[Federal Register Volume 63, Number 181 (Friday, September 18, 1998)]
[Proposed Rules]
[Pages 50024-50055]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-24752]
[[Page 50023]]
_______________________________________________________________________
Part III
Presidio Trust
_______________________________________________________________________
36 CFR Part 1001, et al.
Management of the Presidio; Proposed Rule
Federal Register / Vol. 63, No. 181 / Friday, September 18, 1998 /
Proposed Rules
[[Page 50024]]
PRESIDIO TRUST
36 CFR Parts 1001, 1002, 1003, 1004, 1005, 1006, 1007, 1008 and
1009
RIN 3212-AA01
Management of the Presidio
AGENCY: The Presidio Trust.
ACTION: Proposed rule.
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SUMMARY: The Presidio Trust (Trust) was created by Congress in 1996 to
manage the former U.S. Army base known as the Presidio, in San
Francisco, California. Pursuant to law, administrative jurisdiction of
approximately 80 percent of this property was transferred from the
National Park Service (NPS), Department of the Interior (DOI), to the
Trust as of July 1, 1998. By publication in the Federal Register on
June 30, 1998 (63 FR 35694), the Trust adopted a final interim rule for
interim management of the area under its administrative jurisdiction.
This rulemaking proposes to replace that final interim rule in its
entirety with the requirements provided herein. Public comment is
invited on this proposed rule and will be considered by the Trust in
promulgating a final rule.
DATES: Comments on this rulemaking must be received by November 17,
1998.
ADDRESSES: Written comments on this proposed rule must be sent to Karen
A. Cook, General Counsel, The Presidio Trust, 34 Graham Street, P.O.
Box 29052, San Francisco, CA 94129-0052.
FOR FURTHER INFORMATION CONTACT: Karen A. Cook, General Counsel, The
Presidio Trust, 34 Graham Street, P.O. Box 29052, San Francisco, CA
94129-0052, Telephone: 415-561-5300.
SUPPLEMENTARY INFORMATION:
Background
I. Introduction
The Presidio Trust is a wholly-owned government corporation created
pursuant to Title I of the Omnibus Parks Public Lands Act of 1996,
Public Law 104-333, 110 Stat. 4097 (the Trust Act). Pursuant to sec.
103(b) of the Trust Act, the Secretary of the Interior transferred
administrative jurisdiction to the Trust of all of Area B of the former
Presidio Army Base, as shown on the map referenced in the statute, on
July 1, 1998. Notice of such transfer was published in the Federal
Register on June 12, 1998 (63 FR 32246).
Section 104(j) of the Trust Act authorizes the Trust, ``in
consultation with the Secretary [of the U.S. Department of the
Interior], to adopt and to enforce those rules and regulations that are
applicable to the Golden Gate National Recreation Area and that may be
necessary and appropriate to carry out its duties and
responsibilities'' under the Trust Act. Consistent with that authority,
and in order to provide for the interim management of the Presidio
before more extensive regulations could be promulgated, the Trust
promulgated a final interim rule on June 30, 1998 (63 FR 35694)
concerning resource protection, public use, and recreation; vehicles
and traffic safety; and commercial and private operations. These
regulations, which are currently in effect, are contained in 36 CFR
chapter X, parts 1001, 1002, 1004, and 1005.
The proposed regulations contained in this document expand upon and
revise the final interim regulations. These proposed regulations cover
such matters for the Presidio as resource protection, public use, and
recreation; vehicles and traffic safety; commercial and private
operations; rights-of-way; the need for permits to conduct certain
activities; and procedures for implementing the Freedom of Information
Act (FOIA), the Privacy Act, and the Federal Tort Claims Act.
Prior to proposing these regulations, the Trust consulted with the
Secretary of the Interior, who serves on the Trust's Board of Directors
pursuant to sec. 103(c)(1)(A) of the Trust Act, as well as with
officials of the Department of the Interior, the National Park Service,
and the U.S. Park Police designated by the Secretary of the Interior to
facilitate such consultation. The Trust anticipates that such
consultation will continue during the comment period on these final
interim regulations.
The Trust is providing for a public comment period of 60 days on
these regulations. All comments, including names and addresses, when
provided, will be placed in the public record and made available for
public inspection and copying. The Trust will consider each comment
received within this period and then publish final regulations on these
topics in the Federal Register. That promulgation will include a
discussion of any comments received and any amendments made to these
proposed regulations as a result of the comments.
II. General Principles of This Rulemaking
The Trust applied three general principles in drafting these
proposed regulations.
First, the regulations are designed to deviate as little as
necessary from the regulations that applied to the Presidio during the
approximately four-year period in which it was under the administrative
jurisdiction of the National Park Service. The current regulations for
the Presidio, which were adopted as a final interim rule, are almost
identical in substance to those prior regulations.
Second, the regulations are designed to promote comity with the
laws and regulations of neighboring jurisdictions. It takes but a
matter of minutes by automobile, and only slightly longer by bicycle or
on foot, to traverse the four separate jurisdictions of the Presidio
Trust Area, the City and County of San Francisco, Marin County, and the
Golden Gate National Recreation Area (GGNRA). It is therefore important
for the sake of public notice and law enforcement that the Presidio's
laws and regulations be consistent with those of its neighboring
jurisdictions.
Third, the rules and regulations governing the Presidio Trust's
internal operations and the conduct of individuals and businesses in
the Presidio are designed to be as simple and clear as possible. Such
simplicity and clarity will promote the Trust Act's goal of efficient
management of the Presidio, while providing other public benefits.
Each of these principles and its practical application are
discussed below.
A. Consistency With Existing Regulations
The primary regulations that governed conduct in the Presidio when
it was under the administrative jurisdiction of the NPS are found at 36
CFR parts 1, 2, 4, and 5, and 36 CFR 7.97. These are NPS regulations
applicable generally to units of the National Park system (36 CFR parts
1, 2, 4, and 5) and written specifically for the GGNRA (36 CFR 7.97).
The Presidio is located within the boundaries of the GGNRA. Trust Act,
sec. 103(b). Likewise, the primary regulations that governed
administrative matters for the agency administering the Presidio prior
to its transfer to the Trust are found at 36 CFR part 14 (NPS
regulations concerning rights-of-way), 36 CFR part 11 (NPS regulations
concerning use of NPS insignia), 43 CFR part 2 (DOI regulations
concerning requests under the Freedom of Information Act and the
Privacy Act), and 43 CFR part 22 (DOI regulations concerning claims
under the Federal Tort Claims Act).
The Trust prepared the regulations in this document using these
prior NPS and DOI regulations as a template. As these regulations were
reviewed and modified, the Trust applied a principle
[[Page 50025]]
of deviating from these templates only so far as necessary to clarify
issues, correct minor errors, and reflect the differences between the
Trust's statute, organization, and mission, on the one hand, and those
of the NPS and DOI, on the other.
The section-by-section analysis provided below explains in greater
detail the changes that are proposed to these source regulations and
the reasons for those changes. In general, the Trust is proposing not
to adopt those regulations that are simply inapplicable to the Presidio
(e.g., snowmobiling rules), those that are intended to promote the
effective administration of the much larger NPS and DOI organizations,
and those that reflect the different missions of the NPS and the Trust.
In a number of instances, material that is part of the current
GGNRA Superintendent's Compendium has been incorporated into these
proposed regulations in order to make them clearer and more complete.
For example, boating on Lobos Creek and Mountain Lake, the only two
bodies of surface water, is prohibited by the GGNRA Superintendent's
Compendium. As a result, these proposed regulations simply prohibit
boating in the Presidio. See Sec. 1002.13. The current GGNRA
Superintendent's Compendium is available for public inspection at the
address identified above.
B. Comity With Laws in Neighboring Jurisdictions
The NPS regulations that governed conduct in the Presidio are to a
great extent the same regulations that are applicable throughout the
various units of the National Park system across the country. Because
the parallel regulations of the Trust will apply primarily to conduct
in just one locale, the Trust has attempted to tailor these regulations
to match local standards and conditions.
Because the prior NPS regulations for the GGNRA address a number of
forms of conduct that are also addressed by state law, the Trust in a
number of areas faced a choice between adopting the rule from the NPS
regulations or allowing the rule provided by California criminal law to
be applied through the Assimilative Crimes Act (ACA), 18 U.S.C. 13. In
each instance, the Trust analyzed the need for specifically prohibiting
conduct in these regulations that is already prohibited under
California law. In general, the Trust opted to allow California
criminal law to be applied through the ACA to conduct in the Presidio
that is not otherwise covered by the Trust's regulations or policies.
The Trust believes that this approach promotes clarity for residents of
and visitors to the San Francisco Bay Area, as well as comity with the
neighboring jurisdictions of Marin County and the City and County of
San Francisco.
It is helpful to understand the legal background for this proposal.
As an example, under the NPS regulations at 36 CFR 2.14, littering is
prohibited. Littering is also prohibited under California criminal law.
Cal. Penal Code sec. 374.4. This criminal prohibition under California
law may be applied to conduct occurring on federal lands such as the
Presidio through the ACA, 18 U.S.C. 13, but only if such conduct is not
already ``made punishable by any enactment of Congress * * *.'' Id.
Courts consider a duly authorized federal regulation an ``enactment
of Congress'' for purposes of the ACA. See, e.g., United States v.
Hall, 979 F.2d 320, 322 (3d Cir. 1992). If such conduct is already
addressed by federal law, only federal law may be applied to the
violator. See Williams v. United States, 327 U.S. 711, 724 (1946) (``If
[the federal agency] had been satisfied to * * * apply local law to
this and related offenses it would have been simple for it to have left
the offense to the Assimilative Crimes Act.''); United States v.
Palmer, 956 F.2d 189, 192 (9th Cir. 1992) (quoting Williams in holding
that the NPS cannot enforce state law penalties against driving while
intoxicated because there is already an NPS regulation addressing such
conduct). As a result, if the Trust were to adopt the NPS regulation
against littering, the Trust would not be able to enforce the
California law against littering.
The Trust believes that confusion might result from adopting
prohibitions on conduct that instead may be prohibited by application
of California law through the ACA. There has been a significant number
of legal disputes concerning which rule applies in such instances. The
U.S. Supreme Court recently provided guidance for answering such
questions in Lewis v. United States, ______ U.S. ______, 118 S. Ct.
1135 (1998). In this case, the Court articulated a two-part test for
determining whether conduct on federal lands may be penalized under
state law:
[A] court must first ask the question that the ACA's language
requires: Is the defendant's ``act or omission * * * made punishable
by any enactment of Congress.'' * * * If the answer to this question
is ``no,'' that will normally end the matter. The ACA presumably
would assimilate the statute. If the answer to the question is
``yes,'' however, the court must ask the further question whether
the federal statutes that apply to the ``act or omission'' preclude
application of the state law in question, say because its
application would interfere with the achievement of a federal policy
* * *, because the state law would effectively rewrite an offense
definition that Congress carefully considered * * *, or because
federal statutes reveal an intent to occupy so much of a field as
would exclude use of the particular state statute at issue * * *.
Lewis, 118 S. Ct. at 1141 (citations omitted). The Court went on to
recognize that the complexity of state and federal criminal statutes
makes it impossible ``for a touchstone to provide an automatic general
answer to this second question.'' Id. at 1142.
Executive Order 12988 requires that regulations adopted by the
Trust ``provide[] a clear legal standard for affected conduct rather
than a general standard, while promoting simplification and burden
reduction * * *'' See Executive Order 12988, sec. 3(b)(2)(C). In order
to avoid ambiguity, and to make clear to all persons who may enter,
work or reside in the Presidio precisely which conduct is prohibited
and in what manner violations will be penalized, the Trust has
therefore drafted these proposed regulations to prohibit only such
conduct as cannot be prohibited by application of state law (e.g.,
because state law does not proscribe such conduct).
The practical effect of this approach would be to reduce the
enumeration of prohibited conduct in these regulations as compared to
the NPS regulations. For example, although operating a motor vehicle
under the influence of alcohol or drugs is prohibited by the NPS
regulations at 36 CFR 4.23, no such prohibition appears in the Trust's
regulations. Instead, persons who drive while under the influence of
alcohol or drugs in the Presidio would be charged in federal court
under the substantive provisions of California law, including its
definition of the prohibited conduct and its penalties. They would be
apprehended, investigated, and prosecuted, however, according to the
procedures of federal law, including, for example, the testing
procedures retained in Sec. 1003.7 of these proposed regulations.
Under this approach, the Trust has not incorporated into these
proposed regulations the following provisions of existing NPS
regulations at 36 CFR:
2.4(f) Carrying firearms
2.14(a) Sanitation and refuse
2.30 Misappropriation of property and services
2.31 Trespassing, tampering and vandalism
[[Page 50026]]
2.34 Disorderly conduct
2.35 Alcoholic beverages and controlled substances
4.10(c)(3) Headlamps
4.12 Traffic control devices
4.13 Obstructing traffic
4.14 Open container of alcoholic beverage
4.20 Right-of-way 4.21(c) Speed limits
4.23 Operating under the influence of alcohol or drugs
The Trust's silence on the foregoing issues in these proposed
regulations should not be interpreted as expressing any intent not to
take such conduct seriously or to vary from its treatment or
enforcement under prior law. Rather, by proposing not to incorporate
these provisions from the NPS regulations, the Trust is merely looking
to California law rather than NPS regulations to provide the applicable
rule. The Trust does not anticipate that this will effect any practical
change in enforcement or conduct in the Presidio, but instead will
result in clearer and more concise regulations, greater notice to the
public, and reduced opportunities for legal disputes.
California criminal statutes do not cover all possible forms of
misconduct that would impede the efficient management of the Presidio.
As a result, the Trust has maintained specific prohibitions in these
proposed regulations where the conduct is not addressed by any such
criminal statute. For example, it is not against California law to
violate the provisions of a permit issued by the Presidio Trust. As a
result, the Trust has maintained prohibitions of such conduct that are
part of the NPS regulations. See Sec. 1001.6(f).
The Trust's proposed use of the ACA to apply the substantive
provisions of California law to criminal conduct in the Presidio in no
way diminishes or limits the exclusivity of federal jurisdiction over
the Presidio. Under these proposed regulations, State and local laws
applicable to such issues as zoning, building permits, land use
planning, rent control, property taxes, building codes, and the like
will continue to have no applicability to activities of the Presidio
Trust or others within the area administered by the Presidio Trust.
To summarize, prohibitions on conduct in the Presidio fall into two
categories, and each category has a separate source of penalties for
offending conduct in that category. First, conduct made criminal by
California law (but not by federal law) would be prohibited in the
Presidio by application of the ACA and would be punished according to
the substantive California law. Second, conduct that is not prohibited
by California law but that is prohibited directly by these regulations
or other federal law would be punished according to applicable federal
law. Violations in both categories would be enforced in federal court
according to federal procedures.
The Trust believes that this interlocking structure will be clear
in application. Residents of California and visitors in California
generally expect California law to apply to their conduct throughout
the State and are more likely to be aware of the rules that apply to
their conduct under California law than under these specific
regulations for the Presidio. By applying California law to conduct in
the Presidio to the greatest extent possible (where there is no
differing federal policy interest), and by avoiding promulgating
regulations concerning conduct that is already addressed by California
law, the Trust seeks to promote consistency with the laws of
neighboring jurisdictions and thereby to reduce confusion on the part
of residents of and visitors to the Presidio.
Under sec. 104(i) of the Trust Act, enforcement of these
regulations, as well as applicable California law, will be the
responsibility of the U.S. Park Police, the federal agency that
provides professional law enforcement services for units of the
National Park system. The Trust has been informed by the U.S. Park
Police that its officers assigned to the GGNRA are familiar with and
trained in the application of California state law in addition to the
application of federal law and the existing NPS regulations, which
these regulations parallel in many respects. As a result, the Trust
anticipates no administrative difficulties with respect to the
enforcement of these proposed regulations.
The Trust is particularly interested in public comment on this
proposal, as it reflects a significant deviation from prior practice
within the area now administered by the Presidio Trust. The Trust views
the primary alternative to be to promulgate regulations that are much
more similar to the prior NPS regulations and the current Trust
regulations found at 36 CFR parts 1001, 1002, 1004, and 1005.
C. Simplicity
Although the Trust used the NPS and DOI regulations as templates
for these proposed regulations, the Trust sought to simplify and
shorten the source regulations to the greatest extent possible,
consistent with Executive Orders 12861 and 12988. The Trust did this in
four major ways:
First, these proposed regulations do not incorporate those
provisions from the NPS and DOI regulations that are simply
inapplicable to the Presidio, for example, regulations dealing with
snowmobiling or winter activities. Where appropriate, the proposed
regulations also reduce the level of detail provided concerning conduct
that is unlikely to form a significant part of the user experience in
the Presidio, such as hunting and trapping. Because there are no
private inholdings within the Presidio, the Trust was also able to
avoid incorporating provisions in the source regulations that address
such situations.
Second, these proposed regulations consolidate, to the extent
consistent with considerations of clarity, certain provisions of the
NPS and DOI regulations that are repeated in various places throughout
those regulations. For example, each section of the NPS regulations
that authorizes the issuance of a permit for a certain activity also
notes that violation of the terms and conditions of such a permit is
prohibited. Rather than incorporate this phrase repeatedly, these
proposed regulations state at the outset (in Sec. 1001.6(f)) that
violation of the terms and conditions of any permit issued under these
regulations is prohibited.
Third, these proposed regulations reorganize certain of the
provisions in the NPS and DOI regulations in order to place regulations
on the same general topic near each other. For example, the proposed
regulations place the provisions concerning commercial vehicles in the
part concerning vehicles and traffic safety instead of in the part
concerning commercial operations. They incorporate the specific
provisions of 36 CFR 7.97 (regulations applicable only to the GGNRA)
into the appropriate areas of the proposed regulations. And they
incorporate certain DOI regulations governing commercial photography
(43 CFR 5.1) into the portion of these proposed regulations concerning
such issues (see Sec. 1004.4).
Fourth, and most important, as part of its goal of simplifying the
existing regulations, the Trust also sought with these proposed
regulations to promote clarity concerning the internal division of
duties and authority, particularly as between the Board of Directors,
whose members are not full-time government employees, and the Executive
Director and other employees of the Trust.
The primary source of this internal division is Sec. 1001.8, in
which the chain of authority is clarified and rules are laid out for
appealing decisions to the Board of Directors, or a court of competent
jurisdiction. Elsewhere in the
[[Page 50027]]
proposed regulations, though, care has been taken to identify the
authorized entity for issuing permits or making given decisions,
whether that be the Board (generally for issues of policy), the
Executive Director (for most specific decisions), or the FOIA or
Privacy Act Officers (for matters within their areas of delegated
responsibility).
A number of NPS regulations contain the following language: ``The
regulations contained in this section apply, regardless of land
ownership, on all lands and waters within a park area that are under
the legislative jurisdiction of the United States.'' These include the
following provisions:
Wildlife protection (36 CFR 2.2(g))
Fishing (36 CFR 2.3(g))
Weapons, traps, and nets (36 CFR 2.4(g))
Fires (36 CFR 2.13(d))
Property (abandoned property) (portions of 36 CFR 2.22(d))
Misappropriation of property and services (36 CFR 2.30(b))
Trespassing, tampering, and vandalism (36 CFR 2.31(b))
Interfering with agency functions (36 CFR 2.32(b))
Disorderly conduct (36 CFR 2.34(b))
Gambling (36 CFR 2.36(b))
These provisions were intended to allow the NPS ``to respond to
complaints on the private property'' within park areas. 48 FR 30252,
30253 (June 30, 1983). Because the areas over which the Presidio Trust
has administrative jurisdiction contain no private inholdings, and
because these areas are subject to exclusive federal jurisdiction,
these provisions are unnecessary and do not appear in these proposed
regulations.
The Trust has also retained in these proposed regulations an
efficient and effective administrative vehicle used by the NPS in
managing its many diverse units. For most of these units, including the
GGNRA, the NPS has developed a set of policies, procedures, closures,
and designations; for the GGNRA, these are known as the GGNRA
Superintendent's Compendium. The Trust has a similar Compendium
(adopted on an interim basis) of detailed rules, including supporting
determinations, in order to allow the Trust to manage flexibly the
diverse demands on the Presidio while protecting its natural and
cultural resources, fulfilling the purposes of the Trust Act, and
responding to changing conditions. Section 1001.7 of these proposed
regulations sets out the procedure for the Trust to follow in
maintaining the Compendium and providing public notice of its contents.
Section-by-Section Analysis
The following analysis reviews only those sections of the proposed
regulations that are not discussed elsewhere, in more general terms, in
this preamble. Nevertheless, not every substantive change is discussed
in this preamble. As discussed above, because these proposed
regulations are modeled on existing regulations of the NPS and DOI,
this analysis focuses on differences between these regulations and the
existing regulations of these agencies.
Part 1001 General Provisions
Section 1001.1 Purpose
In modeling these proposed regulations on the existing regulations
of the NPS and DOI, the Trust consistently changed a variety of terms
used in the existing regulations as appropriate to the Trust and its
separate mission, organization and statutory authority. This section
reflects two of those general changes. First, references to the
``National Park Service'' or ``Department'' were changed to ``Presidio
Trust.'' And second, references to ``the purposes for which a park unit
is managed'' or similar language were changed to ``the purposes of the
Presidio Trust Act.'' Elsewhere in these proposed regulations,
references to the ``Superintendent'' or the ``Secretary'' were changed
to the ``Executive Director'' or the ``Board'' as appropriate.
Section 1001.2 Applicability and Scope
This section had its origin in 36 CFR 1.2 and 4.1. As discussed
above, Sec. 1001.2(d) addresses the applicability of certain provisions
of State and local law under the Assimilative Crimes Act, 18 U.S.C. 13.
This section also includes a savings provision to eliminate any
possibility of confusion about the Federal government's retention of
exclusive federal jurisdiction, through the Trust, over the Presidio.
Section 1001.3 Enforcement and Penalties
This provision is discussed in greater detail above. As required by
the Trust Act, at sec. 104(i), the Trust has entered into a memorandum
of agreement for law enforcement in the areas under its administrative
jurisdiction to be performed by the United States Park Police. Officers
of the U.S. Park Police have the same authority within the Presidio as
in the rest of the GGNRA.
Section 1001.4 Definitions
This section was substantially revised to incorporate definitions
that are generally applicable to most of the regulations published
today and to delete those definitions that were no longer needed as a
result of other differences between the source regulations and these
proposed regulations. They were also revised to reflect the
applicability of these regulations solely to the Presidio, which is in
California, and not to other park units, which are in other States as
well.
The definition of ``authorized person'' was changed to ``authorized
law enforcement officer,'' since the Trust anticipates that the
individuals who will be authorized to perform the functions identified
with this term in the regulations will generally be law enforcement
officers (most likely members of the U.S. Park Police force or State or
local law enforcement officials authorized by the Presidio Trust to
perform duties in the Presidio under certain circumstances).
