Indian Self-Determination Act Contracts and Annual Funding Agreements-Appeal Procedures, 31699-31702 [2010-13297]
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Federal Register / Vol. 75, No. 107 / Friday, June 4, 2010 / Rules and Regulations
31699
Bath Seat Shoulder Probe (see Fig. 6) in
all orientations into each opening.
* * *
(ii) [Reserved]
(8) Instead of Figure 4 of ASTM F
1967–08a, use the following:
(9) Instead of complying with section
8.1.1 of ASTM F 1967–08a, comply with
the following:
(i) 8.1.1 The safety alert symbol, the
signal word, and all other words that are
all capital letters shall be in sans serif
type face with letters not less than 0.4
in. (10 mm) in height, with all
remainder of the text not less than 0.2
in. (5 mm) in height. Specified
warning(s) on both the product and the
package shall be distinctively separated
from any other wording or designs and
shall appear in the English language at
a minimum. They shall also be highly
visible and in a contrasting color to the
background on which they are located.
(ii) [Reserved]
(10) In addition to complying with
section 8.2 of ASTM F 1967–08a,
comply with the following:
(i) 8.2 * * * The specified warnings
may not be placed in a location that
allows the warning(s) to be obscured or
rendered inconspicuous when in the
manufacturer’s recommended use
position.
(ii) [Reserved]
Dated: May 25, 2010.
Todd Stevenson,
Secretary, U.S. Consumer Product Safety
Commission.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
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[FR Doc. 2010–13073 Filed 6–3–10; 8:45 am]
BILLING CODE 6355–01–P
PO 00000
25 CFR Part 900
DEPARTMENT OF THE INTERIOR
25 CFR Part 1000
Bureau of Indian Affairs
25 CFR Part 900
Indian Health Service
25 CFR Part 900
RIN 1076–AE86
Indian Self-Determination Act
Contracts and Annual Funding
Agreements—Appeal Procedures
AGENCIES: Bureau of Indian Affairs,
Interior; Indian Health Service, Health
and Human Services.
ACTION: Final rule.
SUMMARY: The Bureau of Indian Affairs
(BIA) in the Department of the Interior
(DOI) and the Indian Health Service
(IHS) in the Department of Health and
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(i) 7.7.2 With the bath seat in each of
the manufacturer’s recommended use
position(s), insert the tapered end of the
31700
Federal Register / Vol. 75, No. 107 / Friday, June 4, 2010 / Rules and Regulations
Human Services (HHS) are making
limited technical amendments to their
joint regulations governing contracts
and annual funding agreements under
the Indian Self-Determination and
Education Assistance Act to update the
appeals procedures.
DATES: This rule is effective July 6,
2010.
FOR FURTHER INFORMATION CONTACT:
—Terrence Parks, Acting Chief, Division
of Self-Determination, Office of Indian
Services, Bureau of Indian Affairs,
Department of the Interior, 1849 C
Street, NW., Mail Stop 4513,
Washington, DC 20240, telephone
202–513–7616;
—Sharee M. Freeman, Director, Office of
Self-Governance, Office of the
Assistant Secretary—Indian Affairs,
Department of the Interior, 1951
Constitution Avenue, NW., Mail Stop
355, Washington, DC 20240,
telephone 202–219–0240;
—Betty Gould, Regulations Officer,
Indian Health Service, Department of
Health and Human Services, 12300
Twinbrook Parkway, Suite 450,
Rockville, MD 20857, telephone 301–
443–7899.
Persons who use a
telecommunications device for the
hearing impaired may call the Federal
Information Relay Service at 800–877–
8339.
SUPPLEMENTARY INFORMATION:
I. Background
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A. Board of Contract Appeals
In 25 CFR parts 900 and 1000, BIA
and IHS have promulgated regulations
governing contracts and annual funding
agreements with Indian tribes under the
Indian Self-Determination and
Education Assistance Act, as amended,
25 U.S.C. 450f–450n, 458aa–458aaa–18.
Included in those regulations are
procedures allowing for appeals to the
Interior Board of Contract Appeals,
pursuant to 25 U.S.C. 450m-1(d),
458ff(c), and the Contract Disputes Act,
41 U.S.C. 601–613.
Effective January 6, 2007, Congress
abolished the Interior Board of Contract
Appeals (IBCA) and transferred its
functions—including appeals under 25
CFR Parts 900 and 1000—to a new
Civilian Board of Contract Appeals
(CBCA) within the General Services
Administration (GSA). Public Law 109–
163, section 847, 119 Stat, 3391 (2006);
see 71 FR 65825 (Nov. 9, 2006). BIA and
IHS are therefore revising their
regulations to substitute references to
CBCA for IBCA in three sections in Part
900 and five sections in Part 1000.
