10030 Federal Register / Vol. 60, No. 36 / Thursday, February 23, 1995 / Rules and Regulations

Dated: February 6, 1995.

Bob Armstrong

Assistant Secretary of the Interior.

[FR Doc. 95–4345 Filed 2–22–95; 8:45 am]

BILLING CODE 4310–JA-P

Office of the Secretary

43 CFR Part 2

Records and Testimony; Freedom of

Information Act

CFR Correction

In title 43 of the Code of Federal

Regulations, parts 1 to 999, revised as of

October 1, 1994, the text for appendix

B to part 2 was inadvertently omitted.

On page 35, following the text of

appendix A, appendix B should read as

follows:

Appendix B to Part 2—Bureaus and

Offices of the Department of the Interior

1. Bureaus and Offices of the Department

of the Interior. (The address for all bureaus

and offices, unless otherwise indicated, is

U.S. Department of the Interior, Washington,

DC 20240.)

Secretary of the Interior, Office of the

Secretary

Office of Administrtative Services (for Office

of the Secretary components)

Assistant Secretary, Territorial and

International Affairs

Commissioner, Bureau of Indian Affairs

Director, U.S. Fish and Wildlife Service

Director, National Park Service, P.O. Box

37127, Washington, DC, 20013–7127

Commissioner, Bureau of Reclamation

Director, Bureau of Land Management

Director, Minerals Management Service

Director, Bureau of Mines, Columbia Plaza,

2401 E Street NW., Washington, DC 20241

Director, Geological Survey, The National

Center, Reston, VA 22092

Director, Office of Surface Mining

Reclamation and Enforcement

Director, Office of Hearings and Appeals,

4015 Wilson Blvd., Arlington, VA 22203

Inspector General, Office of Inspector General

Solicitor, Office of the Solicitor

2. Freedom of Information Officers of the

Department of the Interior. (The address for

all Freedom of Information Officers, unless

otherwise indicated, is U.S. Department of

the Interior, Washington, DC 20240.)

Director, Office of Administrative Services

(for Office of the Secretary components),

U.S. Department of the Interior

Director, Office of Administration, Bureau of

Indian Affairs

Freedom of Information Act Officer, Bureau

of Land Management

Assistant Director, Finance and Management,

Bureau of Mines, Columbia Plaza, 2401 E

Street NW., Washington, DC 20241

Freedom of Information Act Officer, Bureau

of Reclamation

Chief, Division of Media Information,

National Park Service

Chief, Regulatory Development and Issues

Management, Office of Surface Mining

Reclamation and Enforcement

Chief, Directives Management Branch, Policy

and Directives Management, U.S. Fish and

Wildlife Service,

Chief, Paperwork Management Unit, U.S.

Geological Survey, The National Center,

Reston, VA 22092

Freedom of Information Act Officer, Minerals

Management Service, 12203 Sunrise Valley

Drive, Reston, VA 22091

Information Officer, Office of Inspector

General

3. Office of Hearings and Appeals—Field

Offices:

Administrative Law Judge, 710 Locust St.,

Federal Building, Suite 116, Knoxville, TN

37902

Administrative Law Judges, 6432 Federal

Bldg., Salt Lake City, UT 84138

Administrative Law Judge, 2901 N. Central

Ave., Suite 955, Phoenix, AZ 85012–2739

Administrative Law Judge, 2020 Hurley Way,

Suite 150, Sacramento, CA 95825

Administrative Law Judges, Bishop Henry

Whipple Federal Building, 1 Federal Drive,

rooms 674 and 688, Fort Snelling, MN

55111

Administrative Law Judge, 1700 Louisiana

N.E., Suite 220, Albuquerque, NM 87110

Administrative Law Judge, 215 Dean A.

McGee Ave., room 507, Oklahoma City, OK

73102

Administrative Law Judge (Indian Probate),

Federal Bldg. & Courthouse, 515 9th St.,

Suite 201, Rapid City, SD 57701

Administrative Law Judge (Indian Probate),

Federal Bldg. & Courthouse, Rm. 3329, 316

N. 26th St., Billings, MT 59101

4. Office of the Solicitor—Field Offices.

Regional Solicitors

Regional Solicitor, U.S. Department of the

Interior, 701 C Street, Anchorage, AK

99513

Regional Solicitor, U.S. Department of the

Interior, Room E–2753, 2800 Cottage Way,

Sacramento, CA 95825

Regional Solicitor, U.S. Department of the

Interior, P.O. Box 25007, Denver Federal

Center, Denver, CO 80225

Regional Solicitor, U.S. Department of the

Interior, Richard B. Russell Federal

Building, 75 Spring Street, SW., Suite

1328, Atlanta, GA 30303

Regional Solicitor, U.S. Department of the

Interior, Suite 612, One Gateway Center,

Newton Corner, MA 02158

Regional Solicitor, U.S. Department of the

Interior, Room 3068, Page Belcher Federal

Building, 333 West 4th Street, Tulsa, OK

74103

Regional Solicitor, U.S. Department of the

Interior, Lloyd 500 Building, Suite 607, 500

N.E. Multnomah, Portland, OR 97232

Regional Solicitor, U.S. Department of the

Interior, Suite 6201, Federal Building, 125

South State Street, Salt Lake City, UT

84138

Field Solicitors

Field Solicitor, U.S. Department of the

Interior, Suite 150, 505 North Second St.,

Phoenix, AZ 85004

Field Solicitor, U.S. Department of the

Interior, P.O. Box M, Window Rock, AZ

86515

Field Solicitor, U.S. Department of the

Interior, Box 36064, 450 Golden Gate

Avenue, Room 14126, San Francisco, CA

94102

Field Solicitor, U.S. Department of the

Interior, Box 020, Federal Building, U.S.

