34588 Federal Register / Vol. 65, No. 105 / Wednesday, May 31, 2000 / Rules and Regulations

Dated: May 19, 2000.

L. Robert Lake,

Director of Regulations and Policy, Center

for Food Safety and Applied Nutrition.

[FR Doc. 00–13477 Filed 5–30–00; 8:45 am]

BILLING CODE 4160–01–F

DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 270

[RIN 0790–AG67]

Compensation of Certain Former

Operatives Incarcerated by the

Democratic Republic of Vietnam

AGENCY: Office of Under Secretary of

Defense for Personnel and Readiness,

DoD.

ACTION: Final rule.

SUMMARY: This rule adopts as final an

interim rule implementing section 657

of the National Defense Authorization

Act for Fiscal Year 1997, which

authorizes the Secretary of Defense to

make payments to persons captured and

incarcerated by the Democratic Republic

of Vietnam. The rule established policy

and procedures concerning the

payments to these persons. The rule

amended regulations to reflect changes

necessary as a result of new language in

section 658 of the FY99 National

Defense Authorization Act. Section 658

expands the field of beneficiaries of the

Vietnamese Commandos Compensation

Commission to parents and siblings of

deceased Commandos. It also added

words ‘‘notwithstanding any agreement

(including a power of attorney) to the

contrary, the actual disbursement’’ must

be made directly to the person who is

eligible for the payment. The rule also

amended regulations to reflect necessary

technical changes to accommodate the

new language. The Department of

Defense is adopting the Interim Final

Rule as a Final Rule without change.

EFFECTIVE DATE: This rule is effective

October 17, 1998.

FOR FURTHER INFORMATION CONTACT: LTC

Frank Hudson, (703) 588–6570 or Mr.

Chuck Witschonke, (703) 693–1059,

Directorate of Compensation, Office of

the Secretary of Defense, 4000 Defense

Pentagon, Washington, DC, 20301

SUPPLEMENTARY INFORMATION: The

Department of Defense published an

Interim Final Rule with a request for

comments on December 10, 1998 (63 FR

68194). The following comments were

received:

Comment: The Statute Requires

Prompt Payment In A Manner

Requested By The Awardee.

Section 657(d)(2) of Pub. L. 104–201,

as amended, states that ‘‘Subject to

subsection (f), if the Secretary

determines that the claimant is eligible

for the payment, the Secretary shall

promptly pay the claim.’’ (Emphasis

added.) Subsection (f) provides

notwithstanding any agreement

(including a power of attorney) to the

contrary, the actual disbursement of a

payment under this section may be

made only to the person who is eligible

for payment under subsection (a) or (b)

and only—upon the appearance of that

person, in person, at the designated

distribution office in the United States

or its territories; or as such other

location or in such manner as that

person may request in writing.

The only change made to this

subsection by the FY 99 National

Defense Authorization Act was the

addition of ‘‘[n]otwithstanding any

agreement (including a power of

attorney) to the contrary’’ at the

beginning of Subsection (f)(1).

The statutory requirements for

disbursement are clearly stated. First,

the payment must be disbursed to the

person eligible for payment. Thus, the

check must be made payable to the

intended beneficiary and not to a third

party, such as the person’s attorney or

another designee or assignee, regardless

of any agreement to the contrary.

The second condition for payment is

that it be made: (1) in person at a

designated distribution office in the

United States or its territories or, (2) if

the beneficiary requests in writing, at

such other location or in such other

manner as that person may request. The

statute recognizes that many payment

recipients may not be able to appear in

person to receive their payments. Many,

for instance, still live in Vietnam under

a repressive government that denies

them the ability to travel or even to

correspond freely. Hence the statute

allows the eligible person to request

alternative methods of payment.