Procedures applicable to appeals to
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CBCA were published by GSA at 48 CFR
part 6101, 72 FR 36794 (July 5, 2007),
and are referenced in revised 25 CFR
900.216(b) and 1000.430.
IHS previously published its own
final rule amending 25 CFR 900.222 to
change the name and address of the
appeals board from IBCA to CBCA and
amending 25 CFR 900.229 to change
references to IBCA to CBCA. 71 FR
76600 (Dec. 21, 2006). However, the IHS
rule failed to change references to ‘‘U.S.
Department of the Interior’’ and ‘‘IBCA’’
in § 900.222(e), and it did not amend
§§ 900.6 and 900.216, which continue to
refer to IBCA. This rule completes the
changes to Part 900 that IHS initiated
with its December 2006 rule, and it
makes similar changes to Part 1000.
B. Equal Access to Justice Act
Additional technical changes are
being made to the regulations in Parts
900 and 1000 dealing with the Equal
Access to Justice Act (EAJA), 5 U.S.C.
504. First, section 900.177 currently
provides that EAJA claims against either
DOI or HHS will be heard by the Interior
Board of Indian Appeals (IBIA) under 43
CFR 4.601 through 4.619. This is only
partially correct. While some EAJA
claims against DOI are heard by IBIA,
most are heard initially by
administrative law judges (ALJs) within
DOI, with a right of appeal to IBIA. Most
EAJA claims against HHS are also heard
initially by ALJs within DOI, with a
right of appeal to the HHS Departmental
Appeals Board.
To eliminate the apparent
inconsistency between section 900.177
and the referenced DOI EAJA
regulations over who initially decides
EAJA claims, this rule removes the
phrase ‘‘by the IBIA’’ from § 900.177. As
a result, EAJA claims against either DOI
or HHS will be heard initially by the
adjudicative officer who decided the
merits, whether an ALJ or IBIA,
consistent with DOI’s EAJA regulations.
For claims against DOI, appeals from an
ALJ’s decision will be decided by IBIA
under 43 CFR part 4, subpart D, as
provided in 43 CFR 4.626(a). For claims
against HHS, appeals from an ALJ’s
decision will be decided by the HHS
Departmental Appeals Board under 45
CFR part 13.
In a future rulemaking, HHS will
propose applying its EAJA regulations at
45 CFR part 13 to an EAJA claim against
HHS, so that the HHS regulations apply
to both the claim and the appeal.
Additionally, the future rule would
delete the reference in § 900.177 to 25
CFR 900.165(b) because that paragraph
merely refers to the statement of the
appeal option that must be contained in
the recommended decision.
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Second, this rule updates the
references to DOI’s EAJA regulations in
§ 900.177 from 43 CFR 4.601 through
4.619 to 43 CFR 4.601 through 4.628 to
reflect amendments to those EAJA
regulations published in 2006. See 71
FR 6364 (Feb. 8, 2006).
Third, this rule updates the references
in § 900.216(c) to the applicable EAJA
regulations. Now that CBCA, rather than
IBCA, will be deciding EAJA claims in
post-award disputes, the CBCA
procedural regulations at 48 CFR
6101.30 and 6101.31 will apply. But
since those regulations do not contain
provisions regarding eligibility for an
award, the standards for an award, and
allowable fees and expenses, the
substantive EAJA regulations at 43 CFR
4.602 and 4.604 through 4.606 (DOI)
and 45 CFR 13.4 through 13.7 (HHS)
will continue to apply. See Tidewater
Contractors, Inc. v. Department of
Transportation, No. CBCA 982–C, 2008
WL 2718917 (Civilian B.C.A.) (July 10,
2008), slip op. at 5 (CBCA looked to
Department of Transportation
regulations for allowable attorney fee
rate).
Corresponding revisions are made to
25 CFR 1000.431.
C. Cross References
Finally, this rule corrects a number of
cross references in Part 900. The notice
of appeal rights in section 900.156(b)
refers in two places to 25 CFR 900.157,
when the correct reference is 25 CFR
900.158 (compare section 900.152). The
notices of appeal rights in section
900.165(b) and (c) both contain
meaningless references to those
sections, when the correct reference is
25 CFR 900.166.
The notices of appeal rights in
§ 900.172(b) and (c) repeat the
references from § 900.165(b) and (c); but
§ 900.172 is dealing with emergency
reassumptions, while § 900.165 is
dealing with non-emergency
reassumptions. The correct reference in
§ 900.172(b) and (c) is 25 CFR 900.173.
Similarly, § 900.253(b) refers to 25
CFR 900.160 and 900.161; but
§ 900.253(b) is dealing with emergency
reassumptions, while §§ 900.160 and
900.161 are dealing with non-emergency
reassumptions. The correct reference in
§ 900.253(b) is 25 CFR 900.171.