Courthouse, 550 West Fort Street, Boise, ID

83724

Field Solicitor, U.S. Department of the

Interior, 686 Federal Building, Twin Cities,

MN 55111

Field Solicitor, U.S. Department of the

Interior, Room 5431, Federal Building, 316

N. 26th Street, Billings, MT 59101

Field Solicitor, U.S. Department of the

Interior, P.O. Box 1042, Santa Fe, NM

87504

Field Solicitor, U.S. Department of the

Interior, Osage Agency, Grandview

Avenue, Pawhuska, OK 74056

Field Solicitor, U.S. Department of the

Interior, Suite 502J, U.S. Post Office and

Courthouse, Pittsburgh, PA 15219

Field Solicitor, U.S. Department of the

Interior, P.O. Box 15006, Knoxville, TN

37901

Field Solicitor, U.S. Department of the

Interior, 1100 South Fillmore, Amarillo,

TX 79101

Field Solicitor, U.S. Department of the

Interior, 603 Morris Street, 2nd Floor,

Charleston, WV 25301.

[52 FR 45593, Nov. 30, 1987, as amended at

53 FR 16128, May 5, 1988; 58 FR 48973,

Sept. 21, 1993]

BILLING CODE 1505-01-D

Bureau of Reclamation

43 CFR Part 426

[RIN 1006–AA33]

Administrative Fee Provision of the

Acreage Limitation Rules and

Regulations

AGENCY: Bureau of Reclamation,

Interior.

ACTION: Final rule.

SUMMARY: The purposes of this rule are

to improve compliance with the form

submission requirements of the

Reclamation Reform Act of 1982 (RRA)

and the Acreage Limitation Rules and

Regulations in order to ensure that

irrigation water is delivered only to

eligible landholders (landowners and

lessees), and to recoup administrative

costs that the Bureau of Reclamation

(Reclamation) incurs due to

noncompliance with the RRA reporting

requirements. The rule adds a section

that imposes fees on districts when they

do not meet statutory and regulatory

requirements for submitting RRA forms.

EFFECTIVE DATE: March 27, 1995.
Federal Register / Vol. 60, No. 36 / Thursday, February 23, 1995 / Rules and Regulations 10031

FOR FURTHER INFORMATION CONTACT:

Alonzo Knapp, Manager, Reclamation

Law, Contracts, and Repayment Office,

Bureau of Reclamation, Attention: D–

5200, PO Box 25007, Denver, CO 80225,

Telephone: (303) 236–1061, extension

224.

SUPPLEMENTARY INFORMATION: The RRA

limits the amount of owned land on

which a landholder can receive

irrigation water and places a limit on

the amount of leased land that can

receive such water at a subsidized water

rate. In order to ensure compliance with

the ownership limitations and the

limitations on subsidies, certain

statutory and regulatory requirements

must be met.

One of these requirements applies to

all landholders whose landholdings in

districts subject to the acreage limitation

provisions total more than 40 acres.

These landholders must complete RRA

certification or reporting forms before

receiving irrigation water. The forms

must be completed annually and

submitted to each district in which the

landholder receives irrigation water.

Landholders must disclose on the forms

all the land they own and lease directly

or indirectly in Reclamation projects

that are subject to the acreage limitation

provisions. The forms must be

resubmitted whenever a landholding

change occurs. If a landholding does not

change, a verification form to that effect

must be submitted each year.

While the RRA and the Acreage

Limitation Rules and Regulations (43

CFR Part 426) set limits on the receipt

of irrigation water and establish

requirements that must be met in order

to receive such water, the current rules

do not address situations in which

water has been delivered to landholders

who failed to meet all the requirements

and thus, were ineligible to receive the

water. These situations were not

addressed because the RRA does not

contemplate such deliveries.

Districts, rather than Reclamation,

generally control the deliveries of

irrigation water to landholders. Under

their contracts with the United States,

districts are legally obligated not to

deliver irrigation water to landholders

who do not meet the eligibility

requirements of the RRA.

With respect to the form requirements

discussed previously, § 426.10(k)

specifically states that failure by

landholders to submit the required

certification or reporting form(s) will

result in loss of eligibility to receive

irrigation water. However, during its

water district reviews, Reclamation has

found that in some instances, districts

have delivered irrigation water to

landholders who had failed to meet the

form requirements and other

requirements of the law and rules.

In 1988, Reclamation adopted a

compensation policy whereby full-cost

charges were assessed for irrigation

water that had been delivered to

ineligible landholders. This policy is

based on the legal theory of conversion

in that when irrigation water is

delivered to ineligible recipients, it is an

unlawful conversion of the

Government’s property interest in the

water, and the Government is therefore

entitled to be compensated for the

conversion. Since Reclamation cannot

recover the water that was delivered to

the ineligible recipients, it has been

Reclamation’s position that it is entitled

to recover the value of its property

interest in that water and that the fullcost water rate prescribed in the RRA is

an appropriate measure of the water’s

value.

