Federal Register / Vol. 70, No. 192 / Wednesday, October 5, 2005 / Proposed Rules 58175 

exploration of matters raised in the 

comments. 

§ 4.624 When may further proceedings be 

held? 

(a) Ordinarily, the determination of an 

award will be made on the basis of the 

written record. However, the 

adjudicative officer may order further 

proceedings, which will be held only 

when necessary for full and fair 

resolution of the issues and will be 

conducted as promptly as possible. 

(b) The adjudicative officer may order 

further proceedings on his or her own 

initiative or in response to a request by 

you or by the Department or other 

agency. A request for further 

proceedings under this section must: 

(1) Identify the information sought or 

the disputed issues; and 

(2) Explain why the additional 

proceedings are necessary to resolve the 

issues. 

(c) As to issues other than substantial 

justification (such as your eligibility or 

substantiation of fees and expenses), 

further proceedings under this section 

may include an informal conference, 

oral argument, additional written 

submissions, pertinent discovery, or an 

evidentiary hearing. 

(d) The adjudicative officer will 

determine whether the position of the 

Department or other agency was 

substantially justified based on the 

administrative record of the adversary 

adjudication as a whole. 

§ 4.625 How will my application be 

decided? 

The adjudicative officer must issue a 

decision on the application promptly 

after completion of proceedings on the 

application. The decision must include 

written findings and conclusions on all 

of the following that are relevant to the 

decision: 

(a) Your eligibility and status as a 

prevailing party; 

(b) The amount awarded, and an 

explanation of the reasons for any 

difference between the amount 

requested and the amount awarded; 

(c) Whether the position of the 

Department or other agency was 

substantially justified; 

(d) Whether you unduly protracted 

the proceedings; and 

(e) Whether special circumstances 

make an award unjust. 

§ 4.626 How will an appeal from a decision 

be handled? 

(a) If the adjudicative officer is an 

administrative law judge, you or the 

Department or other agency may appeal 

his or her decision on the application to 

the appeals board that would have 

jurisdiction over an appeal involving 

the merits of the proceeding. The appeal 

will be subject to the same rules and 

procedures that would apply to an 

appeal involving the merits of the 

proceeding. The appeals board will 

issue the final Departmental or other 

agency decision on the application. 

(b) If the adjudicative officer is a 

panel of appeals board judges, their 

decision on the application is final for 

the Department or other agency. 

§ 4.627 May I seek judicial review of a final 

decision? 

You may seek judicial review of a 

final Departmental or other agency 

decision on an award as provided in 5 

U.S.C. 504(c)(2). 

§ 4.628 How will I obtain payment of an 

award? 

(a) To obtain payment of an award 

against the Department or other agency, 

you must submit: 

(1) A copy of the final decision 

granting the award; and 

(2) A certification that no party is 

seeking review of the underlying 

decision in the United States courts, or 

that the process for seeking review of 

the award has been completed. 

(b) If the award is against the 

Department: 

(1) You must submit the material 

required by paragraph (a) of this section 

to the following address: Director, Office 

of Financial Management, Policy, 

Management and Budget, U.S. 

Department of the Interior, Washington, 

DC 20240. 

(2) Payment will be made by 

electronic funds transfer whenever 

possible. A representative of the 

Department will contact you for the 

information the Department needs to 

process the electronic funds transfer. 

(c) If the award is against another 

agency, you must submit the material 

required by paragraph (a) of this section 

to the chief financial officer or other 

disbursing official of that agency. 

Agency counsel must promptly inform 

you of the title and address of the 

appropriate official. 

(d) The Department or other agency 

will pay the amount awarded to you 

within 60 days of receiving the material 

required by this section. 

[FR Doc. 05–19896 Filed 10–4–05; 8:45 am] 

BILLING CODE 4310–79–P 

DEPARTMENT OF TRANSPORTATION 

Office of the Secretary 

49 CFR Part 29 

[Docket OST–2005–22602] 

RIN 2105–AD46 

Debarment and Suspension 

(Nonprocurement) Requirements 

AGENCY: Office of the Secretary (OST), 

DOT. 

ACTION: Notice of proposed rulemaking 

(NPRM); request for comments. 

SUMMARY: This proposal would amend 

Department of Transportation 

regulations implementing the 

governmentwide nonprocurement 

suspension and debarment 

requirements. Specifically, the DOT 

proposes to adopt the optional lower 

tier coverage prohibiting excluded 

parties from participating in 

subcontracts at tiers lower than the first 

tier below a covered nonprocurement 

transaction. 

DATES: Comments must be received on 

or before November 4, 2005. 