II. Procedural Requirements
A. Determination To Issue Final Rule
Without Prior Notice and Comment.
BIA and IHS have determined that the
public notice and comment provisions
of the Administrative Procedure Act, 5
U.S.C. 553(b), do not apply to this
rulemaking because the changes being
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Federal Register / Vol. 75, No. 107 / Friday, June 4, 2010 / Rules and Regulations
made relate solely to matters of agency
organization, procedure, and practice.
They therefore satisfy the exemption
from notice and comment rulemaking in
5 U.S.C. 553(b)(A).
B. Review Under Procedural Statutes
and Executive Orders
§ 900.6
Definitions.
*
*
*
*
*
Contract appeals board means the
Civilian Board of Contract Appeals
(CBCA).
*
*
*
*
*
Subpart L—Appeals
BIA and IHS have reviewed this rule
under the following statutes and
executive orders governing rulemaking
procedures: the Unfunded Mandates
Reform Act of 1995, 2 U.S.C. 1501 et
seq.; the Regulatory Flexibility Act, 5
U.S.C. 601 et seq.; the Small Business
Regulatory Enforcement Fairness Act of
1996, 5 U.S.C. 801 et seq.; the
Paperwork Reduction Act, 44 U.S.C.
3501 et seq.; the National
Environmental Policy Act of 1969, 42
U.S.C. 4321 et seq.; the Information
Quality Act, Public Law 106–554;
Executive Order 12630 (Takings);
Executive Order 12866 (Regulatory
Planning and Review); Executive Order
12988 (Civil Justice Reform); Executive
Order 13132 (Federalism); Executive
Order 13175 (Tribal Consultation); and
Executive Order 13211 (Energy
Impacts). BIA and IHS have determined
that this rule does not trigger any of the
procedural requirements of those
statutes and executive orders, since this
rule merely updates the Indian SelfDetermination and Education
Assistance Act regulations to refer to the
correct appeal entities and revised EAJA
regulations and to correct various cross
references.
List of Subjects
25 CFR Part 900
Administrative practice and
procedure, Buildings and facilities,
Claims, Government contracts,
Government property management,
Grant programs–Indians, Health care,
Indians, Indians–business and finance.
§ 900.156
[Amended]
3. In § 900.156(b), remove the
reference ‘‘25 CFR 900.157’’ and add in
its place ‘‘25 CFR 900.158’’ wherever it
appears.
■
§ 900.165
[Amended]
4. In § 900.165(b), remove the
reference ‘‘25 CFR 900.165(b)’’ and add
in its place ‘‘25 CFR 900.166’’wherever
it appears.
■ 5. In § 900.165(c), remove the
reference ‘‘25 CFR 900.165(c)’’ and add
in its place ‘‘25 CFR 900.166’’ wherever
it appears.
■
§ 900.172
[Amended]
6. In § 900.172(b), remove the
reference ‘‘25 CFR 900.165(b)’’ and add
in its place ‘‘25 CFR 900.173’’ wherever
it appears.
■ 7. In § 900.172(c), remove the
reference ‘‘25 CFR 900.165(c)’’ and add
in its place ‘‘25 CFR 900.173’’ wherever
it appears.
■ 8. Revise § 900.177 to read as follows:
■
§ 900.177 Does the Equal Access to
Justice Act (EAJA) apply to appeals under
this subpart?
Yes. EAJA claims against DOI or HHS
will be heard under 43 CFR 4.601
through 4.628. For HHS, appeals from
an EAJA award will be according to 25
CFR 900.165(b).
Subpart N—Post-Award Contract
Disputes
9. Revise § 900.216(b) and (c) to read
as follows:
■
25 CFR Part 1000
§ 900.216 What other statutes and
regulations apply to contract disputes?
Grant programs–Indians, Indians.
■ For the reasons stated in the preamble,
BIA and IHS amend their regulations in
25 CFR parts 900 and 1000 as follows:
*
PART 900—CONTRACTS UNDER THE
INDIAN SELF–DETERMINATION AND
EDUCATION ASSISTANCE ACT
1. The authority citation for part 900
continues to read as follows:
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■
Authority: 25 U.S.C. 450f et seq.
2. In § 900.6, revise the definition of
‘‘Contract appeals board’’ to read as
follows:
■
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§ 900.222
What goes into a decision?
*
Subpart B—Definitions
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*
*
*
*
(b) If the matter is submitted to the
CBCA, 48 CFR part 6101; and
(c) The Equal Access to Justice Act
(EAJA), 5 U.S.C. 504 and 28 U.S.C.
2412, and regulations at 48 CFR
6101.30, 6101.31 (CBCA), 43 CFR 4.602,
4.604 through 4.628 (DOI), and 45 CFR
13.4 through 13.7 (HHS).