The terms ``Board,'' ``Executive Director'' and ``General Counsel''
were added, along with a provision including their designees in the
definition. This is intended to provide senior officials of the Trust
with the flexibility to delegate responsibilities and authority as
appropriate to carry out the purposes of the Trust Act.
The terms ``commercial passenger vehicle'' and ``commercial
vehicle'' were defined in this section based on definitions contained
in 36 CFR 5.4 and 5.6, respectively. The regulations to which these
definitions apply (Sec. Sec. 1003.12 and 1003.13) are accordingly more
concise and clear.
The distinction between ``developed areas'' and ``non-developed
areas'' has been dropped from the definitions and from these proposed
regulations because the Presidio is located in an urban area in which
the activities allowed under the NPS regulations in ``non-developed
areas'' are generally inappropriate.
The term ``Presidio Trust Area'' was defined as the real property
over which the Presidio Trust has administrative jurisdiction. The term
``Presidio'' historically applies to property over which the U.S. Army
once had administrative jurisdiction. Portions of this property will
continue to be administered by the NPS as part of the GGNRA.
The term ``printed matter'' is defined in this section generally to
exclude items of merchandise. This corresponds to the definition of the
term used by the NPS in its Special Directive 95-11 interpreting its
regulation at 36 CFR 2.52 concerning sale or distribution of printed
matter. The Trust believes it is appropriate to incorporate this
[[Page 50028]]
definition directly into its regulations for the sake of clarity and
public notice.
The term ``residential dwelling'' is defined because the Presidio
currently houses and is expected to house numerous individuals and
families. Although the precise extent of each private dwelling or
leasehold will be established by the document granting occupancy, the
Trust believes it is useful for law enforcement purposes to state a
general definition of this term.
Section 1001.5 Closures and Public Use Limits
This section deviates only slightly from the NPS regulation at 36
CFR 1.5. The NPS regulation specifies a variety of criteria to be
considered in reviewing the need for closures and public use limits.
Because the Trust Act provides additional criteria, and because the
Trust cannot foresee all possible circumstances necessitating closures
or public use limits, these criteria have been made more general.
Section 1001.5(d) contains an added provision specifying the
Trust's ability to charge fees for permits. The Trust Act, sec. 105(b),
requires that the Trust become ``self-sufficient'' within 15 years, and
these fees are a likely revenue source to offset the costs of
administering the Presidio. References to fees for permits for filming
and for serving alcohol have been deleted in the appropriate provisions
because they are covered by this more general authority.
Section 1001.6 Permits
This section makes explicit the requirement that the Trust consider
impacts on tenants and neighbors of the Presidio in making decisions on
requests for permits. Unlike most national parks, the Presidio is
located in a densely populated urban area, and numerous individuals
live and work in the Presidio. These impacts are entitled to
consideration by the Trust in its management of the Presidio.
Section 1001.7 Public Notice and Comment
The provisions added to this section make more explicit the duties
of the Trust both to maintain a Compendium that provides notice to the
affected public of the specific designations, closures, and permit
requirements adopted by the Trust and to involve the Golden Gate
National Recreation Area Advisory Commission (often referred to as the
Citizens Advisory Commission or CAC) in policy, planning and design
issues, in accordance with sec. 103(c)(6) of the Trust Act.
Section 1001.8 Review and Final Agency Action
This section establishes general procedures for review of delegated
decisions. Decisions of the Executive Director or his or her designee
may be appealed to the Board of Directors. In practice, where the
Executive Director's delegation of authority so provides, there will
likely be a preliminary step in which decisions of a designee of the
Executive Director are reviewed by the Executive Director. The time
periods that are set for these reviews are the shortest periods that
the Trust believes are feasible in light of both the part-time nature
of its Board members' service and the likely frequency of Board
meetings.
This section also establishes a bright line rule for determining
whether the Trust has taken final agency action. The Trust has
established this rule in accordance with the President's call for the
adoption of ``clear legal standard[s]'' and specification of what is
required for a person aggrieved to exhaust their administrative
remedies prior to seeking court review of the agency's action. See
Executive Order 12988, sec. 3(b)(2).
Part 1002 Resource Protection, Public Use and Recreation
Section 1002.2 Wildlife Protection
Hunting and trapping are prohibited in the Presidio under current
law. Fishing is also prohibited in the Presidio under the GGNRA
Superintendent's Compendium. This section maintains these prohibitions.
The GGNRA Superintendent's Compendium prohibits the viewing of wildlife
with artificial light. These proposed regulations adopt this
prohibition, but provide for the possibility that such viewing will be
permitted (e.g., incidental to commercial filming) on terms and
conditions established by the Board.
Section 1002.5 Camping and Food Storage
Because there are no bears in the Presidio, the requirement for
suspension of food on bear poles has been deleted.
Section 1002.9 Sanitation and Refuse
As discussed above, the specific prohibition on littering in the
NPS regulation has been removed in favor of reliance on state law.
Similarly, the specific prohibitions on polluting have also been
removed in favor of reliance on other federal law.
Section 1002.10 Pets
The exception in the NPS regulations for guide dogs accompanying
persons with visual or hearing impairments has been expanded to include
service dogs accompanying persons with disabilities, regardless of the
disability requiring the use of a service dog.
Section 1002.11 Horses and Pack Animals
This regulation has been revised to state more concisely the
general requirement that use of horses and pack animals in the Presidio
be restricted to designated areas and trails, or under the terms and
conditions of a permit (e.g., for a parade). It has also been revised
to make clear that these requirements do not apply to law enforcement
officers in the performance of their official duties.
Section 1002.13 Swimming and Boating
The GGNRA Superintendent's Compendium prohibits swimming, boating
and the use of any water vessel on the bodies of water located within
the Presidio. This regulation continues that prohibition.
Section 1002.15 Smoking
This regulation has been revised in accordance with the general
approach of these proposed regulations to correspond, as nearly as
possible, to conditions under State law.
Section 1002.16 Property
The Trust has reduced the general length of time that property may
be left unattended without a permit or in designated areas from 24
hours to 12 hours. The purpose of this revision is to provide the Trust
with greater ability to manage the area under its jurisdiction more
closely.
Section 1002.23 Special Events
The requirement that applications for permits for special events be
presented to the Trust at least 72 hours in advance has been extended
to seven days in order to allow the time necessary for coordination of
permit requests with the NPS in its management of the GGNRA. The Trust
expects to continue to direct applicants for permits for activities in
the Presidio to the Special Park Uses Office of the GGNRA, located at
Building 201, Fort Mason, San Francisco 94123, telephone: (415) 561-
4300, which is open between the hours of 9 a.m. and 5 p.m. on working
days. This office will centralize the administrative process for permit
applications for both the areas under the jurisdiction of the NPS and
the Presidio Trust. Decisions concerning permit applications for
activities on property administered by the Trust will be made by the
Trust; those for activities on
[[Page 50029]]
properties administered by the NPS will be made by the NPS. The Trust
anticipates that the NPS and the Trust will consult cooperatively
concerning permit applications that will affect activities on the
property administered by either or both agencies.
Part 1003 Vehicles and Traffic Safety
Section 1003.3 Travel on Presidio Trust Area Roads and Designated
Routes
This regulation has been revised from the existing NPS regulation
in accordance with the general principle discussed above concerning
application of State law through the ACA. It also deletes the reference
to Executive Order 11644 contained in the existing NPS regulation. This
Executive Order, which concerns use of off-road vehicles on the public
lands, does not apply to public lands administered by the Trust.
Nevertheless, the Trust anticipates that it will address use of off-
road vehicles in the Presidio in a manner consistent with Executive
Order 11644, as amended by Executive Orders 11989 and 12608.
Section 1003.10 Powerless Flight
Under 36 CFR 7.97 and the GGNRA Superintendent's Compendium,
powerless flight is prohibited in the Presidio. This section maintains
that prohibition.
Section 1003.11 Parking
The existing NPS regulations do not cover parking explicitly.
Although the Trust would have authority to manage motor vehicle parking
under other portions of these regulations (e.g., Sec. 1001.5), this
section has been incorporated in order to provide clarity and better
public notice concerning parking issues.
Section 1003.12 Commercial Passenger Vehicles
The provisions of this section, and those of the following section,
condense the existing NPS regulations and prohibitions and conditions
in the GGNRA Superintendent's Compendium concerning buses and trucks.
The intention has been to maintain the status quo with respect to
treatment of these vehicles in the Presidio until such time as the
Trust may adopt different conditions or routes in its Compendium.
Section 1003.13 Commercial Vehicles
See discussion of Sec. 1003.12, above.
Section 1003.14 Safety Belts
Although California has a law concerning safety belt and child
restraint requirements, that law does not apply to all occupants of a
motor vehicle. The federal government has a strong public policy of
encouraging and in some cases requiring the use of safety belts and
child restraints by all occupants of a motor vehicle. See Executive
Order 13043 (April 16, 1997). As a result, the Trust has opted in these
proposed regulations to adopt a rule on safety belt use that is
consistent with the current rule of the NPS at 36 CFR 4.15.
Part 1004 Commercial and Private Operations
Section 1004.1 Signs and Advertisements
This section contains the same requirements as the existing NPS
regulation concerning commercial notices, while also adding a specific
provision on other signs. Although the Trust has authority to manage
signage in the Presidio under other portions of these regulations
(e.g., Sec. 1001.6), this section has been incorporated in order to
provide clarity and better public notice concerning signage issues.
Section 1004.2 Alcoholic Beverages; Sale of Intoxicants
This section deletes the provision in existing NPS regulations for
appeals of decisions on permits to sell alcoholic beverages, since such
appeals are now provided for under Sec. 1001.8. It also deletes the
provision allowing for fees for alcohol permits, since such fees are
now provided for under Sec. 1001.5(d).
Section 1004.4 Commercial Photography
This section is adapted from both 36 CFR 5.5 and 43 CFR 5.1, which
have been consolidated and simplified to apply specifically to the
operations of the Presidio Trust. The precise form of permit
application has been deleted from the regulations and will be developed
by the Trust, in consultation with the NPS, as the Trust acquires
experience with permitting film projects. The Trust intends to charge
fees for such permits, in accordance with its statutory mandate to
become financially self-sufficient within 15 complete fiscal years. See
Sec. 1001.5(d).
Section 1004.6 Discrimination in Employment Practices
This section exempts governmental agencies or instrumentalities
from the Trust's specific non-discrimination requirements because such
entities are almost uniformly covered by similar requirements. This
section adds the terms ``restaurant'' and ``recreational facility'' to
the list of covered accommodations in order to clarify that such
facilities are also covered. In order to be consistent with the
principle of Executive Order 13087 (May 28, 1998), 63 FR 30097 (June 2,
1998), as well as to promote comity with laws and policies of
neighboring jurisdictions, the Trust has added the category of ``sexual
orientation'' to the list of prohibited bases for discrimination under
this section.
Section 1004.7 Discrimination in Furnishing Public Accommodations and
Transportation Services
See discussion of Sec. 1004.6, above.
Part 1005 Rights-of-Way
This proposed part sets forth general terms and conditions, as well
as the procedures that the Trust will follow, in issuing rights-of-way.
This part has been simplified significantly from the NPS regulation at
36 CFR part 14. The Presidio Trust is not subject to the variety of
statutes concerning rights-of-way over lands administered by the NPS.
Furthermore, unlike many units of the National Park System, the
Presidio does not have any private inholdings. As a result, the Trust
intends to issue rights-of-way only to a limited number of entities,
consistent with the purposes of the Presidio Trust Act, and only on
written terms and conditions and for payment of monetary compensation.
Section 1005.5 Terms and Conditions
This section provides that the Trust, as a wholly-owned government
corporation with ability to retain funds it collects, is the entity to
be indemnified by the holders of rights-of-way over lands administered
by the Trust. Section 1005.5(b) has been revised to be more general
with respect to the obligations of the holder of a right-of-way, while
continuing to cover the specific items covered by 36 CFR 14.9(b).
Section 1005.5(g) has been expanded to include requirements for
permission before trees may be cut and to require that any trees
destroyed be replaced in kind. Additional categories on which
discrimination is prohibited have been added to Sec. 1005.5(k) in order
to make it consistent with Secs. 1004.6 and 1004.7 of this chapter.
Section 1005.11 Disposal of Property on Termination of Right-of-way
This section clarifies that the Trust will not be liable for any
claim for damages on account of removal and restoration work required
by termination of a right-of-way.
Part 1006 Presidio Trust Symbols
This part is adapted from NPS regulations at 36 CFR part 11. The
Presidio is a unique location, and the
[[Page 50030]]
Trust intends to manage it in such a way as to increase the value of
the property to the public, as well as the price that tenants are
willing to pay for the benefits of being located in the Presidio.
Consistent with this effort, this part is intended to protect the terms
``Presidio'' and ``Trust,'' as well as such symbols and insignia as the
Trust may adopt for its own use, from commercial uses that are
inconsistent with the purposes of the Presidio Trust Act. The Trust
recognizes that certain entities may have already acquired rights in
these terms under existing laws, and nothing in this regulation is
intended to abrogate any such rights.
Part 1007 Requests Under the Freedom of Information Act
Section 1007.4 Preliminary Processing of Requests
In Sec. 1007.4(b)(2), the reference to Executive Order 12356 from
43 CFR 2.15(c)(2) was removed because this order was revoked by
Executive Order 12958. The basis for the reference to Executive Order
12356 in the DOI regulations appears to have been sec. 4.1(d) of that
order, which states in pertinent part:
Except as provided by directives issued by the President through
the National Security Council, classified information originating in
one agency may not be disseminated outside any other agency to which it
has been made available without the consent of the originating agency.
Executive Order 12958 contains a similar provision at sec. 4.2(b),
which states in pertinent part:
Classified information shall remain under the control of the
originating agency or its successor in function. An agency shall not
disclose information originally classified by another agency without
its authorization.
The proposed regulation therefore retains the requirement that
requests for classified information be forwarded for determination by
the agency originating the classification.
Section 1007.5 Action on Initial Requests
The DOI regulations do not contain provisions concerning expedited
processing. In order to conform to recent amendments to FOIA, the Trust
is proposing special provisions concerning expedited processing in the
circumstances enumerated by FOIA at 5 U.S.C. 552(a)(6)(E).
Section 1007.8 Action on Appeals
The Presidio Trust Act specifies at sec. 104(h) that ``[t]he
District Court of the Northern District of California shall have
exclusive jurisdiction over any suit filed against the Trust.'' As a
result, this court is specified in the regulations as the court in
which any appeal of the Trust's determination concerning a FOIA request
must be filed.
Section 1007.9 Fees
The DOI regulations provide for set charges for FOIA requests that
are published in an appendix to the regulations. In order to promote
clarity and reduce administrative burdens on the Trust, the Office of
the Federal Register, and requesters, the Trust has opted in
Sec. 1007.9(a)(1) to publish such charges in the Compendium required
under Sec. 1001.7. In accordance with FOIA and with sec. 7 of OMB's
Uniform Freedom of Information Act Fee Schedule and Guidelines, 52 FR
10012 (Mar. 27, 1987), which were promulgated under FOIA, 5 U.S.C.
552(a)(4)(A)(i), the Trust will set these charges only as high as
necessary to ``recoup the full allowable direct costs'' incurred by the
Trust in responding to FOIA requests.
The DOI regulations provide that fees will not be charged if they
do not exceed $15.00. Under FOIA, 5 U.S.C. 552(a)(4)(A)(iv)(I), fees
are not charged ``if the costs of routine collection and processing of
the fee are likely to equal or exceed the amount of the fee.'' Rather
than set a precise amount in these regulations, which will need to be
altered as these costs vary over time, the Trust has instead
incorporated the statutory policy into these regulations at
Sec. 1007.9(a)(2), along with a requirement, for the sake of public
notice, that the precise dollar figure be published in the Compendium
called for under Sec. 1001.7 of these regulations.
The OMB Guidelines suggest that agencies charge for the full costs
of providing services that are not required under FOIA, such as
certifying that records are true copies or sending records by express
mail, should the Trust elect to provide such services. Although the
Trust's willingness to provide such services will be contingent on its
available resources, the Trust has incorporated this suggestion into
these regulations at Sec. 1007.9(a)(4) in order to clarify that such
services will not be provided free of charge.
Sections 1007.9(b)(1) and (e)(1) require commercial use requesters
and requesters that do not belong to other enumerated categories to pay
for the Trust's costs in searching for documents covered by the FOIA
request. The OMB Guidelines referred to above suggest (at sec. 9(b))
that agencies ``give notice in their regulations that they may assess
charges for time spent searching, even if the agency fails to locate
the records or if records located are determined to be exempt from
disclosure.'' The Trust has done this by noting parenthetically in
these sections that costs for ``search'' (as well as ``review'' for
commercial requesters) are charged ``even if the search [``and review''
for commercial requesters] fails to locate records that are not exempt
from disclosure.''
In Sec. 1007.9(k), the reference to 4 CFR parts 101-105 in the
existing DOI regulations has been removed from this provision because
these regulations are coextensive with the entire body of ``[o]ther
authorities of the Debt Collection Act of 1982'' under which the Trust
may collect fees due and owing.
Section 1007.10 Waiver of Fees
The DOI regulations at 43 CFR 2.21(a)(2) contain a list of factors
to be considered in determining whether a Freedom of Information Act
request falls into the categories for partial or complete waiver of
fees under 5 U.S.C. 552(a)(4)(A)(ii)(III). In light of the types of
requests that the Trust is likely to receive, as well as the purposes
of the Trust Act, the Trust does not consider it necessary to enumerate
these factors in order to comply with FOIA.
The DOI regulations at 43 CFR 2.21(b) also contain a list of
circumstances in which the agency will make copies available without
charge. The OMB Guidelines promulgated under FOIA provide (at sec. 7)
that ``[a]gencies should charge fees that recoup the full allowable
direct costs they incur.'' The only exceptions to this requirement are
for disclosures in the public interest under 5 U.S.C. 552(a)(4)(A)(iii)
and for those fees which are lower than the costs of collecting them.
The circumstances identified in sec. 2.21(b) of the DOI regulations are
likely to be covered by one or both of these authorized exceptions, and
as a result, these regulations do not enumerate the specific
circumstances for discretionary fee waivers.
FOIA provides that, when fee waivers are granted, documents shall
be furnished ``without any charge or at a charge reduced below the fees
established'' by the agency. 5 U.S.C. 552(a)(4)(A)(iii). The Trust is
proposing in these regulations to reduce otherwise applicable fees by
25% in most circumstances, while providing discretion for additional
reductions, including complete waivers, in appropriate circumstances.
[[Page 50031]]
Part 1008 Requests Under the Privacy Act
Section 1008.6 Assuring Integrity of Records
The DOI regulations at 43 CFR 2.51(b) through (e) specify precise
precautions to be taken to protect records covered by the Privacy Act.
Rather than limit the discretion of the Trust official responsible for
maintaining adequate precautions, these regulations state a general
standard of security for all such records based on their relative
sensitivity.
Section 1008.12 Requests for Notification of Existence of Records:
Action On
In Sec. 1008.12(b), the Trust has added a requirement for
consultation with the General Counsel in order to ensure proper legal
review at the earliest appropriate stage before action is taken on a
request. For the same reason, this requirement has been added to
Sec. 1008.15(b) concerning requests for access to records and
Sec. 1008.20(b) concerning petitions for amendment. The requirement for
consultation with the organization's top attorney regarding appeals of
such decisions has also been retained.
Section 1008.15 Requests for Access to Records: Initial Decision
Under Sec. 1008.15(d), the Trust anticipates charging fees for
Privacy Act requests on the same schedule as for FOIA requests, which
will be published in the Compendium provided for under Sec. 1001.7.
Part 1009 Administrative Claims Under the Federal Tort Claims Act
This part sets forth the procedures that the Trust will follow in
processing any claims presented to it under the Federal Tort Claims Act
(FTCA), which applies to the Trust and its directors, officers,
employees, and agents. Under Department of Justice regulations
implementing the claims procedure for the FTCA, the Trust is authorized
to establish procedures that are consistent with the Department of
Justice procedures. See 28 CFR 14.11. DOI has promulgated regulations
under this authority at 43 CFR part 22, and the Trust has looked to
those regulations in drafting its own.
These regulations delete in their entirety the provisions of 43 CFR
22.2, which simply restate the statute. The regulations nevertheless
incorporate the citation from 43 CFR 22.2(g) into Sec. 1009.1 of these
regulations in order to provide a useful reference to the Federal Tort
Claims Act.
Regulatory Impact
This proposed rulemaking will not have an annual effect of $100
million or more on the economy nor adversely affect productivity,
competition, jobs, prices, the environment, public health or safety, or
State or local governments. This proposed rule will not interfere with
an action taken or planned by another agency or raise new legal or
policy issues. In short, little or no effect on the national economy
will result from adoption of this proposed rule. Because this proposed
rule is not ``economically significant,'' it is not subject to review
by the Office of Management and Budget under Executive Order 12866.
Furthermore, this proposed rule is not a ``major rule'' under the
Congressional review provisions of the Small Business Regulatory
Enforcement Fairness Act, 5 U.S.C. 801 et seq. The Trust has determined
and certifies pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601
et seq., that this proposed rule will not have a significant economic
effect on a substantial number of small entities.
The Trust has determined and certifies pursuant to the Unfunded
Mandates Reform Act, 2 U.S.C. 1502 et seq., that this proposed rule
will not impose a cost of $100 million or more in any given year on
local, State, or tribal governments or private entities.
Environmental Impact
The Presidio Trust has prepared an Environmental Assessment (EA) in
connection with this proposed rule. The EA determined that this
proposed rule will not have a significant effect on the quality of the
human environment because it is neither intended nor expected to change
the physical status quo of the Presidio in any significant manner.
As a result, the Trust has issued a Finding of No Significant
Impact (FONSI) concerning these final interim regulations and has
therefore not prepared an Environmental Impact Statement concerning
this proposed action. The EA and the FONSI were prepared in accordance
with the National Environmental Policy Act of 1969, 42 U.S.C. 4321 et
seq. (NEPA), and regulations of the Council on Environmental Quality
for implementing the procedural provisions of NEPA, 40 CFR parts 1500-
1508.
Both the EA and the FONSI are available for public inspection at
the offices of the Presidio Trust, 34 Graham Street, The Presidio, San
Francisco, CA 94129, between the hours of 9:00 a.m. and 5:00 p.m.,
Monday through Friday, except Federal holidays.