In 1993, Reclamation decided to

review certain agency policies, one of

which was the full-cost compensation

policy for RRA form violations. The

Commissioner of Reclamation asked the

Department of the Interior’s Office of the

Solicitor whether Reclamation is

permitted to impose charges other than

full-cost compensation charges for such

violations. In a July 23, 1993,

memorandum, the Associate Solicitor,

Division of Energy and Resources,

advised the Commissioner that several

laws ‘‘* * * authorize Reclamation to

promulgate regulations necessary to

carry out its mission, including those

which would assess fees. This means

that Reclamation may, by regulation,

impose administrative fees or other

charges designed to recover the costs it

incurs for processing improperly

submitted forms or for collecting forms

from those who have not submitted

them.’’ The Associate Solicitor further

concluded that ‘‘* * * Reclamation has

considerable discretion in determining

how to calculate those costs, so long as

the charges imposed bear a

demonstrable relationship to the costs

incurred by the agency and have the

intended effect of improving

compliance with the Act and achieving

congressional objectives.’’

Based on the Associate Solicitor’s

conclusions, Reclamation decided to

amend the Acreage Limitation Rules

and Regulations by adding a provision

to impose assessments to recover its

administrative costs when landholders

do not comply with the RRA form

requirements. Reclamation notified the

public of its intent in the Federal

Register (see 58 FR 59427) Nov. 9, 1993,

and published the proposed rule at 59

FR 33251, June 28, 1994.

Summary of Amendment to the Rules

The amendment to the Acreage

Limitation Rules and Regulations

provides that Reclamation will assess a

district for administrative costs when

RRA forms are not submitted before

receipt of irrigation water. The

assessment will be applied on a yearly

basis in each district for each

landholder that failed to comply with

the form requirements. A district will

also be assessed for administrative costs

when corrections to RRA forms are not

provided within a 60-day grace period.

The assessment will be applied on a

yearly basis for each landholder for

which corrected forms are not provided

within the grace period. These

assessments for administrative costs

will replace the full-cost charges that

Reclamation has assessed in the past for

form violations under its compensation

policy. The administrative cost

assessments will not be subject to the

underpayment interest component set

forth in § 426.23.

The assessment for administrative

costs shall be set periodically on the

basis of the average costs associated

with performing activities to address

RRA form violations. The assessment

reflects the average direct and indirect

costs incurred Reclamation-wide for: (1)

Communicating with district

representatives or landholders to obtain

missing or corrected forms, (2) assisting

landholders in completing certification

or reporting forms for the period of time

they were not in compliance with the

form requirements, (3) performing

onsite visits to determine if irrigation

water deliveries have been terminated to

landholders that failed to submit the

required forms, and (4) performing other

activities necessary to address form

violations. Initially the amount of the

assessment will be $260. The amount is

based on a review of the costs

Reclamation incurred in 1991, 1992,

and 1993 performing activities to

address RRA form violations. The

assessment will be reviewed at least

once every 5 years and, if needed, will

be adjusted to reflect new cost data.

As with other assessments, districts

will be held responsible for payment of

the assessments because of their

contractual obligation with the United

States. Charges collected through the

imposition of assessments for

administrative costs will be credited to

the general fund of the Treasury as

miscellaneous receipts.

Payment of the assessments set forth

in the proposed rule does not exempt

districts and landholders from the form

requirements of the RRA or Acreage

Limitation Rules and Regulations.
10032 Federal Register / Vol. 60, No. 36 / Thursday, February 23, 1995 / Rules and Regulations

Districts are not permitted to continue

water deliveries to ineligible recipients

simply because they are willing to pay

the assessments. Reclamation will take

all necessary actions to prevent the

delivery of irrigation water to ineligible

land.

Comments About the Proposed Rule

During the public comment period

from June 28, 1994, through August 29,

1994, Reclamation received 48

responses on the proposed rule. The

responses were submitted by or on

behalf of 40 districts, 7 water user

associations, 5 landholders, one Federal

agency, and one U. S. Congressman.

Approximately 80 percent of the

respondents either approved of the

proposed rule entirely or in part. Many

of these respondents stated that the

administrative cost assessment will

provide a reasonable and equitable

means for addressing RRA form

violations and will be a vast

improvement over Reclamation’s past

policy of assessing compensation

charges for nonsubmission of RRA

forms.

Approximately 20 percent of the

respondents were opposed to the rule,

mainly because they think the

administrative cost assessments are

unnecessary or excessive. Several

respondents objected to the rule because

they do not think Reclamation has the

legal authority to impose such

assessments.

General Comments

Following are the general comments

received about the proposed rule and

our response to each:

Comment 1: Two respondents

commented that the rule should make it

clear that the administrative cost

assessment will be the sole economic

ramification for RRA form violations.

Response: The respondent’s comment

has not been accommodated because we

think such language would be

superfluous. First, the main purpose of

the rule is to set forth the charges that

will be assessed in cases of RRA form

violations, which it does. In addition, it

was stated previously in this preamble

that the administrative cost assessment

will replace the compensation charges

Reclamation previously assessed for

form violations. This statement clearly

sets forth Reclamation’s intent with

regard to assessments for form

violations.

Comment 2: Four respondents

commented that the rule should clearly

state that the administrative cost

assessments will be applied

prospectively only.

Response: The rule will be applied

prospectively. The rule will be effective

March 27, 1995. This date is printed at

the beginning of this preamble, under

EFFECTIVE DATE. We do not think it is

necessary to repeat the effective date in

the rule itself.

Comment 3: Nineteen respondents

commented that the administrative cost

assessments should be applied

retrospectively to past RRA form

violations instead of the compensation

rate.

Response: As stated in the response to

the preceding comment, the rule will be

applied prospectively. However,

Reclamation is currently considering a

plan whereby issued and pending

compensation bills for RRA form

violations would be reviewed using the

dollar amount in § 426.24(e) as the basis

for possible action.