The Secretary of Defense has

complete discretion in determining

whether a claim is justified and such

determinations are considered final and

conclusive. Pub. L. 104–201, section

6570). However, once DoD has

determined that a person is eligible for

payment under the provisions of the

Vietnamese Commando Compensation

Act, that discretion ends. The agency is

mandated by statute to promptly pay the

claim. DoD may not establish

unreasonable regulations that hinder

payments to those persons eligible for

the compensation established by

Congress. In fact, section 657(f)(2)

provides that DoD shall hold funds in

trust for eligible persons only until such

time as ‘‘the person makes an election’’

(emphasis added) to appear in person at

a disbursing office or to request

payment at another location or in

another manner.

Response: Section 657(f) provides that

the actual disbursement of a payment

may be made only to an eligible

claimant, not withstanding any

agreement to the contrary. The statute

does not require that payment be made

in any manner requested by a claimant;

rather, it authorizes the Department, in

its discretion, to grant requests by

eligible claimants to receive their

payments at a particular location or in

a manner other than the personal

appearance of the claimant at a

designated distribution office. This

provision does not negate the

independent requirement that only

eligible claimants may receive

payments.

Comment: The Interim Regulation

Violates The Statute And Inflicts

Hardship.

The interim regulation drastically

curtails the statutory right of eligible

persons to receive their payments in the

manner they request. As revised,

regulation states that:

The Commission [on Compensation] may,

in its discretion, require the person who is

eligible for the payment to appear at any

designated Defense Finance Accounting

Service disbursement office in the United

States to receive payment. The Commission

may, in its discretion, coordinate with other

U.S. governmental agencies to facilitate

disbursement of payments to persons eligible

for payments who reside outside the United

States. If an eligible person makes a written

request that payment be made at an alternate

location or in an alternative manner, the

Commission may, in its discretion, grant

such request, provided that the actual

payment (i.e., the physical delivery of the

payment) is made only to the eligible person.

The Commission will not disburse payment

to any person other than an eligible person,

notwithstanding any written request,

assignment of rights, power of attorney, or

other agreement.

32 CFR 270.11. (Emphasis added.)

By requiring that all payments be

made by ‘‘physical delivery of the

payment’’ only to the eligible person,

DoD has imposed an unreasonable

burden on the intended beneficiaries of

the Congressionally mandated

compensation. By imposing such an

arbitrary condition on payments, DoD

set an unnecessary hurdle which many

persons eligible for compensation will

be unable to clear. Such arbitrary action

violates DoD’s statutory obligation to

Federal Register / Vol. 65, No. 105 / Wednesday, May 31, 2000 / Rules and Regulations 34589

promptly pay the claims after eligibility

has been determined.

It does little good for DoD to state that

it will hold the funds in trust for the

person authorized to receive payment

‘‘until such time as the person complies

with the conditions for disbursement.’’

32 CFR 270.11. For the most part, the

Commandos and their beneficiaries,

especially those still living in Vietnam,

are poor and need the money now. The

Commandos themselves are middleaged or older and many are in very poor

health. Disbursing payments only if the

awardees can figure out some way to get

to a Defense Finance Accounting

Service office or can arrange some other

face-to-face meeting with a Defense

Department representative authorized to

disburse payments would frustrate the

intent of Congress to pay claimants as

fairly and expeditiously as possible.

In fact, the statutory language found

in section 657(f)(2) does not authorize

the Commission to withhold payment

until ‘‘the person complies with the

conditions for disbursement’’ but rather

until ‘‘the person makes an election

under such paragraph (i.e., appear in

person at a designated disbursement

office or request payment at another

location or in another manner).’’ The

statute gives the awardee, and not DoD,

the right to elect how payment will be

made. If that request is reasonable, i.e.,

if the eligible person will receive the

funds to which he or she is entitled,

DoD may not deny the request without

a valid reason.

DoD states that it is required to make

physical delivery of the payment to the

eligible person because of new language

in section 668 of the FY 99 National

Defense Authorization Act, Pub. L. 105–

261, which amended section 657(f)(1) of

the National Defense Authorization Act

for Fiscal Year 1997 (Pub. L. 104–201).

