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| section_id ▼ | title_number | title_name | chapter | subchapter | part_number | part_name | subpart | subpart_name | section_number | section_heading | agency | authority | source_citation | amendment_citations | full_text |
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| 14:14:4.0.1.5.67.1.24.1 | 14 | Aeronautics and Space | II | E | 385 | PART 385—STAFF ASSIGNMENTS AND REVIEW OF ACTION UNDER ASSIGNMENTS | A | Subpart A—General Provisions | § 385.1 Definitions. | FAA | [Doc. No. T-1, 49 FR 50985, Dec. 31, 1984, as amended by Amdt. 1-261, 59 FR 10061, Mar. 3, 1994; 60 FR 66726, Dec. 26, 1995; Doc. No. OST-96-1268, 61 FR 19167, May 1, 1996; Doc. No. DOT-OST-2014-0140, 84 FR 15942, Apr. 16, 2019] | Petition for review means a petition asking the appropriate Reviewing Official to exercise his or her discretionary right of review of staff action. Precedent means applicable judicial decisions and decisions by the Department, or by its predecessor where consistent with Department policy. Reviewing Official means the Assistant Secretary for Aviation and International Affairs, the General Counsel, or the Director of the Bureau of Transportation Statistics, as appropriate to the subject matter under review, but not with regard to General Counsel and Administrative Law Judge decisions made under this part. Staff action means the exercise of a function under Subparts I, II and IV of Subtitle VII of Title 49 of the United States Code (Transportation) by a staff member pursuant to assignment under this part. Staff members means officers and employees of the Department who are assigned authority under this part. | |||
| 14:14:4.0.1.5.67.1.24.2 | 14 | Aeronautics and Space | II | E | 385 | PART 385—STAFF ASSIGNMENTS AND REVIEW OF ACTION UNDER ASSIGNMENTS | A | Subpart A—General Provisions | § 385.2 Applicability. | FAA | [Doc. No. T-1, 49 FR 50985, Dec. 31, 1984, as amended at 60 FR 66726, Dec. 26, 1995; Doc. No. OST-96-1268, 61 FR 19167, May 1, 1996; Doc. No. DOT-OST-2014-0140, 84 FR 15942, Apr. 16, 2019] | This part describes the organization of the Department insofar as, pursuant to authority conferred on it by section 40113 of 49 U.S.C. Subtitle VII, the Department has adopted rules herein or elsewhere which make continuing assignments of authority with respect to any of its functions of making orders or other determinations, many of which are not required to be made on an evidentiary record upon notice and hearing or which are not the subject of contest, and Department personnel have been assigned to perform such functions. Delegations by the Secretary of Transportation to Secretarial Officers of functions under Subparts I, II, and IV of 49 U.S.C. Subtitle VII appear in 49 CFR part 1. This part also sets forth the procedures governing discretionary review by the appropriate Reviewing Official of action taken under such assignments. Nothing in this part shall be construed as precluding the Department from issuing, by appropriate order, temporary delegations of authority with respect to any functions described in this part or with respect to any other functions which can be lawfully delegated. | |||
| 14:14:4.0.1.5.67.1.24.3 | 14 | Aeronautics and Space | II | E | 385 | PART 385—STAFF ASSIGNMENTS AND REVIEW OF ACTION UNDER ASSIGNMENTS | A | Subpart A—General Provisions | § 385.3 Scope of staff action. | FAA | [Doc. No. T-1, 49 FR 50985, Dec. 31, 1984; Amdt. 1, 50 FR 7170, Feb. 21, 1985] | Applications for relief which, pursuant to this part, may be granted by staff members under assigned authority, and proceedings on such requests shall be governed by applicable rules in the same manner as if no assignment had been made (see § 385.5). In such proceedings, each staff member may determine any procedural matters which may arise, including, inter alia, service of documents on additional persons; filing of otherwise unauthorized documents; waivers of procedural requirements; requests for hearing; requests for additional information; dismissal of applications upon the applicant's request, moot applications, or incomplete or otherwise defective applications; and extensions of time. Such determinations, except those which would terminate the matter, shall be subject to review only in connection with review of the staff member's decision on the merits. The dismissal of incomplete or otherwise defective applications under authority set forth in this part shall be without prejudice except where under otherwise applicable law the time for making application has run out or where the defect is not corrected within a reasonable time fixed by the staff member. Under the authority assigned to the staff as set forth in this part to approve, disapprove, grant, or deny, relief may be granted or denied in part and grants may be made subject to lawful and reasonable conditions. Moreover, where applicable, the authority to grant relief also includes authority to renew or extend an existing authorization. | |||
| 14:14:4.0.1.5.67.1.24.4 | 14 | Aeronautics and Space | II | E | 385 | PART 385—STAFF ASSIGNMENTS AND REVIEW OF ACTION UNDER ASSIGNMENTS | A | Subpart A—General Provisions | § 385.4 Form of staff action. | FAA | [Doc. No. T-1, 49 FR 50985, Dec. 31, 1984; Amdt. 1, 50 FR 7170, Feb. 21, 1985] | Unless otherwise specified, staff action shall be by order or informal writing (letters, telegrams, decision marked on copy of application form, etc.). Such orders or informal writings shall contain a recital that action is taken pursuant to authority assigned herein, shall, in cases where there are “parties or interveners,” or where there may be an adverse effect upon a person with a substantial interest, contain a brief reference to the right of aggrieved parties to petition the Reviewing Official for review pursuant to applicable procedural rules, including a statement of the time within which petitions must be filed (§ 385.51); shall state whether the filing of a petition shall preclude the action from becoming effective; and shall be in the name of the person exercising the assigned function. They shall contain all findings, determinations and conclusions which would be required or appropriate if they were issued by the Secretary. Upon request, the appropriate Department Official shall attest as Departmental action orders or informal writings issued pursuant to this part which have become the action of the Department (§ 385.52). | |||
| 14:14:4.0.1.5.67.1.24.5 | 14 | Aeronautics and Space | II | E | 385 | PART 385—STAFF ASSIGNMENTS AND REVIEW OF ACTION UNDER ASSIGNMENTS | A | Subpart A—General Provisions | § 385.5 Procedures prescribed in other regulations. | FAA | Procedures set forth in this part do not supersede procedures applicable to matters on which decision has been assigned unless otherwise specifically provided herein: Provided, however, That any provisions in other regulations which provide for reconsideration of nonhearing determinations are not applicable to decisions made under authority assigned herein or to decisions made upon review thereof by the Reviewing Official. | ||||
| 14:14:4.0.1.5.67.1.24.6 | 14 | Aeronautics and Space | II | E | 385 | PART 385—STAFF ASSIGNMENTS AND REVIEW OF ACTION UNDER ASSIGNMENTS | A | Subpart A—General Provisions | § 385.6 Referral to the Reviewing Official. | FAA | When the staff member finds that the public interest so requires, or that, with respect to other than matters requiring immediate action as hereafter specified, there will be insufficient time for discretionary review of his or her decision upon petition, the staff member shall, in lieu of exercising the authority, submit the matter to the Reviewing Official for decision. In any case in which the staff member finds that immediate action is required with respect to any matter assigned herein, the disposition of which is governed by prior precedent and policy, the staff member may take appropriate action and specify that the filing of a petition for review shall not preclude such action from becoming effective. | ||||
| 14:14:4.0.1.5.67.1.24.7 | 14 | Aeronautics and Space | II | E | 385 | PART 385—STAFF ASSIGNMENTS AND REVIEW OF ACTION UNDER ASSIGNMENTS | A | Subpart A—General Provisions | § 385.7 Exercise of authority by superiors. | FAA | [Docket No. T-1, 49 FR 50985, Dec. 31, 1984, as amended by Doc. No. DOT-OST-2014-0140, 84 FR 15942, Apr. 16, 2019] | Any assignment of authority to a staff member other than the Chief Administrative Law Judge, the Administrative Law Judge, and the General Counsel, shall also be deemed to be made, severally, to each such staff member's respective superiors. In accordance with the Department's principle of management responsibility, the superior may choose to exercise the assigned power personally. Moreover, the Secretary may at any time exercise any authority assigned herein. | |||
| 14:14:4.0.1.5.67.1.24.8 | 14 | Aeronautics and Space | II | E | 385 | PART 385—STAFF ASSIGNMENTS AND REVIEW OF ACTION UNDER ASSIGNMENTS | A | Subpart A—General Provisions | § 385.8 Exercise of authority in “acting” capacity. | FAA | Unless the assignment provides otherwise, staff members serving in an “acting” capacity may exercise the authority assigned to the staff members for whom they are acting. | ||||
| 14:14:4.0.1.5.67.2.24.1 | 14 | Aeronautics and Space | II | E | 385 | PART 385—STAFF ASSIGNMENTS AND REVIEW OF ACTION UNDER ASSIGNMENTS | B | Subpart B—Assignment of Functions to Staff Members | § 385.10 Authority of Chief Administrative Law Judge, Office of Hearings. | FAA | [49 FR 50985, Dec. 31, 1984, as amended at 55 FR 20448, May 17, 1990; 65 FR 6457, Feb. 9, 2000] | The Chief Administrative Law Judge has authority to: (a) Consolidate, upon recommendation of the Director, Office of International Aviation (or such staff member of the Office of International Aviation as he or she may designate), into one proceeding cases involving the investigation of a tariff or of complaints concerned with related tariffs. (b) With respect to matters to be decided after notice and hearing: (1) Dismiss applications or complaints (except those falling under subpart D of part 302 of this chapter (Procedural Regulations)) when such dismissal is requested or consented to by the applicant or complainant, or where such party has failed to prosecute such application or complaint; (2) Dismiss proceedings upon his or her finding that the proceeding has become moot or that no further basis for continuation exists; and (3) Dismiss an application subject to dismissal as stale under part 302 of this chapter. | |||
| 14:14:4.0.1.5.67.2.24.10 | 14 | Aeronautics and Space | II | E | 385 | PART 385—STAFF ASSIGNMENTS AND REVIEW OF ACTION UNDER ASSIGNMENTS | B | Subpart B—Assignment of Functions to Staff Members | § 385.19 Authority of the Director, Office of Airline Information, Bureau of Transportation Statistics. | FAA | [53 FR 51751, Dec. 23, 1988, as amended at 60 FR 66726, 66727, Dec. 26, 1995. Redesignated and amended by Doc. No. OST-96-1268, 61 FR 19170, May 1, 1996; 65 FR 6457, Feb. 9, 2000; 75 FR 41585, July 16, 2010; Doc. No. DOT-OST-2014-0140, 84 FR 15944, Apr. 16, 2019] | The Director, Office of Airline Information, Bureau of Transportation Statistics (BTS) has authority to: (a) Conduct all rulemaking proceedings concerning accounting, reporting, and record retention requirements for carrying out Subparts I, II, and IV of 49 U.S.C. Subtitle VII, except the issuance of final rules and the disposition of petitions for reconsideration. (b) Interpret the accounting, reporting, and record retention requirements used to carry out Subparts I, II, and IV of 49 U.S.C. Subtitle VII. (c) Waive any of the accounting, reporting, and record retention requirements upon a showing of the existence of such facts, circumstances or other grounds, and subject to such limitations or conditions as may be prescribed for waivers in the applicable regulations, unless such authority is otherwise specifically assigned. (d) Dismiss petitions for Department or BTS action with respect to accounting, reporting, and record retention matters when such dismissal is requested or consented to by the petitioner. (e) Require special reports, documentation, or modifications to reports required by this chapter from any air carrier upon a determination that such reports or documentation or modifications are necessary to meet temporary information needs, assist in an evaluation of continued financial fitness, or comply with special information requests by Congress, Department officials, or another agency or component of the Federal Government. (f) Grant or deny a request by an air carrier or foreign air carrier for an extension of a filing date for reports required by subchapters A and D of this chapter. (g) Grant or deny requests by air carriers for substitution of their own forms, adaptation of Department forms, or use of ADP media to meet special needs where Department approval of such forms or ADP media is required by subchapter A of this chapter. (h) Determine the data necessary to complete the International Civil Aviation Organization reports required by U.S. Treaty; as provided in Order 81-3-120, establish a… | |||
| 14:14:4.0.1.5.67.2.24.11 | 14 | Aeronautics and Space | II | E | 385 | PART 385—STAFF ASSIGNMENTS AND REVIEW OF ACTION UNDER ASSIGNMENTS | B | Subpart B—Assignment of Functions to Staff Members | § 385.20 Authority of the Inspector General. | FAA | [Doc. No. T-1, 49 FR 50985, Dec. 31, 1984. Redesignated by Doc. No. OST-96-1268, 61 FR 19170, May 1, 1996] | The Inspector General has authority to: (a) Require special reports, including documentation, from any air carrier regarding audits and other examinations of carrier facilities, operations, and accounting and statistical records. (b)(1) For accounting purpose, make findings regarding the reasonable necessity for the application of the Department authority to obtain access to lands, buildings, and equipment, and to inspect, examine, and make notes and copies of accounts, records, documents, papers, and correspondence of persons having control over, or affiliated with, any person subject to regulation used to carry out titles IV and X of the Act through issuance of an appropriate order, letter, or other transmittal; (2) Authorize one or more auditors or special agents to conduct audits, inspections, and examinations and to make notes and copies in accordance with such findings. (c) Release to the carrier that is the subject of a financial audit the audit report and other information developed during the audit. (d) Require submission by carriers of special statements necessary to an explanation of any carrier accounting practice. | |||
| 14:14:4.0.1.5.67.2.24.12 | 14 | Aeronautics and Space | II | E | 385 | PART 385—STAFF ASSIGNMENTS AND REVIEW OF ACTION UNDER ASSIGNMENTS | B | Subpart B—Assignment of Functions to Staff Members | § 385.21 Authority of the Chief, Accounting Division, Office of Budget and Policy, Federal Transit Administration. | FAA | [Doc. No. T-1, 49 FR 50985, Dec. 31, 1984; Amdt. 1, 50 FR 7170, Feb. 21, 1985. Redesignated and amended by Doc. No. OST-96-1268, 61 FR 19170, May 1, 1996] | The Chief, Accounting Division, Office of Budget and Policy, Federal Transit Administration, has authority to: (a) Approve and order the payment of refunds of filing fees paid under § 389.27(b) of this chapter when such refunds have been authorized by either the Director, Office of Aviation Analysis, or the Director, Office of International Aviation. (b) Pay from appropriated funds all properly documented claims consistent with Treasury, OMB, GAO, and DOT policies. (c) Make minor or routine adjustments to payments based on audit reports prepared by the Inspector General, and through routine internal examinations of claims and vouchers. (d) Design air carrier subsidy claim forms for small community service under 49 U.S.C. 41737. | |||
| 14:14:4.0.1.5.67.2.24.2 | 14 | Aeronautics and Space | II | E | 385 | PART 385—STAFF ASSIGNMENTS AND REVIEW OF ACTION UNDER ASSIGNMENTS | B | Subpart B—Assignment of Functions to Staff Members | § 385.11 Authority of the Administrative Law Judges, Office of Hearings. | FAA | [Doc. No. T-1, 49 FR 50985, Dec. 31, 1984, as amended at 65 FR 6457, Feb. 9, 2000] | The Administrative Law Judges, Office of Hearings, have authority to take the following actions in matters to which they are respectively assigned: (a) Grant or deny intervention in formal proceedings. (b) With respect to matters to be decided after notice and hearing, dismiss applications or complaints (except those falling under subpart D of part 302 of this chapter (Procedural Regulations)) when such dismissal is requested or consented to by the applicant or complainant, or where such party has failed to prosecute such application or complaint. (c) Grant requests for consolidation of applications for route authority within the scope of the proceeding before him or her, and deny requests for consolidation of applications for route authority not within the scope of the proceeding. (d) Approve or disapprove proposed settlements of enforcement proceedings submitted under § 302.215 of this chapter. | |||