■ 10. Revise § 900.222(e) to read as
follows:
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*
*
*
(e) Contain the following language:
This is a final decision. You may
appeal this decision to the Civilian
Board of Contract Appeals (CBCA), 1800
PO 00000
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31701
F Street, NW., Washington, DC 20245. If
you decide to appeal, you must, within
90 days from the date you receive this
decision, mail or otherwise furnish
written notice to the CBCA and provide
a copy to the individual from whose
decision the appeal is taken. The notice
must indicate that an appeal is
intended, and refer to the decision and
contract number. Instead of appealing to
the CBCA, you may bring an action in
the U.S. Court of Federal Claims or in
the United States District Court within
12 months of the date you receive this
notice.
§ 900.253
[Amended]
11. Revise § 900.253(b) to read as
follows:
*
*
*
*
*
(b) A statement explaining the
contractor’s right to a hearing on the
record under § 900.171 within 10 days
of the emergency reassumption or such
later date as the contractor may approve;
*
*
*
*
*
■
PART 1000—ANNUAL FUNDING
AGREEMENTS UNDER THE TRIBAL
SELF–GOVERNMENT ACT
AMENDMENTS TO THE INDIAN SELF–
DETERMINATION AND EDUCATION
ACT
12. The authority citation for part
1000 continues to read as follows:
■
Authority: 25 U.S.C. 458aa–gg.
Subpart R—Appeals
13. Revise § 1000.421(b) to read as
follows:
■
§ 1000.421
subpart?
What is the purpose of this
*
*
*
*
*
(b) The Civilian Board of Contract
Appeals (CBCA) for certain post-AFA
disputes;
*
*
*
*
*
§ 1000.428
[Amended]
14. In § 1000.428, remove ‘‘IBCA’’ and
add in its place ‘‘CBCA’’.
■ 15. In § 1000.429, revise the section
heading and introductory text to read as
follows:
■
§ 1000.429 What statutes and regulations
govern resolution of disputes concerning
signed AFAs or compacts that are appealed
to the CBCA?
Section 110 of Public Law 93–638 (25
U.S.C. 450m–l) and the regulations at 25
CFR 900.216 through 900.230 apply to
disputes concerning signed AFAs and
compacts that are appealed to the
CBCA, except that any references to the
Department of Health and Human
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Services are inapplicable. For purposes
of such appeals:
*
*
*
*
*
■ 16. Revise § 1000.430 to read as
follows:
POSTAL SERVICE
§ 1000.430 Who handles appeals regarding
reassumption for imminent jeopardy?
ACTION:
Appeals regarding reassumption of
Title I-eligible PFSAs are handled by the
IBIA under the procedures in 25 CFR
900.171 through 900.176. Appeals
regarding reassumption of PFSAs that
are not Title I-eligible are handled by
the CBCA under the procedures in 48
CFR part 6101.
■ 17. Revise § 1000.431 to read as
follows:
§ 1000.431 Does the Equal Access to
Justice Act (EAJA) apply to appeals under
this subpart?
Yes. EAJA claims against the DOI will
be heard under 48 CFR 6101.30, 6101.31
(CBCA) and 43 CFR 4.602, 4.604
through 4.628 (DOI) and under the
Equal Access to Justice Act, 5 U.S.C. 504
and 28 U.S.C. 2412.
Dated: October 30, 2009.
Larry Echo Hawk,
Assistant Secretary, Indian Affairs,
Department of the Interior.
Dated: May 24, 2010.
Yvette Roubideaux,
Director, Indian Health Service, Department
of Health and Human Services.
[FR Doc. 2010–13297 Filed 6–3–10; 8:45 am]
BILLING CODE 4310–79–P
39 CFR PART 111
General Information on Postal Service
Postal Service.
Final rule.
AGENCY:
SUMMARY: The Postal Service announces
the issuance of Issue 300, dated May 11,
2009, of the Mailing Standards of the
United States Postal Service, Domestic
Mail Manual (DMM), and its
incorporation by reference in the Code
of Federal Regulations.
DATES: Effective Date: This final rule is
effective on June 4, 2010. The
incorporation by reference of Issue 300,
May 11, 2009, of the DMM is approved
by the Director of the Federal Register
as of June 4, 2010.
FOR FURTHER INFORMATION CONTACT:
Lizbeth Dobbins (202) 268–3789.
SUPPLEMENTARY INFORMATION: The most
recent Issue 300 of the Domestic Mail
Manual (DMM) was issued on May 11,
2009.