Paperwork Reduction Act
The information collection requirements of this proposed rule are
no more extensive than those of the existing NPS regulations, which
have previously been approved by the Office of Management and Budget
(OMB) under 44 U.S.C. 3501 et seq. and assigned clearance number 1024-
0026. These information collection requirements are contained in 36 CFR
1001.5, 1001.6, 1002.4, 1002.7, 1002.12, 1002.19, 1002.22, 1002.23,
1002.24, 1002.25, 1002.27, 1002.28, 1003.2, 1003.4, 1003.12, 1004.1,
1004.2, 1004.3, 1004.4, 1004.5, and 1004.8. This information is being
collected to provide the Executive Director with data necessary to
issue permits for special uses of the Presidio Trust Area and to obtain
notification of accidents that occur within the Presidio Trust Area.
This information will be used to grant administrative benefits and to
facilitate prompt emergency response to accidents. In 36 CFR 1002.19
and 1003.2, the obligation to respond is mandatory; in all other
sections the obligation to respond is required in order to obtain a
benefit.
Other Applicable Authorities
The Presidio Trust has drafted and reviewed these proposed
regulations in light of Executive Order 12988 and has determined that
they meet the applicable standards provided in secs. 3(a) and (b) of
that order.
List of Subjects
36 CFR Part 1001
Administrative practice and procedure, National parks, Penalties,
Public lands, Recreation and recreation areas.
36 CFR Part 1002
National parks, Public lands, Recreation and recreation areas,
Signs and symbols.
36 CFR Part 1003
Bicycles, National parks, Public lands, Recreation and recreation
areas, Traffic regulations.
36 CFR Part 1004
Alcohol and alcoholic beverages, Business and industry, Civil
rights, Equal employment opportunity, National parks, Pets, Public
lands, Recreation and recreation areas, Transportation.
36 CFR Part 1005
National parks, Public lands, Public lands-rights-of-way,
Recreation and recreation areas, Rights-of-way.
[[Page 50032]]
36 CFR Part 1006
National parks, Public lands, Recreation and recreation areas,
Seals and insignia, Signs and symbols.
36 CFR Part 1007
Administrative practice and procedure, Freedom of information,
Records.
36 CFR Part 1008
Administrative practice and procedure, Privacy, Records.
36 CFR Part 1009
Administrative practice and procedure, Tort claims.
Dated: September 9, 1998.
James E. Meadows,
Executive Director.
Accordingly, the Presidio Trust proposes to revise 36 CFR Parts
1001, 1002, 1004, and 1005, and to add 36 CFR Parts 1003, 1006, 1007,
1008, and 1009, as set forth below:
CHAPTER X--PRESIDIO TRUST
Part
1001 General provisions
1002 Resource protection, public use and recreation
1003 Vehicles and traffic safety
1004 Commercial and private operations
1005 Rights-of-way
1006 Presidio Trust symbols
1007 Requests under the Freedom of Information Act
1008 Requests under the Privacy Act
1009 Administrative claims under the Federal Tort Claims Act
PART 1001--GENERAL PROVISIONS
Sec.
1001.1 Purpose.
1001.2 Applicability and scope.
1001.3 Enforcement and penalties.
1001.4 Definitions.
1001.5 Closures and public use limits.
1001.6 Permits.
1001.7 Public notice and comment.
1001.8 Review and final agency action.
Authority: Pub. L. 104-333, 110 Stat. 4097 (16 U.S.C. 460bb
note).
Sec. 1001.1 Purpose.
(a) The regulations in this chapter provide for the proper use,
management, government, and protection of persons, property, and
natural and cultural resources within the Presidio Trust Area.
(b) The regulations in this chapter will be utilized to fulfill the
purposes of the Presidio Trust Act.
Sec. 1001.2 Applicability and scope.
(a) Except as otherwise specified herein, the regulations in this
chapter apply to all persons entering, using, visiting, or otherwise
within the boundaries of the Presidio Trust Area.
(b) The regulations in this chapter apply, regardless of land
ownership or possession, on all lands and waters within the Presidio
Trust Area.
(c) The regulations in parts 1002, 1003 and 1004 of this chapter
shall not be construed to prohibit activities conducted by the Presidio
Trust or its agents in accordance with the Presidio Trust Act and
approved policies of the Presidio Trust or in emergency operations
involving threats to life, property, or resources of the Presidio Trust
Area.
(d) Unless specifically addressed by regulations in this chapter or
authorized, permitted, prohibited or undertaken by or at the direction
of the Trust, conduct within the Presidio Trust Area is governed by the
provisions of State law that are now or may later be in effect, to the
extent that such may be applied pursuant to the Assimilative Crimes
Act, 18 U.S.C. 13.
(e) Nothing in this chapter shall be construed as providing
jurisdiction over the Presidio Trust Area in any way to any entity
other than the Presidio Trust.
Sec. 1001.3 Enforcement and penalties.
Violation of any regulation contained in this chapter, violation of
the terms and conditions of any permit issued in accordance with this
chapter, and/or failure to abide by area designations and conditions
established in accordance with this chapter is prohibited, may result
in the suspension or revocation of the permit and the denial of future
permits by the same applicant, and may subject the violator to a fine
or imprisonment as provided by law, as well as such other penalties as
are provided by law, in addition to costs of the proceedings and
compensation for damages to property.
Sec. 1001.4 Definitions.
The following definitions shall apply to this chapter, unless
modified by the definitions for a specific part or regulation:
Administrative activities means those activities conducted under
the authority of the Presidio Trust for the purpose of safeguarding
persons or property, implementing management plans and policies,
repairing or maintaining government facilities, or otherwise promoting
the purposes of the Presidio Trust Act.
Aircraft means a device that is used or intended to be used for
human flight in the air, including powerless flight.
Archeological resource means material remains of past human life or
activities that are of archeological interest and are at least 50 years
of age. This term includes, but shall not be limited to, objects made
or used by humans, such as pottery, basketry, bottles, weapons, weapon
projectiles, tools, structures or portions of structures, pit houses,
rock paintings, rock carvings, intaglios, or any portion or piece of
the foregoing items, and the physical site, location or context in
which they are found, or human skeletal materials or graves.
Authorized emergency vehicle means a vehicle in official use for
emergency purposes by a Federal agency or an emergency vehicle as
defined by California law.
Authorized law enforcement officer means a law enforcement officer
duly authorized by the Presidio Trust or other competent governmental
authority to enforce applicable law in the Presidio Trust Area.
Bicycle means every device propelled solely by human power upon
which a person or persons may ride on land, having one, two, or more
wheels, except a manual wheelchair.
Board means the Board of Directors of the Presidio Trust or its
designee.
Camping means the erecting of a tent or shelter of natural or
synthetic material, preparing a sleeping bag or other bedding material
for use, or parking of a motor vehicle, motor home or trailer for the
apparent purpose of overnight occupancy.
Carry means to wear, bear, or have on or about the person.
Chair means the Chair of the Board of Directors of the Presidio
Trust or, if there is no Chair, then the Acting Chair of the Board of
Directors of the Presidio Trust.
Commercial passenger vehicle means a bus, motor coach, van or other
vehicle capable of seating seven or more passengers, when used in
transporting passengers for a fee or profit (other than bona fide
sharing of actual expenses), either as a direct charge to another
person, or otherwise, or used in connection with any business, but
excepting pleasure type vehicles rented without a driver for general
use at a charge based on time or mileage or both.
Commercial vehicle means a truck, station wagon, pickup, passenger
car or other vehicle when used in transporting movable property for a
fee or profit, either as a direct charge to another person, or
otherwise, or used as an incident to providing services to another
person, or used in connection with any business.
Cultural resource means material remains of past human life or
activities that are of significant cultural interest and are less than
50 years of age. This
[[Page 50033]]
term includes, but shall not be limited to, objects made or used by
humans, such as pottery, basketry, bottles, weapons, weapon
projectiles, tools, structures or portions of structures, or any
portion or piece of the foregoing items, and the physical site,
location, or context in which they are found, or human skeletal
materials or graves.
Downed aircraft means an aircraft that cannot become airborne as a
result of mechanical failure, fire, or accident.
Executive Director means the Executive Director of the Presidio
Trust or his or her designee.
Firearm means a loaded or unloaded pistol, rifle, shotgun or other
weapon which is designed to, or may be readily converted to, expel a
projectile by the ignition of a propellant.
Fish means any member of the subclasses Agnatha, Chondrichthyes, or
Osteichthyes, or any mollusk or crustacean found in salt water.
Fishing means taking or attempting to take fish.
FOIA means the Freedom of Information Act, 5 U.S.C. 552.
FOIA Officer means the employee designated by the Executive
Director to process FOIA requests and otherwise supervise the Presidio
Trust's compliance with FOIA, or the alternate employee so designated
to perform these duties in the absence of the FOIA Officer.
General Counsel means the General Counsel of the Presidio Trust or
his or her designee.
Hunting means taking or attempting to take wildlife, except
trapping.
Manual wheelchair means a device that is propelled by human power,
designed for and used by a mobility-impaired person.
Motor vehicle means every vehicle that is self-propelled and every
vehicle that is propelled by electric power, but not operated on rails
or upon water, except a motorized wheelchair.
Motorized wheelchair means a self-propelled wheeled device,
designed solely for and used by a mobility-impaired person for
locomotion, that is both capable of and suitable for use in indoor
pedestrian areas.
Net means a seine, weir, net wire, fish trap, or other implement
designed to entrap fish, except a hand-held landing net used to
retrieve fish taken by hook and line.
Operator means a person who operates, drives, controls, otherwise
has charge of or is in actual physical control of a mechanical mode of
transportation or any other mechanical equipment.
Pack animal means a horse, burro, mule or other hoofed mammal.
Pedestrian means a person walking or a mobility-impaired person
using a manual or motorized wheelchair.
Permit means a written authorization to engage in uses or
activities that are otherwise prohibited, restricted, or regulated.
Person means an individual, firm, corporation, society,
association, partnership, or private or public body.
Pet means a dog, cat or any animal that has been domesticated.
Possession means exercising direct physical control or dominion,
with or without ownership, over property, or archeological, cultural or
natural resources.
Presidio Trust and Trust mean the wholly-owned federal government
corporation created by the Presidio Trust Act.
Presidio Trust Act or Trust Act means Title I of Public Law 104-
333, 110 Stat. 4097, as the same may be amended.
Presidio Trust Area means all property, lands and waters under the
administrative jurisdiction of the Presidio Trust.
Presidio Trust Area road means the main-traveled surface of a
roadway open to motor vehicles, owned, controlled or otherwise
administered by the Presidio Trust.
Printed matter means message-bearing textual printed material such
as books, pamphlets, magazines, and leaflets, and does not include
other forms of merchandise, such as posters, coffee mugs, audio or
videotapes, T-shirts, hats, shorts, sunglasses, ties, and other
clothing articles.
Public use limit means the number of persons; number and type of
animals; amount, size and type of equipment, vessels, mechanical modes
of conveyance, or food/beverage containers allowed to enter, be brought
into, remain in, or be used within a designated geographic area or
facility; or the length of time a designated geographic area or
facility may be occupied.
Refuse means trash, garbage, rubbish, waste papers, bottles or
cans, debris, litter, oil, solvents, liquid waste, feces, or other
discarded materials.
Residential dwelling means a fixed housing structure and such land
appurtenant thereto which is either the principal residence of its
occupants, or is occupied on a regular and recurring basis by its
occupants as an alternate residence or vacation home, and which is
under the possession of a private individual pursuant to a lease.
Services means, but is not limited to, meals and lodging, labor,
professional services, transportation, admission to exhibits, use of
telephone or other utilities, or any act for which payment is
customarily received.
Smoking means the carrying of lighted cigarettes, cigars or pipes,
or the intentional and direct inhalation of smoke from these objects.
State means a State, territory, or possession of the United States.
State law means the laws, statutes, regulations, and codes of the
State of California that are applicable to conduct within the State of
California and that do not conflict with Federal laws and regulations,
including the Presidio Trust Act and the regulations in this chapter.
Take or taking means to pursue, hunt, harass, harm, shoot, trap,
net, capture, collect, kill, wound, or attempt to do any of the above.
Traffic means pedestrians, ridden or herded animals, vehicles, and
other conveyances, either singly or together while using any road,
trail, street or other thoroughfare for purpose of travel.
Traffic control device means a sign, signal, marking or other
device placed or erected by, or with the concurrence of, the Executive
Director for the purpose of regulating, warning, guiding or otherwise
controlling traffic or regulating the parking of vehicles.
Trap means a snare, trap, mesh, wire or other implement, object or
mechanical device designed to entrap or kill animals other than fish.
Trapping means taking or attempting to take wildlife with a trap.
Unloaded, as applied to weapons and firearms, means that:
(1) There is no unexpended shell, cartridge, or projectile in any
chamber or cylinder of a firearm or in a clip or magazine inserted in
or attached to a firearm;
(2) A muzzle-loading weapon does not contain gun powder in the pan,
or the percussion cap is not in place; and
(3) Bows, crossbows, spear guns or any implement capable of
discharging a missile or similar device by means of a loading or
discharging mechanism, when that loading or discharging mechanism is
not charged or drawn.
Vehicle means every device in, upon, or by which a person or
property is or may be transported or drawn on land, except devices
moved by human power or used exclusively upon stationary rails or
track.
Weapon means a firearm, compressed gas or spring-powered pistol or
rifle, bow and arrow, crossbow, blowgun, speargun, hand-thrown spear,
slingshot, irritant gas device, explosive device, or any other
implement designed to discharge missiles, and includes a weapon the
possession of which is prohibited under State law.
[[Page 50034]]
Wildlife means any member of the animal kingdom and includes a
part, product, egg or offspring thereof, or the dead body or part
thereof, except fish.
Working day means a regular Federal workday and does not include
Saturdays, Sundays or Federal holidays.
Sec. 1001.5 Closures and public use limits.
(a) Consistent with the purposes of the Presidio Trust Act, public
health and safety, resource protection, sound land use management, and
approved Presidio Trust policies, and based upon a determination that
such action is necessary and appropriate, the Board may:
(1) Establish, for all or a portion of the Presidio Trust Area, a
reasonable schedule of visiting hours, impose public use limits, or
close all or a portion of the Presidio Trust Area to all public use or
to a specific use or activity.
(2) Designate areas for a specific use or activity, or impose
conditions or restrictions on a use or activity.
(3) Terminate a restriction, limit, closure, designation,
condition, or visiting hour restriction imposed under paragraph (a)(1)
or (2) of this section.
(b) At the discretion of the Board, a closure, designation, use or
activity restriction or condition, or the termination or relaxation of
such, which is of a nature, magnitude and duration that will result in
a significant alteration in the public use pattern of the Presidio
Trust Area, adversely affect the Presidio Trust Area's resources,
require a long-term or significant modification in the management of
the Presidio Trust Area, or is of a highly controversial nature, may be
published as a rulemaking in the Federal Register.
(c) Except in emergency situations, prior to implementing or
terminating a restriction, condition, public use limit, or closure, the
Board shall approve a written determination justifying the action. That
determination shall set forth the reason(s) for the restriction,
condition, public use limit or closure authorized by paragraph (a) of
this section that has been established, and an explanation of why less
restrictive measures will not suffice, or in the case of a termination
of a restriction, condition, public use limit or closure previously
established under paragraph (a), a determination as to why the
restriction is no longer necessary and a finding that the termination
will not adversely impact the resources of the Presidio Trust Area.
(d) To implement a public use limit, the Board may establish a
permit, registration, or reservation system. The Board may charge fees
for the processing of requests for, and the issuance of, permits,
registrations, or reservations. Permits, registrations, and
reservations shall be issued in accordance with the criteria and
procedures of this chapter.
Sec. 1001.6 Permits.
(a) When authorized by regulations set forth in this chapter, the
Executive Director may issue a permit to authorize an otherwise
prohibited or restricted activity or impose a public use limit. The
activity authorized by a permit shall be consistent with applicable law
and based upon a determination that public health and safety,
environmental or scenic values, natural or cultural resources,
scientific research, implementation of management responsibilities,
proper allocation and use of facilities, or the avoidance of conflict
among visitor, tenant and neighbor use activities and services will not
be unduly adversely impacted.
(b) Except as otherwise provided, application for a permit shall be
submitted to the Executive Director during normal business hours.
(c) The public will be informed of the existence of a permit
requirement in accordance with Sec. 1001.7 of this chapter.
(d) Unless otherwise provided for by the regulations in this
chapter, the Executive Director shall deny a permit that has been
properly applied for only upon a determination that the designated
capacity for an area or facility would be exceeded; or that one or more
of the factors set forth in paragraph (a) of this section would be
unduly adversely impacted. The basis for denial shall be provided to
the applicant upon request.
(e) The Executive Director shall include in a permit the terms and
conditions that the Executive Director deems necessary to protect the
resources of the Presidio Trust Area or public safety and may also
include terms or conditions established pursuant to the authority of
any other section of this chapter or other applicable law.
(f) The following are prohibited:
(1) Engaging in an activity subject to a permit requirement imposed
pursuant to any provision of this chapter without obtaining a permit;
or
(2) Violating a term or condition of a permit issued pursuant to
this chapter.
Sec. 1001.7 Public notice and comment.
(a) Whenever the authority of Sec. 1001.5 is invoked to restrict or
control a public use or activity, to relax or revoke an existing
restriction or control, to designate all or a portion of the Presidio
Trust Area as open or closed, or to require a permit to implement a
public use limit, the public shall be notified by one or more of the
following methods:
(1) Signs posted at conspicuous locations, such as normal points of
entry and reasonable intervals along the boundary of the affected
locale.
(2) Maps available in the office of the Presidio Trust and other
places convenient to the public.
(3) Publication in a newspaper of general circulation in the San
Francisco Bay Area.
(4) Other appropriate methods, such as the removal of closure
signs, use of electronic media, brochures, maps and handouts.
(b) To the extent practicable, the Presidio Trust will post signs
providing general information and regulatory guidance in the Presidio
Trust Area that are consistent with signs used by the National Park
Service under 36 CFR 1.10 in administering the Golden Gate National
Recreation Area. The use of other types of signs by the Presidio Trust
is not precluded.
(c) The Executive Director shall:
(1) Maintain and make available to the public upon request a
current map showing the boundaries of the Presidio Trust Area.
(2) Publish in the Federal Register, within 30 days of any change
in the boundaries of the Presidio Trust Area, a notice of such change
and the availability of a revised map showing the boundaries of the
Presidio Trust Area.
(3) Maintain and make available to the public upon request a
compendium consisting of
(i) current map(s) showing the boundaries of those areas that have
been designated to allow or prohibit certain uses or activities;
(ii) permit, registration, and reservation system requirements
(including any applicable fees) and other conditions and restrictions
imposed under the regulations in this chapter;
(iii) the written determinations required under Sec. 1001.5(c); and
(iv) such other information or guidance as the Executive Director
shall deem appropriate.
(d) At the discretion of the Board and in such manner as the Board
deems appropriate, actions taken or proposed to be taken under
Secs. 1001.5, 1001.6, or any other provision of this chapter may be
presented for comment to the Golden Gate National Recreation Area
Advisory Commission and other interested entities, organizations, or
individuals.
Sec. 1001.8 Review and final agency action.
(a) Decisions or actions to be made or taken by the Executive
Director under
[[Page 50035]]
the regulations in this chapter (other than the regulations in parts
1007 and 1008 of this chapter) may also be made, altered, or reversed
in whole or in part by the Board, as provided in this section. This
authority of the Board may not be delegated.
(b) Any person aggrieved by a decision or action of the Executive
Director may request that such be reviewed by the Board. Such a request
must be received in writing at the office of the Presidio Trust within
20 days after receipt by the person aggrieved of notice of the action
for which review is sought. If no decision or action is taken on such
request within 60 days of its having been received, the decision or
action to be reviewed shall be considered to have been approved by the
Board.
(c) Decisions or actions of the Board shall be considered final
agency action upon the earlier of:
(1) The passing of 60 days from the receipt of a request under
paragraph (b) of this section, or
(2) The issuance of a final decision or action by the Board stated
in writing to be final agency action.
PART 1002--RESOURCE PROTECTION, PUBLIC USE AND RECREATION
Sec.
1002.1 Preservation of natural, cultural and archeological
resources.
1002.2 Wildlife protection.
1002.3 Weapons, traps and nets.
1002.4 Research specimens.
1002.5 Camping and food storage.
1002.6 Picnicking.
1002.7 Audio disturbances.
1002.8 Fires.
1002.9 Sanitation and refuse.
1002.10 Pets.
1002.11 Horses and pack animals.
1002.12 Aircraft and air delivery.
1002.13 Swimming and boating.
1002.14 Skating, skateboards, and similar devices.
1002.15 Smoking.
1002.16 Property.
1002.17 Recreation fees.
1002.18 Interfering with agency functions.
1002.19 Report of injury or damage.
1002.20 Gambling.
1002.21 Noncommercial soliciting.
1002.22 Explosives.
1002.23 Special events.
1002.24 Public assemblies, meetings.
1002.25 Sale or distribution of printed matter.
1002.26 Livestock use and agriculture.
1002.27 Residing on Federal lands.
1002.28 Memorialization.
Authority: Pub. L. 104-333, 110 Stat. 4097 (16 U.S.C. 460bb
note).
Sec. 1002.1 Preservation of natural, cultural and archeological
resources.
(a) Except as otherwise provided in this chapter, the following are
prohibited:
(1) Possessing, destroying, injuring, defacing, removing, digging,
or disturbing from its natural state:
(i) Living or dead wildlife or fish, or the parts or products
thereof, such as antlers or nests.
(ii) Plants or the parts or products thereof.
(iii) Nonfossilized and fossilized paleontological specimens,
cultural or archeological resources, or the parts thereof.
(iv) A mineral resource or cave formation or the parts thereof.
(2) Introducing wildlife, fish or plants, including their
reproductive bodies, into the Presidio Trust Area.
(3) Tossing, throwing or rolling rocks or other items inside caves
or caverns, into valleys, canyons, or caverns, down hillsides or
mountainsides, or into thermal features.
(4) Using or possessing wood gathered from within the Presidio
Trust Area.
(5) Walking on, climbing, entering, ascending, descending, or
traversing an archeological or cultural resource, monument, or statue,
except in designated areas and under conditions established by the
Board.
(6) Possessing, destroying, injuring, defacing, removing, digging,
or disturbing a structure or its furnishing or fixtures, or other
cultural or archeological resources.
(7) Possessing or using a mineral or metal detector, magnetometer,
side scan sonar, other metal detecting device, or subbottom profiler.
This paragraph does not apply to:
(i) A device broken down and stored or packed to prevent its use
while in the Presidio Trust Area.
(ii) Electronic equipment used primarily for the navigation and
safe operation of boats and aircraft.
(iii) Mineral or metal detectors, magnetometers, or subbottom
profilers used for authorized scientific, mining, or administrative
activities.
(b) The Board may restrict hiking or pedestrian use to a designated
trail or walkway system pursuant to Secs. 1001.5 and 1001.6. Leaving a
trail or walkway to shortcut between portions of the same trail or
walkway, or to shortcut to an adjacent trail or walkway in violation of
designated restrictions is prohibited.