| 14:14:4.0.1.5.67.2.24.3 | 14 | Aeronautics and Space | II | E | 385 | PART 385—STAFF ASSIGNMENTS AND REVIEW OF ACTION UNDER ASSIGNMENTS | B | Subpart B—Assignment of Functions to Staff Members | § 385.12 Authority of the Director, Office of Aviation Analysis. | FAA | [Doc. No. OST-96-1268, 61 FR 19167, May 1, 1996, as amended at 70 FR 25773, May 16, 2005; Doc. No. DOT-OST-2014-0140, 84 FR 15942, Apr. 16, 2019] | The Director, Office of Aviation Analysis, has authority: (a) With respect to applications filed under section 41102 to engage in interstate or foreign scheduled or charter air transportation, section 41103 to engage in all-cargo air transportation, or section 41738 to engage in certain commuter air transportation: (1) To issue an order stating the Department's intention to process the application through show-cause procedures or other expedited procedures, where that course of action is clear under current policy and precedent. (2) To issue an order to show cause proposing to grant such application in those cases where no objections to the application have been filed, and where the Department has already found the applicant to be fit, willing and able to provide service of the same basic scope and character. (3) To issue an order, subject to any Presidential review required under section 41307 of 49 U.S.C. Subtitle VII, making final an order to show cause issued under paragraph (a)(2) of this section, where no objections to the order to show cause have been filed. (4) To issue an order dismissing an application: (i) When dismissal is requested or consented to by the applicant; (ii) For lack of prosecution; or (iii) When the application has become moot. (5) To review Air Carrier Certificates and Operations Specifications issued by the Federal Aviation Administration to carriers that have been granted certificate or commuter air carrier authority, and information concerning those carriers' fitness to operate under that authority that emerged following the issuance of orders establishing their fitness, and— (i) To amend orders issuing the certificate or commuter air carrier authority to advance the effective dates of the authority if the review is satisfactory; (ii) To stay the effectiveness of such orders for up to 30 days if the review is unsatisfactory; (iii) To lift the stay of effectiveness imposed under paragraph (a)(5)(ii) of this section when the unsatisfactory conditions that required issuance … | |||
| 14:14:4.0.1.5.67.2.24.4 | 14 | Aeronautics and Space | II | E | 385 | PART 385—STAFF ASSIGNMENTS AND REVIEW OF ACTION UNDER ASSIGNMENTS | B | Subpart B—Assignment of Functions to Staff Members | § 385.13 Authority of the Director, Office of International Aviation. | FAA | [Doc. No. OST-96-1268, 61 FR 19169, May 1, 1996, as amended by Doc. No. DOT-OST-2014-0140, 84 FR 15943, Apr. 16, 2019] | The Director, Office of International Aviation, has authority to: (a) Approve or deny applications for exemptions, where the course of action is clear under current policy or precedent: (1) For air carriers, from chapter 411 of 49 U.S.C. Subtitle VII and from certificates and orders issued under that chapter; (2) For foreign air carriers, from section 41301 and from permits and related orders issued under chapter 413; (3) For air carriers and foreign air carriers, from chapter 415 and from orders issued and tariffs filed under that chapter; and (4) From orders and applicable regulations under this chapter. (b) With respect to applications for certificates of public convenience and necessity under section 41102 and foreign air carrier permits under section 41302: (1) Issue an order to show cause proposing to grant such application in those cases where no objections to the application have been filed, and the applicant has already been found fit, willing, and able by the Department to provide service of the same basic scope and character; (2) For general tariff exemptions that apply to all U.S. and foreign air carriers pursuant to 14 CFR part 293; (3) Issue an order stating the Department's intention to process the application through show-cause procedures; (4) Issue an order, subject to Presidential review under section 41307, to make final an order to show cause issued under the circumstances of paragraph (b)(1) of this section, where no objections to the show-cause order have been filed; (5) Issue orders granting uncontested applications by U.S. carriers to provide foreign air transportation where the carrier has already been found fit, willing, and able to provide service of the same basic scope or character; and (6) Issue orders granting uncontested applications by foreign air carriers to provide foreign air transportation where the course of action is clear under current policy or precedent. (c) With respect to an application under section 41102 for a certificate to engage in foreign scheduled ai… | |||
| 14:14:4.0.1.5.67.2.24.5 | 14 | Aeronautics and Space | II | E | 385 | PART 385—STAFF ASSIGNMENTS AND REVIEW OF ACTION UNDER ASSIGNMENTS | B | Subpart B—Assignment of Functions to Staff Members | § 385.14 Authority of the General Counsel. | FAA | [Doc. No. DOT-OST-2014-0140, 84 FR 15944, Apr. 16, 2019] | The General Counsel has authority to: (a) Issue proposed or final regulations for the purpose of making editorial changes or corrections to the Department's rules and regulations to carry out Subparts I, II and IV of Part A of Subtitle VII of the Transportation Code at 49 U.S.C. 40101 et seq., with the concurrence of the staff offices primarily responsible for the parts or sections involved: Provided, that any final regulation so issued shall have an effective date not less than 20 days after its date of publication in the Federal Register, and shall include a brief reference to the review procedures established in subpart C of this part. (b) Where a petition for review is duly filed, reverse any rulemaking action taken pursuant to paragraph (a) of this section by withdrawing a proposed or final regulation issued thereunder. Any action taken by the General Counsel, pursuant to the authority of this section, shall not be subject to the review procedures of this part. (c) Issue orders deferring action until after oral argument on motions submitted by parties subsequent to the issuance of an Administrative Law Judge's initial or recommended decision. (d) Reissue existing regulations for the purpose of incorporating prior amendments adopted by the Department. (e) Compromise any civil penalties being imposed in enforcement cases. (f) Issue orders initiating and terminating informal nonpublic investigations under part 305 of this chapter (Procedural Regulations). (g) Issue orders requiring air carriers to prepare and submit within a specified reasonable period, special reports, copies of agreements, records, accounts, papers, documents, and specific answers to questions upon which information is deemed necessary. Special reports shall be under oath whenever the General Counsel so requires. (h) Institute and prosecute in the proper court, as agent of the Department, all necessary proceedings for the enforcement of the provisions of the act or any rule, regulation, requirement, or order thereunder, or any ter… | |||
| 14:14:4.0.1.5.67.2.24.6 | 14 | Aeronautics and Space | II | E | 385 | PART 385—STAFF ASSIGNMENTS AND REVIEW OF ACTION UNDER ASSIGNMENTS | B | Subpart B—Assignment of Functions to Staff Members | § 385.15 [Reserved] | FAA | |||||
| 14:14:4.0.1.5.67.2.24.7 | 14 | Aeronautics and Space | II | E | 385 | PART 385—STAFF ASSIGNMENTS AND REVIEW OF ACTION UNDER ASSIGNMENTS | B | Subpart B—Assignment of Functions to Staff Members | § 385.16 Heads of Offices and Assistant General Counsels. | FAA | [Doc. No. T-1, 49 FR 50985, Dec. 31, 1984. Redesignated by Doc. No. OST-96-1268, 61 FR 19170, May 1, 1996] | The heads of Offices and Assistant General Counsels have the authority to: (a) Grant requests for permission to withdraw petitions, applications, motions, complaints, or other pleadings or documents which the respective Office has responsibility for processing where such authority has not otherwise been assigned in this regulation. (b) Grant extensions of time for filing of documents or reports which are required to be filed by regulation or Department order and which reports or documents the respective Office has the responsibility for processing. (c) Grant waivers of the environmental procedures set by Department order in any proceeding or portion of a proceeding dealing with environmental matters. (d) Establish procedures on a case-by-case basis for environmental proceedings to ensure compliance with applicable law. | |||
| 14:14:4.0.1.5.67.2.24.8 | 14 | Aeronautics and Space | II | E | 385 | PART 385—STAFF ASSIGNMENTS AND REVIEW OF ACTION UNDER ASSIGNMENTS | B | Subpart B—Assignment of Functions to Staff Members | § 385.17 Authority of the Assistant General Counsel for Regulation and Enforcement. | FAA | [Doc. No. T-1, 49 FR 50985, Dec. 31, 1984. Redesignated by Doc. No. OST-96-1268, 61 FR 19170, May 1, 1996] | The Assistant General Counsel for Regulation and Enforcement has authority to: (a) Call public meetings in pending rulemaking proceedings, (b) Issue a notice suspending the effective dates of final regulations issued by the General Counsel pending Departmental determination of review proceedings instituted thereon, whether by petition or upon order of the Department. (Such a notice is not subject to the review procedures of subpart C of this part.), and (c) Approve or disapprove, for good cause shown, requests to extend the time for filing comments on all proposed or final new or amended regulations, and requests to extend comment periods following the issuance of final rules. | |||
| 14:14:4.0.1.5.67.2.24.9 | 14 | Aeronautics and Space | II | E | 385 | PART 385—STAFF ASSIGNMENTS AND REVIEW OF ACTION UNDER ASSIGNMENTS | B | Subpart B—Assignment of Functions to Staff Members | § 385.18 Authority of the Docket Officer, Docket Operations Office. | FAA | [Amdt. 385-3, 52 FR 18905, May 20, 1987. Redesignated by Doc. No. OST-96-1268, 61 FR 19170, May 1, 1996. Amended by Doc. No. DOT-OST-2014-0140, 84 FR 15944, Apr. 16, 2019] | The Docket Officer, Docket Operations Office, has the authority to coordinate and perform all administrative functions of the Department provided for in sections 2, 3 and 5 of Executive Order 12597 issued May 13, 1987, except that this delegation shall not include the exercise of the authority delegated by the President to the Secretary by sections 2 and 5 of that Order to determine not to disapprove orders of the Department in certain cases. | |||
| 14:14:4.0.1.5.67.3.24.1 | 14 | Aeronautics and Space | II | E | 385 | PART 385—STAFF ASSIGNMENTS AND REVIEW OF ACTION UNDER ASSIGNMENTS | C | Subpart C—Procedure on Review of Staff Action | § 385.30 Persons who may petition for review. | FAA | [Doc. No. T-1, 49 FR 50985, Dec. 31, 1984. Redesignated by Doc. No. OST-96-1268, 61 FR 19171, May 1, 1996] | Petitions for review may be filed by the applicant; by persons who have availed themselves of the opportunity, if any, to participate in the matter at the staff action level; and by persons who have not had opportunity to so participate or show good and sufficient cause for not having participated: Provided, That such persons, other than the applicant, disclose a substantial interest which would be adversely affected by the respective staff action. | |||
| 14:14:4.0.1.5.67.3.24.2 | 14 | Aeronautics and Space | II | E | 385 | PART 385—STAFF ASSIGNMENTS AND REVIEW OF ACTION UNDER ASSIGNMENTS | C | Subpart C—Procedure on Review of Staff Action | § 385.31 Petitions for review. | FAA | [Doc. No. T-1, 49 FR 50985, Dec. 31, 1984. Redesignated and amended by Doc. No. OST-96-1268, 61 FR 19171, May 1, 1996; 65 FR 6457, Feb. 9, 2000] | (a) Time for filing. Petitions for review shall be filed and served within seven (7) days after the date of the staff action to which they relate, but a different period may be fixed in such staff action consistent with effective preservation of the right to petition for discretionary review and the exigencies of the situation. (b) Contents. Petitions for review shall demonstrate that (1) a finding of material fact is clearly erroneous; (2) a legal conclusion is contrary to law, Department rules, or precedent; (3) a substantial and important question of policy is involved; (4) a prejudicial procedural error has occurred; or (5) the staff action is substantially deficient on its face. The petition shall briefly and specifically state the alleged grounds for review and the relief sought. If persons who participated at the staff action level set forth any new facts, arguments, or other new matter, an explanation must be furnished as to why said matter was not previously adduced at the staff action level. In the absence of a valid explanation, the Department may disregard such new matter. (c) Form and filing. Petitions shall comply with the form and filing requirements of §§ 302.3 and 302.4 of this chapter. (Rules of practice in Economic Proceedings). Petitions shall not exceed 10 pages in length. A greater length, however, may be specified in the staff action taken. The petitions shall be accompanied by proof of required service. However, persons who seek review of a civil penalty proposed by the Assistant General Counsel for Aviation Enforcement and Proceedings pursuant to § 385.15(a) may submit their request therefor by letter to the Department with a copy to the Assistant General Counsel for Aviation Enforcement and Proceedings and need not comply with the above form and filing requirements. (d) Service. A petition filed by a person other than the applicant shall be served on the applicant. Petitions shall also be served on any persons who have served documents on the petitioner at the staff action lev… | |||
| 14:14:4.0.1.5.67.3.24.3 | 14 | Aeronautics and Space | II | E | 385 | PART 385—STAFF ASSIGNMENTS AND REVIEW OF ACTION UNDER ASSIGNMENTS | C | Subpart C—Procedure on Review of Staff Action | § 385.32 Effective date of staff action. | FAA | [Doc. No. T-1, 49 FR 50985, Dec. 31, 1984. Redesignated by Doc. No. OST-96-1268, 61 FR 19171, May 1, 1996. Amended by Doc. No. DOT-OST-2014-0140, 84 FR 15945, Apr. 16, 2019] | Unless, within the time provided by or pursuant to this part, a petition for review is filed or the Department gives notice that it will review on its own motion, staff action shall, without further proceedings, be effective and become the action of the Department upon the expiration of such period. A timely petition for review filed in accordance with the provisions of this section, or notice given by the Department of review on its own motion, shall stay the staff action pending disposition by the Department, unless the Department determines otherwise or unless the staff action provides otherwise in accordance with subpart A of this part. However, in cases where the Department's regulations provide that permissions or approvals are granted, or that other legal effects result, within a stated period from the filing with the Department of a prescribed document, unless the Department gives notice to the contrary or takes other action within said period, such notice given or action taken by a staff member under delegated authority shall toll the running of such period. A timely petition for review of staff action which is not stayed by its filing which is received after or not acted upon before the effective date of the action shall be entertained and disposed of on its merits as a petition for reconsideration. | |||
| 14:14:4.0.1.5.67.3.24.4 | 14 | Aeronautics and Space | II | E | 385 | PART 385—STAFF ASSIGNMENTS AND REVIEW OF ACTION UNDER ASSIGNMENTS | C | Subpart C—Procedure on Review of Staff Action | § 385.33 Review by the staff. | FAA | [Doc. No. T-1, 49 FR 50985, Dec. 31, 1984. Redesignated by Doc. No. OST-96-1268, 61 FR 19171, May 1, 1996] | Where a petition for review is duly filed, the staff member may, upon consideration of all documents properly filed, reverse his or her decision. Except in the case of Administrative Law Judges, action taken by a staff member other than an office head or Assistant General Counsel may be reversed by the respective office head or Assistant General Counsel who is in the supervisory chain of command with respect to the staff member who took the initial action. If the initial action is reversed, the petition for review will not be submitted to the Reviewing Official. Staff action reversing the initial action shall be subject to petition for Department review as any other staff action. | |||
| 14:14:4.0.1.5.67.3.24.5 | 14 | Aeronautics and Space | II | E | 385 | PART 385—STAFF ASSIGNMENTS AND REVIEW OF ACTION UNDER ASSIGNMENTS | C | Subpart C—Procedure on Review of Staff Action | § 385.34 Decision by the Reviewing Official. | FAA | [Doc. No. T-1, 49 FR 50985, Dec. 31, 1984; Amdt. 1, 50 FR 7170, Feb. 21, 1985. Redesignated by Doc. No. OST-96-1268, 61 FR 19171, May 1, 1996] | (a) Decline of right to review. If the Reviewing Official declines the right to exercise discretionary review, the staff action stayed by the petition for review shall become effective on the second business day following the date of service of the order, unless the order provides otherwise. (b) Exercise of right to review. The Reviewing Official will exercise his or her discretionary right of review either upon petition or on his or her own motion. The Reviewing official may by order provide for interlocutory relief pending his or her decision on the merits and may limit the issues on review. The Reviewing Official may affirm, modify or set aside the staff action, may order the matter remanded, or may order further submittals or other proceedings before making a decison on the merits. In case the Reviewing Official affirms the staff action, staff action stayed by the petition for review shall become effective on the second business day following the date of service of the Reviewing Official's order, unless the order provides otherwise. Decisions by the Reviewing Official under this part are final and are not subject to petitions for reconsideration. | |||
| 33:33:3.0.1.1.34.1.1.1 | 33 | Navigation and Navigable Waters | II | 385 | PART 385—PROGRAMMATIC REGULATIONS FOR THE COMPREHENSIVE EVERGLADES RESTORATION PLAN | A | Subpart A—General Provisions | § 385.1 Purpose of the programmatic regulations. | USACE | (a) The programmatic regulations of this part implement the provisions of section 601(h)(3) of the Water Resources Development Act of 2000, Public Law 106-541, 114 Stat. 2688 (hereinafter “WRDA 2000”), which was enacted on December 11, 2000. (b) The purpose of the programmatic regulations of this part is to ensure that the goals and purposes of the Comprehensive Everglades Restoration Plan (the Plan) are achieved and to establish the processes necessary for implementing the Plan. Some of these processes are project specific, including, but not limited to, development of Project Implementation Reports, Project Cooperation Agreements, plans and specifications, Pilot Project Technical Data Reports, and Operating Manuals. Other processes are of more general applicability, including, but not limited to, development of program-wide guidance memoranda, interim goals, interim targets, and the Master Implementation Sequencing Plan. Taken together, these processes will ensure that the restoration purposes and other goals of the Plan are achieved. The regulations of this part also describe the relationship among the various entities responsible for implementation of the Plan. (c) Section 601(h) of WRDA 2000 establishes an integrated framework for assuring that the goals and purposes of the Plan are achieved. This framework includes tools for planning, implementation, and evaluation; a process for developing these tools in an open public process, with input from other Federal, State, and local agencies; and an enforcement mechanism to ensure that the requirements of the statute are carried out. (1) Tools. (i) The specific planning tool established by section 601(h) is the Project Implementation Report. (ii) The specific implementation tools established by section 601(h) are Project Cooperation Agreements and Operating Manuals. (iii) The specific evaluation tool established by section 601(h) is the interim goals for evaluating the restoration success of the Plan. (iv) In addition to the specific planning, implementati… | |||||