This Issue of the DMM contains all
Postal Service domestic mailing
standards. This issue continues to
(1) increase the user’s ability to find
information, (2) increase confidence that
users have found all the information
they need, and (3) reduce the need to
consult multiple chapters of the Manual
to locate necessary information. Issue
300, dated May 11, 2009, set forth
specific changes, such as new standards
throughout the DMM to support the
Transmittal letter for issue publication
May 12, 2008 .................................................
May 11, 2009 .................................................
Administrative practice and
procedure, Incorporation by reference.
In view of the considerations
discussed above, the Postal Service
hereby amends 39 CFR Part 111 as
follows:
■
PART 111—GENERAL INFORMATION
ON POSTAL SERVICE
1. The authority citation for 39 CFR
Part 111 continues to read as follows:
■
Authority: 5 U.S.C. 552(a); 13 U.S.C. 301–
307; 18 U.S.C. 1692–1737; 39 U.S.C. 101,
401, 403, 404, 414, 416, 3001–3011, 3201–
3219, 3403–3406, 3621, 3622, 3626, 3632,
3633, 5001.
2. Amend § 111.3(f) by adding the
following new entry at the end of the
table: § 111.3 Amendment to the
Mailing Standards of the United States
Postal Service, Domestic Mail Manual.
*
*
*
*
*
(f) * * *
■
Federal Register
■
3. Amend § 111.4 by removing ‘‘May
7, 2008’’ and adding ‘‘June 4, 2010’’.
[Insert FR citation for this Final Rule].
[Insert FR citation for this Final Rule].
ENVIRONMENTAL PROTECTION
AGENCY
Neva R. Watson,
Attorney, Legislative.
40 CFR Part 7
[FR Doc. 2010–13356 Filed 6–3–10; 8:45 am]
[EPA–HQ–OA–2004–0002; FRL–9158–9]
RIN 2090–AA37
BILLING CODE 7710–12–P
Nondiscrimination on the Basis of Age
in Programs or Activities Receiving
Federal Assistance from the
Environmental Protection Agency
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Direct final rule.
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List of Subjects in 39 CFR Part 111
Dated
Issue 300 ........................................................
Issue 300 ........................................................
pricing changes approved by the
Governors of the United States Postal
Service. The new prices and standards
were effective May 11, 2009. Changes to
mailing standards will continue to be
published through Federal Register
notices and the Postal Bulletin, and will
appear in the next printed version of
Mailing Standards of the United States
Postal Service, Domestic Mail Manual,
and in the online version available via
Postal Explorer https://pe.usps.com.
SUMMARY: EPA is taking direct final
action on Nondiscrimination on the
Basis of Age in Programs or Activities
Receiving Federal Assistance from the
Environmental Protection Agency. This
document sets out EPA rules for
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implementing the Age Discrimination
Act of 1975, as amended. The Act
prohibits discrimination on the basis of
age in programs or activities receiving
Federal assistance.
DATES: This rule is effective on October
4, 2010 without further notice, unless
EPA receives adverse comment by
August 3, 2010. If EPA receives adverse
comment, we will publish a timely
withdrawal in the Federal Register
informing the public that the rule will
not take effect.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–HQ–
OA–2004–0002, by one of the following
methods:
• https://www.regulations.gov: Follow
the on-line instructions for submitting
comments.
• E-mail: docket.oei@epa.gov.
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]]>Agencies
[Federal Register Volume 75, Number 107 (Friday, June 4, 2010)]
[Rules and Regulations]
[Pages 31699-31702]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-13297]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HEALTH AND HUMAN SERVICES
25 CFR Part 900
DEPARTMENT OF THE INTERIOR
25 CFR Part 1000
Bureau of Indian Affairs
25 CFR Part 900
Indian Health Service
25 CFR Part 900
RIN 1076-AE86
Indian Self-Determination Act Contracts and Annual Funding
Agreements--Appeal Procedures
AGENCIES: Bureau of Indian Affairs, Interior; Indian Health Service,
Health and Human Services.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Bureau of Indian Affairs (BIA) in the Department of the
Interior (DOI) and the Indian Health Service (IHS) in the Department of
Health and
[[Page 31700]]
Human Services (HHS) are making limited technical amendments to their
joint regulations governing contracts and annual funding agreements
under the Indian Self-Determination and Education Assistance Act to
update the appeals procedures.
DATES: This rule is effective July 6, 2010.
FOR FURTHER INFORMATION CONTACT:
--Terrence Parks, Acting Chief, Division of Self-Determination, Office
of Indian Services, Bureau of Indian Affairs, Department of the
Interior, 1849 C Street, NW., Mail Stop 4513, Washington, DC 20240,
telephone 202-513-7616;
--Sharee M. Freeman, Director, Office of Self-Governance, Office of the
Assistant Secretary--Indian Affairs, Department of the Interior, 1951
Constitution Avenue, NW., Mail Stop 355, Washington, DC 20240,
telephone 202-219-0240;
--Betty Gould, Regulations Officer, Indian Health Service, Department
of Health and Human Services, 12300 Twinbrook Parkway, Suite 450,
Rockville, MD 20857, telephone 301-443-7899.
