                                                   73 FR
                                                                    Page
Subtitle A
4 Authority citation revised.......................................67287
4.200--4.357 (Subpart D) Cross reference revised...................67287
4.200 Undesignated center heading removed; section revised.........67287
4.201 Revised......................................................67287
4.202 Undesignated center heading and section removed..............67288
4.203 Removed......................................................67288
4.204 Removed......................................................67288
4.205 Removed......................................................67288
4.206 Removed......................................................67288
4.207 Removed......................................................67288
4.208 Removed......................................................67288
4.210 Undesignated center heading and section removed..............67288
4.211 Removed......................................................67288
4.212 Undesignated center heading and section removed..............67288
4.213 Removed......................................................67288
4.214 Removed......................................................67288
4.215 Removed......................................................67288
4.216 Undesignated center heading and section removed..............67288
4.217 Removed......................................................67288
4.220 Undesignated center heading and section removed..............67288
4.221 Removed......................................................67288
4.222 Removed......................................................67288
4.223 Removed......................................................67288
4.224 Removed......................................................67288
4.225 Removed......................................................67288
4.230 Undesignated center heading and section removed..............67288
4.231 Removed......................................................67288
4.232 Removed......................................................67288
4.233 Removed......................................................67288
4.234 Removed......................................................67288
4.235 Removed......................................................67288
4.236 Removed......................................................67288
4.240 Undesignated center heading and section removed..............67288
4.241 Removed......................................................67288
4.242 Removed......................................................67288
4.250 Undesignated center heading and section removed..............67288
4.251 Removed......................................................67288
4.252 Removed......................................................67288
4.260 Undesignated center heading and section removed..............67288
4.261 Removed......................................................67288
4.262 Removed......................................................67288
4.270 Undesignated center heading and section removed..............67288
4.271 Removed......................................................67288
4.272 Removed......................................................67288
4.273 Removed......................................................67288
4.281 Undesignated center heading and section removed..............67288
4.282 Removed......................................................67288
4.300 Undesignated center heading and section removed..............67288
4.301 Removed......................................................67288
4.302 Removed......................................................67288
4.303 Removed......................................................67288
4.304 Removed......................................................67288
4.305 Removed......................................................67288
4.306 Removed......................................................67288
4.307 Removed......................................................67288
4.308 Removed......................................................67288
4.320 Revised......................................................67288
4.321 Redesignated as 4.324; new 4.321 added.......................67288
4.322 Redesignated as 4.325; new 4.322 added.......................67288
4.323 Redesignated as 4.326; new 4.323 added.......................67288
4.324 Redesignated from 4.321 and revised..........................67288
4.325 Redesignated from 4.322 and revised..........................67288
4.326 Redesignated from 4.323 and revised..........................67288
11.31 (c)(4) revised...............................................57265
11.38 (c)(2)(i) revised............................................57266
11.80 (b) revised..................................................57266
11.81 (a) revised..................................................57266
11.82 (a), (b)(i)(iii) and (c) revised.............................57266
    (c)(1) correctly revised.......................................65274
11.83 (a)(1) and (c) revised; (a)(4) and (5) added.................57266
11.91 (e) removed..................................................57268
30 Added...........................................................67289
46 Added...........................................................61314
Chapter I
404 Added; interim.................................................67782
419 Added..........................................................74038
423 Revised........................................................75349
423.2 Amended; interim.............................................54980

[[Page 776]]

423.3 (a) introductory text and (b)(2) revised; (d) amended; 
        interim....................................................54980
423.18 Added; interim..............................................54980
423.21 (a) and (b) revised; interim................................54980
423.22 (e) revised; interim........................................54980
423.24 Revised; interim............................................54980
423.29 (b) amended; interim........................................54980
423.34 (c) revised; interim........................................54980
423.36 (a)(3) and (4) revised; (a)(5) added; interim...............54980
423.37 (c) added; interim..........................................54980
423.38 (h) removed; (i) through (l) redesignated as new (h) 
        through (k); interim.......................................54980
423.41 Revised; interim............................................54980
423.50 (a) revised; interim........................................54981
423.60 (c) added; interim..........................................54981
423.61 (b) introductory text, (c)(1), (3) and (d) introductory 
        text revised; interim......................................54981
423.62 Removed; new 423.62 redesignated from 423.63; interim.......54981
423.63 Redesignated as new 423.62; new 423.63 redesignated from 
        423.64 and revised; interim................................54981
423.64 Redesignated as 423.63; interim.............................54981
423.71 (b) revised; interim........................................54981
429 Revised........................................................74335

                                  2009

43 CFR
                                                                   74 FR
                                                                    Page
Subtitle A
2.3 (i), (k) and (r) revised.......................................17091
2.12 (c) added.....................................................17092
2.14 (a) revised...................................................17092
2.21 (d)(6) revised................................................17092
2.22 (a) revised...................................................17092
2.26 Revised.......................................................17092
2.29 Revised.......................................................17092
2.30 (b) revised...................................................17092
2 Appendix A revised...............................................17093

                                  2010

  (Regulations published from January 1, 2010, through October 1, 2010)

43 CFR
                                                                   75 FR
                                                                    Page
Subtitle A
10.1 Heading and (b)(3) revised; (c) added.........................12402
10.2 (e) revised; (g)(5) added.....................................12403
10.9 (e)(2), (5) and (6) revised...................................12403
10.11 Added........................................................12403
10.12 (b)(1)(ii), (iii) and (iv) revised; (b)(1)(ix) added.........12404
10.15 (c) revised..................................................12405


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