ADDRESSES: Mail or hand deliver 

comments to the U.S. Department of 

Transportation, Dockets Management 

Facility, Room PL–401, 400 Seventh 

Street, SW., Washington, DC 20590, or 

submit electronically at http:// 

dms.dot.gov. All comments should 

include the docket number that appears 

in the heading of this document. All 

comments received will be available for 

examination and copying at the above 

address from 9 a.m. to 5 p.m., e.t., 

Monday through Friday, except Federal 

holidays. Those desiring notification of 

receipt of comments must include a selfaddressed, stamped postcard or you 

may print the acknowledgment page 

that appears after submitting comments 

electronically. 

FOR FURTHER INFORMATION CONTACT: 

Ladd Hakes, Office of the Senior 

Procurement Executive, Office of 

Administration (M–61), (202) 366–4268, 

400 Seventh Street, SW., Washington, 

DC 20590–0001. Office hours are from 

7:45 a.m. to 4:15 p.m. e.t., Monday 

through Friday, except Federal holidays. 

SUPPLEMENTARY INFORMATION: 

Electronic Access and Filing 

You may submit or retrieve comments 

online through the Document 

Management System (DMS) at: http:// 

dmses.dot.gov. Acceptable formats 

include: MS Word (versions 95 to 97), 

MS Word for Mac (versions 6 to 8), Rich 

Text File (RTF), American Standard 

58176 Federal Register / Vol. 70, No. 192 / Wednesday, October 5, 2005 / Proposed Rules 

Code Information Interchange (ASCII) 

(TXT), Portable Document Format 

(PDF), and WordPerfect (versions 7 to 

8). The DMS is available 24 hours each 

day, 365 days each year. Electronic 

submission and retrieval help and 

guidelines are available under the help 

section of the Web site. 

An electronic copy of this document 

may also be downloaded by using a 

computer, modem and suitable 

communications software from the 

Government Printing Office’s Electronic 

Bulletin Board Service at (202) 512–

1661. Internet users may also reach the 

Office of the Federal Register’s home 

page at: http://www.nara.gov/fedreg and 

the Government Printing Office’s Web 

page at: http://www.access.gpo.gov/ 

nara. 

Background 

On November 26, 2003, the DOT, 

along with twenty-nine other agencies, 

published its final rule implementing 

changes to the governmentwide 

debarment and suspension common 

rule (68 FR 66534). These regulations 

were intended to resolve unnecessary 

technical differences between 

suspensions and debarments in the 

procurement and nonprocurement 

systems, revise the existing 

governmentwide suspension and 

debarment regulations in a plain 

language style and format, and make 

other improvements consistent with the 

purpose of the suspension and 

debarment system. One of the changes 

made to the suspension and debarment 

rules included limiting the exclusion 

from a suspension or debarment to only 

the first procurement level. Under the 

previous governmentwide regulations, 

all executive agencies applied 

suspensions and debarments to all 

procurement levels. However, in the 

revised governmentwide suspension 

and debarment regulations, each agency 

was given the option of applying an 

exclusion from a suspension or 

debarment to levels below the first 

procurement level. 

This NPRM proposes to adopt the 

option to apply an exclusion under the 

suspension and debarment regulations 

to levels below the first procurement 

level. Many of the DOT programs 

involve billions of dollars in grants that 

are obligated to construction projects by 

States, localities, and other recipients. 

For instance, in fiscal year 2003 alone, 

the DOT apportioned $24,129,858,248 

to the States for highway construction 

under the Federal-aid Highway 

Program. Since Federal Highway 

Administration regulations governing 

the Federal-aid Highway Program 

require prime contractors to perform 

only 30 percent of the contract work 

themselves (less designated specialty 

items), a suspended or debarred 

contractor may continue to receive 

significant Federal-aid Highway work 

by continuing to obtain subcontracts. 

Moreover, suspended or debarred 

contractors may continue to participate 

in subcontracts for other DOT programs 

as well, such as the Federal Transit 

Program and the Federal-aid Airport 

Program. The ability of excluded 

contractors to continue receiving 

significant subcontracts makes these 

DOT programs highly vulnerable to 

fraud, waste, and abuse. As such, DOT 

is proposing to include the optional 

lower tier coverage for all DOT 

nonprocurement transactions. 

Section-by-Section Analysis 

Section 29.220 Are any Procurement 

Contracts Included as Covered 

Transactions? 

This NPRM would add a new 

paragraph (c) to this section to cover 

contracts that are awarded by any 

contractor, subcontractor, supplier, 

consultant, or its agent or representative 

in any transaction that is expected to 

equal or exceed $25,000. 

Rulemaking Analyses and Notices 

All comments received before the 

close of business on the comment 

closing date indicated above will be 

considered and will be available for 

examination in the docket at the above 

address. Comments received after the 

comment closing date will be filed in 

the docket and will be considered to the 

extent practicable. In addition to late 

comments, the DOT will also continue 

to file relevant information in the docket 

as it becomes available after the 

comment period closing date, and 

interested persons should continue to 

examine the docket for new material. A 

final rule may be published at any time 

after close of the comment period. 

