issue-1996-07-05•Federal Register proposed rules — 1996-07-05
Federal Register proposed rules — 1996-07-05
issue-1996-07-05Federal Register proposed rules — 1996-07-05Proposed Regulation
Published Federal Register documents, not public-inspection drafts. The GPO XML/text rendition is a research aid; the linked complete official PDF retains the printed layout and all graphics. Graphics are retained in that PDF and are not independently reproduced in this text rendition. Publication does not establish that every provision remains legally in force.
FR Doc. 96-17123 Groundfish of the Gulf of Alaska; Pacific Ocean Perch; Amendment 38
[Federal Register Volume 61, Number 130 (Friday, July 5, 1996)]
[Proposed Rules]
[Pages 35174-35175]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17123]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 679
[I.D. 062596B]
RIN 0648-AH68
Groundfish of the Gulf of Alaska; Pacific Ocean Perch; Amendment
38
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice of availability; request for comments.
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SUMMARY: The North Pacific Fishery Management Council (Council) has
submitted Amendment 38 to the Fishery Management Plan for Groundfish of
the Gulf of Alaska (FMP) for Secretarial review. Amendment 38 would
provide the flexibility for the Council to recommend a total allowable
catch amount for Pacific ocean perch (POP) below the level currently
established in the FMP. NMFS is requesting comments from the public on
the proposed amendment. Copies of the amendment may be obtained from
the Council (see ADDRESSES).
DATES: Comments on the FMP amendment should be submitted on or before
August 30, 1996.
ADDRESSES: Comments on the FMP amendment should be submitted to Ronald
J. Berg, Chief, Fisheries Management Division, Alaska Region, NMFS,
P.O. Box 21668, Juneau, AK 99802-1668; Attn: Lori Gravel, or delivered
to the Federal Building, 709 West 9th Street, Juneau, AK.
Copies of Amendment 38 and the environmental assessment and the
economic analysis prepared for the amendment are available from the
North Pacific Fishery Management Council, 605 W 4th Ave., Suite 306,
Anchorage, AK 99501-2252; telephone: 907-271-2809.
FOR FURTHER INFORMATION CONTACT: Kaja Brix, 907-586-7228.
SUPPLEMENTARY INFORMATION: The Magnuson Fishery Conservation and
Management Act (Magnuson Act) requires that each Regional Fishery
Management Council submit any fishery management plan or plan amendment
it prepares to the Secretary of Commerce (Secretary) for review and
approval, disapproval, or partial disapproval. The Magnuson Act also
requires that the Secretary, upon receiving a fishery management plan
or amendment, immediately publish a notice that the fishery management
plan or amendment is available for public review and comment. The
Secretary will consider the public comments received during the comment
period in determining whether to approve the FMP or amendment.
Decline of the POP stock since the early period of the foreign
fishery (mid 1960's) prompted the Council to recommend a rebuilding
plan for POP. The Pacific Ocean Perch Rebuilding Plan (Rebuilding Plan)
was established in Amendment 32 to the FMP. Details of the
justification for the Rebuilding Plan can be found in the Notice of
Availability for Amendment 32 (59 FR 295; January 4, 1994). The POP
Rebuilding Plan provides a specific rebuilding strategy for POP stocks,
based on available biological and economic information. The Rebuilding
Plan establishes a formula to determine annually the POP TAC, which is
then apportioned among Gulf of Alaska (GOA) regulatory areas based on
biomass distribution. However, the amendment does not provide for any
flexibility to reduce the TAC below the amount specified by the
formula.
Under the current Rebuilding Plan, the potential exists for the
calculated TAC to be greater than the acceptable biological catch
(ABC), which would be inconsistent with the current management practice
for other groundfish stocks. The Council has also expressed concern
that it does not have the flexibility to lower the POP TAC under the
Rebuilding Plan to accomodate other resource conservation concerns.
Therefore, the Council adopted Amendment 38 to the FMP at its December
1995 meeting. Amendment 38 would not prescribe a TAC lower than that
specified by the formula; however, it would allow the Council the
flexibility to recommend a TAC below the level of the specified formula
in one or more GOA regulatory areas or districts. To be consistent with
the Rebuilding Plan for POP, any downward adjustment of TAC would be
based on biological or resource conservation concerns.
Under the Rebuilding Plan, an ABC is set for POP in the GOA and
this ABC is apportioned among regulatory areas based on biomass
distribution. The TAC is determined using the formula and is then
apportioned to each regulatory area according to the percentage biomass
distribution used for the ABC apportionment.
Under Amendment 38, once the TAC is apportioned among regulatory
areas, as specified by the current FMP, the Council could recommend a
further downward adjustment of the POP TAC in one or more of the GOA
regulatory areas or districts. Any downward adjustments would be based
on biological or resource conservation concerns about the POP resource
or associated with the POP fishery that are not accounted for in the
Rebuilding Plan or the annual Stock Assessment and Fishery Evaluation
(SAFE) reports, or to maintain the TAC below the ABC. NMFS will
consider information provided by a recognized scientific body such as
the Council's Scientific and Statistical Committee, Plan Team, or by
[[Page 35175]]
NMFS stock assessment scientists regarding any downward adjustment of
the TAC.
The FMP amendment would only give the Council the alternative of
recommending a lower POP TAC in the annual specifications process to
address biological or resource conservation concerns that are not
addressed under the Rebuilding Plan or SAFE reports. If socioeconomic
concerns exist with respect to the management of the POP fishery,
particularly in the Eastern GOA, the Council would need to consider a
separate amendment to address these issues.
Amendment 38 is intended to improve conservation and management of
POP and to further the goals and objectives of the FMP. No regulatory
changes are necessary to implement this FMP amendment. The TAC would be
considered for implemention during the annual specification process
under regulations at Sec. 679.20(c).
Authority: 16 U.S.C. 1801 et seq.
Dated: June 27, 1996.
Richard W. Surdi,
Acting Director, Office of Fisheries Conservation and Management,
National Marine Fisheries Service.
[FR Doc. 96-17123 Filed 7-1-96; 3:18 pm]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-17001 Public Health Hazard Analysis Board Report; Availability
[Federal Register Volume 61, Number 130 (Friday, July 5, 1996)]
[Proposed Rules]
[Pages 35157-35158]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-17001]
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DEPARTMENT OF AGRICULTURE
Food Safety and Inspection Service
9 CFR Parts 319 and 381
[Docket No. 95-056N]
Public Health Hazard Analysis Board Report; Availability
AGENCY: Food Safety and Inspection Service, USDA.
ACTION: Notice of availability of report; request for comments.
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SUMMARY: The Food Safety and Inspection Service (FSIS) is announcing
the availability of a report prepared by the Public Health Hazard
Analysis Board on ``Bone Particles and Foreign Material in Meat and
Poultry Products.'' The report contains an executive summary by the
Public Health Hazard Analysis Board, which includes the Board's
conclusions on the establishment of criteria for determining the safety
of meat and poultry products containing bone particles and foreign
materials such as glass, metal and plastic; a list of Board members and
other participants; and a bibliography. FSIS is seeking comments on the
need for and nature of any additional regulatory actions beyond those
provided for in its meat and poultry regulations that should be taken
regarding bone particle size and foreign material, such as glass,
metal, and plastic, in boneless meat and poultry products deboned by
hand or other means.
DATES: Comments will be accepted through August 19, 1996.
ADDRESSES: Interested persons may submit an original and two copies of
written comments and requests for single copies of the report to: FSIS
Docket Clerk, DOCKET #95-056N, Room 4352 South Agriculture Building,
Washington, DC 20250-3700. Oral comments, as provided by the Poultry
Products Inspection Act, can be given to Dr. Jill Hollingsworth, (202)
205-0293. The report and comments will be available for public
inspection in the FSIS Docket Room from 8:30 a.m. to 1:00 p.m. and from
2:00 p.m. to 4:30 p.m., Monday through Friday.
FOR FURTHER INFORMATION CONTACT: Dr. Jill Hollingsworth, Deputy
Director, Epidemiology and Emergency Response Program, Food Safety and
Inspection Service, U.S. Department of Agriculture, Room 2168 South
Building, Washington, DC 20250-3700, (202) 205-0293.
SUPPLEMENTARY INFORMATION: FSIS is announcing the availability of a
report prepared by the Public Health Hazard Analysis Board (the Board)
on ``Bone Particles and Foreign Material in Meat and Poultry
Products.'' The Board consists of public health, medical, and food
safety experts in FSIS and other government agencies. Private medical
specialists were contacted by the Board for additional information on
the subject. The Board was charged with determining health and safety
concerns related to bone particles or foreign material in boneless meat
and poultry products. Consequently, the Board provided criteria for use
by the Agency to determine the existence of a potential safety hazard,
due to bone particles or foreign material, such as glass, metal, and
plastic, in meat or poultry products, that warrant recall of the
affected product in order to protect the public health.
The Board determined that bone particles less than 0.4 inches (10
mm) would not be considered a safety hazard. Bone particles from 0.4 to
0.8 inches (10 to 20 mm) may present a discomfort, but would be a low
risk for a safety hazard, and bone particles greater than 0.8 inches
(20 mm) have the potential to be a safety hazard and may cause injury
to consumers. According to the Board, any occurrence of foreign
material, such as glass, metal, and plastic, in meat or poultry
products, has the potential to be a safety hazard and should be
evaluated on a case-by-case basis to determine whether it presents such
a hazard.
The Board agreed that boneless product produced in accordance with
the provisions in 9 CFR 319.5 for mechanically-separated meat (MSM) and
provisions in 9 CFR 381.173 (59 FR 62629, December 6, 1994, and 59 FR
55962, November 3, 1995) for mechanically-separated poultry (MSP) to be
effective on November 4, 1996, does not present a safety hazard.
Regulatory requirements limit bone particle size in MSM and MSP which
is produced by crushing or grinding of bone before removal of edible
tissue. Provisions in 9 CFR 319.5 for MSM require that at least 98
percent of bone particles present in MSM be no greater than 0.2 inches
(5 mm) in their greatest dimension, with no bone particles larger than
0.034 inches (0.85 mm) in their greatest dimension. Similar provisions
in 9 CFR 381.173 for MSP require that at least 98 percent of bone
particles present in MSP be no greater than 0.06 inches (1.5 mm) in
their greatest dimension, with no particles greater than 0.08 inches (2
mm) in their greatest dimension. FSIS has concluded that
[[Page 35158]]
these bone particle size limitations represent good manufacturing
practices and reflect processes that are in control and protect
finished product quality. Because bone particles are extremely small in
MSM and MSP, they would not be considered to be a safety hazard.
Products containing bone fragments larger than 0.8 inches (20 mm)
are of regulatory concern to FSIS, and the Agency will consider
regulatory action, as appropriate, to protect consumers. There are
currently no regulations that specifically address the limiting of bone
particle size for boneless meat and poultry products deboned by hand,
or for meat produced by an advanced mechanical method that does not
involve crushing or grinding the bones (59 FR 62551, December 6, 1994).
Safety determinations about boneless product produced by these methods
are made on an ad hoc basis, based on the criteria recommended by the
Board. Companies producing boneless meat and poultry products deboned
by hand or produced by advanced mechanical separation generally employ
manufacturing practices that keep the size of bone particles well below
the 0.8-inch (20-mm) level considered to be a potential safety hazard
by the Board.
FSIS's proposed rule, ``Pathogen Reduction; Hazard Analysis and
Critical Control Point (HACCP) Systems,'' (60 FR 6774, February 3,
1995) proposes requiring meat and poultry processors to establish HACCP
systems of preventive controls to ensure the safety of foods they
produce. This would include the addressing of potential physical
hazards in meat and poultry products, such as bone particles, in HACCP
plans. The proposed HACCP system would place an affirmative duty on
companies to establish procedures to prevent bone particles of foreign
material from presenting a safety hazard in boneless meat and poultry
products.
FSIS invites comments on whether additional regulatory action is
needed, beyond that provided by FSIS in its regulations, regarding bone
particle size and foreign material, such as glass, metal, or plastic,
in boneless meat and poultry products deboned by hand, produced by
advanced mechanical separation, or by other procedural means not
identified in current meat and poultry regulations.
Done at Washington, DC, on: June 27, 1996.
Michael R. Taylor,
Acting Under Secretary for Food Safety.
[FR Doc. 96-17001 Filed 7-03-96; 8:45 am]
BILLING CODE 3410-DM-P
Complete official Federal Register PDF
FR Doc. 96-16992 National School Lunch Program, School Breakfast Program, Child and Adult Care Food Program and Summer Food Service Program for Children: Meat Alternates Used in the Child Nutrition Programs
[Federal Register Volume 61, Number 130 (Friday, July 5, 1996)]
[Proposed Rules]
[Pages 35152-35157]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16992]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 61, No. 130 / Friday, July 5, 1996 / Proposed
Rules
[[Page 35152]]
DEPARTMENT OF AGRICULTURE
Food and Consumer Service
7 CFR Parts 210, 220, 225 and 226
RIN 0584-AC15
National School Lunch Program, School Breakfast Program, Child
and Adult Care Food Program and Summer Food Service Program for
Children: Meat Alternates Used in the Child Nutrition Programs
AGENCY: Food and Consumer Service, USDA.
ACTION: Proposed rule.
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SUMMARY: The Food and Consumer Service of the Department of Agriculture
is proposing to amend regulations concerning the meal pattern
requirements for the National School Lunch Program (NSLP), School
Breakfast Program (SBP), Summer Food Service Program (SFSP) and Child
and Adult Care Food Program (CACFP) to allow yogurt to be credited as a
meat alternate for all meals. Currently, yogurt may only be credited as
a meat alternate for the supplement (snack) meal patterns of the SFSP
and CACFP. Under this proposal, four ounces of yogurt would satisfy one
ounce of the meat/meat alternate requirement for breakfasts and lunches
served under any of the Child Nutrition Programs. This proposal
responds to numerous recommendations for additional meat alternates and
provides local food service operations with greater flexibility in
planning and preparing meals using low-fat meat alternates.
DATES: To be assured of consideration, comments must be postmarked on
or before August 19, 1996.
ADDRESSES: Comments may be mailed to Robert M. Eadie, Chief, Policy and
Program Development Branch, Child Nutrition Division, Food and Consumer
Service, USDA, 3101 Park Center Drive, Alexandria, Virginia 22302.
FOR FURTHER INFORMATION CONTACT: Robert M. Eadie or Charles Heise at
the above address or by telephone at 703-305-2620.
SUPPLEMENTARY INFORMATION:
Executive Order 12866
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866 and therefore has not been reviewed
by the Office of Management and Budget.
Regulatory Flexibility Act
This proposed rule has been reviewed with regard to the
requirements of the Regulatory Flexibility Act (5 U.S.C. 601 through
612). The Administrator of the Food and Consumer Service (FCS) has
certified that this rule will not have a significant economic impact on
a substantial number of small entities. This rule provides greater
flexibility to schools, institutions and homes participating in the
NSLP, SBP, SFSP and CACFP rather than imposing more restrictive
requirements upon them. The overall types and frequency of service of
foods used in the meals served in these four programs would not be
significantly affected by this rule. Currently, yogurt may be served as
an additional, uncredited food which is used to complement meal pattern
requirements to meet regional and ethnic food preferences and as a meat
alternate only in the supplement meal patterns of the CACFP and the
SFSP.
Catalog of Federal Assistance
The NSLP, SBP, SFSP and the CACFP are listed in the Catalog of
Federal Domestic Assistance under Nos. 10.555, 10.553, 10.559 and
10.558, respectively, and are subject to the provisions of Executive
Order 12372, which requires intergovernmental consultation with State
and local officials. (7 CFR Part 3015, Subpart V and final rule-related
notice at 48 Federal Register (FR) 29112, June 24, 1983.)
