[Federal Register Volume 65, Number 222 (Thursday, November 16, 2000)]
[Proposed Rules]
[Pages 69279-69281]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-29386]


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DEPARTMENT OF TRANSPORTATION

Maritime Administration

46 CFR Part 205

[Docket No. MARAD-2000-8284]
RIN 2133-AB42


Audit Appeals; Policy and Procedure

AGENCY: Maritime Administration, Transportation.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: The Maritime Administration (MARAD, we, our, or us) is 
proposing to update Part 205--Audit Appeals; Policy and Procedure. Part 
205 establishes appeal procedures for parties who contract with the 
Maritime Subsidy Board or MARAD. We propose to: Update these audit 
procedures to reflect current MARAD practices; and rewrite the 
regulations in plain language. The intended effect of this rulemaking 
is to improve our audit appeals process by updating and clarifying part 
205.

DATES: You should submit your comments early enough to ensure that 
Docket Management receives them not later than January 16, 2001.

ADDRESSES: Your comments should refer to docket number [MARAD 2000-
8284]. You may submit your comments in writing to: Docket Clerk, U.S. 
DOT Dockets, Room PL-401, 400 7th St., SW, Washington, DC 20590. You 
may also submit them electronically via the internet at http://dmses.dot.gov/submit/. You may call Docket Management at (202) 366-9324 
and visit the Docket Room from 10 a.m. to 5 p.m., EST., Monday through 
Friday, except Federal Holidays. An electronic version of this document 
is available on the World Wide Web at http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: Mr. Fred A. Slaugh, Office of 
Financial Approvals and Rates, (202) 366-5866. You may send mail to Mr. 
Slaugh at Maritime Administration, Office of Financial and Rate 
Approvals, Room 8117, 400 Seventh Street, SW, Washington, DC 20590.

SUPPLEMENTARY INFORMATION:

Comments

How Do I Prepare and Submit Comments?

    Your comments must be written and in English. To ensure that your 
comments are correctly filed in the Docket, please include the docket 
number of this document in your comments. We encourage you to write 
your primary comments in a concise fashion. However, you may attach 
necessary additional documents to your comments. There is no limit on 
the length of the attachments. Please submit two copies of your 
comments, including the attachments, to Docket Management at the 
address given above under ADDRESSES.

How Can I be Sure That my Comments Were Received?

    If you wish Docket Management to notify you upon its receipt of 
your comments, enclose a self-addressed, stamped postcard in the 
envelope containing your comments. Docket Management will return the 
postcard by mail.

How do I Submit Confidential Business Information?

    If you wish to submit any information under a claim of 
confidentiality, you should submit three copies of your complete 
submission, including the information you claim to be confidential 
business information, to the Chief Counsel, Maritime Administration, at 
the address given above under FOR FURTHER INFORMATION CONTACT. You 
should mark ``CONFIDENTIAL'' on each page of the original document that 
you would like to keep confidential. In addition, you should submit two 
copies, from which you have deleted the

[[Page 69280]]

claimed confidential business information, to Docket Management at the 
address given above under ADDRESSES. When you send comments containing 
information claimed to be confidential business information, you should 
include a cover letter setting forth with specificity the basis for any 
such claim.

Will the Agency Consider Late Comments?

    We will consider all comments that Docket Management receives 
before the close of business on the comment closing date indicated 
above under DATES. To the extent possible, we will also consider 
comments that Docket Management receives after that date.

How Can I Read the Comments Submitted by Other People?

    You may read the comments received by Docket Management at the 
address given above under ADDRESSES. The hours of the Docket Room are 
indicated above in the same location. You may also see the comments on 
the Internet. To read the comments on the Internet, take the following 
steps: Go to the Docket Management System (DMS) Web page of the 
Department of Transportation (http://dms.dot.gov/). On that page, click 
on ``search.'' On the next page (http://dms.dot.gov/search/), type in 
the four-digit docket number shown at the beginning of this document. 
The docket number for this document is [xxxx]. After typing the docket 
number, click on ``search.'' On the next page, which contains docket 
summary information for the docket you selected, click on the desired 
comments. You may download the comments. Please note that even after 
the comment closing date, we will continue to file relevant information 
in the Docket as it becomes available. Further, some people may submit 
late comments. Accordingly, we recommend that you periodically check 
the Docket for new material.