Persons who use a telecommunications device for the hearing
impaired may call the Federal Information Relay Service at 800-877-
8339.
SUPPLEMENTARY INFORMATION:
I. Background
A. Board of Contract Appeals
In 25 CFR parts 900 and 1000, BIA and IHS have promulgated
regulations governing contracts and annual funding agreements with
Indian tribes under the Indian Self-Determination and Education
Assistance Act, as amended, 25 U.S.C. 450f-450n, 458aa-458aaa-18.
Included in those regulations are procedures allowing for appeals to
the Interior Board of Contract Appeals, pursuant to 25 U.S.C. 450m-
1(d), 458ff(c), and the Contract Disputes Act, 41 U.S.C. 601-613.
Effective January 6, 2007, Congress abolished the Interior Board of
Contract Appeals (IBCA) and transferred its functions--including
appeals under 25 CFR Parts 900 and 1000--to a new Civilian Board of
Contract Appeals (CBCA) within the General Services Administration
(GSA). Public Law 109-163, section 847, 119 Stat, 3391 (2006); see 71
FR 65825 (Nov. 9, 2006). BIA and IHS are therefore revising their
regulations to substitute references to CBCA for IBCA in three sections
in Part 900 and five sections in Part 1000. Procedures applicable to
appeals to CBCA were published by GSA at 48 CFR part 6101, 72 FR 36794
(July 5, 2007), and are referenced in revised 25 CFR 900.216(b) and
1000.430.
IHS previously published its own final rule amending 25 CFR 900.222
to change the name and address of the appeals board from IBCA to CBCA
and amending 25 CFR 900.229 to change references to IBCA to CBCA. 71 FR
76600 (Dec. 21, 2006). However, the IHS rule failed to change
references to ``U.S. Department of the Interior'' and ``IBCA'' in Sec.
900.222(e), and it did not amend Sec. Sec. 900.6 and 900.216, which
continue to refer to IBCA. This rule completes the changes to Part 900
that IHS initiated with its December 2006 rule, and it makes similar
changes to Part 1000.
B. Equal Access to Justice Act
Additional technical changes are being made to the regulations in
Parts 900 and 1000 dealing with the Equal Access to Justice Act (EAJA),
5 U.S.C. 504. First, section 900.177 currently provides that EAJA
claims against either DOI or HHS will be heard by the Interior Board of
Indian Appeals (IBIA) under 43 CFR 4.601 through 4.619. This is only
partially correct. While some EAJA claims against DOI are heard by
IBIA, most are heard initially by administrative law judges (ALJs)
within DOI, with a right of appeal to IBIA. Most EAJA claims against
HHS are also heard initially by ALJs within DOI, with a right of appeal
to the HHS Departmental Appeals Board.
To eliminate the apparent inconsistency between section 900.177 and
the referenced DOI EAJA regulations over who initially decides EAJA
claims, this rule removes the phrase ``by the IBIA'' from Sec.
900.177. As a result, EAJA claims against either DOI or HHS will be
heard initially by the adjudicative officer who decided the merits,
whether an ALJ or IBIA, consistent with DOI's EAJA regulations. For
claims against DOI, appeals from an ALJ's decision will be decided by
IBIA under 43 CFR part 4, subpart D, as provided in 43 CFR 4.626(a).
For claims against HHS, appeals from an ALJ's decision will be decided
by the HHS Departmental Appeals Board under 45 CFR part 13.
In a future rulemaking, HHS will propose applying its EAJA
regulations at 45 CFR part 13 to an EAJA claim against HHS, so that the
HHS regulations apply to both the claim and the appeal. Additionally,
the future rule would delete the reference in Sec. 900.177 to 25 CFR
900.165(b) because that paragraph merely refers to the statement of the
appeal option that must be contained in the recommended decision.
Second, this rule updates the references to DOI's EAJA regulations
in Sec. 900.177 from 43 CFR 4.601 through 4.619 to 43 CFR 4.601
through 4.628 to reflect amendments to those EAJA regulations published
in 2006. See 71 FR 6364 (Feb. 8, 2006).
Third, this rule updates the references in Sec. 900.216(c) to the
applicable EAJA regulations. Now that CBCA, rather than IBCA, will be
deciding EAJA claims in post-award disputes, the CBCA procedural
regulations at 48 CFR 6101.30 and 6101.31 will apply. But since those
regulations do not contain provisions regarding eligibility for an
award, the standards for an award, and allowable fees and expenses, the
substantive EAJA regulations at 43 CFR 4.602 and 4.604 through 4.606
(DOI) and 45 CFR 13.4 through 13.7 (HHS) will continue to apply. See
Tidewater Contractors, Inc. v. Department of Transportation, No. CBCA
982-C, 2008 WL 2718917 (Civilian B.C.A.) (July 10, 2008), slip op. at 5
(CBCA looked to Department of Transportation regulations for allowable
attorney fee rate).