Executive Order 12778
This proposed rule has been reviewed under Executive Order 12778,
Civil Justice Reform. This proposed rule is intended to have preemptive
effect with respect to any State or local laws, regulations or policies
which conflict with its provisions or which would otherwise impede its
full implementation. This proposed rule is not intended to have
retroactive effect unless so specified in the ``Effective Date''
section of this preamble. Prior to any judicial challenge to the
provisions of this proposed rule or the application of the provisions,
all applicable administrative procedures must be exhausted. In the NSLP
and SBP, the administrative procedures are set forth under the
following regulations: (1) school food authority appeals of State
agency findings as a result of an administrative review must follow
State agency hearing procedures as established pursuant to 7 CFR
Secs. 210.18(q) and 220.14(e); (2) school food authority appeals of FCS
findings as a result of an administrative review must follow FCS
hearing procedures as established pursuant to 7 CFR Secs. 210.30(d)(3)
and 220.14(g); and (3) State agency appeals of State Administrative
Expense fund sanctions (7 CFR Sec. 235.11(b)) must follow the FCS
Administrative Review Process as established pursuant to 7 CFR
Sec. 235.11(f). In the SFSP, (1) Program sponsors and food service
management companies must follow State agency hearing procedures issued
pursuant to 7 CFR 225.13; and (2) disputes involving procurement by
State agencies and sponsors must follow administrative appeal
procedures to the extent required by 7 CFR 225.17 and 7 CFR Part 3015.
In the CACFP, (1) institution appeal procedures are set forth in 7 CFR
226.6(k); and (2) disputes involving procurement by State agencies and
institutions must follow administrative appeal procedures to the extent
required by 7 CFR 226.22 and 7 CFR Part 3015.
Information Collection
This proposed rule contains no new information collection
requirements which are subject to review by the Office of Management
and Budget (OMB) under the Paperwork Reduction Act of 1980 (44 U.S.C.
Chapter 35). The programs being amended are approved by OMB under the
following control numbers: NSLP, 0584-0006; SBP, 0584-0012; SFSP, 0584-
0280; and CACFP, 0584-0055.
Background
Sections 9(a), 13(f) and 17(g) of the National School Lunch Act (42
U.S.C. 1758(a); 1761(f); and 1766(g) and Section 4(e)(1)(A) of the
Child Nutrition Act of 1966 (42 U.S.C. 1773(e)(1)(A)) require the
Secretary of Agriculture to set minimum nutritional requirements
[[Page 35153]]
for meals and supplements served in the Child Nutrition Programs. The
Department meets these requirements by requiring the use of menu
planning alternatives for lunches and breakfasts designed to enable
these meals, over time, to provide approximately one-third and one-
fourth of the Recommended Dietary Allowances (RDA) for key nutrients,
respectively. Although SFSP and CACFP meal patterns are not designed to
satisfy a particular percentage of daily required nutrients, the
program requirements are designed to provide nutritious and well-
balanced meals and supplements.
On June 13, 1995, the Department published a final rule (60 FR
31188) to update the nutrition standards for the school meals programs
and to provide local schools with a variety of menu planning systems to
choose from in meeting these standards. Under the School Meals
Initiative for Healthy Children, beginning in School Year 1996/1997,
school lunches must provide over a week's time one-third of the RDA for
key nutrients as well as one-third of the Recommended Energy Intake
(calories) needed by children (7 CFR 210.10(b)(1) and (2)). The meals
must also comply with the recommendations of the 1990 Dietary
Guidelines for Americans, including limits on calories from fat (no
more than 30 percent of total calories) and saturated fat (less than 10
percent of total calories) (42 U.S.C. 1758(f); 7 CFR 210.10(b)(3)).
Breakfasts must provide one-fourth of the RDA and calories and meet the
recommendations of the Dietary Guidelines (7 CFR 220.8(a)).
The updated regulations also provide school meal planners with
various menu planning options: Nutrient Standard Menu Planning
(NuMenus), Assisted Nutrient Standard Menu Planning (Assisted NuMenus)
and a food-based system. Subsequent to publication of the updated
regulation, section 2 of Public Law 104-149, the Healthy Meals for
Children Act, provided for additional food-based alternatives. The
Department will discuss the effects of this law when it issues guidance
for implementation.
Since NuMenus and Assisted NuMenus require that schools analyze the
nutrient content of meals rather than consider specific food
components, the crediting rules applicable to meal patterns are no
longer relevant for these meal planning options. As long as the
nutrition standards are achieved, meal planners have wide latitude in
determining the foods they will serve and the size of the portions.
Crediting rules continue to be necessary under any food-based systems,
however, to ensure that all components are available to children in
sufficient quantities to meet all of the nutrition standards. The
nutrition requirements and NuMenus and Assisted NuMenus options of the
School Meals Initiative for Healthy Children are not currently
applicable to meals and supplements served in the SFSP or CACFP.
Crediting of Yogurt
One long-standing crediting issue involves the appropriate use of
yogurt in the Child Nutrition Programs' meal patterns. In 1981 (46 FR
44452, September 4, 1981), in response to requests from program
participants (principally child care providers) and the food industry,
the Department proposed that yogurt be allowed, at local option, to
meet either the milk or meat/meat alternate requirement in the Child
Nutrition Programs. This proposed provision, which was included as part
of a larger proposed rulemaking dealing with crediting issues,
generated responses from over 1,000 commenters, many of whom were
concerned about sugar content, cost, acceptability and the lower iron
levels in yogurt relative to other meat alternates. Ultimately, the
Department decided to withdraw the entire proposed rulemaking (46 FR
48688, October 2, 1981).
The issue of yogurt resurfaced in 1985 when a proposed rule (50 FR
49933, December 6, 1985) to allow certain nuts and seeds (and any nut
or seed butter) to be credited as meat alternates also solicited
comments on crediting yogurt as a meat alternate. In part, the
Department requested comments on this program modification for a second
time due to findings that the use of yogurt as or in main dish items
was becoming increasingly popular in the diets of various segments of
the population. That proposal requested comments on recommendations to
permit plain or flavored yogurt, but not frozen yogurt. The Department
stated that frozen yogurt was most commonly used as a dessert and,
therefore, should not be allowed as a meat alternate (50 FR 49935).
The Department received 56 comments on this issue, 82 percent of
which were in favor of allowing yogurt as a meat alternate in meals
served in Child Nutrition Programs. However, while commenters were
generally in favor of yogurt, some expressed the opinion that only
``plain'' yogurt should be allowed. The consensus opinion was that
yogurt would be a nutritious addition to the meat alternates
(comparable to cheese and cottage cheese) and a good source of calcium
for lactose intolerant children while providing variety and flexibility
to meals.
The commenters who were against allowing yogurt as a meat alternate
were concerned about the nutritional equivalency of yogurt to meat
(especially for iron) and the prevalence of sweetened yogurt. Several
of these commenters suggested that yogurt might be more appropriate as
a supplement item. Also, some commenters mentioned that yogurt is
generally considered an alternative to milk as opposed to meat. The
Department concluded that the responses to the 1985 proposal did not
provide any new nutritional data or sufficient support for allowing
yogurt as a meat alternate, and the decision was made to continue
studying the issue.
The issue of yogurt's potential role in Child Nutrition Program
meal patterns was not revisited again until 1989 when final regulations
were published (54 FR 27151, June 28, 1989) to allow yogurt to be
credited as a meat alternate for supplements in the CACFP and the SFSP.
The Department limited the crediting of yogurt to snacks because of
findings that yogurt was less appropriate as a meat alternate in other
meals due to the sugar content of the majority of the yogurt products,
the likelihood of decreased fluid milk consumption when yogurt was
served in meals which required milk as a beverage, and yogurt's
inherently low iron content (54 FR 27152).
Since the 1989 rulemaking, the Department has continued to receive
requests from Program participants and the food industry to allow
yogurt as a creditable food for other meals. Most recently, the
Department received a number of comments on the proposed rules to
implement the School Meals Initiative for Healthy Children urging that
yogurt be authorized as a meat alternate in the food-based menu
planning systems. In response to these comments, the Department stated
in the preamble to the June 13, 1995, rule (60 FR 31206) that it would
consider a future rulemaking on the role of yogurt in the Child
Nutrition Programs.
Nutrition Issues
It is important to emphasize that yogurt made with lowfat milk can
offer a low fat, low cholesterol source of protein and carbohydrates,
while providing high levels of calcium, riboflavin and phosphorous.
In addition, the increasing popularity of yogurt (the per capita
consumption in the United States has increased over 100% during the
past decade) makes it an attractive addition to the meal
[[Page 35154]]
patterns for administrators and participants in the Child Nutrition
Programs. The addition of yogurt as a meat/meat alternate may increase
participation in programs and would certainly provide variety in the
meal patterns while providing another non-meat option. Yogurt is also
an excellent source of calcium for lactose intolerant individuals.
Yogurt with active cultures is one of the few calcium-rich foods that
is easily digested by most children. Finally, yogurt is an easy food to
serve in that no preparation is needed; it comes pre-packaged. There
are, however, several issues that need to be recognized.
Lower levels of some key nutrients--Yogurt is inherently low in two
essential nutrients, iron and niacin, generally provided by the meat/
meat alternate component. Yogurt, like other dairy products, is
nutritionally inferior to meat or bread in these nutrients.
Nevertheless, the Department recognizes that cheese and most of the
fish used as a meat/meat alternate in the NSLP are also not major
sources of iron. The crediting of an additional dairy product as a
meat/meat alternate in the meal pattern may further reduce the iron
level in the meals unless care is taken in menu planning or a nutrient
analysis performed.
While recognizing these deficiencies, the Department is proposing
that 4 ounces of flavored or unflavored yogurt be credited as 1 ounce
of meat alternate in the NSLP, SBP, SFSP and CACFP. For example, under
the enhanced food-based menu planning alternative (Sec. 210.10(k)),
schools could serve 8 ounces of yogurt to fulfill the total 2 ounce
meat/meat alternate requirement for children in grades 7-12 for lunch,
or they might wish to use a 4 ounce portion of yogurt (one-half the
meat/meat alternate requirement) served with a sandwich, hearty soup or
salad which would have to contain a 1 ounce equivalent portion of a
meat/meat alternate. For a school breakfast, 4 ounces of yogurt might
be served to fulfill the 1 ounce meat/meat alternate for grades K-12.
Used in these ways, yogurt could provide food service managers with
additional variety of foods in their menus that would reflect changing
food consumption habits and recognize the diversity of regional,
cultural and ethnic food preferences.
Consumption of fluid milk--The Department has some concerns about
the effects of yogurt service on fluid milk consumption. Fluid milk
consumption could decrease if both milk and yogurt are served in the
same meal. While another dairy food, cheese, has been allowed to be
credited as a meat alternate for years, it is more likely to be
consumed with fluid milk due to organoleptic differences. In a case
study: Yogurt Introduction in Michigan in Public Schools, published in
August 1991 by the Michigan Milk Producers Association, 120 students
were observed in order to assess the willingness of the students to
select and consume yogurt and the effects that choice would have on the
selection of other NSLP items. Fifty-three percent chose milk, 49
percent chose yogurt and only 2 percent chose both.
Cost--Cost is also a consideration for programs that might choose
to serve yogurt as a meat/meat alternate. In the Michigan study cited
above, one of the objectives was to assess the willingness of food
service directors to place yogurt on the menu as an alternate to milk.
School district participation was much lower than anticipated by the
research team. In the initial survey, 29 schools indicated a
willingness to be included in the study. After contact with each
school, only seven actually participated. The cost of serving yogurt
was the reason schools gave for their inability and refusal to
participate.
Conclusion
The Department wishes to stress that yogurt is being proposed as a
meat/meat alternate in response to numerous requests from food service
professionals and participants for increased flexibility in menu
planning and to meet regional and ethnic food preferences. There are
numerous products and formulations available in the yogurt market, and
some may be more appropriately utilized as a meat alternate than
others. The Department is aware that many of the yogurt products that
could satisfy the regulatory requirements as the meat/meat alternate
portion of the meal are actually more like dessert items. In proposing
this rule, the Department fully expects that schools and institutions
will exercise good judgment in the type of yogurt products selected.
Finally, this proposed rule applies only to commercially prepared
products which meet the Standard of Identity for yogurt as established
by the Food and Drug Administration in the Code of Federal Regulations
for yogurt, lowfat yogurt and nonfat yogurt, 21 CFR 131.200, 21 CFR
131.203 and 21 CFR 131.206, respectively. As in the 1989 final rule
permitting yogurt as a meat alternate for snacks in the SFSP and CACFP,
the Department's proposal does not apply to noncommercial and/or
nonstandardized yogurt products, such as frozen yogurt, homemade
yogurt, yogurt flavored products, yogurt bars, yogurt covered fruit
and/or nuts or similar products.
List of Subjects
7 CFR Part 210
Food assistance programs, National School Lunch Program, Commodity
School Program, Grants programs-social programs, Nutrition, Children,
Reporting and recordkeeping requirements, Surplus agricultural
commodities.
7 CFR Part 220
Food assistance programs, School Breakfast Program, Grants
programs-social programs, Nutrition, Children, Reporting and
recordkeeping requirements.
7 CFR Part 225
Food assistance programs, Grant programs--health, infants and
children, Reporting and Recordkeeping requirements.
7 CFR Part 226
Day care, Food assistance programs, Grant programs--health, infants
and children, Surplus agricultural commodities.
Accordingly, the Department proposes to amend 7 CFR Part 210, 220,
225 and 226 as follows:
PART 210--NATIONAL SCHOOL LUNCH PROGRAM
1. The authority citation for Part 210 continues to read as
follows:
Authority: 42 U.S.C. 1751-1760, 1779.
2. In Sec. 210.2 a new definition for Yogurt is added in
alphabetical order to read as follows:
Sec. 210.2 Definitions.
* * * * *
Yogurt means commercially prepared coagulated milk products
obtained by the fermentation of specific bacteria, that meet milk fat
or milk solid requirements and to which flavoring foods or ingredients
may be added. These products are covered by the Food and Drug
Administration's Standard of Identity for yogurt, lowfat yogurt, and
nonfat yogurt, 21 CFR 131.200, 21 CFR 131.203, 21 CFR 131.206,
respectively.
3. In Sec. 210.10
a. the meat or meat alternate section in the first column of the
table in paragraph (k)(2) is amended by adding a new entry for yogurt
after the entry for ``Peanut Butter or other nut or seed butters'';
b. new paragraph (k)(3)(iii) is added;
c. paragraph (n)(3)(iv) is amended by removing the words ``in the
snack only''
[[Page 35155]]
from the first sentence of footnote 4 in the ``Meal Supplement Chart
for Children''.
The additions read as follows:
Sec. 210.10 Nutrition standards for lunches and menu planning methods.
* * * * *
(k) Food-based menu planning. * * *
(2) Minimum quantities. * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Minimum quantities required for Option for
--------------------------------------------------------------------------------------------------------------------------------------------------------
Meal component Ages 1-2 Preschool Grades K-6 Grades 7-12 Grades K-3
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Meat or Meat Alternate (quantity of
the edible portion as served). * *
*
Yogurt, plain or flavored, 4 oz. or \1/2\ cup.... 6 oz. or \3/4\ cup.... 8 oz. or 1 cup....... 8 oz. or 1 cup....... 6 oz. or \3/4\ cup.
unsweetened or sweetened.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * *
(3) * * *
(iii) Yogurt may be used to meet all or part of the meat/meat
alternate requirement. Yogurt served may be either plain or flavored,
unsweetened or sweetened. Noncommercial and/or nonstandardized yogurt
products, such as frozen yogurt, homemade yogurt, yogurt flavored
products, yogurt bars, yogurt covered fruit and/or nuts or similar
products shall not be credited. Four ounces (weight) or \1/2\ cup
(volume) of yogurt fulfills the equivalent of one ounce of the meat/
meat alternate requirement in the meal pattern.
* * * * *
4. In Sec. 210.10a:
a. the meat or meat alternate section in the first column of the
table in paragraph (c) is amended by adding a new entry for yogurt
after the entry for ``Peanut Butter or other nut or seed butters'';
b. new paragraph (d)(2)(iii) is added;
c. paragraph (j)(3) is amended by removing the words ``in the snack
only'' from the first sentence of footnote 4 in the ``Meal Supplement
Chart for Children.''
The additions read as follows:
Sec. 210.10a Lunch components and quantities for the meal pattern.