| 33:33:3.0.1.1.34.1.1.2 | 33 | Navigation and Navigable Waters | II | 385 | PART 385—PROGRAMMATIC REGULATIONS FOR THE COMPREHENSIVE EVERGLADES RESTORATION PLAN | A | Subpart A—General Provisions | § 385.2 Applicability of the programmatic regulations. | USACE | (a) This part applies to all activities conducted to implement the Comprehensive Everglades Restoration Plan. (b) As used in this part, the Secretary of the Army acts through the Assistant Secretary of the Army for Civil Works with respect to the Army's civil works program pursuant to 10 U.S.C. 3016. (c) Nothing in this part shall be interpreted to amend, alter, diminish, or otherwise affect: (1) The rights, powers and duties provided under the “Comprehensive Everglades Restoration Plan Assurance of Project Benefits Agreement,” dated January 9, 2002 pursuant to section 601(h)(2) of WRDA 2000; or (2) Any existing legal water rights of the United States, the State of Florida, the Miccosukee Tribe of Indians of Florida, or the Seminole Tribe of Florida, including rights under the compact among the Seminole Tribe of Florida, the State, and the South Florida Water Management District, defining the scope and use of water rights of the Seminole Tribe of Florida, as codified by section 7 of the Seminole Indian Land Claims Settlement Act of 1987 (25 U.S.C. 1772e). (d) This part is intended to aid the internal management of the implementing agencies and is not intended to create any right or benefit enforceable at law by a party against the implementing agencies or their officers. Nothing in this part shall create a right or expectation to benefits or enhancements, temporary or permanent, in third parties that are not specifically authorized by Congress in section 601 of WRDA 2000. (e) Nothing in this part is intended to, or shall be interpreted to, reserve or allocate water or to prescribe the process for reserving or allocating water or for water management under Florida law. Nor is this part intended to, nor shall it be interpreted to, prescribe any process of Florida law. | |||||
| 33:33:3.0.1.1.34.1.1.3 | 33 | Navigation and Navigable Waters | II | 385 | PART 385—PROGRAMMATIC REGULATIONS FOR THE COMPREHENSIVE EVERGLADES RESTORATION PLAN | A | Subpart A—General Provisions | § 385.3 Definitions. | USACE | For the purposes of this part, the following terms are defined: Adaptive management means the continuous process of seeking a better understanding of the natural system and human environment in the South Florida ecosystem, and seeking continuous refinements in and improvements to the Plan to respond to new information resulting from changed or unforeseen circumstances, new scientific and technical information, new or updated modeling; information developed through the assessment principles contained in the Plan; and future authorized changes to the Plan in order to ensure that the goals and purposes of the Plan are fulfilled. Alternative plan means a plan that consists of a system of structural and/or nonstructural measures, strategies, or programs formulated to achieve, fully or partially, the goals and purposes of the Plan, as further defined in section 1.6.1 of the Water Resources Council's “Economic and Environmental Guidelines for Water and Related Land Resources Implementation Studies,” dated March 10, 1983. Assessment means the process whereby the actual performance of implemented projects is measured and interpreted based on analyses of information obtained from research, monitoring, modeling, or other relevant sources. Central and Southern Florida (C&SF) Project means the project for Central and Southern Florida authorized under the heading “CENTRAL AND SOUTHERN FLORIDA” in section 203 of the Flood Control Act of 1948 (62 Stat. 1176) and any modification authorized by any other provision of law, including section 601 of WRDA 2000. Component means features of the Plan that include, but are not limited to, storage reservoirs, aquifer storage and recovery facilities, stormwater treatment areas, water reuse facilities, canals, levees, pumps, water control structures, and seepage management facilities; the removal of canals, levees, pumps, and water control structures; and operational changes. Comprehensive Everglades Restoration Plan (CERP) means the plan contained in the “Final Integrated Feas… | |||||
| 33:33:3.0.1.1.34.1.1.4 | 33 | Navigation and Navigable Waters | II | 385 | PART 385—PROGRAMMATIC REGULATIONS FOR THE COMPREHENSIVE EVERGLADES RESTORATION PLAN | A | Subpart A—General Provisions | § 385.4 Limitation on applicability of programmatic regulations. | USACE | In accordance with section 601(h)(3)(c)(ii) of WRDA 2000, this part expressly prohibits “the requirement for concurrence by the Secretary of the Interior or the Governor on Project Implementation Reports, Project Cooperation Agreements, Operating Manuals for individual projects undertaken in the Plan, and any other documents relating to the development, implementation, and management of individual features of the Plan, unless such concurrence is provided for in other Federal or State laws.” | |||||
| 33:33:3.0.1.1.34.1.1.5 | 33 | Navigation and Navigable Waters | II | 385 | PART 385—PROGRAMMATIC REGULATIONS FOR THE COMPREHENSIVE EVERGLADES RESTORATION PLAN | A | Subpart A—General Provisions | § 385.5 Guidance memoranda. | USACE | (a) General. (1) Technical guidance for internal management of Corps of Engineers personnel during Plan implementation will be normally issued in the form of Engineer Regulations, Circulars, Manuals, or Pamphlets, or other appropriate form of guidance. (2) Guidance on the following six program-wide subjects shall be promulgated in accordance with paragraphs (b) and (c) of this section: (i) General format and content of Project Implementation Reports (§ 385.26(a)); (ii) Instructions for formulation and evaluation of alternatives developed for Project Implementation Reports, their cost effectiveness and impacts (§ 385.26(b)); (iii) General content of operating manuals (§ 385.28(a)); (iv) General directions for the conduct of the assessment activities of RECOVER (§ 385.31(b)); (v) Instructions relevant to Project Implementation Reports for identifying the appropriate quantity, timing, and distribution of water to be dedicated and managed for the natural system (§ 385.35(b)); and (vi) Instructions relevant to Project Implementation Reports for identifying if an elimination or transfer of existing legal sources of water will occur as a result of implementation of the Plan (§ 385.36(b)). (b) Special processes for development of six program-wide guidance memoranda. The Corps of Engineers and the South Florida Water Management District shall, in consultation with the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Miccosukee Tribe of Indians of Florida, the Seminole Tribe of Florida, the Florida Department of Environmental Protection, and other Federal, State, and local agencies, develop the six guidance memoranda described in paragraph (a) of this section for approval by the Secretary of the Army. The Corps of Engineers and the South Florida Water Management District shall also consult with the South Florida Ecosystem Restoration Task Force in the development of these guidance memoranda. The following procedures shall apply to the specific guidance memoranda d… | |||||
| 33:33:3.0.1.1.34.1.1.6 | 33 | Navigation and Navigable Waters | II | 385 | PART 385—PROGRAMMATIC REGULATIONS FOR THE COMPREHENSIVE EVERGLADES RESTORATION PLAN | A | Subpart A—General Provisions | § 385.6 Review of programmatic regulations. | USACE | (a) The Secretary of the Army shall review, and if necessary revise, the regulations of this part at least every five years. In addition, the Secretary of the Army may review and revise the regulations of this part whenever the Secretary believes that such review and revision is necessary to attain the goals and purposes of the Plan. The Secretary of the Army shall place appropriate notice in the Federal Register upon initiating review of the regulations of this part. (b) Upon completing the review of the regulations of this part, the Secretary shall promulgate any revisions to the regulations after notice and opportunity for public comment in accordance with applicable law, with the concurrence of the Secretary of the Interior and the Governor, and in consultation with the Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida, the Administrator of the Environmental Protection Agency, the Secretary of Commerce, and other Federal, State, and local agencies. (c) Within 180 days after being provided with the final revisions to the programmatic regulations of this part, or such shorter period that the Secretary of the Interior and Governor may agree to, the Secretary of the Interior and the Governor shall provide the Secretary of the Army with a written statement of concurrence or non-concurrence with the revisions. A failure to provide a written statement of concurrence or non-concurrence within such time frame shall be deemed as meeting the concurrency process of paragraph (b) of this section. A copy of any concurrency or nonconcurrency statements shall be made a part of the administrative record and referenced in the final revised programmatic regulations. Any non-concurrency statement shall specifically detail the reason or reasons for the non-concurrence. | |||||
| 33:33:3.0.1.1.34.1.1.7 | 33 | Navigation and Navigable Waters | II | 385 | PART 385—PROGRAMMATIC REGULATIONS FOR THE COMPREHENSIVE EVERGLADES RESTORATION PLAN | A | Subpart A—General Provisions | § 385.7 Concurrency statements. | USACE | The administrative record of the programmatic regulations in this part contains a copy of the concurrency statements by the Secretary of the Interior and the Governor to the Secretary of the Army. The concurrency statements can be obtained from the Army Corps of Engineers, Jacksonville District, 701 San Marco Blvd., Jacksonville, Florida 32207, or by accessing the programmatic regulations Web page at: http://www.evergladesplan.org/pm/progr_regs_final_rule.cfm. | |||||
| 33:33:3.0.1.1.34.2.1.1 | 33 | Navigation and Navigable Waters | II | 385 | PART 385—PROGRAMMATIC REGULATIONS FOR THE COMPREHENSIVE EVERGLADES RESTORATION PLAN | B | Subpart B—Program Goals and Responsibilities | § 385.8 Goals and purposes of the Comprehensive Everglades Restoration Plan. | USACE | (a) The Comprehensive Everglades Restoration Plan (CERP) is a framework for modifications and operational changes to the Central and Southern Florida Project. The overarching objective of the Plan is the restoration, preservation, and protection of the South Florida ecosystem while providing for other water-related needs of the region, including water supply and flood protection. (b) The Corps of Engineers, the South Florida Water Management District, and other non-Federal sponsors shall, in consultation with the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Miccosukee Tribe of Indians of Florida, the Seminole Tribe of Florida, the Florida Department of Environmental Protection, and other Federal, State, and local agencies, implement the Plan, as authorized by Congress, to ensure the protection of water quality in, the reduction of the loss of fresh water from, and the improvement of the environment of the South Florida ecosystem and to achieve and maintain the benefits to the natural system and human environment described in the Plan, and required pursuant to section 601 of WRDA 2000, for as long as the project is authorized. (c) The goal of the Plan is to restore, preserve, and protect the South Florida ecosystem while providing for other water-related needs of the region. The Plan is designed to accomplish this by providing the quantity, quality, timing, and distribution of water necessary to achieve and sustain those essential hydrological and biological characteristics that defined the undisturbed South Florida ecosystem. As authorized by Congress, the restored South Florida ecosystem will be significantly healthier than the current system; however it will not completely replicate the undisturbed South Florida ecosystem and some areas may more closely replicate the undisturbed ecosystem than others. Initial modeling showed that most of the water generated by the Plan would go to the natural system in order to attain restoration goals, and the remainder of … | |||||
| 33:33:3.0.1.1.34.2.1.2 | 33 | Navigation and Navigable Waters | II | 385 | PART 385—PROGRAMMATIC REGULATIONS FOR THE COMPREHENSIVE EVERGLADES RESTORATION PLAN | B | Subpart B—Program Goals and Responsibilities | § 385.9 Implementation principles. | USACE | The Corps of Engineers and the South Florida Water Management District and other non-Federal sponsors shall, in consultation with the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Miccosukee Tribe of Indians of Florida, the Seminole Tribe of Florida, the Florida Department of Environmental Protection, and other Federal, State, and local agencies, conduct activities, including program-level activities, necessary to implement the Plan. Such activities shall be conducted as part of an integrated implementation program, in accordance with this part, and based on the following principles: (a) Individual projects shall be formulated, evaluated, and justified based on their ability to contribute to the goals and purposes of the Plan and on their ability to provide benefits that justify costs on a next-added increment basis. (b) Interim goals shall be established in accordance with § 385.38 to provide a means for evaluating restoration success of the Plan at specific time intervals during implementation. Interim targets to evaluate progress on providing for other water-related needs of the region provided for in the Plan shall be established in accordance with § 385.39. Interim goals and interim targets shall be consistent with each other. (c) Endorsement of the Plan as a restoration framework is not intended as a constraint on innovation during implementation through the adaptive management process. Continuous improvement of the Plan shall be sought to ensure that new information resulting from changed or unforeseen circumstances, new scientific and technical information, new or updated modeling; information developed through the assessment principles contained in the Plan; and future authorized changes to the Plan are integrated into the implementation of the Plan. The adaptive management process provides a means for analyzing the performance of the Plan and assessing progress towards meeting the goals and purposes of the Plan as well as a basis for improving the pe… | |||||
| 33:33:3.0.1.1.34.2.1.3 | 33 | Navigation and Navigable Waters | II | 385 | PART 385—PROGRAMMATIC REGULATIONS FOR THE COMPREHENSIVE EVERGLADES RESTORATION PLAN | B | Subpart B—Program Goals and Responsibilities | § 385.10 Implementation responsibilities, consultation, and coordination. | USACE | (a) Implementing agencies. Implementation of the Plan shall be the responsibility of the Corps of Engineers and the non-Federal sponsors. (b) Consultation —(1) Consultation with tribes. (i) In addition to any other applicable provision for consultation with Native American Tribes, including but not limited to, laws, regulations, executive orders, and policies the Corps of Engineers and non-Federal sponsors shall consult with and seek advice from the Miccosukee Tribe of Indians of Florida and the Seminole Tribe of Florida throughout the implementation process to ensure meaningful and timely input by tribal officials regarding programs and activities covered by this part. Consultation with the tribes shall be conducted on a government-to-government basis. (ii) In carrying out their responsibilities under section 601 of WRDA 2000 with respect to the restoration of the South Florida ecosystem, the Secretary of the Army and the Secretary of the Interior shall fulfill any obligations to the Indian tribes in South Florida under the Indian trust doctrine as well as other applicable legal obligations. (2) Consultation with agencies. The Corps of Engineers and non-Federal sponsors shall consult with and seek advice from the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Florida Department of Environmental Protection, and other Federal, State, and local agencies throughout the implementation process to ensure meaningful and timely input by those agencies regarding programs and activities covered under this part. The time for, and extent of, consultation shall be appropriate for, and limited by, the activity involved. (c) Coordination. The Corps of Engineers and the non-Federal sponsor shall coordinate implementation activities and the preparation of documents with other Federal, State, and local agencies and the tribes to fulfill the requirements of all applicable Federal and State laws, including but not limited to, the Fish and Wildlife Coordination Act, the N… | |||||