Comment 4: One respondent

commented that Reclamation needs to

define ‘‘$260 per form violation’’ and

asked how many RRA forms are

required of a farmer in a single year.

Response: We assume the phrase the

respondent is referring to is from a

statement in the preamble of the

proposed rule. The complete sentence

reads as follows: ‘‘The assessment for

administrative costs is initially set at

$260 per form violation.’’ The sentence

in question is a general statement, the

main purpose of which was to make the

reader aware of the amount of the

administrative cost assessment; i.e.,

$260. Sections 426.24(a) and (b)

describe how the assessment will be

applied to form nonsubmissions and

form errors.

Regarding the respondent’s question,

a landholder generally needs to submit

just one RRA form annually; however,

in some cases, additional forms may be

required. Regardless of the number of

forms required, the $260 assessment for

forms nonsubmission will be based on

a landholder’s entire RRA form effort for

the water year in question, for each

district in which land is held. For

example, if Landholder A held land in

District B and received irrigation water

in 1995 despite the fact that he/she

submitted neither of two RRA forms

required for that water year, the

assessment would be $260, not $520.

Comment 5: One respondent

commented that the proposed rule did

not adequately comply with the

Regulatory Flexibility Act because it did

not explain why the rule would not

have a significant effect on a substantial

number of small entities.

Response: The explanatory language

referred to by the respondent has been

added to the preamble of this final rule.

By doing so, Reclamation believes it is

in full compliance with the

requirements of the Regulatory

Flexibility Act.

Comment 6: Five respondents

questioned Reclamation’s authority to

impose administrative cost assessments.

Several of the respondents commented

that the assessments are actually

penalties, and since the RRA does not

include a penalty provision, the

assessments cannot be charged.

Response: Reclamation is authorized

to promulgate regulations and to collect

all data necessary to carry out its

mission. 43 U.S.C. § 373; 43 U.S.C. 390

ww(c); 31 U.S.C. § 9701.

Reclamation determines eligibility to

receive water, in large part, based on the

information provided on RRA

certification and reporting forms.

Section 426.10(k) of the regulations

requires that failure by landholders to

submit the required certification or

reporting form(s) will result in loss of

eligibility to receive water.

In issuing the administrative fee rule,

Reclamation has properly exercised its

authority to promulgate regulations for

ensuring the delivery of irrigation water

only to eligible landholders. The fee is

intended to improve compliance with

RRA certification requirements and

ensure that irrigation water is delivered

only to those landholders eligible under

the RRA and to recoup certain

administrative costs Reclamation incurs

due to noncompliance with RRA

reporting requirements.

Reclamation, as a Federal agency, also

may impose remedial measures. Courts

have recognized an agency’s authority to

impose measures if they reasonably

relate to the purpose of the enabling

statute and further congressional

objectives. Gold Kist, Inc. v.

Department, 741 F.2d 344, 348 (11th

Cir. 1984); West v. Bergland, 611 F.2d

710, 725 (8th Cir. 1980); United States

v. Frame, 885 F.2d 1119 (3d Cir. 1989).

The $260 charge provided for in this

rule is an administrative fee designed to

improve compliance with the acreage

limitation requirements and to recover

Reclamation’s costs in helping

landholders to meet the eligibility

requirements of the Act. As such, the fee

is remedial in nature rather than

punitive.

In addition, Reclamation possesses

authority to ‘‘* * * prescribe

regulations establishing the charge for a

service or thing of value provided by the

agency.’’ 31 U.S.C. § 9701. As discussed

above, under Reclamation law, any

landholder who received irrigation

water prior to submitting the requisite

certification forms failed to meet the

criteria which Congress established for

eligibility. When Reclamation becomes
Federal Register / Vol. 60, No. 36 / Thursday, February 23, 1995 / Rules and Regulations 10033

aware of the violation and undertakes a

variety of additional activities to obtain

the forms and the necessary

information, Reclamation is helping that

landholder establish eligibility for

receiving the ‘‘service or thing of

value’’—irrigation water. Certainly,

these additional Reclamation activities

are valuable services the agency

provides districts and landholders who

would otherwise not be in compliance

with applicable Federal laws,

regulations and contracts.

Finally, it should be noted that

Reclamation’s authority to promulgate

these regulations was not diminished by

the court’s decision in Orange Cove

Irrigation District v. United States, 28

Fed. Cl. 790 (1993). That case did not

involve the issue of Reclamation’s

authority to assess administrative fees or

to issue rules. The plaintiff in that case,

Orange Cove Irrigation District (OCID),

brought suit against the United States to

recover money it paid to Reclamation at

the time OCID renewed its water service

contract in 1988. Reclamation had

assessed the district full-cost charges for

water delivered in 1987 to certain

district landholders before they

submitted RRA certification forms. On

August 12, 1993, the court rendered its

decision in favor of OCID. The case was

resolved on the narrow issue of breach

of contract and should only be read in

light of facts specific to that controversy.

Although not necessary to its holding,

the Court also determined that the

assessment of full cost constituted an

unauthorized penalty under the facts of

this case and that the United States had

not violated any notice and rulemaking

requirements of the Administrative

Procedure Act.

Comment 7: Twenty-one respondents

commented that the rule should include

a provision to increase the 40-acre

exemption threshold for RRA form

requirements. Ten of the respondents

suggested the threshold be increased to

320 acres; six of them suggested a 160-

acre threshold. The remainder were not

specific as to what the revised threshold

should be. Many of the respondents

stated that an increased threshold

would help to decrease the cost and

burden placed on districts and

landholders and yet provide adequate

means for proper enforcement of the

RRA. Several respondents also stated

that Reclamation ensured water users in

the past that the 40-acre threshold

would be increased. One respondent

commented that the 40-acre threshold

should not be reduced.