* * * * *
(c) Minimum required lunch quantities. * * *
School Lunch Pattern--Per Lunch Minimums
--------------------------------------------------------------------------------------------------------------------------------------------------------
Minimum quantities Recommended
---------------------------------------------------------------------------------------------------------------------------------- quantities: Group V,
Group 1, ages 1-2, Group II, ages 3-4 Group III, ages 5-8 Group IV, age 9 and 12 years and older (7-
Food components and food items (preschool) (Preschool) (K-3) older (4-12) 12)
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Meat or Meat Alternate (quantity of
the edible portion as served): * *
*
Yogurt, plain or flavored, 4 oz. or \1/2\ cup.... 6 oz. or \3/4\ cup.... 6 oz. or \3/4\ cup... 8 oz. or 1 cup....... 12 oz. or 1\1/2\ cup.
unsweetened or sweetened.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * *
(d) Lunch components. * * *
(2) Meat or meat alternate. * * *
(iii) Yogurt may be used to meet all or part of the meat/meat
alternate requirement. Yogurt served may be either plain or flavored,
unsweetened or sweetened. Noncommercial and/or nonstandardized yogurt
products, such as frozen yogurt, homemade yogurt, yogurt flavored
products, yogurt bars, yogurt covered fruit and/or nuts or similar
products shall not be credited. Four ounces (weight) or \1/2\ cup
(volume) of yogurt fulfills the equivalent of one ounce of the meat/
meat alternate requirement in the meal pattern.
* * * * *
PART 220--SCHOOL BREAKFAST PROGRAM
1. The authority citation for Part 220 continues to read as
follows:
Authority: 42 U.S.C. 1773, 1779, unless otherwise noted.
2. In Sec. 220.2 a new paragraph (bb) is added to read as follows:
Sec. 220.2 Definitions
* * * * *
(bb) Yogurt means commercially prepared coagulated milk products
obtained by the fermentation of specific bacteria, that meet milk fat
or milk solid requirements and to which flavoring foods or ingredients
may be added. These products are covered by the Food and Drug
Administration's Standard of Identity for yogurt, lowfat yogurt, and
nonfat yogurt, 21 CFR 131.200, 21 CFR 131.203, 21 CFR 131.206,
respectively.
3. In Sec. 220.8, the meat or meat alternate section in the first
column of the table in paragraph (g)(2) is amended by adding a new
entry for yogurt after the entry for ``Nut and/or seeds'' to read as
follows:
Sec. 220.8 Nutrition standards for breakfast and menu planning
alternatives.
* * * * *
(g) Food-based menu planning. * * *
(2) Minimum quantities. * * *
[[Page 35156]]
----------------------------------------------------------------------------------------------------------------
Minimum Quantities Required For
--------------------------------------------------------------------------------------------- Option for grades
Meal component Ages 1-2 Preschool Grades K-12 7-12
----------------------------------------------------------------------------------------------------------------
* * * * * *
Meat or Meat Alternates * * *
Yogurt, plain or flavored, 2 oz. or \1/4\ cup 2 oz. or \1/4\ cup 4 oz. or \1/4\ cup 4 oz. or \1/2\
unsweetened or sweetened. cup.
----------------------------------------------------------------------------------------------------------------
* * * * *
4. In Sec. 220.8a, the meat or meat alternate section in the first
column of the table in paragraph (a)(2) is amended by adding a new
entry for yogurt after the entry for ``Nuts and/or seeds'' to read as
follows:
Sec. 220.8a Breakfast components and quantities for the meal pattern.
(a) * * *
(2) * * *
School Breakfast Pattern
[Required minimum serving sizes]
----------------------------------------------------------------------------------------------------------------
Food components/items Ages 1 and 2 Ages 3, 4, and 5 Grades K-12
----------------------------------------------------------------------------------------------------------------
* * * * * *
Meat/Meat Alternates: * * *
Yogurt, plain or flavored, 2 oz. or \1/4\ cup..... 2 oz. or \1/4\ cup..... 4 oz. or \1/2\ cup
unsweetened or sweetened.
----------------------------------------------------------------------------------------------------------------
* * * * *
PART 225--SUMMER FOOD SERVICE PROGRAM
1. The authority citation for Part 225 continues to read as
follows:
Authority: Sec. 9, 13 and 14, National School Lunch Act, as
amended (42 U.S.C. 1758, 1761 and 1762a).
2. In Sec. 225.16.
a. the Meat and Meat Alternates (Optional) section of the table in
paragraph (d)(1) is amended by adding the word ``or'' and a new entry
for yogurt after the entry for ``Peanut Butter or an equivalent
quantity of any combination of meat/meat alternate'';
b. the Meat and Meat Alternates section of the table in paragraph
(d)(2) is amended by adding the word ``or'' and a new entry for yogurt
after the entry for ``Peanuts or soynuts or tree nuts or seed''.
The additions read as follows:
Sec. 225.16 Meal service requirements.
* * * * *
(d) * * *
Breakfast
(1) * * *
------------------------------------------------------------------------
Food components Minimum amount
------------------------------------------------------------------------
* * * * *
Meat and Meat Alternates (Optional) * * 4 oz. or \1/2\ cup.
* or Yogurt, plain or flavored,
unsweetened or sweetened
------------------------------------------------------------------------
* * * * *
Lunch or Supper
(2) * * *
------------------------------------------------------------------------
Food components Minimum amount
------------------------------------------------------------------------
Meat and Meat Alternates * * * or 8 oz. or 1 cup.
Yogurt, plain or flavored, unsweetened
or sweetened.
* * * * *
------------------------------------------------------------------------
* * * * *
PART 226--CHILD AND ADULT CARE FOOD PROGRAM
1. The authority citation for Part 226 continues to read as
follows:
Authority: Secs. 9, 11, 14, 16, and 17, National School Lunch
Act, as amended (42 U.S.C. 1758, 1759a, 1762a, 1765 and 1766).
2. In Sec. 226.20:
a. new paragraph (a)(2)(ii)(C) is added;
b. the Meat and Meat Alternates sections in the first column of the
tables in paragraphs (c)(2) and (c)(3) are amended by adding the word
``or'' and a new entry for yogurt after the entries for ``Peanuts or
soynuts or tree nuts or seeds;''
c. paragraph (d)(1) is amended by adding a semicolon and the words
``or 4 oz of yogurt;'' after the words ``peanut butter''.
The additions read as follows:
Sec. 226.20 Requirements for meals.
(a) * * *
(2) * * *
(ii) * * *
(C) Yogurt may be used to meet all or part of the meat/meat
alternate requirement. Yogurt served may be either plain or flavored,
unsweetened or sweetened. Noncommercial and/or nonstandardized yogurt
products, such as frozen yogurt, homemade yogurt, yogurt flavored
products, yogurt bars, yogurt covered fruit and/or nuts or similar
products shall not be credited. Four ounces (weight) or 1/2 cup
(volume) of yogurt fulfills the equivalent of one ounce of the meat/
meat alternate requirement in the meal pattern.
* * * * *
(c) * * *
Lunch
(2) * * *
[[Page 35157]]
----------------------------------------------------------------------------------------------------------------
Age 6 through 12 Adult Participants
Food Components Age 1 and 2 Age 3 through 5 \1\ \9\
----------------------------------------------------------------------------------------------------------------
* * * * * *
Meat and Meat Alternates or 4 oz. or \1/2\ cup 6 oz. or \3/4\ cup 8 oz. or 1 cup.... 8 oz. or 1 cup.
Yogurt, plain or flavored,
unsweetened or sweetened
* * * * * *
*
----------------------------------------------------------------------------------------------------------------
* * * * *
(3) * * *
Supper
----------------------------------------------------------------------------------------------------------------
Children ages 1 Children ages 3 Children ages 6
Food components and 2 through 5 through 12 \1\ Adult participants
----------------------------------------------------------------------------------------------------------------
Meat and Meat Alternates or 4 oz. or \1/2\ cup 6 oz. or \3/4\ cup 8 oz. or 1 cup.... 8 oz. or 1 cup.
Yogurt, plain or flavored,
unsweetened or sweetened
* * * * * *
*
----------------------------------------------------------------------------------------------------------------
* * * * *
Dated: June 27, 1996.
William E. Ludwig,
Administrator, Food and Consumer Service.
[FR Doc. 96-16992 Filed 7-3-96; 8:45 am]
BILLING CODE 3410-30-P
Complete official Federal Register PDF
FR Doc. 96-16986 Procedure Governing Advisory Opinions and Rules Governing Summary Judgment Motions and Advisory Opinions
[Federal Register Volume 61, Number 130 (Friday, July 5, 1996)]
[Proposed Rules]
[Pages 35172-35174]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16986]
=======================================================================
-----------------------------------------------------------------------
NATIONAL LABOR RELATIONS BOARD
29 CFR Parts 101 and 102
Procedure Governing Advisory Opinions and Rules Governing Summary
Judgment Motions and Advisory Opinions
AGENCY: National Labor Relations Board.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: As part of its ongoing efforts to streamline its operations by
eliminating unnecessary and inefficient procedures, the National Labor
Relations Board (NLRB) is proposing to revise its rules to eliminate
the notice-to-show-cause procedure in summary judgment cases and to
remove provisions which permit parties to pending state proceedings to
file petitions for an advisory opinion on whether the Board would
assert jurisdiction under its commerce standards.
DATES: All comments must be received on or before August 5, 1996.
ADDRESSES: All written comments should be sent to the Office of the
Executive Secretary, National Labor Relations Board, 1099 14th Street,
NW., Room 11600, Washington, DC 20570. The comments should be filed in
eight copies, double spaced, on 8 1/2 by 11 inch paper and shall be
printed or otherwise legibly duplicated.
FOR FURTHER INFORMATION CONTACT: John J. Toner, Executive Secretary,
Telephone: (202) 273-1940.
SUPPLEMENTARY INFORMATION: Over approximately the last two years, the
NLRB has been conducting an intensive internal review of its procedures
at all levels of the Agency. The purpose of this internal review has
been to find ways to maintain and improve the Agency's case-processing
efficiency in light of the Agency's diminishing resources. Many
initiatives have already been implemented by the Board as part of this
ongoing review, such as the recent initiative authorizing the use of
settlement judges and providing judges with the discretion to dispense
with briefs and to issue bench decisions, which was published as a
final rule on February 23, 1996, following a one-year experimental
period (61 FR 6940). Other initiatives are currently under
consideration. Two such initiatives, involving the elimination of the
notice-to-show-cause procedure in summary judgment cases and the
removal of provisions permitting parties to pending state proceedings
to file petitions for an advisory opinion on whether the Board would
assert jurisdiction under its commerce standards, are set forth below.
1. Notices to show cause in summary judgment cases. Section
102.24(b) of the Board's rules currently requires the Board to issue a
notice to show cause to the parties prior to granting a motion for
summary judgment or dismissal. Such notices have historically served
several purposes or functions, including providing notice of the motion
to the opposing party, postponing any scheduled hearing date, and
setting the deadline for responding (normally 14 days from the date of
the notice).
All of these functions are essentially unnecessary, however. The
motion itself must be served on the opposing party and the motion
therefore provides its own notice to the opposing party. No further
notice is necessary.
With respect to postponing the hearing date, the Regional Director
has the unrestricted authority under Section 102.16 of the Board's
rules to do so at any time prior to 21 days before the hearing. Thus,
the General Counsel need not rely on the Board to postpone the hearing
upon filing a timely motion for summary judgment, which under Section
102.24(b) of the Board's rules must normally be filed at least 28 days
before the scheduled hearing. In the event the General Counsel does not
determine that a motion for summary judgment is warranted until after
expiration of the 28-day deadline for filing such motions with the
Board and the 21-day deadline on the Regional Director's unrestricted
authority to postpone the hearing, the General Counsel may in that
event seek a postponement from the Division of Judges prior to filing
the motion for summary judgment. See, e.g., R. B. Contracting Co., 321
NLRB No. 41 (May 20, 1996).
Of course, it may still be necessary in certain circumstances for
the Board to issue an order postponing the hearing in response to a
respondent's motion for summary judgment or dismissal. The Board's
experience with such motions, however, indicates that in the vast
majority of such cases there are factual issues which make summary
judgment or dismissal inappropriate. Thus, the Board in the past has
only rarely issued notices to show cause postponing the hearing in
response to respondent motions, and there is no reason why this
experience would change under the revised rule. In any event, as under
the current rule, under the revised rule the respondent may request the
Regional Director, administrative law judge, and/or the Board to
postpone the hearing when it files the motion for summary judgment or
dismissal. The Board normally completes its initial review of the
respondent's motion prior to the hearing, and in the event that its
initial review indicates that summary judgment may be appropriate, and
the hearing has not already been postponed, as under the current rule
the Board may issue an order postponing the hearing.
With respect to setting the time for responding, there is no reason
why the deadline for responding cannot be established by rule in all
cases. Similar deadlines are set forth in the Board's rules for the
filing of other pleadings (see, e.g., Sec. 102.20 of the Board's rules,
setting 14-day deadline for filing an answer to the complaint), and no
further or special notice of the deadline is required with respect to
those pleadings. See, e.g., Superior Industries, 289 NLRB 834, 835 n.
13 (1988) (no further reminder or warning of the failure to file an
answer required).
Moreover, we note that the General Counsel's practice with respect
to complaints and compliance specifications has been to specifically
advise the respondent in the complaint or specification itself of the
time for filing an answer. See NLRB Casehandling Manual, Sec. 10267
(complaints) and 10622.1 and App. 14 (compliance specifications). We
approve of this practice and anticipate that the General Counsel would
also adopt this practice with respect to default and other summary
judgment motions in the event the proposed revisions are adopted by the
Board.\1\
---------------------------------------------------------------------------
\1\ The General Counsel's failure to include such notice in the
motion for summary judgment would not necessarily require denial of
the motion, but would be considered by the Board as a factor in
ruling on any subsequent motion filed by the respondent for
reconsideration of the Board's decision granting the General
Counsel's motion for summary judgment.
---------------------------------------------------------------------------
[[Page 35173]]
Accordingly, the Board is proposing to revise Section 102.24(b) of
its rules to eliminate the notice-to-show-cause procedure in summary
judgment cases, and to instead provide that the 14-day period for
responding to the motion shall commence upon service of the motion. The
revised rule specifically provides that the hearing is not
automatically postponed upon filing of the motion for summary judgment,
and that it is the responsibility of the party moving for summary
judgment to postpone the hearing (if the General Counsel files the
motion for summary judgment) or to file a request for a postponement
with the regional director, administrative law judge, and/or the Board
(if the respondent or charging party files the motion for summary
judgment or dismissal). This latter provision is intended to make clear
that the General Counsel should not rely on the Board to postpone the
hearing or assume that the Board will issue an order postponing the
hearing, which was a function of the traditional notice to show cause.
Thus, when the General Counsel files the motion for summary judgment,
the General Counsel should also postpone the hearing (assuming the
General Counsel wishes to postpone the hearing and has the authority to
do so under Section 102.16 of the Board's rules.)
2. Party petitions for an advisory opinion. Sections 102.98(a) and
102.99(a) of the Board's rules, and Section 101.39 of the Board's
statements of procedures, currently authorize parties to pending state
proceedings to file a petition for an advisory opinion with the Board
as to whether the Board would assert jurisdiction under its current
commerce standards. There is no statutory requirement that the Board
entertain such advisory opinions, however, and the procedure is not
widely utilized.\2\ Further, the Board's jurisdictional standards are
generally well developed, and are readily available in numerous
published decisions and opinions. Experience with past party petitions
has shown that the parties themselves, or the state agency or court,
could just as easily have researched and applied the Board's current
commerce standards without invoking the Board's processes.
---------------------------------------------------------------------------
\2\ The Board typically receives about 10-15 party petitions for
advisory opinion each year. Although relatively few in number,
substantial staff resources are consumed in preparing and issuing
the Board's opinion in each case.
---------------------------------------------------------------------------
Moreover, there are other, often more speedy, avenues available for
obtaining a jurisdictional determination or opinion. For example,
Section 101.41 of the Board's statements of procedure provides that
persons may seek informal opinions on jurisdictional issues from the
Regional offices. And the Regional Office will also make a
jurisdictional determination early in its investigation of any
representation petition or unfair labor practice charges filed with
that office. See NLRB Casehandling Manual, Sec. 11706.