The amendment simply added the

words ‘‘Notwithstanding any agreement

(including a power of attorney) to the

contrary’’ before the description of how

‘‘actual disbursement’’ will be made.

DoD’s revised regulation, however,

equates ‘‘actual disbursement’’ to ‘‘the

physical delivery of payment.’’ 63 FR

68195. Such a distortion of the term

‘‘actual disbursement’’ is completely

unreasonable.

‘‘Disbursement’’ does not equate to

‘‘physical delivery.’’ As defined in the

American Heritage College Dictionary,

to disburse means ‘‘to pay out; expend.’’

The Federal Government typically

makes disbursements of payments by

issuing checks or initiating electronic

funds transfers (‘‘EFTs’’). See, e.g., 31

CFR 205.3, 206.2, 208.2(c). The

Department of Defense, as a matter of

course, disburses payments by mail or

EFT to service members and civilian

employees, as well as to other persons

eligible for government payments. See,

e.g., 32 CFR 63.6 (procedures for direct

payment of retired pay to former

spouses). Therefore, to equate

disbursement with the actual physical

delivery of a payment to the beneficiary

is unreasonable and flies in the face of

the Government’s normal way of doing

business.

The statutory language mandating

payments to eligible individuals

provides no authority for DoD to

withhold payment until ‘‘physical

delivery’’ of the payment can be made.

DoD seems to believe that some remarks

contained in the Congressional Record

justify its avoidance of the statutory

mandate to make prompt payment for

approved claims. Such a position is

entirely insupportable.

It is a basic canon of statutory

construction that, absent a clearly

expressed legislative intention to the

contrary, the language of the statute

must ordinarily be regarded as

conclusive. United States v. Turkette

452 U.S. 576, 580 (1981); Consumer

Products Safety Comm’n v. GTE

Sylvania, Inc, 447 U.S. 102, 108 (1980).

Given a ‘‘straightforward statutory

command, there is no reason to resort to

legislative history.’’ United States v.

Gonzales, 520 U.S. 1, 10 (1997) (quoting

Connecticut Nat. Bank v. Germain 503

U.S. 249, 254 (1992)). There is no

ambiguity in the language of section

657(f) that would necessitate looking

beyond the four corners of the statute to

decipher its meaning.

Even if the statutory language were

not clear regarding disbursement of

payment, a review of the scant

legislative history associated with the

modification of the disbursement

language in section 657(f)(1) lends no

support to DoD’s position that payments

must be made physically to the eligible

person. In remarks made on the floor of

the Senate on June 23, 1998, Senator

John McCain (R-Arizona), one of the

sponsors of the amendment explained

that the amendment ‘‘would ensure that

the Vietnamese commandos receive

their rightful share of the funds

authorized and appropriated by

Congress.’’ 142 Cong. Rec. S6849 (daily

ed. July 23, 1998). Senator McCain

stated that the amendment ‘‘seeks to

clarify that the actual disbursement of a

payment under our 1996 legislation may

be made only to the person eligible for

the payment, notwithstanding any

agreement, including a power of

attorney, to the contrary.’’ Id.

Nothing in the Senator’s brief remarks

supports a conclusion that payments

must be made by means of ‘‘physcial

delivery’’ to the eligible persons. The

statute and the Senator’s remarks clearly

establish that payments can be made

only to the eligible recipients. Hence, a

payment check could not be made out

to a third person for later payment to the

recipient. However, an eligible recipient

can request that his or her check be

mailed to a particular address or that the

funds be electronically transferred to a

particular account. Unless DoD had a

reasonable basis for concluding that the

recipient would not receive the payment

to which he or she was entitled if the

payment request were honored, the

statute requires the Commission to

follow the reasonable payment request

of an eligible recipient.

Response: As discussed above, the

regulation implements the plain

language of the statute, and ensures that

eligible claimants receive all of the

money they are owed in the most secure

and expeditious manner possible.