| 33:33:3.0.1.1.34.3.1.1 | 33 | Navigation and Navigable Waters | II | 385 | PART 385—PROGRAMMATIC REGULATIONS FOR THE COMPREHENSIVE EVERGLADES RESTORATION PLAN | C | Subpart C—CERP Implementation Processes | § 385.11 Implementation process for projects. | USACE | Generally, the Corps of Engineers and non-Federal sponsors shall develop and implement projects in accordance with the process that is shown in figure 1 in Appendix A of this part. Typical steps in this process involve: (a) Project Management Plan. The Project Management Plan describes the activities, tasks, and responsibilities that will be used to produce and deliver the products necessary to implement the project. (b) Project Implementation Report. The Project Implementation Report provides information on plan formulation and evaluation, engineering and design, estimated benefits and costs, and environmental effects to bridge the gap between the conceptual design included in the Plan and the detailed design necessary to proceed to construction. The Project Implementation Reports will also set forth additional information and analyses necessary for the Secretary of the Army or Congress to approve the project for implementation. (c) Plans and specifications. During this phase, final design of the project is completed and plans and specifications are prepared. Plans and specifications contain the information necessary to bid and construct the project. (d) Real estate acquisition. The lands, easements, and rights-of way, and relocations necessary for the project are acquired prior to construction. (e) Construction. This phase is the actual construction of a project's components and includes an interim operation and monitoring period to ensure that the project operates as designed. (f) Operation. After construction of the project has been completed, it is operated in accordance with the System Operating Manual and the Project Operating Manual. (g) Monitoring and assessment. After the project has been constructed, monitoring is conducted as necessary to assess the effectiveness of the project and to provide information that will be used for the adaptive management program. | |||||
| 33:33:3.0.1.1.34.3.1.10 | 33 | Navigation and Navigable Waters | II | 385 | PART 385—PROGRAMMATIC REGULATIONS FOR THE COMPREHENSIVE EVERGLADES RESTORATION PLAN | C | Subpart C—CERP Implementation Processes | § 385.20 Restoration Coordination and Verification (RECOVER). | USACE | (a) RECOVER (Restoration Coordination and Verification) is an interagency and interdisciplinary scientific and technical team described in the “Final Integrated Feasibility Report and Programmatic Environmental Impact Statement,” dated April 1, 1999. RECOVER was established by the Corps of Engineers and the South Florida Water Management District to conduct assessment, evaluation, and planning and integration activities using the best available science that support implementation of the Plan with the overall goal of ensuring that the goals and purposes of the Plan are achieved. RECOVER has been organized into a Leadership Group that provides management and coordination for the activities of RECOVER and teams that accomplish activities such as: developing system-wide performance measures; developing and implementing the monitoring and assessment program; evaluating alternatives developed by Project Delivery Teams to achieve the goals and purposes of the Plan; conducting system-wide water quality analyses; developing, refining, and applying system-wide models and tools; and evaluating modifications to the Plan. RECOVER is not a policy making body, but has technical and scientific responsibilities that support implementation of the Plan. (b) Documents or work products prepared or developed by RECOVER shall not be self-executing, but shall be provided as information for consideration by the Corps of Engineers and the South Florida Water Management District, in consultation with the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Miccosukee Tribe of Indians of Florida, the Seminole Tribe of Florida, the Florida Department of Environmental Protection, and other Federal, State, and local agencies. Technical information developed by RECOVER shall be available to the public. (c) The Corps of Engineers and the South Florida Water Management District shall encourage the participation of other Federal, State, and local agencies and the Miccosukee Tribe of Indians of Florida … | |||||
| 33:33:3.0.1.1.34.3.1.11 | 33 | Navigation and Navigable Waters | II | 385 | PART 385—PROGRAMMATIC REGULATIONS FOR THE COMPREHENSIVE EVERGLADES RESTORATION PLAN | C | Subpart C—CERP Implementation Processes | § 385.21 Quality control. | USACE | (a) The Corps of Engineers and the non-Federal sponsor shall prepare a quality control plan, in accordance with applicable Corps of Engineers regulations, for each product that will be produced by a Project Delivery Team. The quality control plan shall be included in the Project Management Plan and shall describe the procedures to be used to ensure compliance with technical and policy requirements during implementation. (b) During development of the Project Management Plan for each project, the Corps of Engineers and the non-Federal sponsor shall establish a Technical Review Team to conduct reviews to ensure that products are consistent with established criteria, guidance, procedures, and policy. The members of the Technical Review Team shall be independent of the Project Delivery Team and the project being reviewed, and should be knowledgeable of design criteria established for the Plan. (c) Technical review is intended to be a continuous process throughout project implementation. The Technical Review Team shall document its actions and recommendations and provide reports to the Project Delivery Team at designated points during the implementation process that shall be described in the quality control plan. | |||||
| 33:33:3.0.1.1.34.3.1.12 | 33 | Navigation and Navigable Waters | II | 385 | PART 385—PROGRAMMATIC REGULATIONS FOR THE COMPREHENSIVE EVERGLADES RESTORATION PLAN | C | Subpart C—CERP Implementation Processes | § 385.22 Independent scientific review and external peer review. | USACE | (a) The independent scientific review panel required by section 601(j). (1) Section 601(j) of WRDA 2000 requires that the Secretary of the Army, the Secretary of the Interior, and the Governor, in consultation with the South Florida Ecosystem Restoration Task Force, establish an independent scientific review panel, convened by a body, such as the National Academy of Sciences, to review the Plan's progress toward achieving the natural system restoration goals of the Plan. Section 601(j) also directs that this panel produce a biennial report to Congress, the Secretary of the Army, the Secretary of the Interior, and the Governor that includes an assessment of ecological indicators and other measures of progress in restoring the ecology of the natural system, based on the Plan. (2) To carry out section 601(j), the Department of the Army, the Department of the Interior, and the State shall establish an independent scientific review panel to conduct on-going review of the progress achieved by the implementation of the Plan in achieving the restoration goals of the Plan and shall provide the panel with the resources and cooperation necessary to ensure that the panel is able to function effectively. (3) Not later than June 14, 2004, the Secretary of the Army, the Secretary of the Interior, and the Governor, in consultation with the South Florida Ecosystem Restoration Task Force, shall enter into a five-year agreement, with options for extensions in five-year increments, with the National Academy of Sciences to convene this panel. (4) The Department of the Army, the Department of the Interior, and the State expect that the National Academy of Sciences will use established practices for assuring the independence of members and that the review panel will include members reflecting a balance of the knowledge, training, and experience suitable to comprehensively review and assess progress towards achieving natural system restoration goals of the Plan. (5) To ensure the independence of the section 601(j) panel, its sole … | |||||
| 33:33:3.0.1.1.34.3.1.13 | 33 | Navigation and Navigable Waters | II | 385 | PART 385—PROGRAMMATIC REGULATIONS FOR THE COMPREHENSIVE EVERGLADES RESTORATION PLAN | C | Subpart C—CERP Implementation Processes | § 385.23 Dispute resolution. | USACE | (a) Disputes with the non-Federal sponsor concerning a Project Cooperation Agreement shall be resolved under the specific dispute resolution procedures of that Project Cooperation Agreement. (b) Disputes with the non-Federal sponsor concerning design activities shall be resolved under the specific dispute resolution procedures of the design agreement. (c) All other unresolved issues with the non-Federal sponsor and disputes with the State associated with the implementation of the Plan shall be resolved according to the terms of the Dispute Resolution Agreement executed on September 9, 2002 pursuant to section 601(i) of WRDA 2000. (d) For disputes with parties not covered by the provisions of paragraphs (a), (b), or (c) of this section, the Corps of Engineers shall attempt to resolve the dispute in accordance with applicable statutory requirements and/or the following procedures: (1) The parties will attempt to resolve disputes at the lowest organizational level before seeking to elevate a dispute. (2) Any disputed matter shall first be elevated to the District Engineer and the equivalent official of the other agency, or their designees. The parties may decide to continue to elevate the dispute to higher levels within each agency. (3) The parties to a dispute may agree to participate in mediation. (4) When a dispute is resolved the parties shall memorialize the resolution in writing. | |||||
| 33:33:3.0.1.1.34.3.1.14 | 33 | Navigation and Navigable Waters | II | 385 | PART 385—PROGRAMMATIC REGULATIONS FOR THE COMPREHENSIVE EVERGLADES RESTORATION PLAN | C | Subpart C—CERP Implementation Processes | § 385.24 Project Management Plans. | USACE | (a) General requirements. (1) The Corps of Engineers and the non-Federal sponsor shall, in consultation with the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida, the Florida Department of Environmental Protection, and other Federal, State, and local agencies, develop a Project Management Plan prior to initiating activities on a project. (2) The Project Management Plan shall define the activities, and where appropriate, the subordinate tasks, as well as the assignment of responsibility for completing products and activities such as Project Implementation Reports, Pilot Project Design Reports, plans and specifications, real estate acquisition, construction contracts and construction, Comprehensive Plan Modification Reports, and other activities necessary to support implementation of the Plan. (3) The Project Management Plan shall include a quality control plan, as described in § 385.21. (4) As appropriate, the Project Management Plan shall include activities to be conducted to meet the requirements of the Fish and Wildlife Coordination Act, as described in § 385.26(e). (5) The Project Management Plan shall provide schedule and funding information for the project. (6) In accordance with § 385.18, Corps of Engineers and the non-Federal sponsor shall provide opportunities for the public to review and comment on the Project Management Plan. (b) Revisions to Project Management Plans. The Corps of Engineers and the non-Federal sponsor may, in consultation with the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida, the Florida Department of Environmental Protection, and other Federal, State, and local agencies, revise the Project Management Plan whenever necessary, including after completion of the Project Implementation Report, or Plans and Specifications. In accordance with § 38… | |||||
| 33:33:3.0.1.1.34.3.1.15 | 33 | Navigation and Navigable Waters | II | 385 | PART 385—PROGRAMMATIC REGULATIONS FOR THE COMPREHENSIVE EVERGLADES RESTORATION PLAN | C | Subpart C—CERP Implementation Processes | § 385.25 Program Management Plans. | USACE | (a) General requirements. (1) The Corps of Engineers and the non-Federal sponsor shall, in consultation with the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida, the Florida Department of Environmental Protection, and other Federal, State, and local agencies, develop a Program Management Plan prior to initiating a program-level activity. (2) The Program Management Plan shall define the activities, and where appropriate, the subordinate tasks, as well as the assignment of responsibility for completing products developed in support to program-level activities. (3) In accordance with § 385.18, Corps of Engineers and the non-Federal sponsor shall provide opportunities for the public to review and comment on the Program Management Plan. (b) Revisions to Program Management Plans. The Corps of Engineers and the non-Federal sponsor may, in consultation with the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida, the Florida Department of Environmental Protection, and other Federal, State, and local agencies, revise the Program Management Plan whenever necessary to incorporate new or changed information that affects the scope, schedule, or budget of the activities described in the Program Management Plan. In accordance with § 385.18, the Corps of Engineers and the non-Federal sponsor shall provide opportunities for the public to review and comment on revisions to the Program Management Plan. | |||||
| 33:33:3.0.1.1.34.3.1.16 | 33 | Navigation and Navigable Waters | II | 385 | PART 385—PROGRAMMATIC REGULATIONS FOR THE COMPREHENSIVE EVERGLADES RESTORATION PLAN | C | Subpart C—CERP Implementation Processes | § 385.26 Project Implementation Reports. | USACE | (a) General requirements. (1) The Project Implementation Report is a document that provides information on plan formulation and evaluation, engineering and design, estimated benefits and costs, environmental effects, and the additional information and analysis necessary for the Secretary of the Army to approve the project for implementation, or for Congress to authorize the project for implementation. The Project Implementation Report bridges the gap between the conceptual level of detail contained in the “Final Integrated Feasibility Report and Programmatic Environmental Impact Statement,” dated April 1, 1999 and the detailed design necessary to prepare plans and specifications required to proceed to construction. Prior to requesting approval or authorization for the implementation of a project, the Corps of Engineers and the non-Federal sponsor shall, in consultation with the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida, the Florida Department of Environmental Protection, and other Federal, State, and local agencies, complete a Project Implementation Report addressing the project's justification in accordance with section 601(f)(2) of WRDA 2000, and other factors required by section 601(h)(4)(A) of WRDA 2000. To eliminate duplication with State and local procedures, the Project Implementation Report shall also address the factors of relevant State laws, including sections 373.1501 and 373.470 of the Florida Statutes. (2) Before completion of the draft Project Implementation Report, the Corps of Engineers and the non-Federal sponsor shall provide the South Florida Ecosystem Restoration Task Force with information about the alternative plans developed and evaluated for the Project Implementation Report. (3) The Project Implementation Report shall: (i) Be consistent with the Plan and applicable law, policy, and regulation, including the Principles and Guidelines of the Water Resources Coun… | |||||
| 33:33:3.0.1.1.34.3.1.17 | 33 | Navigation and Navigable Waters | II | 385 | PART 385—PROGRAMMATIC REGULATIONS FOR THE COMPREHENSIVE EVERGLADES RESTORATION PLAN | C | Subpart C—CERP Implementation Processes | § 385.27 Project Cooperation Agreements. | USACE | (a) General. Prior to initiating construction or implementation of a project, the Corps of Engineers shall execute a Project Cooperation Agreement with the non-Federal sponsor in accordance with applicable law. (b) Verification of water reservations. The Project Cooperation Agreement shall include a finding that the South Florida Water Management District or the Florida Department of Environmental Protection has executed under State law the reservation or allocation of water for the natural system as identified in the Project Implementation Report. Prior to execution of the Project Cooperation Agreement, the District Engineer shall verify in writing that the South Florida Water Management District or the Florida Department of Environmental Protection has executed under State law the reservation or allocation of water for the natural system as identified in the Project Implementation Report. The District Engineer's verification shall provide the basis for the finding in the Project Cooperation Agreement and be made available to the public. (c) Changes to water reservations. Reservations or allocations of water are a State responsibility. Any change to the reservation or allocation of water for the natural system made under State law shall require an amendment to the Project Cooperation Agreement. (1) The District Engineer shall, in consultation with the South Florida Water Management District, the Florida Department of Environmental Protection, the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida, and other Federal, State, and local agencies, verify in writing that the revised reservation or allocation continues to provide for an appropriate quantity, timing, and distribution of water dedicated and managed for the natural system after considering any changed circumstances or new information since completion of the Project Implementation Report. In accordance with applicable State law, the … | |||||