Finally, the proposed change would not affect the provisions of
current Section 102.98(b) and 102.99(b) of the Board's rules and
Section 101.39 of the Board's statements of procedure, which permit the
state or territorial agency or court itself to file a petition for an
advisory opinion on whether the Board would decline to assert
jurisdiction based either on its commerce standards or because the
employer is not within the jurisdiction of the Act. The provisions
permitting such petitions are retained, with minor modification to
Section 101.39 of the Board's statements of procedure to conform it
with Board decisions indicating that the Board will not issue an
opinion unless the relevant facts are undisputed or the state agency or
court has already made the relevant factual findings. See Correctional
Medical Systems, 299 NLRB 654 (1990); University of Vermont, 297 NLRB
291 (1989); and St. Paul Ramsey Medical Center, 291 NLRB 755 (1988).
See also Brooklyn Bureau of Community Service, 320 NLRB No. 157 (April
15, 1996).
Although the Agency has decided to give notice of proposed
rulemaking with respect to these rule changes, the changes involve
rules of agency organization, procedure or practice and thus no notice
of proposed rulemaking is required under Sec. 553 of the Administrative
Procedure Act (5 U.S.C. 553). Accordingly, the Regulatory Flexibility
Act (5 U.S.C. 601), does not apply to these rule changes.
List of Subjects in 29 CFR Parts 101 and 102
Administrative practice and procedure, Labor management relations.
For the reasons set forth above, the NLRB proposes to amend 29 CFR
parts 101 and 102 as follows:
PART 101--STATEMENTS OF PROCEDURE
1. The authority citation for 29 CFR part 101 continues to read as
follows:
Authority: Sec. 6 of the National Labor Relations Act, as
amended (29 U.S.C. 151, 156), and sec. 522(a) of the Administrative
Procedure Act (5 U.S.C. 552(a)). Section 101.14 also issued under
sec. 2112(a)(1) of Pub. L. 100-236, 28 U.S.C. 2112(a)(1).
2. Sec. 101.39 is revised to read as follows:
Sec. 101.39 Initiation of advisory opinion case.
(a) The question of whether the Board will assert jurisdiction over
a labor dispute which is the subject of a proceeding in an agency or
court of a State or territory is initiated by the filing of a petition
with the Board. This petition may be filed only if:
(1) A proceeding is currently pending before such agency or court;
(2) The petitioner is the agency or court itself; and
(3) The relevant facts are undisputed or the agency or court has
already made the relevant factual findings.
(b) The petition must be in writing and signed. It is filed with
the Executive Secretary of the Board in Washington, DC. No particular
form is required, but the petition must be properly captioned and must
contain the allegations required by Sec. 102.99 of the Board's Rules
and Regulations. None of the information sought relates to the merits
of the dispute. The petition may be withdrawn at any time before the
Board issues its advisory opinion determining whether it would or would
not assert jurisdiction on the basis of the facts before it.
PART 102--RULES AND REGULATIONS
1. The authority citation for 29 CFR part 102 continues to read as
follows:
Authority: Section 6, National Labor Relations Act, as amended
(29 U.S.C. 151, 156). Section 102.117(c) also issued under Section
552(a)(4)(A) of the Freedom of Information Act, as amended (5 U.S.C.
552(a)(4)(A)), and section 552a(j) and (k) of the Privacy Act (5
U.S.C. 552a(j) and (k). Sections 102.143 through 102.155 also issued
under Section 504(c)(1) of the Equal Access to Justice Act, as
amended (5 U.S.C. 504(c)(1)).
2. Section 102.24(b) is revised to read as follows:
Sec. 102.24 Motions; where to file; contents; service on other
parties; promptness in filing and response; summary judgment
procedures.
* * * * *
(b) All motions for summary judgment or dismissal shall be filed
with the Board no later than 28 days prior to the scheduled hearing.
Where no hearing is scheduled, or where the hearing is scheduled less
than 28 days after the
[[Page 35174]]
date for filing an answer to the complaint or compliance specification,
whichever is applicable, the motion shall be filed promptly. Any
opposition to the motion shall be filed within 14 days after the
service of the motion for summary judgment on the opposing party. It is
not required that the opposition be supported by affidavits or other
documentary evidence showing that there is a genuine issue for hearing.
The Board in its discretion may deny the motion where the motion itself
fails to establish the absence of a genuine issue, or where the
opposing party's pleadings and/or opposition indicate on their face
that a genuine issue may exist. If the opposing party files no
opposition, the Board may treat the motion as conceded, and summary
judgment or dismissal, if appropriate, shall be entered. The hearing
shall not be automatically postponed upon filing of the motion for
summary judgment. It shall be the responsibility of the party filing
the motion to postpone the hearing (if the General Counsel files the
motion for summary judgment, subject to the provisions of Sec. 102.16
of the Board's rules and regulations) or to file a request for a
postponement with the Regional Director, administrative law judge, and/
or the Board (if the respondent or charging party files the motion).
Sec. 102.98 [Amended]
3. In Sec. 102.98, paragraph (a) and the paragraph designation (b)
are removed.
Sec. 102.99 [Amended]
4. In Sec. 102.99, paragraph (a) is removed and paragraphs (b) and
(c) are redesignated as paragraphs (a) and (b) respectively.
Dated, Washington, DC, June 28, 1996.
By direction of the Board:
John J. Toner,
Executive Secretary.
[FR Doc. 96-16986 Filed 7-3-96; 8:45 am]
BILLING CODE 7545-01-P
Complete official Federal Register PDF
FR Doc. 96-16184 Irrigation Projects and Systems
[Federal Register Volume 61, Number 130 (Friday, July 5, 1996)]
[Proposed Rules]
[Pages 35167-35172]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16184]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
25 CFR Part 171
RIN 1076-AD44
Irrigation Projects and Systems
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Bureau of Indian Affairs is revising its regulations
governing irrigation projects. The purpose of the revisions is to make
it easier to read and understand for the customers of Indian irrigation
projects; provide for consistent administration; establish the process
for updating practices, policies, and procedures for the
administration, operation, maintenance, and rehabilitation of
irrigation projects; and provide uniform accounting and record keeping
procedures.
DATES: You may send us written comments. We must receive them by
September 3, 1996.
ADDRESSES: You must mail or hand carry your comments to Terrance
Virden, Acting Director, Office of Trust Responsibilities, Bureau of
Indian Affairs, Department of the Interior, 1849 C Street, N.W., MS
4513 MIB, Washington, D.C. 20240.
FOR FURTHER INFORMATION CONTACT: Ross Mooney, Chief, Branch of
Irrigation and Power, Division of Water and Land Resources, Bureau of
Indian Affairs, Department of the Interior, 1849 C Street, N.W., Mail
Stop 4513 MIB, Washington, D.C. 20240, Phone Number (202) 208-5480.
SUPPLEMENTARY INFORMATION: We are publishing this revised rule by the
authority delegated by the Secretary of the Interior to the Assistant
Secretary-Indian Affairs by 209 DM 8.
Our policy is to give the public an opportunity to participate in
the rule making process by submitting written comments regarding
proposed rules. We will consider all comments received during the
public comment period. We will determine necessary revisions and issue
the final rule. Please refer to this preamble's ``ADDRESSES'' section
for where you must submit your written comments on this proposed rule.
We have determined that these proposed regulations meet the
applicable standards provided in Sections 3(a) and 3(b)(2) of Executive
Order 12988.
This rule is not a significant rule under Executive Order 12866 and
does not require approval by the Office of Management and Budget.
This rule imposes no unfunded mandates on any governmental or
private entity and is in compliance with the provisions of the Unfunded
Mandates Act of 1995.
We determined this proposed rule:
(a) Does not constitute a major Federal action significantly
affecting the human environment, and no detailed statement is needed
under the Environmental Policy Act of 1969;
(b) Does not have significant takings implications in accordance
with Executive Order 12630; and
(c) Does not have significant federalism effects.
Paperwork Reduction Act of 1995
Sections 171.214 and 171.215 contain information collection
requirements. As required by the Paperwork Reduction Act of 1995 (44
U.S.C. 3507(d)), the Bureau of Indian Affairs has submitted a copy of
these sections to the Office of Management and Budget for its review.
Water users must apply for water delivery. The information to be
collected includes: name; watery deliver location; time and date of
requested water delivery; duration of water delivery; rate of water
flow; number of acres irrigated; crop statistics; and other operational
information identified in the local administration manuals. The Bureau
needs and uses the information to operate and maintain its irrigation
projects and fulfill our reporting requirements.
All information is to be collected annually from each water user.
Annual
[[Page 35168]]
reporting and record keeping burden for this collection of information
is estimated to average 40 minutes for each response for approximately
51,500 respondents, including the time for reviewing instructions,
searching existing data sources, gathering and maintaining the data
needed, and completing and reviewing the collection of information.
Thus, the total annual reporting and recordkeeping burden for this
collection is estimated to be 4,292 hours.
Organizations and individuals wishing to submit comments on the
information collection requirement should direct them to the Office of
Information and Regulatory Affairs, OMB, Room 10202, New Executive
Office Building, Washington, D.C. 20503; Attention Desk Officer for
U.S. Department of Interior.
The Bureau of Indian Affairs considers comments by the public on
this proposed collection of information in:
Evaluating whether the proposed collection of information is
necessary for the proper performance of the Bureau, including whether
the information will have practical utility;
Enhancing the quality, usefulness, and clarity of the information
to be collected; and
Minimizing the burden of the collection of information on those who
are to respond, including through the use of appropriate collection
techniques or other form of information technology.
OMB is required to make a decision concerning the collection of
information contained in these proposed regulations between 30 and 60
days after publication of this document in the Federal Register.
Therefore, a comment to the OMB is best assured of having its full
effect if OMB receives it within 30 days of publication. This does not
affect the deadline for the public to comment to the Bureau of Indian
Affairs on the proposed rule.
List of Subjects in 25 CFR Part 171
Indians-lands, Irrigation.
For the reasons set out in the preamble we are proposing to revise
Part 171 of Title 25 of the Code of Federal Regulations, as follows:
PART 171--IRRIGATION PROJECTS AND SYSTEMS
Subpart A--General Provisions
Sec.
171.101 Definitions.
171.102 How we will administer irrigation projects.
171.103 How we will establish local administration manuals for each
project.
171.104 What are the responsibilities and authorities of irrigation
districts?
171.105 How can you appeal our decisions?
Subpart B--How We Will Distribute Water
171.201 Water delivery points for farm units.
171.202 What if my farm is too high?
171.203 What must I do if I subdivide a farm unit?
171.204 What must I do if I combine farm units?
171.205 How we will distribute water.
171.206 What restrictions are there on my use of water?
171.207 Will you deliver water to my farm unit if I have not paid
my assessments?
171.208 May I ever receive water if I cannot pay my assessments on
time?
171.209 May I use water for leaching?
171.210 Is there a deadline by which I must use water that you
deliver for leaching?
171.211 May I use water for domestic and stock purposes?
171.212 Will you deliver water over my quota?
171.213 How can I get water delivered to my service or farm ditch?
171.214 How do I apply for water delivery?
171.215 How we record your water delivery.
171.216 What are my responsibilities concerning waste water and
surface drainage?
171.217 When will we establish carriage agreements?
Subpart C--Project Facilities
171.301 Who is responsible for obtaining rights of way?
171.302 Who is responsible for structures on our property or rights
of way?
171.303 May I ever take over a structure that you have built?
171.304 Can you install a fence on our property or rights of way?
171.305 Can you place an obstruction on our property or rights of
way?
Subpart D--Financial Matters and Records
171.401 Definitions for this subpart.
171.402 What costs must I pay?
171.403 How will I know what fees you will charge me?
171.404 How do you compute the costs that you charge me?
171.405 How will I be billed for the water that I use?
171.406 Uniform accounting and billing procedures are required.
171.407 What procedures apply if there are assessment or
construction repayment charges?
171.408 How will you recover late payments?
Subpart E--Miscellaneous
171.501 Information you must provide us.
171.502 Your responsibility concerning refuse.
Authority: Secs. 1, 3, 36 Stat. 270, 272, as amended; 25 U.S.C.
385. Sec. 171.4(b) also issued under 34 Stat. 1024, 38 Stat. 583,
and 68 Stat. 1026. Secs. 171.4(a), 171.4(c), 171.16(b), and
171.17(f) also issued under sec. 11, 39 Stat. 142.
Subpart A--General Provisions
Sec. 171.101 Definitions.
Administration Manual means the written compilation of policies,
procedures, and practices we must use to govern the local day-to-day
administration, operation, maintenance, and rehabilitation of our
individual projects.
Construction assessment means the periodic charge you must pay us
to repay appropriated funds we used to build project facilities that
the United States Congress has determined to be reimbursable to us.
Farm ditch means a ditch or canal located on your farm unit which
you own, operate, maintain, and rehabilitate.
Farm unit means the smallest parcel of land for which we will
establish a delivery point.
Farm unit size will be defined by us for each project in the local
Administration Manual.
Irrigation district means an organization representing water users,
established under proper legal authority to represent all of, or a
portion of, the water users for the purposes of the fair and beneficial
use of irrigation water, and conferring with us on the administration,
operation, maintenance, and rehabilitation of our project serving it.
Operation & Maintenance (O&M) Assessment means the computed per
acre cost you must pay us for administering, operating, maintaining,
and rehabilitating our facilities.
Project means a facility we own, including all appurtenant works,
for the delivery, diversion, and storage of irrigation water,
authorized and established by specific Congressional legislation. For
the purposes of this part, we will reference both projects and systems
using the term ``project.''
Service ditch means a ditch or canal you own, operate, maintain,
and rehabilitate into which we deliver water.
Severance agreement means an agreement between us and a landowner
to provide access, if we, through construction or extension of a
project, cause severance of the owner's property.
System means a facility we own, including all appurtenant works,
for the delivery, diversion, and storage of irrigation water, which we
established under the authority of the Snyder Act (25 U.S.C. 13).
Waste water means the runoff of water we deliver to you.
Water means water we deliver from, or return to, our facilities for
the general purpose of irrigation.
[[Page 35169]]
Water user means any person, business, government, or other entity
we provide water.
Water users' ledger means our record of water user accounts.
We means the United States Government, the Secretary of the
Interior, the Bureau of Indian Affairs, and all who are authorized to
represent us in matters covered under this part.
You means all interested parties receiving beneficial use of our
projects, such as water users and landowners, irrigation districts, or
other entities affected by this part.
Sec. 171.102 How we will administer irrigation projects.
(a) We must enforce the regulations in this part and the provisions
of the local administration manuals to ensure the safe, reliable, and
efficient administration, operation, maintenance, and rehabilitation of
our facilities.
(b) Our enforcement includes refusing water delivery to you.
(c) We must use the construction debt repayment funds we collect
from you to repay the construction debt of the particular project where
we collect the money.
(d) You must agree to a construction debt repayment plan for the
project where you are located if repayment of the appropriated
construction funds is required.
Sec. 171.103 How we will establish local administration manuals for
each project.
(a) We will establish policies, procedures, and practices for the
local administration, operation, maintenance, and rehabilitation of
each project and compile them in a local administration manual.
(b) We must publish a notice in the Federal Register before
establishing, or amending, a project's administration manual.
(c) We must consult with the water users, or their authorized
representatives, and tribal representatives to seek comment on
administration manuals and other matters of irrigation priorities and
policies.
Sec. 171.104 What are the responsibilities and authorities of
irrigation districts?
(a) Water users may form an irrigation district to represent their
interests.
(b) An irrigation district must do the following before we will
deliver water:
(1) Properly execute a construction repayment contract;
(2) Pay all charges in accordance with the construction repayment
contract;
(3) Pay us all past and current construction assessment charges;
and
(4) Pay us all past and current O&M assessment charges.
(c) Irrigation districts may make rules, policies, and procedures
they may find necessary to administer water delivery within their
district.
(d) Irrigation districts cannot make rules, policies, or procedures
that conflict with the regulations in this part, or the local
administration manual.
Sec. 171.105 How can you appeal our decisions?
(a) You may appeal our decisions in accordance with subchapter A,
part 2 of Title 25 or in accordance with the established local
administrative manual, whichever has specific application for what you
are appealing.
(b) Until your appeal is settled, you must:
(1) Conform to our requirements for us to deliver water; and
(2) Pay the charge(s) or rates, if you are appealing assessments,
rates, or fees.
Subpart B--How We Will Distribute Water
Sec. 171.201 Water delivery points for farm units.
(a) We will normally deliver water to your farm unit at a single
point we designate.
(b) We may establish additional delivery point(s) under the
following conditions:
(1) We determine it is impractical for you to irrigate your farm
unit from a single delivery point;
(2) You must bear all costs for establishing additional delivery
point(s); and
(3) We may establish your delivery point(s) at a well head.