Background

    Part 205--Audit Appeals; Policy and Procedure establishes the 
policy and procedure for parties to use when seeking redress and 
appeals of decisions involving contracts with the Maritime Subsidy 
Board or MARAD. Part 205 applies to all MARAD contracts including the 
Operating-Differential Subsidy, Construction-Differential Subsidy, 
Capital Construction Fund, Construction Reserve Fund, and Maritime 
Security Program.
    According to the policy in part 205, any contractor who disagrees 
with audit findings or decisions of MARAD and who does not reach a 
negotiation with the appropriate Coast Director's office may appeal. 
Any contractor who appeals must do so in writing to the Maritime 
Administrator within six (6) months following the date of the document 
notifying the contractor of the audit findings. MARAD will then notify 
the appellant in writing if a hearing or additional facts are 
necessary. After the Maritime Administrator renders a decision, MARAD 
will notify the appellant in writing. When a contract contains a 
disputes article, the disputes article will govern the bases for 
dispute and any appeals.
    We are proposing revisions to part 205 that reflect our current 
practices of making audit appeals decisions. Appellants no longer 
appeal to the appropriate Coast Director's office. In the past, 
auditors were assigned to regional offices. However, we no longer have 
these auditors. MARAD headquarters is responsible for overseeing audits 
as deemed appropriate. Such audits may be performed by the Office of 
Inspector General.

Plain Language

    Executive Order 12866 and the President's memorandum on plain 
language in government writing of June 1, 1998, require each agency to 
write all rules in plain language. The Department of Transportation and 
MARAD are committed to plain language in government writing; therefore, 
we propose to revise part 205 using plain language to provide easier 
understanding. Our goal is to improve the clarity of the regulation. We 
invite your comments on how to make this proposed rule easier to 
understand.

Rulemaking Analyses and Notices

Executive Order 12866 and DOT Regulatory Policies and Procedures

    We have reviewed this notice of proposed rulemaking (NPRM) under 
Executive Order 12866 and have determined that this is not a 
significant regulatory action. Additionally, this NPRM is not likely to 
result in an annual effect on the economy of $100 million or more. The 
purpose of this NPRM is to propose updates to MARAD's audit procedures 
to reflect current MARAD practices and to rewrite the regulations in 
plain language.
    This NPRM is also not significant under the Regulatory Policies and 
Procedures of the Department of Transportation (44 FR 11034; February 
26, 1979). The costs and benefits associated with this rulemaking are 
considered to be so minimal that no further analysis is necessary. 
Because the economic impact, if any, should be minimal, further 
regulatory evaluation is not necessary.

Regulatory Flexibility Act

    This NPRM will not have a significant economic impact on a 
substantial number of small entities. This NPRM only updates procedures 
for appealing audit findings and decisions to the Maritime 
Administrator. Although the number of small entities who appeal audit 
findings may be substantial, the cost of filing an audit appeal with 
MARAD is minimal, if any. Therefore, I certify that this NPRM will not 
have a significant economic impact on a substantial number of small 
entities.

Federalism

    We have analyzed this final rule in accordance with the principles 
and criteria contained in E.O. 13132 (``Federalism'') and have 
determined that it does not have sufficient federalism implications to 
warrant the preparation of a federalism summary impact statement. These 
regulations have no substantial effects on the States, or on the 
current Federal-State relationship, or on the current distribution of 
power and responsibilities among the various local officials. 
Therefore, consultation with State and local officials was not 
necessary.

Environmental Impact Statement

    We have analyzed this NPRM for purposes of compliance with the 
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and 
have concluded that under the categorical exclusions provision in 
section 4.05 of Maritime Administrative Order (``MAO'') 600-1, 
``Procedures for Considering Environmental Impacts,'' 50 FR 11606 
(March 22, 1985), the preparation of an Environmental Assessment, and 
an Environmental Impact Statement, or a Finding of No Significant 
Impact for this NPRM is not required. This NPRM involves administrative 
and procedural regulations that have no environmental impact.