| 33:33:3.0.1.1.34.3.1.18 | 33 | Navigation and Navigable Waters | II | 385 | PART 385—PROGRAMMATIC REGULATIONS FOR THE COMPREHENSIVE EVERGLADES RESTORATION PLAN | C | Subpart C—CERP Implementation Processes | § 385.28 Operating Manuals. | USACE | (a) General provisions. (1) The Corps of Engineers and the non-Federal sponsor shall, in consultation with the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida, the Florida Department of Environmental Protection, and other Federal, State, and local agencies, develop Operating Manuals to ensure that the goals and purposes of the Plan are achieved. (2) Operating Manuals shall consist of a System Operating Manual and Project Operating Manuals. In general, the System Operating Manual provides a system-wide operating plan for the operation of the projects of the Plan and other C&SF Project features and the Project Operating Manuals provide the details necessary for integrating the operation of the individual projects with the system operation described in the System Operating Manual. (3) In accordance with § 385.18, the public shall have the opportunity to review and comment on draft Operating Manuals. (4) The Division Engineer and the non-Federal sponsor shall approve completed Operating Manuals. (5) The Corps of Engineers and the South Florida Water Management District shall develop a guidance memorandum in accordance with § 385.5 for approval by the Secretary of the Army, with the concurrence of the Secretary of the Interior and the Governor, that describes the content of Operating Manuals and the tasks necessary to develop Operating Manuals. (6) Operating Manuals shall: (i) Be consistent with the goals and purposes of the Plan; (ii) Comply with NEPA, in accordance with § 385.14. (iii) Describe regulation schedules, water control, and operating criteria for a project, group of projects, or the entire system; (iv) Make provisions for the natural fluctuation of water made available in any given year and fluctuations necessary for the natural system as described in the Plan; (v) Be consistent with applicable water quality standards and applicable water quality permitting requirements; (vi)… | |||||
| 33:33:3.0.1.1.34.3.1.19 | 33 | Navigation and Navigable Waters | II | 385 | PART 385—PROGRAMMATIC REGULATIONS FOR THE COMPREHENSIVE EVERGLADES RESTORATION PLAN | C | Subpart C—CERP Implementation Processes | § 385.29 Other project documents. | USACE | (a) As appropriate, the Corps of Engineers and the non-Federal sponsor may prepare design documents to provide additional design information needed for projects. Such documents shall be approved in accordance with applicable policies of the Corps of Engineers and the non-Federal sponsor. (b) The Corps of Engineers and the non-Federal sponsor shall prepare plans and specifications necessary for construction of projects. Such documents shall be approved in accordance with applicable policies of the Corps of Engineers and the non-Federal sponsor. (c) The Corps of Engineers and the non-Federal sponsor may prepare other documents as appropriate during the real estate acquisition and construction phases for projects. Such documents shall be approved in accordance with applicable policies of the Corps of Engineers and the non-Federal sponsor. | |||||
| 33:33:3.0.1.1.34.3.1.2 | 33 | Navigation and Navigable Waters | II | 385 | PART 385—PROGRAMMATIC REGULATIONS FOR THE COMPREHENSIVE EVERGLADES RESTORATION PLAN | C | Subpart C—CERP Implementation Processes | § 385.12 Pilot projects. | USACE | (a) The Plan includes pilot projects to address uncertainties associated with certain components such as aquifer storage and recovery, in-ground reservoir technology, seepage management, and wastewater reuse. The purpose of the pilot projects is to develop information necessary to better determine the technical feasibility of these components prior to development of a Project Implementation Report. (b) Prior to initiating activities on a pilot project, the Corps of Engineers and the non-Federal sponsor shall develop a Project Management Plan as described in § 385.24. (c) Project Implementation Reports shall not be necessary for pilot projects. Prior to implementing a pilot project, the Corps of Engineers and the non-Federal sponsor shall prepare a Pilot Project Design Report. (1) The Pilot Project Design Report shall contain the technical information necessary to construct the pilot project including engineering and design, cost estimates, real estate analyses, and appropriate NEPA documentation. (2) The Pilot Project Design Report shall include a detailed operational testing and monitoring plan necessary to develop information to assist in better determining the technical feasibility of certain components prior to development of a Project Implementation Report. (3) In accordance with § 385.18, the Corps of Engineers and the non-Federal sponsor shall provide the public with opportunities to review and comment on the draft Pilot Project Design Report. (4) The Corps of Engineers and the non-Federal sponsor shall approve the final Pilot Project Design Report in accordance with applicable law. (d) Upon completion of operational testing and monitoring, the Corps of Engineers and the non-Federal sponsor shall, in consultation with the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Miccosukee Tribe of Indians of Florida, the Seminole Tribe of Florida, the Florida Department of Environmental Protection, and other Federal, State, and local agencies, prepare a Pilot … | |||||
| 33:33:3.0.1.1.34.3.1.3 | 33 | Navigation and Navigable Waters | II | 385 | PART 385—PROGRAMMATIC REGULATIONS FOR THE COMPREHENSIVE EVERGLADES RESTORATION PLAN | C | Subpart C—CERP Implementation Processes | § 385.13 Projects implemented under additional program authority. | USACE | (a) To expedite implementation of the Plan, the Corps of Engineers and non-Federal sponsors may implement projects under the authority of section 601(c) of WRDA 2000 that are described in the Plan and that will produce a substantial benefit to the restoration, preservation, and protection of the South Florida ecosystem. (b) Each project implemented under the authority of section 601(c) of WRDA 2000 shall: (1) In general, follow the process described in § 385.11; (2) Not be implemented until a Project Implementation Report is prepared and approved in accordance with § 385.26; and (3) Not exceed a total cost of $25,000,000. (c) The total aggregate cost of all projects implemented under the additional program authority shall not exceed $206,000,000. | |||||
| 33:33:3.0.1.1.34.3.1.4 | 33 | Navigation and Navigable Waters | II | 385 | PART 385—PROGRAMMATIC REGULATIONS FOR THE COMPREHENSIVE EVERGLADES RESTORATION PLAN | C | Subpart C—CERP Implementation Processes | § 385.14 Incorporation of NEPA and related considerations into the implementation process. | USACE | (a) General. (1) In implementing the Plan, the Corps of Engineers shall comply with the requirements of NEPA (42 U.S.C. 4371, et seq. ) and applicable implementing regulations, including determining whether a specific action, when considered individually and cumulatively, will have a significant impact on the human environment. (2) As appropriate, other agencies shall be invited to be cooperating agencies in the preparation of NEPA documentation pursuant to § 230.16 of this chapter. (3) The District Engineer is the NEPA official responsible for compliance with NEPA for actions conducted to implement the Plan. Unless otherwise provided for by this part, NEPA coordination for implementation of the plan shall follow the NEPA procedures established in part 230 of this chapter. (b) Actions normally requiring an Environmental Impact Statement (EIS). (1) In addition to the actions listed in § 230.6 of this chapter, actions normally requiring an EIS are: (i) Comprehensive Plan Modification Reports; (ii) System Operating Manual or significant changes to the System Operating Manual; (iii) Project Implementation Reports, including the draft Project Operating Manual when included in the Project Implementation Report; (iv) Pilot Project Design Reports, including the detailed operational testing and monitoring plan; and (v) Project Operating Manuals for any project where a Project Implementation Report is not prepared, or significant changes to Project Operating Manuals. (2) The District Engineer may consider the use of an environmental assessment (EA) on the types of actions described in this paragraph if early studies and coordination show that a particular action, considered individually and cumulatively, is not likely to have a significant impact on the quality of the human environment. (c) Actions normally requiring an EA, but not necessarily an EIS. In addition to the actions listed in § 230.7 of this chapter, actions normally requiring an EA, but not necessarily an EIS, are modifications to Project Oper… | |||||
| 33:33:3.0.1.1.34.3.1.5 | 33 | Navigation and Navigable Waters | II | 385 | PART 385—PROGRAMMATIC REGULATIONS FOR THE COMPREHENSIVE EVERGLADES RESTORATION PLAN | C | Subpart C—CERP Implementation Processes | § 385.15 Consistency with requirements of the State of Florida. | USACE | The State of Florida has established procedures, requirements, and approvals that are needed before the State or the South Florida Water Management District can participate as the non-Federal sponsor for projects of the Plan. Project Implementation Reports shall include such information and analyses, consistent with this part, as are necessary to facilitate review and approval of projects by the South Florida Water Management District and the State pursuant to the requirements of Florida law. | |||||
| 33:33:3.0.1.1.34.3.1.6 | 33 | Navigation and Navigable Waters | II | 385 | PART 385—PROGRAMMATIC REGULATIONS FOR THE COMPREHENSIVE EVERGLADES RESTORATION PLAN | C | Subpart C—CERP Implementation Processes | § 385.16 Design agreements. | USACE | (a) The Corps of Engineers shall execute a design agreement with each non-Federal sponsor for the projects of the Plan prior to initiation of design activities with that non-Federal sponsor. (b) Any procedures, guidance, or documents developed by the Corps of Engineers and the non-Federal sponsor pursuant to a design agreement shall be consistent with this part. | |||||
| 33:33:3.0.1.1.34.3.1.7 | 33 | Navigation and Navigable Waters | II | 385 | PART 385—PROGRAMMATIC REGULATIONS FOR THE COMPREHENSIVE EVERGLADES RESTORATION PLAN | C | Subpart C—CERP Implementation Processes | § 385.17 Project Delivery Team. | USACE | (a) In accordance with the procedures of the Corps of Engineers business process described in Engineer Regulation ER 5-1-11 “US Army Corps of Engineers Business process,” the Corps of Engineers and the non-Federal sponsor shall form a Project Delivery Team to develop the products necessary to implement each project. (b) The Corps of Engineers shall assign, and the non-Federal sponsor may assign, a project manager to lead the Project Delivery Team. (c) The Corps of Engineers and the South Florida Water Management District shall encourage the participation of other Federal, State, and local agencies and the Miccosukee Tribe of Indians of Florida and the Seminole Tribe of Florida on Project Delivery Teams, and use their expertise to ensure that information developed by the Project Delivery Team is shared with agencies, tribes, and the public at the earliest possible time in the implementation process. In forming the Project Delivery Team, the Corps of Engineers and the non-Federal sponsor shall request that the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Miccosukee Tribe of Indians of Florida, the Seminole Tribe of Florida, the Florida Department of Environmental Protection, and other Federal, State, and local agencies participate on the Project Delivery Team. (1) In general, participation on the Project Delivery Team shall be the financial responsibility of the participating agency or tribe. However, the Corps of Engineers shall provide funding for the U.S. Fish and Wildlife Service and the National Marine Fisheries Service to prepare Fish and Wildlife Coordination Act Reports, as required by applicable law, regulation, or agency procedures. (2) Participation by an agency or tribe on the Project Delivery Team shall not be considered or construed to be a substitute for consultation, coordination, or other activities required by applicable law or this part. (d) Documents and work products prepared or developed by the Project Delivery Team shall not be self-exe… | |||||
| 33:33:3.0.1.1.34.3.1.8 | 33 | Navigation and Navigable Waters | II | 385 | PART 385—PROGRAMMATIC REGULATIONS FOR THE COMPREHENSIVE EVERGLADES RESTORATION PLAN | C | Subpart C—CERP Implementation Processes | § 385.18 Public outreach. | USACE | (a) Goals. (1) The goal of public outreach is to open and maintain channels of communication with the public throughout the implementation process for the Plan in order to: (i) Provide information about proposed activities; (ii) Make the public's desires, needs, and concerns known to decision-makers before decisions are reached; and (iii) Consider and respond to the public's views in reaching decisions. (2) In carrying out implementation activities for the Plan, the Corps of Engineers and non-Federal sponsors shall undertake outreach activities to: (i) Increase general public awareness for the Plan; (ii) Involve interested groups and interested communities in the decision-making process and incorporate public values into decisions; (iii) Better serve and involve minority communities and traditionally under served communities, persons with limited English proficiency, and socially and economically disadvantaged individuals; (iv) Improve the substantive quality of decisions as a result of public participation; and (v) Reduce conflict among interested and affected parties by building agreement or consensus on solutions to emerging issues. (b) General requirements. (1) The Corps of Engineers and non-Federal sponsors shall provide a transparent, publicly accessible process through which scientific and technical information is used in the development of policy decisions throughout the implementation process for the Plan. (2) The Corps of Engineers and non-Federal sponsors shall develop and conduct outreach activities for project or program-level activities in order to provide information to the public and to provide opportunities for involvement by the public. (3) The Corps of Engineers and non-Federal sponsors shall monitor the effectiveness of outreach activities throughout the implementation process. (4) Project Management Plans and Program Management Plans shall include information concerning any outreach activities to be undertaken during the implementation of the project or activity. (5) Project… | |||||
| 33:33:3.0.1.1.34.3.1.9 | 33 | Navigation and Navigable Waters | II | 385 | PART 385—PROGRAMMATIC REGULATIONS FOR THE COMPREHENSIVE EVERGLADES RESTORATION PLAN | C | Subpart C—CERP Implementation Processes | § 385.19 Environmental and economic equity. | USACE | (a) Project Management Plans and Program Management Plans shall include information concerning any environmental and economic equity activities to be undertaken during the implementation of the project or activity. (b) As required by applicable laws and policies, the Corps of Engineers and non-Federal sponsors shall consider and evaluate environmental justice issues and concerns in the implementation of projects. (c) During the implementation of the Plan, through appropriate means, consistent with section 601(k) of WRDA 2000 and other provisions of Federal law, the Corps of Engineers and non-Federal sponsors shall provide information to socially and economically disadvantaged individuals and communities, including individuals with limited English proficiency, about potential or anticipated contracting opportunities that are expected to result from implementation of the Plan. (d) The District Engineer shall ensure that small business concerns owned and controlled by socially and economically disadvantaged individuals are provided opportunities to participate under section 15(g) of the Small Business Act (15 U.S.C. 644(g)) throughout the implementation process. The District Engineer shall track the amount of contracts awarded to small business concerns owned and controlled by socially and economically disadvantaged individuals in order to ensure that they are provided such opportunities. | |||||
| 33:33:3.0.1.1.34.4.1.1 | 33 | Navigation and Navigable Waters | II | 385 | PART 385—PROGRAMMATIC REGULATIONS FOR THE COMPREHENSIVE EVERGLADES RESTORATION PLAN | D | Subpart D—Incorporating New Information Into the Plan | § 385.30 Master Implementation Sequencing Plan. | USACE | (a) Not later than December 13, 2004 the Corps of Engineers and the South Florida Water Management District shall, in consultation with the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida, the Florida Department of Environmental Protection, and other Federal, State, and local agencies, develop a Master Implementation Sequencing Plan that includes the sequencing and scheduling for implementation of all of the projects of the Plan, including pilot projects and operational elements, based on the best scientific, technical, funding, contracting, and other information available. The Corps of Engineers and the South Florida Water Management District shall also consult with the South Florida Ecosystem Restoration Task Force in preparing the Master Implementation Sequencing Plan. (1) Projects shall be sequenced and scheduled to maximize the achievement of the goals and purposes of the Plan at the earliest possible time and in the most cost-effective way, consistent with the requirement that each project be justified on a next-added increment basis, including the achievement of the interim goals established pursuant to § 385.38 and the interim targets established pursuant § 385.39, consistent with § 385.36 and § 385.37(b), and to the extent practical given funding, engineering, and other constraints. The sequencing and scheduling of projects shall be based on considering factors, including, but not limited to: (i) Technical dependencies and constraints; (ii) Benefits to be provided by the project; (iii) Availability of lands required for the project; and (iv) Avoiding elimination or transfers of existing legal sources of water until an alternate source of comparable quantity and quality is available, in accordance with § 385.36. (2) The Master Implementation Sequencing Plan shall include appropriate discussion of the logic, constraints, and other parameters used in developing the sequencing and sche… | |||||