Sec. 171.202 What if my farm is too high?
(a) We will not change our water level to deliver water to you.
(b) You may install, operate and maintain equipment, at your
expense, to put our water on your land:
(1) From a point we designate; and
(2) In accordance with specifications we approve.
Sec. 171.203 What must I do if I subdivide a farm unit?
(a) Legally record a plat or map of the subdivision and provide us
a copy; and
(b) Show on the plat or map how water is to be delivered within the
subdivision; and
(c) Assume full responsibility for the facilities within your
subdivision.
Sec. 171.204 What must I do if I combine farm units?
(a) If you combine farm units, or portions of farm units, under a
lease, or ownership, we must modify or remove existing delivery points
to comply with Sec. 171.203 (a) and (b). You must pay us the cost of
modification or removal to meet this requirement. Any modifications
must not disrupt water delivery to other water users.
(b) Should you change your mind about combining farm units after we
have modified or removed our facilities:
(1) We must approve reestablishment of the water delivery points;
(2) Other water users must not have their water delivery service
disrupted to reestablish the water delivery points, and
(3) You must pay us all costs to reestablish the delivery points.
Sec. 171.205 How we will distribute water.
We will follow the distribution procedures in the local
administration manual. We will notify you in writing when your quota of
water for the season has been delivered.
Sec. 171.206 What restrictions are there on my use of water?
(a) You must not interfere with, or alter, water flow, storage, or
delivery without our authorization.
(b) You must not possess or use water in any way without our
permission.
Sec. 171.207 Will you deliver water to my farm unit if I have not paid
my assessments?
No. You must pay all O&M and construction assessments before we
will deliver water to your farm unit. The only limited exceptions to
this rule are contained in Sec. 171.208.
Sec. 171.208 May I ever receive water if I cannot pay my assessments
on time?
We may agree to deliver water to your farm unit if you cannot pay
your assessments on time and if you meet one of the conditions in the
following table.
------------------------------------------------------------------------
We may deliver water to you if: and . . .
------------------------------------------------------------------------
your farm unit is held in trust or is (1) we certify in writing
restricted land. that you are an Indian
owner and are financially
unable to pay on time; (2)
you make arrangements to
pay us eventually; and (3)
you allow us to place a
first lien against your
land until you pay the
assessments.
[[Page 35170]]
your farm unit is leased trust or you make delayed payment
restricted land and the lease was arrangements with us.
negotiated by the Indian owner.
you have asked us for an adjustment or we have not yet acted on
cancellation for the assessment on your your request.
land.
you have an approved deferred payment
contract on your land that was executed
under the Act of June 22, 1936 (49 Stat.
1803).
------------------------------------------------------------------------
Sec. 171.209 May I use water for leaching?
We may deliver water to your farm unit for leaching land that is
impregnated by alkali. We may charge for this water. We will deliver
this water if:
(a) The water is available;
(b) You have a plan of operation that we have approved;
(c) You have made a written agreement with us to correct the alkali
problem; and
(d) You do not owe us any money.
Sec. 171.210 Is there a deadline by which I must use water that you
deliver for leaching?
Yes. You must make full beneficial use of water delivered for
leaching purposes by the date in the administration manual. If you have
not:
(a) We must refuse to deliver water to you for leaching; and
(b) We must charge you for any delivered water.
Sec. 171.211 May I use water for domestic and stock purposes?
We may deliver water for domestic and stock purposes if it will
not:
(a) Interfere with the operation, maintenance, or rehabilitation of
our facilities;
(b) Be detrimental to, or endanger, our facilities;
(c) Adversely affect the stored water supply, and
(d) Incur additional costs to us.
Sec. 171.212 Will you deliver water over my quota?
We may deliver additional water above your quota:
(a) If we determine excess water is available;
(b) You request the water in writing; and
(c) You agree to pay for the water at published rates.
Sec. 171.213 How do I get water delivered to my service or farm ditch?
For us to deliver water to your service or farm ditch you must:
(a) Put the water to beneficial use;
(b) Make sure your ditch has sufficient carrying capacity;
(c) Properly maintain and rehabilitate your ditch; and
(d) Make sure your ditch has minimal losses.
Sec. 171.214 How do I apply for water delivery?
(a) You must request water delivery in accordance with the
administration manual we have established for your project.
(b) Your request must contain at least the following information:
(1) Your name;
(2) Where you want water delivered;
(3) The time and date you want water delivered;
(4) How long you want water delivered;
(5) The rate of water flow you want; and
(6) How many acres you are irrigating.
Sec. 171.215 How we record your water delivery.
(a) We maintain the water delivery records in accordance with the
administration manual.
(b) We will keep at least the following information as part of your
water delivery record:
(1) Your name;
(2) Beginning date and time of your water delivery;
(3) Ending date and time of your water delivery;
(4) Amount of water we delivered to you; and
(5) The actual acreage you irrigated.
Sec. 171.216 What are my responsibilities concerning waste water and
surface drainage?
(a) You are responsible for conveying your irrigation waste water
back to our facilities for drainage.
(b) You are responsible for all costs we might incur in helping you
meet your responsibility as described in paragraph (a) of this section.
(c) You will return waste water to our facilities only at points we
designate, and in a way we approve.
(d) When there are two or more landowners or water users, it is
their responsibility to work out a satisfactory arrangement for
conveying their irrigation waste water to our facilities.
(e) Your waste water must not flow upon, or collect on, our rights
of way or roads, except at points we designate, and in a way we
approve.
Sec. 171.217 When will we establish carriage agreements?
(a) We may enter into an agreement to deliver non-project water to
non-project land if we have determined there is excess capacity in our
facilities to do so.
(b) We may enter into an agreement with a private enterprise or
individual to convey water through other than our own facilities to
isolated project land you are irrigating.
(c) You must pay us all administrative, operating, maintenance, and
rehabilitation costs associated with these agreements before we will
convey the water.
Subpart C--Project Facilities
Sec. 171.301 Who is responsible for obtaining rights of way?
You must obtain rights of way necessary for us to construct or
extend facilities to deliver water to your farm unit, in accordance
with the following:
(a) For rights of way across trust or restricted lands, you must
obtain these rights-of-way in accordance with 25 CFR part 169.
(b) For rights of way across fee patented lands, you must obtain
the right-of-way from the property owner(s).
(c) You must provide the rights of way to us at no cost.
(d) The right of way must be wide enough to permit passage and use
of our equipment for construction, operation, maintenance, and
rehabilitation of our facilities.
Sec. 171.302 Who is responsible for structures, on our property or
rights-of-way?
(a) We must build, operate, maintain, and rehabilitate our own
structures, including bridges and other crossings, unless we authorize
someone else to do it, in writing.
(b) When we are building, or extending our existing facilities, we
may build other structures or facilities for private use when justified
by severance agreements, or other considerations.
(c) We own these structures unless we decide to do otherwise.
(d) If we build and own a structure for your benefit, we may
require you to maintain it. If you do not, and we perform the necessary
maintenance ourselves, you must pay us all costs incurred.
(e) You may build a structure encroaching on our rights of way for
your private use after:
(1) We approve in writing;
(2) We approve the plans for construction; and
(3) You sign a written agreement with us stating you will bear all
costs of installation, maintenance,
[[Page 35171]]
rehabilitation, and possible future removal.
(f) If any structure built under this part is no longer needed, we
may remove it.
Sec. 171.303 May I ever take over a structure that you have built?
(a) If you want to use a structure we plan on removing, you may
request in writing to take ownership of the structure.
(b) We may transfer ownership of a structure to you under an
agreement which:
(1) Relieves us from any future liability or responsibility for the
structure;
(2) Relieves us from any future costs incurred for maintaining the
structure; and
(3) Stipulates all that is granted and accepted by you.
(4) Provides that if you do not regularly use a structure for a
period of one year, or do not properly maintain and rehabilitate the
structure, we will notify you in writing that:
(i) You must either remove it or correct any unsafe condition; and
(ii) If you do not comply with our notice, we may remove the
structure and you must pay us all costs we incur.
Sec. 171.304 Can you install a fence on our property or rights of way?
(a) You must not place a fence across or within our property or
rights of way without our written approval.
(b) We will approve fences on our property or rights of way only if
it:
(1) Is properly installed;
(2) Does not interfere with the flow or delivery of water; and
(3) Does not interfere with the passage of our equipment and
employees.
(c) We must notify you in writing to remove fences we do not
approve.
(d) If you do not remove the fence in accordance with our notice,
we will remove the fence at your expense.
Sec. 171.305 Can you place an obstruction on our property or rights of
way?
No. You must not place obstructions on our property or rights-of-
way. If you do, we will notify you in writing that you must remove it.
If you do not remove the obstruction in accordance with our notice, we
will remove it at your expense.
Subpart D--Financial Matters and Records
Sec. 171.401 Definitions for this subpart.
Administrative costs means all expenses we incur to administer our
project at the local level. This does not include the agency, area, or
central office expenses.
Assessment rate means the published charge you must pay for us to
deliver water to your farm unit.
Costs means the expenses we incur to provide direct support or
benefit to your project's activities for administration, operation,
maintenance, and rehabilitation. Depending on the activity, we must
include at least:
(1) Salary and benefits for the project engineer/manager and our
employees under his or her control;
(2) Materials and supplies;
(3) Major and minor vehicle and equipment repairs;
(4) Equipment, including transportation, fuel, oil, grease, lease
and replacement;
(5) Capitalization expenses;
(6) Acquisition expenses; and
(7) Other expenses we determine necessary to properly perform the
activities and functions necessary for an irrigation project.
Maintenance costs means all expenses we incur to maintain and
repair our facilities and equipment of our project.
Operation costs means all expenses we incur to operate the
facilities and equipment of our project.
Rehabilitation costs means all expenses we incur to maintain our
project facilities to original design specifications.
Total assessable acres means the total authorized acres within a
project to which we can deliver water.
Total cost means the total of all administrative, operating,
maintenance, and rehabilitation costs we incur to deliver water at the
particular project you are located. These costs do not generally
include costs above the project engineer/manager.
Total cost per acre means the computed cost we incur on a per acre
basis by dividing the total cost by the total assessable acres, as
follows:
Total Costs per Acre equals Total Cost divided by Total
Assessable Acres.
Sec. 171.402 What costs must I pay?
You must pay us for the total costs we incur for operating and
maintaining the project where you are located. You must pay your
assessment, in accordance with the local administration manual, before
we will deliver water to your farm unit.
Sec. 171.403 How will I know what fees you will charge me?
(a) We will establish, and adjust as necessary, rates, charges, and
fees for recovering our total cost.
(b) When we establish or adjust the fees for your project, we will
notify you by publishing a notice in the Federal Register. We will
review our costs for your project each year, and adjust the rates,
charges, and fees when necessary to comply with Sec. 171.402.
(c) We must use the assessed money we collect from you to support
the administration, operation, maintenance, and rehabilitation
activities of the project where you are located.
Sec. 171.404 How do you compute the costs that you charge me?
We will base our assessments for your farm unit on the computed
total cost per acre times the total number of assessable acres in your
farm unit. If you subdivide your farm unit into smaller farming
acreages we may set a higher assessment rate for your subdivided
acreage. If we do this, we will notify you by publishing a notice in
the Federal Register.
Sec. 171.405 How will I be billed for the water that I use?
(a) We will maintain water users' ledgers in accordance with the
administration manual on all projects where we levy and collect
assessment and construction repayment charges.
(1) We will make separate entries in the ledger for each water
user, and issue bills to the water users of record.
(2) When we receive payment, we will credit it to the proper ledger
account.
(3) If water is used for leased trust or restricted land, we will
bill the lessee.
(b) Where irrigation districts have been established and have
executed a construction repayment contract, the district will bill you
and will follow the procedures in paragraph (a) of this section.
Sec. 171.406 Uniform accounting and billing procedures are required.
All projects under the jurisdiction of the Bureau must follow the
accounting and billing procedures that we establish.
Sec. 171.407 What procedures apply if there are assessment or
construction repayment charges?
Where payment of assessment or construction repayment charges is
required, refer to 4 CFR Parts 102, 103, 104, 105, and 25 CFR Part 115,
in addition to this part.
Sec. 171.408 How will we recover late payments?
(a) We will file liens in accordance with the administration
manual, against fee patent or trust lands within a project to recover
delinquent payments.
(b) Federal, State, and tribal government agencies are exempt from
interest, penalty, and administrative charges for delinquent payments.
(c) We will file and execute liens against Individual Indian Moneys
(IIM) in accordance with 25 CFR 115.10.
[[Page 35172]]
Subpart E--Miscellaneous
Sec. 171.501 Information you must provide us.
(a) You must provide us with the information we request to assist
in the proper administration, operation, maintenance, and
rehabilitation of our facilities.
(b) We will request all information in accordance with the local
administration manual.
Sec. 171.502 Your responsibility concerning refuse.
You must not use our property or rights of way to dispose of
sewage, trash, or other refuse.
Dated: May 24, 1996.
Ada E. Deer,
Assistant Secretary--Indian Affairs.
[FR Doc. 96-16184 Filed 7-3-96; 8:45 am]
BILLING CODE 4310-02-P
Complete official Federal Register PDF
FR Doc. 96-16040 Indian Country Law Enforcement
[Federal Register Volume 61, Number 130 (Friday, July 5, 1996)]
[Proposed Rules]
[Pages 35163-35167]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16040]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
25 CFR Part 12
RIN 1076-AD56
Indian Country Law Enforcement
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Proposed Rule.
-----------------------------------------------------------------------
SUMMARY: The Bureau of Indian Affairs is proposing to establish
standards for Bureau of Indian Affairs (BIA) and tribal law enforcement
programs receiving Federal funding or performing duties using a cross
commission. These regulations will insure that law enforcement, crime
prevention and recidivism reduction programs are implemented and
maintained in a constitutionally sound manner and comply with the
Indian Law Enforcement Reform Act of 1990, Pub. L. 101-379 (25 U.S.C.
2801 et seq.).
DATES: Comments must be received on or before September 3, 1996.
Comments will be available for inspection at the address below from
9:00 a.m. to 4:00 p.m., Monday through Friday beginning approximately
July 19, 1996.
ADDRESSES: Mail comments to Theodore R. Quasula, Director of Law
Enforcement Services, Bureau of Indian Affairs, 1849 C Street, NW, Mail
Stop 4443, Washington, D.C., 20240; OR, hand deliver them to Room 4443
at the above address.
FOR FURTHER INFORMATION CONTACT: Theodore R. Quasula, Director of Law
[[Page 35164]]
Enforcement Services, Bureau of Indian Affairs, Telephone: 202-208-
5786.
SUPPLEMENTARY INFORMATION:
Background
The authority to issue rules and regulations is vested in the
Secretary of the Interior by 5 U.S.C. 301 and sections 463 and 465 of
the Revised Statutes, 25 U.S.C. 2 and 9.
What has provided Law Enforcement rules and standards for Bureau of
Indian Affairs and tribal programs in the past?
Indian Police and Detention Standards regulations were published in
1975 and 1976, respectively, and have not been updated. See 25 U.S.C.
Part 12. In 1990, the Indian Law Enforcement Reform Act (Pub. L. 101-
379, 25 U.S.C. 2801 et seq.) specified changes for the Bureau of Indian
Affairs and tribal law enforcement and detention programs that need to
be implemented as rules of the Secretary of the Interior who was given
the overall responsibility for providing, or assisting in the provision
of law enforcement services in Indian country (as defined in 18 U.S.C.
1151). The law enforcement revision will be assigned to Part 12, and
Detention and Rehabilitation will be found in Part 10, Chapter I of
Title 25 Code of Federal Regulations.
The Office of Law Enforcement Services, Bureau of Indian Affairs,
is updating and revising the Bureau of Indian Affairs Manual (BIAM),
and accompanying operational handbooks that will provide policy,
procedures, guidelines and standards for all law enforcement programs.
This manual and accompanying handbooks will be available for the
program managers and supervisors, the public, other agencies, and law
enforcement officers or investigators. Self-governance tribes with
compacts or other tribal entities with enforcement jurisdiction other
than the Bureau of Indian Affairs or contracts, are encouraged to use
the manuals and handbooks for guidance in developing or maintaining
their own programs. The Indian Country Detention Facilities and
Programs manuals and handbooks may be found in Chapter 69 Bureau of
Indian Affairs Manual (BIAM) including an inmate handbook for all
individuals who are incarcerated in a BIA or tribal detention facility.