(c)(1) The Board may designate certain fruits, berries, nuts, or
unoccupied seashells which may be gathered by hand for personal use or
consumption upon a written determination that the gathering or
consumption will not adversely affect wildlife, the reproductive
potential of a plant species, or otherwise adversely affect the
Presidio Trust Area's resources.
(2) The Board may:
(i) Limit the size and quantity of the natural products that may be
gathered or possessed for this purpose; or
(ii) Limit the location where natural products may be gathered; or
(iii) Restrict the possession and consumption of natural products
to the Presidio Trust Area.
(3) The following are prohibited:
(i) Gathering or possessing undesignated natural products.
(ii) Gathering or possessing natural products in violation of the
size or quantity limits designated by the Board.
(iii) Unauthorized removal of natural products from the park area.
(iv) Gathering natural products outside of designated areas.
(v) Sale or commercial use of natural products.
(d) This section shall not be construed as authorizing the taking,
use or possession of fish, wildlife or plants for ceremonial or
religious purposes, except where specifically authorized by Federal
statutory law, treaty rights, or in accordance with Sec. 1002.2 of this
chapter.
Sec. 1002.2 Wildlife protection.
(a) The following are prohibited:
(1) The taking of wildlife.
(2) The feeding, touching, teasing, or frightening of wildlife.
(3) The intentional disturbing of wildlife nesting, breeding or
other activities.
(4) Possessing unlawfully taken wildlife or portions thereof.
(5) Hunting, trapping, and fishing.
(b) The following are prohibited, except under such terms and
conditions as may be established by the Board:
(1) The use of an artificial light for purposes of viewing
wildlife.
(2) The transporting of lawfully taken wildlife through the
Presidio Trust Area.
Sec. 1002.3 Weapons, traps and nets.
(a)(1) Except as otherwise provided in this section, it is
prohibited to possess, carry or use a weapon, trap or net.
(2) Weapons, traps or nets may be carried, possessed or used:
(i) When used for target practice at designated times and at
facilities or locations designed and constructed specifically for this
purpose and designated as such by the Board.
(ii) Within a residential dwelling.
(3) Traps, nets and unloaded weapons may be possessed within a
temporary
[[Page 50036]]
lodging or mechanical mode of conveyance when such implements are
rendered temporarily inoperable or are packed, cased or stored in a
manner that will prevent their ready use.
(b) Carrying or possessing a loaded weapon in a motor vehicle,
vessel or other mode of transportation is prohibited.
(c) The use of a weapon, trap or net in a manner that endangers
persons or property is prohibited.
(d) Authorized law enforcement officers may carry weapons in the
performance of their official duties.
Sec. 1002.4 Research specimens.
(a) It is prohibited to take plants, fish, wildlife, rocks or
minerals except in accordance with other regulations of this chapter or
pursuant to the terms and conditions of a specimen collection permit.
(b) A specimen collection permit may be issued only to an official
representative of a reputable scientific or educational institution or
a State or Federal agency for the purpose of research, baseline
inventories, monitoring, impact analysis, group study, or museum
display when the Executive Director determines that the collection is
necessary to the stated scientific or resource management goals of the
institution or agency and that all applicable Federal and State permits
have been acquired, and that the intended use of the specimens and
their final disposal is in accordance with applicable law and Federal
administrative policies. A permit shall not be issued if removal of the
specimen would result in damage to other natural or cultural resources,
adversely affect environmental or scenic values, or if the specimen is
readily available outside of the Presidio Trust Area.
(c) A permit to take an endangered or threatened species listed
pursuant to the Endangered Species Act, or similarly identified by the
State of California, shall not be issued unless the species cannot be
obtained outside of the Presidio Trust Area and the primary purpose of
the collection is to enhance the protection or management of the
species.
(d) The Executive Director may issue a permit which authorizes the
killing of plants, fish or wildlife after approving a written research
proposal and determining that the collection will benefit science or
has the potential for improving the management and protection of the
resources of the Presidio Trust Area.
(e) Specimen collection permits shall require that specimens and
data derived from consumed specimens will be made available to the
public and reports and publications resulting from a research specimen
collection permit shall be filed with the Executive Director.
Sec. 1002.5 Camping and food storage.
(a) The following are prohibited:
(1) Camping anywhere in the Presidio Trust Area, except in
designated areas and under conditions that may be established by the
Board.
(2) Digging or leveling the ground at a campsite.
(3) Leaving camping equipment, site alterations, or refuse after
departing from the campsite.
(4) Camping within 25 feet of a water hydrant or main road, or
within 100 feet of a flowing stream, river or body of water, except as
designated.
(5) Creating or sustaining unreasonable noise between the hours of
10:00 p.m. and 6:00 a.m., considering the nature and purpose of the
actor's conduct, impact on park users, location, and other factors
which would govern the conduct of a reasonably prudent person under the
circumstances.
(6) The installation of permanent camping facilities.
(7) Displaying wildlife carcasses or other remains or parts
thereof.
(8) Connecting to a utility system, except as designated.
(b) Food, garbage, and equipment used to cook or store food must be
kept sealed in a vehicle, or in a camping unit that is constructed of
solid, non-pliable material. This restriction does not apply to food
that is being transported, consumed, or prepared for consumption.
Sec. 1002.6 Picnicking.
Picnicking is allowed, except in designated areas closed in
accordance with Sec. 1001.5. In areas where picnicking is allowed,
persons may engage in picnicking only in accordance with such
conditions as the Board may establish.
Sec. 1002.7 Audio disturbances.
(a) The following are prohibited:
(1) Operating motorized equipment or machinery such as an electric
generating plant, motor vehicle, motorized toy, or an audio device,
such as a radio, television set, tape deck or musical instrument, in a
manner:
(i) That exceeds a noise level of 60 decibels measured on the A-
weighted scale at 50 feet; or
(ii) If below that level, that nevertheless makes noise which is
unreasonable, considering the nature and purpose of the actor's
conduct, location, time of day or night, purpose for which the area was
established, impact on Presidio Trust Area visitors and tenants, and
other factors that would govern the conduct of a reasonably prudent
person under the circumstances.
(2) Operating any type of power saw, portable motor or engine, or
device powered by a portable motor or engine, except pursuant to the
terms and conditions of a permit issued by the Executive Director.
(3) Operating a public address system, except in connection with a
public gathering or special event for which a permit has been issued
pursuant to Sec. 1002.23 or Sec. 1002.24.
Sec. 1002.8 Fires.
(a) The following are prohibited:
(1) Lighting or maintaining a fire, including a fire inside an
appliance such as a barbecue grill, except in designated areas or
receptacles and under conditions that may be established by the Board.
(2) Using stoves or lanterns in violation of established
restrictions.
(3) Lighting, tending, or using a fire, stove or lantern in a
manner that threatens, causes damage to, or results in the burning of
property, real property or resources of the Presidio Trust Area, or
creates a public safety hazard.
(4) Leaving a fire unattended.
(5) Throwing or discarding lighted or smoldering material in a
manner that threatens, causes damage to, or results in the burning of
property or resources of the Presidio Trust Area, or creates a public
safety hazard.
(b) Fires shall be completely extinguished upon termination of use.
(c) During periods of high fire danger, the Board may close all or
a portion of the Presidio Trust Area to the lighting or maintaining of
a fire.
Sec. 1002.9 Sanitation and refuse.
The following are prohibited:
(a) Using government refuse receptacles or other refuse facilities
for dumping household, commercial, or industrial refuse, brought as
such from private or municipal property, except in accordance with
conditions established by the Board.
(b) Depositing refuse in the plumbing fixtures or vaults of a
toilet facility.
(c) Draining refuse from a trailer or other vehicle, except in
facilities provided for such purpose.
(d) Bathing, or washing food, clothing, dishes, or other property
at public water outlets, fixtures or pools, except at those designated
for such purpose.
(e) Disposing of human body waste, except at designated locations
or in fixtures provided for that purpose.
[[Page 50037]]
Sec. 1002.10 Pets.
(a) The following are prohibited:
(1) Possession of a pet in a public building, public transportation
vehicle, or any structure or area that may be closed to the possession
of pets by the Board. This subparagraph shall not apply to guide dogs
necessary to accompany persons with impaired hearing, vision, or
mobility.
(2) Failing to crate, cage, restrain on a leash which shall not
exceed six feet in length, or otherwise physically confine a pet at all
times, except in designated areas and under conditions which may be
established by the Board.
(3) Leaving a pet unattended and tied to an object, except in
designated areas and under conditions which may be established by the
Board.
(4) Allowing a pet to make noise that is unreasonable considering
location, time of day or night, impact on Presidio Trust Area visitors
and tenants, and other relevant factors, or that disturbs wildlife by
barking, howling, or making other noise.
(5) Failing to comply with pet excrement disposal conditions which
may be established by the Board.
(b) Pets or feral animals that are running at-large and/or observed
by an employee or agent of the Presidio Trust in the act of killing,
injuring or molesting humans, pets, or wildlife may be destroyed if
necessary for public safety or protection of humans, pets, wildlife, or
resources of the Presidio Trust Area.
(c) Pets that are running at-large and/or observed by an employee
or agent of the Presidio Trust in the act of killing, injuring or
molesting humans, pets, or wildlife may be impounded by the Presidio
Trust and/or remanded to the custody of other governmental authorities,
and the owner may be charged reasonable fees for kennel or boarding
costs, feed, veterinarian fees, transportation costs, and disposal. An
impounded pet may be put up for adoption or otherwise disposed of after
being held for 72 hours from the time the owner was notified of capture
or 72 hours from the time of capture if the owner is unknown.
(d) Pets may be kept by residents of the Presidio Trust Area
consistent with the provisions of this section and in accordance with
terms of the owner's lease and conditions which may be established by
the Board. Violation of these conditions is prohibited.
(e) This section does not apply to dogs or other animals used by
authorized law enforcement officers in the performance of their
official duties.
Sec. 1002.11 Horses and pack animals.
(a) The use of horses and pack animals is prohibited except in
designated areas or pursuant to the terms and conditions of a permit
issued by the Executive Director.
(b) It is prohibited:
(1) To allow horses or pack animals to proceed in excess of a slow
walk when passing in the immediate vicinity of persons on foot or
bicycle.
(2) To obstruct a trail, or make an unreasonable noise or gesture,
considering the nature and purpose of the actor's conduct, and other
factors that would govern the conduct of a reasonably prudent person,
while horses or pack animals are passing.
(c) This section does not apply to authorized law enforcement
officers in the performance of their official duties.
Sec. 1002.12 Aircraft and air delivery.
(a) Except as may be permitted by the Board, and except as the
official business of the Federal government may be involved, the
following are prohibited:
(1) Operating or using aircraft within the Presidio Trust Area.
(2) Delivering or retrieving a person or object by parachute,
helicopter, or other airborne means, except in emergencies involving
public safety or serious property loss.
(b) The owners of a downed aircraft shall remove the aircraft and
all component parts thereof as directed by the Executive Director.
(c) The use of aircraft shall be in accordance with regulations of
the Federal Aviation Administration.
Sec. 1002.13 Swimming and boating.
Swimming, boating, and the use of any type or description of craft,
other than a seaplane on the water, used or capable of being used as a
means of transportation on water, including a buoyant device permitting
or capable of free flotation, are prohibited in the Presidio Trust
Area.
Sec. 1002.14 Skating, skateboards, and similar devices.
Using roller skates, skateboards, roller skis, coasting vehicles,
or similar devices is prohibited in the Presidio Trust Area, except in
such areas as may be designated for such use by the Board.
Sec. 1002.15 Smoking.
(a) Smoking in the Presidio Trust Area is allowed or prohibited in
the same manner as it would be allowed or prohibited under State law.
(b) Notwithstanding paragraph (a) of this section, the Board may
designate a portion of the Presidio Trust Area, or all or a portion of
a building, structure or facility as closed to smoking when necessary
to protect resources of the Presidio Trust Area, reduce the risk of
fire, or prevent conflicts among visitor or tenant use activities.
Sec. 1002.16 Property.
(a) Prohibitions. The following are prohibited:
(1) Leaving property in the Presidio Trust area with no intent to
retain possession.
(2) Leaving property unattended for longer than 12 hours, except in
locations where longer time periods have been designated or in
accordance with conditions established by the Board or a permit issued
by the Executive Director.
(3) Failing to turn in found property to the Executive Director as
soon as practicable.
(b) Impoundment of property. (1) Property determined to be left
unattended in excess of an allowed period of time may be impounded by
the Executive Director.
(2) Unattended property that interferes with visitor or tenant
safety, orderly management of the Presidio Trust Area, or presents a
threat to resources of the Presidio Trust Area may be impounded by the
Executive Director at any time.
(3) Found or impounded property shall be inventoried to determine
ownership and safeguard personal property.
(4) The owner of record is responsible and liable for charges to
the person who has removed, stored, or otherwise disposed of property
impounded pursuant to this section; or the Executive Director may
assess the owner reasonable fees for the impoundment and storage of
property impounded pursuant to this section.
(c) Disposition of property. (1) Unattended property impounded
pursuant to this section shall be deemed to be abandoned unless claimed
by the owner or an authorized representative thereof within 60 days.
The 60-day period shall begin when the rightful owner of the property
has been notified, if the owner can be identified, or from the time the
property was placed in the Executive Director's custody, if the owner
cannot be identified.
(2) Unclaimed, found property shall be stored for a minimum period
of 60 days and, unless claimed by the owner or an authorized
representative thereof, may be claimed by the finder, provided that the
finder is not an employee of the Presidio Trust. Found property not
claimed by the owner or an authorized
[[Page 50038]]
representative of the finder shall be deemed abandoned.
(3) Abandoned property shall be sold, donated, or disposed of at
the discretion of the Executive Director.
(4) Property owned by a deceased person shall be disposed of in
accordance with State law.
Sec. 1002.17 Recreation fees.
It is prohibited to enter designated entrance fee areas or use
specialized sites, facilities, equipment or services, or to participate
in group activities, recreation events, or other specialized recreation
uses for which recreation fees have been established by the Presidio
Trust, without paying the required fees and possessing the applicable
permits.
Sec. 1002.18 Interfering with agency functions.
The following are prohibited:
(a) Interference. Threatening, resisting, intimidating, or
intentionally interfering with a government employee or agent engaged
in an official duty, or on account of the performance of an official
duty.
(b) Lawful order. Violating the lawful order of a government
employee or agent authorized to maintain order and control public
access and movement during fire fighting operations, search and rescue
operations, wildlife management operations involving animals that pose
a threat to public safety, law enforcement actions, and emergency
operations that involve a threat to public safety or resources of the
Presidio Trust Area, or other activities where the control of public
movement and activities is necessary to maintain order and public
safety.
(c) False information. Knowingly giving a false or fictitious
report or other false information: (i) To an authorized law enforcement
officer investigating an accident or violation of law or regulation; or
(ii) on an application for a permit.
(d) False Report. Knowingly giving a false report for the purpose
of misleading a government employee or agent in the conduct of official
duties, or making a false report that causes a response by the United
States to a fictitious event.
Sec. 1002.19 Report of injury or damage.
A person involved in an incident resulting in personal injury or
property damage exceeding $500, other than an accident reportable under
Sec. 1003.2 of this chapter, shall report the incident to the Executive
Director as soon as possible. This notification does not satisfy any
other reporting requirements that may be imposed by federal or State
law.
Sec. 1002.20 Gambling.
Gambling in any form, or the operation of gambling devices, is
prohibited.
Sec. 1002.21 Noncommercial soliciting.
Soliciting or demanding gifts, money, goods or services is
prohibited, except pursuant to the terms and conditions of a lease or
other written agreement with the Presidio Trust or of a permit that has
been issued under Secs. 1002.23, 1002.24 or 1002.25.
Sec. 1002.22 Explosives.
(a) Using, firing, discharging, possessing, storing or transporting
explosives, blasting agents, explosive materials, fireworks, or
firecrackers are prohibited, except pursuant to the terms and
conditions of a permit issued by the Executive Director.
(b) When permitted, the use, possession, storage and transportation
of such materials shall be in accordance with applicable Federal and
State laws and under such conditions as the Executive Director may
establish.
Sec. 1002.23 Special events.
(a) Sports events, pageants, public spectator attractions,
entertainments, ceremonies, and similar events are allowed when a
permit therefore has been issued by the Executive Director. A permit
shall be denied if such activities would:
(1) Cause injury or damage to resources of the Presidio Trust Area;
or
(2) Be inconsistent with the purposes of the Presidio Trust Act or
otherwise unreasonably impair the atmosphere of peace and tranquility
maintained in natural, historic, or commemorative zones; or
(3) Unreasonably interfere with the authorized activities of
Presidio Trust Area visitors, tenants, or neighbors, or with the
administrative activities of the Presidio Trust or the National Park
Service; or
(4) Substantially impair the operation of public use facilities or
services of Presidio Trust Area tenants; or
(5) Present a clear and present danger to the public health and
safety; or
(6) Result in significant conflict with other existing uses; or
(7) Constitute a violation of an applicable law or regulation.
(b) An application for such a permit shall set forth the name of
the applicant, the date, time, duration, nature and place of the
proposed event, an estimate of the number of persons expected to
attend, a statement of equipment and facilities to be used, and any
other information required by the Executive Director. The application
shall be submitted so as to reach the Executive Director at least seven
days in advance of the proposed event.
(c) As a condition of permit issuance, the Executive Director may
require:
(1) The filing of a bond payable to the Presidio Trust, in an
amount adequate to cover costs such as restoration, rehabilitation, and
cleanup of the area used, and other costs resulting from the special
event. In lieu of a bond, a permittee may elect to deposit cash with
the Presidio Trust equal to the amount of the required bond. Such
deposits shall not earn interest.
(2) In addition to the requirements of paragraph (c)(1) of this
section, the acquisition of liability insurance in which the Presidio
Trust is named as co-insured in an amount sufficient to protect the
Presidio Trust.
(d) The permit may contain such conditions as are reasonably
consistent with protection and use of the Presidio Trust Area in
accordance with the purposes of the Presidio Trust Act. It may also
contain reasonable limitations on the equipment used and the time and
area within which the event is allowed.
Sec. 1002.24 Public assemblies, meetings.
(a) Public assemblies, meetings, gatherings, demonstrations,
parades and other public expressions of views are allowed within the
Presidio Trust Area, provided a permit therefore has been issued by the
Executive Director.
(b) An application for such a permit shall set forth the name of
the applicant; the date, time, duration, nature and place of the
proposed event; an estimate of the number of persons expected to
attend; a statement of equipment and facilities to be used, and any
other information required by the permit application form.
(c) The Executive Director shall, without unreasonable delay, issue
a permit on proper application unless:
(1) A prior application for a permit for the same time and place
has been made that has been or will be granted and the activities
authorized by that permit do not reasonably allow multiple occupancy of
that particular area; or
(2) It reasonably appears that the event will present a clear and
present danger to the public health or safety; or
(3) The event is of such nature or duration that it cannot
reasonably be accommodated in the particular location applied for,
considering such things as damage to resources or facilities of the
Presidio Trust Area, inconsistency with the purposes of the Presidio
Trust Act, interference with authorized activities of Presidio Trust
Area visitors, tenants, or neighbors, impairment of public use
facilities or services of Presidio Trust
[[Page 50039]]
Area tenants, or conflict with other existing uses; or
(4) The activity would constitute a violation of an applicable law
or regulation.
(d) If a permit is denied, the applicant shall be so informed in
writing, with the reason(s) for the denial set forth.
(e) The Board shall designate areas of the Presidio Trust Area that
are not available for public assemblies only if such activities would:
(1) Cause injury or damage to resources of the Presidio Trust Area;
or
(2) Be inconsistent with the purposes of the Presidio Trust Act or
otherwise unreasonably impair the atmosphere of peace and tranquility
maintained in natural, historic, or commemorative zones; or
(3) Unreasonably interfere with the authorized activities of
Presidio Trust Area visitors, tenants, or neighbors, or with the
administrative activities of the Presidio Trust or the National Park
Service; or
(4) Substantially impair the operation of public use facilities or
services of Presidio Trust Area tenants or contractors; or
(5) Present a clear and present danger to the public health and
safety; or
(6) Constitute a violation of an applicable law or regulation.
(f) The permit may contain such conditions as are reasonably
consistent with protection and use of the Presidio Trust Area in
accordance with the purposes of the Presidio Trust Act. It may also
contain reasonable limitations on the equipment used and the time and
area within which the event is allowed.
(g) No permit shall be issued for a period in excess of seven days,
provided that permits may be extended for like periods, upon a new
application, unless another applicant has requested use of the same
location and multiple occupancy of that location is not reasonably
possible.
(h) It is prohibited for persons engaged in activities covered
under this section to obstruct or impede pedestrians or vehicles, or
harass Presidio Trust Area visitors or tenants with physical contact.
(i) A permit may be revoked under any of those conditions, as
listed in paragraph (c) of this section, that constitute grounds for
denial of a permit, or for violation of the terms and conditions of the
permit. Such a revocation shall be made in writing, with the reason(s)
for revocation clearly set forth, except under emergency circumstances,
when an immediate verbal revocation or suspension may be made to be
followed by written confirmation within 72 hours.
Sec. 1002.25 Sale or distribution of printed matter.
(a) The sale or distribution of printed matter is allowed within
the Presidio Trust Area, provided that a permit to do so has been
issued by the Executive Director, and provided further that the printed
matter is not solely commercial advertising.
(b) An application for such a permit shall set forth the name of
the applicant, the name of the organization (if any), the date, time,
duration, and location of the proposed sale or distribution, the number
of participants, and any other information required by the permit
application form.
(c) The Executive Director shall, without unreasonable delay, issue
a permit on proper application unless:
(1) A prior application for a permit for the same time and location
has been made that has been or will be granted and the activities
authorized by that permit do not reasonably allow multiple occupancy of
the particular area; or
(2) It reasonably appears that the sale or distribution will
present a clear and present danger to the public health and safety; or
(3) The number of persons engaged in the sale or distribution
exceeds the number that can reasonably be accommodated in the
particular location applied for, considering such things as damage to
resources of the Presidio Trust Area or facilities, inconsistency with
the purposes of the Presidio Trust Act, interference with authorized
activities of Presidio Trust Area visitors and tenants, impairment of
public use facilities or services of Presidio Trust Area tenants,
interference with the administrative activities of the Presidio Trust
or the National Park Service, or conflict with other existing uses; or
(4) The sale or distribution would constitute a violation of an
applicable law or regulation.
(d) If a permit is denied, the applicant shall be so informed in
writing, with the reason(s) for the denial set forth.