Response: As stated in the preamble

to the proposed rule, the 40-acre

threshold issue is outside the scope of

this rulemaking. This rulemaking action

was limited to administrative cost

assessments in an effort to expedite the

process. Reclamation is currently

engaged in a rulemaking action in

which we will review the Acreage

Limitation Rules and Regulations in

their entirety. The exemption threshold

will be addressed in that rulemaking.

The proposed rule for that rulemaking

action is scheduled to be published in

February 1995.

Comment 8: One respondent asked

why the Government tells landholders

the amount of land they may farm in

order to make a living.

Response: The RRA does not limit the

amount of land landholders may farm.

It does, however, limit the amount of

owned land on which any one

landholder can receive irrigation water

from Reclamation projects and the

amount of leased land that can receive

such water at a rate that is less than the

full-cost rate. The reason for this is to

ensure that the benefits from the

Reclamation program are widely

distributed rather than concentrated in

the hands of a few landholders.

Specific Comments

The following comments refer to

specific provisions within the proposed

rule and are followed by Reclamation’s

response to each.

Section 426.24(a)—Forms Submittal

Comment 1: Eleven respondents

commented that the rule needs to define

the terms ‘‘direct landholder’’ and

‘‘indirect landholder,’’ as used in

§§ 426.24(a) and (b). Several of the

respondents stated that the words

‘‘direct’’ and ‘‘indirect’’ should be

deleted because the term ‘‘landholder’’

is sufficient by itself.

Response: The terms ‘‘direct

landholder’’ and ‘‘indirect landholder’’

were included in the proposed rule so

readers would be aware that in applying

the administrative cost assessment to

legal entities, Reclamation will treat

compliance by an entity independently

from compliance by its part owners or

beneficiaries. For example, if three

shareholders in a corporation submit

their RRA forms, but the entity and the

remaining two shareholders do not, the

administrative cost assessment would

be applied to the entity and each of the

two shareholders that were not in

compliance, for a total of $780.

Reclamation has decided to clarify

§§ 426.24(a) and (b) by deleting the

words ‘‘direct’’ and ‘‘indirect’’ and

adding a sentence to address application

of the administrative cost assessment

when legal entities are involved as

described above.

Comment 2: One respondent

commented that if an entity completes

the required RRA form, but one or more

of the part owners does not, this should

be treated as a form correction and not

failure to file a form.

Response: Part owners of legal entities

are required to file forms separately

from those of the entities in which they

have an interest. The reason for this is

that the acreage limitation entitlements

and other requirements of Reclamation

law apply to part owners in the same

manner as they apply to any other

landholder. Since the part owners may

own or lease land in addition to the

land that is attributable to them through

interest in the entity, it is not sufficient

for the entity’s form to be submitted in

order to determine if all acreage

limitation entitlements have been met.

Therefore, if a part owner does not

submit the required RRA forms, this is

not viewed as a correctable error on the

part of the entity, but rather as

nonsubmission of forms by the part

owner. Thus, in the case presented by

the respondent, the $260 administrative

cost assessment would be applied for

each part owner that received irrigation

water without having submitted the

required forms. However, an additional

assessment would not be applied as a

result of the entity’s actions, because it

was in compliance with the RRA form

requirements.

Comment 3: One respondent

requested that the following statement

in the preamble to the June 28, 1994,

proposed rule be clarified: ‘‘A district

will be assessed for administrative costs

when RRA forms are not submitted

prior to receipt of irrigation water.’’ The

respondent questioned whether this

statement referred to the receipt of

irrigation water to landowners or to the

district.

Response: The statement refers to the

receipt of irrigation water by

landholders subject to the RRA form

requirements. We believe the language

in § 426.24(a) is clear on this point;

therefore, the rule was not revised to

accommodate the comment.

Section 426.24(b)—Forms Corrections

Comment 1: Four respondents

commented about the 45-day grace

period provided for form corrections.

One respondent thought landholders/

districts should be given a longer period

of time in which to correct RRA forms

before imposition of the $260

assessment. Three of the landholders

thought the 45-day grace period was

fair.

Response: This section has been

revised to increase the length of the

grace period from 45 days to 60 days.
10034 Federal Register / Vol. 60, No. 36 / Thursday, February 23, 1995 / Rules and Regulations

The grace period was lengthened to

account for any additional time districts

and landholders may need for mailing

the forms in question. This section was

also revised to clarify that the 60-day

grace period will be based on calendar

days rather than working days.

Comment 2: Three respondents

commented that the $260 assessment for

administrative costs is excessive for

cases where RRA forms are not

corrected.

Response: Reclamation believes the

$260 assessment is reasonable to cover

the additional costs it incurs to obtain

corrections on RRA forms. In addition,

any financial hardships can be avoided

because the assessment will not be

applied if the corrected forms are

submitted within the 60-day grace

period.

Comment 3: One respondent

understood the provision to mean that

$260 would be assessed for every error

Reclamation identified on an RRA form.

Response: The assessment will be

applied on a yearly basis for each

landholder for which corrected forms

are not submitted within the grace

period. Therefore, if Landholder A did

not submit timely corrections for four

errors on his 1995 forms, the assessment

would be $260, not $1,040. The

application of the $260 assessment for

form corrections is explained in

§ 426.24(b); therefore, no revisions were

made to accommodate this comment.