Evaluation and Certification
Executive Order 12988
The Department has determined that this proposed rule meets the
applicable standards provided in sections 3(a) and 3(b)(2) of Executive
Order 12988.
Executive Order 12866
This proposed rule is not a significant regulatory action under
Executive Order 12866.
Regulatory Flexibility Act
This proposed rule will not have a significant economic impact on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.).
Executive Order 12630
The Department has determined that this proposed rule does not have
``significant'' takings implications. The proposed rule does not
pertain to ``taking'' of private property interests, nor does it impact
private property.
Executive Order 12612
The Department has determined that this proposed rule does not have
significant federalism effects because it pertains solely to Federal-
tribal relations and will not interfere with the roles, rights and
responsibilities of states.
NEPA Statement
The Department has determined that this proposed rule does not
constitute a major Federal action significantly affecting the quality
of the human environment and that no detailed statement is required
pursuant to the National Environmental Policy Act of 1969.
Unfunded Mandates Act of 1995
This proposed rule imposes no unfunded mandates on any governmental
or private entity and is in compliance with the provisions of the
Unfunded Mandates Act of 1995.
Paperwork Reduction Act of 1995
This rule has been examined under the Paperwork Reduction Act of
1995 and has been found to contain no information collection
requirements.
Drafting Information
The primary author of this document is Mark Mullins, Bureau of
Indian Affairs, Office of Law Enforcement Services.
List of Subjects in 25 CFR Part 12
Indians--residential and holding facilities, Law enforcement.
For the reasons given in the preamble, Part 12, Chapter I of Title
25 of the Code of Federal Regulations is proposed to be revised as set
forth below:
PART 12--INDIAN COUNTRY LAW ENFORCEMENT
Subpart A--Responsibilities
Sec.
12.1 Who is responsible for the Bureau of Indian Affairs law
enforcement function?
12.2 What is the role of the Bureau of Indian Affairs Director of
Law Enforcement Services?
12.3 Who supervises Bureau of Indian Affairs criminal
investigators?
12.4 Who Supervises the Bureau of Indian Affairs uniformed police,
detention and conservation enforcement functions?
Subpart B--Policies and Standards
Sec.
12.11 Do I have to follow these regulations?
12.12 What about self-determination?
12.13 What happens if I do not follow the rules in this part?
12.14 Where can I find specific policies and standards for law
enforcement functions in Indian country?
Subpart C--Authority and Jurisdiction
Sec.
12.21 What authority is given to Indian country law enforcement
officers to perform their duties?
12.22 Can Bureau of Indian Affairs law enforcement officers enforce
tribal laws?
12.23 What are the jurisdictional limits in Indian country?
Subpart D--Qualifications and Training Requirements
Sec.
12.31 Are there any minimum employment standards for Indian country
law enforcement personnel?
12.32 Do minimum employment standards include a background
investigation?
12.33 Are Indian country law enforcement officers paid less than
other law enforcement officers?
12.34 Do minimum salaries and position classifications apply to a
tribe that has contracted or compacted law enforcement under self-
determination?
12.35 Do Indian country law enforcement officers complete any
special training?
12.36 Does other law enforcement training count?
Subpart E--Records and Information
Sec.
12.41 Who keeps statistics for Indian country law enforcement
activities?
12.42 Do Indian country law enforcement programs share information
with their own communities or other agencies?
Subpart F--Conduct
Sec.
12.51 Must Indian country law enforcement officers follow a code of
conduct?
12.52 How do I report misconduct?
12.53 Who investigates officer misconduct?
12.54 What can I do if I believe my civil rights have been
violated?
12.55 Are there any limits on how much force an officer can use
when performing law enforcement duties?
[[Page 35165]]
Subpart G--Support Functions
Sec.
12.61 Can I be paid for information that helps solve a crime?
12.62 Who decides what uniform an Indian country law enforcement
officer can wear and who pays for it?
12.63 Do Indian country law enforcement officers perform other
duties as well?
Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 13, 2417, 2453, and
2802.
Subpart A--Responsibilities
Sec. 12.1 Who is responsible for the Bureau of Indian Affairs law
enforcement function?
The Deputy Commissioner of Indian Affairs is responsible for Bureau
of Indian Affairs operated and contracted law enforcement programs, and
for overall policy development and implementation of the Indian Law
Enforcement Reform Act, Public Law 101-379 (25 U.S.C. 2801 et seq.).
Sec. 12.2 What is the role of the Bureau of Indian Affairs Director of
Law Enforcement Service?
The Director of the Office of Law Enforcement Services for the
Bureau of Indian Affairs (Director) has been designed as the single
individual responsible for the overall law enforcement and detention
policies and standards, and management of all Bureau of Indian Affairs
criminal investigations, drug enforcement, training, internal affairs,
inspection and evaluation, emergency response forces, and other
national level Indian country law enforcement initiatives. The Director
publishes these policies and standards in law enforcement manuals and
handbooks. The Director is also directly responsible for developing
crime prevention and outreach programs within Indian country law
enforcement.
Sec. 12.3 Who supervises Bureau of Indian Affairs criminal
investigators?
All Bureau of Indian Affairs criminal investigators are supervised
by other criminal investigators within the Office of Law Enforcement
Services.
Sec. 12.4 Who supervises the Bureau of Indian Affairs uniformed
police, detention and conservation enforcement functions?
The agency superintendent is directly responsible for the operation
and management of Bureau of Indian Affairs uniformed police operations,
detention facilities, and conservation enforcement operations at any
agency having these programs. The agency superintendent must also
ensure technical support is provided to any agency contracting the law
enforcement and/or detention program.
Subpart B--Policies and Standards
Sec. 12.11 Do I have to follow these regulations?
You must follow the minimum standards outlined in the regulations
in this part if you are part of a Bureau of Indian Affairs or tribal
law enforcement program receiving Federal funding or operating under a
Bureau of Indian Affairs law enforcement commission.
Sec. 12.12 What about self-determination?
The regulations in this part are not intended to discourage
contracting of Indian country law enforcement programs under the Indian
Self-determination and Education Assistance Act (Public Law 93-638, as
amended, 25 U.S.C. 450). The Deputy Commissioner of Indian Affairs will
ensure minimum standards are maintained in high risk activities where
the Federal government retains liability and the responsibility for
settling tort claims arising from contracted law enforcement programs.
It is not fair to law abiding citizens of Indian country to have
anything less than a professional law enforcement program in their
community. Indian country law enforcement programs that receive Federal
funding and/or commissioning will be subject to a periodic inspection
or evaluation to provide technical assistance, to insure compliance
with minimum Federal standards, and to identify necessary changes or
improvements to Bureau of Indian Affairs policies.
Sec. 12.13 What happens if I do not follow the rules in this part?
Your Bureau of Indian Affairs law enforcement commission may be
revoked, your law enforcement contract may be canceled, and you may no
longer be eligible for tribal shares allocated from the law enforcement
budget.
Sec. 12.14 Where can I find specific policies and standards for law
enforcement functions in Indian country?
The Bureau of Indian Affairs will ensure that all Indian country
law enforcement programs are provided a copy of the most current policy
manuals and handbooks. Every Indian country law enforcement program
covered by the regulations in this part must maintain an effective and
efficient law enforcement program meeting minimal qualitative standards
and procedures specified in Chapter 68 Bureau of Indian Affairs Manual
(BIAM) and the Law Enforcement Handbook.
Subpart C--Authority and Jurisdiction
Sec. 12.21 What authority is given to Indian country law enforcement
officers to perform their duties?
Bureau of Indian Affairs law enforcement officers are commissioned
under the authority established in Title 28 U.S.C. 2803. The Bureau of
Indian Affairs may issue law enforcement commissions to other Federal,
State, local and tribal full-time certified law enforcement officers to
obtain active assistance in the enforcement of applicable Federal
criminal statutes, including Federal hunting and fishing regulations in
Indian country. Any such deputization of personnel not employed by the
Bureau of Indian Affairs will only be issued after an agreement is
completed between the head of the local government or Federal agency
requesting the authority and the Deputy Commissioner of Indian Affairs.
Any such agreement will include language that allows the Bureau of
Indian Affairs to evaluate the effectiveness of such delegated
commissions and to investigate any allegations of misuse of authority
involving these commissions. Tribal law enforcement officers operating
under a Bureau of Indian Affairs contact or compact are not
commissioned Federal officers; however, they may be commissioned on a
case-by-case basis.
Sec. 12.22 Can Bureau of Indian Affairs law enforcement officers
enforce tribal laws?
Bureau of Indian Affairs officers will only enforce tribal laws
with the permission of the tribe. Local programs are encouraged to make
arrangements and agreements with local jurisdictions to facilitate law
enforcement objectives.
Sec. 12.23 What are the jurisdictional limits in Indian country?
The Department of the Interior and the Department of Justice must
maintain and periodically review and update a memorandum of
understanding describing the relationship between the Federal Bureau of
Investigation and the Bureau of Indian Affairs in the investigation and
prosecution of major crimes in Indian country. The guidelines in this
memorandum of understanding and any local United States Attorney's
guidelines for the investigation and prosecution of Federal crimes will
be followed by any law enforcement programs performing duties or under
the authority of 25 U.S.C. 2803.
[[Page 35166]]
Subpart D--Qualifications and Training Requirements
Sec. 12.31 Are there any minimum employment standards for Indian
country law enforcement personnel?
The Director must develop, maintain, and periodically review the
qualification standards, including medical qualification standards, for
all Bureau of Indian Affairs law enforcement, detention and
conservation enforcement occupational series. The standards will be no
less stringent than the minimum standards established by the U.S.
Office of Personnel Management (OPM) for these occupational series, and
may exceed the OPM standards. The Bureau of Indian Affairs standards
are available for review at any Bureau of Indian Affairs personnel
office. All tribal programs are encouraged to develop standards at
least as stringent as those established for Bureau of Indian Affairs
officers.
Sec. 12.32 Do minimum employment standards include a background
investigation?
Law enforcement authority is only entrusted to personnel possessing
adequate education and/or experience, training, aptitude, and high
moral character. All Indian country law enforcement programs receiving
Federal funding and/or authority must ensure that all law enforcement
officers successfully complete a thorough background investigation no
less stringent than required of a Federal officer performing the same
duties. The background investigations of applicants and employees must
be adjudicated by trained and qualified security professionals. All
background investigations must be documented and available for
inspection by the Bureau of Indian Affairs.
Sec. 12.33 Are Indian country law enforcement officers paid less than
other law enforcement officers?
The Deputy Commissioner of Indian Affairs must insure that all
Bureau of Indian Affairs law enforcement officer positions are
established at no lower grade level on the Federal scale than similar
Federal law enforcement officer positions in other agencies. No Bureau
of Indian Affairs position performing commissioned law enforcement
duties will be classified in other than GS 0083, police officer series,
for uniformed officers and the GS 1811, criminal investigating series,
for criminal investigators.
Sec. 12.34 Do minimum salaries and position classifications apply to
a tribe that has contracted or compacted law enforcement under self-
determination?
Any contract or compact with the Bureau of Indian Affairs to
provide law enforcement services for an Indian tribe must require a law
enforcement officer to be paid at least the same salary as a Bureau of
Indian Affairs officer performing the same duties.
Sec. 12.35 Do Indian country law enforcement officers complete any
special training?
Law enforcement personnel of any program funded by the Bureau of
Indian Affairs must not perform law enforcement duties until they have
successfully completed a basic law enforcement training course
prescribed by the Director. The Director will also prescribe mandatory
supplemental and in-service training courses.
Sec. 12.36 Does other law enforcement training count?
All requests for evaluation of equivalent training must be
submitted to the Indian Police Academy for review, with final
determination made by the Director. Requests for a waiver of training
requirements to utilize personnel prior to completing the required
courses of instruction must be submitted to the Director and approved
or disapproved by the Deputy Commissioner of Indian Affairs. In no case
will such a waiver allow personnel to be utilized in any position for
more than one year without achieving training standards. Failure to
complete basic training requirements will result in removal from a law
enforcement position.
Subpart E--Records and Information
Sec. 12.41 Who keeps statistics for Indian country law enforcement
activities?
The Director maintains a criminal justice information system for
Indian country. The Director will prescribe the types of data to be
collected and the reporting format to be used to collect information
and assemble reports on crime reported in Indian country. These reports
may be provided to the Department of Justice. Any law enforcement
program receiving funding from the Bureau of Indian Affairs must use
the same reporting format and submit the same statistical reports to
the Office of Law Enforcement Services as prescribed by the Director
and as are required of all Bureau of Indian Affairs law enforcement
programs.
Sec. 12.42 Do Indian country law enforcement programs share
information with their own communities or other agencies?
At intervals established by the Director, each Bureau of Indian
Affairs criminal investigations program, and any investigations program
receiving funds from the Bureau of Indian Affairs will consult with
local tribal leaders and managers of local patrol and detention
programs. They will discuss the quality of the local investigations
program and offer feedback and technical assistance. There will be no
requirement to disclose confidential investigative information or to
compromise on-going investigations during this process.
Subpart F--Conduct
Sec. 12.51 Must Indian country law enforcement officers follow a code
of conduct?
All law enforcement programs receiving Bureau of Indian Affairs
funding or commissioning must establish a law enforcement code of
conduct which establishes specific guidelines for conduct on and off
duty, impartiality and professional conduct in the performance of duty,
and acceptance of gifts or favors. Each officer must acknowledge
receipt and understanding of this code of conduct in writing and it
will remain on file with the law enforcement program manager as long as
the officer is employed there. Training will be conducted on this code
of conduct and other ethics issues at least once each year.
Sec. 12.52 How do I report misconduct?
The Director will develop and maintain a reporting system which
allows any resident of or visitor to Indian country to report officer
misconduct. Each law enforcement program in Indian country will
maintain instructions on how to register a complaint. An overview of
these steps will be posted for public viewing at each law enforcement
facility in Indian country.
Sec. 12.53 Who investigates officer misconduct?
The Director, Office of Law Enforcement Services maintains an
internal affairs program which investigates all allegations of
misconduct by Bureau of Indian Affairs officers, and any officer
receiving funding and/or authority from the Bureau of Indian Affairs.
All allegations of misconduct must be thoroughly investigated and
appropriate action taken when warranted. Any person having knowledge of
officer misconduct must report that information to the officer's
supervisor. The supervisor
[[Page 35167]]
must immediately report allegations to the internal affairs unit.
Depending upon the severity of the allegation, the matter may be dealt
with locally or it will be investigated by the internal affairs unit.
Failure of any Bureau of Indian Affairs employee to report known
allegations may be considered misconduct in itself. Citizens may report
officer misconduct directly to the internal affairs unit if that is
more practical.
Sec. 12.54 What can I do if I believe my civil rights have been
violated?
All allegations of civil rights violations must be reported
immediately to the internal affairs unit. That office will insure such
allegations are immediately reported to the Civil Rights Division of
the U. S. Department of Justice through established procedures. The
Bureau of Indian Affairs internal affairs unit may also conduct an
investigation into the matter and make recommendations for additional
action as necessary.
Sec. 12.55 Are there any limits on how much force an officer can use
when performing law enforcement duties?
The Director will develop and maintain the use of force policy for
all Bureau of Indian Affairs law enforcement personnel, and for
programs receiving Bureau of Indian Affairs funding or authority.
Training in the use of force, to include non-lethal measures, will be
provided annually. All officers will successfully complete a course of
instruction in firearms, to include judgement pistol shooting, approved
by the Indian Police Academy prior to carrying a firearm on or off
duty.
Subpart G--Support Functions
Sec. 12.61 Can informants be paid for information that helps solve a
crime?
The Director has the authority to expend money for the purchase of
evidence or information, or to offer a reward, in the investigation of
a crime. This is subject to the availability of funds. This authority
may be delegated in writing to supervisory criminal investigators
within the Office of Law Enforcement Services in the Bureau of Indian
Affairs. The Director must develop policies and procedures for the
expenditure, control, and audit of these funds prior to their use.
Sec. 12.62 Who decides what uniform an Indian country law enforcement
officer can wear and who pays for it?