(e) The Board shall designate areas of the Presidio Trust Area that
are not available for the sale or distribution of printed matter only
if such activities would:
(1) Cause injury or damage to resources of the Presidio Trust Area;
or
(2) Be inconsistent with the purposes of the Presidio Trust Act or
otherwise unreasonably impair the atmosphere of peace and tranquility
maintained in natural, historic, or commemorative zones; or
(3) Unreasonably interfere with the authorized activities of
Presidio Trust Area visitors, tenants, or neighbors, or with the
administrative activities of the Presidio Trust or the National Park
Service; or
(4) Substantially impair the operation of public use facilities or
services of Presidio Trust Area tenants or contractors; or
(5) Present a clear and present danger to the public health and
safety; or
(6) Constitute a violation of an applicable law or regulation.
(f) The permit may contain such conditions as are reasonably
consistent with protection and use of the Presidio Trust Area in
accordance with the purposes of the Presidio Trust Act.
(g) No permit shall be issued for a period in excess of 14
consecutive days, provided that permits may be extended for like
periods, upon a new application, unless another applicant has requested
use of the same location and multiple occupancy of that location is not
reasonably possible.
(h) It is prohibited for persons engaged in the sale or
distribution of printed matter under this section to obstruct or impede
pedestrians or vehicles, harass Presidio Trust Area visitors or tenants
with physical contact or persistent demands, misrepresent the purposes
or affiliations of those engaged in the sale or distribution, or
misrepresent whether the printed matter is available without cost or
donation.
(i) A permit may be revoked under any of those conditions, as
listed in paragraph (c) of this section, that constitute grounds for
denial of a permit, or for violation of the terms and conditions of the
permit. Such a revocation shall be made in writing, with the reason(s)
for revocation clearly set forth, except under emergency circumstances,
when an immediate verbal revocation or suspension may be made, to be
followed by written confirmation within 72 hours.
Sec. 1002.26 Livestock use and agriculture.
The running-at-large, herding, driving across, allowing on,
pasturing or grazing of livestock of any kind in the Presidio Trust
Area or the use of the Presidio Trust Area for agricultural purposes is
prohibited except as may be allowed for residential purposes in
accordance with the terms and conditions of a valid permit, lease or
contract.
Sec. 1002.27 Residing on Federal lands.
It is prohibited to reside in the Presidio Trust Area, except
pursuant to the terms and conditions of a valid permit, lease or
contract.
Sec. 1002.28 Memorialization.
(a) The installation of a monument, memorial, tablet, structure, or
other commemorative installation in the
[[Page 50040]]
Presidio Trust Area without a permit issued by the Board is prohibited.
(b) The scattering of human ashes from cremation is prohibited,
except pursuant to the terms and conditions of a permit, or in
designated areas and according to conditions which may be established
by the Board.
PART 1003--VEHICLES AND TRAFFIC SAFETY
Sec.
1003.1 Authorized emergency vehicles.
1003.2 Report of motor vehicle accident.
1003.3 Travel on Presidio Trust Area roads and designated routes.
1003.4 Load, weight and size limits.
1003.5 Speed limits.
1003.6 Unsafe operation.
1003.7 Operating under the influence of alcohol or drugs.
1003.8 Bicycles.
1003.9 Hitchhiking.
1003.10 Powerless flight.
1003.11 Parking.
1003.12 Commercial passenger vehicles.
1003.13 Commercial vehicles.
1003.14 Safety belts.
Authority: Pub. L. 104-333, 110 Stat. 4097 (16 U.S.C. 460bb
note).
Sec. 1003.1 Authorized emergency vehicles.
(a) The operator of an authorized emergency vehicle, when
responding to an emergency or when pursuing or apprehending an actual
or suspected violator of the law, may:
(1) Disregard traffic control devices;
(2) Exceed the speed limit; and
(3) Obstruct traffic.
(b) The provisions of paragraph (a) of this section do not relieve
the operator from the duty to operate with due regard for the safety of
persons and property.
Sec. 1003.2 Report of motor vehicle accident.
(a) The operator of a motor vehicle involved in an accident
resulting in property damage, personal injury or death shall report the
accident to the Executive Director as soon as practicable, but within
24 hours of the accident. If the operator is physically incapable of
reporting the accident, an occupant of the vehicle shall report the
accident to the Executive Director.
(b) A person shall not tow or move a vehicle that has been involved
in an accident without first notifying the Executive Director unless
the position of the vehicle constitutes a hazard or prior notification
is not practicable, in which case notification shall be made before the
vehicle is removed from the Presidio Trust Area.
(c) The notification requirements imposed by this section do not
relieve the operator and occupants of a motor vehicle involved in an
accident of the responsibility to satisfy reporting requirements
imposed by State law.
Sec. 1003.3 Travel on Presidio Trust Area roads and designated routes.
The following are prohibited:
(a) Operating a motor vehicle anywhere other than on Presidio Trust
Area roads, in parking areas, and on routes and areas designated for
such use or in accordance with the terms of a permit.
(b) Operating a motor vehicle not equipped with pneumatic tires.
(c) Operating a motor vehicle in a manner that causes unreasonable
damage to the surface of a road or route.
Sec. 1003.4 Load, weight and size limits.
(a) Vehicle load, weight and size limits established by State law
apply to a vehicle operated on a Presidio Trust Area road. The Board
may designate more restrictive limits when appropriate for traffic
safety or protection of the road surface. The Executive Director may
require a permit and establish conditions for the operation of a
vehicle exceeding designated limits.
(b) The following are prohibited:
(1) Operating a vehicle that exceeds a load, weight or size limit
designated by the Board.
(2) Operating a motor vehicle with an auxiliary detachable side
mirror that extends more than 10 inches beyond the side fender line
except when the motor vehicle is towing a second vehicle.
Sec. 1003.5 Speed limits.
(a) The Board shall establish speed limits in the Presidio Trust
Area and post such limits by using standard traffic control devices.
(b) Unless otherwise posted, the speed limit in the Presidio Trust
Area is 25 miles per hour.
(c) An authorized law enforcement officer may utilize
radiomicrowaves or other electrical devices to determine the speed of a
vehicle on a Presidio Trust Area road. Signs indicating that vehicle
speed is determined by the use of radiomicrowaves or other electrical
devices are not required.
(d) The offense of exceeding a speed limit is defined by State law
and violations are prosecuted pursuant to the provision of
Sec. 1001.2(d) of this chapter.
Sec. 1003.6 Unsafe operation.
(a) The elements of this section constitute offenses that are less
serious than reckless driving. The offense of reckless driving is
defined by State law and violations are prosecuted pursuant to the
provisions of Sec. 1001.2(d) of this chapter.
(b) The following are prohibited:
(1) Operating a motor vehicle without due care or at a speed
greater than that which is reasonable and prudent considering wildlife,
traffic, weather, road and light conditions and road character.
(2) Operating a motor vehicle in a manner which unnecessarily
causes its tires to squeal, skid or break free of the road surface.
(3) Failing to maintain that degree of control of a motor vehicle
necessary to avoid danger to persons, property or wildlife.
(4) Operating a motor vehicle while allowing a person to ride:
(i) On or within any vehicle, trailer or other mode of conveyance
towed behind the motor vehicle unless specifically designed for
carrying passengers while being towed; or
(ii) On any exterior portion of the motor vehicle except as may be
allowed under State law.
Sec. 1003.7 Operating under the influence of alcohol or drugs.
(a) At the request or direction of an authorized law enforcement
officer who has probable cause to believe that an operator of a motor
vehicle within the Presidio Trust Area is under the influence of
alcohol, or a drug, or drugs, or any combination thereof, the operator
shall submit to one or more tests of the blood, breath, saliva or urine
for the purpose of determining blood alcohol and drug content.
(b) Refusal by an operator to submit to a test is prohibited and
proof of refusal may be admissible in any related judicial proceeding.
(c) Any test or tests for the presence of alcohol and drugs shall
be determined by and administered at the direction of an authorized law
enforcement officer.
(d) Any test shall be conducted by using accepted scientific
methods and equipment of proven accuracy and reliability operated by
personnel certified in its use.
(e) The offense of operating a motor vehicle while under the
influence of alcohol or drugs is defined by State law and violations
are prosecuted pursuant to the provision of Sec. 1001.2(d) of this
chapter.
Sec. 1003.8 Bicycles.
(a) The use of a bicycle is prohibited except on Presidio Trust
Area roads, in parking areas and on routes designated for bicycle use
by the Board after considering possible injury or damage to resources
of the Presidio Trust Area, the purposes of the Presidio Trust Act,
possible impairment of the operation of public use facilities or
services of Presidio Trust Area tenants, public health and safety, and
potential for
[[Page 50041]]
interference with the authorized activities of Presidio Trust Area
visitors and tenants, or with the administrative activities of the
Presidio Trust.
(b) A person operating a bicycle is subject to all sections of this
part that apply to an operator of a motor vehicle, except Secs. 1003.3
and 1003.4.
(c) Bicycle speed limits are as follows:
(1) On Presidio Trust Area roads: the same as motor vehicle speed
limits.
(2) On other designated routes in the Presidio Trust Area: 15 miles
per hour.
(3) On blind curves and when passing other trail users: 5 miles per
hour.
(d) The following are prohibited:
(1) Operating a bicycle during periods of low visibility, or
between sunset and sunrise, without exhibiting on the operator or
bicycle a white light or reflector that is visible from a distance of
at least 500 feet to the front and with a red light or reflector
visible from at least 200 feet to the rear.
(2) Operating a bicycle abreast of another bicycle except where
authorized by the Board.
(3) Operating a bicycle while consuming an alcoholic beverage or
carrying in hand an open container of an alcoholic beverage.
(4) The possession of a bicycle on routes not designated as open to
bicycle use.
Sec. 1003.9 Hitchhiking.
Hitchhiking or soliciting transportation is prohibited except in
designated areas and under conditions established by the Board.
Sec. 1003.10 Powerless flight.
The use of devices designed to transport persons through the air in
powerless flight is prohibited.
Sec. 1003.11 Parking.
The Board shall designate areas and establish conditions for
parking of motor vehicles, including time limits and fees. Motor
vehicles parked in violation of these conditions may be ticketed and/or
towed at the owner's expense.
Sec. 1003.12 Commercial passenger vehicles.
(a) The use of Presidio Trust Area roads by commercial passenger
vehicles is prohibited, except pursuant to the terms and conditions of
a permit issued by the Executive Director, and only in such areas as
may be designated by the Board, with the following exceptions:
(1) Operation of a commercial passenger vehicle by a government
agency or instrumentality for the purpose of providing public transit.
(2) Operation of a commercial passenger vehicle as part of a trip
or tour initiated, organized, and directed by an established bona fide
school or college, institution, society or other organization, as a
nonprofit activity of such organization, and if all passengers are
students, faculty, members, or employees of such organization, or
otherwise connected therewith, provided that, upon request by an
authorized law enforcement officer, credentials are presented by the
head of such institution or organization indicating the trip is in
accordance with these provisions. Clubs or associations having as a
principal purpose the arranging of tours, trips, or transportation for
their members will not qualify for admission into the Presidio Trust
Area under the provision of this paragraph.
(3) Operation of a commercial passenger vehicle as a result of an
emergency involving public safety or risk of serious property loss.
(b) The idling of commercial passenger vehicle engines while
loading, unloading, or waiting for passengers to board is prohibited.
Sec. 1003.13 Commercial vehicles.
The use of Presidio Trust Area roads by commercial vehicles when
such use is not connected with the administrative activities of the
Presidio Trust or authorized services provided by or to Presidio Trust
Area visitors or tenants, is prohibited, except that in emergencies the
Executive Director may grant permission to use Presidio Trust Area
roads.
Sec. 1003.14 Safety belts.
(a) Each operator and passenger occupying any seating position of a
motor vehicle in the Presidio Trust Area will have the safety belt or
child restraint system properly fastened at all times when the vehicle
is in motion. The safety belt and child restraint system will conform
to applicable United States Department of Transportation standards.
(b) This section does not apply to an occupant in a seat that was
not originally equipped by the manufacturer with a safety belt nor does
it apply to a person who can demonstrate that a medical condition
prevents restraint by a safety belt or other occupant restraining
device.
PART 1004--COMMERCIAL AND PRIVATE OPERATIONS
Sec.
1004.1 Signs and advertisements.
1004.2 Alcoholic beverages; sale of intoxicants.
1004.3 Business operations.
1004.4 Commercial photography.
1004.5 Construction of buildings or other facilities.
1004.6 Discrimination in employment practices.
1004.7 Discrimination in furnishing public accommodations and
transportation services.
1004.8 Eating, drinking, or lodging establishments.
1004.9 Nuisances.
1004.10 Prospecting, mining, and mineral leasing.
Authority: Pub. L. 104-333, 110 Stat. 4097 (16 U.S.C. 460bb
note).
Sec. 1004.1 Signs and advertisements.
(a) No sign, poster, placard, flier, or other printed notice may be
posted anywhere in the Presidio Trust Area except in accordance with
such conditions as to reasonable time, place, and manner that may be
established by the Board.
(b) Commercial notices or advertisements shall not be displayed,
posted, or distributed within the Presidio Trust Area without a permit
issued therefor.
Sec. 1004.2 Alcoholic beverages; sale of intoxicants.
(a) The sale of alcoholic, spirituous, vinous, or fermented liquor,
containing more than one percent of alcohol by weight, shall conform
with all applicable Federal and State laws and regulations.
(b) No such liquor shall be sold within the Presidio Trust Area,
unless a permit for the sale thereof has first been secured from the
Executive Director.
(1) In granting or refusing applications for permits as herein
provided, the Executive Director shall take into consideration the
character of the neighborhood, the availability of other liquor-
dispensing facilities, State law governing the sale of liquor, and any
other local factors which have a relationship to the privilege
requested.
(2) The permit for sale of intoxicating liquors shall contain such
general and special conditions as the Executive Director may deem
reasonably necessary to insure safe and orderly management of the
Presidio Trust Area.
(3) The permittee shall comply with State law, other than fee and
license requirements, as such would be applicable to the premises and
to the sale and dispensing of intoxicating beverages.
Sec. 1004.3 Business operations.
Engaging in or soliciting any business in the Presidio Trust Area,
except in accordance with the provisions of a permit, contract, or
other written agreement with the Presidio Trust, is prohibited.
[[Page 50042]]
Sec. 1004.4 Commercial photography.
(a) Permit requirement. Before any still or motion picture may be
taken or filmed or any video or television production or sound track
may be made, which involves the use of professional casts, models,
settings, or crews, by any person other than bona fide newsreel or news
television personnel, a written permit must first be obtained from the
Executive Director.
(b) Bond. A bond shall be furnished, or deposit made in cash or by
certified check, in an amount to be set by the Executive Director to
insure full compliance with all of the conditions prescribed in
paragraph (c)(5) of this section.
(c) Form of application. The person or organization seeking a
permit must state in writing:
(1) The type of activity sought to be performed;
(2) The area of the Presidio Trust Area in which the activity is
sought to be performed;
(3) The scope of the filming (or production or recording) and the
manner and extent thereof;
(4) The approximate dates of the activity;
(5) That the applicant will comply with the following conditions:
(i) Utmost care will be exercised to see that no natural features
or public or private property are injured, and after completion of the
work the area will, as required by the official in charge, either be
cleaned up and restored to its prior condition or left, after clean-up,
in a condition satisfactory to the official of the Presidio Trust in
charge.
(ii) Credit will be given to the Presidio Trust through the use of
an appropriate title or announcement, unless there is issued by the
Executive Director a written statement that no such courtesy credit is
desired.
(iii) Pictures will be taken of wildlife only when such wildlife
will be shown in its natural state or under approved management
conditions if such wildlife is confined.
(iv) Any special instructions received from the official in charge
of the area will be complied with.
(v) Any additional information relating to the privilege applied
for will be furnished upon request of the official in charge.
Sec. 1004.5 Construction of buildings or other facilities.
Constructing or attempting to construct a building, or other
structure, road, trail, path, or other way, telephone line, telegraph
line, power line, or any other private or public utility, upon, across,
over, through, or under any portion of the Presidio Trust Area, except
in accordance with the provisions of a valid permit, contract, or other
written agreement with the United States, is prohibited.
Sec. 1004.6 Discrimination in employment practices.
(a) With the exception of governmental agencies or
instrumentalities covered by other non-discrimination requirements, the
proprietor, owner, or operator of any hotel, inn, lodge, restaurant,
recreational facility, or other facility or accommodation offered to or
enjoyed by the general public within the Presidio Trust Area, is
prohibited from discriminating against any employee or maintaining any
employment practice which discriminates because of race, creed, color,
ancestry, sex, age, disabling condition, national origin or sexual
orientation in connection with any activity provided for or permitted
by contract with or permit from the Presidio Trust or by derivative
subcontract or sublease. As used in this section, the term
``employment'' includes, but is not limited to, employment, upgrading,
demotion, or transfer; recruitment, or recruitment advertising; layoffs
or termination; rates of pay or other forms of compensation; and
selection for training including apprenticeship.
(b) Each such proprietor, owner or operator shall post the
following notice at such locations as will ensure that the notice and
its contents will be conspicuous to any person seeking employment:
Notice
This is a facility operated in an area under the jurisdiction of
the Presidio Trust. No discrimination in employment practices on the
basis of race, creed, color, ancestry, sex, age, disabling
condition, national origin, or sexual orientation is permitted in
this facility. Violations of this prohibition are punishable by
fine, imprisonment, or both. Complaints or violations of this
prohibition should be addressed to the Executive Director, The
Presidio Trust, P.O. Box 29052, San Francisco, CA 94129-0052.
Sec. 1004.7 Discrimination in furnishing public accommodations and
transportation services.
(a) With the exception of governmental agencies or
instrumentalities covered by other non-discrimination requirements, the
proprietor, owner or operator and the employees of any hotel, inn,
lodge, restaurant, recreational facility, or other facility or
accommodation offered to or enjoyed by the general public within the
Presidio Trust Area and, while using any portion of the Presidio, any
commercial passenger-carrying motor vehicle service and its employees,
are prohibited from:
(1) Publicizing the facilities, accommodations or any activity
conducted therein in any manner that would directly or inferentially
reflect upon or question the acceptability of any person or persons
because of race, creed, color, ancestry, sex, age, disabling condition,
national origin, or sexual orientation; or
(2) Discriminating by segregation or otherwise against any person
or persons because of race, creed, color, ancestry, sex, age, disabling
condition, national origin, or sexual orientation in furnishing or
refusing to furnish such person or persons any accommodation, facility,
service, or privilege offered to or enjoyed by the general public.
(b) Each such proprietor, owner, or operator shall post the
following notice at such locations as will insure that the notice and
its contents will be conspicuous to any person seeking accommodations,
facilities, services, or privileges:
Notice
This is a facility operated in an area under the jurisdiction of
the Presidio Trust. No discrimination by segregation or other means
in the furnishing of accommodations, facilities, services, or
privileges on the basis of race, creed, color, ancestry, sex, age,
disabling condition, national origin, or sexual orientation is
permitted in the use of this facility. Violations of this
prohibition are punishable by fine, imprisonment, or both.
Complaints or violations of this prohibition should be addressed to
the Executive Director, The Presidio Trust, P.O. Box 29052, San
Francisco, CA 94129-0052.
Sec. 1004.8 Eating, drinking, or lodging establishments.
(a) No establishment offering food, drink, or lodging for sale
within the Presidio Trust Area may be operated without a permit
obtained from the Executive Director. Such permit may include terms and
conditions deemed necessary by the Executive Director to the health,
safety and welfare of the public and it may be revoked upon failure to
comply with the requirements of paragraphs (b) and (c) of this section
or the conditions set forth in the permit.
(b) Such establishment shall be maintained and operated in
accordance with the rules and regulations recommended by the U.S.
Public Health Service for such establishments, and State law. In the
event of conflict or inconsistency between such U.S. Public Health
Service recommendations and the requirements of State law, the former
shall prevail.
(c) The Executive Director shall have the right to inspect such
establishments
[[Page 50043]]
at reasonable times to determine whether the establishment is being
operated in accordance with the applicable rules and regulations and in
accordance with the provisions of the permit.
Sec. 1004.9 Nuisances.
The creation or maintenance of a nuisance within the Presidio Trust
Area is prohibited.
Sec. 1004.10 Prospecting, mining, and mineral leasing.
Prospecting, mining, and the location of mining claims under the
general mining laws and leasing under the mineral leasing laws are
prohibited in the Presidio Trust Area except as authorized by law.
PART 1005-RIGHTS-OF-WAY
Sec.
1005.1 Definitions.
1005.2 Issuance of rights-of-way.
1005.3 Nature of interest granted.
1005.4 Unauthorized occupancy.
1005.5 Terms and conditions.
1005.6 Nonconstruction, abandonment or nonuse.
1005.7 Deviation from approved right-of-way.
1005.8 Order of cancellation.
1005.9 Change in jurisdiction over lands.
1005.10 Transfer of right-of-way.
1005.11 Disposal of property on termination of right-of-way.
Authority: Pub. L. 104-333, 110 Stat. 4097 (16 U.S.C. 460bb
note).
Sec. 1005.1 Definitions.
The following terms have the following meanings as used in this
part:
Construction work means any and all work, whether of a temporary or
permanent nature, done in the construction of the project.
Project means the physical structures in connection with which the
right-of-way is approved.
Right-of-way includes license, permit, or easement, as the case may
be.
Sec. 1005.2 Issuance of rights-of-way.
Rights-of-way over or through the Presidio Trust Area will be
issued by the Board under the regulations of this part on such terms
and conditions (including monetary charges) as the Board finds to be in
the public interest, in accordance with applicable law, and consistent
with the purposes of the Presidio Trust Act.
Sec. 1005.3 Nature of interest granted.
No interest granted by the regulations in this part shall give the
holder thereof any estate of any kind in fee in the lands. The interest
granted shall consist of an easement, license, or permit in accordance
with the terms of the applicable statute; no interest shall be greater
than a permit revocable at the discretion of the Board unless an
applicable statute provides otherwise. Except as otherwise provided by
law, no interest granted shall give the grantee any right whatsoever to
take from the Presidio Trust Area any material, earth, or stone for
construction or other purpose, but stone and earth necessarily removed
from the right-of-way in the construction of a project may be used
elsewhere along the same right-of-way in the construction of the same
project.
Sec. 1005.4 Unauthorized occupancy.
Any occupancy or use of the lands of the Presidio Trust Area
without authority will subject the person occupying or using the land
to prosecution and liability for trespass.
Sec. 1005.5 Terms and conditions.
By accepting a right-of-way, the holder thereof agrees and consents
to comply with and be bound by the following terms and conditions,
except to the extent that the instrument granting the right-of-way
expressly provides otherwise:
(a) To comply with Federal and State laws applicable to the project
for which the right-of-way is approved, and to the lands which are
included in the right-of-way, and lawful existing regulations
thereunder.