Comment: The Regulation Can Be

Revised To Comply With The Statute.

For all of these reasons, the

amendment to 32 CFR 270.11 must be

modified. In order to comply with

Section 657(f) of Pub. L. 104–201, as

amended, the following revised

language is suggested:

§ 270.11 Limitation on disbursement

(a) Subject to subparagraph (b) below, if the

Secretary determines that a claimant is

eligible for the payment of compensation, the

Commission shall promptly pay the claim.

(b) Notwithstanding any agreement

(including a power of attorney) to the

contrary, the Commission will make a

disbursement of a payment under this part

only to the person who is eligible for

payment. Payment will be made only in one

of the following ways:

(1) Upon appearance of the eligible person,

in person at any designated Defense Finance

Accounting Service disbursement office in

the United States or its territories;

or

(2) At such other location or in such other

manner as the eligible person may request in

writing.

The Commission will comply with any

reasonable request for payment, as described

in (2) above, unless the Commission believes

that the requested method of payment is

likely to result in the eligible person not

receiving his or her rightful share of the

funds authorized and appropriated by

Congress. Methods of payment approved by

a Federal court or agency of appropriate

jurisdiction will be considered as reasonable

per se.

(c) In the case of a claim approved for

payment but not disbursed as the result of

operation of paragraph (b) above, the

Commission shall hold the funds in trust for

the eligible person in an interest bearing

account until such time as the person makes

an election under paragraph (b).

34590 Federal Register / Vol. 65, No. 105 / Wednesday, May 31, 2000 / Rules and Regulations

This revised language would allow

the Commandos and their beneficiaries

to receive their rightful share of the

money Congress intended them to have,

while at the same time allowing DoD to

exercise control if the payments are not

in conformance with the law. DoD is

strongly urged to implement this

proposed revision in place of the unfair,

unworkable, and unreasonable language

proposed in the Interim Final Rule.

Response: The suggested change to

the regulation is not consistent with or

required by the statute. This statute

makes clear that the compensation must

be paid directly to the claimants,

notwithstanding a power of attorney

indicating that another disposition is

preferred.

Executive Order 12866, Regulatory

Planning and Review

It has been determined that 32 CFR

part 270 is not a major rule. It does not

have an annual effect to the economy of

$100 million or more or adversely affect

in a material way the economy; a

section of the economy; productivity;

competition; jobs; the environment;

public health or safety; or State, local,

or tribal governments or communities.

Public Law 96–354, Regulatory

Flexibility Act (5 U.S.C. 601)

It has been certified that 32 CFR part

270 is not subjet to the Regulatory

Flexibility Act (5 U.S.C. 601) because it

does not, it promulgated, have a

significant economic impact on a

substantial number of small entities.

The primary reason for this rule is to

provide compensation for a limited

number of Vietnamese Commandos who

were incarcerated in North Vietnam,

and as such, does not affect small

entiites.

Public Law 96–511, Paperwork

Reduction Act (44 U.S.C. Chapter 35)

It has been certified that 32 CFR part

270 does not impose reporting and

recordkeepting requirements under the

Paperwork Reduction Act of 1995. The

reporting and recordkeeping

requirements are exempt from this Act,

as it directly involves active litigation in

which the U.S. is a party.

The specific exemption from the

Paperwork Reduction Act is found in 5

CFR part 1320. The information

collection in this final rule is exempt

from OMB approval under Section

1320.4(a)(2), ‘‘Controlling Paperwork

Burdens on the Public; Regulatory

Chnges Reflecting Recodification of the

Paperwork Reduction Act’’.

Public Law 104–4, Unfunded Mandates

Report Act of 1995 (UMRA)

It has been determined that 32 CFR

part 270 does not contain a federal

mandate that may result in expenditures

of $100 million or more for state, local,

and tribal governments, in the aggregate,

or the private sector in any one year.