Comment 4: Three respondents

commented that mistakes occur on RRA

forms because the forms are very

complicated and are revised annually.

Therefore, they were opposed to

assessments for form errors.

Response: The assessment for form

corrections will not be applied

immediately when Reclamation

identifies errors on landholder forms.

Landholders/districts have 60 days in

which to submit corrected forms before

the $260 assessment will be charged. To

the extent possible, Reclamation is also

willing to provide assistance if help is

needed in completing RRA forms.

Because of the preceding, we find the

rule to be reasonable, even if the forms

are perceived by some to be difficult to

complete.

Comment 5: Six respondents

commented that the $260 assessment for

RRA form corrections should not be

charged for inadvertent errors. Four of

the respondents thought the assessment

was appropriate only in cases involving

fraud.

Response: Reclamation realizes that

inadvertent errors will sometimes be

made on RRA forms. On the other hand,

these errors cannot be overlooked

because complete and accurate

information is needed in order to

determine if a landholder is within

applicable entitlements and meets other

requirements of the RRA. Section

426.24(b) resolves both the potential for

inadvertent errors and the need for

accurate information by providing

landholders a 60-day grace period in

which to submit corrected forms before

imposition of the $260 assessment. This

assessment is not appropriate in cases

involving fraud because the

consequences for fraudulent actions are

set forth in 18 U.S.C. 1001. These

consequences, as related to the RRA

forms, are discussed in § 426.10(j).

Comment 6: Two respondents did not

think the assessment would help reduce

the number of RRA form problems. One

of the respondents thought the

assessment would only cause

antagonism. The other respondent

stated that the fee would be too high in

cases where the errors were inadvertent

and too low in cases of fraud.

Response: Reclamation believes the

assessment will provide an equitable

method for addressing errors on RRA

forms while recovering the incremental

costs it incurs to address such problems.

We also think the assessment is

reasonable, and in most cases, will

provide an incentive for landholders

and districts to complete their forms

properly in future water years. The

applicability of the administrative cost

assessment to fraudulent actions is

discussed in the response to the

preceding comment.

Comment 7: Three respondents

maintained that the assessment for RRA

form corrections should not be a flat fee,

but should be based on the severity of

the error.

Response: All the information

landholders are required to disclose on

the forms is needed for Reclamation to

have adequate information to determine

if landholders are in compliance with

the acreage limitations and enforce

other requirements of the RRA.

Therefore, all omissions and errors

identified by Reclamation are

considered to be of equal severity. It

must also be remembered that even in

those cases where errors are perceived

to be insignificant, the $260 assessment

will not be charged if corrections are

made within the grace period.

Comment 8: One respondent asked if

the assessment for administrative costs

will be applied to RRA form errors as

well as to the nonsubmission of such

forms.

Response: Section 426.24(a) provides

for the imposition of the $260

administrative cost assessment in cases

of form nonsubmission. Section

426.24(b) provides for the assessment in

cases of form errors. However, in the

case of errors, the assessment will not be

charged if corrected forms are submitted

within the grace period. The assessment

in § 426.24(a) will be applied

independently from the assessment in

§ 426.24(b). Sections 426.24(a) and (b)

were revised to clarify this point.

Comment 9: One respondent

commented that the assessment for form

corrections should be applied to

landholders for whom corrected forms

are not provided within the grace period

only if irrigation water has been

received by the landholder.

Response: Reclamation agrees with

this comment and § 426.24(b) has been

revised accordingly. However,

Reclamation will proceed to prepare the

bill for the administrative cost

assessment after expiration of the grace

period. If the landholder did not in fact

receive irrigation water during the year

in question, the district will need to

provide evidence to this effect before

the assessment will be retracted.

Section 426.24(c)—Parties Responsible

for Paying Assessments

Comment 1: Twenty respondents

disagreed with this provision. For legal

reasons and from the standpoint of

equity, they think Reclamation should

collect the payment of administrative

cost assessments from landholders

rather than districts.

Response: This comment has not been

accommodated. Reclamation contracts

almost exclusively with districts rather

than individual water users. In general,

districts agree in their contracts that the

delivery of irrigation water is subject to

Reclamation law as amended and

supplemented. Based on the preceding,

Reclamation will hold districts

ultimately responsible for payment of

the administrative cost assessments.

However, § 426.24(c) does not preclude

districts from collecting the assessments

from the involved landholders.

Section 426.24(e)—Assessment for

Administrative Costs

Comment 1: One respondent thought

that it was unfair to impose the same fee

on all districts in every instance of

noncompliance.

Response: The type of violations for

which the assessments will be charged

are the same in all districts. Therefore,

we believe it is fair to establish

Reclamation’s average costs and impose

the same assessment westwide. In fact,

landholders and districts have

frequently requested that such a

uniform fee be established.

Comment 2: One respondent

suggested that the bill for each
Federal Register / Vol. 60, No. 36 / Thursday, February 23, 1995 / Rules and Regulations 10035

landholder be based on an hourly rate

that is consistent Reclamationwide.

Response: This comment has not been

accommodated. Reclamation analyzed

the costs it incurred in the past to

address RRA form violations and has

determined it is fair and reasonable to

charge an average assessment that is

uniform in all districts.

Comment 3: Two respondents

commented that the $260 assessment

does not accurately reflect

Reclamation’s costs to bring landholders

into compliance because Reclamation

only identifies the violations; the

district performs all the other work.

Response: Reclamation acknowledges

that districts frequently take actions to

bring landholders into compliance.

However, in most cases, Reclamation

also performs additional activities to

address noncompliance problems.