(b) To prevent or minimize damage to the Presidio Trust Area's
resources related to the holder's use of or activities related to the
right-of-way, including but not limited to restoration, landscaping,
and disposal of brush and other refuse, as determined by and at the
direction of the Executive Director.
(c) To take such soil and resource conservation and protection
measures including weed control, on the land covered by the right-of-
way as determined by and at the direction of the Executive Director.
(d) To do everything reasonably within the holder's power, both
independently and on request of any duly authorized representative of
the Presidio Trust or the United States, to prevent and suppress fires
on or near the lands to be occupied under the right-of-way, including
making available such construction and maintenance forces as may be
reasonably obtainable for the suppression of such fires.
(e) To build and repair such roads, fences, and trails as may be
destroyed or injured by construction work and to build and maintain
necessary and suitable crossings for all roads and trails that
intersect the works constructed, maintained, or operated under the
right-of-way, subject to the approval of the Executive Director.
(f) To pay the Presidio Trust the full value for all damages to
lands in the Presidio Trust Area or other property of or administered
by the Presidio Trust caused by the holder or by the holder's
employees, contractors, or employees of the contractors, and to
indemnify the Presidio Trust against any liability for damages to life,
person or property arising from the occupancy or use of the lands under
the right-of-way; except that where a right-of-way is granted hereunder
to a State or other governmental agency whose power to assume liability
by agreement is limited by law, such agency shall indemnify the
Presidio Trust as provided above to the extent that it may legally do
so.
(g) To refrain from cutting or destroying any timber without first
obtaining permission from the Executive Director; to replace in kind
any trees removed or reimburse the Trust for its costs in replacing in
kind any trees removed; and to notify promptly the Executive Director
of the amount of merchantable timber, if any, which will be cut,
removed, or destroyed in the construction and maintenance of the
project, and to pay the Presidio Trust in advance of construction such
sum of money as the Executive Director may determine to be the full
stumpage value of the timber to be so cut, removed, or destroyed.
(h) To comply with such other specified conditions, within the
scope of the applicable statute and lawful regulations thereunder, with
respect to the occupancy and use of the lands as may be found by the
Board to be necessary as a condition to the approval of the right-of-
way in order to render its use compatible with the public interest.
(i) That upon revocation or termination of the right-of-way, unless
the requirement is waived in writing by the Executive Director, the
holder shall, so far as it is reasonably possible to do so, restore the
land to its original condition to the entire satisfaction of the
Executive Director.
(j) That the holder shall at all times keep the Executive Director
informed of his address, and, in case of corporations, of the address
of its principal place of business and of the names and addresses of
its principal officers.
(k) That in the construction, operation, and maintenance of the
project, the holder shall not discriminate against any employee or
applicant for employment because of race, creed, color, ancestry, sex,
age, disabling condition, national origin, or sexual orientation and
shall require an
[[Page 50044]]
identical provision to be included in all subcontracts.
(l) That the allowance of the right-of-way shall be subject to the
express condition that the exercise thereof will not unduly interfere
with the management and administration by the Presidio Trust or the
United States of the lands affected thereby, and that the holder agrees
and consents to the occupancy and use by the Presidio Trust and the
United States, and their grantees, permittees, or lessees of any part
of the right-of-way not actually occupied or required by the project,
or the full and safe utilization thereof, for operations incident to
such management, administration, or disposal.
(m) That the right-of-way herein granted shall be subject to the
express covenant that it will be modified, adapted, or discontinued if
found by the Board to be necessary, without liability or expense to the
Presidio Trust or the United States, so as not to conflict with the use
and occupancy of the land for any authorized works which may be
hereafter constructed thereon under the authority of the Presidio Trust
or the United States.
Sec. 1005.6 Nonconstruction, abandonment or nonuse.
Unless otherwise provided by law, rights-of-way are subject to
cancellation by the Board for failure to construct within the period
allowed under the terms of the issuance of the right-of-way and for
abandonment or nonuse.
Sec. 1005.7 Deviation from approved right-of-way.
No deviation from the location of an approved right-of-way shall be
undertaken without the prior written approval of the Executive
Director. The Executive Director may require that the Board approve the
deviation where in the Executive Director's judgment the deviation is
substantial.
Sec. 1005.8 Order of cancellation.
All rights-of-way issued pursuant to this part shall be subject to
cancellation for the violation of any of the provisions of this part
applicable thereto, or for the violation of the terms or conditions of
the right-of-way, at the discretion of the Board. No right-of-way shall
be deemed to be cancelled except on the issuance of a specific order of
cancellation, which order shall be published in the Federal Register.
Sec. 1005.9 Change in jurisdiction over lands.
A change in jurisdiction over the lands in the Presidio from one
Federal agency to another will not cancel a right-of-way involving such
lands. It will however, change the administrative jurisdiction over the
right-of-way or part thereof affected by the change in jurisdiction.
Sec. 1005.10 Transfer of right-of-way.
No transfer of any right-of-way will be recognized unless and until
it is first approved in writing by the Board.
Sec. 1005.11 Disposal of property on termination of right-of-way.
Upon the termination of a right-of-way by expiration or by prior
cancellation, in the absence of any agreement to the contrary, if all
monies due the Presidio Trust thereunder have been paid, the holder of
the right-of-way will be allowed 60 days or such additional time as may
be granted by the Executive Director in which to remove from the right-
of-way all property or improvements of any kind, other than a road and
usable improvements to a road, placed thereon by him; but if not
removed within the time allowed, all such property and improvements
shall become the property of the Presidio Trust, without any
compensation owed therefore. No claim for damages against the Presidio
Trust or its employees, directors, officers, or agents shall arise or
be made on account of such removal and restoration work.
PART 1006--PRESIDIO TRUST SYMBOLS
Sec.
1006.1 Definitions.
1006.2 Applicability.
1006.3 Uses.
1006.4 Power to revoke.
1006.5 Penalties.
Authority: Pub. L. 104-333, 110 Stat. 4097 (16 U.S.C. 460bb
note).
Sec. 1006.1 Definitions.
The term Presidio Trust symbol, as used in this part, refers to:
(a) any official symbol, insignia, trademark or service mark of the
Presidio Trust designated as such by action of the Board, with notice
published in the Federal Register; and
(b) the words ``Presidio'' and ``Trust'' when used together and/or
in conjunction with other words.
Sec. 1006.2 Applicability.
The regulations contained in this part shall apply to the fullest
extent of the jurisdiction of the United States.
Sec. 1006.3 Uses.
(a) All reproduction and use of Presidio Trust symbols by any
entity other than the Presidio Trust are prohibited, except as provided
in these regulations.
(b) The Board may license or otherwise permit the reproduction and
use of one or more Presidio Trust symbols, with or without charge, for
uses that are consistent with the purposes of the Presidio Trust Act.
Sec. 1006.4 Power to revoke.
Permission granted under this part by the Board may be rescinded by
the Board at any time upon a finding that the use of the Presidio Trust
symbol or symbols involved is inconsistent with the purposes of the
Presidio Trust Act, or for disregard of any limitations or terms
contained in the applicable licenses or permits.
Sec. 1006.5 Penalties.
Whoever reproduces or uses any Presidio Trust symbol in violation
of the regulations of this part shall be subject to the penalties
prescribed in 18 U.S.C. 701.
PART 1007--REQUESTS UNDER THE FREEDOM OF INFORMATION ACT
Sec.
1007.1 Purpose and scope.
1007.2 Records available.
1007.3 Requests for records.
1007.4 Preliminary processing of requests.
1007.5 Action on initial requests.
1007.6 Time limits for processing initial requests.
1007.7 Appeals.
1007.8 Action on appeals.
1007.9 Fees.
1007.10 Waiver of fees.
Authority: Pub. L. 104-333, 110 Stat. 4097 (16 U.S.C. 460bb
note); 5 U.S.C. 552.
Sec. 1007.1 Purpose and scope.
(a) This part contains the procedures for submission to and
consideration by the Presidio Trust of requests for records under the
Freedom of Information Act, 5 U.S.C. 552.
(b) Before invoking the formal procedures set out below, persons
seeking records from the Presidio Trust may find it useful to consult
with the Presidio Trust's FOIA Officer, who can be reached at Presidio
Trust, P.O. Box 29052, San Francisco, CA 94129-0052, Telephone: (415)
561-5300.
(c) The procedures in this part do not apply to:
(1) Records published in the Federal Register, the Bylaws of the
Presidio Trust, statements of policy and interpretations, and other
materials that have been published by the Presidio Trust on its
internet website (http://www.presidiotrust.gov) or are routinely made
available for inspection and copying.
(2) Records or information compiled for law enforcement purposes
and
[[Page 50045]]
covered by the disclosure exemption described in Sec. 1007.2(c)(7) if:
(i) The investigation or proceeding involves a possible violation
of criminal law; and
(ii) There is reason to believe that:
(A) The subject of the investigation or proceeding is not aware of
its pendency, and
(B) Disclosure of the existence of the records could reasonably be
expected to interfere with enforcement proceedings.
(3) Informant records maintained by the United States Park Police
under an informant's name or personal identifier, if requested by a
third party according to the informant's name or personal identifier,
unless the informant's status as an informant has been officially
confirmed.
Sec. 1007.2 Records available.
(a) Policy. It is the policy of the Presidio Trust to make its
records available to the public to the greatest extent possible
consistent with the purposes of the Presidio Trust Act and the Freedom
of Information Act.
(b) Statutory disclosure requirement. FOIA requires that the
Presidio Trust, on a request from a member of the public submitted in
accordance with the procedures in this part, make requested records
available for inspection and copying.
(c) Statutory exemptions. Exempted from FOIA's statutory disclosure
requirement are matters that are:
(1)(i) Specifically authorized under criteria established by an
Executive order to be kept secret in the interest of national defense
or foreign policy and
(ii) Are in fact properly classified pursuant to such Executive
order;
(2) Related solely to the internal personnel rules and practices of
an agency;
(3) Specifically exempted from disclosure by statute (other than
the Privacy Act), provided that such statute:
(i) Requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue, or
(ii) Establishes particular criteria for withholding or refers to
particular types of matters to be withheld;
(4) Trade secrets and commercial or financial information obtained
from a person and privileged or confidential;
(5) Inter-agency or intra-agency memorandums or letters which would
not be available by law to a party other than an agency in litigation
with the agency;
(6) Personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal
privacy;
(7) Records or information compiled for law enforcement purposes,
but only to the extent that the production of such law enforcement
records or information:
(i) Could reasonably be expected to interfere with enforcement
proceedings,
(ii) Would deprive a person of a right to a fair or an impartial
adjudication,
(iii) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy,
(iv) Could reasonably be expected to disclose the identity of a
confidential source, including a State, local, or foreign agency or
authority or any private institution which furnished information on a
confidential basis, and, in the case of a record or information
compiled by a criminal law enforcement authority in the course of a
criminal investigation, or by an agency conducting a lawful national
security intelligence investigation, information furnished by a
confidential source,
(v) Would disclose techniques and procedures for law enforcement
investigations or prosecutions or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law, or
(vi) Could reasonably be expected to endanger the life or physical
safety of any individual;
(8) Contained in or related to examination, operating, or condition
reports prepared by, on behalf of, or for the use of an agency
responsible for the regulation or supervision of financial
institutions; or
(9) Geological and geophysical information and data, including
maps, concerning wells.
(d) Decisions on requests. It is the policy of the Presidio Trust
to withhold information falling within an exemption only if:
(1) Disclosure is prohibited by statute or Executive order or
(2) Sound grounds exist for invocation of the exemption.
(e) Disclosure of reasonably segregable nonexempt material. If a
requested record contains material covered by an exemption and material
that is not exempt, and it is determined under the procedures in this
part to withhold the exempt material, any reasonably segregable
nonexempt material shall be separated from the exempt material and
released. In such circumstances, the records disclosed in part shall be
marked or annotated to show both the amount and the location of the
information deleted wherever practicable.
Sec. 1007.3 Requests for records.
(a) Submission of requests. A request to inspect or copy records
shall be submitted to the Presidio Trust's FOIA Officer at P.O. Box
29052, San Francisco, CA 94129-0052.
(b) Form of requests. (1) Requests under this part shall be in
writing and must specifically invoke FOIA.
(2) A request must reasonably describe the records requested. A
request reasonably describes the records requested if it will enable an
employee of the Presidio Trust familiar with the subject area of the
request to locate the record with a reasonable amount of effort. If
such information is available, the request should identify the subject
matter of the record, the date when it was made, the place where it was
made, the person or office that made it, the present custodian of the
record, and any other information that will assist in locating the
requested record. If the request involves a matter known by the
requester to be in litigation, the request should also state the case
name and court hearing the case.
(3)(i) A request shall:
(A) Specify the fee category (commercial use, educational
institution, noncommercial scientific institution, news media, or
other, as defined in Sec. 1007.9 of this chapter) in which the
requester claims the request to fall and the basis of this claim and
(B) State the maximum amount of fees that the requester is willing
to pay or include a request for a fee waiver.
(ii) Requesters are advised that, under Sec. 1007.9 (f), (g) and
(h), the time for responding to requests may be delayed:
(A) If a requester has not sufficiently identified the fee category
applicable to the request,
(B) If a requester has not stated a willingness to pay fees as high
as anticipated by the Presidio Trust or
(C) If a fee waiver request is denied and the requester has not
included an alternative statement of willingness to pay fees as high as
anticipated by the Presidio Trust.
(4) A request seeking a fee waiver shall, to the extent possible,
address why the requester believes that the criteria for fee waivers
set out in Sec. 1007.10 are met.
(5) To ensure expeditious handling, requests should be prominently
marked, both the envelope and on the face of the request, with the
legend ``FREEDOM OF INFORMATION REQUEST.''
(c) Creation of records. A request may seek only records that are
in existence at the time the request is received. A request may not
seek records that come into existence after the date on which it is
received and may not require that new records be created in response to
the request by, for example, combining or compiling selected items from
[[Page 50046]]
manual files, preparing a new computer program, or calculating
proportions, percentages, frequency distributions, trends or
comparisons. In those instances where the Presidio Trust determines
that creating a new record will be less burdensome than disclosing
large volumes of unassembled material, the Presidio Trust may, in its
discretion, agree to creation of a new record as an alternative to
disclosing existing records.
Sec. 1007.4 Preliminary processing of requests.
(a) Scope of requests. Unless a request clearly specifies
otherwise, requests to the Presidio Trust may be presumed to seek only
records of the Presidio Trust.
(b) Records of other departments and agencies. (1) If a requested
record in the possession of the Presidio Trust originated with another
Federal department or agency, the request shall be referred to that
agency unless:
(i) The record is of primary interest to the Presidio Trust, for
example, because it was developed or prepared pursuant to Presidio
Trust regulations or request,
(ii) The Presidio Trust is in a better position than the
originating agency to assess whether the record is exempt from
disclosure, or
(iii) The originating agency is not subject to FOIA.
(2) A request for documents that were classified by another agency
shall be referred to that agency.
(c) Consultation with submitters of commercial and financial
information. (1) If a request seeks a record containing trade secrets
or commercial or financial information submitted by a person outside of
the Federal government, the Presidio Trust shall provide the submitter
with notice of the request whenever:
(i) The submitter has made a good faith designation of the
information as commercially or financially sensitive, or
(ii) The Presidio Trust has reason to believe that disclosure of
the information may result in commercial or financial injury to the
submitter.
(2) Where notification of a voluminous number of submitters is
required, such notification may be accomplished by posting or
publishing the notice in a place reasonably calculated to accomplish
notification.
(3) The notice to the submitter shall afford the submitter a
reasonable period within which to provide a detailed statement of any
objection to disclosure. The submitter's statement shall explain the
basis on which the information is claimed to be exempt under FOIA,
including a specification of any claim of competitive or other business
harm that would result from disclosure. The statement shall also
include a certification that the information is confidential, has not
been disclosed to the public by the submitter, and is not routinely
available to the public from other sources.
(4) If a submitter's statement cannot be obtained within the time
limit for processing the request under Sec. 1007.6, the requester shall
be notified of the delay as provided in Sec. 1007.6(f).
(5) Notification to a submitter is not required if:
(i) The Presidio Trust determines, prior to giving notice, that the
request for the record should be denied;
(ii) The information has previously been lawfully published or
officially made available to the public;
(iii) Disclosure is required by a statute (other than FOIA) or
regulation (other than this part);
(iv) Disclosure is clearly prohibited by a statute, as described in
Sec. 1007.2(c)(3);
(v) The information was not designated by the submitter as
confidential when it was submitted, or a reasonable time thereafter, if
the submitter was specifically afforded an opportunity to make such a
designation; however, a submitter will be notified of a request for
information that was not designated as confidential at the time of
submission, or a reasonable time thereafter, if there is substantial
reason to believe that disclosure of the information would result in
competitive harm.
(vi) The designation of confidentiality made by the submitter is
obviously frivolous; or
(vii) The information was submitted to the Presidio Trust more than
10 years prior to the date of the request, unless the Presidio Trust
has reason to believe that it continues to be confidential.
(6) If a requester brings suit to compel disclosure of information,
the submitter of the information will be promptly notified.
Sec. 1007.5 Action on initial requests.
(a) Authority. (1) Requests shall be decided by the FOIA Officer.
(2) A decision to withhold a requested record, to release a record
that is exempt from disclosure, or to deny a fee waiver shall be made
only after consultation with the General Counsel.
(b) Form of grant. (1) When a requested record has been determined
to be available, the FOIA Officer shall notify the requester as to when
and where the record is available for inspection or, as the case may
be, when and how copies will be provided. If fees are due, the FOIA
Officer shall state the amount of fees due and the procedures for
payment, as described in Sec. 1007.9.
(2) The FOIA Officer shall honor a requester's specified preference
of form or format of disclosure (e.g., paper, microform, audiovisual
materials, or electronic records) if the record is readily available to
the Presidio Trust in the requested form or format or if the record is
reproducible by the Presidio Trust with reasonable efforts in the
requested form or format.
(3) If a requested record (or portion thereof) is being made
available over the objections of a submitter made in accordance with
Sec. 1007.4(c), both the requester and the submitter shall be notified
of the decision. The notice to the submitter (a copy of which shall be
made available to the requester) shall be forwarded a reasonable number
of days prior to the date on which disclosure is to be made and shall
include:
(i) A statement of the reasons why the submitter's objections were
not sustained;
(ii) A specification of the portions of the record to be disclosed,
if the submitter's objections were sustained in part; and
(iii) A specified disclosure date.
(4) If a claim of confidentiality has been found frivolous in
accordance with Sec. 1007.4(c)(5)(vi) and a determination is made to
release the information without consultation with the submitter, the
submitter of the information shall be notified of the decision and the
reasons therefor a reasonable number of days prior to the date on which
disclosure is to be made.
(c) Form of denial. (1) A decision withholding a requested record
shall be in writing and shall include:
(i) A listing of the names and titles or positions of each person
responsible for the denial;
(ii) A reference to the specific exemption or exemptions
authorizing the withholding;
(iii) If neither a statute nor an Executive order requires
withholding, the sound ground for withholding;
(iv) An estimate of the volume of records or information withheld,
in number of pages or in some other reasonable form of estimation. This
estimate does not need to be provided if the volume is otherwise
indicated through deletions on records disclosed in part, or if
providing an estimate would harm an interest protected by an applicable
exemption; and
(v) A statement that the denial may be appealed and a reference to
the procedures in Sec. 1007.7 for appeal.
(2) A decision denying a request for failure to reasonably describe
requested records or for other procedural deficiency or because
requested records
[[Page 50047]]
cannot be located shall be in writing and shall include:
(i) A description of the basis of the decision;
(ii) A list of the names and titles or positions of each person
responsible; and
(iii) A statement that the matter may be appealed and a reference
to the procedures in Sec. 1007.7 for appeal.
(d) Expedited processing. (1) Requests and appeals will be taken
out of order and given expedited treatment whenever it is determined by
the FOIA Officer that they involve:
(i) Circumstances in which the lack of expedited treatment could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual; or
(ii) An urgency to inform the public about an actual or alleged
federal government activity, if made by a person primarily engaged in
disseminating information.
(2) A request for expedited processing may be made at the time of
the initial request for records or at any later time.
(3) A requester who seeks expedited processing must submit a
statement, certified to be true and correct to the best of that
person's knowledge and belief, explaining in detail the basis for
requesting expedited processing.
(4) Within ten calendar days of receiving of a request for
expedited processing, the FOIA Officer shall decide whether to grant it
and shall notify the requester of the decision. If a request for
expedited processing is granted, the request shall be given priority
and shall be processed as soon as practicable. If a request for
expedited processing is denied, any appeal of that decision shall be
acted on expeditiously.
Sec. 1007.6 Time limits for processing initial requests.
(a) Basic limit. Requests for records shall be processed promptly.
A determination whether to grant or deny a request shall be made within
20 working days after receipt of a request. This determination shall be
communicated immediately to the requester.
(b) Running of basic time limit. (1) The 20 working day time limit
begins to run when a request meeting the requirements of Sec. 1007.3(b)
is received at the Presidio Trust.
(2) The running of the basic time limit may be delayed or tolled as
explained in Sec. 1007.9 (f), (g) and (h) if a requester:
(i) Has not stated a willingness to pay fees as high as are
anticipated and has not sought and been granted a full fee waiver, or
(ii) Has not made a required advance payment.
(c) Extensions of time. In the following unusual circumstances, the
time limit for acting on an initial request may be extended to the
extent reasonably necessary to the proper processing of the request,
but in no case may the time limit be extended by more than 20 working
days:
(1) The need to search for and collect the requested records from
facilities or other establishments that are separate from the main
office of the Presidio Trust;
(2) The need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records demanded in a single
request; or
(3) The need for consultation, which shall be conducted with all
practicable speed, with another agency having a substantial interest in
the determination of the request.
(d) Notice of extension. A requester shall be notified in writing
of an extension under paragraph (c) of this section. The notice shall
state the reason for the extension and the date on which a
determination on the request is expected to be made.
(e) Treatment of delay as denial. If no determination has been
reached at the end of the 20 working day period for deciding an initial
request, or an extension thereof under Sec. 1007.6(c), the requester
may deem the request denied and may exercise a right of appeal in
accordance with Sec. 1007.7.
(f) Notice of delay. When a determination cannot be reached within
the time limit, or extension thereof, the requester shall be notified
of the reason for the delay, of the date on which a determination may
be expected, and of the right to treat the delay as a denial for
purposes of appeal, including a reference to the procedures for filing
an appeal in Sec. 1007.7.
Sec. 1007.7 Appeals.
(a) Right of appeal. A requester may appeal to the Executive
Director when:
(1) Records have been withheld,
(2) A request has been denied for failure to describe requested
records or for other procedural deficiency or because requested records
cannot be located,
(3) A fee waiver has been denied,
(4) A request has not been decided within the time limits provided
in Sec. 1007.6; or
(5) A request for expedited processing under Sec. 1007.5(d) has
been denied.