Executive Order 12866 (Regulatory 

Planning and Review) and DOT 

Regulatory Policies and Procedures 

The DOT has determined that this 

document does not propose a significant 

rule within the meaning of Executive 

Order 12866 or within the meaning of 

Department of Transportation regulatory 

policies and procedures. It is 

anticipated that the economic impact of 

this rulemaking would be minimal, 

since it would bring the DOT’s 

regulations concerning the effect of a 

suspension and debarment back in line 

with the regulations that were in effect 

prior to November 26, 2003. These 

proposed changes would not adversely 

affect, in a material way, any sector of 

the economy. In addition, these changes 

would not interfere with any action 

taken or planned by another agency and 

would not materially alter the budgetary 

impact of any entitlements, grants, user 

fees, or loan programs. Consequently, a 

full regulatory evaluation is not 

required. 

Regulatory Flexibility Act 

In compliance with the Regulatory 

Flexibility Act (Pub. L. 96–354, 5 U.S.C. 

601–612) the Department has evaluated 

the effects of this proposed action on 

small entities and certifies that the 

proposed action would not have a 

significant economic impact on a 

substantial number of small entities. 

This proposal would bring the DOT’s 

regulations concerning the effect of a 

suspension and debarment back in line 

with the regulations that were in effect 

prior to November 26, 2003 by 

excluding persons who have been 

suspended or debarred from 

participating in transactions beneath the 

first procurement level under a 

nonprocurement transaction. The only 

parties that might be economically 

impacted are subcontractors which are 

suspended or debarred. Based on its 

experience in implementing suspension 

and debarment regulations, the 

Department concludes that a significant 

number of entities, regardless of size, 

are unlikely to be suspended or 

debarred. For these reasons, the DOT 

certifies that this action would not have 

a significant economic impact on a 

substantial number of small entities. 

Unfunded Mandates Reform Act of 

1995 

This proposed rule would not impose 

unfunded mandates as defined by the 

Unfunded Mandates Reform Act of 1995 

(Pub. L. 104–4, March 22, 1995, 109 

Stat. 48). Indeed, it does not impose any 

mandates. This proposed rule will not 

result in the expenditure by State, local, 

and tribal governments, in the aggregate, 

or by the private sector, of $100 million 

or more in any one year (2 U.S.C. 1532). 

Executive Order 13132 (Federalism 

Assessment) 

This proposed action has been 

analyzed in accordance with the 

principles and criteria contained in 

Executive Order 13132, and the DOT 

has determined that this proposed 

action would not have sufficient 

federalism implications to warrant the 

preparation of a federalism assessment. 

The DOT has also determined that this 

proposed action would not preempt any 

State law or State regulation or affect the 

Federal Register / Vol. 70, No. 192 / Wednesday, October 5, 2005 / Proposed Rules 58177 

States’ ability to discharge traditional 

State governmental functions. 

Executive Order 12372 

(Intergovernmental Review) 

Catalog of Federal Domestic 

Assistance Program Number [Insert 

number], [Insert Program Name]. The 

regulations implementing Executive 

Order 12372 regarding 

intergovernmental consultation on 

Federal programs and activities [apply/ 

do not apply] to this program. 

Paperwork Reduction Act 

Under the Paperwork Reduction Act 

of 1995 (PRA) (44 U.S.C. 3501, et seq.), 

Federal agencies must obtain approval 

from the Office of Management and 

Budget (OMB) for each collection of 

information they conduct, sponsor, or 

require through regulations. The DOT 

has determined that this proposal does 

not contain collection of information 

requirements for the purposes of the 

PRA. 

National Environmental Policy Act 

The agency has analyzed this 

proposed action for the purpose of the 

National Environmental Policy Act of 

1969 (42 U.S.C. 4321) and has 

determined that this proposed action 

would not have any effect on the quality 

of the environment. 

Regulation Identification Number 

A regulation identification number 

(RIN) is assigned to each regulatory 

action listed in the Unified Agenda of 

Federal Regulations. The Regulatory 

Information Service Center publishes 

the Unified Agenda in April and 

October of each year. The RIN contained 

in the heading of this document can be 

used to cross reference this action with 

the Unified Agenda. 

List of Subjects in 49 CFR Part 29 

Administrative practice and 

procedure, Government contracts, Grant 

programs, Loan programs, Reporting 

and recordkeeping requirements. 

Issued this 22nd day of September, 2005, 

at Washington, DC. 

Norman Y. Mineta, 

Secretary of Transportation. 