Corresponding revisions are made to 25 CFR 1000.431.
C. Cross References
Finally, this rule corrects a number of cross references in Part
900. The notice of appeal rights in section 900.156(b) refers in two
places to 25 CFR 900.157, when the correct reference is 25 CFR 900.158
(compare section 900.152). The notices of appeal rights in section
900.165(b) and (c) both contain meaningless references to those
sections, when the correct reference is 25 CFR 900.166.
The notices of appeal rights in Sec. 900.172(b) and (c) repeat the
references from Sec. 900.165(b) and (c); but Sec. 900.172 is dealing
with emergency reassumptions, while Sec. 900.165 is dealing with non-
emergency reassumptions. The correct reference in Sec. 900.172(b) and
(c) is 25 CFR 900.173.
Similarly, Sec. 900.253(b) refers to 25 CFR 900.160 and 900.161;
but Sec. 900.253(b) is dealing with emergency reassumptions, while
Sec. Sec. 900.160 and 900.161 are dealing with non-emergency
reassumptions. The correct reference in Sec. 900.253(b) is 25 CFR
900.171.
II. Procedural Requirements
A. Determination To Issue Final Rule Without Prior Notice and Comment.
BIA and IHS have determined that the public notice and comment
provisions of the Administrative Procedure Act, 5 U.S.C. 553(b), do not
apply to this rulemaking because the changes being
[[Page 31701]]
made relate solely to matters of agency organization, procedure, and
practice. They therefore satisfy the exemption from notice and comment
rulemaking in 5 U.S.C. 553(b)(A).
B. Review Under Procedural Statutes and Executive Orders
BIA and IHS have reviewed this rule under the following statutes
and executive orders governing rulemaking procedures: the Unfunded
Mandates Reform Act of 1995, 2 U.S.C. 1501 et seq.; the Regulatory
Flexibility Act, 5 U.S.C. 601 et seq.; the Small Business Regulatory
Enforcement Fairness Act of 1996, 5 U.S.C. 801 et seq.; the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq.; the National Environmental
Policy Act of 1969, 42 U.S.C. 4321 et seq.; the Information Quality
Act, Public Law 106-554; Executive Order 12630 (Takings); Executive
Order 12866 (Regulatory Planning and Review); Executive Order 12988
(Civil Justice Reform); Executive Order 13132 (Federalism); Executive
Order 13175 (Tribal Consultation); and Executive Order 13211 (Energy
Impacts). BIA and IHS have determined that this rule does not trigger
any of the procedural requirements of those statutes and executive
orders, since this rule merely updates the Indian Self-Determination
and Education Assistance Act regulations to refer to the correct appeal
entities and revised EAJA regulations and to correct various cross
references.
List of Subjects
25 CFR Part 900
Administrative practice and procedure, Buildings and facilities,
Claims, Government contracts, Government property management, Grant
programs-Indians, Health care, Indians, Indians-business and finance.
25 CFR Part 1000
Grant programs-Indians, Indians.
0
For the reasons stated in the preamble, BIA and IHS amend their
regulations in 25 CFR parts 900 and 1000 as follows:
PART 900--CONTRACTS UNDER THE INDIAN SELF-DETERMINATION AND
EDUCATION ASSISTANCE ACT
0
1. The authority citation for part 900 continues to read as follows:
Authority: 25 U.S.C. 450f et seq.
Subpart B--Definitions
0
2. In Sec. 900.6, revise the definition of ``Contract appeals board''
to read as follows:
Sec. 900.6 Definitions.
* * * * *
Contract appeals board means the Civilian Board of Contract Appeals
(CBCA).
* * * * *
Subpart L--Appeals
Sec. 900.156 [Amended]
0
3. In Sec. 900.156(b), remove the reference ``25 CFR 900.157'' and add
in its place ``25 CFR 900.158'' wherever it appears.
Sec. 900.165 [Amended]
0
4. In Sec. 900.165(b), remove the reference ``25 CFR 900.165(b)'' and
add in its place ``25 CFR 900.166''wherever it appears.
0
5. In Sec. 900.165(c), remove the reference ``25 CFR 900.165(c)'' and
add in its place ``25 CFR 900.166'' wherever it appears.
Sec. 900.172 [Amended]
0
6. In Sec. 900.172(b), remove the reference ``25 CFR 900.165(b)'' and
add in its place ``25 CFR 900.173'' wherever it appears.