Executive Order 13084

    MARAD does not believe that this NPRM will significantly or 
uniquely affect the communities of Indian tribal governments when 
analyzed under the principles and criteria contained in Executive Order 
13084 (``Consultation and Coordination with Indian Tribal 
Governments''). Therefore, the funding and consultation requirements of 
this Executive Order would not apply.

[[Page 69281]]

Unfunded Mandates Reform Act of 1995

    This NPRM does not impose an unfunded mandate under the Unfunded 
Mandates Reform Act of 1995. It does not result in costs of $100 
million or more, in the aggregate, to any of the following: State, 
local, or Native American tribal governments, or the private sector. 
This NPRM is the least burdensome alternative that achieves the 
objective of the rule.

Paperwork Reduction Act

    This NPRM does not contain information collection requirements 
covered by 5 CFR Part 1320 (specifically 5 CFR 1320.3(c)) in that 
appellants choose the information to be provided in their appeal and 
may choose to interpret the collection of information differently.

Regulation Identifier Number (RIN)

    The Department of Transportation assigns a regulation identifier 
number (RIN) to each regulatory action listed in the Unified Agenda of 
Federal Regulations. The Regulatory Information Service Center 
publishes the Unified Agenda in April and October of each year. The RIN 
number is contained in the heading of this document to cross-reference 
this action with the Unified Agenda.

List of Subjects in 46 CFR Part 205

    Administrative practice and procedure, Government contracts.
    Accordingly, 46 CFR part 205 is proposed to be revised to read as 
follows:

PART 205--AUDIT APPEALS; POLICY AND PROCEDURE

Sec.
205.1   Purpose.
205.2   Policy.
205.3   Procedure.
205.4   Finality of decisions.
205.5   Contracts containing disputes article.

    Authority: Sec. 204, 49 Stat. 1987, 1998, 2004, 2011; 46 U.S.C. 
1114, 1155, 1176, 1212.


Sec. 205.1  Purpose.

    This part establishes the policy and procedure for parties to use 
when seeking redress and appeals of decisions involving contracts with 
the Maritime Subsidy Board or The Maritime Administration (MARAD, we, 
our, or us). A party to a contract (you or your) may appeal MARAD's 
findings, interpretations, or decisions of annual or special audits.


Sec. 205.2  Policy.

    If you disagree with audit findings and fail to settle any 
differences with the appropriate Office Director, you may ask the 
appropriate office Associate Administrator to review the audit 
findings. If you disagree with the Associate Administrator, you may 
appeal to the Maritime Administrator (Administrator).


Sec. 205.3  Procedure.

    (a) You must submit your appeal in writing to the Administrator 
within 6 months following the date of the document notifying you of the 
audit findings, interpretations, or decisions. However, the 
Administrator may, at his discretion, extend this time limitation in 
the case of extenuating circumstances.
    (b) We will notify you, in writing, if you must submit additional 
facts for our consideration of the appeal. We will notify you, in 
writing, once the Maritime Administrator has made a decision regarding 
your appeal.


Sec. 205.4  Finality of decisions.

    The Administrator's decision will be final on all questions of fact 
involved in the appeal, unless:
    (a) Otherwise determined by the Secretary of Transportation 
pursuant to 49 CFR 1.43(a); or
    (b) A court of competent jurisdiction determines the findings to 
have been fraudulent, capricious, arbitrary, so grossly erroneous as 
necessarily to imply bad faith, or not supported by substantial 
evidence.


Sec. 205.5  Contracts containing disputes article.

    When a contract contains a disputes article, the disputes article 
will govern the bases for negotiating disputes regarding audit 
findings, interpretations, or decisions made by MARAD and any appeals.

    By Order of the Maritime Administrator.
    Dated: November 13, 2000.
Joel C. Richard,
Secretary, Maritime Administration.
[FR Doc. 00-29386 Filed 11-15-00; 8:45 am]
BILLING CODE 4910-81-P