(b) Time for appeal. An appeal must be received at the office of
the Presidio Trust no later than 20 working days after the date of the
initial denial, in the case of a denial of an entire request, or 20
working days after records have been made available, in the case of a
partial denial.
(c) Form of appeal. (1) An appeal shall be initiated by filing a
written notice of appeal. The notice shall be accompanied by copies of
the original request and the initial denial and should, in order to
expedite the appellate process and give the requester an opportunity to
present his or her arguments, contain a brief statement of the reasons
why the requester believes the initial denial to have been in error.
(2) The appeal shall be addressed to the Executive Director,
Presidio Trust, P.O. Box 29052, San Francisco, CA 94129-0052.
(3) To expedite processing, both the envelope containing a notice
of appeal and the face of the notice should bear the legend ``FREEDOM
OF INFORMATION APPEAL.''
Sec. 1007.8 Action on appeals.
(a) Authority. Appeals shall be decided by the Executive Director
after consultation with the FOIA Officer and the General Counsel.
(b) Time limit. A final determination shall be made within 20
working days after receipt of an appeal meeting the requirements of
Sec. 1007.7(c).
(c) Extensions of time. (1) If the time limit for responding to the
initial request for a record was not extended under the provisions of
Sec. 1007.6(c) or was extended for fewer than 10 working days, the time
for processing of the appeal may be extended to the extent reasonably
necessary to the proper processing of the appeal, but in no event may
the extension, when taken together with any extension made during
processing of the initial request, result in an aggregate extension
with respect to any one request of more than 10 working days. The time
for processing of an appeal may be extended only if one or more of the
unusual circumstances listed in Sec. 1007.6(c) requires an extension.
(2) The appellant shall be advised in writing of the reasons for
the extension and the date on which a final determination on the appeal
is expected to be dispatched.
(3) If no determination on the appeal has been reached at the end
of the 20 working day period, or the extension thereof, the requester
is deemed to have exhausted his administrative remedies, giving rise to
a right of review in the United States District Court for the Northern
District of California, as specified in 5 U.S.C. 552(a)(4).
(4) When no determination can be reached within the applicable time
[[Page 50048]]
limit, the appeal will nevertheless continue to be processed. On
expiration of the time limit, the requester shall be informed of the
reason for the delay, of the date on which a determination may be
reached to be dispatched and of the right to seek judicial review.
(d) Form of decision. (1) The final determination on an appeal
shall be in writing and shall state the basis for the determination. If
the determination is to release the requested records or portions
thereof, the FOIA Officer shall immediately make the records available.
If the determination upholds in whole or part the initial denial of a
request for records, the determination shall advise the requester of
the right to obtain judicial review in the U.S. District Court for the
Northern District of California and shall set forth the names and
titles or positions of each person responsible for the denial.
(2) If a requested record (or portion thereof) is being made
available over the objections of a submitter made in accordance with
Sec. 1007.4(c), the submitter shall be provided notice as described in
Sec. 1007.5(b)(3).
Sec. 1007.9 Fees.
(a) Policy. (1) Unless waived pursuant to the provisions of
Sec. 1007.10, fees for responding to FOIA requests shall be charged in
accordance with the provisions of this section and the current schedule
of charges determined by the Board and published in the compendium
provided under Sec. 1001.7 of this chapter.
(2) Fees shall not be charged if the total amount chargeable does
not exceed the costs of collecting the fee. The Trust shall
periodically determine the cost of collecting a fee and publish such
amount in the compendium provided under Sec. 1001.7 of this chapter.
(3) Where there is a reasonable basis to conclude that a requester
or group of requesters acting in concert has divided a request into a
series of requests on a single subject or related subjects to avoid
assessment of fees, the requests may be aggregated and fees charged
accordingly.
(4) Fees shall be charged to recover the full costs of providing
such services as certifying that records are true copies or sending
records by a method other than regular mail, when the Trust elects to
provide such services.
(5) The following definitions shall apply to this part:
(i) The term search includes all time spent looking for material
that is responsive to a request, including page-by-page or line-by-line
identification of material within documents or databases. Searches
shall be undertaken in the most efficient and least expensive manner
possible, consistent with the Presidio Trust's obligations under FOIA
and other applicable laws.
(ii) The term duplication refers to the process of making a copy of
a record necessary to respond to a FOIA request. Such copies can take
the form of paper copy, microform, audio-visual materials, or machine-
readable documentation (e.g., magnetic tape or disk), among others. The
copy provided shall be in a form that is reasonably usable by
requesters.
(iii) A commercial use request is a request from or on behalf of a
person who seeks information for a use or purpose that further the
commercial, trade, or profit interests of the requester or the person
on whose behalf the request is made. The intended use of records may be
determined on the basis of information submitted by a requester and
from reasonable inferences based on the identity of the requester and
any other available information.
(iv) An educational institution is a preschool, a public or private
elementary or secondary school, an institution of graduate higher
education, an institution of undergraduate higher education, an
institution of professional education, or an institution of vocational
education, which operates a program or programs of scholarly research.
(v) A noncommercial scientific institution is an institution that
is not operated for commerce, trade or profit and that is operated
solely for the purpose of conducting scientific research the results of
which are not intended to promote any particular product or industry.
(vi) A representative of the news media is any person actively
gathering news for an entity that is organized and operated to publish
or broadcast news to the public. The term ``news'' means information
that is about current events or that is (or would be) of current
interest to the public. Examples of news media entities include, but
are not limited to, television or radio stations broadcasting to the
public at large, and publishers of periodicals (but only in those
instances when they can qualify as disseminators of ``news'') who make
their products available for purchase or subscription by the general
public. As traditional methods of news delivery evolve (e.g.,
electronic dissemination of newspapers through telecommunications
services), such alternative media would be included in this category.
Free-lance journalists may be considered representatives of the news
media if they demonstrate a solid basis for expecting publication
through a news organization, even though not actually employed by it. A
publication contract or past record of publication, or evidence of a
specific free-lance assignment from a news organization may indicate a
solid basis for expecting publication.
(b) Commercial use requests. (1) A requester seeking records for
commercial use shall be charged fees for costs incurred in document
search and review (even if the search and review fails to locate
records that are not exempt from disclosure) and duplication.
(2) A commercial use requester may not be charged fees for time
spent resolving legal and policy issues affecting access to requested
records.
(c) Educational and noncommercial scientific institution requests.
(1) A requester seeking records under the auspices of an educational
institution in furtherance of scholarly research or a noncommercial
scientific institution in furtherance of scientific research shall be
charged for document duplication, except that the first 100 pages of
paper copies (or the equivalent cost thereof if the records are in some
other form) shall be provided without charge.
(2) Such requesters may not be charged fees for costs incurred in:
(i) Searching for requested records,
(ii) Examining requested records to determine whether they are
exempt from mandatory disclosure,
(iii) Deleting reasonably segregable exempt matter,
(iv) Monitoring the requester's inspection of agency records, or
(v) Resolving legal and policy issues affecting access to requested
records.
(d) News media requests. (1) A representative of the news media
shall be charged for document duplication, except that the first 100
pages of paper copies (or the equivalent cost thereof if the records
are in some other form) shall be provided without charge.
(2) Representatives of the news media may not be charged fees for
costs incurred in:
(i) Searching for requested records,
(ii) Examining requested records to determine whether they are
exempt from mandatory disclosure,
(iii) Deleting reasonably segregable exempt matter,
(iv) Monitoring the requester's inspection of agency records, or
(v) Resolving legal and policy issues affecting access to requested
records.
(e) Other requests. (1) A requester not covered by paragraphs (b),
(c), or (d) of this section shall be charged fees for document search
(even if the search fails to locate records that are not exempt from
disclosure) and
[[Page 50049]]
duplication, except that the first two hours of search time and the
first 100 pages of paper copies (or the equivalent cost thereof if the
records are in some other form) shall be provided without charge.
(2) Such requesters may not be charged for costs incurred in:
(i) Examining requested records to determine whether they are
exempt from disclosure,
(ii) Deleting reasonably segregable exempt matter,
(iii) Monitoring the requester's inspection of agency records, or
(iv) Resolving legal and policy issues affecting access to
requested records.
(f) Requests for clarification. Where a request does not provide
sufficient information to determine whether it is covered by paragraph
(b), (c), (d), or (e) of this section, the requester should be asked to
provide additional clarification. If it is necessary to seek such
clarification, the request may be deemed to have not been received for
purposes of the time limits established in Sec. 1007.6 until the
clarification is received. Requests to requesters for clarification
shall be made promptly.
(g) Notice of anticipated fees. Where a request does not state a
willingness to pay fees as high as anticipated by the Presidio Trust,
and the requester has not sought and been granted a full waiver of fees
under Sec. 1007.10, the request may be deemed to have not been received
for purposes of the time limits established in Sec. 1007.6 until the
requester has been notified of and agrees to pay the anticipated fee.
Advice to requesters with respect to anticipated fees shall be provided
promptly.
(h) Advance payment. (1) Where it is anticipated that allowable
fees are likely to exceed $250.00 and the requester does not have a
history of prompt payment of FOIA fees, the requester may be required
to make an advance payment of the entire fee before processing of his
or her request.
(2) Where a requester has previously failed to pay a fee within 30
days of the date of billing, processing of any new request from that
requester shall ordinarily be suspended until the requester pays any
amount still owed, including applicable interest, and makes advance
payment of allowable fees anticipated in connection with the new
request.
(3) Advance payment of fees may not be required except as described
in paragraphs (h)(1) and (2) of this section.
(4) Issuance of a notice requiring payment of overdue fees or
advance payment shall toll the time limit in Sec. 1007.6 until receipt
of payment.
(i) Form of payment. Payment of fees should be made by check or
money order payable to the Presidio Trust. Where appropriate, the
official responsible for handling a request may require that payment by
check be made in the form of a certified check.
(j) Billing procedures. A bill for collection shall be prepared for
each request that requires collection of fees.
(k) Collection of fees. The bill for collection or an accompanying
letter to the requester shall include a statement that interest will be
charged in accordance with the Debt Collection Act of 1982, 31 U.S.C.
3717, and implementing regulations, 4 CFR 102.13, if the fees are not
paid within 30 days of the date of the bill for collection is mailed or
hand-delivered to the requester. This requirement does not apply if the
requester is a unit of State or local government. Other authorities of
the Debt Collection Act of 1982 shall be used, as appropriate, to
collect the fees.
Sec. 1007.10 Waiver of fees.
(a) Statutory fee waiver. Documents shall be furnished without
charge or at a charge reduced below the fees chargeable under
Sec. 1007.9 if disclosure of the information is in the public interest
because it:
(1) Is likely to contribute significantly to public understanding
of the operations or activities of the government and
(2) Is not primarily in the commercial interest of the requester.
(b) Elimination or reduction of fees. Ordinarily, in the
circumstances where the criteria of subsection (a) are met, fees will
be reduced by twenty-five percent from the fees otherwise chargeable to
the requester. In exceptional circumstances, and with the approval of
the Executive Director, fees may be reduced below this level or waived
entirely.
(c) Notice of denial. If a requested statutory fee waiver or
reduction is denied, the requester shall be notified in writing. The
notice shall include:
(1) A statement of the basis on which the waiver or reduction has
been denied.
(2) A listing of the names and titles or positions of each person
responsible for the denial.
(3) A statement that the denial may be appealed to the Executive
Director and a description of the procedures in Sec. 1007.7 for appeal.
PART 1008--REQUESTS UNDER THE PRIVACY ACT
Sec.
1008.1 Purpose and scope.
1008.2 Definitions.
1008.3 Records subject to the Privacy Act.
1008.4 Standards for maintenance of records subject to the Privacy
Act.
1008.5 Federal Register notices describing systems of records.
1008.6 Assuring integrity of records.
1008.7 Conduct of employees.
1008.8 Government contracts.
1008.9 Disclosure of records.
1008.10 Accounting for disclosures.
1008.11 Requests for notification of existence of records:
Submission.
1008.12 Requests for notification of existence of records: Action
on.
1008.13 Requests for access to records.
1008.14 Requests for access to records: Submission.
1008.15 Requests for access to records: Initial decision.
1008.16 Requests for notification of existence of records and for
access to records: Appeals.
1008.17 Requests for access to records: Special situations.
1008.18 Amendment of records.
1008.19 Petitions for amendment: Submission and form.
1008.20 Petitions for amendment: Processing and initial decision.
1008.21 Petitions for amendment: Time limits for processing.
1008.22 Petitions for amendment: Appeals.
1008.23 Petitions for amendment: Action on appeals.
1008.24 Statements of disagreement.
Authority: Pub. L. 104-333, 110 Stat. 4097 (16 U.S.C. 460bb
note); 5 U.S.C. 552a.
Sec. 1008.1 Purpose and scope.
This part contains the regulations of the Presidio Trust
implementing section 3 of the Privacy Act. Sections 1008.3 through
1008.10 describe the procedures and policies of the Presidio Trust
concerning maintenance of records which are subject to the Privacy Act.
Sections 1008.11 through 1008.17 describe the procedure under which
individuals may determine whether systems of records subject to the
Privacy Act contain records relating to them and the procedure under
which they may seek access to existing records. Sections 1008.18
through 1008.24 describe the procedure under which individuals may
petition for amendment of records subject to the Privacy Act relating
to them.
Sec. 1008.2 Definitions.
The following terms have the following meanings as used in this
part:
Individual means a citizen of the United States or an alien
lawfully admitted for permanent residence.
Maintain means maintain, collect, use or disseminate.
[[Page 50050]]
Privacy Act means section 3 of the Privacy Act, 5 U.S.C. 552a.
Record means any item, collection, or grouping of information about
an individual that is maintained by the Presidio Trust, including, but
not limited to, education, financial transactions, medical history, and
criminal or employment history and that contains the individual's name,
or the identifying number, symbol, or other identifying particular
assigned to the individual, such as a finger or voice print, or a
photograph. Record includes:
(1) System of records means a group of any records under the
control of the Presidio Trust from which information is retrieved by
the name of the individual or by some identifying number, symbol, or
other identifying particular assigned to the individual.
(2) Medical records means records which relate to the
identification, prevention, cure or alleviation of any disease, illness
or injury including psychological disorders, alcoholism and drug
addiction.
(3) Personnel records means records used for personnel management
programs or processes such as staffing, employee development,
retirement, and grievances and appeals.
(4) Statistical records means records in a system of records
maintained for statistical research or reporting purposes only and not
used in whole or in part in making any determination about an
identifiable individual.
Routine use means a use of a record for a purpose which is
compatible with the purpose for which it was collected.
System notice means the notice describing a system of records
required by 5 U.S.C. 552a(e)(4) to be published in the Federal Register
upon establishment or revision of the system of records.
System manager means the official designated in a system notice as
having administrative responsibility for a system of records.
Privacy Act Officer means the Presidio Trust official charged with
responsibility for carrying out the functions assigned in this part.
Sec. 1008.3 Records subject to the Privacy Act.
The Privacy Act applies to all records which the Presidio Trust
maintains in a system of records.
Sec. 1008.4 Standards for maintenance of records subject to the
Privacy Act.
(a) Content of records. Records subject to the Privacy Act shall
contain only such information about an individual as is relevant and
necessary to accomplish a purpose of the Presidio Trust required to be
accomplished by statute or Executive Order of the President.
(b) Standards of accuracy. Records subject to the Privacy Act which
are used in making any determination about any individual shall be
maintained with such accuracy, relevance, timeliness, and completeness
as is reasonably necessary to assure fairness to the individual in
making the determination.
(c) Collection of information. (1) Information which may be used in
making determinations about an individual's rights, benefits, and
privileges under Federal programs shall, to the greatest extent
practicable, be collected directly from that individual.
(2) In deciding whether collection of information from an
individual, as opposed to a third party source, is practicable, the
following factors, among others, may be considered:
(i) Whether the nature of the information sought is such that it
can only be obtained from a third party;
(ii) Whether the cost of collecting the information from the
individual is unreasonable when compared with the cost of collecting it
from a third party;
(iii) Whether there is a risk that information collected from third
parties, if inaccurate, could result in an adverse determination to the
individual concerned;
(iv) Whether the information, if supplied by the individual, would
have to be verified by a third party; or
(v) Whether provisions can be made for verification, by the
individual, of information collected from third parties.
(d) Advice to individuals concerning uses of information. (1) Each
individual who is asked to supply information about him or herself
which will be added to a system of records shall be informed of the
basis for requesting the information, how it may be used, and what the
consequences, if any, are of not supplying the information.
(2) At a minimum, the notice to the individual must state:
(i) The authority (whether granted by statute or Executive Order of
the President) which authorizes the solicitation of the information and
whether disclosure of such information is mandatory or voluntary;
(ii) The principal purpose or purposes for which the information is
intended to be used;
(iii) The routine uses which may be made of the information; and
(iv) The effects on the individual, if any, of not providing all or
any part of the requested information.
(3)(i) When information is collected on a standard form, the notice
to the individual shall be provided on the form, on a tear-off sheet
attached to the form, or on a separate sheet, whichever is most
practical.
(ii) When information is collected by an interviewer, the
interviewer shall provide the individual with a written notice which
the individual may retain. If the interview is conducted by telephone,
however, the interviewer may summarize the notice for the individual
and need not provide a copy to the individual unless the individual
requests a copy.
(iii) An individual may be asked to acknowledge, in writing, that
the notice required by this section has been provided.
(e) Records concerning activity protected by the First Amendment.
No record may be maintained describing how any individual exercises
rights guaranteed by the First Amendment to the Constitution unless the
maintenance of the record is:
(1) Expressly authorized by statute or by the individual about whom
the record is maintained or
(2) Pertinent to and within the scope of an authorized law
enforcement activity.
Sec. 1008.5 Federal Register notices describing systems of records.
The Privacy Act requires publication of a notice in the Federal
Register describing each system of records subject to the Privacy Act.
Such notice will be published prior to the establishment or a revision
of the system of records. 5 U.S.C. 552a(e)(4).
Sec. 1008.6 Assuring integrity of records.
(a) Statutory requirement. The Privacy Act requires that records
subject to the Privacy Act be maintained with appropriate
administrative, technical and physical safeguards to insure the
security and confidentiality of records and to protect against any
anticipated threats or hazards to their security or integrity which
could result in substantial harm, embarrassment, inconvenience, or
unfairness to any individual on whom information is maintained, 5
U.S.C. 552a(e)(10).
(b) Records security. Whether maintained in physical or electronic
form, records subject to the Privacy Act shall be maintained in a
secure manner commensurate with the sensitivity of the information
contained in the system of records. The Privacy Act Officer will
periodically review these security measures to ensure their adequacy.
Sec. 1008.7 Conduct of employees.
(a) Handling of records subject to the Privacy Act. Employees whose
duties require handling of records subject to the Privacy Act shall, at
all times, take care to protect the integrity, security and
confidentiality of these records.
[[Page 50051]]
(b) Disclosure of records. No employee of the Presidio Trust may
disclose records subject to the Privacy Act unless disclosure is
permitted under Sec. 1008.9 or is to the individual to whom the record
pertains.
(c) Alteration of records. No employee of the Presidio Trust may
alter or destroy a record subject to the Privacy Act unless:
(1) Such alteration or destruction is properly undertaken in the
course of the employee's regular duties or
(2) Such alteration or destruction is required by a decision under
Secs. 1008.18 through 1008.23 or the decision of a court of competent
jurisdiction.
Sec. 1008.8 Government contracts.
(a) Required contract provisions. When a contract provides for the
operation by or on behalf of the Presidio Trust of a system of records
to accomplish a Presidio Trust function, the contract shall, consistent
with the Presidio Trust's authority, cause the requirements of 5 U.S.C.
552a and the regulations contained in this part to be applied to such
system.
(b) System manager. A regular employee of the Presidio Trust will
be the manager for a system of records operated by a contractor.
Sec. 1008.9 Disclosure of records.
(a) Prohibition of disclosure. No record contained in a system of
records may be disclosed by any means of communication to any person,
or to another agency, except pursuant to a written request by, or with
the prior written consent of, the individual to whom the record
pertains.
(b) General exceptions. The prohibition contained in paragraph (a)
does not apply where disclosure of the record would be:
(1) To those officers or employees of the Presidio Trust who have a
need for the record in the performance of their duties; or
(2) Required by the Freedom of Information Act, 5 U.S.C. 552.
(c) Specific exceptions. The prohibition contained in paragraph (a)
of this section does not apply where disclosure of the record would be:
(1) For a routine use which has been described in a system notice
published in the Federal Register;
(2) To the Bureau of the Census for purposes of planning or
carrying out a census or survey or related activity pursuant to the
provisions of Title 13, U.S. Code.
(3) To a recipient who has provided the system manager responsible
for the system in which the record is maintained with advance adequate
written assurance that the record will be used solely as a statistical
research or reporting record, and the record is to be transferred in a
form that is not individually identifiable;
(4) To the National Archives and Records Administration as a record
which has sufficient historical or other value to warrant its continued
preservation by the U.S. Government, or for evaluation by the Archivist
of the United States or the designee of the Archivist to determine
whether the record has such value;
(5) To another agency or to an instrumentality of any governmental
jurisdiction within or under the control of the United States for a
civil or criminal law enforcement activity if the activity is
authorized by law, and if the head of the agency or instrumentality has
made a written request to the Presidio Trust specifying the particular
portion desired and the law enforcement activity for which the record
is sought;
(6) To a person pursuant to a showing of compelling circumstances
affecting the health or safety of an individual if upon such disclosure
notification is transmitted to the last known address of such
individual;
(7) To either House of Congress, or, to the extent of matter within
its jurisdiction, any committee or subcommittee thereof, any joint
committee of Congress or subcommittee of any such joint committee;
(8) To the Comptroller General, or any of his authorized
representatives, in the course of the performance of the duties of the
General Accounting Office;
(9) Pursuant to the order of a court of competent jurisdiction; or
(10) To a consumer reporting agency in accordance with section 3(d)
of the Federal Claims Collection Act of 1966, as amended (31 U.S.C.
3711(f)).
(d) Reviewing records prior to disclosure. (1) Prior to any
disclosure of a record about an individual, unless disclosure is
required by the Freedom of Information Act, reasonable efforts shall be
made to assure that the records are accurate, complete, timely and
relevant for agency purposes.
(2) When a record is disclosed in connection with a Freedom of
Information Act request made under this part and it is appropriate and
administratively feasible to do so, the requester shall be informed of
any information known to the Presidio Trust indicating that the record
may not be fully accurate, complete, or timely.
Sec. 1008.10 Accounting for disclosures.
(a) Maintenance of an accounting. (1) Where a record is disclosed
to any person, or to another agency, under any of the specific
exceptions provided by Sec. 1008.9(c), an accounting shall be made.
(2) The accounting shall record:
(i) The date, nature, and purpose of each disclosure of a record to
any person or to another agency and
(ii) The name and address of the person or agency to whom the
disclosure was made.