| 33:33:3.0.1.1.34.4.1.2 | 33 | Navigation and Navigable Waters | II | 385 | PART 385—PROGRAMMATIC REGULATIONS FOR THE COMPREHENSIVE EVERGLADES RESTORATION PLAN | D | Subpart D—Incorporating New Information Into the Plan | § 385.31 Adaptive management program. | USACE | (a) General. The Corps of Engineers and the South Florida Water Management District shall, in consultation with the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida, the Florida Department of Environmental Protection, and other Federal, State, and local agencies, establish an adaptive management program to assess responses of the South Florida ecosystem to implementation of the Plan; to determine whether or not these responses match expectations, including the achievement of the expected performance level of the Plan, the interim goals established pursuant to § 385.38, and the interim targets established pursuant § 385.39; to determine if the Plan, system or project operations, or the sequence and schedule of projects should be modified to achieve the goals and purposes of the Plan, or to increase net benefits, or to improve cost effectiveness; and to seek continuous improvement of the Plan based upon new information resulting from changed or unforeseen circumstances, new scientific and technical information, new or updated modeling; information developed through the assessment principles contained in the Plan; and future authorized changes to the Plan integrated into the implementation of the Plan. Endorsement of the Plan as a restoration framework is not intended as an artificial constraint on innovation in its implementation. (b) Assessment activities. (1) RECOVER shall develop an assessment program to assess responses of the system to implementation of the Plan. The Corps of Engineers and the South Florida Water Management District shall develop a guidance memorandum in accordance with § 385.5 for approval by the Secretary of the Army, with the concurrence of the Secretary of the Interior and the Governor, that describes the processes to be used to conduct these assessments. (2) RECOVER shall develop a monitoring program that is designed to measure status and trends towards achieving the… | |||||
| 33:33:3.0.1.1.34.4.1.3 | 33 | Navigation and Navigable Waters | II | 385 | PART 385—PROGRAMMATIC REGULATIONS FOR THE COMPREHENSIVE EVERGLADES RESTORATION PLAN | D | Subpart D—Incorporating New Information Into the Plan | § 385.32 Comprehensive Plan Modification Report. | USACE | Whenever the Corps of Engineers and the South Florida Water Management District, in consultation with the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida, the Florida Department of Environmental Protection, and other Federal, State, and local agencies, determine that changes to the Plan are necessary to ensure that the goals and purposes of the Plan are achieved or that they are achieved cost-effectively, or to ensure that each project of the Plan is justified on a next-added increment basis, the Corps of Engineers and the South Florida Water Management District shall, in consultation with the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida, the Florida Department of Environmental Protection, and other Federal, State, and local agencies, prepare a Comprehensive Plan Modification Report using a process that is consistent with the provisions of § 385.10, § 385.14, § 385.18, and § 385.19. The Corps of Engineers and the South Florida Water Management District shall also consult with the South Florida Ecosystem Restoration Task Force in preparing the Comprehensive Plan Modification Report. (a) General requirements. The Comprehensive Plan Modification Report shall: (1) Be initiated at the discretion of the Corps of Engineers and the South Florida Water Management District in consultation with the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida, the Florida Department of Environmental Protection, and other Federal, State, and local agencies, after consideration of the assessment report prepared in accordance with § 385.31(b), requests from the Department of the Interior or the State, or other appropriate information; (2) Comply with all applicable Federal and State… | |||||
| 33:33:3.0.1.1.34.4.1.4 | 33 | Navigation and Navigable Waters | II | 385 | PART 385—PROGRAMMATIC REGULATIONS FOR THE COMPREHENSIVE EVERGLADES RESTORATION PLAN | D | Subpart D—Incorporating New Information Into the Plan | § 385.33 Revisions to models and analytical tools. | USACE | (a) In carrying out their responsibilities for implementing the Plan, the Corps of Engineers, the South Florida Water Management District, and other non-Federal sponsors shall rely on the best available science including models and other analytical tools for conducting analyses for the planning, design, construction, operation, and assessment of projects. The selection of models and analytical tools shall be done in consultation with the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Miccosukee Tribe of Indians of Florida, the Seminole Tribe of Florida, the Florida Department of Environmental Protection, and other Federal, State, and local agencies. (b) The Corps of Engineers, the South Florida Water Management District, and other non-Federal sponsors may, in consultation with the Department of the Interior, the Miccosukee Tribe of Indians of Florida, the Seminole Tribe of Florida, the Environmental Protection Agency, the Department of Commerce, the Florida Department of Environmental Protection, and other Federal, State, and local agencies, periodically revise models and analytical tools or develop new models and analytical tools as needed. As appropriate, RECOVER shall review the adequacy of system-wide simulation models and analytical tools used in the evaluation and assessment of projects, and shall propose improvements in system-wide models and analytical tools required for the evaluation and assessment tasks. (c) The Corps of Engineers and the South Florida Water Management District shall determine on a case-by-case basis what documentation is appropriate for revisions to models and analytic tools, depending on the significance of the changes and their impacts to the Plan. Such changes may be treated as Minor Changes to the Plan, in accordance with § 385.32(c) where appropriate. | |||||
| 33:33:3.0.1.1.34.4.1.5 | 33 | Navigation and Navigable Waters | II | 385 | PART 385—PROGRAMMATIC REGULATIONS FOR THE COMPREHENSIVE EVERGLADES RESTORATION PLAN | D | Subpart D—Incorporating New Information Into the Plan | § 385.34 Changes to the Plan. | USACE | (a) The Plan shall be updated to incorporate approved changes to the Plan resulting from: (1) Approval by the Secretary of the Army of a project to be implemented pursuant to § 385.13; (2) Authorization of projects by Congress; (3) Comprehensive Plan Modification Reports approved by Congress; or (4) Other changes authorized by Congress. (b) The Corps of Engineers and the South Florida Water Management District shall annually prepare a document for dissemination to the public that describes: (1) The components of the Plan, including any approved changes to the Plan; (2) The estimated cost of the Plan, including any approved changes to the Plan; (3) A water budget for the Plan; and (4) The water that has been reserved or allocated for the natural system under State law for the Plan. (c) The Corps of Engineers shall annually provide to the Office of Management and Budget an updated estimate of total cost of the Plan, the costs of individual project components, and an explanation of any changes in these estimates from the initial estimates contained in the “Final Integrated Feasibility Report and Programmatic Environmental Impact Statement,” dated April 1, 1999. | |||||
| 33:33:3.0.1.1.34.5.1.1 | 33 | Navigation and Navigable Waters | II | 385 | PART 385—PROGRAMMATIC REGULATIONS FOR THE COMPREHENSIVE EVERGLADES RESTORATION PLAN | E | Subpart E—Ensuring Protection of the Natural System and Water Availability Consistent With the Goals and Purpose of the Plan | § 385.35 Achievement of the benefits of the Plan. | USACE | (a) Pre-CERP baseline water availability and quality. (1) Not later than June 14, 2004 the Corps of Engineers and the South Florida Water Management District shall, in consultation with the Department of the Interior, the Miccosukee Tribe of Indians of Florida, the Seminole Tribe of Florida, the Environmental Protection Agency, the Department of Commerce, the Florida Department of Environmental Protection, and other Federal, State, and local agencies, develop for approval by the Secretary of the Army, the pre-CERP baseline to be used to aid the Corps of Engineers and the South Florida Water Management District in determining if existing legal sources of water will be eliminated or transferred as a result of project implementation as described in § 385.36 and memorialize the pre-CERP baseline in an appropriate document. The Corps of Engineers and the South Florida Water Management District shall consult with the South Florida Ecosystem Restoration Task Force in the development of the pre-CERP baseline. (i) The pre-CERP baseline may express the quantity, timing, and distribution of water in stage duration curves; exceedance frequency curves; quantities available in average, wet, and dry years; or any other method which is based on the best available science. (ii) The pre-CERP baseline shall include appropriate documentation that includes a description of the assumptions used to develop the pre-CERP baseline. (iii) In addition to the development of the pre-CERP baseline, the Corps of Engineers and the South Florida Water Management District shall conduct other analyses that they deem necessary to determine if an existing legal source of water has been eliminated or transferred or if a new source of water is of comparable quality to that which has been eliminated or transferred in accordance with § 385.36. (2) In accordance with § 385.18, the Corps of Engineers and the South Florida Water Management District shall provide opportunities for the public to review and comment on the pre-CERP baseline. (3) The pre-… | |||||
| 33:33:3.0.1.1.34.5.1.2 | 33 | Navigation and Navigable Waters | II | 385 | PART 385—PROGRAMMATIC REGULATIONS FOR THE COMPREHENSIVE EVERGLADES RESTORATION PLAN | E | Subpart E—Ensuring Protection of the Natural System and Water Availability Consistent With the Goals and Purpose of the Plan | § 385.36 Elimination or transfer of existing legal sources of water. | USACE | (a) Pursuant to the provisions of section 601(h)(5)(A) of WRDA 2000, Project Implementation Reports shall include analyses to determine if existing legal sources of water are to be eliminated or transferred as a result of project implementation. If implementation of the project shall cause an elimination or transfer of existing legal sources of water, then the Project Implementation Report shall include an implementation plan that ensures that such elimination or transfer shall not occur until a new source of water of comparable quantity and quality is available to replace the water to be lost as a result of implementation of the Plan. The Corps of Engineers and the non-Federal sponsor shall determine if implementation of the project will cause an elimination or transfer of existing legal sources of water by comparing the availability of water with the recommended project with the pre-CERP baseline developed in accordance with § 385.35(a), by using the water quality and other analyses developed in § 385.35(a)(1)(iii), and by using other appropriate information. (b) The Corps of Engineers and the South Florida Water Management District shall develop a guidance memorandum in accordance with § 385.5 for approval by the Secretary of the Army, with the concurrence of the Secretary of the Interior and the Governor, that describes the process for determining if existing legal sources of water are to be eliminated or transferred and for determining how and when a new source of water of comparable quantity and quality as that available on the date of enactment of WRDA 2000 is available to replace the water to be lost as a result of implementation of the Plan. The guidance memorandum shall also describe the process for comparing the recommended project with the pre-CERP baseline to determine if existing legal sources of water are to be transferred or eliminated as a result of project implementation. The guidance memorandum shall include a definition for existing legal sources of water for the purposes of determining if ex… | |||||
| 33:33:3.0.1.1.34.5.1.3 | 33 | Navigation and Navigable Waters | II | 385 | PART 385—PROGRAMMATIC REGULATIONS FOR THE COMPREHENSIVE EVERGLADES RESTORATION PLAN | E | Subpart E—Ensuring Protection of the Natural System and Water Availability Consistent With the Goals and Purpose of the Plan | § 385.37 Flood protection. | USACE | (a) General. In accordance with section 601 of WRDA 2000, flood protection, consistent with restoration, preservation, and protection of the natural system, is a purpose of the Plan. (b) Existing flood protection. Each Project Implementation Report shall include appropriate analyses, and consider the operational conditions included in the pre-CERP baseline developed pursuant to § 385.35(a), to demonstrate that the levels of service for flood protection that: (1) Were in existence on the date of enactment of section 601 of WRDA 2000; and (2) Are in accordance with applicable law, will not be reduced by implementation of the project. (c) Improved and new flood protection. The overarching objective of the Plan is the restoration, preservation, and protection of the South Florida Ecosystem while providing for other water-related needs of the region, including water supply and flood protection. As appropriate, the Corps of Engineers and the non-Federal sponsor shall consider opportunities to provide additional flood protection, consistent with restoration of the natural system, and the provisions of section 601(f)(2)(B) of WRDA 2000 and other applicable laws. | |||||
| 33:33:3.0.1.1.34.5.1.4 | 33 | Navigation and Navigable Waters | II | 385 | PART 385—PROGRAMMATIC REGULATIONS FOR THE COMPREHENSIVE EVERGLADES RESTORATION PLAN | E | Subpart E—Ensuring Protection of the Natural System and Water Availability Consistent With the Goals and Purpose of the Plan | § 385.38 Interim goals. | USACE | (a) Agreement. (1) The Secretary of the Army, the Secretary of the Interior, and the Governor shall, not later than December 13, 2004, and in consultation with the Environmental Protection Agency, the Department of Commerce, the Miccosukee Tribe of Indians of Florida, the Seminole Tribe of Florida, and other Federal, State, and local agencies, and the South Florida Ecosystem Restoration Task Force, execute an Interim Goals Agreement establishing interim goals to facilitate inter-agency planning, monitoring, and assessment so as to achieve the overarching objectives of the Plan and to provide a means by which the restoration success of the Plan may be evaluated, and ultimately reported to Congress in accordance with § 385.40 throughout the implementation process. (2) After execution of the Interim Goals Agreement, the Department of the Army shall memorialize the agreement in appropriate Corps of Engineers guidance. (b) Purpose. (1) Interim goals are a means by which the restoration success of the Plan may be evaluated at specific points by agency managers, the State, and Congress throughout the overall planning and implementation process. In addition, interim goals will facilitate adaptive management and allow the Corps of Engineers and its non-Federal sponsors opportunities to make adjustments if actual project performance is less than anticipated, including recommending changes to the Plan. Interim goals are not standards or schedules enforceable in court. (2) The interim goals shall: (i) Facilitate inter-agency planning, monitoring and assessment; (ii) Be provided to the independent scientific review panel established in accordance with § 385.22(a); (iii) Be considered in developing the Master Implementation Sequencing Plan, Project Implementation Reports, and Comprehensive Plan Modification Reports; and (iv) Be considered in making budgetary decisions concerning implementation of the Plan. (3) To ensure flexibility in implementing the Plan over the next several decades, and to ensure that interim g… | |||||
| 33:33:3.0.1.1.34.5.1.5 | 33 | Navigation and Navigable Waters | II | 385 | PART 385—PROGRAMMATIC REGULATIONS FOR THE COMPREHENSIVE EVERGLADES RESTORATION PLAN | E | Subpart E—Ensuring Protection of the Natural System and Water Availability Consistent With the Goals and Purpose of the Plan | § 385.39 Evaluating progress towards other water-related needs of the region provided for in the Plan. | USACE | (a) Purpose. (1) The overarching objective of the Plan is the restoration, preservation, and protection of the South Florida ecosystem while providing for other water-related needs of the region, including water supply and flood protection. Progress towards providing for these other water-related needs shall also be evaluated. (2) As provided for in paragraph (c) of this section, the Secretary of the Army and the Governor shall establish interim targets for evaluating progress towards other water-related needs of the region provided for in the Plan throughout the implementation process. The interim targets and interim goals shall be consistent with each other. (3) The Department of the Army shall include these interim targets in appropriate Corps of Engineers guidance. (4) To ensure flexibility in implementing the Plan over the next several decades, and to ensure that interim targets may reflect changed circumstances or new information resulting from adaptive management, the interim targets may be modified, consistent with the processes set forth in paragraph (c) of this section, to reflect new information resulting from changed or unforeseen circumstances, new scientific and technical information, new or updated modeling; information developed through the assessment principles contained in the Plan; and future authorized changes to the Plan integrated into the implementation of the Plan. (5) The Corps of Engineers and the South Florida Water Management District shall sequence and schedule projects as appropriate to achieve the interim goals and interim targets for other water-related needs of the region provided for in the Plan, to the extent practical given funding, technical, or other constraints. (6) If the interim targets have not been met or are unlikely to be met, then the Corps of Engineers and the South Florida Water Management District shall determine why the interim targets have not been met or are unlikely to be met and either: (i) Initiate adaptive management actions pursuant to § 385.31(d) t… | |||||