Examples of such activities were listed

previously in this preamble. Districts

may not be aware of these activities

because they are not always conducted

at the site of the district office.

Comment 4: One respondent did not

think it was fair that Reclamation can

adjust the administrative cost

assessment every 5 years without input

from the districts.

Response: The basic methodology for

determining the assessment was set

forth in the proposed rule, which was

open for public comment. The

methodology was explained again

previously in this preamble. Since

adjustments will generally only be made

to reflect new cost data and a notice of

the revised assessment will be

published in the Federal Register, we

do not think another comment period is

necessary before the adjustments are

made.

Comment 5: One respondent

questioned whether the costs will

continually increase until they are equal

to the compensation rate.

Response: Reclamation’s goal is to

establish fair and reasonable charges to

recover the costs it incurs to address

RRA form violations. The process will

be reexamined should the assessments

ever reach a point where this goal can

no longer be achieved.

Comment 6: One respondent

commented that the administrative cost

assessment should not be based on

1991, 1992, and 1993 costs because

Reclamation keeps changing the RRA

forms, which is confusing to

landholders.

Response: The changes that were

made to the RRA forms during 1991,

1992, and 1993 were relatively minor.

Reclamation finds no evidence to

support a conclusion that the

noncompliance level increased because

of form revisions.

Comment 7: One respondent

commented that the rule is too vague

with regard to the basis for the

administrative cost assessment.

Response: Reclamation agrees that the

rule does not provide a detailed

description of the basis for the

administrative cost assessment.

However, it would be inappropriate to

include the complete cost analysis in

either the rule or the preamble. In the

final rule, the description has been

deleted from § 426.24(e). However, it

has been retained in the preamble so

readers will be aware of the general

basis for the $260 assessment.

Comment 8: One respondent wanted

clarification as to whether the

administrative cost assessment is a

combination of a penalty and costs

incurred by Reclamation.

Response: The assessment is based

strictly on Reclamation’s costs and is

remedial in nature. It does not include

a penalty factor.

Comment 9: One respondent

commented that overhead costs should

not be included in the administrative

cost assessment.

Response: Reclamation thinks it is

reasonable to recover all additional

costs incurred to address RRA form

violations. Overhead costs are part of

these costs; therefore, they have been

included in the assessment.

Comment 10: One respondent

commented that the administrative cost

assessment should not include the cost

of Reclamation’s audits, because that is

the Government’s job.

Response: The assessment does not

include costs for reviewing a district’s

compliance with the RRA or audits of

individuals. It includes only those

additional costs Reclamation incurs to

address RRA form violations after they

have been found.

Comment 11: One respondent

commented that some districts are not

always able to terminate deliveries of

irrigation water to just those

landholders that have not submitted the

required RRA forms. The reason for this

is that several landholders, some of

whom may be in compliance, are

located on the same ditch with the same

delivery point.

Response: Despite the circumstances

described by the respondent, districts

are not permitted to deliver irrigation

water to landholders that are not in

compliance with the RRA form

requirements. In the case described,

districts may need to take extra

measures to encourage all landholders

located on the same ditch to submit the

required forms. To the extent possible,

Reclamation will work with districts to

help resolve such situations.

Comment 12: Two respondents stated

that Reclamation is not permitted to

terminate water deliveries in cases

where landholders fail to submit the

required forms. The respondents

maintain that landholders must first be

provided with a notice or hearing before

such deliveries can be terminated.

Response: These comments were not

accommodated. Reclamation believes it

is permitted to terminate water

deliveries in such cases because: (1)

Pursuant to the requirements in §§ 206,

224(c), and 228 of the RRA and

§ 426.10(e) of the Acreage Limitation

Rules and Regulations, landholders are

required to submit RRA forms as a

condition for receipt of irrigation water.

(2) The consequence for noncompliance

with this requirement has been clearly

set forth in § 426.10(k) since the Acreage

Limitation Rules and Regulations were

first promulgated in 1983. That is,

failure to submit the required forms

results in loss of eligibility to receive

irrigation water by the landholder.

As stated previously, Reclamation is

currently engaged in a rulemaking

action in which we will review the

Acreage Limitation Rules and

Regulations in their entirety. As part of

that rulemaking action, we will consider

the comment regarding notices or

hearings prior to termination of water

deliveries.

Executive Order 12866

This rule does not constitute a

significant regulatory action under

Executive Order 12866, and therefore

does not require review by the Office of

Management and Budget.

National Environmental Policy Act

Neither an environmental assessment

nor an environmental impact statement

is required for this rulemaking because,

pursuant to 40 CFR 1508.4 and

Departmental Manual part 516 DM 6,

Appendix 9, § 9.4.A.1, this action is

categorically excluded from the

provisions of the National

Environmental Policy Act.

Paperwork Reduction Act

The information collection

requirements contained in this rule have

been approved by the Office of

Management and Budget as is required

by 44 U.S.C. 3501 et seq. and assigned

clearance numbers 1006–0005 and

1006–0006.

Small Entity Flexibility Analysis

Reclamation identified approximately

500 landholders with RRA form

violations during the 1990, 1991, and
10036 Federal Register / Vol. 60, No. 36 / Thursday, February 23, 1995 / Rules and Regulations

1992 water years. This represents 1.1

percent of the 45,000 landholders

subject to the RRA form requirements

and 0.2 percent of the 230,000

landholders in districts subject to the

RRA. The violations were found in 60

different districts, which is

approximately 20 percent of the districts

subject to the ownership and full-cost

pricing provisions of the RRA and about

10 percent of the total districts that have

entered contracts with the United States

for receipt of irrigation water.