(3) Accountings prepared under this section shall be maintained for
at least five years or the life of the record, whichever is longer,
after the disclosure for which the accounting is made.
(b) Access to accountings. (1) Except for accountings of
disclosures made under Sec. 1008.9(c)(5), accountings of all
disclosures of a record shall be made available to the individual to
whom the record relates at the individual's request.
(2) An individual desiring access to an accounting of disclosures
of a record pertaining to the individual shall submit a request by
following the procedures of Sec. 1008.13.
(c) Notification of disclosure. When a record is disclosed pursuant
to Sec. 1008.9(c)(9) as the result of the order of a court of competent
jurisdiction, reasonable efforts shall be made to notify the individual
to whom the record pertains as soon as the order becomes a matter of
public record.
Sec. 1008.11 Request for notification of existence of records:
Submission.
(a) Submission of requests. (1) Individuals desiring to determine
under the Privacy Act whether a system of records contains records
pertaining to them shall address inquiries to the Privacy Act Officer,
Presidio Trust, P.O. Box 29052, San Francisco, CA 94129-0052, unless
the system notice describing the system prescribes or permits
submission to some other official or officials.
(2) Individuals desiring to determine whether records pertaining to
them are maintained in two or more systems shall make a separate
inquiry concerning each system.
(b) Form of request. (1) An inquiry to determine whether a system
of records contains records pertaining to an individual shall be in
writing.
(2) To insure expeditious handling, the request shall be
prominently marked, both on the envelope and on the face of the
request, with the legend ``PRIVACY ACT INQUIRY.''
(3) The request shall state that the individual is seeking
information concerning records pertaining to him or herself and shall
supply such additional identifying information, if any, as is called
for in the system notice describing the system.
[[Page 50052]]
(4) Individuals who have reason to believe that information
pertaining to them may be filed under a name other than the name they
are currently using (e.g., maiden name), shall include such information
in the request.
Sec. 1008.12 Requests for notification of existence of records: Action
on.
(a) Decisions on request. (1) Individuals inquiring to determine
whether a system of records contains records pertaining to them shall
be promptly advised whether the system contains records pertaining to
them unless:
(i) The records were compiled in reasonable anticipation of a civil
action or proceeding or
(ii) The system of records is one which has been excepted from the
notification provisions of the Privacy Act by rulemaking.
(2) If the records were compiled in reasonable anticipation of a
civil action or proceeding or the system of records is one which has
been excepted from the notification provisions of the Privacy Act by
rulemaking, the individuals will be promptly notified that they are not
entitled to notification of whether the system contains records
pertaining to them.
(b) Authority to deny requests. A decision to deny a request for
notification of the existence of records shall be made by the Privacy
Act officer in consultation with the General Counsel.
(c) Form of decision. (1) No particular form is required for a
decision informing individuals whether a system of records contains
records pertaining to them.
(2) A decision declining to inform an individual whether or not a
system of records contains records pertaining to him or her shall be in
writing and shall:
(i) State the basis for denial of the request.
(ii) Advise the individual that an appeal of the declination may be
made to the Executive Director pursuant to Sec. 1008.16 by writing to
the Executive Director, Presidio Trust, P.O. Box 29052, San Francisco,
CA 94129-0052.
(iii) State that the appeal must be received by the foregoing
official within 20 working days of the date of the decision.
(3) If the decision declining a request for notification of the
existence of records involves records which fall under the jurisdiction
of another agency, the individual shall be informed in a written
response which shall:
(i) State the reasons for the denial.
(ii) Include the name, position title, and address of the official
responsible for the denial.
(iii) Advise the individual that an appeal of the declination may
be made only to the appropriate official of the relevant agency, and
include that official's name, position title, and address.
(4) Copies of decisions declining a request for notification of the
existence of records made pursuant to paragraphs (c)(2) and (c)(3) of
this section shall be provided to the Privacy Act Officer.
Sec. 1008.13 Requests for access to records.
The Privacy Act permits individuals, upon request, to gain access
to their records or to any information pertaining to them which is
contained in a system and to review the records and have a copy made of
all or any portion thereof in a form comprehensive to them. 5 U.S.C.
552a(d)(1). A request for access shall be submitted in accordance with
the procedures in this part.
Sec. 1008.14 Requests for access to records: Submission.
(a) Submission of requests. (1) Requests for access to records
shall be submitted to the Privacy Act Officer unless the system notice
describing the system prescribes or permits submission to some other
official or officials.
(2) Individuals desiring access to records maintained in two or
more separate systems shall submit a separate request for access to the
records in each system.
(b) Form of request. (1) A request for access to records subject to
the Privacy Act shall be in writing and addressed to Privacy Act
Officer, Presidio Trust, P.O. Box 29052, San Francisco, CA 94129-0052.
(2) To insure expeditious handling, the request shall be
prominently marked, both on the envelope and on the face of the
request, with the legend ``PRIVACY ACT REQUEST FOR ACCESS.''
(3) Requesters shall specify whether they seek all of the records
contained in the system which relate to them or only some portion
thereof. If only a portion of the records which relate to the
individual are sought, the request shall reasonably describe the
specific record or records sought.
(4) If the requester seeks to have copies of the requested records
made, the request shall state the maximum amount of copying fees which
the requester is willing to pay. A request which does not state the
amount of fees the requester is willing to pay will be treated as a
request to inspect the requested records. Requesters are further
notified that under Sec. 1008.15(d) the failure to state willingness to
pay fees as high as are anticipated by the Presidio Trust will delay
processing of a request.
(5) The request shall supply such identifying information, if any,
as is called for in the system notice describing the system.
(6) Requests failing to meet the requirements of this paragraph
shall be returned to the requester with a written notice advising the
requester of the deficiency in the request.
Sec. 1008.15 Requests for access to records: Initial decision.
(a) Decisions on requests. A request made under this part for
access to a record shall be granted promptly unless (1) the record was
compiled in reasonable anticipation of a civil action or proceeding or
(2) the record is contained in a system of records which has been
excepted from the access provisions of the Privacy Act by rulemaking.
(b) Authority to deny requests. A decision to deny a request for
access under this part shall be made by the Privacy Act Officer in
consultation with the General Counsel.
(c) Form of decision. (1) No particular form is required for a
decision granting access to a record. The decision shall, however,
advise the individual requesting the record as to where and when the
record is available for inspection or, as the case may be, where and
when copies will be available. If fees are due under Sec. 1008.15(d),
the individual requesting the record shall also be notified of the
amount of fees due or, if the exact amount has not been determined, the
approximate amount of fees due.
(2) A decision denying a request for access, in whole or part,
shall be in writing and shall:
(i) State the basis for denial of the request.
(ii) Contain a statement that the denial may be appealed to the
Executive Director pursuant to Sec. 1008.16 by writing to the Executive
Director, Presidio Trust, P.O. Box 29052, San Francisco, CA 94129-0052.
(iii) State that the appeal must be received by the foregoing
official within 20 working days of the date of the decision.
(3) If the decision denying a request for access involves records
which fall under the jurisdiction of another agency, the individual
shall be informed in a written response which shall:
(i) State the reasons for the denial.
(ii) Include the name, position title, and address of the official
responsible for the denial.
(iii) Advise the individual that an appeal of the declination may
be made
[[Page 50053]]
only to the appropriate official of the relevant agency, and include
that official's name, position title, and address.
(4) Copies of decisions denying requests for access made pursuant
to paragraphs (c)(2) and (c)(3) of this section will be provided to the
Privacy Act Officer.
(d) Fees. (1) No fees may be charged for the cost of searching for
or reviewing a record in response to a request made under Sec. 1008.14.
(2) Unless the Privacy Act Officer determines that reduction or
waiver of fees is appropriate, fees for copying a record in response to
a request made under Sec. 1008.14 shall be charged in accordance with
the provisions of this section and the current schedule of charges
determined by the Board and published in the compendium provided under
Sec. 1001.8 of this chapter.
(3) Where it is anticipated that fees chargeable in connection with
a request will exceed the amount the person submitting the request has
indicated a willingness to pay, the Privacy Act Officer shall notify
the requester and shall not complete processing of the request until
the requester has agreed, in writing, to pay fees as high as are
anticipated.
Sec. 1008.16 Requests for notification of existence of records and for
access to records: Appeals.
(a) Right of appeal. Except for appeals pertaining to records under
the jurisdiction of another agency, individuals who have been notified
that they are not entitled to notification of whether a system of
records contains records pertaining to them or have been denied access,
in whole or part, to a requested record may appeal to the Executive
Director.
(b) Time for appeal. (1) An appeal must be received by the
Executive Director no later than 20 working days after the date of the
initial decision on a request.
(2) The Executive Director may, for good cause shown, extend the
time for submission of an appeal if a written request for additional
time is received within 20 working days of the date of the initial
decision on the request.
(c) Form of appeal. (1) An appeal shall be in writing and shall
attach copies of the initial request and the decision on the request.
(2) The appeal shall contain a brief statement of the reasons why
the appellant believes the decision on the initial request to have been
in error.
(3) The appeal shall be addressed to Executive Director, Presidio
Trust, P.O. Box 29052, San Francisco, CA 94129-0052.
(d) Action on appeals. (1) Appeals from decisions on initial
requests made pursuant to Sec. Sec. 1008.12 and 1008.14 shall be
decided for the Presidio Trust by the Executive Director after
consultation with the General Counsel.
(2) The decision on an appeal shall be in writing and shall state
the basis for the decision.
Sec. 1008.17 Requests for access to records: Special situations.
(a) Medical records. (1) Medical records shall be disclosed to the
individual to whom they pertain unless it is determined, in
consultation with a medical doctor, that disclosure should be made to a
medical doctor of the individual's choosing.
(2) If it is determined that disclosure of medical records directly
to the individual to whom they pertain could have an adverse effect on
that individual, the individual may designate a medical doctor to
receive the records and the records will be disclosed to that doctor.
(b) Inspection in presence of third party. (1) Individuals wishing
to inspect records pertaining to them which have been opened for their
inspection may, during the inspection, be accompanied by a person of
their own choosing.
(2) When such a procedure is deemed appropriate, individuals to
whom the records pertain may be required to furnish a written statement
authorizing discussion of their records in the accompanying person's
presence.
Sec. 1008.18 Amendment of records.
The Privacy Act permits individuals to request amendment of records
pertaining to them if they believe the records are not accurate,
relevant, timely or complete. 5 U.S.C. 552a(d)(2). A request for
amendment of a record shall be submitted in accordance with the
procedures in this part.
Sec. 1008.19 Petitions for amendment: Submission and form.
(a) Submission of petitions for amendment. (1) A request for
amendment of a record shall be submitted to the Privacy Act Officer
unless the system notice describing the system prescribes or permits
submission to a different official or officials. If an individual
wishes to request amendment of records located in more than one system,
a separate petition must be submitted with respect to each system.
(2) A petition for amendment of a record may be submitted only if
the individual submitting the petition has previously requested and
been granted access to the record and has inspected or been given a
copy of the record.
(b) Form of petition. (1) A petition for amendment shall be in
writing and shall specifically identify the record for which amendment
is sought.
(2) The petition shall state, in detail, the reasons why the
petitioner believes the record, or the objectionable portion thereof,
is not accurate, relevant, timely or complete. Copies of documents or
evidence relied upon in support of these reasons shall be submitted
with the petition.
(3) The petition shall state, specifically and in detail, the
changes sought in the record. If the changes involve rewriting the
record or portions thereof or involve adding new language to the
record, the petition shall propose specific language to implement the
changes.
Sec. 1008.20 Petitions for amendment: Processing and initial decision.
(a) Decisions on petitions. In reviewing a record in response to a
petition for amendment, the accuracy, relevance, timeliness and
completeness of the record shall be assessed against the criteria set
out in Sec. 1008.4.
(b) Authority to decide. A decision on a petition for amendment
shall be made by the Privacy Act Officer in consultation with the
General Counsel.
(c) Acknowledgment of receipt. Unless processing of a petition is
completed within ten working days, the receipt of the petition for
amendment shall be acknowledged in writing by the Privacy Act Officer.
(d) Inadequate petitions. (1) If a petition does not meet the
requirements of Sec. 1008.19, the petitioner shall be so advised and
shall be told what additional information must be submitted to meet the
requirements of Sec. 1008.19.
(2) If the petitioner fails to submit the additional information
within a reasonable time, the petition may be rejected. The rejection
shall be in writing and shall meet the requirements of paragraph (e) of
this section.
(e) Form of decision. (1) A decision on a petition for amendment
shall be in writing and shall state concisely the basis for the
decision.
(2) If the petition for amendment is rejected, in whole or part,
the petitioner shall be informed in a written response which shall:
(i) State concisely the basis for the decision.
(ii) Advise the petitioner that the rejection may be appealed to
the Executive Director, Presidio Trust, P.O. Box 29052, San Francisco,
CA 94129-0052.
[[Page 50054]]
(iii) State that the appeal must be received by the foregoing
official within 20 working days of the decision.
(3) If the petition for amendment involves records which fall under
the jurisdiction of another agency and is rejected, in whole or part,
the petitioner shall be informed in a written response which shall:
(i) State concisely the basis for the decision.
(ii) Include the name, position title, and address of the official
responsible for the denial.
(iii) Advise the individual that an appeal of the rejection may be
made only to the appropriate official of the relevant agency, and
include that official's name, position title, and address.
(4) Copies of rejections of petitions for amendment made pursuant
to paragraphs (e)(2) and (e)(3) of this section will be provided to the
Privacy Act Officer.
(f) Implementation of initial decision. If a petition for amendment
is accepted, in whole or part, the system manager maintaining the
record shall:
(1) Correct the record accordingly and,
(2) Where an accounting of disclosures has been made pursuant to
Sec. 1008.10, advise all previous recipients of the record that the
correction was made and the substance of the correction.
Sec. 1008.21 Petitions for amendment: Time limits for processing.
(a) Acknowledgment of receipt. The acknowledgment of receipt of a
petition required by Sec. 1008.20(c) shall be dispatched not later than
ten working days after receipt of the petition by the Privacy Act
Officer, unless a decision on the petition has been previously
dispatched.
(b) Decision on petition. A petition for amendment shall be
processed promptly. A determination whether to accept or reject the
petition for amendment shall be made within 30 working days after
receipt of the petition by the system manager responsible for the
system containing the challenged record.
(c) Suspension of time limit. The 30 working day time limit for a
decision on a petition shall be suspended if it is necessary to notify
the petitioner, pursuant to Sec. 1008.20(d), that additional
information in support of the petition is required. Running of the 30
working day time limit shall resume on receipt of the additional
information by the system manager responsible for the system containing
the challenged record.
(d) Extensions of time. (1) The 30 working day time limit for a
decision on a petition may be extended if the Privacy Act Officer
determines that an extension is necessary for one of the following
reasons:
(i) A decision on the petition requires analysis of voluminous
record or records;
(ii) Some or all of the challenged records must be collected from
facilities other than the facility at which the Privacy Act Officer is
located.
(iii) Some or all of the challenged records are of concern to
another agency of the Federal Government whose assistance and views are
being sought in processing the request.
(2) If the official responsible for making a decision on the
petition determines that an extension is necessary, the official shall
promptly inform the petitioner of the extension and the date on which a
decision is expected to be dispatched.
Sec. 1008.22 Petitions for amendment: Appeals.
(a) Right of appeal. Except for appeals pertaining to records under
the jurisdiction of another agency, where a petition for amendment has
been rejected in whole or in part, the individual submitting the
petition may appeal the denial to the Executive Director.
(b) Time for appeal. (1) An appeal must be received no later than
20 working days after the date of the decision on a petition.
(2) The Executive Director may, for good cause shown, extend the
time for submission of an appeal if a written request for additional
time is received within 20 working days of the date of the decision on
a petition.
(c) Form of appeal. (1) An appeal shall be in writing and shall
attach copies of the initial petition and the decision on that
petition.
(2) The appeal shall contain a brief statement of the reasons why
the appellant believes the decision on the petition to have been in
error.
(3) The appeal shall be addressed to Executive Director, Presidio
Trust, P.O. Box 29052, San Francisco, CA 94129-0052.
Sec. 1008.23 Petitions for amendment: Action on appeals.
(a) Authority. Appeals from decisions on initial petitions for
amendment shall be decided by the Executive Director, in consultation
with the General Counsel.
(b) Time limit. (1) A final determination on any appeal shall be
made within 30 working days after receipt of the appeal.
(2) The 30 working day period for decision on an appeal may be
extended, for good cause shown, by the Executive Director. If the 30
working day period is extended, the individual submitting the appeal
shall be notified of the extension and of the date on which a
determination on the appeal is expected to be dispatched.
(c) Form of decision. (1) The final determination on an appeal
shall be in writing and shall state the basis for the determination.
(2) If the determination upholds, in whole or part, the initial
decision rejecting the petition for amendment, the determination shall
also advise the individual submitting the appeal:
(i) Of his or her right to file a concise statement of the reasons
for disagreeing with the decision of the Presidio Trust;
(ii) Of the procedure established by Sec. 1008.24 for the filing of
the statement of disagreement;
(iii) That the statement which is filed will be made available to
anyone to whom the record is subsequently disclosed together with, at
the discretion of the Presidio Trust, a brief statement by the Presidio
Trust summarizing its reasons for refusing to amend the record;
(iv) That prior recipients of the challenged record will be
provided a copy of any statement of dispute to the extent that an
accounting of disclosure was maintained; and
(v) Of his or her right to seek judicial review of the Presidio
Trust's refusal to amend the record.
(3) If the determination reverses, in whole or in part, the initial
decision rejecting the petition for amendment, the system manager
responsible for the system containing the challenged record shall be
directed to:
(i) Amend the challenged record accordingly; and
(ii) If an accounting of disclosures has been made, advise all
previous recipients of the record of the amendment and its substance.
Sec. 1008.24 Statements of disagreement.
(a) Filing of statement. If the determination of the Executive
Director under Sec. 1008.23 rejects in whole or part, a petition for
amendment, the individual submitting the petition may file with the
Privacy Act Officer a concise written statement setting forth the
reasons for disagreement with the determination of the Presidio Trust.
(b) Disclosure of statements. In any disclosure of a record
containing information about which an individual has filed a statement
of disagreement under this section which occurs after the filing of the
statement, the disputed portion of the record will be clearly noted and
the recipient shall be
[[Page 50055]]
provided copies of the statement of disagreement. If appropriate, a
concise statement of the reasons of the Presidio Trust for not making
the requested amendments may also be provided to the recipient.
(c) Maintenance of statements. System managers shall develop
procedures to assure that statements of disagreement filed with them
shall be maintained in such a way as to assure dissemination of the
statements to recipients of the records to which the statements
pertain.
PART 1009--ADMINISTRATIVE CLAIMS UNDER THE FEDERAL TORT CLAIMS ACT
Sec.
1009.1 Purpose.
1009.2 Procedure for filing claims.
1009.3 Denial of claims.
1009.4 Payment of claims.
1009.5 Indemnification of Presidio Trust directors and employees.
Authority: Pub. L. 104-333, 110 Stat. 4097 (16 U.S.C. 460bb
note); 28 U.S.C. 2672.
Sec. 1009.1 Purpose.
The purpose of this part is to establish procedures for the filing
and settlement of claims under the Federal Tort Claims Act (in part, 28
U.S.C. secs. 2401(b), 2671-2680, as amended by Pub. L. 89-506, 80 Stat.
306). The officers to whom authority is delegated to settle tort claims
shall follow and be guided by the regulations issued by the Attorney
General prescribing standards and procedures for settlement of tort
claims (28 CFR part 14).
Sec. 1009.2 Procedure for filing claims.
(a) The procedure for filing and the contents of claims shall be
pursuant to 28 CFR 14.2, 14.3 and 14.4.
(b) Claims shall be filed directly with the Presidio Trust.
(c) Upon receipt of a claim, the time and date of receipt shall be
recorded. The claim shall be forwarded with the investigative file
immediately to the General Counsel for determination.
Sec. 1009.3 Denial of claims.
Denial of a claim shall be communicated as provided by 28 CFR 14.9.
Sec. 1009.4 Payment of claims.
(a) When an award of $2,500 or less is made, the voucher signed by
the claimant shall be transmitted for payment to the Presidio Trust.
When an award over $2,500 is made, transmittal for payment will be made
as prescribed by 28 CFR 14.10.
(b) Prior to payment, appropriate releases shall be obtained as
provided in 28 CFR 14.10.
Sec. 1009.5 Indemnification of Presidio Trust directors and employees.
(a) The Presidio Trust may indemnify a Presidio Trust director or
employee who is personally named as a defendant in any civil suit in
state or federal court or an arbitration proceeding or other proceeding
seeking damages against a Presidio Trust director or employee
personally, for any verdict, judgment, or other monetary award which is
rendered against such director or employee, provided that the conduct
giving rise to the verdict, judgment, or award was taken within the
scope of his or her duties or employment and that such indemnification
is in the interest of the Presidio Trust as determined by
(1) the Board, with respect to claims against an employee; or
(2) a majority of the Board, exclusive of the director against whom
claims have been made, with respect to claims against a director.
(b) The Presidio Trust may settle or compromise a personal damage
claim against a Presidio Trust director or employee by the payment of
available funds, at any time, provided the alleged conduct giving rise
to the personal damage claim was taken within the scope of the duties
or employment of the director or employee and that such settlement or
compromise is in the interest of the Presidio Trust as determined by:
(1) the Board, with respect to claims against an employee; or
(2) a majority of the Board, exclusive of the director against whom
claims have been made, with respect to claims against a director.
(c) The Presidio Trust will not entertain a request either to agree
to indemnify or to settle a personal damage claim before entry of an
adverse verdict, judgment, or award, unless exceptional circumstances
exist as determined by:
(1) the Board, with respect to claims against an employee; or
(2) a majority of the Board, exclusive of the director against whom
claims have been made, with respect to claims against a director.
(d) A Presidio Trust director or employee may request
indemnification to satisfy a verdict, judgment, or award entered
against the director or employee. The director or employee shall submit
a written request, with appropriate documentation including copies of
the verdict, judgment, award, or settlement proposal, in a timely
manner to the General Counsel, who shall make a recommended disposition
of the request. Where appropriate, the Presidio Trust shall seek the
views of the Department of Justice. The General Counsel shall forward
the request, the accompanying documentation, and the General Counsel's
recommendation to the Board for decision. In the event that a claim is
made against the General Counsel, the Chair shall designate a director
or employee of the Trust to fulfill the duties otherwise assigned to
the General Counsel under this section.
(e) Any payment under this section either to indemnify a Presidio
Trust director or employee or to settle a personal damage claim shall
be contingent upon the availability of funds.
[FR Doc. 98-24752 Filed 9-17-98; 8:45 am]
BILLING CODE 4310-45-U