Accordingly, the interm rule

amending 32 CFR Part 270, which was

published at 63 FR 68194 on December

10, 1998, is adopted as a final rule

without change.

Dated: May 22, 2000.

Patricia L. Toppings,

Alternate OSD Federal Register Liaison

Officer, Department of Defense.

[FR Doc. 00–13285 Filed 5–30–00; 8:45 am]

BILLING CODE 5001–10–M

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 216

[Docket No. 990922260–0141–02; I.D.

083199E]

RIN 0648–AM84

Designating the Cook Inlet, Alaska,

Stock of Beluga Whale as Depleted

Under the Marine Mammal Protection

Act (MMPA)

AGENCY: National Marine Fisheries

Service (NMFS), NOAA, Commerce.

ACTION: Final rule, response to

comments.

SUMMARY: Based upon the available

information regarding the status of the

Cook Inlet stock of beluga whales,

NMFS has determined that the Cook

Inlet stock of beluga whales is below its

Optimum Sustainable Population (OSP)

levels and, therefore, is depleted as

defined in the MMPA. This action is a

step in the process under the MMPA to

address the sharp decline in the number

of Cook Inlet beluga whales. It is

intended as a conservation measure to

reverse the decline and to promote

recovery of the stock of beluga whales.

DATES: Effective June 30, 2000.

FOR FURTHER INFORMATION CONTACT:

Michael Payne, NOAA/NMFS, Alaska

Region, (907) 586–7235, Barbara

Mahoney, NOAA/NMFS, Alaska Region,

Anchorage Field Office, (907) 271–5006,

or Thomas Eagle, Office of Protected

Resources, (301) 713–2322, ext. 105.

SUPPLEMENTARY INFORMATION:

Background

Section 3(1) of the MMPA (16 U.S.C.

1362(1))defines the term, ‘‘depletion’’ or

‘‘depleted’’, as

* * *any case in which

(A) The Secretary, after consultation with

the Marine Mammal Commission and the

Committee of Scientific Advisors on Marine

Mammals * * *determines that a species or

population stock is below its optimum

sustainable population.

(B) A state, to which authority for the

conservation and management of a species or

population stock is transferred

* * *determines that such species or

population stock is below its optimum

sustainable population.

(C) A species or population stock is listed

as an endangered species or a threatened

species under the Endangered Species Act of

1973 * * *

Section 3(9) of the MMPA (16 U.S.C.

1362(9)) further defines OSP as ‘‘

* * *with respect to any population

stock, the number of animals which will

result in the maximum productivity of

the population or the species, keeping

in mind the carrying capacity (K) of the

habitat and the health of the ecosystem

of which they form a constituent

element.’’

NMFS regulations at 50 CFR 216.3

clarify the definition of OSP as a

population size that falls within a range

from the population level of a given

species or stock that is the largest

supportable within the ecosystem (K) to

its maximum net productivity level

(MNPL). Maximum net productivity is

the greatest net annual increment in

population numbers or biomass

resulting from additions to the

population from reproduction, less

losses due to natural mortality.

Section 2 of the MMPA (13 U.S.C.

1361) states that marine species,

populations and/or stocks should not be

permitted to fall below their OSP level.

Historically, MNPL has been expressed

as a range of values (generally 50 to 70

percent of K) determined theoretically

by estimating what size stock in relation

to the original stock size will produce

the maximum net increase in

population (42 FR 12010, 1 March

1977). In 1977, the midpoint of this

range (60 percent) was used to

determine whether dolphin stocks in

the eastern tropical Pacific Ocean were

depleted (42 FR 64548, 27 December

1977). The 60–percent value was

included in the final rule governing the

taking of marine mammals incidental to

commercial fishing operations (45 FR

72178, 31 October 1980).

On November 19, 1998, NMFS

initiated a Status Review of the Cook

Inlet beluga whale stock (63 FR 64228).

The comment period on the status