| 33:33:3.0.1.1.34.5.1.6 | 33 | Navigation and Navigable Waters | II | 385 | PART 385—PROGRAMMATIC REGULATIONS FOR THE COMPREHENSIVE EVERGLADES RESTORATION PLAN | E | Subpart E—Ensuring Protection of the Natural System and Water Availability Consistent With the Goals and Purpose of the Plan | § 385.40 Reports to Congress. | USACE | (a) Beginning on October 1, 2005 and periodically thereafter until October 1, 2036, the Secretary of the Army and the Secretary of the Interior shall jointly submit to Congress a report on the implementation of the Plan as required by section 601(l) of WRDA 2000. Such reports shall be completed not less often than every five years. (b) This report shall be prepared in consultation with the Environmental Protection Agency, the Department of Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida, the Florida Department of Environmental Protection, the South Florida Water Management District, and other Federal, State, and local agencies and the South Florida Ecosystem Restoration Task Force. (c) Such reports shall include a description of planning, design, and construction work completed, the amount of funds expended during the period covered by the report, including a detailed analysis of the funds expended for adaptive management, and the work anticipated over the next five-year period and updated estimates of total cost of the Plan and individual component costs and an explanation of any changes from the initial estimates contained in the “Final Integrated Feasibility Report and Programmatic Environmental Impact Statement,” dated April 1, 1999. (d) In addition, each report shall include: (1) The determination of each Secretary, and the Administrator of the Environmental Protection Agency, concerning the benefits to the natural system and the human environment achieved as of the date of the report and whether the completed projects of the Plan are being operated in a manner that is consistent with the requirements of section 601(h) of WRDA 2000; (2) Progress towards the interim goals established in accordance with § 385.38 for assessing progress towards achieving the benefits to the natural system; (3) Progress towards interim targets for other water-related needs of the region provided for in the Plan established pursuant § 385.39 for assessing progress towards achieving the ben… | |||||
| 34:34:2.1.1.1.18.1.137.1 | 34 | Education | III | 385 | PART 385—REHABILITATION TRAINING | A | Subpart A—General | § 385.1 What is the Rehabilitation Training program? | ED | (a) Purpose. The Rehabilitation Training program is designed to— (1) Ensure that skilled personnel are available to provide rehabilitation services to individuals with disabilities through vocational, medical, social, and psychological rehabilitation programs (including supported employment programs), through economic and business development programs, through independent living services programs, and through client assistance programs; (2) Maintain and upgrade basic skills and knowledge of personnel employed, including personnel specifically trained to deliver rehabilitation services, including supported employment services and customized employment services, to individuals with the most significant disabilities, and personnel specifically trained to deliver services to individuals with disabilities whose employment outcome is self-employment, business ownership, or telecommuting, to provide state-of-the-art service delivery and rehabilitation technology services; and (3) Provide training and information to individuals with disabilities, the parents, families, guardians, advocates, and authorized representatives of the individuals, and other appropriate parties to develop the skills necessary for individuals with disabilities to access the rehabilitation system and to become active decision makers in the vocational rehabilitation process. (b) The Secretary awards grants and contracts on a competitive basis to pay part of the costs of projects for training, traineeships or scholarships, and related activities, including the provision of technical assistance, to assist in increasing the numbers of qualified personnel trained in providing vocational rehabilitation services and other services provided under the Act, to individuals with disabilities. Financial assistance is provided through multiple training programs, including: (1) Rehabilitation Long-Term Training (34 CFR part 386). (2) Innovative Rehabilitation Training (34 CFR part 387). (3) Rehabilitation Short-Term Training (34 CFR part 390). (4) Trai… | |||||
| 34:34:2.1.1.1.18.1.137.2 | 34 | Education | III | 385 | PART 385—REHABILITATION TRAINING | A | Subpart A—General | § 385.2 Who is eligible for assistance under these programs? | ED | States and public or private nonprofit agencies and organizations, including Indian tribes and institutions of higher education, are eligible for assistance under the Rehabilitation Training program. | |||||
| 34:34:2.1.1.1.18.1.137.3 | 34 | Education | III | 385 | PART 385—REHABILITATION TRAINING | A | Subpart A—General | § 385.3 What regulations apply to these programs? | ED | The following regulations apply to the Rehabilitation Training program: (a) The Education Department General Administrative Regulations (EDGAR) as follows: (1) 34 CFR part 75 (Direct Grant Programs). (2) 34 CFR part 77 (Definitions That Apply to Department Regulations). (3) 34 CFR part 79 (Intergovernmental Review of Department of Education Programs and Activities). (4) 34 CFR part 81 (General Education Provisions Act—Enforcement). (5) 34 CFR part 82 (New Restrictions on Lobbying). (6) 34 CFR part 84 (Governmentwide Requirements for Drug-Free Workplace (Financial Assistance). (7) 34 CFR part 86 (Drug-Free Schools and Campuses). (8) 34 CFR part 97 (Protection of Human Subjects). (9) 34 CFR part 98 (Student Rights in Research, Experimental Programs, and Testing. (10) 34 CFR part 99 (Family Educational Rights and Privacy). (b) The regulations in this part 385. (c) [Reserved] (d)(1) 2 CFR part 180 (OMB Guidelines to Agencies on Debarment and Suspension (Nonprocurement)), as adopted at 2 CFR part 3485; and (2) 2 CFR part 200 (Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards) as adopted at 2 CFR part 3474. | |||||
| 34:34:2.1.1.1.18.1.137.4 | 34 | Education | III | 385 | PART 385—REHABILITATION TRAINING | A | Subpart A—General | § 385.4 What definitions apply to these programs? | ED | [81 FR 55614, Aug. 19, 2016, as amended at 82 FR 31913, July 11, 2017] | (a) The following definitions in 34 CFR part 77 apply to the programs under the Rehabilitation Training Program— Applicant Application Award Budget Period Department EDGAR Grantee Nonprofit Private Project Project Period Public Secretary Applicant Application Award Budget Period Department EDGAR Grantee Nonprofit Private Project Project Period Public Secretary (b) The following definitions also apply to programs under the Rehabilitation Training program: Act means the Rehabilitation Act of 1973, as amended (29 U.S.C. 701 et seq. ). Assistive technology means technology designed to be utilized in an assistive technology device or assistive technology service. Assistive technology device means any item, piece of equipment, or product system, whether acquired commercially off the shelf, modified, or customized, that is used to increase, maintain, or improve functional capabilities of individuals with disabilities. Assistive technology service means any service that directly assists an individual with a disability in the selection, acquisition, or use of an assistive technology device. The term includes— (i) The evaluation of the needs of an individual with a disability, including a functional evaluation of the individual in the individual's customary environment; (ii) Purchasing, leasing, or otherwise providing for the acquisition of assistive technology devices by individuals with disabilities; (iii) Selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing of assistive technology devices; (iv) Coordinating and using other therapies, interventions, or services with assistive technology devices, such as those associated with existing education and rehabilitation plans and programs; (v) Training or technical assistance for an individual with disabilities, or, if appropriate, the family of an individual with disabilities; (vi) Training or technical assistance for professionals (including individuals providing e… | ||||
| 34:34:2.1.1.1.18.3.137.1 | 34 | Education | III | 385 | PART 385—REHABILITATION TRAINING | C | Subpart C—How Does One Apply for a Grant? | § 385.20 What are the application procedures for these programs? | ED | The Secretary gives the designated State agency an opportunity to review and comment on applications submitted from within the State that it serves. The procedures to be followed by the applicant and the State are in 34 CFR 75.155 through 75.159. | |||||
| 34:34:2.1.1.1.18.4.137.1 | 34 | Education | III | 385 | PART 385—REHABILITATION TRAINING | D | Subpart D—How Does the Secretary Make a Grant? | § 385.30 [Reserved] | ED | ||||||
| 34:34:2.1.1.1.18.4.137.2 | 34 | Education | III | 385 | PART 385—REHABILITATION TRAINING | D | Subpart D—How Does the Secretary Make a Grant? | § 385.31 How does the Secretary evaluate an application? | ED | (a) The Secretary evaluates applications under the procedures in 34 CFR part 75. (b) The Secretary evaluates each application using selection criteria identified in parts 386, 387, and 390, as appropriate. (c) In addition to the selection criteria described in paragraph (b) of this section, the Secretary evaluates each application using— (1) Selection criteria in 34 CFR 75.210; (2) Selection criteria established under 34 CFR 75.209; or (3) A combination of selection criteria established under 34 CFR 75.209 and selection criteria in 34 CFR 75.210. | |||||
| 34:34:2.1.1.1.18.4.137.3 | 34 | Education | III | 385 | PART 385—REHABILITATION TRAINING | D | Subpart D—How Does the Secretary Make a Grant? | § 385.33 What other factors does the Secretary consider in reviewing an application? | ED | In addition to the selection criteria listed in § 75.210 and parts 386, 387, and 390, the Secretary, in making awards under this program, considers such factors as— (a) The geographical distribution of projects in each Rehabilitation Training Program category throughout the country; and (b) The past performance of the applicant in carrying out similar training activities under previously awarded grants, as indicated by such factors as compliance with grant conditions, soundness of programmatic and financial management practices and attainment of established project objectives. | |||||
| 34:34:2.1.1.1.18.5.137.1 | 34 | Education | III | 385 | PART 385—REHABILITATION TRAINING | E | Subpart E—What Conditions Must Be Met by a Grantee? | § 385.40 What are the requirements pertaining to the membership of a project advisory committee? | ED | If a project establishes an advisory committee, its membership must include individuals with disabilities or parents, family members, guardians, advocates, or other authorized representatives of the individuals; members of minority groups; trainees; and providers of vocational rehabilitation and independent living rehabilitation services. | |||||
| 34:34:2.1.1.1.18.5.137.2 | 34 | Education | III | 385 | PART 385—REHABILITATION TRAINING | E | Subpart E—What Conditions Must Be Met by a Grantee? | § 385.41 What are the requirements affecting the collection of data from designated State agencies? | ED | If the collection of data is necessary from individuals with disabilities being served by two or more designated State agencies or from employees of two or more of these agencies, the project director must submit requests for the data to appropriate representatives of the affected agencies, as determined by the Secretary. This requirement also applies to employed project staff and individuals enrolled in courses of study supported under these programs. | |||||
| 34:34:2.1.1.1.18.5.137.3 | 34 | Education | III | 385 | PART 385—REHABILITATION TRAINING | E | Subpart E—What Conditions Must Be Met by a Grantee? | § 385.42 What are the requirements affecting the dissemination of training materials? | ED | A set of any training materials developed under the Rehabilitation Training Program must be submitted to any information clearinghouse designated by the Secretary. | |||||
| 34:34:2.1.1.1.18.5.137.4 | 34 | Education | III | 385 | PART 385—REHABILITATION TRAINING | E | Subpart E—What Conditions Must Be Met by a Grantee? | § 385.43 What requirements apply to the training of rehabilitation counselors and other rehabilitation personnel? | ED | Any grantee who provides training of rehabilitation counselors or other rehabilitation personnel must train those counselors and personnel on the services provided under this Act, and, in particular, services provided in accordance with amendments made to the Rehabilitation Act by the Workforce Innovation and Opportunity Act of 2014. The grantee must also furnish training to these counselors and personnel regarding applications of rehabilitation technology in vocational rehabilitation services, the applicability of section 504 of this Act, title I of the Americans with Disabilities Act of 1990, and the provisions of titles II and XVI of the Social Security Act that are related to work incentives for individuals with disabilities. | |||||
| 34:34:2.1.1.1.18.5.137.5 | 34 | Education | III | 385 | PART 385—REHABILITATION TRAINING | E | Subpart E—What Conditions Must Be Met by a Grantee? | § 385.44 What requirement applies to the training of individuals with disabilities? | ED | Any grantee or contractor who provides training shall give due regard to the training of individuals with disabilities as part of its effort to increase the number of qualified personnel available to provide rehabilitation services. | |||||
| 34:34:2.1.1.1.18.5.137.6 | 34 | Education | III | 385 | PART 385—REHABILITATION TRAINING | E | Subpart E—What Conditions Must Be Met by a Grantee? | § 385.45 What additional application requirements apply to the training of individuals for rehabilitation careers? | ED | (a) All applicants for a grant or contract to provide training shall demonstrate how the training they plan to provide will prepare rehabilitation professionals to address the needs of individuals with disabilities from minority backgrounds. (b) All applicants for a grant shall include a detailed description of strategies that will be utilized to recruit and train persons so as to reflect the diverse populations of the United States, as part of the effort to increase the number of individuals with disabilities, individuals who are members of minority groups, who are available to provide rehabilitation services. | |||||
| 34:34:2.1.1.1.18.5.137.7 | 34 | Education | III | 385 | PART 385—REHABILITATION TRAINING | E | Subpart E—What Conditions Must Be Met by a Grantee? | § 385.46 What limitations apply to the rate of pay for experts or consultants appointed or serving under contract under the Rehabilitation Training program? | ED | An expert or consultant appointed or serving under contract pursuant to this section shall be compensated at a rate subject to approval of the Commissioner which shall not exceed the daily equivalent of the rate of pay for level 4 of the Senior Executive Service Schedule under section 5382 of title 5, United States Code. Such an expert or consultant may be allowed travel and transportation expenses in accordance with section 5703 of title 5, United States Code. | |||||
| 46:46:8.0.1.11.40.0.12.1 | 46 | Shipping | II | J | 385 | PART 385—RESEARCH AND DEVELOPMENT GRANT AND COOPERATIVE AGREEMENTS REGULATIONS | § 385.1 Scope. | FMC | This part sets forth information about the Maritime Administration (MarAd) assistance regulations: Their purpose, authority, applicability, issuance, arrangement, implementation, and exception procedure; definitions of terms; and general MarAd assistance policies. | ||||||
| 46:46:8.0.1.11.40.0.13.2 | 46 | Shipping | II | J | 385 | PART 385—RESEARCH AND DEVELOPMENT GRANT AND COOPERATIVE AGREEMENTS REGULATIONS | § 385.2 Scope. | FMC | Sections 385.2 through 385.9 set forth introductory information pertaining to the MarAd assistance regulations: Their purpose, authority, applicability, exclusions, issuance, arrangement, publication, and exceptions. | ||||||
| 46:46:8.0.1.11.40.0.13.3 | 46 | Shipping | II | J | 385 | PART 385—RESEARCH AND DEVELOPMENT GRANT AND COOPERATIVE AGREEMENTS REGULATIONS | § 385.3 Purpose. | FMC | Sections 385.2 through 385.9 establish the MarAd assistance regulations which codify, implement, and publish uniform assistance policies and selected procedures applicable to MarAd and recipients of MarAd assistance awards. The MarAd assistance regulations do not, in and of themselves, provide authority for the use of assistance instruments nor the making of assistance awards where statutory authority has not been otherwise provided. Generic authority to award grants and cooperative agreements is provided in Pub. L. 95-224, the Federal Grant and Cooperative Agreement Act of 1977. The assistance regulations are distinct from the Federal and MarAd and Department of Transportation procurement regulations. | ||||||
| 46:46:8.0.1.11.40.0.13.4 | 46 | Shipping | II | J | 385 | PART 385—RESEARCH AND DEVELOPMENT GRANT AND COOPERATIVE AGREEMENTS REGULATIONS | § 385.4 Authority. | FMC | The MarAd assistance regulations are issued pursuant to section 204(b) of the Merchant Marine Act, 1936, as amended (46 U.S.C. 1114(b)), and pursuant to delegation of authority by the Secretary of Transportation to the Maritime Administrator, Department of Transportation. | ||||||