0
7. In Sec. 900.172(c), remove the reference ``25 CFR 900.165(c)'' and
add in its place ``25 CFR 900.173'' wherever it appears.
0
8. Revise Sec. 900.177 to read as follows:
Sec. 900.177 Does the Equal Access to Justice Act (EAJA) apply to
appeals under this subpart?
Yes. EAJA claims against DOI or HHS will be heard under 43 CFR
4.601 through 4.628. For HHS, appeals from an EAJA award will be
according to 25 CFR 900.165(b).
Subpart N--Post-Award Contract Disputes
0
9. Revise Sec. 900.216(b) and (c) to read as follows:
Sec. 900.216 What other statutes and regulations apply to contract
disputes?
* * * * *
(b) If the matter is submitted to the CBCA, 48 CFR part 6101; and
(c) The Equal Access to Justice Act (EAJA), 5 U.S.C. 504 and 28
U.S.C. 2412, and regulations at 48 CFR 6101.30, 6101.31 (CBCA), 43 CFR
4.602, 4.604 through 4.628 (DOI), and 45 CFR 13.4 through 13.7 (HHS).
0
10. Revise Sec. 900.222(e) to read as follows:
Sec. 900.222 What goes into a decision?
* * * * *
(e) Contain the following language:
This is a final decision. You may appeal this decision to the
Civilian Board of Contract Appeals (CBCA), 1800 F Street, NW.,
Washington, DC 20245. If you decide to appeal, you must, within 90 days
from the date you receive this decision, mail or otherwise furnish
written notice to the CBCA and provide a copy to the individual from
whose decision the appeal is taken. The notice must indicate that an
appeal is intended, and refer to the decision and contract number.
Instead of appealing to the CBCA, you may bring an action in the U.S.
Court of Federal Claims or in the United States District Court within
12 months of the date you receive this notice.
Sec. 900.253 [Amended]
0
11. Revise Sec. 900.253(b) to read as follows:
* * * * *
(b) A statement explaining the contractor's right to a hearing on
the record under Sec. 900.171 within 10 days of the emergency
reassumption or such later date as the contractor may approve;
* * * * *
PART 1000--ANNUAL FUNDING AGREEMENTS UNDER THE TRIBAL SELF-
GOVERNMENT ACT AMENDMENTS TO THE INDIAN SELF-DETERMINATION AND
EDUCATION ACT
0
12. The authority citation for part 1000 continues to read as follows:
Authority: 25 U.S.C. 458aa-gg.
Subpart R--Appeals
0
13. Revise Sec. 1000.421(b) to read as follows:
Sec. 1000.421 What is the purpose of this subpart?
* * * * *
(b) The Civilian Board of Contract Appeals (CBCA) for certain post-
AFA disputes;
* * * * *
Sec. 1000.428 [Amended]
0
14. In Sec. 1000.428, remove ``IBCA'' and add in its place ``CBCA''.
0
15. In Sec. 1000.429, revise the section heading and introductory text
to read as follows:
Sec. 1000.429 What statutes and regulations govern resolution of
disputes concerning signed AFAs or compacts that are appealed to the
CBCA?
Section 110 of Public Law 93-638 (25 U.S.C. 450m-l) and the
regulations at 25 CFR 900.216 through 900.230 apply to disputes
concerning signed AFAs and compacts that are appealed to the CBCA,
except that any references to the Department of Health and Human
[[Page 31702]]
Services are inapplicable. For purposes of such appeals:
* * * * *
0
16. Revise Sec. 1000.430 to read as follows:
Sec. 1000.430 Who handles appeals regarding reassumption for imminent
jeopardy?
Appeals regarding reassumption of Title I-eligible PFSAs are
handled by the IBIA under the procedures in 25 CFR 900.171 through
900.176. Appeals regarding reassumption of PFSAs that are not Title I-
eligible are handled by the CBCA under the procedures in 48 CFR part
6101.
0
17. Revise Sec. 1000.431 to read as follows:
Sec. 1000.431 Does the Equal Access to Justice Act (EAJA) apply to
appeals under this subpart?
Yes. EAJA claims against the DOI will be heard under 48 CFR
6101.30, 6101.31 (CBCA) and 43 CFR 4.602, 4.604 through 4.628 (DOI) and
under the Equal Access to Justice Act, 5 U.S.C. 504 and 28 U.S.C. 2412.
Dated: October 30, 2009.
Larry Echo Hawk,
Assistant Secretary, Indian Affairs, Department of the Interior.
Dated: May 24, 2010.
Yvette Roubideaux,
Director, Indian Health Service, Department of Health and Human
Services.
[FR Doc. 2010-13297 Filed 6-3-10; 8:45 am]
BILLING CODE 4310-79-P