The administrative cost assessment of

$260 will in most cases be less than the

full-cost charges that Reclamation

previously assessed for RRA form

violations pursuant to its compensation

policy. Therefore, in comparison, the

assessment will generally have a

positive economic effect on most

landholders and districts involved with

form violations.

Based on the preceding, Reclamation

has certified that the rule will not have

a significant economic effect on a

substantial number of small entities.

Small entities also are able to avoid all

negative effects by complying with the

form requirements of the RRA and

Acreage Limitation Rules and

Regulations.

Civil Justice Reform

The Department of the Interior has

certified to the Office of Management

and Budget that this proposed rule

meets the applicable standards provided

in sections 2(a) and 2(b)(2) of Executive

Order 12778.

Authorship

This proposed rule was prepared by

staff in the Reclamation Law, Contracts,

and Repayment Office, D–5200, Bureau

of Reclamation, Denver, Colorado.

List of Subjects in 43 CFR Part 426

Administrative practice and

procedure, Irrigation, Reclamation,

Reporting and recordkeeping

requirements.

For the reasons stated in the

preamble, 43 CFR Part 426 is amended

as follows:

Dated: January 11, 1995.

Elizabeth Ann Rieke,

Assistant Secretary—Water and Science.

PART 426—RULES AND

REGULATIONS FOR PROJECTS

GOVERNED BY FEDERAL

RECLAMATION LAW

1. The authority citation for Part 426

is revised to read as follows:

Authority: 43 U.S.C. 371–383; 43 U.S.C.

390aa–390zz–1; 31 U.S.C. 9701.

2. Section 426.24 is redesignated as

§ 426.25, and new section 426.24 is

added to read as follows:

§ 426.24 Assessments of administrative

costs.

(a) Forms submittal. A district will be

assessed for the administrative costs

described in paragraph (e) of this

section when irrigation water has been

delivered to landholders that did not

submit certification or reporting forms

before receiving irrigation water in

accordance with § 426.10(e). The

assessment will be applied on a yearly

basis in each district for each

landholder that received irrigation water

but failed to comply with § 426.10(e). In

applying the assessment to legal

entities, compliance by an entity will be

treated independently from compliance

by its part owners or beneficiaries. The

assessment in this paragraph will be

applied independently of the

assessment set forth in paragraph (b) of

this section.

(b) Forms corrections. Where

corrections are needed on certification

or reporting forms, the requirements of

§ 426.10(a) will be deemed to have been

met so long as the district provides

corrected forms to Reclamation within

60 calendar days of the date of

Reclamation’s written request for

corrections. A district will be assessed

for the administrative costs described in

paragraph (e) of this section when

corrected forms are not provided within

this 60-day time period. The assessment

will be applied on a yearly basis in each

district for each landholder that

received irrigation water and for whom

corrected forms are not provided within

the applicable 60-day time period. In

applying the assessment to legal

entities, compliance by an entity will be

treated independently from compliance

by its part owners or beneficiaries. The

assessment in this paragraph will be

applied independently of the

assessment set forth in paragraph (a) of

this section.

(c) Parties responsible for paying

assessments. Districts shall be

responsible for payment of the

assessments described in paragraphs (a)

and (b) of this section.

(d) Disposition of assessments. The

administrative costs assessed and

collected under paragraphs (a) and (b) of

this section will be deposited to the

general fund of the United States

Treasury as miscellaneous receipts.

(e) Amount of assessment. The

assessment for administrative costs shall

be set periodically on the basis of the

average costs associated with

performing activities to address

certification and reporting form

violations. Initially the amount shall be

$260. This assessment for

administrative costs will be reviewed at

least once every 5 years and adjusted, if

needed, to reflect new cost data. Notice

of the revised assessment for

administrative costs will be published

in the Federal Register in December of

the year the data is reviewed.

[FR Doc. 95–4416 Filed 2–22–95; 8:45 am]

BILLING CODE –94–P

FEDERAL EMERGENCY

MANAGEMENT AGENCY

44 CFR Part 64

[Docket No. FEMA–7611]

List of Communities Eligible for the

Sale of Flood Insurance

AGENCY: Federal Emergency

Management Agency (FEMA).

ACTION: Final rule.

SUMMARY: This rule identifies

communities participating in the

National Flood Insurance Program

(NFIP). These communities have

applied to the program and have agreed

to enact certain floodplain management

measures. The communities’

participation in the program authorizes

the sale of flood insurance to owners of

property located in the communities

listed.

EFFECTIVE DATES: The dates listed in the

third column of the table.

ADDRESSES: Flood insurance policies for

property located in the communities

listed can be obtained from any licensed

property insurance agent or broker

serving the eligible community, or from

the NFIP at: Post Office Box 6464,

Rockville, MD 20849, (800) 638–6620.

FOR FURTHER INFORMATION CONTACT:

Robert F. Shea, Jr., Division Director,

Program Implementation Division,

Mitigation Directorate, 500 C Street SW.,

room 417, Washington, DC 20472, (202)

646–3619.

SUPPLEMENTARY INFORMATION: The NFIP

enables property owners to purchase

flood insurance which is generally not

otherwise available. In return,

communities agree to adopt and

administer local floodplain management

measures aimed at protecting lives and

new construction from future flooding.

Since the communities on the attached

list have recently entered the NFIP,

subsidized flood insurance is now

available for property in the community.

In addition, the Director of the

Federal Emergency Management Agency

has identified the special flood hazard