| 46:46:8.0.1.11.40.0.13.5 | 46 | Shipping | II | J | 385 | PART 385—RESEARCH AND DEVELOPMENT GRANT AND COOPERATIVE AGREEMENTS REGULATIONS | § 385.5 Applicability. | FMC | The MarAd assistance regulations apply to all MarAd research and development programs which will result in assistance awards, and to all recipients eligible for MarAd assistance awards such as state and local governments, institutions of higher education, hospitals, other nonprofit organizations, individuals, profitmaking organizations, and foreign organizations. The provisions of this part govern the award and administration of all such financial assistance matters, including resolutions and guidelines issued by MarAd except: (a) As otherwise required by statute; and, (b) As otherwise provided by specific program regulations. | ||||||
| 46:46:8.0.1.11.40.0.13.6 | 46 | Shipping | II | J | 385 | PART 385—RESEARCH AND DEVELOPMENT GRANT AND COOPERATIVE AGREEMENTS REGULATIONS | § 385.6 Exclusions. | FMC | Excluded from this part are requirements pertaining to procurement contracts subject to the Federal Property and Administrative Services Act of 1949 and the Federal and MarAd procurement regulations, interagency agreements, memorandums of understanding and programs or projects which directly disseminate technical information, or provide consultation, technical service, information, and data counseling to recipients without the use of an assistance instrument. Also excluded is the sale, lease, license, or other authorization to use Federal property, when such use is not incidental to the purpose of stimulation or support. | ||||||
| 46:46:8.0.1.11.40.0.13.7 | 46 | Shipping | II | J | 385 | PART 385—RESEARCH AND DEVELOPMENT GRANT AND COOPERATIVE AGREEMENTS REGULATIONS | § 385.7 Issuance. | FMC | The MarAd assistance regulations are issued in the Code of Federal Regulations as Part 385, Chapter II, of Title 46, Shipping, after publication in the Federal Register. Copies of the MarAd assistance regulations in the Federal Register and Code of Federal Regulations may be purchased from the Superintendent of Documents, Government Printing Office, Washington, DC 20402. | ||||||
| 46:46:8.0.1.11.40.0.13.8 | 46 | Shipping | II | J | 385 | PART 385—RESEARCH AND DEVELOPMENT GRANT AND COOPERATIVE AGREEMENTS REGULATIONS | § 385.8 Arrangement. | FMC | (a) General Plan. The general format, numbering system, and nomenclature used in this part conform with Federal Register standards. (b) Citation. The MarAd assistance regulations will be cited in accordance with Federal Register standards. Thus, this paragraph, when referred to within divisions of the MarAd assistance regulations, should be cited as “§ 385.8(b).” When this section is referred to formally in other documents outside of this part, it should be cited as “46 CFR 385.8(b).” (c) Implementation. Instructions and procedures needed by MarAd to internally implement this part will be contained in a separate MarAd Financial Assistance Manual, which will be available to the public upon request. | ||||||
| 46:46:8.0.1.11.40.0.13.9 | 46 | Shipping | II | J | 385 | PART 385—RESEARCH AND DEVELOPMENT GRANT AND COOPERATIVE AGREEMENTS REGULATIONS | § 385.9 Exceptions, deviations, or waivers. | FMC | Requests for exceptions, deviations, or waivers from the requirements of this part, unless exceptions are required by program legislation or program regulations, shall be submitted to the Grants Officer. Exceptions may be approved by the Grants Officer on matters within the scope of his authority, or obtained by said Grants Officer from higher authority within the Department of Transportation or from the Office of Management and Budget when required by law or other applicable Federal requirement. | ||||||
| 46:46:8.0.1.11.40.0.14.10 | 46 | Shipping | II | J | 385 | PART 385—RESEARCH AND DEVELOPMENT GRANT AND COOPERATIVE AGREEMENTS REGULATIONS | § 385.20 Scope. | FMC | Only those definitions needed to understand this part will be defined. Generally, terms defined elsewhere in statutes, OMB circulars, and other Federal requirements will not be restated. Special attention is directed to the definitions in the Standard General Provisions of MarAd's grant and cooperative agreements (See § 385.62). | ||||||
| 46:46:8.0.1.11.40.0.14.11 | 46 | Shipping | II | J | 385 | PART 385—RESEARCH AND DEVELOPMENT GRANT AND COOPERATIVE AGREEMENTS REGULATIONS | § 385.21 Definitions. | FMC | (a) Assistance is where the principal purpose of the relationship is the transfer of money, property, services or anything of value to a recipient in order to accomplish a public purpose of support or stimulation authorized by Federal statute rather than of acquisition, by purchase, lease, or barter, of property or services for the direct benefit or use of the Federal Government. (b) Assistance instrument is a general term which identifies a class of instruments used to award assistance. These instruments include grant and cooperative agreements, as defined in § 385.32 (c) and (d) of this part. (c) Act means the Federal Grant and Cooperative Agreement Act of 1977 (Pub. L. 95-224). (d) MarAd means the Maritime Administration within the Department of Transportation. (e) Secretary means the Secretary of Transportation. (f) Maritime Administrator means the Maritime Administrator, Department of Transportation to whom the Secretary has delegated authority to administer within MarAd the provisions of the Act. (g) Grants Officer means the primary delegate of the Maritime Administrator responsible for administration of grants and cooperative agreements for research and development within MarAd. (h) Awards Officer means the principal executive subordinate to the Grants Officer responsible for the day-to-day administration of grants and cooperative agreements for research and development. | ||||||
| 46:46:8.0.1.11.40.0.15.12 | 46 | Shipping | II | J | 385 | PART 385—RESEARCH AND DEVELOPMENT GRANT AND COOPERATIVE AGREEMENTS REGULATIONS | § 385.31 Scope. | FMC | Sections 385.31 through 385.62 set forth the regulations applicable to all assistance instruments as defined herein. | ||||||
| 46:46:8.0.1.11.40.0.15.13 | 46 | Shipping | II | J | 385 | PART 385—RESEARCH AND DEVELOPMENT GRANT AND COOPERATIVE AGREEMENTS REGULATIONS | § 385.32 Selection of award instrument. | FMC | (a) General. This section provides guidance on the appropriate use of award instruments consistent with the Act and the supplementary interpretative guidelines required by section 9 of the Act, which were published by the OMB in the Federal Register of August 18, 1978 (41 FR 36860), and are incorporated by reference herein. This section applies to all program and individual transactions where the choice of award instruments is within the administrative discretion of MarAd and is not otherwise prescribed or limited by law. A variety of award instruments is available as the means for defining the terms and conditions and the nature of the relationship between MarAd and eligible recipients. The award instruments are intended to be different in purpose, application, content, and nature. When properly employed, they create different relationships between the parties. Because of these differences, the decision to use a particular instrument must be made deliberately. The determination of whether a program, to be implemented through individual transactions, is principally one of acquisition or assistance will be made by the Grants Officer. MarAd generally will employ the cooperative agreement form of assistance instrument but will employ the grant form where deemed appropriate. (b) Procurement contract. A procurement contract shall be used as the legal instrument to reflect a relationship between the Federal Government and a state or local government or other recipient whenever (1) the principal purpose of the instrument is the acquisition by purchase, lease, or barter, of property or services for the direct benefit or use of the Federal Government; or (2) whenever MarAd determines in a specific instance that the use of a type of procurement contract is appropriate. (c) Grant agreement. A type of grant agreement shall be used as the legal instrument to reflect a relationship between the Federal Government and a state or local government or other recipient whenever the principal purpose of the relationship is t… | ||||||
| 46:46:8.0.1.11.40.0.15.14 | 46 | Shipping | II | J | 385 | PART 385—RESEARCH AND DEVELOPMENT GRANT AND COOPERATIVE AGREEMENTS REGULATIONS | § 385.33 Unsolicited applications and proposals for financial assistance awards. | FMC | (a) Policy. Although it is MarAd policy to solicit applications and proposals for assistance awards where possible, MarAd also values obtaining innovative ideas, methods, and approaches in maritime transportation areas offered by the public through unsolicited applications and proposals. It is the policy of the Government to foster and encourage the submission of unsolicited proposals. This § 385.33 is designed to encourage the submisson of unsolicited proposals relating to MarAd's mission and to eliminate restraints which discourage the generation and acceptance of innovative ideas through unsolicited proposals. (b) Scope. This section applies to unsolicited proposals being considered for support through an assistance instrument. This section does not apply when a procurement contract is the appropriate award instrument in accordance with § 385.32(b). (c) Definition of unsolicited proposal. The term unsolicited proposal means a written offer to perform a proposed task or effort, initiated and submitted to MarAd by a prospective recipient (offeror) without solicitation by MarAd, and with the objective of obtaining an award. The term may include both requests for support of a new project and requests for additional support of a previously funded project (renewals). (d) Advance consultation. Organizations or individuals who are interested in submitting an unsolicited proposal are encouraged, before expending extensive effort in preparing a detailed unsolicited proposal or submitting any proprietary information to the Government, to make preliminary inquiries of MarAd program staff as to the general interest in the type of project contemplated. Prior contact with agency technical personnel is permissible and is encouraged, with the limited objectives of conveying to the prospective recipient an understanding of the agency mission and interest relative to the type of project contemplated. The project officer shall not indicate or imply in discussions with the potential proposer that a proposal will resul… | ||||||
| 46:46:8.0.1.11.40.0.15.15 | 46 | Shipping | II | J | 385 | PART 385—RESEARCH AND DEVELOPMENT GRANT AND COOPERATIVE AGREEMENTS REGULATIONS | § 385.34 Responsibility for issuing solicitations for proposals or applications. | FMC | (a) It is MarAd policy to favor solicitation of proposals or applications, where discretionary assistance awards are available, in preference to relying on unsolicited proposals, in order to maximize opportunities for open participation by the public in MarAd assistance awards. (b) The Awards Officer shall be responsible for issuing solicitations, announcements, or the like, which call for the submission of proposals and applications by a certain due date which, if favorably acted upon by MarAd, may result in assistance awards. | ||||||
| 46:46:8.0.1.11.40.0.15.16 | 46 | Shipping | II | J | 385 | PART 385—RESEARCH AND DEVELOPMENT GRANT AND COOPERATIVE AGREEMENTS REGULATIONS | § 385.35 Program opportunity notices. | FMC | (a) A program opportunity notice can be used to stimulate the flow of unsolicited proposals or applications when the program objectives cannot be defined sufficiently to prepare a program solicitation. (b) The program opportunity notice will contain the following, at a minimum: (1) A number assigned for control and reference purposes; (2) A brief description of the broad, general technical program or areas needing investigation (generally 50 words or less); (3) A statement of the principal program objective in possibly funding unsolicited proposals as either: (i) The acquisition of concepts, property, or services for the direct benefit or use of the Federal Government; or (ii) The transfer of money, property, or services to a recipient for support or stimulation authorized by Federal statute; (4) A statement about how unsolicited proposals will be evaluated and accepted: (i) If the principal program objective is to accomplish a public purpose of support or stimulation, the criteria in §§ 385.50 through 385.52 shall be applied; (ii) If the principal program objective is the acquisition of concepts, property, or services for the direct benefit or use of the Federal Government (i.e., procurement), the policy regarding evaluation and acceptance of unsolicited proposals in 41 CFR 9-4.9 shall apply; (5) Restrictions, if any, as to who may submit proposals; (6) A contact where additional information may be obtained; (7) An expiration date which identifies when the program opportunity notice will no longer be current. This date shall not be used as a required common due date for submission of proposals; (8) A statement that MarAd reserves the right to support or not support, in whole or in part, any or all proposals received; (9) A statement that MarAd assumes no responsibility for any costs associated with specific proposal preparation if no award is made; but that if an award is made, MarAd will pay its allocable share of bid and proposal expenses as provided for in applicable Federal cost principles; (1… | ||||||
| 46:46:8.0.1.11.40.0.15.17 | 46 | Shipping | II | J | 385 | PART 385—RESEARCH AND DEVELOPMENT GRANT AND COOPERATIVE AGREEMENTS REGULATIONS | § 385.36 Public notice of availability of assistance awards. | FMC | (a) In order to maximize involvement of prospective recipients in MarAd assistance programs, it is MarAd's policy, wherever possible, to provide timely notice to the public as to the availability of assistance awards. (b) Early notice regarding legislated grant or other assistance programs will br provided by MarAd to the Office of Management and Budget for publication in the Catalog of Federal Domestic Assistance pursuant to Office of Management and Budget Circular No. A-89. When legislated assistance programs or program objectives which are to be implemented through assistance instruments reach the point where applications or proposals need to be obtained, timely notice of such solicitations will be published in the Federal Register, Commerce Business Daily, trade and professional journals which are widely circulated to state and local governments, and news media, as appropriate to communicate with potentially interested applicants. (c) When a MarAd assistance project involves making assistance available through prime recipients to subrecipients, such as through states to local governments, prime recipients should provide timely advance notice to subrecipients as to the availability of such assistance, and provide a reasonable time period for subrecipients to prepare applications and secure prerequisite local approvals. | ||||||
| 46:46:8.0.1.11.40.0.15.18 | 46 | Shipping | II | J | 385 | PART 385—RESEARCH AND DEVELOPMENT GRANT AND COOPERATIVE AGREEMENTS REGULATIONS | § 385.37 Requirement for unrestricted solicitations for discretionary assistance awards. | FMC | (a) Policy. It is MarAd policy to maximize the opportunity for prospective recipients to be considered for assistance awards where eligibility is not prescribed by law. Therefore, when eligibility is not prescribed by law or a final program regulation, and when discretionary assistance awards are selected to accomplish a program objective, applications or proposals will be obtained, wherever practicable, by issuance of a written solicitation. When MarAd initiates the solicitation of applications or proposals, eligibility to be considered for discretionary awards will not be restricted by MarAd to one category of recipients or to a single recipient without adequate basis. (b) Justification of restricted eligibility. Where program legislation explicitly restricts eligibility, e.g., to state governments, no justification is required. When program regulations restrict eligibility beyond the restrictions required by the program legislation, the basis for the restriction shall be set forth in the program rulemaking. 41 CFR 9-3.805-51 shall be used as a guide in preparing the “justification for restricting eligibility.” The reasons offered will be evaluated for consistency with the policy in paragraph (a) of this section, MarAd's overall mission, and the objective of maintaining an open and fair system of making assistance awards. (c) Approvals. Justifications of restricted eligibility will be signed by the Grants Officer and will be reviewed by Office of General Counsel for legal sufficiency prior to issuance of the restricted solicitation. The signed justification will be filed in official award file. | ||||||
| 46:46:8.0.1.11.40.0.15.19 | 46 | Shipping | II | J | 385 | PART 385—RESEARCH AND DEVELOPMENT GRANT AND COOPERATIVE AGREEMENTS REGULATIONS | § 385.38 Joint funding. | FMC | (a) Pursuant to section 10(c) of the Act, MarAd is authorized to participate in joint funded projects with other Federal agencies in any funding relationship which will serve the best interest of all of the participating agencies' program. Such joint funding project may include more than one type of assistance relationship, e.g., some components of project may be funded by grants and other components of the project may be funded by cooperative agreements. (b) It is MarAd's positive policy, further, to encourage cost-sharing on the part of applicants for financial assistance. The willingness of applicants to cost-share is a primary factor in making, or not making, an assistance award. | ||||||
| 46:46:8.0.1.11.40.0.15.20 | 46 | Shipping | II | J | 385 | PART 385—RESEARCH AND DEVELOPMENT GRANT AND COOPERATIVE AGREEMENTS REGULATIONS | § 385.39 Socio-economic and environmental policies. | FMC | A number of socio-economic and environmental policies of the Federal Government are incorporated into the standard general provisions of the grant agreement and cooperative agreements, and are identified as explicit criteria in §§ 385.51 and 385.52. |
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