Each local law enforcement program must establish their own uniform
requirements for patrol and detention personnel. Uniformed Bureau of
Indian Affairs police officers may be paid an annual uniform allowance
not to exceed $400. Local programs may provide uniforms and related
equipment to officers in lieu of this payment. All law enforcement
officers must also have their official identification on their person
at all times when performing law enforcement duties. Uniforms, when
worn, will be plainly distinguishable from the uniforms of any non-law
enforcement personnel working on the reservation.
Sec. 12.63 Do Indian country law enforcement officers perform other
duties as well?
Law enforcement commissions will only be issued by the Bureau of
Indian Affairs to persons occupying positions as full-time officers.
Bureau of Indian Affairs funded or commissioned criminal investigators
will not be responsible for supervising or managing any patrol,
detention, or other uniformed police programs.
Dated: May 31, 1996.
Ada E. Deer,
Assistant Secretary--Indian Affairs.
[FR Doc. 96-16040 Filed 7-03-96; 8:45 am]
BILLING CODE 4310-02-P
Complete official Federal Register PDF
FR Doc. 96-16039 Law and Order on Indian Reservations
[Federal Register Volume 61, Number 130 (Friday, July 5, 1996)]
[Proposed Rules]
[Pages 35158-35163]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16039]
=======================================================================
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 11
RIN 1076-AD76
Law and Order on Indian Reservations
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Bureau of Indian Affairs is proposing to amend its
regulations governing Courts of Indian Offenses to clarify the
authority of the Assistant Secretary for Indian Affairs to establish
the courts, the jurisdiction of the courts, their relationship to
tribal governments and the Department of the Interior, and to provide
those courts with an updated code of laws.
DATES: Comments must be received on or before October 3, 1996.
ADDRESSES: Comments are to be mailed to Bettie Rushing, Office of
Tribal Services, Bureau of Indian Affairs, 1849 C Street, NW, MS 2611-
MIB, Washington, DC 20240; or, hand delivered to Room 4603 at the same
address.
FOR FURTHER INFORMATION CONTACT: Bettie Rushing, Bureau of Indian
Affairs (202) 208-3463.
SUPPLEMENTARY INFORMATION:
Background
The comments received in response to a prior proposed rule
published on October 24, 1985, and published as a final rule on October
21, 1993, included suggestions for the inclusion of new provisions in
the Law and Order Code (Code). Because the inclusion of the suggested
provisions in the final rule would have constituted new matter adopted
without opportunity for general public comment, a separate rule is now
proposed for those provisions to be added to the Code.
This proposed rule (1) provides for the establishment of courts
when tribal justice systems are not functioning, (2) changes the method
of listing Indian reservations to which the Code applies, (3) clarifies
the provision on jurisdictional limitations which excludes from
jurisdiction under this part Federal employees acting within the scope
of their employment, (4) adds provisions for drug abuse, abuse of
psychotoxic substances, child abuse, prostitution, and family violence,
and (5) increases the maximum penalties for various offenses in the
Code.
The increased penalties are proposed in response to the law
enforcement provisions of the Anti-Drug Abuse Act of 1986, amending the
sentencing limitations of the Indian Civil Rights Act, 25 U.S.C. 1302.
Indian may courts to impose maximum fines up to $5,000 and sentences of
imprisonment up to one year.
Inclusion in Sec. 11.100, Listing of Courts of Indian Offenses,
does not defeat the inherent sovereignty of a tribe to establish tribal
courts and exercise jurisdiction under tribal law. Tillett v. Lujan,
931 F.2d 636, 640 (10th Cir. 1991) (C.F.R. courts ``retain some
characteristics of an agency of the federal government'' but they
``also function as tribal courts''); Combrink v. Allen, 20 Indian L.
Rep. 6029, 6030 (Ct. Ind. App., Tonkawa, Mar. 5, 1993) (C.F.R. court is
a ``federally administered tribal court''); Ponca Tribal Election Board
v. Snake, 17 Indian L. Rep. 6085, 6088 (Ct. Ind. App., Ponca, Nov. 10,
1988) (``The Courts of Indian Offenses act as tribal courts since they
are exercising the sovereign authority of the tribe for which the court
sits.''). Such exercise of inherent sovereignty and the establishment
of tribal courts shall comply with the requirements set forth in 25 CFR
Sec. 11.100(c).
A clarifying sentence has been added to the jurisdictional
limitations section to express unambiguously that Federal and state
employees acting within the scope of their employment are not subject
to the jurisdiction of Courts of Indian Offenses.
The new offenses are abuse of psychotoxic chemical solvents and
dangerous drug offense. They are also proposed in response to the Anti-
Drug Abuse Act, and are intended to enhance the ability of law
enforcement agencies on Indian reservations to prevent and penalize the
traffic of illegal narcotics and the misuse of dangerous substances.
The two sections were suggested by the Anadarko Area Law Enforcement
Office of the Bureau of Indian Affairs. No specific exception for
peyote is included because peyote for religious use by the Native
American Church is excluded from prosecution under the referenced
federal statute.
Prostitution was inadvertently omitted from the revision of the Law
and Order Code and is, therefore, included here. The crime is a
continuation of the provision contained in 25 CFR Part 11 which has
been in force for many years, with the addition of the crime of
pandering which is intended to facilitate the prosecution of persons
procuring for prostitutes.
Child abuse and neglect has been added as a separate criminal
offense. Its inclusion was inspired by the Draft
[[Page 35159]]
Child/Family Protection Code developed by the National Indian Justice
Center for the Bureau of Indian Affairs. Although there is some
overlapping of these offenses and the sexual assault provisions of the
revised Law and Order Code, the abuse provision is much broader and
will give prosecutors more flexibility in protecting children from
abuse. The mandatory reporting provision was added to conform with the
Bureau's administrative reporting requirements.
The family violence subpart establishes a new procedure for acts of
family violence. This approach to family violence reflects the decision
set forth in Thurman v. City of Torrington, 595 F. Supp. 1521 (D. Conn.
1984). Thurman filed an action against the city alleging a violation of
equal protection for the city's failure to provide the same type of
protection to persons in a family relationship as it provides to other
abused persons. The court, finding that Thurman had a cause of action
under the equal protection clause, held that the city had an
affirmative duty to treat family partners as it would other abused
persons. The knowledge that arrests deter subsequent family violence
has resulted in all states passing some type of special legislation for
acts of family violence. Forty-eight states have warrantless arrest
provisions and many have special protective orders. This subpart is
drawn from those statutes. Although much of this subpart is procedural,
we have not included it in the procedures sections. Because the
procedure is complicated, comprehensive and applicable to only one
general situation, we concluded that it deserved its own subpart under
Part 11.
The proposed rule will not require additional staffing for these
courts. It is not anticipated that this revision will have a
significant effect on the annual caseload of these courts because it
does not enlarge their jurisdiction. Prosecutors must routinely use
their discretion in balancing their workloads with the time and
prosecutorial resources available. Likewise, in sentencing convicted
defendants, judges are acutely aware of the constraints imposed by
limited jail space.
Courts of Indian Offenses are funded in their entirety by the
Federal Government and do not receive additional funding from tribal
governments. Because we do not foresee any economic effect on Courts of
Indian Offenses as a result of these amendments, there will be no
requirement of additional outlays by the Federal Government or the
tribes affected by the proposed amendments.
Certification and Evaluation
The authority to issue this amendment is vested in the Secretary of
the Interior by 5 U.S.C. 301 and 25 U.S.C. 2 and 9, and 25 U.S.C. 13
which authorize appropriations for ``Indian judges.''
Publication of the proposed rule by the Department of the Interior
(Department) provides the public an opportunity to participate in the
rulemaking process. Interested persons may submit written comments
regarding the proposed rule to the location identified in the
``addresses'' section of this document.
Executive Order 12988
The Department has determined that this proposed rule meets the
applicable standards provided in sections 3(a) and 3(b)(2) of Executive
Order 12988.
Executive Order 12866
This proposed rule is not a significant regulatory action under
Executive Order 12866.
Regulatory Flexibility Act
This proposed rule will not have a significant economic impact on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.).
Executive Order 12630
The Department has determined that this proposed rule does not have
``significant'' takings implications. The proposed rule does not
pertain to ``taking'' of private property interests, nor does it impact
private property.
Executive Order 12612
The Department has determined that this proposed rule does not have
significant federalism effects because it pertains solely to Federal-
tribal relations and will not interfere with the roles, rights and
responsibilities of states.
NEPA Statement
The Department has determined that this proposed rule does not
constitute a major Federal action significantly affecting the quality
of the human environment and that no detailed statement is required
pursuant to the National Environmental Policy Act of 1969.
Unfunded Mandates Act of 1995
This proposed rule imposes no unfunded mandates on any governmental
or private entity and is in compliance with the provisions of the
Unfunded Mandates Act of 1995.
Paperwork Reduction Act of 1995
This rule has been examined under the Paperwork Reduction Act of
1995 and has been found to contain no information collection
requirements.
Drafting Information
The primary authors of this document are Neil R. McDonald, Office
of the Solicitor, Division of Indian Affairs, and Bettie Rushing,
Office of Tribal Services, Bureau of Indian Affairs, Department of the
Interior.
List of Subjects in 25 CFR Part 11
Courts, Indians--law, Law enforcement, Penalties.
For the reasons set out in the preamble, Part 11 of Chapter 1 of
Title 25 of the Code of Federal Regulations is proposed to be amended
as set forth below.
PART 11--COURTS OF INDIAN OFFENSES AND LAW AND ORDER CODE
1. The authority citation for 25 CFR Part 11 continues to read as
follows:
Authority: 5 U.S.C. 301; R.S. 463; 25 U.S.C. 2; R.S. 465; 25
U.S.C. 9; 42 Stat. 208; 25 U.S.C. 13; 38 Stat. 586; 25 U.S.C. 200.
Subpart A--Application; Jurisdiction
2. Section 11.100 is amended by revising paragraphs (a), (b) and
(c) to read as follows:
Sec. 11.100 Where are Courts of Indian Offenses established?
(a) Unless indicated otherwise in this title, the regulations in
this part apply to the Indian country (as defined in 18 U.S.C. 1151)
occupied by the following tribes:
(1) Red Lake Band of Chippewa Indians (Minnesota).
(2) Confederated Tribes of the Goshute Reservation (Nevada).
(3) Lovelock Paiute Tribe (Nevada).
(4) Te-Moak Band of Western Shoshone Indians (Nevada).
(5) Yomba Shoshone Tribe (Nevada).
(6) Kootenai Tribe (Idaho).
(7) Shoalwater Bay Tribe (Washington).
(8) Eastern Band of Cherokee Indians (North Carolina).
(9) For the following tribes located in the former Oklahoma
Territory (Oklahoma):
(i) Absentee Shawnee Tribe of Indians of Oklahoma
(ii) Apache Tribe of Oklahoma
(iii) Caddo Tribe of Oklahoma
(iv) Cheyenne-Arapaho Tribe of Oklahoma
(v) Citizen Band of Potawatomi Indians of Oklahoma
[[Page 35160]]
(vi) Comanche Tribe of Oklahoma (Except Comanche Children's Court)
(vii) Delaware Tribe of Western Oklahoma
(viii) Fort Sill Apache Tribe of Oklahoma
(ix) Iowa Tribe of Oklahoma
(x) Kaw Tribe of Oklahoma
(xi) Kickapoo Tribe of Oklahoma
(xii) Kiowa Tribe of Oklahoma
(xiii) Otoe-Missouria Tribe of Oklahoma
(xiv) Pawnee Tribe of Oklahoma
(xv) Ponca Tribe of Oklahoma
(xvi) Tonkawa Tribe of Oklahoma
(xvii) Wichita and Affiliated Tribes of Oklahoma.
(10) Hoopa Valley Tribe, Yurok Tribe, and Coast Indian Community of
California (California Jurisdiction limited to special fishing
regulations).
(11) Louisiana Area (includes Coushatta and other tribes in the
State of Louisiana which occupy Indian country and which accept the
application of this part);
Provided that this part shall not apply to any Louisiana tribe
other than the Coushatta Tribe until notice of such application has
been published in the Federal Register.
(12) For the following tribes located in the former Indian
Territory (Oklahoma):
(i) Chickasaw Nation
(ii) Choctaw Nation
(iii) Thlopthlocco Tribal Town
(iv) Seminole Nation
(v) Eastern Shawnee Tribe
(vi) Miami Tribe
(vii) Modoc Tribe
(viii) Ottawa Tribe
(ix) Peoria Tribe
(x) Quapaw Tribe
(xi) Wyandotte Tribe
(xii) Seneca-Cayuga Tribe
(xiii) Osage Tribe.
(13) Ute Mountain Ute Tribe (Colorado).
(b) The purpose of the regulations in this part is to provide
adequate machinery for the administration of justice for Indian tribes
in those areas of Indian country where tribes retain jurisdiction over
Indians that is exclusive of state jurisdiction but where tribal courts
have not been established to exercise that jurisdiction or where tribal
justice systems are not functioning.
(c) The regulations in this part continue to apply to tribes listed
in Sec. 11.100(a) until a law and order code which includes the
establishment of a court system has been adopted by the tribe in
accordance with its constitution and by-laws or other governing
documents has become effective, and the Assistant Secretary--Indian
Affairs or his or her designee has received a valid tribal enactment
identifying the future effective date of the code's implementation. The
effective date of the code's implementation must allow 60 days for
publication of the amendment to Sec. 11.100(a) which provides public
notice of the change. The tribally established future effective date
will also be published as the effective date of the change.
* * * * *
3. The headings of the following sections are revised to read as
follows:
------------------------------------------------------------------------
Section Old heading New heading
------------------------------------------------------------------------
11.101.......................... Prospective When are these
application of regulations
regulations. effective?
11.102.......................... Criminal What is the
jurisdiction; criminal
limitation of jurisdiction of
actions. the Court of
Indian Offenses?
11.103.......................... Civil What is the civil
jurisdiction; jurisdiction of
limitation of the Court of
actions. Indian Offenses?
------------------------------------------------------------------------
4. Section 11.104 is amended by revising paragraphs (a) through (d)
to read as follows:
Sec. 11.104 What are the jurisdictional limitations of the Court of
Indian Offenses?
(a) No Court of Indian Offenses may exercise any jurisdiction over
a Federal or state official that it could not exercise if it were a
tribal court. The jurisdiction of Courts of Indian Offenses shall not
extend to Federal or state employees acting within the scope of their
employment.
(b) Unless otherwise provided by a resolution or ordinance of the
tribal governing body of the tribe occupying the Indian country over
which a Court of Indian Offenses has jurisdiction, no Court of Indian
Offenses may adjudicate an election dispute or take jurisdiction over a
suit against the tribe or adjudicate any internal tribal government
dispute.
(c) A decision of the Court of Indian Offenses, acting as a tribal
forum by resolution or ordinance of a tribal governing body under
paragraph (b) of this section, must be given great weight by the Bureau
of Indian Affairs in deciding who is a tribal official.
(d) A tribe may not be sued in a Court of Indian Offenses unless
its tribal governing body explicitly waives its tribal immunity by
tribal resolution or ordinance.
* * * * *
Subpart B--Courts of Indian Offenses; Personnel; Administration
5. Section 11.200 is amended by revising the heading and paragraph
(c) to read as follows:
Sec. 11.200 What is the composition of the Court of Indian Offenses?
* * * * *
(c) Appeals shall be heard by a magistrate who was not involved in
the trial of the case.
* * * * *
6. Section 11.201 is amended by revising the heading and paragraph
(a) to read as follows:
Sec. 11.201 How are magistrates for the Court of Indian Offenses
appointed?
(a) Each magistrate shall be appointed by the Assistant Secretary--
Indian Affairs or his or her designee subject to confirmation by a
majority vote of the tribal governing body of the tribe occupying the
Indian country over which the court has jurisdiction. In the case of
multi-tribal courts, the appointment of the magistrate is subject to
confirmation by a majority of the tribal governing bodies of the tribes
under the jurisdiction of a Court of Indian Offenses. Only the
Assistant Secretary--Indian Affairs may grant a waiver of this
paragraph when discord precludes confirmation, and appoint a magistrate
for a term not to exceed one year.