In consideration of the foregoing, the 

DOT proposes to amend title 49, Code 

of Federal Regulations, part 29, as set 

forth below: 

PART 29—GOVERNMENTWIDE 

DEBARMENT AND SUSPENSION 

(NONPROCUREMENT) 

1. The authority citation for part 29 

continues to read as follows: 

Authority: Sec. 2455, Pub. L. 103–355, 108 

Stat. 3327 (31 U.S.C. 6101 note); E.O. 11738 

(3 CFR, 1973 Comp., p. 799); E.O. 12549 (3 

CFR, 1986 Comp., p. 189); E.O. 12689 (3 CFR 

1989 Comp., p. 235). 

2. In § 29.220, add paragraph (c) to 

read as follows: 

§ 29.220 Are any procurement 

transactions included as covered 

transactions? 

* * * * * 

(c) The contract is awarded by any 

contractor, subcontractor, supplier, 

consultant or its agent or representative 

in any transaction, regardless of tier, to 

be funded or provided by the DOT 

under a nonprocurement transaction 

that is expected to equal or exceed 

$25,000. [See optional lower tier 

coverage shown in the diagram in the 

appendix to this part.] 

[FR Doc. 05–19965 Filed 10–4–05; 8:45 am] 

BILLING CODE 4910–62–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 635 

[I.D. 051603C] 

RIN 0648–AQ65 

Atlantic Highly Migratory Species; 

Amendments to the Fishery 

Management Plan for Atlantic Tunas, 

Swordfish, and Sharks and the Fishery 

Management Plan for Atlantic Billfish 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Extension of comment period; 

rescheduling of the Joint Advisory Panel 

meeting. 

SUMMARY: Due to the need to reschedule 

three public hearings regarding the draft 

Consolidated Highly Migratory Species 

(HMS) Fishery Management Plan (FMP), 

and the extended recovery period 

needed for the Gulf region constituents 

from Hurricanes Katrina and Rita, 

NMFS is extending the comment period 

to provide adequate opportunity for 

public comment on the draft 

Consolidated HMS FMP and its 

proposed rule. NMFS is extending the 

comment period until March 1, 2006. 

The original comment period was 

scheduled to conclude on October 18, 

2005. The three public hearings were 

cancelled in Federal Register 

documents on September 7 and 23, 

2005. The draft Consolidated HMS FMP 

and its proposed rule describe a range 

of management measures that could 

impact fishermen and dealers for all 

HMS fisheries. NMFS is also 

rescheduling the October 11–13, 2005, 

HMS and Billfish Advisory Panels (AP) 

meeting to February 21–23, 2006. The 

intent of this meeting is to consider 

alternatives for the conservation and 

management of HMS as presented in the 

draft Consolidated HMS FMP and its 

proposed rule. 

DATES: Written comments on the August 

19, 2005 (70 FR 48804), proposed rule 

and the draft HMS FMP must be 

received no later than 5 p.m. on March 

1, 2006. 

The rescheduled AP meeting will be 

held from 1 p.m. to 5 p.m. on Tuesday, 

February 21, 2006, from 8 a.m. to 5 p.m. 

on Wednesday, February 22, 2006, and 

from 8 a.m. to 5 p.m. on Thursday, 

February 23, 2006. 

ADDRESSES: The AP meeting will be 

held at the Holiday Inn, 8777 Georgia 

Avenue (Rt. 97), Silver Spring, MD 

20910. 

Written comments on the proposed 

rule and draft HMS FMP may be 

submitted to Karyl Brewster-Geisz, 

Highly Migratory Species Management 

Division by any of the following: 

• Email: SF1.060303D@noaa.gov. 

Include in the subject line the following 

identifier: Atlantic HMS FMP. 

• Mail: 1315 East-West Highway, 

Silver Spring, MD 20910. Please mark 

the outside of the envelope ‘‘Comments 

on Draft HMS FMP.’’

• Fax: 301–427–2592. 

• Federal e-Rulemaking Portal: http:// 

www.regulations.gov. 

Copies of the draft HMS FMP and 

other relevant documents are available 

on the Highly Migratory Species 

Management Division’s website at 

www.nmfs.noaa.gov/sfa/hms or by 

contacting Karyl Brewster-Geisz at 301–

713–2347. 

FOR FURTHER INFORMATION CONTACT: For 

more information concerning the draft 

Consolidated HMS FMP and its 

proposed rule contact: Karyl BrewsterGeisz, Margo Schulze-Haugen, or 

Heather Stirratt at 301–713–2347 or fax 

301–713–1917; Russ Dunn at 727–824–

5399 or fax 727–824–5398; or Mark 

Murray-Brown at 978–281–9260 or fax 

978–281–9340. For information 

regarding the rescheduled AP meeting 

contact Heather Stirratt at the specified 

number above. 

SUPPLEMENTARY INFORMATION: The 

Atlantic HMS fisheries are managed 

under the dual authority of the 

Magnuson-Stevens Fishery 

Conservation and Management Act 

(Magnuson-Stevens Act) and the