* * * * *
7. The headings of the following sections are revised to read as
follows:
------------------------------------------------------------------------
Section Old heading New heading
------------------------------------------------------------------------
11.202.......................... Removal of How is a
magistrates. magistrate of the
Court of Indian
Offenses removed?
11.203.......................... Court clerks...... How are the clerks
of the Court of
Indian Offenses
appointed and
what are their
duties?
11.205.......................... Standard governing Are there
appearance of standards for the
attorneys and lay appearance of
counselors. attorneys and lay
counselors?
11.206.......................... Court records..... Is the Court of
Indian Offenses a
court of record?
11.207.......................... Cooperation of What are the
Bureau of Indian responsibilities
Affairs employees. of Bureau of
Indian Affairs
employees?
[[Page 35161]]
11.208.......................... Payment of May Individual
judgments from Indian Money
individual Indian accounts be used
money accounts. for payment of
judgments?
11.209.......................... Disposition of How does the Court
fines. of Indian
Offenses dispose
of fines?
------------------------------------------------------------------------
Subpart C--Criminal Procedure
8. Section 11.315 is amended by revising paragraph (a) to read as
follows:
Sec. 11.315 Sentencing.
(a) Any person who has been convicted in a Court of Indian Offenses
of a criminal offense under the regulations of this part may be
sentenced to one or a combination of the following penalties:
(1) Imprisonment for a period not to exceed the maximum permitted
by the section defining the offense, which in no case shall be greater
than one year.
(2) A money fine in an amount not to exceed the maximum permitted
by the section defining the offense, which in no case shall be greater
than five thousand dollars ($5,000).
* * * * *
Subpart D--Criminal Offenses
9. Section 11.450 is amended by revising paragraph (a) to read as
follows:
Sec. 11.450 Maximum fines and sentences of imprisonment.
(a) A person convicted of an offense under the regulations in this
part may be sentenced as follows:
(1) If the offense is a misdemeanor, to a term of imprisonment not
to exceed one year or to a fine not to exceed five thousand dollars
($5,000), or both;
(2) If the offense is a petty misdemeanor, to a term of
imprisonment not to exceed six months, and to a fine not to exceed five
hundred dollars ($500), or both;
(3) If the offense is a violation, to a term of imprisonment not to
exceed three months or to a fine not to exceed two hundred fifty
dollars ($250), or both.
* * * * *
10. Sections 11.451 through 11.455 are added to read as follows:
Sec. 11.451 Abuse of psychotoxic chemical solvents.
(a) It shall be unlawful purposely to smell or inhale the fumes of
any psychotoxic chemical solvent, or to possess, purchase, or attempt
to possess or purchase any psychotoxic chemical solvent, with the
intention of causing a condition of intoxication, inebriation,
excitement, stupefaction, or the dulling of the brain or nervous
system; or to sell, give away, dispense, or distribute, or offer to
sell, give away, dispense, or distribute any psychotoxic chemical
solvent knowing or believing that the purchaser or another intends to
use the solvent in violation of this section.
(b) This section shall not apply to the inhalation of anesthesia
for medical or dental purposes.
(c) As used in this section, ``psychotoxic chemical solvent''
includes any glue, gasoline, paint, hair spray, lysol, or other
substance containing one or more of the following chemical compounds:
acetone and acetate, benzene, butyl-alcohol, methyl ethyl, peptone,
pentachlorophenol, petroleum ether, or other chemical substances
capable of causing a condition of intoxication, inebriation,
excitement, stupefaction, or the dulling of the brain or nervous system
as a result of the inhalation of the fumes or vapors of such chemical
substance. The statement of listing of the contents of a substance
packaged in a container by the manufacturer or producer thereof shall
be proof of the contents of such substances without further expert
testimony if it reasonably appears that the substance in such container
is the same substance placed therein by the manufacturer or producer.
(d) Abuse of psychotoxic chemical solvents, as defined in this
section, shall be punishable as a petty misdemeanor, and the court may
order any person using psychotoxic chemical solvents for inhalation to
be committed to a facility for treatment for a term not to exceed six
months.
(e) Such psychotoxic chemical solvents kept or used in violation of
this section are hereby declared to be contraband and upon proof of a
violation, following public notice and an opportunity for any person
claiming an interest therein to be heard, shall be forfeited to the
government by order of the court.
Sec. 11.452 Dangerous drug offense.
(a) It shall be unlawful, except as authorized and controlled by
Federal law, to manufacture, distribute, possess with intent to
distribute, dispense, create, possess, or cultivate a controlled or a
counterfeit substance; or to obtain or acquire possession of a
controlled substance by misrepresentation, fraud, forgery, deception,
or subterfuge; or to knowingly or intentionally use any communication
facility in committing any of the above prohibited acts.
(b) Controlled or counterfeit substances shall consist of the
substances listed in 21 U.S.C. 812, and any other chemical substance,
natural or artificial, defined as a controlled or dangerous substance,
the possession, sale, distribution, or use of which is prohibited by
Federal law.
(c) Each of the unlawful acts listed in paragraph (a) of this
section shall be punishable as a misdemeanor. Upon conviction under
this section for sales distribution, possession with the intent to
distribute, manufacture with intent to sell, or cultivation with intent
to distribute, banishment may also be imposed for a term not to exceed
ten years.
(d) Any substance handled in violation of this section is deemed
and declared to be contraband and upon proof of such a violation, after
public notice and an opportunity for any person claiming an interest in
the substance to be heard, shall be forfeited to the government by
order of the court.
(e) Any personal property used to transport, conceal, manufacture,
cultivate, or distribute the controlled dangerous substance in
violation of this section shall be subject to forfeiture to the
government by order of the court upon proof of such use, following
public notice and opportunity for any person claiming an interest in
the property to be heard.
Sec. 11.453 Prostitution.
A person who commits prostitution or pandering or who knowingly
keeps, maintains, rents or leases, any house, room, tent, or other
place for the purpose of prostitution is guilty of a misdemeanor.
Sec. 11.454 Child abuse and neglect.
(a) A person commits a misdemeanor if he or she inflicts abuse or
neglect on a child. Child abuse or neglect includes:
(1) Any case in which a child exhibits evidence of skin bruising,
bleeding, malnutrition, burns, fracture of any bone, subdural hematoma,
soft tissue swelling, or is dead and such condition or death is not
justifiably explained, or where the history given concerning such
condition or death or circumstances indicate that such condition or
death may not be the product of an accidental occurrence;
(2) Any case in which a child is subjected to sexual assault or
molestation, sexual exploitation, or prostitution;
(3) Any case in which circumstances indicate that a child's health
or welfare is harmed or threatened by negligent treatment or
maltreatment by a person; and/or,
[[Page 35162]]
(4) Any case in which a child is in need of services because of the
failure of the child's parent(s), legal guardian(s), or custodian(s) to
provide adequate food, clothing, shelter, medical care, or supervision
that a prudent parent would take.
(b) For purposes of this section, ``child'' means any individual
who is not married and has not attained 18 years of age.
Sec. 11.455 Persons required to report child abuse and neglect.
(a) Any person having reasonable cause to know or suspect that a
child was abused or neglected in Indian country shall report the
incident. Any person shall also report any actions which would
reasonably result in abuse or neglect.
(b) Any person who fails to report an instance of child abuse or
neglect in Indian country of which he or she has knowledge or of which
he or she should reasonably have knowledge is guilty of a misdemeanor.
Any person who inhibits the making of a report is guilty of a
misdemeanor.
(c) Any person making a report in good faith shall be immune from
criminal and civil liability.
11. A new Subpart L is added to read as follows:
Subpart L--Child Protection and Family Violence Procedures
Sec.
11.1200 Child protection procedures.
11.1201 Family violence procedures.
Subpart L--Child Protection and Family Violence Procedures
Sec. 11.1200 Child protection procedures.
As required by the Indian Child Protection and Family Violence
Prevention Act, 25 U.S.C. 3203, the following child protection
procedures are established.
(a) Reporting child abuse and neglect. Oral reports of child abuse
and neglect in Indian country must be made immediately to the local
child protective services or local law enforcement.
(b) Federal Bureau of Investigation. If the report involves an
Indian child or the person alleged to have abused or neglected the
child is an Indian and the preliminary inquiry indicates a criminal
violation has occurred, the local law enforcement agency (if other than
the Federal Bureau of Investigation) must immediately report the
incident to the Federal Bureau of Investigation.
(c) Child protection report. Within 36 hours, a written report must
be prepared by the receiving agency. The report must include:
(1) The name, address, age, and sex of the child that is the
subject of the report;
(2) The grade and the school in which the child is currently
enrolled;
(3) The name and address of the child's parents or other persons
responsible for the child's care;
(4) The name and address of the alleged offender;
(5) The name and address of the person who made the report to the
agency;
(6) A brief narrative as to the nature and extent of the child's
injuries, including any previously known or suspected abuse of the
child or the child's siblings and the suspected date of the abuse; and,
(7) Any other information the agency or the person who made the
report to the agency believes to be important to the investigation and
disposition of the alleged abuse.
(d) Investigation. Any local law enforcement agency or local child
protective services agency that receives a report alleging abuse or
neglect described in Sec. 11.454 must immediately initiate an
investigation of such allegation and take appropriate steps to secure
the safety and well-being of the child or children involved.
(e) Investigative report. Upon completion of the investigation of
any report of alleged abuse that is made to a local law enforcement
agency or local child protective services agency, such agency must
prepare a final written report on such allegation.
(f) Confidentiality. The identity of any person making a report
under this section must not be disclosed, without the consent of the
individual, to any person other than a court of competent jurisdiction
or an employee of the Indian tribe, state or Federal Government who
needs to know the information in the performance of the employee's
duties.
(g) Complaint. A complaint must be filed by a law enforcement
officer.
Sec. 11.1201 Family violence procedures.
(a) Warrantless arrest. A law enforcement officer shall arrest a
person and take that person into custody without a warrant when the
officer has probable cause to believe that the person has committed a
family violence act such as intentional or negligent infliction of
bodily injury; unreasonable confinement; intimidation; cruel punishment
resulting in physical harm, pain or mental anguish; any sexual contact
intended to sexually gratify the person making the contact and which is
without consent or obtained by intimidation or fraud; intentional
infliction of threats, humiliation or intimidation; unauthorized or
improper use of funds, property or other resources; or criminal
trespass upon a spouse, former spouse, family member, present or former
household member, or co-parent.
(b) Definition of co-parent. For purposes of this subpart ``co-
parent'' means persons who have a child in common regardless of whether
they have been married or have lived together at any time. For purposes
of this subpart ``family member'' includes grandparents, aunts, uncles
and cousins who are present or former household members.
(c) Liability. No law enforcement officer shall be held criminally
or civilly liable for making an arrest pursuant to this subpart,
provided he or she acts reasonably and in good faith.
(d) Petition for order of protection. A victim of a family violence
act may petition the court under this subpart for an order of
protection.
(1) The petition shall be made under oath or shall be accompanied
by a sworn affidavit setting out specific facts describing the act of
family violence.
(2) No petitioner is required to file for annulment, separation, or
divorce as a prerequisite to obtaining an order of protection. However,
the petition shall state whether any other family action is pending
between the petitioner and the respondent.
(3) Standard simplified petition forms with instructions for
completion shall be available to petitioners not represented by
counsel. Law enforcement agencies shall keep such forms and make them
available upon request to victims of family violence.
(e) Emergency order of protection. Upon the filing of a petition
for order of protection:
(1) The court may immediately grant an ex parte emergency order of
protection if there is clear and convincing evidence from the specific
facts shown by the affidavit or by the petition that a family violence
act has occurred;
(2) The court shall cause the emergency order of protection
together with notice of hearing to be served immediately on the person
alleged to have committed a family violence act; and,
(3) The court shall hold a hearing on the question of continuing
the order within ten days of granting the emergency order of
protection; or
(4) If an ex parte order is not granted, the court shall serve
notice to appear upon both parties and hold a hearing on the petition
for order of protection within seventy-two hours after the filing of
the petition; if notice of hearing
[[Page 35163]]
cannot be served within seventy-two hours, a temporary order of
protection may be issued;
(5) If notice of hearing cannot be served within 10 days, the
temporary order of protection shall be automatically extended for ten
days; and,
(6) If after the 10-day extension notice to appear cannot be
served, the temporary order of protection shall expire.
(f) Order of protection. Following a hearing and finding that a
family violence act occurred, the court may enter an order of
protection that specifically describes in clear language,
understandable to the person who committed the family violence act, the
behavior the court has ordered he or she do or refrain from doing. In
any order of protection, the court:
(1) May order the person who committed the family violence act to
refrain from acts or threats of violence against the petitioner or any
other household member.
(2) May order that the person who committed the family violence act
be removed from the home of the petitioner;
(3) May grant sole possession of the residence or household to the
petitioner during the period the order of protection is effective, or
order the person who has committed a family violence act to provide
temporary suitable alternative housing for the petitioner and other
household members to whom the respondent owes a legal obligation of
support;
(4) May award temporary custody of any children involved when
appropriate and provide for visitation rights, child support, and
temporary support for the petitioner on a basis which gives primary
consideration to the safety of the petitioner and other household
members;
(5) May order that the person who committed a family violence act
not initiate contact with the petitioner;
(6) May restrain the parties from transferring, concealing,
encumbering, or otherwise disposing of one another's property or the
joint property of the parties except in the usual course of business or
for the necessities of life; and to account to the court for all such
transferring, encumbrances, and expenditures made after the order is
served or communicated;
(7) May order other injunctive relief as the court deems necessary
for the protection of the petitioner including orders to law
enforcement agencies as provided by this subpart;
(8) Shall give notice that violation of any provision of the order
of protection constitutes contempt of court and may result in a fine or
imprisonment, or both;
(9) Shall indicate whether the order of protection supersedes or
alters prior orders pertaining to family matters between the parties;
(10) Shall not affect the title to any property or allow the
petitioner to transfer, conceal, encumber, or otherwise dispose of
respondent's property or the joint property of the parties.
(g) Review hearing. Either party may request a review hearing to
amend or vacate the order of protection.
(h) Service of the protection order. An order of protection granted
under this subpart shall be filed with the clerk of the court and a
copy shall be sent by the clerk of the court to the law enforcement
agency with the jurisdiction over the areas of Indian Country in which
the court is located. The order shall be personally served upon the
respondent, unless the respondent or his or her attorney was present at
the time the order was issued. If the court finds the petitioner unable
to pay court costs, the order shall be served without cost to the
petitioner.
(i) Duration of order of protection. An order of protection granted
by the court shall be effective for a fixed period of time not to
exceed three months. The order may be extended for good cause upon
motion of the petitioner for an additional period of time not to exceed
three months.
(j) Contempt of court. Any willful disobedience or interference
with any court order constitutes contempt of court which may result in
a fine or imprisonment, or both in accordance with this part.
(k) Remedies. The remedies provided in this subpart are in addition
to the other civil or criminal remedies available to the petitioner.
(l) Emergency assistance. The court shall require the local law
enforcement agency to give notice of the availability of emergency
assistance. Notice shall include telling all victims of family violence
where a shelter or other services are available in the community and
giving all victims immediate notice of their legal rights and remedies.
The notice must also include furnishing all victims of family violence
a copy of the following statement:
IF YOU ARE A VICTIM OF FAMILY VIOLENCE, you can ask the
prosecutor to file a criminal complaint. You also have the right to
go to court and file a petition requesting an order of protection
from family violence. The order may include the following:
(1) an order restraining the person who has committed a family
violence act from further acts of family violence;
(2) an order directing the person who has committed a family
violence act to leave your household;
(3) an order preventing the person who has committed a family
violence act from entering your residence, school, business, or
place of employment;
(4) an order awarding you custody of or the other parent
visitation with a minor child or children;
(5) an order directing the person who has committed a family
violence act to pay support to you and the minor children if the
person who has committed an act of family violence has a legal
obligation to do so;
(6) an order directing the person who has committed a family
violence act to account for your funds or property or to pay
restitution for damages resulting from the wrongdoing;
(7) an order directing the appropriate human services agency to
deliver protective services and provide the least restrictive
alternatives for services, care, treatment, or placement.
Dated: June 6, 1996.
Ada E. Deer,
Assistant Secretary--Indian Affairs.
[FR Doc. 96-16039 Filed 7-3-96; 8:45 am]
BILLING CODE 4310-02-P
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